IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 50 of 2007L

BETWEEN:

MUKESH CHANDRA (father’s name Venkat Dass) of Korovuto, Nadi, Garment Worker
Plaintiff

AND:

SUNIL CHAND (father’s name Prem Chand) of Korovuto, Nadi, Driver
1st Defendant

AND:

SADA S. PADAIYACHI (father’s name not known to the Plaintiff) of Korovuto, Nadi
2nd Defendant

AND:

NAZIM HUSSEIN (father’s name not known to the Plaintiff) of Togo, Nadi
3rd Defendant

AND:

IMLESH KRISHNA (father’s name not known to the Plaintiff) of Clay Street, Nadi Town, Nadi
4th Defendant

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr. Babu Singh for the Plaintiff
Mr. Faiyaz Koya for the 4th Defendant

Solicitors: Babu Singh & Associates for the Plaintiff
 Koyas for the 4th Defendant

Date of Hearing: 19 August 2009
Date of Judgment: 10 September 2009

INTRODUCTION

[1]	This is the Fourth Defendant’s application under Order 47 of the High Court Rules 1988 to have his two motor vehicles released from the Magistrates Court. The vehicles were seized by the Magistrates Court Bailiff in satisfaction of a judgment in favour of the Plaintiff against the defendants.

[2]	The Fourth Defendant argues that he was not served with any of the Court documents so the default judgment and subsequent assessment of damages against him have been entered irregularly and unlawfully.

[3]	I agree with Mr Singh, Counsel for the Plaintiff, that all the grounds raised by the defendant in this application have been raised in past applications and dismissed so on that basis alone, this application too should be dismissed. However, I will give the defendant the benefit of doubt and consider his application from a different perspective this time round.

THE BACKGROUND

[4]	The Plaintiff in this case was a passenger in a van driven by the First Defendant, owned by the Second Defendant. This van collided with another car driven by the Third Defendant, allegedly owned by the Fourth Defendant. The two vehicles collided on 30 April 2005 and the Plaintiff was seriously injured. 

[5]	The Plaintiff filed his Writ of Summons and Statement of Claim on 19 February 2007 claiming damages for personal injuries alleging negligence of one or the other of the two drivers. The owners of the vehicles were sued on the basis that the drivers drove the vehicles as their agent or servant.

[6]	According to the Affidavit of Service filed on 2 July 2007, all the Defendants were served on 20, 21 and 26 June 2007. The Defendants did not file their Acknowledgements of Service or Defences within the required time so the Plaintiff entered default judgment on 3 September 2007 with damages and costs to be assessed (the “Default Judgment”). According to the Affidavit of Service, the Default Judgment was served on all the Defendants on 12 September 2007. The Notice for Assessment of Damages was issued by the Registry on 25 September 2007 for hearing on 26 October 2007. On 26 October 2007 only the Second Defendant appeared in person. The other defendants did not appear then and none of them appeared at the subsequent hearing. The matter was further adjourned until 8 May 2008, when Mr Justice Datt heard Counsel and entered judgment for the Plaintiff in the sum of $233,395 (the “Assessment of Damages”). A Writ of Fi Fa was issued out of this Court on 29 May 2008 directing the Sheriff to levy execution against the Fourth Defendant’s goods in satisfaction of the judgment. The Fourth Defendant says he came to know of the judgment when the Magistrates Court Bailiff came and seized one of his cars, CT291, on 6 June 2008. He then instructed his solicitors to file an application to set aside the default judgment. On 20 February 2009, Datt J dismissed the application and ordered that the Fourth Defendant pay the judgment sum within 21 days. His Lordship took the view that the Fourth Defendant’s application was misconceived and the proper course for him was to apply for leave to appeal and stay of execution pending appeal.

[7]	In respect of the Fourth Defendant’s disputing of service, I note that Datt J on 14 October 2008 ordered that the Fourth Defendant pay into Court within 14 days the sum of $5,000 to cover the Bailiff’s costs of attending Court to be cross examined by the defendant’s Counsel and that “if payment is not made within 14 days the matter shall proceed on the basis that the affidavit of service be fully admitted under Order 38 rule 1 by reading the same without cross examination and shall be admitted in evidence.” The same order was also confirmed on 17 November 2008. Counsel for the Fourth Defendant appeared on both occasions.

[8]	Mr Justice Datt’s Judgment on the Fourth Defendant’s application to set aside the Default Judgment, heard on 17 November 2008 and delivered on 20 February 2009, is relevant and I quote it here in its entirety:

1.	The plaintiff in this matter had filed a default judgment against the defendants on 3 September 2007. Thereafter the matter was listed before the Court for assessment of damages on 24 April 2008.

2.	The file records revealed that on 20th of June 2007 Ravindra Dube, a registered Bailiff deposed an affidavit stating that on 20 June 2007, 21 June 2007 and again on 26 June 2007 he personally served SUNI CHAND, and SADA S. PADAIYACHI at Korovuto, Nadi, NAZIM HUSSAIN at Mata Road, Nadi, and IMLESH CHANDRA at Malolo, Nadi, with copies of writ of summons, which appeared to him to have been regularly issued and was dated 19 February 2007.

3.	The affidavit of service was sworn on 28 June 2007, before DORSAMI NAIDU, a barrister and solicitor, Nadi which confirmed the service of the documents on the defendants.

4.	There was no defence filed by any of the parties to the proceedings. Thereafter the matter was listed for assessment of damages on 24 April 2008.

5.	On 8 May 2008, after hearing, judgment was entered in favour of the plaintiff against the defendants in the sum of $233,395.00.

6.	On 20 May 2008, the plaintiff sealed orders as stated above.

7.	On 14 June 2008, Messrs Pillay Naidu & Associates filed a notice of change of solicitors, together with an ex-parte Notice of Motion seeking stay of the judgment entered against the 4th defendant pending the hearing of the application for setting aside the judgment against the 4th defendant.

8.	The 4th defendant filed an affidavit in support of the application dated 11 June 2008 in which he claimed,

(a)	Firstly he was not served with the summons for hearing in 2007, and

(b)	Secondly, he claimed that on the date of accident, 30 April 2005, he had already sold the vehicle registration number AC 133 to one Salendra K. Singh on or about 24 January 2005.

(c)	He further claimed that he had provided the registration documents of the said motor vehicle to the purchaser, but admitted that he was still the registered owner of the vehicle on the date of the accident.

9.	The plaintiff raised the three arguments without any pleadings when the substantive matter was concluded on 8 May 2008.

10.	On 17 November 2008, Mr. Naidu made submissions on the basis that the 4th defendant was not served with the statement of claim and further on the date of the accident, the 4th defendant was not in possession of the said motor vehicle, and claimed that the said vehicle was sold to one Salendra K. Singh. He admitted that the 4th defendant remained the registered owner of the motor vehicle on the date of the accident.

11.	I find that the 4th defendant’s application to this Court was improperly filed, particularly after the judgment was entered against the 4th defendant, the only remedy for the 4th defendant was to lodge an appeal against the judgment, and to seek for stay orders and to submit evidence in order to seek new trial.

12.	In rejecting on this application, I had regard to the judgment in Shore Buses Ltd v Queensland Insurance Fiji Ltd CA No 475 of 2002, and I also took account of the remarks by his Honour Justice Jitoko, in State v Minister for Land and Mineral Resources and ex-parte Nivis Motors and Machinery Co. Ltd Judicial Review No HBJ 30 3D of 1997S. In addition, I referred to the judgment in Atul Kumar Ambalal Patel v Krishna Murti (unreported) civil action HBC 0225 99L (8 March 2000) wherein court stated as follows,

“Once successful, the litigant should not lightly be deprived of the fruits of his successful litigation, as explained in The Annot Lyle [1886] 11 PD, 114 at 116CA, which was considered by his Lordship the Honourable Justice Gates in Peter Ebsworth v Parkanson Pty Ltd [1997] CA No HBC 0157L.”

13.	In the circumstances, I am unable to consider that the 4th defendant is now entitled to seek a retrial after the judgment has been entered by the plaintiff against the defendants.

14.	It was clear in my opinion that the 4th defendant was entitled to lodge an appeal against the judgment entered against him on 8 May 2008, and was sealed on 20 May 2008. I further noted that the time for lodgment of appeal in this matter had expired; the 4th defendant may have made an application for leave to appeal out of time, if he desires to proceed in this case.

15.	Accordingly, the application is dismissed with cost to the plaintiff as agreed or assessed.

16.	I further order that the defendant pay the sum claimed in the judgment within 21 days from today.

FOURTH DEFENDANT’S CURRENT APPLICATION

[9].	The Fourth Defendant’s current application before me was filed on 10 June 2009 and seeks an order that motor vehicles with registration numbers CT291 and DM634 currently under seizure at the Nadi Magistrates Court be released to him forthwith. The application is supported by the defendant’s three affidavits filed on 30 March 2009, 8 April 2009 and 10 June 2009. His Counsel also filed written submissions. Mr Singh for the Plaintiff relied on his written submissions handed up on the day set for the hearing. Both Counsel did not see the need to make oral submissions and asked that I deliver judgment on the papers.

[10].	The Fourth Defendant’s main ground for attacking the default judgment is non service of the Writ and the Notice of Assessment. It seems to me that Datt J has adequately dealt with this issue in his judgment of 20 February 2009 and dismissed the ground.

[11].	In any event, even if I were able to consider it, I think that service has been proved and the defendant’s failure to attend at the Assessment of Damages has not been satisfactorily explained. Considerable time has lapsed. He has been complaining about not being served since June 2008 but has not taken any real steps to contradict that which has been sworn in the affidavit of service.

DEFENDANT’S APPLICATION IS FOR STAY OF EXECUTION

[12].	The Fourth Defendant’s current application is effectively, in my view, an application for a stay of execution pending appeal. I therefore apply the law that applies to such applications. I recently set out the law in Hawker Pacific Pty Ltd v Air Fiji Ltd [2009] FJHC 99; HBC576.2007 (3 April 2009):

“…the leading case on stay in Fiji is the Court of Appeal decision in: Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd [2005] FJCA 13; ABU0011.2004S (18 March 2005). At paragraph [7] the Court sets out the principles on stay applications:

"Principles on a stay application

[7] The principles to be applied on an application for stay pending appeal are conveniently summarised in the New Zealand text, McGechan on Procedure (2005):

"On a stay application the Court’s task is "carefully to weigh all of the factors in the balance between the right of a successful litigant to have the fruits of a judgment and the need to preserve the position in case the appeal is successful": Duncan v Osborne Building Ltd (1992) 6 PRNZ 85 (CA), at p 87.

The following non-comprehensive list of factors conventionally taken into account by a Court in considering a stay emerge from Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48, at p 50 and Area One Consortium Ltd v Treaty of Waitangi Fisheries Commission (1993) 7 PRNZ 200:

(a)	Whether, if no stay is granted, the applicant’s right of appeal will be rendered nugatory (this is not determinative). See Philip Morris (NZ) Ltd v Liggett & Myers Tobacco Co (NZ) Ltd [1977] 2 NZLR 41 (CA).

(b)	Whether the successful party will be injuriously affected by the stay.

(c)	The bona fides of the applicants as to the prosecution of the appeal.

(d)	The effect on third parties.

(e)	The novelty and importance of questions involved.

(f)	The public interest in the proceeding.

(g)	The overall balance of convenience and the status quo."

See also Lal & Ors v Kumar & Ors: Civil Action 213 of 1994.

[13].	It is my judgment that the determining factor here is the overall balance of convenience, in particular the likelihood of the Defendants successfully setting aside the Default Judgment and the subsequent Assessment of Damages, either in this Court or in the Court of Appeal if he pursues an appeal.

APPLICATION TO SET ASIDE

[14].	I accept Mr Koya’s submission that his client had a right under Order 35 rule 2(1) of the High Court Rules 1988 to apply to set aside the Default Judgment, putting aside whether the delay of more than seven days after judgment would disentitle him, and in this respect I respectfully differ from Datt J in holding in his judgment of 20 February 2009 that the only option open to the defendant is to appeal.

[15].	I have set out what I consider to be the law applicable to an O 35 application in Wati v Western Division Drainage Board [2009] FJHC 165; HBC332.2001L (18 August 2009):

“The law has been conveniently set out by Connors J in Rosedale Ltd v Kelly [2004] FJHC 429; HBC0323.1997L (11 June 2004):

"The issues for consideration by the court on an application to set aside the judgment entered after trial are set forth in Shocked and Another v Goldschmidt and Others [1998] 1 All E.R. 372. The leading judgment of the court was given by Leggatt LJ who said at page 377: -

"The cases about setting aside judgments fall into two main categories: (a) those in which judgment is given in default of appearance or pleadings or discovery, and (b) those in which judgment is given after a trial, albeit in the absence of the party who later applies to set aside. Different considerations apply to these two categories because in the second, unless deprived of the opportunity by mistake or accident or without fault on his part, the absent party has deliberately elected not to appear, and an adjudication on the merits has thereupon followed."

Jenkins LJ in Grimshaw v Dunbar [1953] 1 All E.R 350 at 355 said:

"...a party to an action is prima facie entitled to have it heard in his presence. He is entitled to dispute his opponent’s case and cross-examine his opponent’s witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. If by mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that the litigant who is accidentally absent should be allowed to come to the court and present his case, no doubt on suitable terms as to costs..."

Leggatt LJ in Shocked after considering the authorities then set out at p. 381 a series of propositions or "general indications" which are: -

"(1)	Where a party with notice of proceedings has disregarded the opportunity of appearing at and participating in the trial, he will normally be bound by the decision.

(2) 	Where judgment has been given after a trial it is the explanation for the absence of the absent party that is most important: unless the absence was not deliberate but was due to accident or mistake, the court will be unlikely to allow a rehearing.

(3) 	Where the setting aside of judgment would entail a complete retrial on matters of fact which have already been investigated by the court the application will not be granted unless there are very strong reasons for doing so.

(4) 	The court will not consider setting aside judgment regularly obtained unless the party applying enjoys real prospects of success.

(5) 	Delay in applying to set aside is relevant, particularly if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it.

(6) 	In considering justice between parties, the conduct of the person applying to set aside the judgment has to be considered: where he has failed to comply with orders of the court, the court will be less ready to exercise its discretion in his favour.

(7) 	A material consideration is whether the successful party would be prejudiced by the judgment being set aside, especially if he cannot be protected against the financial consequences.

(8) 	There is a public interest in there being an end to litigation and in not having the time of the court occupied by two trials, particularly if neither is short."

The Lord Justice then said that the predominant consideration is the reason why the party against whom judgment was given absented himself.

"It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case" – Rich J in Cameron v Cole 68 C.L.R. 571 at 589.

Most recently, the issue has been considered by the Supreme Court of New South Wales Court of Appeal in Murphy v Doman (as representative of the estate of Simpson (dec’d)) – unreported [2003] NSWCA 249 – 11 September 2003 where at paragraph 48 Handley JA said: -

"Taylor v Taylor [1979] 143 CLR 1 and Allesch v Maunz [2000] 203 CLR 172 are decisions to the same effect. They establish that where judgment had been given in the absence of a litigant who has been denied a hearing through no fault of his own and where his absence has been adequately explained, that litigant has a prima facie right to have that judgment set aside to permit a re-hearing on the merits."

Mr. Justice Handley whilst being a member of the New South Wales Court of Appeal is also a member of the Supreme Court of Fiji. 
Jurisdiction

It is submitted by the defendants that the 2nd plaintiff having made his application outside the time prescribed in Order 35 Rule 2 is precluded from effectively applying to the court for the relief sought.

The court has inherent jurisdiction to make the orders sought. Should confirmation of this be needed then it is supplied by Mason J. in Grimshaw v Dunbar where he said at page 16: -

"A jurisdiction to set aside its orders is inherent in every court unless displaced by statute. In my opinion the jurisdiction extends not only to the setting aside of judgments which have been obtained without service or notice to a party.... but to the setting aside of a default or ex-parte judgment obtained when the absence of the party is due to no fault on his part."

DEFENDANT’S ABSENCE NOT SATISFACTORILY EXPLAINED

[16].	This is a type (b) setting aside application and the defendant must satisfactorily explain why he did not appear. I think it is implicit in the judgment of Mr Justice Datt that His Lordship did not accept the defendant’s explanation that the reason he did not appear at the assessment hearing or file his defence was that he was not served with any of the Court papers. I too do not accept that the defendant was not served with the Writ or the Notice of Assessment. The bailiff filed affidavits confirming service on the defendant. The defendant was given an opportunity to cross examine the bailiff but appear to have not taken advantage of it. I do not accept that he has been truthful and I think Mr Justice Datt came to the same conclusion. I think he deliberately absented himself but only after he realised that he could not escape liability after his cars were seized that he took steps to defend the claim.

[17].	In so far as his claim that the vehicle was registered in his name but had been sold prior to the accident, he is not precluded from pursuing that person in separate proceedings for indemnity for any damages that he may have suffered as a result of the non registration of the transfer of ownership. The further delay that will result from joining that person in these proceedings now will prejudice the Plaintiff more than the defendant.

[18].	Therefore, as in this present application, the defendant would have failed in his application to set aside judgment had the learned trial Judge considered it as an application under O 35.

BASIS OF CLAIM AGAINST THE FOURTH DEFENDANT

[19].	I note that the Statement of Claim pleads in paragraph 12 that the "First Defendant" was driving but the "particulars" refer to the "Third Defendant". This is obviously and error. All references should be to the "Third Defendant". If leave to amend is required then this Court can do so under Orders 20 or 2 of the Rules or pursuant to its inherent jurisdiction. The Fourth Defendant is pleaded to be vicariously liable for the negligent driving of the Third Defendant. The Statement of Claim therefore clearly pleads the basis on which the Plaintiff claims against the Fourth Defendant 

[20].	In the final analysis, I think the justice of the case requires that I dismiss the Fourth Defendant’s application and allow the Plaintiff to continue with execution of his judgment.

COSTS

[21].	The Plaintiff having won, is entitled to his costs which I set at $800 to be paid within 21 days.

ORDERS

[22].	The Orders are therefore as follows:

(a)	The Fourth Defendant’s Notice of Motion filed on 10 June 2009 for the release of motor vehicles registration numbers CT291 and DM 634 to him is dismissed.

(b)	The said vehicles shall be sold forthwith in partial satisfaction of the Plaintiff’s Judgment delivered on 8 May 2008.

(c)	The Plaintiff is otherwise free to pursue execution of his Judgment.

(d)	The Fourth Defendant shall pay the Plaintiff’s costs of $800 within 21 days.

Sosefo Inoke
Judge