IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL APPEAL NO. 13 OF 2005

NO. 28 OF 2007

BETWEEN

EMPEROR GOLD MINING COMPANY LIMITED
Appellant
(Original Respondent)

AND

THE LABOUR OFFICER
Respondent
(Original Applicant)

Appearances: A. K. Lawyers for the appellant
Office of the Solicitor General for the respondent

Date of Hearing: 2 February 2007
Date of Decision: 16 February 2007

Decision

[1] This is an appeal against a decision of a Magistrate in which the Magistrate dismissed the appellants application to set aside the judgment in favour of the respondent delivered on 30 March 2004.

[2] There are six grounds of appeal stated in the Notice of Appeal.

Ground 1: The learned trial Magistrate failed to properly and/or adequately apply the correct principles in the hearing of an application to set aside

[3] Counsel for the appellant submitted that the learned Magistrate not only erred in law in failing to consider that the proposed defense/answer to the claim had substantial merit, he also exercised his discretion in a manner that did not take into consideration the whole of the evidence before him, nor the injustice if the judgment is allowed to remain.

[4] The triable issues contended were that:

(i) the cause of death of the deceased was not work related

(ii) the appellant had already paid to the deceased’s widow a sum of $24,000.00 under an insurance scheme set up to cover the death of employees and possibly claims under the Workmen’s Compensation Act.

[5] The facts in the supporting affidavit supporting the proposed defence were:

(i) a medical opinion by a cardiologist, Dr. Bakani concluding that the deceased’s death was not work related, and

(ii) evidence of payment of $24,000.00 to the respondent.

[6] Counsel for the respondent contends that the fact that Dr. Bakani’s opinion was only sought after the default judgment was entered raises an issue as to its credibility/probative value and as such does not raise a triable issue. It was submitted that there is no defence on the merits and Dr. Bakani’s report is designed to stall the process.

Considerations which should exercise the mind of an appellate court

[7] I am mindful that this court should be slow to interfere where a Magistrate has decided a matter in the exercise of his or her discretion. However if the circumstances so demand, I must be prepared to examine anew the relevant facts and circumstances in order to exercise a discretion by way of review which may support, reverse or vary the order made by the Magistrate.

[8] The considerations which should exercise the mind of an appellate court called upon to review the order of a judge refusing to set aside a default judgment were stated in Evans -v- Bartlam [1973] A.C. 473 where Lord Wright at page 489 said:

"In a case like the present there is a judgment which, though by default, is a regular judgment, and the applicant must show grounds why the discretion to set it aside should be exercised in his favour. The primary consideration is whether he has merits to which the Court should pay heed; if merits are shown the Court will not prima facie desire to let a judgment pass on which there has been no proper adjudication. This point was emphasized in Watt –v- Barnett 3 Q.B.D. 363 

He has been guilty of no laches in making the application to set aside the default judgment, though as Atwood –v- Chichester, 3 Q.B.D. 722 and other cases show, the Court, while considering delay, have been lenient in excluding applicants on that ground. The Court might also have regard to the applicant’s explanation why he neglected to appear after being served, though as a rule his fault (if any) in that respect can be sufficiently punished by the terms as to costs or otherwise which the Court in its discretion is empowered by the rule to impose. The appellant here has an explanation, the truth of which is indeed denied by the respondent, but at this stage I see no reason why he should be disbelieved on what appears to me to be a mere conflict on affidavits." 

[9] In the present case, although the learned Magistrate correctly stated the relevant principles to be considered on page 5 of his ruling, he failed to correctly apply those principles and did not properly consider all of those matters necessary to be considered before exercising his discretion. 

[10] The appellant had led credible evidence on oath which if accepted could amount to a defence on the merits to the claim. The appellant’s affidavits in support stated the facts that prima facie was a defence to the facts pleaded in the claim. Those affidavits set out the facts of what amounts to a prima facie defence on the merits. The learned Magistrate concluded that those facts and the evidence proffered ought to have been advanced when the claim was heard, essentially defeating the appellants application to be heard, notwithstanding its absence at the hearing. In my view there were clearly triable issues raised in the appellant’s application which if decided in the appellants favour would have provided it a substantial defence on merits. Failure to consider these facts by dismissing them as having come too late in the day, so to speak, has led the learned Magistrate to exercise his discretion wrongly. It was open to him to set aside the judgment on terms. The appellant could have been ordered to pay costs to-date as a condition of setting aside the judgment given that it’s failure to enter an appearance was due to it’s own carelessness for which the respondent ought not be prejudiced by costs incurred in prosecuting the claim in the appellant’s absence.

[11] As observed by Lord Atkins in Evans –v- Bartlam  the principle on which the courts act in such cases is:-

" …………… that unless and until the court has pronounced judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure."

Prejudice and delay

[12] The deceased Rajen Kumar, died on 30 November 1997. The Workmen’s Compensation claim was filed more than five years later, in May 2003. The respondent must bear the responsibility for the pr ejudice claimed as a result of the delay. From the time the appellant became aware of the judgment, the Magistrates Court record shows it acted promptly in the steps taken to be heard.

[13] I have declined the submission to take judicial notice of media reports concerning the appellant’s standing in Fiji. The appellants status has not been clearly established. Evidence of this is necessary. Media reports do not suffice.

Conclusion

[14] I uphold the first ground of appeal. It is unnecessary to consider the other grounds. I uphold the appeal and set aside the judgment of the Magistrate’s Court of 30 March 2004 sealed on 6 April 2004 on condition that the appellant pays the respondent costs thrown away as a result of it’s failure to enter an appearance to the claim. I summarily assess costs payable in the sum of $400.00 which is to be paid within 28 days. I also order that the file be transferred to the Ba Magistrates Court for re-hearing of the claim for the reasons set out in the respondent’s submissions in this regard. The appellant is to file its answer to the claim within 14 days of receipt of the notice of adjourned hearing from the Ba Magistrates Court.

Gwen Phillips
JUDGE

At Lautoka
16 February 2007