Khan v Sun Insurance Company Ltd [2005] FJHC 586; HBC0381.2003 (3 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0381 OF 2003

BETWEEN:

MAYUR PREVEZ KHAN
PLAINTIFF

AND:

SUN INSURANCE COMPANY LTD
1ST DEFENDANT

SUSHIL CHAND SHARMA
2ND DEFENDANT

Mr M S Sahu Khan for the Plaintiff
Mr V P Mishra for the Defendants

Date of Hearing 26 May 2005
Dates of Submissions: 17 June, 1 July, 8 July 2005
Date of Ruling: 03 August 2005

INTERLOCUTORY RULING OF FINNIGAN J

On 26 May 2005 there came before me 3 interlocutory applications for argument and decision. The need for that began on 16 March 2004 when the 1^st Defendant obtained judgment by default against the Plaintiff on its counter claim.

The applications before me were (1) the Plaintiff’s application to set aside that default judgment, filed on 5 May 2004 (2) an application filed 22 March 2004 by the 2^nd Defendant to have the Plaintiff’s claim against him dismissed and (3) an ex-parte application by the Plaintiff for stay of the 1^st Defendant’s default judgment.

My inevitable conclusion after studying all of the material put before me [which is not insubstantial] is that the default judgment must be set aside and the 2^nd Defendant’s attempt to lever himself out of the action must dismissed. The third order sought, for stay of the 1^st Defendant’s judgment on his counter-claim was made ex-parte on 20 October 2004. There were no grounds whatever shown by the affidavit in support to justify the order and its effect is in any event now at an end.

Many things were done badly. The writ was filed on 11 November 2003. It claimed remedies in contract and a remedy in tort. Neither Defendant took any steps within the time limited by the High Court Rules. However on 6 February 2004 the solicitors for both of them filed a statement of defence and counter-claim on behalf of the 1^st Defendant and a statement of defence on behalf of the 2^nd Defendant. The descriptions given to these documents were better than is often the case; one stated that it was the statement of defence for the 1^st Defendant and the other stated that it was the statement of defence for the 2^nd Defendant. Regrettably, that for the 1^st Defendant was inaccurate because the document contained a counter-claim. The solicitors for the 1^st Defendant, even though they had filed out of time, obtained a default judgment on the counter claim. The Plaintiff says he had not been aware of it so it seems that for his part he intended either to file no reply to the statement of defence or to try to do so out of time. Once aware of the judgment he applied to set it aside. It was over a year before the Court could give attention to that application.

The file was put before me on 28 February 2005. Counsel for the Plaintiff and Defendants appeared and advised they would need a hearing of 4 hours. I adjourned the matter until 5 May 2005 for the callover to fix a hearing date. On 5 May the time estimate was reduced to 1 ½ hours but the first the Plaintiff, a little late, had to file his affidavit in reply. A hearing on 11 May was adjourned because Counsel was not ready and the matter came before me again on 26 May.

On that day Plaintiff’s Counsel had come prepared only for the application to set aside the default judgment. I heard 23 minutes of oral submissions and then a workable arrangement for interchange of further submissions in writing was made and timetabled. Since 11 July I have been finding time to absorb all of this and have read the substantial submissions and some of the authorities that had been placed before me along with the numerous affidavits of the Plaintiff and one by Sheik Imtiaz Azam which was popped into the action by the Defendants’ solicitors for a purpose which is yet not clear to me.

Confusion was a little worse confounded when on 24 May 2005 the solicitors for the Defendants filed a submission purporting to be the Plaintiff’s submission opposing stay of judgment. I wish to acknowledge the considerable effort and indeed expense to which Counsel for both parties have gone in preparing and filing their submissions and authorities. I merely say it is a huge pity that the efforts of Counsel and of the Court should be diverted away from the substantive issues to be tried.

Decision

This has been unworthy litigation. The troubles started when the Defendants did not file their pleadings in time and then were imprecise in the backing and heading on one of their documents.

I pause to note that bad backing sheets are a perennial for the Court. It is sometimes impossible to relate an affidavit to an application except by filing date. It is sometimes difficult to identify which party is applying for what order except by reference to the internal terms of a document. In the present case both parties have contributed this fault. It will help the Court when that failing dies out.

Thereafter the 1^st Defendant moved for judgment. Putting aside the technicality of its breach of time limits, it was supported by ample authority in obtaining judgment by default. There is however ample authority, and far more powerful, in the inherent jurisdiction of the Court. The Court accepts every case on the basis that it will hear the parties and it will do justice between them. Judgment by default is a necessary and substantial part of the justice system. But where a party has commenced a substantive action and a defendant has filed a substantive counter claim directly related to the Plaintiff’s claim the Court [assuming the Plaintiff’s action has merit on its face] will expect to hear both parties before deciding. Even where one party has disobeyed an order of the Court and is in contempt that is not of itself a bar to his being heard. It is only if his disobedience impedes the course of justice in the cause by making it more difficult for the Court to ascertain the truth or to enforce the orders which may make that the Court may in its discretion refuse to hear him. [Hadkinson –v- Hadkinson [1952] 2 All ER 567 (C.A.)].

In the present case the Plaintiff was misled and lulled. I set aside the default judgment obtained by the 1^st Defendant. The Plaintiff has pleaded a viable cause of action against the 2^nd Defendant and I dismiss the 2^nd Defendant’s attempt to evade the properly pleaded claim in defamation which he is required to face.

None of these applications needed to be made, except perhaps as a way of keeping the action alive. It is alive. It will be set down in the next callover which will be 25 November 2005. Counsel may take pre-trial steps before then and if necessary any further directions will be given on that date.

Without these interlocutory applications it could have been listed much earlier.

I make no orders for costs on these applications.

D.D. Finnigan
JUDGE

At Lautoka
03 August 2005