IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0108R OF 2003S

BETWEEN:

DAVID NILESHWAR PRASAD
PLAINTIFF

AND:

VIEWTECH SYSTEMS LIMITED formerly
known as ZAB HOLDINGS LIMITED
1ST DEFENDANT

AND:

AMBE CONSTRUCTIONS LIMITED
2ND DEFENDANT

Counsel for the Plaintiff: V. Kapadia: Sherani & Co.
Counsel for the 2nd Defendant: Ms S.S. Devan: G.P. Lala & Assoc.

Date of Ruling: 27.01.2006
Time of Ruling: 9.30 a.m.

RULING

This is the 2nd Defendant’s application to set aside a default judgment entered against it and a stay on its execution.

The facts of the case are briefly as follows. On 18 March 2003, the Plaintiff filed a Writ against the 1st Defendant claiming damages for injuries sustained at work and specifically for injuries the Plaintiff suffered from a collapsed scaffolding. The Plaintiff was employed by the 1st Defendant. Defence was filed on 14 May 2003. However, on 9 June 2003, the Plaintiff, successfully applied to enjoin the 2nd Defendant as a party and also to amend his statement of claim. Solicitors for the 2nd Defendant filed its acknowledgement of service on 28 July, 2003, but no defence was filed within the prescribed time. Judgment in default was subsequently entered by the Plaintiff on 1 September, 2003.

The factors to be considered or tests to be applied by the Court in deciding whether to grant or refuse an application to set aside a default judgment are set out in FNPF Board v. Shri Datt [1988] 34 FLR 67, namely,

(a)	whether the Defendant has a satisfactory explanation for his failure to enter an appearance or file defence;

(b)	whether the Defendant has a substantial ground of defence to the action; and

(c)	whether the Plaintiff will suffer irreparable harm if the judgement is set aside.

In respect of the delay to the filing of the defence, the Court notes that the affidavit by the Managing Director of the 2nd Defendant sets out the cause. I accept the explanation. On the other hand, the 2nd Defendant’s summons to set aside was made only 10 days following the entry of judgment, and it could not be said that there was any delay in the 2nd Defendants action in this regard.

The 2nd Defendant submits that it has an arguable defence and a draft statement of defence purporting to show its merit, is attached to its affidavit. The Court must be satisfied that the 2nd Defendant needs only to disclose an arguable or triable issue, and in an accident case it is enough if there is shown a triable issue on contributory negligence. In Burns v. Kondel [1971] 1 Lloyd’s Rep. 554, Lord Denning stated, at p.55:

“We all know that in the ordinary way the Court does not set aside a judgment in default unless there is an affidavit showing a defence on the merits. That does not mean that he Defendant must show a good defence on the merits. He need only show a defence which discloses an arguable or triable issue. In an accident case, it is sufficient if he shows that there is a triable issue of contributory negligence. A plea of contributory negligence, if successful, may reduce the damages greatly.”

The Fiji Court of Appeal in Wearsmart Textiles Limited v. General Machinery Hire Limited & Or. CA NO. 30/97 following the definition of “defence on the merits” in Alpine Bulk Transport Co. Inc. v. Saudi Eagle Shipping Co. Inc. [1986] 2 Lloyd’s Rep. 221, laid down the test as follows:

“It is not sufficient to show a merely “arguable” defence that would justify leave to defend under Order 14; it must both have “a real prospect of success” and “carry some degree of conviction.” The Court must form a provisional view of the probably outcome of the action.”

Clearly, the Wearsmart Textiles decision goes further than the test earlier enunciated by Lord Denning in Burns v. Kondel in defining what constitutes “merit” in a defence and insofar as the Wearsmart Textiles is our own FCA decision, it is binding on this Court. Lord Denning’s judgment however remains authority in accident cases where contributing negligence is put up as a defence.

In this instance the claim by the Plaintiff alleges negligence by the 2nd Defendant in the erection of scaffolding, used by the Plaintiff, the collapse of which, caused his injuries. The 2nd Defendant denies any negligence and in any case, it argues that the Plaintiff was guilty of contributing negligence. The Court is satisfied that the 2nd Defendant has met the threshold of an arguable or triable issue required of the defence, which it should allow to go to trial. Equally, the Wearsmart Textiles test is satisfied.

As to whether the Plaintiff is likely to suffer irreparable harm if judgment is set aside, I am satisfied from the evidence before me that he would not have suffered any greater deal of harm than he had already has or which cannot be satisfied by an award of costs.

Order is made for judgment to be set aside. I order costs to the Plaintiff, which is assessed at $350.00.

F. Jitoko
JUDGE

At Suva
27 January 2006