Tavatavanawai v Chang [2004] FJHC 528; HBC00426R.2002S (29 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO. HBC0426D OF 2002S

BETWEEN:

TIMOCI TAVATAVANAWAI
of Namulomulo, Vugalei, Tailevu. Unemployed.
PLAINTIFF

AND:

PETER CHANG
of Waila, Nausori. Farmer.
DEFENDANT

Counsel for the Plaintiff: E. Veretawatini: E. Veretawatini Esq.
Counsel for the Defendant: A.K. Singh: Messrs A.K. Singh Law

Date of Decision: 29 June, 2004
Time of Decision: 9.30 a.m.

DECISION

On 2 December 2002, the Plaintiff obtained default judgment against the Defendant after the latter had failed to file notice of intention to defend. Consequent summons for assessment of damages was filed on 6 December 2002 and the affidavit of service followed on 9 December 2002.

This is the Defendant’s motion for the following reliefs:

'1. An Order that the interlocutory judgment entered on 2 December 2002 herein against the Applicant/Defendant be set aside;

2. An Order that the Applicant/Defendant do have unconditional leave to defend the action; and
   
3. An Order that all further proceedings including assessment of damages therein be stayed until final determination of this matter.'
   

Background

The Defendant is a farmer of some 7 acres of native land. Apart from vegetables, the Defendant cultivated a cassava plot. After the Coup of 2000, which resulted in the departure of the Defendant’s contractor responsible for harvesting/pulling of cassava, the Defendant obtained in the contractor’s place, the services of the Plaintiff. The Plaintiff is the Defendant’s neighbour. The parties entered into an oral agreement whereby the Plaintiff was expected to harvest the Defendant'’ cassava and packed them into bags. For each bagful, the Defendant paid the Plaintiff $2.00. In addition, the Defendant provided to the Plaintiff all the implements, including forks and spades, to assist in the job.

What happened to the Plaintiff sometime afterwards is a matter of dispute between the parties. In his Statement of Claim, the Plaintiff alleged that 'on or about the 3rd day of August 2001', while lifting full bags of cassava, he felt a sharp severe pain in his chest. According to the Plaintiff, he 'became completely paralysed while at the Nausori Health Centre' and at the CWM Hospital, 'a C.T. Myelogram demonstrated a complete block at the 5th and 6th Thoracic Vertebrae level.' The Plaintiff went on in his claim to say that:

'10. He had Laminectomy and Spinal Decompression on the 9th day of August 2001, which confirmed Spinal Epidural Abscess.

11. As a result of incontinence, he had also developed Neurogenic Bowel and Urinary Bladder.'
    

All these ailments, according to the Plaintiff, he suffered and was brought about by the Defendant’s negligence in his failure to provide safe work conditions, including proper tools and implements.

The Defendant’s version is that the Plaintiff’s present state of ill health was brought about by a stroke he suffered upon his return from watching a rugby match at Lautoka in later July 2001. The stroke was not brought about by lifting heavy loads such as bags of cassava at the Defendant’s farm. In any case, the agreement was for the Plaintiff to harvest and fill bags, not to lift bagfuls of cassava on to the truck. At the most, the Plaintiff argued, the Defendant would harvest between 4 to 5 bags of cassava in a day.

Application to Strike Out

The law is set out by the Fiji Court of Appeal in Wearsmart Textiles Limited v. General Machinery Hire Limited & Ors. Civil Appeal No. ABU0030.1997S.

On the facts of this case, there can be no argument that the interlocutory default judgment was regularly entered, and that pursuant to Order 13 r.2 of the High Court Rules. The Plaintiff has correctly proceeded with summons for assessment of damages and costs. The Defendant does not therefore have the right to have the judgment set aside. There remains only the discretionary powers of the Court to intervene under Order 13 r.10 and O.19 r.9 of the High Court Rules. The reason for the existence of these powers is explained by Lord Atkin in Evans v. Bartlam (1937) AC at p.480 as follows:

'The principle obviously is that unless and until the Court has pronounced judgment upon merits or by consent, it is to have the power to revoke the expression of its coercive power where that has been obtained by a failure to follow any of the rules of procedure.'

A default judgment, even when regularly obtained is not, as the Fiji Court of Appeal pointed out in Wesrsmart Case, 'a judgment' upon 'merits.'

The general principles that guide the Court in considering whether to set aside a default judgment that has been regularly obtained, is set out in the Supreme Court Practice 1997 Volume 1 (White Book) at p.143, and adopted by the Court in Wearsmart. The emphasis and the major consideration for the purpose of setting aside a default judgment, is that the Defendant must show that it has a meritorious defence. The meaning or standard is set down in Alpine Bulk Transport Co. Inc. v. Saudi Eagle Shipping Co. Inc.; The Saudi Eagle [1986] 2 Lloyds Rep. 221. The English Court of Appeal said, at p.223 that:

'It was not sufficient to show merely 'arguable' defence that would justify leave to defend under O.14; it must both have 'a real prospect of success' and 'carry some degree of conviction'. Thus the Court must form a provisional view of the probable outcome of the action.'

In the earlier decision of Evans v. Bartlam (supra) the Court had set out other considerations that may guide the Court in the exercise of its discretion. These include whether there are reasonable explanations why judgment was allowed to be entered by default, and whether the application to set aside was made promptly and within a reasonable time.

As to whether the Defendant has reasonable explanations why the judgment was allowed to be entered by default the Defendant conceded that he had received some documents from a girl employed by the Plaintiff’s solicitors on 10 October 2002 but she did not explain the documents nor the contents when asked, even although he understood Chinese and Fijian languages only. Only when he was next served with Plaintiff’s summons for assessment of damages on 7 January, 2003 did he go and see his solicitors.

While there is no rigid rule that the Defendant has to satisfy the Court that there is a reasonable explanation why the judgment went to default, the reasons when offered may be given regards to by the Court when exercising its discretion. In this instance, the fact that the Defendant did not understand the language of the documents served on him, is not an excuse of itself to prevent him from seeking legal advise, which he subsequently did when served with the second batch of documents. I am therefore not at all satisfied with the Defendant’s explanation as to why he had allowed judgment to go by default.

On whether the application to set aside had been made promptly and within a reasonable time, it is evident that upon being served with the Plaintiff’s summons on 7 January, 2003, he had sought legal assistance straightaway. Through his solicitors, he was then able to file his Motion to set aside supported by his affidavit and a draft statement of defence and counterclaim on 13 January 2003 only 6 days after receiving the Summons. It could not be said, under these circumstances, that the Defendant had not acted promptly and although he had received the Writ, some 3 months earlier, the fact that he had, with his solicitors, acted at once upon the receipt of the Summons, in my view is acceptable as within a reasonable time.

Finally, whether there is merit in the defence. The principles to be applied in the exercise of the Court’s discretion, is discussed above in reference to the Wearsmart and Alpine Bulk Transport Co. Inc. (supra). In this case, the Defendant in both his affidavit in support, and in the draft defence, disputes all the allegations that form the basis of the Plaintiff’s claims. In addition, the sequence of events leading up to the hospitalisation and the subsequent 'paralysis' that the Plaintiff suffered as a result do not necessary fall into a synchronological order, from the Defendant’s standpoint. There is also the vagueness that surrounds the Plaintiff’s claim and especially his medical conditions, as set out in his statement of claim. Medical conditions and terms have been used freely by the Plaintiff without as much as connecting such conditions to his total health and mental state and more importantly the causal link with the Defendant’s alleged negligence. Certainly, there is a need to bring some clarity if not certainty to the issues in the pleadings.

In the end, I am satisfied that the Defendant has shown through his affidavit and the draft defence, that he has a defence on the merits, which disclose triable issues which should be allowed to go to trial.

Order is made for the judgment entered on 2 December 2002 to be set aside. Leave is granted to the Defendant to file his statement of defence within 14 days.

Costs of $250.00 is awarded to the Plaintiff, payable within 7 days.

F. Jitoko
JUDGE

At Suva
29 June 2004