| Fiji Islands - Air Fiji Ltd v Shandil - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO: HBC 380 OF 1999
BETWEEN:
AIR FIJI LIMITED
Plaintiff
AND:
SHAILEND SHANDIL; and
ISLAND NETWORK CORPORATION LTD.
Defendants
Counsel: Mr W. Clarke for Plaintiff
Mr S. Matawalu for Defendants
Hearing: 25th January 2001
Decision: 29th January 2001
DECISION
This is an application by the Plaintiff under Order 19 Rule 7 of the High Court Rules, for judgment to be entered agaihe Defendants
for failure ture to file defence. The Plaintiff asks for damages to be assessed and for $500.00 costs.
The writ of summons in this action, was filed on 13th August 1999. The Statement of Claim eed on the writ claims that the Plaintiff,
is an airline. Ite. It claims that on 24th July 1999 an aircraft belonging to the Plaintiff crashed causing the death of all 17 persons
on the aircraft. It states that on the 3rd and 4th of August 1999, the 1st and 2nd Defendants broadcast words which, it claims, were
defamatory of the Plaintiff. It claims that the broadcast was untrue and that as a result the Plaintiff suffered loss to reputation
and business credit. The Plaintiff claims:
(a) &nnbsp; &nbs;&nnbsp; &nb/span>Generalneral DamagDamages;
ot;">  &nbs; &nbp; &bspp &&nbs; &nbs; &nbs; &nbss;&nbbsp;
Speciapecial Damages;
(an style="font:7.0pt "Times New Roman""> &nbbs;    &nbssp;
(d) langB> an>p class=MsoNormal style="marginargin-top:-top: 1; m 1; marginargin-bott-bottom: 1om: 1"> No Defence was filed, but on 9th September 1999 the Defendants applied to strike out the Statement of Claim on the grounds that it
disclosed no reasonable cause of action, that it was scandalous, frivolous and vexatious, and that it was an abuse of the process
of the Court.
That application was dismissed on 3rd December 1999, but the Plaintiff was ordered to amend the Stateme Claim to incorporate the full
broadcast complained of, int, into the Statement of Claim.
There was some delay in the filing of the Statement of Claim, it appears because the Defendants delayed in providing tll transcript
of the broadcroadcast. Amended Statement of Claim was finally filed on 6th April 2000. No Defence has been filed. The Plaintiff now
makes this application.
The application was heard in chambers on 25th January 2001. Counsel submitted that where there was a failure to file Defence, and
the Plaintiff made an application for default judgment under Order 19 Rule 7, the court was obliged to enter judgment because of
the use of the word “shall” in the Rule.
Counsel for the Defendants said that he conceded that no progress had been since 6th April 2000, where the amended statement of ClaimClaim
was filed, but said that in the exceptional circumstances unfolding in the country, this was understandable. He said that Defence
could be filed within 7 days. He said the court had a discretion to refuse the application.
Order 19 Rule 7 reads:
p class=MsoNormalormalormal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> “Where the plaintiff makes against a defendant or defendants a claim of a descriptot mentioned in rules 2 to 2 to 5, then, if the
defendant or all the defendants (where there is more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may,
after the expiration of the period fixed by or under these Rules for service of the defence, apply to the Court for judgment, and
on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.”
The claim in the Statement of Claim is for unliquidated damages. Order 19 Rule 3 provides that where the defendant fails tve defence
within the prescprescribed time, in respect of al claim for unliquidated damages, the plaintiff may enter interlocutory judgment
for damages to be assessed, and costs.
Order 19 Rule 7 applies to claims which are neither liquidated nor unliquidated, and the court, before entering judgment is required to consider what part of the claim the plaintiff is entitled to on default judgment.
This being an unliquidated claim, the application is misconceived in that it purports to be made under Rule 7.
In Subodh Kumar Mishra -v- Car Rentals (Pacific) Ltd. Civil Appeal No. 35 of 1985, the Fiji Court of Appeal considered the question of what constitutes liquidated and unliquidated claims.
It said (at page 4 of the judgment):
“In Knight -v- Abbot (1882) 10 QB 11, it was held that
“A liquidated demand is in the nature of a nature of a debt i.e. a specific sum of money due and pa under a contract. Its amou amount
must be ascertained or ascertainable as a mere matter of arithmetic.”
..........Thesinitions and and others in terms have sometimes been criticised as not encompassing aing all instances of liquidated
claims or demands ...........” <1">
In this case, this appears to be a clear claim in unliquidated damages.
As such the plaintiff is entitled to judgment for damages to be assessed under Rule 3.
The submissions of Defendants’ counsel that the delay was due to the events after May thh, appear to have little relevance at this
stage. Counsel msel might have prevented judgment from being entered if the defence had been served on the Plaintiff out of time
but before judgment is entered (Gibbings -v- Strong [1884] UKLawRpCh 46; (1884) 26 Ch D. 66). However the discretion to enter judgment on an unliquidated claim under Order 19 Rule 3, is one which vests in the Plaintiff.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> There is nothing to prevent the Plaintiff from now entering judgment for damagebe assessed under Order 19 Rule 3. All the matters
raised bsed by the Defendants on the reason for the delay, may be raised in an application for setting aside judgment in default,
in the event that such an application is made.
Judgment may now be entered by the Plaintiff for damages to be assessed. Because the application under Orderule 7 was made in error,
I r, I make no order for costs.
Nazhat Shameem
JUDGE
At Suva
29th January 2001
Hbc0380x.99s
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