IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 248 of 2008L

BETWEEN:

NELENE DE BEER
Plaintiff

AND:

REGINALD RONALD RAFFE
1st Defendant

AND:

PLANTATION VILLAGE LIMITED
2nd Defendant

AND:

ILIESA TUINIKUTU
3rd Defendant

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr F Haniff
Ms R Fifita

Solicitors: Munro Leys for the Plaintiff
G P Lala & Assocs. for the Defendants

Date of Hearing: 13 October 2009
Date of Judgment: 22 December 2009

INTRODUCTION

[1] This is the Defendants’ application to set aside a Judgement in default of Defence entered on 21 January 2009.

[2] The Summons filed on 30 January 2009 says the application is made pursuant to O 19 r 9 of the High Court Rules 1988 and the inherent jurisdiction.

[3] Judgment was to be delivered on 15 December 2009 but Cyclone Mik struck the day before so delivery of this Judgment was delayed for a week.

THE CLAIM

[4] The Writ of Summons and Statement of Claim filed on 17 November 2008 is for damages for personal injuries. The Plaintiff, a visiting tourist, was snorkeling at about midday on 23 July 2007 in waist deep water in front of their “bure” at Plantation Island. She was struck on the head by an outboard motor on a boat driven by the Third Defendant who is employed by the First and/or Second Defendants. The boat belonged to the Plantation Island Resort and Plantation Village Resort (the “Resort”). The Resort is owned by the First and/or the Second Defendants. She suffered severe injuries.

CASE HISTORY

[5] The Writ, Statement of Claim and Acknowledgment of Service were served on the First Defendant on 20 November 2009. The Acknowledgment of Service on behalf of all the defendants was filed on 12 December 2008 by Krishna & Co as solicitors for the “Defendants”. No Defence having been filed, the Plaintiffs solicitors entered Default Judgment on 21 January 2009 (the “Default Judgment”).

[6] On 28 January 2009, the Plaintiffs solicitors filed a Notice of Assessment of Damages to be returned before the Master on 13 February and served it on Krishna & Co on the same day.

[7] Two days later on 30 January 2009, G P Lala & Associates filed a Notice of Change of solicitors that they are now acting for the First and Second Defendants only. They also filed another Acknowledgment of Service on those Defendants’ behalf on the same day and the Summons and Affidavit in Support for this application. The Summons was to be before the Master on 13 February as the Notice of Assessment of Damages. On 26 June 2009 I gave leave for Krishna & Co to withdraw as solicitors for the Third Defendant on the grounds that their instructions to act had been terminated by the insurers for the First Defendant. A further Notice of Change of Solicitors for the Third Defendant was subsequently filed on 14 July 2009.

IS THE DEFAULT JUDGMENT REGULARLY ENTERED?

[8] In this case, O 18 r 2(1) of the High Court Rules 1988 required the Defendants to serve their Defence before the expiration of 14 days after the time limited for acknowledgment of service. The time limited for acknowledgment of service is 14 days after service of the Writ, including the day of service: O 12 r 4(a). Thus the Defence had to be filed within 28 days of service of the Writ, i.e., 28 days from 20 November 2008. The deadline was therefore 11 December 2008. No Defence having been filed Default Judgment was entered on 21 January 2009.

THE LAW

[9] The law is well settled. Where the Judgment is regularly entered, the Defendant must show a defence on the merits. I recently referred to the case law in my judgment in Khan v Native Land Trust Board [2009] FJHC 216; HBC198.2006L (23 September 2009):

[13] This is a type (a) application to set aside according to the leading case of Shocked v Goldschmidt [1998] 1 All E R 372. That case dealt with setting aside of a judgment delivered after a hearing on the merits in the absence of the defendant so the principles there enunciated are of limited assistance in this case.

[14] In BW Holdings Ltd v Graham Eden and Associates Ltd [2002] FJCA 66; ABU0027U.2000S (16 August 2002), a case similar to this, the Court of Appeal set out the applicable law as follows:

"The granting of leave to come in and defend an action is discretionary. At the end of a 9 page careful examination of the arguments advanced by counsel for the parties the Resident Magistrate came to the conclusion that the Company was not advancing a bona fide defence giving rise to triable issues. I agree."

The Resident Magistrate dealt with this issue in these terms:

"The judgment being regular the defendant was required to show a defence on merits. The central requirement for the applicant to satisfy the court by evidence is that the defendant has a good defence on the merits. That the defendant has put forward a bona fide defence giving rise to triable issues....The affidavit material presented does not disclose a defence on the merits....The onus at all times was on the defendant to establish sufficient cause. They have not shown sufficient cause for the exercise of discretion in their favour."

[15] Similarly, in Evans v Bartlam [1937] 2 All E R 646, a decision of the House of Lords, where judgment in default of appearance was sought to be set aside, Lord Wright, at p 656, said this:

"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 pass a judgment on which there has been no proper adjudication...

He clearly shows an issue which the court should try. He has been guilty of no laches in making the application to set aside the default judgment, though as Atwood v Chichester (1878) 3 QBD 722 and other cases show, the court, while considering delay, has been lenient in excluding applications 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."

DEFENCE ON THE MERITS

[10] A copy of the Defence was annexed to the Supporting affidavit. The Defence denies negligence and pleads that it was the Plaintiffs fault for swimming outside the float beyond which no one was allowed to swim. It also says that the Plaintiff was given good medical care at the Resort.

[11] Mr Haniff argued that annexure alone is insufficient for current purposes because the affidavit neither adopts nor verifies the facts upon which it relies on for the defence. With respect, I do not agree. Annexure of the affidavit with a statement to the effect that the Defendants have a defence and counter claim as per the annexure implicitly, if not expressly, indicates that the facts relied upon are as pleaded in the annexure.

[12] Although the Defence may be lacking in particulars I think there is a defence on the merits on liability. The Plaintiff has the onus of proving quantum and that of course will have to wait for an open trial.

[13] There is also the possibility of contributory negligence by the Plaintiff.

NO LACHES

[14] I accept the Defendants explanation that the delay in filing their Defence was due to ineffective communication between their insurers and their solicitors. I do not think that they have been slow in bringing this application.

[15] On the contrary, I think the Plaintiffs solicitors acted precipitously in entering Judgment. Although there is no legal requirement to alert the other party to the default, I think, as a matter of professional courtesy and responsibility, the Defendants solicitors should have been reminded first before proceeding to default judgment. I do not think that it is inconsistent with the solicitor’s duty to his client. In saying this I am fully aware of the statements of the Court of Appeal in Wearsmart Textiles Ltd v General Machinery Hire Ltd [1998] FJCA 26; Abu0030u.97s (29 May 1998) that there is no such rule. However, I think it is a matter which I can take into account when considering costs and the overall justice of a case such as this where there is, in my view, a defence on the merits. Costs would have been saved and the delay in having the judgment set aside would have been avoided and the matter got ready for hearing sooner rather than later. This type of litigation by surprise, in my view, should be discouraged, especially now when this Court’s time table to hear cases is fully booked for next year.

[16] The Defendants are therefore allowed to defend. They must file their Defence by 29 January 2010. The matter will then take its normal course.

COSTS

[17] As I have said, I think the Plaintiffs solicitors acted precipitously. This application may not have been necessary. However, I do not think the Plaintiff herself should be paying for the costs of this application. The Defendants have not been entirely free of blame. I therefore make no order as to costs.

ORDERS

[18] The Orders are therefore:

1. The application filed on 30 January 2009 is allowed.

2. The Default Judgment of 21 January 2009 is set aside.

3. The Defendants shall file their Defences by 29 January 2010 and the matter shall thereafter take its normal course.

4. There is no order as to costs.

Sosefo Inoke
Judge