IN THE FIRST CLASS MAGISTRATES COURT AT NASINU
CIVIL JURISDICTION

Civil Case No. 63/2012

BETWEEN:

KHALSA TAXIS LIMITED
 a limited company incorporated in Fiji having its registered office at c/ G H Whiteside & Co, 211 Ratu Sukuna Road, Suva, Fiji.
[Plaintiff]

AND:

KANTA PRASAD 
of Lot 168 River Road, Narere, Nasinu, Fiji.
[Defendant]

Mr.Prasad V. ( VP Lawyers) for the Plaintiff
Mr. Sharma T. for the Defendant 

Ruling on setting aside default Judgment

Facts

[1] The Plaintiff filed this action by way of writ of summons for That by this action, the Plaintiff seeks to be compensated for the damages it sustained to its Motor Vehicle Registration Number LT 1935 (hereinafter referred to as the Plaintiff’s Vehicle), the costs of repair it paid for and loss of earnings it had suffered as a consequence of the Defendant negligently and recklessly driving his Motor Vehicle Registration No. 5231 (hereinafter referred to as the Defendant’s Vehicle) and colliding the same into the Plaintiff’s Vehicle from the rear.

 [2] Initially, that the Plaintiff prayed for Judgment in the sum of FJD $7580.75 (Seven Thousand Five Hundred Eighty Fiji Dollars and Seventy Five Cents) as Statement of Claim and Judgment to be entered against the Defendant with post judgment interest at 5% as provided for under Order 32 Rule 8 of the Magistrates Court Rules, with the interest limited to the jurisdiction of the Magistrates Court and order for costs against the Defendant in the sum of $1500.00 (One Thousand Five Hundred Dollars) being the legal costs incurred by the Plaintiff in Prosecution of this proceeding up to that moment.
On 19th of February 2013 since the defendant did not appear before the court, the Court have entered a judgement in default in favour of the Plaintiff for sum of $7430.00 against the defendants with the cost. 

[3] On 5 June 2013 the Defendant Pursuant to Order XXX Rule 6 of the Magistrates Court Rules filed a Notice of Motion seeking the grant of the following orders:

(a)	That the Plaintiff’s judgment by default to be set aside and the Defendant be at liberty to file Statement of Defence.

(b)	That costs be in the cause.

[4] This application was supported by an affidavit of defendant. On 30th September 2013 the Plaintiff filed affidavit in reply and objected to the defendants’ application. The dependant did not reply to the same. I have carefully considered both affidavits and pertinent documents to this application. 

 [5] On the 23rd of July 2014 both counsels agreed not to lead evidence but to proceed the application for set aside by way of written submission. On 03/9/2014 the plaintiff has filed written submission. Then the matter was called for the written submission of the defendant on 3/9/14/; 8/10/14; 19/11/14 and 3/12/14 but the defendant has failed to file any submission. Therefore the plaintiff counsel seeks dismissal of the set aside application. The court gave 2 weeks’ time to the defendant to file written submission at registry provided if the defendant fails to do so to proceed to deliver the ruling as there is no written submission for the defendant. Then the court fixed the matter for ruling. But again the defendant has failed to file the written submission until today. 

Law

[6] Magistrates Court Rules Order XXX Further provides Setting aside of judgment made in absence of party. Order 30 Rule 5 says;

“Any judgment obtained against any party in the absence of such party may, on sufficient cause shown, be set aside by the court, upon such terms as may seem fit.”

[7] Above mentioned rule has been based on English case authorities and academic works as well. In Burns v. Kondel [1971] 1 Lloyds Rep 554 the English Court held that the Defendant does not need to show a good defence on the merits but need only show a defence which discloses an arguable or tribal issue. The basic principles applicable to setting aside judgments in the exercise of [a] Court’s discretion are set out in Halsbury’s Laws of England Vol 37, inter alia thus: In the case of a regular judgment it is an almost inflexible rule that the application must be supported by an affidavit of merits stating the facts showing that the defendant has a defence on the merits. For this purpose it is enough to show that there is an arguable case or a tribal issue.

[8] The discretion is prescribed in wide terms limited only by the justice of the case and although various “rules” or “tests” have been formulated as prudent consideration in the determination of the justice of a case, non [has] been or can be elevated to the status of a rule of law or condition precedent to the exercise of the Court’s unfettered discretion.

(i)	Delay and in this respect reasonable time means a time reasonable in all the circumstances see: Monkland v Jack Barclay Ltd;

(ii)	Defence in the merits in Shocked v Goldschmidt 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”.

(iii)	Prejudice to the parties

 Without fettering this discretion, the Court has laid down a guiding criteria or test the exercising the discretion judicially. However, the overriding:

 “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 when that has only been obtained by a failure to follow any of the rules of procedures” Evans v Bartlam [1937] A.C. 473 at 480 per Lord Atkin. Further in Evans v. Bartlam [1937] AC 473, at 651 the court has expressed that the Applicant must produce to the court ‘evidence that he has a prima facie case’. 

In Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc [1986] 2 Lloyds Rep 221 (CA) further stated: 

“It is not sufficient to show a merely “arguable” defence that would justify leave to; 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 Fiji National Provident Fund v Datt [1988] FJHC 4; (1988) 34 FLR 67 (22 July 1988), the court enunciated three "test" to be considered in this regard namely;

(a) whether the defendant has a substantial ground of defence to the action;
(b) whether the defendant has a satisfactory explanation for his failure to enter an appearance to the writ; and
(c) whether the plaintiff will suffer irreparable harm if the judgment is set aside.

Determination

[9] The defendant's main contention is that, as mentioned in paragraph 11 of affidavit alleges that "the Plaintiff did not follow the procedure as it did not have the Writ of Summons and Statement of Claim served on me and I would like to challenge the authenticity of the Affidavit of Service". More specifically the defendant claims that she was not served the writ. In contrary the defendant has had full opportunity to attack the Affidavits of Service "to challenge the authenticity of the Affidavit of Service" in a Reply Affidavit yet he did not do so. Furthermore the Defendant provides no reason and makes no allegation as to why the Plaintiff could not or would not serve on him the Writ of Summons and Statement of Claim when the rest of the documents which included a prior Demand Notice and subsequent Judgment and Order were served on him with ease by the Plaintiff through a registered bailiff, which fact is admitted by the Defendant". 

[10] This court noticed if the Defendant had a defence to the Plaintiff's claim, he would have filed an Affidavit in Reply with a draft Statement of Defence annexed to it. The Defendant however has elected not to do so. The application for setting aside must be supported by an affidavit of merits stating the facts showing that the defendant has a defance on the merits. Merely denial of service of summons or statement of claim is insufficient to entertain an application for setting aside unless the defendant show that the defendant has an arguable case and which has real prospect of success. In this matter the defendant failed to provide any merits of their case. Even after this court order to file written submission the defendant failed to submit any. 

[11] The impugned default judgment has been obtained after formally proved the Plaintiff's claim. The Plaintiff has substantiated by evidence and proven on balance of probabilities that the Defendant is liable for the damages caused by him and the Plaintiff therefore entitled to the Judgment that has been given. The defendant did not complain that the default judgment was obtained irregularly. Therefore the defendant must give merits of his case to court to consider setting aside unlike in a case where the judgment in default entered without considering the merits of the plaintiff's case. Then the Court has discretion whether or not to allow this setting aside application.

[12] The Defendant alleges that since he has been charged with careless driving this entire action be adjourned to await the outcome of the careless driving case. Notwithstanding the Defendant has not denied the Plaintiff's claim in his affidavit. The Defendant has not denied that he caused the accident nor has he denied that he is liable for the damages caused. This court cannot accept this averment as a defence to the Plaintiff's action. This is because, it is not a defence. The available particular of the defence to the Defendant, has to be provided. Unless the matter will fix for hearing as formal proof as there is no defence. The defendant will have right of cross examination of the plaintiffs claim only.so in this case.

[13] Further this court notice that the defendant is awaiting for the final outcome of the criminal cases pending against the both parties in magistrate court. This court thinks which is immaterial for this proceeding. In Stupple v Royal Insutance (1971) 1 Q.B. 50 at p.76:

"…The Judge's duty in the civil proceedings is still to decide that case on the evidence adduced to him. He is not concerned with the evidence in the criminal proceedings, except so far as it is reproduced in the evidence called before him or is made evidence in the civil proceedings under the Civil Evidence Act 1968 Section 2 or is established before him in cross-examination". (Buckley L.J.)

[14] It is noted by this court that the Plaintiff is severally prejudiced by the Defendant's conduct. The accident occurred on 28 July 2011. Since then the Defendant has refused to compensate the Plaintiff for the damages caused by him for no cogent reason. The Plaintiff has had to pay for the repairs for the damages which was incurred at no fault of the Plaintiff while the Defendant has evaded his obligation and seeks to continue the same by his present application.

 [15] I therefore make following orders;

a)	The Application for judgment by default be set aside is hereby refused.
b)	The judgment by default dated 19th of February 2013 is hereby confirmed. 
c)	The writ of execution to be done to fulfil the said 19th of February 2013judgment. 
d)	Parties will bear the cost of this application. 

Orders accordingly.

On 25th Mach 2015, at Nasinu, Fiji Islands

Neil Rupasinghe
Resident Magistrate-Nasinu