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Kumar v Garimella [2004] FJHC 328; HBC0483.2003S (2 July 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0483 OF 2003

BETWEEN:

DR. MAHENDRA KUMAR
(f/n Bans Karan)
Plaintiff

AND:

DR. SITARAM GARIMELLA
Defendant

Counsel: Ms Bindula Devi - for the Plaintiff
Ms. Semi Leweniqila - for the Defendant

Date of Hearing: 29th June, 2004
Date of Judgment: 2nd July, 2004

JUDGMENT

Introduction

The defendant makes an application by way of summons dated the 12th of March, 2004 pursuant to Order 13 Rule 10 of the High Court Rules to set aside a default judgment entered against him. The application is supported by his affidavits sworn and filed on the 12th of March, 2004.

The plaintiff opposes the application and relies on affidavits he filed on the 26th of March, 2004.

Counsel have filed written submissions and decided to rest their case on those submissions and accept a decision on the papers given on notice.

The Facts

A writ of summons was filed by the plaintiff on the 21st of November, 2003 claiming damages for alleged libel contained in various memoranda written by the defendant between April 2002 and April 2003. These were generally addressed to the Vice Chancellor of the University of the South Pacific. Somewhat unusually for a complex libel action rather than file a Statement of Claim giving full particulars of the alleged libel the plaintiff adopted the shorthand method of a simple endorsement of writ.

The endorsement is one paragraph long and reads in full as follows:

“The Plaintiff’s claim against the Defendant is for damages for libel contained in a memorandum written by the Defendant on 28th day of April 2003, 2nd September 2002, 20th November 2002, 25th November 2002 and 30th April 2002 addressed and sent to the Vice Chancellor of the University of the South Pacific and published to others in which the Defendant falsely and maliciously wrote and published of and concerning the Plaintiff and concerning him in his office as the Head of the Physics Department alleging amongst other things dishonesty .......”

In my view the endorsement is lamentably brief and fails to provide sufficient particulars of the publications and in particular what part of the publications are said to be libellous (Order 82 Rule 2).

Further it is clear from the affidavits filed in support of the application to set aside judgment that the plaintiff alleges that only some of the words or matters complained of were used in a defamatory sense other than their ordinary meaning. As such he was obliged to give particulars of the facts and matters on which he relied in support of such sense (Order 82 Rule 3).

The defendant applicant essentially argues that he has a defence on the merits. I have to say that while that may be so the generality of his affidavit in support of the default judgment is not helpful. His merits are described in paragraph 7 and paragraph 9 of his affidavit of the 12th of March, 2004. He pleads truth. He pleads confidentiality as a “whistle blower”. What is lacking in his affidavit are particulars of the truth and particulars of the whistle blowing. However, that is not fatal to his application as I expect his lack of particularising a defence simply reflects the lack of information endorsed on the writ. He is in effect fighting a very “general fire” with “general fire”.

I accept the principles espoused in Russell v Cox [1983] NZLR 654 at 659 where Justice Hardie-Boys described the exercise of this discretion as being whether it is just in all the circumstances to set the judgment aside and if so whether terms should be imposed. His honour went on to say that the justice of the case is to be generally measured against three factors. These that are non-exclusive factors are:

(i) Whether the delay has been reasonably explained. I find in this case it has. The proceedings were filed and served close to the Court Legal Vacation at a time when the defendant was about to go overseas. I find he attended to the matters of instructing counsel at the earliest practical opportunity.

(ii) Secondly, whether a substantial ground of defence has been disclosed. I again find, in a general sense, answering a very general claim that a substantial ground of defence has been disclosed. The defendant is generally pleading truth in answer to the general allegations made against him endorsed on the writ.

(iii) Thirdly, there is the issue of whether the plaintiff will suffer irreparable injury if the judgment is set aside. I find that the plaintiff will not suffer irreparable injury. It is the nature of a liable action that the harm has already been done. No damages have yet been awarded. There is no prejudice to this plaintiff in the setting aside of the judgment.

Conclusion

Accordingly for these reasons I set aside the default judgment dated the 15th of December. I direct the plaintiff to file a Statement of Claim containing the required particulars under Order 82. The defendant is to have 14 days from the service of that Statement of Claim to file and serve his Statement of Defence. Costs are reserved in the cause.

Gerard Winter
JUDGE

At Suva
2nd July, 2004