CKP Fishing Company Ltd v Labour Officer [2010] FJHC 314; HBA002.2010 (13 August 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 412 OF 2009

BETWEEN:

VUNIMOLI SAWMILL LIMITED
a limited liability company
having its registered office at Labasa.
Plaintiff

AND:

FIJI INSTITUTE OF TECHNOLOGY
Samabula, Suva
Defendant

Before: Master Anare Tuilevuka

Counsels: A.K. Singh Law for the Plaintiff

Date of Hearing: M C Lawyers
Date of Ruling: 13th August, 2010

RULING

1. Before me is an application by MC Lawyers dated 06th February 2010 for an order that the judgment in default of defence entered against the defendant on the 5th day of February 2010 be set aside and/or stayed and the defendant be given liberty to defend the action.
   
2. The application is made under Order 2 Rule 2 and Order 19 Rule 9 of the High Court Rules.
   
3. Order 2 Rule 2 of the High Court Rules says as follows:
   

"An application to set aside for irregularity any proceedings, any step taken in any proceedings or any documents, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity".

4. Order 19 Rule 9 of the High Court Rules says as follows:
   

"The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this order"

5. In this case, the writ of summons and statement of claim were filed on 9th of December 2009. The defendant filed an acknowledgment of service on 30th of December 2009.
   
6. On 5th of February 2010, default judgment was entered against the defendant for failing to file a defence.
   
7. The defendant followed this up promptly with the application to set aside on 18th February 2010.
   
8. The affidavit of Amrita Maharaj sworn on 16th February 2010 in support of the Motion says that due to the legal vacation, the computation of time to file defence should begin after the expiry of legal vacation. In other words, the 21 days time allowed under the High Court Rules would expire on 6th of February 2010.
   
9. On that point, I note that in Giesprechnt –v- Cross (2008 FJHC 356, Civil Action 540 of 2007 (25 November 2008) Mr. Justice Hickie, after examining the various Court Rulings on the issue, observed that the subject of whether or not the Christmas vacation should be excluded in the computation of time, has been the subject of conflicting Rulings and viewpoints.
   
10. Hickie J held that the legal vacation does in fact apply and should be excluded in the computation of time. He then held that the default judgement entered in that case was irregular and therefore should be set aside as of right.
    
11. The argument was raised before Hickie J that the merits or otherwise of the proposed defence should be considered. However, Hickie J rightfully refused that argument and held that it is not necessary for a defence on the merits to be shown to set aside a default judgement that had been entered irregularly.
    
12. I adopt Hickie J's reasoning and apply the same in this case. I therefore hold that the default judgement entered against the defendant on 12th February 2010 was irregular and should be set aside as of right.
    
13. I so order accordingly. The defendant is to file and serve his statement of defence within 14 days of the date of this ruling. The plaintiff has 14 days thereafter to file and serve a reply.
    
14. Adjourned to 9th of September at 10.00 a.m. for mention.
    
15. Costs in the cause.
    

Anare Tuilevuka
Master

At Suva
Dated 13th of July 2010.