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Evans v Shah Investment Ltd [2005] FJHC 605; HBC0325.2002 (18 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0325 OF 2002

BETWEEN:

ROBERT RAICKEN PATRICK EVANS
PLAINTIFF

AND:

SHAH INVESTMENT LIMITED
DEFENDANT

Mr I Khan for the Plaintiff
Mr V Naidu for the Defendant

Date of Hearing: 24 June 2005
Dates of Submissions: 15 July, 29 July and 5 August 2005
Date of Ruling: 18 August 2005

INTERLOCUTORY RULING OF FINNIGAN J

The Defendant has applied to set aside a default judgment.

The Plaintiff commenced his action on 9 October 2002. He claimed he had been injured by the negligence of the Defendant and sought damages and other remedies. Service that may have been satisfactory was proved. By 12 November 2002 the Defendant had filed no acknowledgement of service and no statement of defence and judgment was entered for the Plaintiff by default. The judgment was that “the Defendant do pay the Plaintiff special and general damages interest and costs to be assessed”. The default judgment was served on the Defendant in the same manner as service of the writ of summons on 14 November 2002. The Defendant still took no action. It was not until the Defendant was served in the same way with the summons for the hearing for assessment of remedies that it finally took a step in the matter. It filed this application.

Its excuse in an affidavit by one of its Directors was that after he received the writ, on a date which he does not specify, he instructed the Defendant’s present solicitors to file an acknowledgment of service and statement of defence and was advised “that Insurers of the Defendant Company usually defended this type of claims and therefore the company’s insurers would be filing the Acknowledgment of Service and Statement of Defence”. The deponent of the Defendant’s affidavit then goes on to day “that I was in the process of liaising with my insurers with respect to the said claim”, again no date. He annexed to the affidavit a copy of the proposed statement of defence. The proposed defence is almost entirely denials and admissions. It comes to life when it pleads that the Plaintiff’s injuries were caused and/or were contributed to by the Plaintiff’s own negligence. These are all claims that the Plaintiff (a child of 8) should have known that he was likely to be electrocuted if he “ventured into unauthorized places of work”, and that he failed to take any reasonable care for his own safety.

While being a strong proponent of a defence right in appropriate cases to plead mere denials by way of defence and thus put a Plaintiff to proof I am bound to set a higher standard in applications of this sort. Counsel referred me to plenty of authorities and the principles accepted by both Counsel require me to be satisfied that the Defendant has a defence on the merits. In his affidavit the defence deponent claims it has. In its statement of defence it does not reveal one. Mere denials are not a defence on the merits. On the merits the application to set aside the default judgment must fail.

Counsel for the Defendant however has asked me to grant the application on the ground that the cause of action is in tort and that judgment by default is therefore irregular. He submits accordingly that the Defendant is entitled ex debito justitiae. He provided no authority for this proposition. Counsel for the Plaintiff did not even refer to it in his reply. I am aware of a distinction between tort and contract in applications of this sort. I am sure however that both Counsel are aware of the large number of tort actions in this Court in which judgment in liability has been given by default. I reject this submission.

Counsel for the Defendant provided a translation/definition of ex debito justitiae from R –v – Richman Confirming Authority (1921) 1 KB 248. It means “as of right”. From Isaacs –v- Roberts San P 103 D a citation with which I am not familiar he argued that a default judgment which attracts this principle is a default judgment that has been obtained in breach of natural justice. I give that full consideration and take it fully into account in the present case.

Counsel went on to argue that the default judgment is irregular because under Order 19 Rule 3 of the High Court Rules its should have been entered by interlocutory judgment and not by default and affidavits should have been filed so that the Defendant was a party and able to object to the entry of interlocutory judgment.

Counsel then argued that the default judgment had been for an unliquidated demand and provided me with definitions of “liquidated” and “unliquidated”. I need to point out only that the judgment entered is a judgment in liability. The damages are still only a claim. They are unliquidated and the Court will require proof at a hearing before considering its judgment.

Counsel then argued that one of the reasons for the delay in filing a defence [he meant failure to file any defence] was “that the Defendant relied on its insurers as such claims are usually defended by the insurance companies”. This is not quite what the deponent said in his affidavit. I have set out his deposition above.

Counsel then asked me to consider setting aside the judgment under Order 19 Rule 9 of the High Court Rules after taking account of (a) the reasons for the delay (b) any prejudice to the Plaintiff if he has to go to trial and (c) whether there is a triable issue. In this area of his submissions Counsel is on firmer ground. I have considered his submissions and the authorities he has cited but (i) I remain utterly unimpressed by the reasons for the delay, (ii) I remain completely uninformed by the proposed Statement of Defence and (iii) thus fail to see how the Defendant has raised a triable issue as to liability.

In my opinion from the time this writ was filed until the date of this judgment the Defendant has taken no action and shown no fact or any principle which in natural justice entitles him to be let into defend the action. Its application to set aside the default judgment is refused.

I fix costs for the Plaintiff at $300.00.

D.D Finnigan
JUDGE

At Lautoka
18 August 2005