Raza v Takki [1999] FJLawRp 33; [1999] 45 FLR 187 (23 August 1999)

[1999] 45 FLR 187

HIGH COURT OF FIJI ISLANDS

MAULANA MOHAMMED TAUAB RAZA

v

MOHAMMED TAKKI & THE MACUATA MUSLIM LEAGUE

[HIGH COURT, 1999 (Fatiaki J) 23 August]

Civil Jurisdiction

Practice: Civil- application to set aside Judgment in default of defence- principles applicable- High Court Rules 1988 Order 19 r 9.

While granting a Defendant’s application to set aside a judgment entered against it in default of defence the High Court explained the principles governing such applications. It indicated that failure by a party to advise the other side that it intended to enter judgment was a factor to be taken into account when assessing the merits of the application.

Cases cited:
<60;

Atwood v. Chichester [1965] 1 WLR 8

Wearsmextild. v. General Macl Machinery Hire Ltd & Anr Civ. App. 30r>
Intr>InterInterlocutory application in the High Court.

V. Parshuram for thintiff
A. Sen forDefendants

;
Fatia/b>&#16>On16>On the 16th of O of October 1998 the plaintiff issued a Wr a Writ out of the High Court at Labasa claiming damages and other relief for defamacontain two letters wrrs written by the defendants and sent to v to various bodies in Australia. The Writ was served by way of registered post on 5th November 1998.

On 10th November 1998 the defendant’s solicitors wrote to the plaintiff’s solicitors advising that they were in the process of filing an acknowledgement of service and requesting ‘... you not to tak further action in the matt matter without prior notice been given to us first’. On the same day an Acknowledgement of Service was filed in the High Court, Labasa indicating that the defendants intended to contest the proceedings.

In spite ofclear terms erms of defence counsel’s request, default judgment for damages to be assessed was entered by the plaintiff&#8 solicitors on 5th February 1999 without any prior notice or warning to counsel.
<160;
In regard defence ence counsel quite forcefully submits that the entry of default judgment in the face of his specific request is not only discourteous but also iach of the practice or convention recognised in the judgmendgment of Tuivaga J. (as he then was) in Bula Timber v. Geelong Holding Ltd. Suva Civil Action No. 173 of 1977 (unreported) where his lordship said:

8216;I think it is fais fairecord that a practice appears to have developed at the bar in this country whereby counselunsel for one party would as a matter of gonscience give notice to the other side of any intended sted step to enter judgment in default and calling upon the other side to move in the matter if it desires to defend the action.’

Plaintiff’s counsel claims however that it never received defence counsel’s first letter and the matter must rest there. As for the so-called practice or convention the Fijrt of Appeal recently disavowed the existence of such a cona convention when it said in WearsTextiles Ltd. v. Gev. General Machinery Hire Ltd. and Shareen Kumar Sharma Civil Appeal No.31997 (loos(loose leaf) at p.14:

‘...he alleged ‘convention’ did exist then it was awas a matter of professional courtesy between practitioners. It cannot be ted tule of law to preo prevail over or compete with the relevant prescribed Rules of the Court.ourt.’

and later when id at p.at p.15:

&#82. we venture tore to suggest with respect that the learned Chief Justice never intended tha such practice between solicitors should have the force of a rule of law.’
<160;
I conteself in sayn saying that where a written request has been received and ignored that is a factor to be weighed in the Court’s exercise of its unfettered diion.

On 10th February 19on lpon learning of thof the default judgment, defence counsel wrote again to the plaintiff’s counsel requesting ‘if you can consent to the setting aside of the judgment as we were not advised of your intentions to enter judgment’. This second letter is plainly predicated on Order 4 r.3 of the High Court Rules and it is unfortunate that it too went unanswered.

A fortnight later and in the absence of any response from the plaintiff’s solicitors, the present application was filed by the defendants solicitors seeking to set aside the default judgment and unconditional leavdefend the plaintiff’8217;s claim.

The Fiji Court peal in&l in F.S.C. Ltd. v. Med IsmaiIsmail (1988) 34 F.L in dealing wing with a similar application said:

&#The principle on e on which a Court acts where itoughtet as judgmeudgment resulting from a failure to complyomply with rules was stated by Lord Atkin tkin in the House of Lords case Ev. Bar/u> (1937) 237) 237) 2 All E.R. p.646 at p.650. He said:

We draw tion to thao that part of Lord Atkin’s statement referring to the fact that a defendant only has to establish a prima facie defence ... The statement alsocates that a draft defence is not necessary, what is requirequired is the affidavit disclosing a prima facie defence.”

In this latter regard the application is supported by an affidavit deposed by the President and Trustee of the second-named defendant organisation verifying the truth of the contents of a proposed Statement of Defence annexed to the affidavit.

&#82. were commentsments mnts made in good faith and without malice upon a matter of public interest, namely upon the conduct of the plaintiff in his public capacity being the Chairman of Zakaat at held by the second defendefendant. During the course (sic) of his appointment as the Chairman the plaintiff signed ANZ Cheque No.069264 which was converted to his own use and/or for the use and benefit of other persons. So far as necessary the defendants rely on Sections 15 and 16 of the Defamation Act Cap.34.’The >The defendants also say that the allegations ‘... are justified, true and were done so in the public inte#8217:

‘furthe say that the Islamic Society of Darra (the plaintiffntiff’s present employer in Australia) had a common and corresponding interest in the subject matter and publication of the said words and/or the defendants were under a social and/or moral duty to publish the said words to the said Islamic Society of Darra, who had a like duty and/or interest to receive them.’

8216;in the event the the letters were published in Australia, the cause of action has arisen in that jurisdiction and in the premises the plaintiff is not ent to maintain this action here in Labasa.’
Fro foregoing it i it is sufficiently plain that the proposed Statement of Defence raises several matters by way of defence including:

(a) & ;ټ<ټ&660; justificat/pn;

(b)&>(b) ـ҈< < fairent on a m tter of pubf public int; and

(c0;҈ &1160;#160;&#160 publ publication on an occasion of qualiqualified privilege;

In reply the plainmerelosed e proposed Statementefence:

‘I deny that the defendants hats have meve merits rits in thin their defence ...’

Defencnsel in hil submisubmissions to the court briefly traced thed the chronology of events leading up to the entry of default judgment and subthat there was hardly any delay on the defendant’s part in filing the present applicaplication and with that I entirely agree.

Furthermore counselittemitted that the letters were written to the plaintiff’s Australian employer as a sister organisation sharing a common interest with the second defendant and concerning a common employee.

Plaintiff’s cl onel on the other hand points to the gratuitous publication to the Australian Department of Immigration and Multi Cultural Affas being clear evidence of a malicious intent on the part of the defendants although it is t is nowhere deposed that the copy letter was actually received, and counsel seeks indemnity costs in the event that judgment is set aside.

In particular coureliedelied upon the observations of the Privy Council in the case of Ratnam v. Cumarasamy
Eve Privy Council icil icil in its judgment recognised this distinction when it said at p.12:

‘Their Lordships note that these observations [per Bramwell L.J. in A v. Chiche/u> (180;(180;(1878) 3 Q.B.D.722 at 723] were made in reference to a case where the application was to set aside a jud by dt which is on a dn a different basis from an application to extend the time for appealing. ing. In the one case the litigant has had no trial at all in the other he has had a trial and lost.’

Having carefully considered the affidavits and the proposed Statement of Defence I am satisfied that the defendants have established a prima facie defence to the plaintiff’s clad therefore the court’s discretion ought to be exercixercised in their favour.

Theication is accordingrdingly granted with liberty to the defendants to file and serve a Statement of Defence within 14 days. The costs of this application to be e cause.

(Application granted.)