Singh v Commissioner of Inland Revenue [2004] FJHC 373; HBC0282.1998L (23 February 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0282 OF 1998

BETWEEN:

SURENDRA SINGH AND LAUTOKA SANDBLASTING & PAINTING CONTRACTORS COMPANY LIMITED
Plaintiffs

AND:

COMMISSIONER OF INLAND REVENUE
COMMISSIONER OF POLICE
ATTORNEY GENERAL OF FIJI
Defendants

Counsel for the Plaintiffs: Mr. Haroon A. Shah for Mr G.P. Shankar
Counsel for the 1st Defendant: Mr. K. Vuataki
Counsel for the 2nd & 3rd Defendants: Ms. S. Tabaiwalu

Date of Hearing & Judgment: 23 February 2004

EXTEMPORE JUDGMENT

This matter comes before the court by way of a Summons filed on 27 February 2003 on behalf of the 3^rd defendant, the Attorney General of Fiji. In that summons, the 3^rd defendant seeks that the judgment entered by default on the 7^th of December 2001 be set aside, and that leave be granted to the 3^rd defendant to file a statement of defence, and further that the execution of all further proceedings to enforce the default judgment be stayed until the final determination of the action.

In support of that summons, the 3^rd defendant relies upon an affidavit of Alvina Ali sworn on 27 February 2003 and I have had the benefit of written submissions and further oral submissions.

The application is opposed by the plaintiff who relies on the affidavits of the plaintiff, Surendra Singh, sworn on 23 June 2003 and 10 September 2003. I have also had the benefit of written submissions filed on behalf of the plaintiff and further oral submissions.

This matter, it appears from the documents filed and the court file has had a very poor history. The proceedings were commenced on 29 September 1998 and on the 7^th of December 2001 the matter was called before Mr. Justice Gates, it would appear, having been adjourned on prior occasions. At that time, counsel for the plaintiffs, Mr. Shah appeared and there was no appearance for the defendants and would appear no explanation for the absence of any appearance. No defence had been filed on behalf of the defendants. Judgment was sought and obtained on that day by default.

A Notice for Assessment of Damage was issued in early 2002. Notwithstanding this action being taken on behalf of the plaintiff, the 3^rd defendant appears to have done nothing, and continued to do nothing until the filing of the summons that is now before the court on the 27^th February 2003. There is a delay between the entry of judgment and the filing of the summons to have that judgment set aside of over two years.

It is trite to say that to facilitate or to cause judgment to be set aside, it is necessary for the applicant/defendant to show to the satisfaction of the court, that there is a defence on the merits and of course not to be guilty of delay, to make the application promptly.

I have been referred by the 3^rd defendant to authorities that support the proposition that delay can be excused and justified and should not necessarily be relied upon as a basis for not setting aside a judgment providing there is in fact a defence on the merits.

The 3^rd defendant argues that the pleadings fail to disclose or fail to plead any negligence as against the 3^rd defendant, the Attorney General of Fiji. The court is of the view that it is the right of all parties to have litigation properly argued before the court and vast delays in the hearing of litigation are unfortunately a fact of life at this court.

It would appear that there has been an even greater delay in the hearing of this litigation brought about by the 3^rd defendant’s conduct. In the circumstances, however, when looking at the totality of the issues before the court I think on balance is in the interest of justice that the 3^rd defendant’s application be granted but of course that will have to carry with it appropriate cost penalties and in addition, it would seem appropriate for recommendations to be made for the litigation to be listed for hearing at the first possible opportunity.

The Orders that I make therefore are: -

1. That the judgement entered by default on the 7^th day of December 2001 be set aside;
   
2. That the 3^rd defendant pay the plaintiff’s costs on an indemnity basis assessed in the sum of Two Thousand Dollars ($2,000.00);
   
3. I direct that the matter be listed for hearing for two days at the first available date.
   
4. The 3^rd defendant is to make any requests for further and better particulars within 14 days;
   
5. The plaintiff is to supply such particulars within 28 days from today;
   
6. The defendants shall file any defence on or before 14 April 2004.
   
7. The costs payable by the 3^rd defendant are to be paid before any further step is taken by that defendant in the proceedings;
   
8. Proceedings to be listed before the Deputy Registrar at 9.00am on 16 April 2004 to fix a hearing date.
   

JOHN CONNORS

JUDGE

AT LAUTOKA

23 FEBRUARY 2004