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Naicker v Land Transport Authority [2015] FJHC 770; HBC18.2014 (14 October 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA


CIVIL JURISDICTION


CIVIL ACTION NO. HBC 18 of 2014


BETWEEN:


PARVEEN KRISHNA NAICKER of Navoli, Ba,
PLAINTIFF


AND:


LAND TRASPORT AUTHORITY a body corporate established under the LAND TRANSPORT ACT No. 35 of 1998.
1st DEFENDANT


AND:


LEONI KACISAU of Lot 63, Nasevou Street, Lami,
2nd DEFENDANT


Mr. Rajendra P.S. Chaudhary for the Plaintiff
(Ms.) Jyoti Sangeeta Singh Naidu for the First Defendant
No appearance for or on behalf of the Second Defendant


Date of Hearing: - 13th July 2015
Date of Ruling : - 14th October 2015


RULING


(A) INTRODUCTION
(1) The matter before me stems from the First Defendant's Summons dated 19th May 2015, made pursuant to Order 19, Rule 09 of the High Court Rules 1988, and the inherent jurisdiction of the Court seeking the grant of following Orders;

(2) The First Defendant's Summons is supported by an Affidavit sworn by "Tomasi Radakua", the Human Resource Manager, in the employment of Land Transport Authority.

(3) The Summons is strongly resisted by the Plaintiff.

(4) The Plaintiff filed an Affidavit in Opposition opposing the Summons followed by an Affidavit in reply thereto.

(5) The Plaintiff and the first Defendant were heard on the Summons. They made oral submissions to Court. In addition to oral submissions, the Plaintiff filed a careful and comprehensive written submission for which I am most grateful.

(B) BACKGROUND

(1) What are the circumstances that give rise to the present application?

(2) The first Defendant was the owner of a motor vehicle registration No. FA 187.

(3) The second Defendant was an employee of the first Defendant and was driving the said vehicle as the servant and/or agent of the first Defendant on the date in question.

(4) With that short introduction, let me set out the relevant facts. The Plaintiff in his statement of claim pleads inter alia (so far as relevant);

Para (3) THAT at all material times the Plaintiff was in the process of crossing the road at Waimalika and was on the left lane as you go towards Nadi.


(4) THAT on or about the 27th day of July 2013 the Second Defendant drove the said motor vehicle so negligently, carelessly and recklessly on Queens Road, Waimalika, Sabeto that it bumped and collided with the Plaintiff.


PARTICULARS OF NEGLIGENCE


(i) Failing to keep any or any proper lookout;
(ii) Driving at an excessive speed having regard to all the circumstances;
(iii) Failing to stop, to slow down, to swerve or in any other way so to manage or control the said motor vehicle as to avoid the said accident;
(iv) Failing to see the Plaintiff in sufficient time or at all to avoid the said accident;
(v) Driving onto the wrong lane and failing to drive on his correct lane.
(vi) Driving without due care and attention.
(vii) Driving below the standard of a careful and prudent driver.

(5) THAT as a result of the said accident the Plaintiff suffered severe personal injuries.


(5) The Plaintiff claims the following;

(C) THE STATUS OF THE SUBSTANTIVE MATTER

(1) The Plaintiff instituted the proceedings herein against the Defendants on 14th February 2014.

(2) According to the Affidavit of Service filed by the Plaintiff on 09th April 2014, the Writ of Summons was served on the first and second Defendants on 18th February 2014 and 19th February 2014, respectively.

(3) On 09th April, 2014, the Plaintiff, having searched and finding that the Defendants had failed to give Notice of intention to Defendant and serve the Statement of Defence within the prescribed time, entered Interlocutory Judgment against the Defendants on 14th April 2014.

(4) The sealed Interlocutory Judgment reads as follows;

INTERLOCUTORY JUDGEMENT


No Acknowledgment of Service and Statement of Defence having been filed and served by the abovenamed Defendants herein.


IT IS THIS DAY ADJUDGED that the Defendants do pay the Plaintiff damages to be assessed and costs before a single Judge.


DATED this 14th day of April 2014


BY THE COURT


(signed)

DEPUTY REGISTRAR


(5) On 01st July 2014, the Plaintiff filed Notice of Assessment of damages and interest.

(6) Upon being served with Notice of Assessment of damages and interest, the first Defendant issued a Summons pursuant to Order 19, rule 09 of the High Court Rules, 1988 seeking Order to set aside the default Judgment entered against the first Defendant. I note, without comment, that almost one year has lapsed since the default Judgment was entered.

(D) THE FIRST DEFENDANT'S SUMMONS TO SET ASIDE THE DEFAULT JUDGMENT

(1) The First Defendant's Summons is supported by an Affidavit sworn by "Tomasi Radakua", the Human Resource Manager, in the employment of Land Transport Authority, which is substantially as follows (so far as relevant);

Para (3) Mr. Leone Kacisau (2nd Defendant) was employed as LTA Technical Officer under a contract of employment since 18th December 2008. (Annexed herewith and marked "TR1" is a true copy of the Employment Contract dated 18th December 2008).


(4) Mr. Kacisau's term and condition of employment was set out in the Partnership Agreement which is part of his Employment Contract. (Annexed herewith and marked "TR2" is a true copy of the Partnership Agreement).


(5) It is expressly stated under Clauses 12.1(b) and 12.1 (d) that Kacisau as an employee must not only act with due care and diligence in the course of his employment but also comply with the lawful and reasonable directions of his superior or person in authority. He was also required under Clause 12.1(m) that he comply with any conduct requirements prescribed regulation or direction or required by the CEO.


(6) As part of his employment, Mr. Kacisau was authorized by LTA t use its vehicles in the course of employment. However, this authority is subject to the strict guidelines and provisions of LTA Motor Vehicle & Drivers Rules and Instruction 2010. He was given a copy and he understood well. (Annexed herewith and marked "TR3" is a true copy of the LTA Motor Vehicle and Drivers Rules and Instructions 2010).


(7) It is expressly stated under clause 8 of LTA Motor Vehicle and Drivers Rules and Instructions 2010 that he should not drive LTA's motor vehicle under the influence of alcohol and kava. A breach of which is tantamount to gross misconduct.


(8) On 27th July 2013, Mr. Kacisau was travelling to Lautoka when he bumped the Plaintiff along the Queens Road at Waimalika, Sabeto, Nadi. He was driving LTA's motor vehicle registration number FA 187. He was breathalyzed by the Police and his alcohol reading was 114.4 milligrams of alcohol per 100 milliliters of alcohol. He was charged under driving a motor vehicle having a alcohol present in excess of the prescribed limits under section 103 (a) of the Land Transport Act. He was also charged with Dangerous driving causing grievous bodily harm under section 97 of the Land Transport Act.


(9) Mr. Kacisau on 27th July 2013 knew he had drank alcohol the night before. He knew he was not authorized to drive vehicle whilst under the influence of alcohol as stipulated under clause 8 of the LTA Motor Vehicle and Drivers Rules and Instructions 2010. Despite that,

Mr. Kacisau elected to and on his own accord drove LTA's vehicle FA 187 with flagrant disregard of clause 8 of LTA Motor Vehicle and Drivers Rules and instructions 2010 and Section 103 (a) of the Land Transport Act of which he was tasked to protect and implement.

Mr. Kacisau was acting on his own frolic when he drove that vehicle that day.


(10) Consequently Mr. Kacisau was suspended on half pay from his employment on 29th July 2013. Management were advised about the incident by memorandum dated 29th July 2013 (Annexed herewith and marked "TR4" is a true copy of the Memorandum dated 29th July 2013).


(11) On 24th October 2013, Mr. Kacisau pleaded guilty to the two offences. He was convicted as charge but ruling on sentence was delivered on 13th March 2014. He was fined with $1000 and in default 100 days imprisonment. He was disqualified from driving for 8 months. (Annexed herewith and marked "TR5" is a true copy of the sentence ruling on 13th March 2014).


(12) Mr. Kacisau's service with LTA was terminated on 29th April 2014. He was advised accordingly by LTA's letter dated 29th April 2014. (Annexed herewith and marked "TR6" is a true copy of the termination letter dated 29th April 2014).


(13) Further and as I have mentioned earlier the accident took place on Queens Road at Waimalika. It happened when the Plaintiff was crossing the road to go to work at "Inland Tours". Inland Tours is located on the left hand side on Queens Road on your way to Lautoka. Few meters before Inland Tours is road bend. According to Mr. Kacisau in his statement, the Plaintiff got off the Bus parked on the left side of the road and crossed the road the same instant. This was because his views were obstructed when coming from the road bend and not being able to see the Plaintiff on time to avoid the collision.


(14) Moreover, the plaintiff did not take precautionary measures to avoid the collision. He also did not take proper lookout for oncoming vehicles particularly those that were coming out of the road bend. The accident was contributed too by the Plaintiff own negligence in failing to take precautionary measures and proper lookout when crossing the road near the bend.


(15) Due to the accident, the Plaintiff filed its claim against Mr. Kacisau and LTA on 14th February 2014. He is seeking damages for injuries he sustained.


(16) The Writ of Summons was served on LTA and Affidavit of Service was filed by the Plaintiff's Solicitor on 18th February, 2014.


(17) Due to non-filing of Statement of Defence, the Plaintiff entered an interlocutory judgment on 14th April 2014. The Statement of Defence was not filed by LTA on time because the then LTA manager legal was attending to some pressing matters that time to file had passed. The matter was then adjourned from time to time for assessment of damages.


(18) LTA then instructed Qoro Legal to represent the Authority in this matter on 23rd February, 2015 pursuant to which Appointment of Solicitors was filed by Qoro Legal on 26th February, 2015 (Annexed herewith and marked "TR7" is the copy of the said notice.)


(19) About the same time the then Legal Manager for LTA had resigned and few new Legal Officers had joined the Authority and for this reason the Authority was unable to provide any details and give full instruction to Qoro Legal to proceed with the matter.


(20) There is a delay in filing this setting aside application. The reason for the delay is that the Authority was experiencing Staff movement which made it difficult to instruct its Solicitor in this mater.


(21) THAT the Defendants are intending to contest the proceeding against the Plaintiff.


(22) THAT I believe the Defendant have good Defence and Defence on merits to argue the matter if given a chance to do so.


(23) THAT our Solicitors have prepared a draft Statement of Defence which is ready for filing. (Annexed herewith and marked "TR8" is a true copy of draft Statement of Defence)


(2) The Plaintiff filed an Affidavit in Opposition, which is substantially as follows: (so far as relevant);

Para (3) THE following facts are not in dispute:-


(i) The Second Defendant was an employee of the First Defendant at the relevant time.
(ii) The First Defendant was the registered owner of vehicle number FA 187 at the relevant time.
(iii) The vehicle was in the custody of the Second Defendant and he was authorized to drive the same. The Second Defendant was authorized to use the vehicle to travel to work.
(iv) At the time of the accident the Second Defendant was on his way to work at the First Defendant's premises in Lautoka.

(4) THE first Defendant is alleging that the Second Defendant was intoxicated at the time of the accident. He was also convicted by the Nadi Magistrate's Court on 13th March 2014.


(5) I have been advised by my Solicitor Mr Chaudhary that based on the legal authorities the First Defendant cannot escape liability for the actions of the Second Defendant.


THE PLAINTIFF'S NEGLIGENCE


(6) THAT Paragraphs 13 and 14 of the said Affidavit have been explained to me.


(7) I deny crossing the road suddenly. The Second Defendant had a clear view of me. I annex hereto a copy of the sketch plan drawn by the Police marked "A". The accident happened on my lane. The Second Defendant was travelling to Lautoka and crossed the double line and came onto my lane and hit him. He should have continued driving on his own lane.


(8) THAT annexed hereto marked with the letter "B" is the Police "Record of Interview" of the Second Defendant. The Court is respectfully referred to the following questions and the Answers. Questions 37, 38, 39, 51, 52, 54, 56, 57, 58 and 64.


(9) THAT I verily believe the First Defendant and also the Second Defendant do not have a valid defence on liability. The only issue they can contest is the quantum of damages.


DELAY IN MAKING THIS APPLICATION


(10) THE Writ of Summons was served on the First Defendant on 18th February 2014. Judgment for Assessment of Damages was entered on 14th April 2014. The Notice for Assessment of Damages was served on the First Defendant on 18th July 2014. On 3rd November 2014 there was no appearance by or on behalf of the First Defendant and the Court adjourned the matter to 27th March 2015 for hearing. On 2nd March 2015, that is more than one year after service of the Writ of summons on the First Defendant, Messrs Qoro Legal filed a Notice of Appointment on behalf of the First Defendant.


(11) THERE has been undue and inordinate delay on the part of the First Defendant and it cannot rely on the reasons given in paragraphs 19 and 20.


(12) THAT I suffered very serious injuries in the accident on 27th July 2013. A copy of my medical report dated 30th January 2014 is annexed marked "C". I have not worked since the date of the accident. I rely on the help and support of my family members. I have not been paid any compensation to date.


(13) I oppose the First Defendant's application to set aside the Default Judgment. The proposed defence has no merits. Damages should be Assessed and the Defendants and/or their Counsel can participate in the Assessment process.


(3) The First Defendant filed an Affidavit in rebuttal deposing inter alia (so far as relevant);

Para (3) I take note of paragraph 2 of the said Affidavit.


(4) I admit to paragraph 3 (i) and 3 (ii) of the said Affidavit.


(5) I repeat paragraphs 5 and 6 of my earlier affidavit filed on 18 May, 2015 in response to paragraph 3 (iii) of the said Affidavit. The 2nd Defendant was not authorized to drive the said vehicle when drunk as that was contrary to 2nd Defendant's Company Policy.


(6) In response to paragraph 3 (iv) of the said Affidavit I repeat paragraph 8 of my earlier Affidavit filed on 18 May, 2015.


(7) I admit paragraph 4 of the said Affidavit.


(8) I deny the contents of paragraph 5 of the said Affidavit.


(9) I take note of paragraph 6 of the said Affidavit.


(10) I deny the contents of paragraph 7 of the said Affidavit. Further, according to the Accident Report as attached to the Plaintiff's Affidavit, it showed that the Plaintiff was standing in the middle of the road. There was no pedestrian crossing and he assumed the risk of being hit by oncoming vehicle by standing on the middle of the road.


(11) I take note of paragraph 8 of the said Affidavit. Question 56 of the caution interview as annexed in the Affidavit of the Plaintiff confirms that the point of impact was in the middle of the road.


(12) I deny the contents of paragraph 9 of the said Affidavit.


(13) I admit paragraph 10 of the said Affidavit and further repeat paragraph 16 to 19 of my earlier Affidavit filed on 18 May, 2015.


(14) In response to paragraph 11 of the said Affidavit, I repeat paragraphs 20 to 23 of my earlier Affidavit filed on 18 May, 2015 and I further state that we meant no disrespect to the Honourable Court and the delay in filing our pleadings was not intentional. I also believe LTA has a good Defence and Defence for the Claim filed by the Plaintiff and if we are not given a chance to argue the matter then we will be heavily prejudiced.


(15) I neither deny nor admit to the contents of the paragraph 12 of the said Affidavit. It is therefore denied.


(16) I deny paragraph 13 of the said Affidavit.


(E) THE LAW

(1) Before turning to the substantive submissions, it is convenient to indicate something of the relevant law.

(2) Rather than refer in detail to the various authorities, I propose to set out, with only very limited citations, what I take to be the principles in play.

An application to set aside a default judgment is not the invocation of an appellate jurisdiction but of a specific rule enabling the court to set aside its own orders in certain circumstances where the action has never been heard on the merits.


A Defendant against whom judgment in default has been entered may apply for it to be set aside under Order 13, rule 10 or under Order 19, rule 9 of the High Court Rules.
In situations where the Defendant has failed to file in the first instance, notice of intention to defend, then order 13 procedure is the correct process.


Order 19 is applicable only where, after notice of intention to defend is filed, no statement of defence had followed.


❖ THE PRINCIPLES OF SETTING ASIDE DEFAULT JUDGMENTS

A default judgment can be obtained regularly or irregularly and both of these forms of judgments can be set aside.


However, there is a distinction between setting aside a default judgment for irregularity and setting aside a judgment which was in fact regular.
Fry L J in Alaby –v- Praetorious [1888] UKLawRpKQB 55; [1888] 20 QBD 764 at 769 succinctly drew the distinction as follows:-


"There is a strong distinction between setting aside a default judgment for irregularity in which case the court has no discretion to refuse to set it aside, and setting it aside where the judgment though regular has been obtained through some slip or error on the part of the Defendant in which case the court has a discretion to impose terms as a condition of granting the Defendant relief." (emphasis added).


This principle was adopted and applied by the Fiji Court of Appeal in "Subodh Kumar Mishra v Rent-a-car" (1985) 31 FLR 52. Thus, where an irregular default judgment is entered (for example time for acknowledging service or for serving a defence had not expired by the time the default judgment was entered) which irregularity cannot be cured the Defendant is entitled as of right to have the judgment set aside.


However, where the default judgment had been entered regularly, the Court has a wide discretion and neither Order 13, rule 10 nor Order 19, rule 9 of the High Court Rules impose any restriction in the manner in which the discretion is to be exercised The rationale for the unconditional discretion that allows the court to intervene is explained by Lord Atkin in "Evans v Bartlam", 1937 DC 473 as follows;


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


Lord Atkins pronouncement was endorsed and followed by the Fiji Court of Appeal in The Fiji Sugar Corporation v Mohammed Ismail FLRVol 34, p75.


The Principles applicable for analysis of the merit of an application to set aside a default judgment are well known and settled. The leading authority is Evans –v- Bartlam [1937] 2 All E.R. 646. The following passage from the judgment of Lord Atkin in "Evans v Bartlam" is pertinent in the subject of principles on which a court acts where it is sought to set aside a regular Default judgment;


"The primary consideration is whether he has merits to which the Court should pay heed; if merits are shown the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication........... The Court might also have regard to the applicant's explanation why he neglected to appear after being served, though as a rule his fault (if any) in that respect can be sufficiently punished by the terms as to costs or otherwise which the Court in its discretion is empowered by the rule to impose."


The principles of that case have been widely adopted in Fiji, and by the Fiji Court of Appeal in Pankanji Bamola&Anor. –v- Moran Ali Civil Appeal No. 50/90 and Wearsmart Textiles Limited –v- General Machinery Hire & Anor Civil Appeal No. ABU0030/97S.


In "PankajBamola&Anor v Moran Ali" (supra) the Court of Appeal held;


It is not sufficient to show a merely "arguable" defence that would justify

leave to defend under Order 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 Russell v Cox 1983 NZLR 654, McCarthy J held;


"In approaching an application to set aside a judgment which complies with the rule, the Court is not limited in the considerations to which it may have regard, but three have long been considered of dominant importance.


They are;


1. That the defendant has a substantial ground of defence;

2. That the delay is reasonably explained;

3. That the plaintiff will not suffer irreparable injury if the judgment is set aside.


A useful summary of the factors to be taken into consideration is to be found under notes to Or. 13 r9/14 of THE SUPREME COURT PRACTICE 1995 Vol. I at p.142 and which is, inter alia, as follows:-


"The purpose of the discretionary power is to avoid the injustice which may be caused if judgment follows automatically on default.

The primary consideration in exercising the discretion is whether the defendant has merits to which the court should pay heed, not as a rule of law but as a matter of common sense, since there is no point in setting aside a judgment if the defendant has no defence, and because, if the defendant can show merits, the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication. Also as a matter of common sense the court will take into account the explanation of the defendant as to how the default occurred.


Therefore the judicially recognised "Tests" may be conveniently listed as follows;


(a) Whether the Defendant has a substantial ground of defence to the claim.


(b) Whether the Defendant has a satisfactory explanation for the default judgment.


(c) The promptness with which the application is made.


(d) Whether the setting aside would cause prejudice to the Plaintiff.


The same legal tests apply under the Magistrate Court rules.


❖ THE DEFENCE ON THE MERITS

The major consideration on an application to set aside a default judgment is whether there is a defence on the merits. The purpose is to avoid injustice. The Defendant is seeking to deprive the claimant of a regular judgment which the claimant has validly obtained in accordance with the rules; this is not something which the court will do lightly.


In Shocked v Goldsmith (1998) 1 All ER 372 at 379ff Legatt LJ said:


"These cases relating to default judgment are authority for the proposition that when considering whether to set aside a default judgment, the question of whether there is a defence on the merits is the dominant feature to be weighed against the applicant's explanation both for the default and any delays, as well as against prejudice to the other party."


The leading case is Evans v Bartlam [1937] 2 All 646, [1937] AC 473. In this case, the defendant had suffered judgment to be entered against him in default of appearance. The Court of Appeal ([1936] 1 KB 202) allowed an appeal from the judge's order setting aside the judgment. But the House of Lords reversed the decision of the Court of Appeal and restored the Judge's order.


Lord Wright ([1937] 2 All ER 646 at 656, [1937] AC 473 at 489) expressed the conclusion;


"In a case like the present, there is a judgment, which, though by default, is a regular judgment, and the applicant must show grounds why the discretion to set aside should be exercised in his favour. The primary consideration is whether he has merits to which the court should pay heed; if merits are shown, the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication... The court might also have regard to the applicant's explanation why he neglected to appear after being served, though as a rule his fault (if any) in that respect can be sufficiently punished by the terms, as to costs, or otherwise, which the court, in its discretion, is empowered by the rule to impose."


In Vann V Awford (1986) 130 SJ 682, the judge declined to set aside a judgment given against the second defendant in default of appearance, and also a judgment given against him when damages were assessed in his absence. The Defendant had lied when he said on oath that he had no knowledge of the proceedings. On appeal Dillon LJ considered that, despite the prejudice to the plaintiffs, as there were ample arguable defences the award should be set aside and there should be a fresh hearing. He added: "Even for lying and attempting to deceive the court, a judgment for £53,000 plus is an excessive penalty if there are arguable defences on the merits."


This case was followed two weeks later by The Saudi Eagle [1986] 2 Lloyd's Rep 221. After reviewing Evans v Bartlam and Vann v Awford, Sir Roger Ormrod came to the conclusion that the defendants in the case before the court had failed to show that their defence enjoyed a real prospect of success.


These cases relating to default judgments are authority for the proposition that when considering whether to set aside a default judgment, the question of whether there is a defence on the merits is the dominant feature to be weighed against the applicant's explanation both for the default and for any delay, as well as against prejudice to the other party.


❖ THE YARDSTICK THAT HAS TO BE APPLIED IN DETERMINING THE MERITS OF THE DEFENCE

The Defendant must have a case with a real prospect of success, and it is not enough to show a merely arguable defence. (Alpine Bulk Transport Company v Saudi Eagle Shipping Company, 1986 2 Lloyds Report, P 221).


It must both have "a real prospect of success" and "carry some decree of conviction". Thus the court must form a provisional view of the probable outcome of the action. Unless potentially credible affidavit evidence demonstrates a real likelihood that a Defendant will succeed on fact, no real prospect of success is shown and relief should be refused. (Wearsmart Textiles Ltd v General Machinery Hire Ltd, (1998) FJCA 26.)


A person, who holds a regular judgment even a default judgment, has something of value, and in order to avoid injustice he should not be deprived of it without good reason. Something more than merely arguable case is needed to tip the balance of justice to set the judgment aside. (Moore-Bick J in International Finance Corporation, (2001) CLC 1361).


The real prospect of success means that the prospects must be better than merely arguable. The word "real" directs the court to the need to see whether there is a realistic as opposed to a fanciful prospect of success. It saves expense, achieves expedition, avoids the courts resources being used up in cases where that serves no purpose and is in the interest of justice.


There is no room for speculative defences and potentially credible affidavit evidence must demonstrate a real likelihood that a defendant will succeed. Otherwise no real prospect of success is shown and relief should be refused (Allen v Taylor) [1992] PLQR 255)


The test was considered in detail in Swain v Hilman (2001) (1), All E.R. 91 and the court confirmed that;


"The test is the same as the test for summary judgment. The only significant difference is that in a summary judgment application the burden of proof rests on the claimant to show that the defendant has no real prospect of success whereas in an application to set aside a default judgment it is for the defendant to show that his defence has a real prospect of success.


❖ DELAY

An application to set aside default judgment must be made "promptly" and without "delay".


In "Pankaj Bamolc and Another v Moran Ali" FCA 50/1999, a party seeking to set aside an Order had delayed for nearly 08 months. The Court took the view that no adequate explanation had been provided for that and concluded that the application should be refused because it had not been made promptly and without delay.
Promptness will always be a factor of considerable significance and, if there has been a marked failure to make the application promptly, a court may well be justified in refusing relief, Notwithstanding the possibility that the Defendant may well succeed at the trial.


Whether or not there is a defence on the merits may be, the dominant feature to be considered but that does not mean that it cannot be swamped by other features such as unexplained delay in bringing the application to set aside the judgment.


Although the fact that damages have been assessed and a final judgment entered does not deprive the court of jurisdiction to set aside a default judgment; it is highly relevant to the exercise of discretion. It is an aspect of, but separate from, the question of delay. The Saudi Eagle case(supra) is clear authority for the proposition that an application to set aside a default judgment can be made notwithstanding that final judgment has been entered.


In Alpine Bulk Transport Co. Inc v Saudi Eagle Shipping Co. Inc (The Saudi Eagle) [1986] 2 Lloyd's Rep the defendants, believing that they had no assets, deliberately allowed an interlocutory judgment for damages to be assessed to be entered against them by default, and only after damages had been assessed and final judgment entered, realising that they had given security, applied initially to the judge and then on appeal to the Court of Appeal, unsuccessfully at both hearings, to set aside the judgment and for leave to defend. The application was refused on the merits; but it was not suggested that the judge would not have had jurisdiction to set aside the judgment had it been appropriate to do so. Therefore, it cannot be said that a judgment (by default) for damages to be assessed is spent once damages are assessed; it remains the source of the plaintiff's right to damages. Nor can it be said that in such a case the interlocutory judgment is overtaken or superseded by the final judgment for a liquidated sum; it would be more accurate to say that it is completed and made effective by the assessment.


It cannot be safely assumed in every case that any prejudice to the plaintiff can be met by putting the defendant on terms to pay the costs thrown away by the assessment hearing. There can be no rigid rule either way; it depends on the facts of the particular case.


❖ PROCEDURE

An application to set aside a default judgment which has not been entered wrongly must be supported by evidence. Commonly, a draft defence is attached to the affidavit in support of the application.


A draft defence is not necessary, what is required is the affidavit of merits. (The Fiji Sugar Corporation Ltd. v Mohammed Civil Appeal No. 28/87.)


If the Defendant does not have an affidavit of merits, no setting aside order sought to be granted except for some very sufficient reason. (Wearsmart Textiles Ltd v General Machinery Hire Ltd, (1998) FJCA 26.)


In Wearsmart Textiles Ltd v General Machinery Hire Ltd [1998] FJCA 26; Abu0030u.97s (29 May 1998) the Fiji Court of Appeal cited the following passage
from the Supreme Court Practice 1997 (Volume 1) at p.143.


"Regular judgment – if the judgment is regular, then it is an inflexible rule that there must be an affidavit of merits, i.e. an affidavit stating facts showing a defence on the merits (Farden v. Richter [1889] UKLawRpKQB 79; (1889) 23 Q.B.D. 124. "At any rate where such an application is not thus supported, it ought not to be granted except for some very sufficient reason." per Huddleston, B., ibid. p.129, approving Hopton v. Robertson [1884] W.N. 77, reprinted 23 Q.B.D. p. 126 n.; and see Richardson v. Howell (1883) 8 T.L.R. 445; and Watt v Barnett [1878] UKLawRpKQB 21; (1878) 3 Q.B.D. 183, p.363).
(my emphasis)


"it is an (almost) inflexible rule that there must be an affidavit of merit i.e.

and affidavit stating facts showing a defence on the merits (FARDEN v RICHTER [1889] UKLawRpKQB 79; (1989) 23 Q.B.D. 124)" The Supreme Court Practice 1993 Or 13 r.9 p.137).


"At any rate where such an application is not thus supported, it ought not to be granted except for some very sufficient reason" HUDDLESTON, B in FARDEN ibid p.129).


❖ SETTING ASIDE ON CONDITIONS

In the exercise of Court's discretion, the court may attach conditions to an order to set aside judgment. In some cases the defaulting defendant will be ordered to pay the claimant's costs thrown away. In appropriate cases, the court may also require the defendant to pay money into court to await the final disposal of the claim. Such a condition is commonly imposed where,


  1. The defendant has satisfied the court that it has a defence with a real prospect of success.

2. The Defendant has an explanation why he neglected to appear after being served.


3. The truth of which is indeed denied by the Plaintiff.


4. The court seeks no reason why the Defendant should be disbelieved in what appears to be a mere conflict on affidavits.


The conditions imposed on setting aside a default judgment are not intended to punish the defendant but to ensure that justice is achieved between the parties (VIJAY PRASAD v DAYA RAM CIV APP 61/90 FCA; SUBODH KUMAR MISHRA s/o Ramendra Mishra v CAR RENTALS (PACIFIC) LTD CIV APP 35/85 FCA). The said judgments do not lay down any basis upon which the discretion is to be exercised.


In GARDNER v JAY (1885) 29 Ch.D 52 at p.58 BOWEN L.J. said on this aspect that:


"... when a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view to indicating the particular grooves in which the discretion should run, for if the Actor the Rules did not fetter the discretion of the Judge why should the Court do so?"


(F) ANALYSIS

(1) Before turning to the substance of the application to set aside, I ought to mention one thing.

The first Defendant filed its application to set aside the default judgment under Order 19, Rule 09 of the High Court Rules, 1988.


I desire to emphasize that the application should have been made under Order 13.


It is, of course, an elementary principal of the law relating to setting aside default judgments that Order 19 is available only where after "notice of intention to Defend is filed, no "Statement of Defence" had followed.


In situations where as in this case, the first Defendant had failed to file in the first instance, "Notice of intention to Defend", then Order 13 procedure is the correct process.


It seems to me clear beyond question that Order 19, Rule 09 has no application even by any stretch of imagination to the instant case. The instant case stands on an entirely different footing. I have heard no word said on behalf of the Plaintiff in relation to the irregularity of the first Defendant's Summons to set aside the Default Judgment. Nevertheless, this Court is of the view that the Court is bound to look into the "regularity" of the Summons to set aside the Default Judgment.


For the reason which I have endeavored to explain, I have no hesitation in reaching the conclusion that the First Defendants Summons is defective. In applications such as this, the technicalities are strictly construed because of the drastic consequences that follow for one of the parties upon the relief sought being granted. At this point I cannot resist in saying that it behoved the First Defendant and it's Counsel to have exercised more diligence in this regard.


In the Court's view, the mistake is fundamental, which cannot be rectified simply by the use of the Court's discretion.


In the context of the present case, I cannot help but recall the rule of law enunciated in the following judicial decisions.


In "Ventakamma v Ferrier – Watson" (CIV. APP. CBV0002/92), (Judgment delivered on 24th November, 1995) the Court held;


"We now stress, however, that the rules are there to be obeyed.

In future Practitioners must understand that they are on notice that non-compliance may well be fatal to an appeal."


(Emphasis added)


In the decision of the Privy Council in Ratnam vs Cumarasamy and Another [1964] 3 All E.R. at page 935;


Lord Guest in giving the opinion of the Board to the Head of Malaysia said, inter alia:


"The rules of court must, Prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation. The only material before the Court of Appeal was the Affidavit of the appellant. The grounds there stated were that he did not instruct his solicitor until a day before the record of appeal was due to be lodged, and that his reason for this delay was that he hoped for a compromise. Their lordships are satisfied that the Court of Appeal were entitled to take the view that this did not constitute material on which they could exercise their discretion in favour of the appellant. In these circumstances, their lordships find it impossible to say that the discretion of the Court of appeal was exercised on any wrong principle."
(Emphasis Added)


On the strength of the authority in the above judicial decisions, I wish to emphasize that the rules are there to be followed and non-compliance with those rules is fatal.


Having said that, I venture to say beyond a per-adventure that the application in respect of setting aside the default judgment must fail for non-compliance with the rules.


In the result, I am constrained to hold that the first Defendant's Summons can go no further.


Accordingly, there is no alternate but to dismiss the Summons.


I cannot see any other just way to finish the matter than to follow the law.


(2) In view of the approach I have adopted, I do not consider it necessary for me to express my views on the merits of the application to set aside the default judgment.

(G) FINAL ORDERS

(1) The First Defendant's Summons dated 19th May 2015 is dismissed.

(2) The First Defendant is ordered to pay costs of $500.00 [summarily assessed] to the Plaintiff within 14 days from the date hereof.

Jude Nanayakkara
Acting Master of the High Court


At Lautoka
14th October 2015

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