Devi v Anthony [2001] FijiLawRp 4; [2001] 1 FLR 28 (12 January 2001)

SAJILA DEVI v PATRICK ANTHONY

High Court Civil Appellate Jurisdiction

8 June, 27 September 2000, 12 January, 2001

HBA7/00S

Appeal against judgment – error of magistrate in failing to set aside judgment when circumstances explained attempt to file a defence on merits –formal proof date changed to earlier date without notice to Appellant – failure of magistrate to afford natural justice - what constitutes a liquidated demand

The Magistrates' Court entered judgment against the Appellant for moneys lent, together with costs. She appealed on the grounds that the magistrate erred in failing to set aside judgment when circumstances explained her attempt to file a defence on the merits and that a formal proof date was changed to a date nearly 6 weeks earlier without notice to her. The appellate Court upheld this submission, despite the Defendant's allegation the claim was not a liquidated claim. The appellate Court then discussed a liquidated demand arose where there was a demand where the debt is for goods sold and delivered, goods bargained and sold, work done, money lent, money paid, money received, interest, and upon accounts stated, but felt it unnecessary to decide on this point. The Appellate Court granted the appeal.

Held – The magistrate failed to apply principles of natural justice when she failed to notify the Defendant of the changed hearing date, and proceeding with formal proof on an earlier date.

Appeal against dismissal of setting aside of Judgment upheld.

Cases referred to in Judgment
Annets v McCann (1990) 170 CLR 596
Kanda v Government of Malaya (1962) AC 323
Lagos v Grunwaldt [1910] 1 KB 41

Raman Singh for the Appellant
R Prasad for the Respondent

12 January, 2001

JUDGMENT

Byrne, J

This is an appeal from a decision of the First Class Magistrates' Court at Suva on the 9th of March 1999 by which the Appellant was ordered to pay the Respondent the sum of $6,615.00 plus costs. On the 14th of July 1999 a Formal Decree was entered in favour of the Respondent for a total amount of $6,684.50, the additional $69.50 being for costs.

The Defendant now appeals against that Decree on two grounds which I summarise thus:

(1) The Learned Trial Magistrate erred in law in failing to exercise her discretion in favour of the Appellant on a Motion to set aside judgment when there was evidence explaining the circumstances relating to the attempted filing of a Statement of Defence which disclosed a defence on the merits.

(2) The Learned Trial Magistrate erred in law in failing to consider that the formal proof date was changed to an earlier date without notice to the Appellant.

The undisputed facts are that on the 30th of November 1993 the Defendant issued a Summons in the Magistrates' Court claiming the sum of $6,515.00 owing by the Defendant to the Plaintiff for moneys lent to the Defendant.

A request for further and better particulars of the claim was delivered to the Plaintiff's solicitors and these were duly supplied on the 11th of January 1999.

On the 26th of February 1999 the Magistrate fixed the date of formal proof to be on the 21st of April 1999.

On 9th March 1999, contrary to her order of the 26th of February, the Magistrate heard the Plaintiff's claim in the absence of the Defendant or her counsel and made an order in favour of the Plaintiff for the sum of $6,615.00 plus endorsed costs.

The Defendant alleges, and I am satisfied that the Magistrates' Court did not give any notice to the Defendant or her counsel of the altered date for the hearing of the formal proof.

The Plaintiff denies that the Defendant was not notified by the Court and claims that in paragraph 9 of the Plaintiff stated that the Defendant was properly notified. I reject that submission.

Paragraph 9 of the affidavit of the 5th of April states that, "I further say that the Defendants allegations are without sufficient grounds and cannot be relied upon to allow setting aside judgment".

The Defendant subsequently applied to set aside the Judgment but on the l1th of June 1999 the Learned Magistrate dismissed the Motion.

She stated in giving her reasons that she was not satisfied about the reasons advanced for failing to appear when directed or file a defence as ordered on the 29th of January 1999. On the 26th of February, when fixing the formal proof date as the 21st of April 1999, the Learned Magistrate also gave the Defendant liberty to file a defence within seven days. This was not done although according to an affidavit of Mitchell Prasad, a Filing Clerk in the employ of the Defendant's solicitors, a Statement of Defence was filed on the 5th of March 1999 but was returned by the Court Registry.

That Statement of Defence alleged that the Plaintiff had a friendly relationship with the Defendant during which he made a gift to her of some money but the friendly relationship turned sour when the Defendant refused to have a sexual relationship with the Plaintiff.

The Defence also alleged that as a result the Plaintiff confiscated the Defendant's passport and airline ticket in Sydney only released it when the Defendant signed a document acknowledging, a debt of $2,000.00 to the Plaintiff. It was alleged that this document was signed under duress.

On the 9th of March 1999 the Plaintiff gave formal evidence relating to his claim and the Learned Magistrate accepted that evidence.

In the submissions of the parties the Defendant contended that the claim was not a liquidated claim because it required further investigation to ascertain the correct amount. There are several authorities on what constitutes a liquidated demand but the most relevant which I have been able to discover was the statement of Farwell, L.J. in Lagos v Grunwaldt [1910] 1 KB 41 at page 48 who said that a liquidated demand was where the debt is for goods sold and delivered, goods bargained and sold, work done, money lent, money paid, money received, interest, and upon accounts stated.

It is unnecessary for me to consider this question any further in this case because of the clear view I have formed that the second ground of appeal must be upheld.

In failing to notify the Defendant of the changed date of hearing of formal proof I am satisfied that the Learned Magistrate failed to apply the principles of natural justice.

In Kanda v Government of Malaya (1962) AC 323 at p. 337 the Privy Council stated:

"If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him, and then he must be given a fair opportunity to correct or contradict them.... It follows, of course, at the judge or whoever has to adjudicate must not bear evidence or receive representations from one side behind the back of the other. "

In Annets v McCann (1990) 170 CLR 596 at 598, Mason C.J. Deane and McHugh JJ stated:

" It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary Intendment..."

Accordingly the appeal is upheld and I refer the case back to the Magistrates' Court to be heard by another Magistrate. The Respondent must pay the Appellants costs to be taxed if not agreed.

Appeal allowed.
Marie Chan