Devi v Mani [2010] FJHC 429; HBC111.1998L (17 September 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 111 of 1998L

BETWEEN:

RANJILA DEVI
Plaintiff

AND:

SATISH CHAND MANI
1st Defendant

AND:

INDIRA DEVI
2nd Defendant

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: Mr. Vipul Mishra for the Plaintiff
Mr. H. A. Shah for the 1st Defendant

Solicitors: Mishra Prakash & Assoc for the Plaintiff
Haroon Ali Shah Esq. for the 1st Defendant

Date of Hearing: 27 April 2010
Date of Judgment: 17 September 2010

INTRODUCTION

[1] All along the First and Second Defendants thought that they were being represented by one of the two law firms that are on record. Unbeknown to them, both firms were given leave to withdraw and in their absence the Plaintiff obtained a judgment for $160,000 and costs on 19 April 2006. The judgment was for damages for personal injuries following a motor vehicle accident in which the First Defendant was found to have driven negligently when taking the Plaintiff home after work and the Second Defendant made liable because she was a partner of the firm that employed the Plaintiff.

[2] In addition to the judgment, the Plaintiff obtained orders restraining the Defendants from leaving Fiji unless they satisfied the judgment (“the prohibition orders”). The Plaintiff obtained leave to serve the prohibition orders on the First Defendants’ solicitors because the First Defendant was away in New Zealand at the time. So he was not aware of the prohibition order until he returned to Fiji from New Zealand where he had migrated to and found out that he could not return home because of the prohibition orders issued in 2001.

[3] The First Defendant now applies to set aside the Judgment and the prohibition orders.

THE CURRENT APPLICATION

[4] His new solicitors now filed his application on 14 April 2010, 12 years and 5 days after the Plaintiff filed her claim and 4 years after judgment. The Summons seeks the following orders:

1. For a declaration that the purported withdrawal of Messrs M. K. Sahu Khan and Company, solicitors for the Defendants was irregular.
   
2. For a declaration that the reinstatement of the Plaintiff’s claim on the 23rd day of November, 2005 was irregular.
   
3. For a declaration that the prohibition Orders of 6th day of July, 2001 remain extinguished and of no legal effect.
   
4. That the Defendant’s amended defence be restored to the cause list.
   
5. That there be a fresh hearing date assigned for the substantive matter.
   
6. OR alternatively the Plaintiff’s claim be dismissed with costs.
   
7. That the travel restriction and/or prohibition Orders of 6th day of July, 2001 be forthwith revoked and/or uplifted.
   
8. And such other Orders as this Honourable Court deems just and expedient.
   

CASE HISTORY

[5] The original Writ of Summons was filed by M T Khan & Co on 9 April 1998. Subsequently, Mishra Prakash & Assocs became appointed as the Plaintiff’s solicitors on 25 February 1999. They then filed an Amended Writ and Statement of Claim.

[6] The explanation of the involvement of M K Sahu Khan & Co is contained in the affidavit of the law clerk of the law firm Young & Associates filed on 2 October 2000:

2. Originally Tower Insurance (Fiji) Limited had instructed us to enter an appearance for the Defendants because they discovered that the were the third party insurers for (the First Defendant’s vehicle) .

3. The original Writ of Summons and Statement of Claim was not served on Tower Insurance (Fiji) Limited at all but was served on the Firs and Second Defendants.

4. The Defendants then engaged Messrs M K Sahu Khan & Co and by letter dated 13 April 1999 Messrs M K Sahu Khan & Co wrote to Tower Insurance (Fiji) Limited. Subsequently, Tower Insurance instructed our firm whereupon we filed Notice of Change of solicitors and filed a Statement of Defence.

5. We had the opportunity of taking further instructions and discovered that Tower Insurance was never served pursuant to section 11(2) of the Motor Vehicle (Third Party) Insurance Act [Cap 177]. Tower Insurance does not wish to indemnify the Defendants for the claim and feel that they are not obliged to do so and instructed us to withdraw as solicitors.

[7] So on an application filed on 2 October 2000, this Court declared on 29 November 2000 that Young & Associates had ceased to act as solicitors for the Defendants.

[8] Messrs M K Sahu Khan then came back onto the scene. They filed a notice of change of solicitors on 12 December 2000 appointing themselves as solicitors for the Defendants once again. The Plaintiff having amended her Statement of Claim, Messrs M K Sahu Khan then filed an Amended Defence on 29 March 2001.

[9] The Court file shows that the solicitors then continued to appear on and off until 16 August 2005 when neither Plaintiff nor Defendants appeared by counsel. Connors J then ordered the proceedings to be struck out and “only to be re-instated on a satisfactory explanation for the contemptuous attitude of counsel for the Plaintiff”.

[10] The Plaintiff’s application to re-instate the matter was filed on 8 September 2005. The explanation given for non appearance of counsel for the Plaintiff was that he appeared at 9.30am but the matter was called at 9.00am. His clerk had entered the wrong time in his diary.

[11] The application was heard on 23 November 2005 without the Defendants appearance by counsel and Finnigan J granted the order to re-instate the proceedings. The matter was to be put in the list for 25 November 2005 to allocate a hearing date. The Plaintiff was also ordered to serve the notice of the hearing by advertisement twice in a daily newspaper in Fiji at least 28 days before the hearing date.

[12] The Court file notes for the 19 April 2006 show that the Defendants names were called outside the Court room but neither appeared. Finnigan J then proceeded to hear the Plaintiff’s evidence in formal proof of her claim.

THE JUDGMENT OF 19 APRIL 2006

[13] The judgment of 19 April 2006 contained the following paragraphs:

1] This is a claim by widow arising from the death of her husband in a motor accident. The claim is against the Defendants both husband and wife on the basis that there were operators of the business in which the Plaintiff was employed at the time of his death. The driver of the vehicle in which the Plaintiff was a passenger was in fact the First Defendant he was taking the Plaintiff back from work and the initial claim under the Workmen’s Compensation Act was against both the Defendants as employers and in that claim the sum of about $14,610.00 was made to the Plaintiff as a widow and some of that money is still deposited in Trust Accounts for the two dependent children.

2] I am satisfied by the evidence of the three witnesses that it is well established that the First Defendant drove his motor vehicle carelessly and even dangerously leaving a skid mark of over 50 meters after overtaking another vehicle at a speed between 90 and 100 km per hour at about eleven o’clock at night. He lost control of the vehicle and crashed into a ditch. From the evidence of one tall witness it was about waist deep for him. The passenger who was on the impact side of the vehicle died shortly after being taken away from the scene to the hospital. I find that the First Defendant is liable as the driver to the Plaintiff for the death of the deceased and is liable to the Plaintiff in her capacity as administratrix and widow and mother with two dependent children. Judgment is entered also against the Second Defendant in as much as she by the evidence was a partner in the business and the First Defendant was acting as an agent of the business in driving the Plaintiff home from work and in the ultimate causing his death.

3] At this point I need to record that I have on the application of Mr Mishra for the Plaintiff struck out the Defendants’ Statement of Defence. They were initially represented by one solicitor. His instruction apparently came from one insurance company. That solicitor was given leave to withdraw and the second solicitor appeared and entered the record and filed an Amended Statement of Defence, and ultimately before the time set of hearing this matter, in August last year that solicitor appeared and was given leave to withdraw on the ground that he was unable to obtain instructions.

PRAYER 1: WITHDRAWAL OF DEFENDANTS’ SOLICITORS

[14] The Court file notes for 24 July 2005 showed that Mr M K Sahu Kahn appeared before Connors J and sought leave to withdraw because he was unable to get any response from the Defendants because he was not aware of their whereabouts. I do not think I can interfere with the findings of both Connors J and Finnigan J with regards to the withdrawal of M K Sahu Khan & Co. Prayer 1 of the Summons filed on 14 April 2010 is therefore denied.

PRAYER 2: RE-INSTATMENT

[15] Similarly, I will not interfere with the exercise of discretion by Finnigan J in re-instating the proceedings. In any event, it seems that the only reason for Connors J striking out the proceedings was for the non-appearance of counsel for the Plaintiff, which Finnigan J later accepted. Prayer 2 also fails.

PRAYERS 3 & 7: PROHIBITION ORDERS

[16] The prohibition orders were issued on 6 July 2001. Those orders arose out of the Plaintiff’s application made pursuant to O 111 of the High Court Rules 1988. The application was made ex-parte as allowed by the Rules. The learned Judge granted the orders “as per motion”. The “prohibition orders” sought in the motion were as follows:

(c) That the Defendants deliver both their passports and all passenger tickets and travel documents held by them to this Honourable Court save and unless the Defendants can provide free and unencumbered assets belonging to them having a total value not less than FJD$150,000 (ONE HUNDRED AND FIFTY THOUSAND DOLLARS) and/or in the alternative the Defendants only be permitted to travel on either payment of the said sum into this Honourable Court immediately or by giving security to the satisfaction of the Plaintiff and this Honourable Court that the judgment debt would be satisfied.

(d) That a Writ ne exeat civited (sic) be issued and directed to the Sheriff of the High Court of Fiji and his deputy and all constables and other peace (sic) Officers and all customers (sic) and immigration officers commanding them that in the event that the Defendants should seek or attempt to depart from the jurisdiction of the High Court as soon as practicable.

[17] I have reproduced the orders as they were typed in the original ex-parte Motion. The drafting leaves a lot to be desired. I struggled to make sense out of it. In my view, the orders should not have been granted because of the uncertainty in the language used. Unless the orders are clear and unambiguous they cannot be enforced. More care should have been taken in this case especially when the orders were to restrict the freedom of movement of the Defendants.

[18] It appears that the learned Judge’s attention was not drawn to the decision of the Court of Appeal[1] in Sundarjee Brothers Ltd v Coulter [1987] FJCA 3; [1987] 33 FLR 74 (8 October 1987) which held that prohibition orders are not lawful where the debt relates to a private contract as opposed to a debt imposed by law. Pathik J applied that decision in Devi v Rizwan [ 2009] FJHC 100; HBM0029.2009 (6 April 2009) and severely criticised the Magistrate for granting the prohibition orders when the alleged debt arose out of a building contract and there were no court proceedings on foot. His Lordship went further and held that Magistrates have no jurisdiction to issue absconding debtors warrants. I mention this because it appears that the practice of Magistrates issuing such warrants still continues to this day.

[19] I do not think it makes any difference now that there is no Constitution because the Common Law recognises the right to freedom of movement and the application of International Conventions such as the Universal Declaration on Human Rights remain intact. The principle in Sundarjee Brothers Ltd is still good law, in my respectful opinion.

[20] Mr Shah referred to Sundarjee Brothers Ltd as authority for the proposition that travel restrictions are not available for matters arising within a civil litigation but I think it is too wide a principle. He did not suggest that a judgment for damages for personal injuries could not support an application under s 6 of the Debtors Act and the point was not fully argued so I leave it to be decided in an appropriate case.

[21] I prefer to base my judgment on a more fundamental point. The application was made pursuant to O 111 of the High Court Rules 1988. Order 111 rule 1 provides that an application under section 6 of the Debtors Act [Cap32] for an order for a warrant to issue for the arrest of a defendant who is about to abscond may be made by the plaintiff in the action ex parte, supported by an affidavit to the judge in chambers.

[22] Section 6 of the Debtors Act provides:

If it is shown to the satisfaction of the court that the defendant in any action for the recovery of a sum exceeding ten dollars is about to abscond, the court may, in its discretion, issue a warrant to arrest the defendant and commit him to prison, there to be kept until he shall have given bail or security in such sum, to be expressed in the warrant, as the court thinks fit, not exceeding the probable amount of debt or damages and costs, for his appearance at any time when called upon while the action is pending and until execution or satisfaction of any judgment that may be made against him in the action; and the surety or sureties shall undertake, in default of such appearance, to pay any sum of money that may be adjudged against him in the action with costs:

Provided that the court may at any time, upon reasonable cause being shown, release the defendant from such arrest

[23] The scope of the orders that the court can make is widened by O 111 rule 2 to include the giving of an undertaking as to damages by the plaintiff, the payment of a deposit by the plaintiff to cover the cost of the defendant’s subsistence whilst in custody, the giving of such recognisance or otherwise to secure the prosecution of the action by the plaintiff without delay, and the release of the defendant after his arrest upon him giving such security as may be ordered.

[24] I have emphasised the words “about to abscond” because this is what the Plaintiff must prove. The Macquarie Dictionary, Third Edition, defines the meaning of “abscond” as “to depart in a sudden and secret manner, especially to avoid legal process”. It requires an element of dishonesty in my view.

[25] In Felton v Callis [1969] 1 QB 200, 211-2, Megarry J said this in respect of the equivalent English provision:

... I will mention two over-riding considerations. First, ... the issue of an order under section 6 is discretionary: see Hasluck v Lehman (1890) 6 TLR 376, where the Court of Appeal refused the order. If making the statutory order is discretionary, the issue of the writ in equity can hardly be less discretionary. Second, the standard of proof required is high: the court must be convinced. In In re Underwood (1903) 51 WR 335, Joyce J said (at 336): “I should certainly never allow a writ ne exeat regno to issue unless I were positive I was right in doing so”; and on the deficiencies of the evidence in the case before him he refused the writ, a decision which the Court of Appeal affirmed. In Stones v Cooke (1835) 8 Sim. 321n., 322n, Lord Lyndhurst LC spoke of the court acting “very reluctantly” in giving relief; but he may have been concerned with the fact that the cases of which he was speaking concerned arrears of alimony. However, in Tomlinson v Harrison (1802) 8 Ves. 32, Lord Eldon LC observed (at 33) that a writ ne exeat regno was a “high prerogative writ; and is applied to cases of private right always with great caution and jealousy”; and in Whitehouse v Partridge (1818) 3 Swan. 365, he said (at379):

The court ought to feel no inclination to extend the application of the high prerogative writ of ne exeat regno; I think that it has been granted on grounds which ought not to be enlarged by subsequent decisions. If men will not take from their debtors security enabling them to proceed at law, they must abide by the consequences.

[26] The Plaintiff’s affidavit in support of the application filed on 6 July 2001 stated that the Defendants had closed their factory and the First Defendant had been away in New Zealand for the last three months and she believed the Defendants were migrating permanently. She also said the Defendants have been disposing their assets and/or making arrangements to have their assets removed from Fiji.

[27] The learned trial Judge heard the Plaintiff ex-parte and issued the prohibition orders on 6 July 2001. The Second Defendant subsequently filed an affidavit in reply to the Plaintiff’s affidavit on 26 July 2001. She denied that she and her husband had closed their factory. The closure was a result of the Fiji Development Bank exercising its rights as mortgagee by mortgagee sale advertised on 4 July 2001. All their assets were encumbered to the Bank and it was therefore not true that they were disposing them. She also said that in Workmen’s Compensation Proceedings No 1 of 1997 issued by the Labour Department on behalf of the Plaintiff and others in the Ba Magistrates Court, she and her husband paid the sum of $14,643.20 to the Plaintiff’s solicitors trust account on 19 October 1998.

[28] In my view the Plaintiff’s affidavit fell far short of the high standard of proof that the Defendants were “about to abscond”. With respect, I think the learned judge erred. Even just considering the Plaintiff’s affidavit in support of the application on its own, it fell short of what is required. It is even more deficient when one considers the Second Defendant’s explanations given in her affidavit in opposition.

[29] Is there sufficient evidence now to support a prohibition order against the First Defendant? The Plaintiff’s affidavit in opposition filed on 27 April 2010 says that she believes that if the Defendant is allowed to go she will not be able to recover the judgment. She complains that the Defendant had not given any details of his assets in New Zealand.

[30] The First Defendant said in his affidavit in support of his application filed on 14 April 2010 that he was not aware that his lawyers had withdrawn, the matter had been struck out and re-instated and judgment entered. He said he was under the impression that the claim was bad at law because of the Ba Magistrates Court settlement, which they had pleaded in their Amended Defence. He came to Fiji on 12 March 2010 to attend his mother’s funeral. It was only on 8 April 2010 when he was stopped from returning to New Zealand by Immigration Officers at the airport that he became aware of what had transpired. He has three children in New Zealand.

[31] Again, I think the Plaintiff has failed to meet the high standard of proving that the First Defendant was about to abscond.

[32] There is a further reason which I think justifies the cancellation of the prohibition orders. The grant of such orders is discretionary. I am sympathetic to the Plaintiff’s children, the beneficiaries of the judgment, but I cannot ignore the considerable delay in her not having her judgment executed. Even if there were good grounds for the prohibition orders, I think the delay sways my judgment in favour of an immediate discharge of the prohibition orders. The Plaintiff is now aware of the Defendants’ whereabouts in New Zealand and there is nothing to stop her now from having any judgment registered and executed there.

[33] I therefore grant prayers for relief 3 and 7.

PRAYERS 4, 5 & 6: SHOULD THE DEFENDANTS BE ALLOWED TO DEFEND?

[34] The judgment of Finnigan J of 19 April 2006 was entered after hearing the Plaintiff in the absence of the Defendants. The Defendants’ Summons of 14 April 2010 to set it aside states that the application was made pursuant to O 18 r 18 and the inherent jurisdiction but I think the appropriate rule in respect of these prayers for relief is O 35 r 2. The Plaintiff complains that the application is well outside the 7 days required by O 35 r 2(2).

[35] I recently stated the law in this area in Wati v Western Division Drainage Board [2009] FJHC 165; HBC332.2001L (18 August 2009):

11. The law has been conveniently set out by Connors J in Rosedale Ltd v Kelly [2004] FJHC 429; HBC0323.1997L (11 June 2004):

"The issues for consideration by the court on an application to set aside the judgment entered after trial are set forth in Shocked and Another v Goldschmidt and Others [1998] 1 All E.R. 372. The leading judgment of the court was given by Leggatt LJ who said at page 377: -

"The cases about setting aside judgments fall into two main categories: (a) those in which judgment is given in default of appearance or pleadings or discovery, and (b) those in which judgment is given after a trial, albeit in the absence of the party who later applies to set aside. Different considerations apply to these two categories because in the second, unless deprived of the opportunity by mistake or accident or without fault on his part, the absent party has deliberately elected not to appear, and an adjudication on the merits has thereupon followed."

Jenkins LJ in Grimshaw v Dunbar [1953] 1 All E.R 350 at 355 said:

"...a party to an action is prima facie entitled to have it heard in his presence. He is entitled to dispute his opponent’s case and cross-examine his opponent’s witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. If by mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that the litigant who is accidentally absent should be allowed to come to the court and present his case, no doubt on suitable terms as to costs..."

Leggatt LJ in Shocked after considering the authorities then set out at p. 381 a series of propositions or "general indications" which are: -

"(1) Where a party with notice of proceedings has disregarded the opportunity of appearing at and participating in the trial, he will normally be bound by the decision.

(2) Where judgment has been given after a trial it is the explanation for the absence of the absent party that is most important: unless the absence was not deliberate but was due to accident or mistake, the court will be unlikely to allow a rehearing.

(3) Where the setting aside of judgment would entail a complete retrial on matters of fact which have already been investigated by the court the application will not be granted unless there are very strong reasons for doing so.

(4) The court will not consider setting aside judgment regularly obtained unless the party applying enjoys real prospects of success.

(5) Delay in applying to set aside is relevant, particularly if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it.

(6) In considering justice between parties, the conduct of the person applying to set aside the judgment has to be considered: where he has failed to comply with orders of the court, the court will be less ready to exercise its discretion in his favour.

(7) A material consideration is whether the successful party would be prejudiced by the judgment being set aside, especially if he cannot be protected against the financial consequences.

(8) There is a public interest in there being an end to litigation and in not having the time of the court occupied by two trials, particularly if neither is short."

The Lord Justice then said that the predominant consideration is the reason why the party against whom judgment was given absented himself.

"It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case" – Rich J in Cameron v Cole [1944] HCA 5; 68 C.L.R. 571 at 589.

Most recently, the issue has been considered by the Supreme Court of New South Wales Court of Appeal in Murphy v Doman (as representative of the estate of Simpson (dec’d)) – unreported [2003] NSWCA 249 – 11 September 2003 where at paragraph 48 Handley JA said: -

"Taylor v Taylor [1979] HCA 38; [1979] 143 CLR 1 and Allesch v Maunz [2000] HCA 40; [2000] 203 CLR 172 are decisions to the same effect. They establish that where judgment had been given in the absence of a litigant who has been denied a hearing through no fault of his own and where his absence has been adequately explained, that litigant has a prima facie right to have that judgment set aside to permit a re-hearing on the merits."

Mr. Justice Handley whilst being a member of the New South Wales Court of Appeal is also a member of the Supreme Court of Fiji.

Jurisdiction

It is submitted by the defendants that the 2nd plaintiff having made his application outside the time prescribed in Order 35 Rule 2 is precluded from effectively applying to the court for the relief sought.

The court has inherent jurisdiction to make the orders sought. Should confirmation of this be needed then it is supplied by Mason J. in Grimshaw v Dunbar where he said at page 16: -

"A jurisdiction to set aside its orders is inherent in every court unless displaced by statute. In my opinion the jurisdiction extends not only to the setting aside of judgments which have been obtained without service or notice to a party.... but to the setting aside of a default or ex-parte judgment obtained when the absence of the party is due to no fault on his part."

[36] The main issue raised by the Defendants was that they should be allowed to defend this claim because they have a good defence of estoppel and res judicata by virtue of s 25 of the Workmen's Compensation Act [Cap 94]. I think the more correct term is that used by counsel for the Plaintiff: "statute-barred", in that once a judgment or settlement is entered under the Act, the Plaintiff cannot bring these proceedings.

[37] Section 25 provides:

25.-(1) Where the injury was caused by the personal negligence or wilful act of the employer or of some other person for whose act or default the employer is responsible, nothing in this Act shall prevent proceedings to recover damages being instituted against the employer in a civil court independently of this Act:

Provided that-

(a) a judgment in such proceedings whether for or against the employer shall be a bar to proceedings at the suit of any person by whom, or on whose behalf, such proceedings were taken, in respect of the same injury under this Act;

(b) a judgment in proceedings under this Act whether for or against the employer shall be a bar to proceedings at the suit of any person by whom, or on whose behalf, such proceedings were taken, in respect of the same injury independently of this Act;

(c) an agreement come to between the employer and the workman under the provisions of subsection (1) of section 16 shall be a bar to proceedings by the workman in respect of the same injury independently of this Act.

[38] Section 16 of the Act provides:

16.-(1) The employer and workman may, with the approval of the Permanent Secretary or a person appointed by him, in writing, in that behalf, after the injury in respect of which the claim to compensation has arisen, agree, in writing, as to the compensation to be paid by the employer. Such agreement shall be in triplicate, one copy to be kept by the employer, one copy to be kept by the workman, and one copy to be retained by the Permanent Secretary:

Provided that-

(a) the compensation agreed upon shall not be less than the amount payable under the provisions of this Act; and

(b) where the workman is unable to read and understand writing in the language in which the agreement is expressed the agreement shall not be binding against him unless it is endorsed by a certificate of a district officer or a person appointed by the district officer or Permanent Secretary, in writing, in that behalf, to the effect that he read over and explained to the workman the terms thereof and that the workman appeared fully to understand and approve of the agreement.

(2) Any agreement made under the provisions of subsection (1) may, on application to the court, be made an order of the court.

(3) Where the compensation has been agreed the court may, notwithstanding that the agreement has been made an order of the court under the provisions of subsection (2), on application by any party within three months after the date of the agreement, cancel it and make such order (including an order as to any sum already paid under the agreement) as in the circumstances the court may think just, if it is proved-

(a) that the sum paid or to be paid was or is not in accordance with the provisions of subsection (1);

(b) that the agreement was entered into in ignorance of, or under a mistake as to, the true nature of the injury; or

(c) that the agreement was obtained by such fraud, undue influence, misrepresentation or other improper means as would, in law, be sufficient ground for avoiding it.

(4) All agreements made under this section shall be exempt from the payment of stamp duty.

[39] Mr Mishra submitted that the claim is only statute-barred if there was a "judgment" in the Magistrates Court. His client's statement of claim pleaded that there was a "settlement". He argued that Finnigan was aware of that but His Lordship went ahead with the hearing and the only reason for that was there was no judgment but only a settlement. The submission is based on the assumption that His Lordship was in fact aware of the issue. I do not think such an assumption could be made. Indeed Mr Mishra did not submit that His Lordship's attention was drawn to it.

[40] He also submitted that the matter was handled by the Labour Office. If they settled without advising the Plaintiff of the provisos to s 25 then this would have afforded a claim against the Labour Office. But that action is now time barred so his client would be severely prejudiced if I allow the matter to be litigated.

[41] I think all these issues are too speculative as there is no evidence before me to allow me to decide. I do not think the Defendants should be denied the right to run a Defence which prima facie is a complete defence to the claim. It would not be too difficult to ascertain whether the so called "settlement" fell within the provisos to s 25. I think this outweighs the prejudice which the Plaintiff may suffer.

[42] I do not think that in all the circumstances of this case, the delay in bringing the application to set aside the Judgment of Finnigan J is fatal.

FINAL OUTCOME

[43] However, I think the Defendants and their solicitors have to bear some of the blame for firstly, having that judgment entered, and secondly, not taking steps to set it aside promptly. I think justice to both parties require that I allow the Defendants to defend only to the extent of the Defence under s 25 of the Workmen's Compensation Act. It is not to be a re-litigation of the whole claim. For the sake of clarity, if the Defendants establish this defence, then the Judgment of Finnigan J is set aside. If they fail then that Judgment stands.

COSTS

[44] Although the Defendants have won I think considering that they have to take some of the blame for the delays and considering the financial position of the Plaintiff I think the Defendants should pay her costs which I summarily assess at $1,500 to be paid within 21 days.

ORDERS

[45] The Orders are as follows:

1. The travel restrictions and/or prohibition orders and the Writ Ne Exeat Civitate issued on 6 July 2001 against the Defendants Satish Chand Mani and Indira Devi are revoked forthwith and shall no longer have any effect.
   
2. This matter is to go to trial only on the question of whether the defence under s 25 of the Workmen's Compensation Act applied.
   

100. The Defendants shall pay the Plaintiff's costs of this application of $1,500 within 21 days.
     

4. This matter is therefore adjourned to the Master for completion of the pre-trial steps.
   

Sosefo Inoke
Judge

---

^[1] Speight VP, Mishra, O’Regan JJA