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Dioge v Chetty [2004] FJHC 523; HBC0053R.2002B (5 April 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO. HBC0053R OF 2002B

BETWEEN:

REJIELI DIOGE
of Volaca, Dreketi, Domestic Duties.
PLAINTIFF

AND:

MUNIAN CHETTY
f/n Nagan of Suva, Driver.
1ST DEFENDANT

AND:

HASMUKLAL PATEL
f/n Ram Bhai Patel,
MADHUKANTA PATEL
f/n Dalpabhai R. Patel,
RAJNIKANT PATEL
f/n Hasmukhlal Patel all of 26 Bau Street Suva.
2ND DEFENDANT

Counsel for the Plaintiff: D. Sharma: R. Patel & Co.
Counsel for the 1st and 2nd Defendants: R. Naidu: Jamnadas & Assoc.

Date of Ruling: 5 April, 2004
Time of Ruling: 9.30 a.m.

RULING

On 23 March, 2004 this Court dismissed the Defendants’ application to set aside a default judgment, with reasons to be given later. These I now give.

BACKGROUND

On 10 May 2001 the Plaintiff was run down along the Labasa – Nabouwalu road by the first Defendant driving a vehicle registered No. DC 652 owned by the second Defendant. The first Defendant is in the employment of the second Defendant. The Plaintiff sustained serious injuries resulting in her hospitalisation at the Labasa hospital until 5 June 2001 when she was discharged. The first Defendant was subsequently convicted at the Labasa Magistrates’ Court for dangerous driving, fined $250.00 and debited 2 demerit points.

On 30 July 2002 the Plaintiff filed her Writ for damages against the 1st and 2nd Defendants. Affidavits of service on the 1st and 2nd Defendants were filed on the 1st and 23rd October respectively, and there being no acknowledgement of service filed by the Defendants, default judgments were entered against them. Notice of assessment of damages were served on the Defendants and the hearing set down for 28 November 2002. On 25th November, the Defendants filed notice of appointment of their solicitors together with Summons for stay. Counsel for the Defendants, on 28th November 2002 submitted in the summons for the assessment of damages, that the Plaintiff should submit herself to a medical examination before a doctor of the Defendants’ choice. This is because, according to Counsel, the requirements of the Motor Insurance (Third Party) Act (section 18) compels the Plaintiff to do so. The clear inference to the Court of the application coupled with the oral submission of Counsel, was that the payment of damages would be made by the insurance company for the Defendants. The Court thereupon ordered the assessment of damages stayed pending the medical examination of the Plaintiff by the Defendants’ doctor. Costs of $100 was awarded against the Defendants. The matter was adjourned to 22 January 2003 which did not occur because of Hurricane 'Amy.' When the matter was finally called on 19th February 2003, Counsel for the Defendants explained that the examination of the Plaintiff was still to be done. In the meantime, Counsel added, a settlement proposal by the Plaintiff is being considered by the Defendants. Court adjourned it to 24 April 2003 for hearing. The Court on 22 April 2003, was informed by Counsel for the Defendants that the matter was likely to be settled. The case was again adjourned to 29 May 2003 for hearing of assessment. Yet again when the case was called on the day, the Defendants asked for further adjournment to allow insurance company’s response to medical report. The Court adjourned the hearing to 25th June 2003 and payment of $450.00 costs to the Plaintiff. On 25th June, the Court heard that the Defendants will contest the quantum of damages claimed by the Plaintiff and the hearing w as adjourned to 27 June 2003. The Court did not proceed to hear the assessment on 27th June, and the hearing adjourned further to 25 September, 2003.

On 19th September 2003, the Defendants filed their Summons to set aside the default judgment entered against them in October 2002. The grounds advanced by the Defendants were that the judgment had been entered irregularly, that there was contributory negligence by the Plaintiff, and at any rate the Defendants have defence on merit. The Plaintiff opposed the Summons in the affidavit filed on 22 September. By leave of Court on 24 September the Plaintiff filed her own affidavit on 8 October, 2003. On 30th October, 2003 leave was granted to the Defendants to file their affidavits in response. In addition, the Court ordered submissions to be filed and adjourned it to 21 November 2003 for hearing of Defendant’s Motion to set aside. The Defendant’s filed their submission late and as a result the Plaintiff was not able to comply with the order that she filed her submission before the hearing of 21 November, 2003. As a result the Plaintiff was granted further time (21 days) to file her submission with liberty to the Defendants to respond if necessary, 7 days thereafter. Owing to the very slow progress in the proceedings, the Court ordered that the hearing be transferred to Suva on 18 February 2004. There were no appearance by both Counsel when the case was called in Suva on 18th February 2004. It was adjourned to 8 March and the Court directed that Counsel be informed of the new date. On 9th March, the Defendant asked and was given a further 7 days to file submissions, and the Court adjourned the hearing to 23 March 2004. The Defendants failed to file any submission on the due date. The Court nevertheless proceeded to hear their application to set aside.

COURT’S CONSIDERATION

The principles that guide the Court in considering whether to set aside a default judgment or not and which forms the basis of the Defendants’ arguments are set out in the leading authority of Evans v. Bartlam [1937] 12 All ER 646. These are that there must be adequate reasons given why the judgment was allowed to be entered by default, that the application to set aside must be made promptly and without delay, and there be an affidavit of merit of the defence.

1. Are there Adequate Reasons for Judgment to be Allowed to

Be Entered by Default

There does not appear to be any to convince this Court. In the first instance, the Defendants had failed to give any notice of intention to defend as required under Order 13 of the Rules, even although they had been served and in turn acknowledged the service of the Writ. All the Defendants could offer in their submission was that the delay was due to the non-availability of their own investigation’s report. This cannot be accepted by the Court as an adequate reason for the delay. After all there are strict requirements as to time for filing of documents under the High Court Rules.

2. Whether the Application to Set Aside Was Made Promptly
   

The Application to set aside is made 12 months after the Writ had been served on the Defendants. While there have been instances where the Court had ruled in favour of applications even after lapses of period longer than 12 months, the Court’s exercise of its discretion is in the end, guided by the circumstances of a particular case.

It is quite clear from the fact of this case that the Defendants have had more than enough opportunities presented to them to make their applications.

Instead they had, in this Court’s view, led the Plaintiff and her Counsel all along to believe that they were only contesting the quantum of damages. The Court itself had been given the impression that the Defendants’ Counsel’s requests for adjournments since 28 November 2002 were being done in aid of facilitating the medical examination of the Plaintiff by the Defendants’ doctor, towards a possible settlement of the claim. Other evidence, including exchange of correspondence between the parties, also lend support to this view.

The Defendants argue, as one of the grounds for their application, that the Writ was served by registered post and as a result, the judgment entered was irregular. However, as Counsel for the Plaintiff correctly argues, service of a Writ is permissible under Order 10 of the Rules. In any event, even if the Defendants were to prove some irregularity in the service of the Writ, they would, by their acts of requesting for medical reports of the Plaintiff and also demanding for her to undergo medical examination by their own doctor, be deemed to have taken fresh steps under Order 2 rule 2 so as to deny them of such relief. This ground also fails.

3. Are There Merits in the Defence
   

All that the Defendants can advance is the argument of contributory negligence on the part of the Plaintiff. Yet, as Counsel for the Plaintiff points out, the records in the Magistrate’s Court bears clear and uncontested evidence that the accident was due solely to the negligence of the 1st Defendant, the employee of the second Defendants. It could very well be that the Defendants are relying on the report of their so-called investigator. Such a report, the details of which has not been made known to this Court, would not in the my view, refute the evidence as contained in the records. There is no trialable case of contributory negligence in here. The end result is that the Defendants are unable to convince this Court that there are merits in the proposed defence. This ground must also fail.

4. Application to Set Aside
   

The Defendants had filed their application to set aside under Order 19 of the High Court Rules. Quite clearly, as Counsel for the Plaintiff submits, the application should have been made under Order 13. Order 19 is available only where, after notice of intention is filed, no statement of defence had followed. In situations where as in this case, the Defendants had failed to file in the first instance, notice of intention to defend, then Order 13 procedure is the correct process. In the Court’s view, the mistake is fundamental, which cannot be rectified simply by the use of the Court’s discretion.

Costs

Counsel for the Plaintiff submits that the Court awards costs on an indemnity basis. In support he argues that the application has no merit whatsoever and amounts to no more than gross abuse of the Court’s process.

There is every indication that the Defendants’ since the Assessment of Damages came before the Court on 28 November 2002, had done all they could to delay the hearing, or at any rate, of making the Plaintiff believe all along that the only outstanding issue was the quantum of damages. Counsel in the first instance, had indicated that the parties were amenable to settlement. Later the issue of medical report was raised together with the demand by Counsel for the Defendants for the Plaintiff to undergo medical examination by their own doctor in Suva. There followed adjournments by the Defendants’ Counsel, for reasons principally of non-availability of the Plaintiff’s medical report. The inordinate delays resulted in the Court finally ordering that the hearing of the Defendants’ Summons be brought across to Suva. Meanwhile, the Plaintiff, a 53 year old woman continues to wait for a hearing date. There does not seem to be any doubt that the actions of the Defendants amount to what appears to be a deliberate attempt to prolong and retard any progress towards the assessment of damages. While the Court generally is reluctant, except in exceptional cases, to award costs on an indemnity basis, in this instance, indemnity is more than justified.

The application is dismissed.

There will be costs of $1500.00 awarded on an indemnity basis. The costs to be paid within 14 days.

The assessment of damages is to be adjourned before the Labasa Deputy Registrar to fix an early date for hearing.

F. Jitoko
JUDGE

At Suva
5 April 2004