N2526

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 1424 OF 2002

WILLIAM DUMA
Plaintiff

AND:
YEHIURA HRIEHWAZI
First Defendant

AND:
PACIFIC STAR LIMITED trading as "THE NATIONAL"
Second Defendant

WAIGANI:	KANDAKASI, J.
2004:	11th February and 14th April

PRACTICE & PROCEDURE – Application seeking set aside of default judgment entered after declining application for extension of time to file and serve a defence out of time – Decision leading to default judgement subject of an appeal to the Supreme Court – No jurisdiction in National Court to entertain application - Application amounts to an abuse of the Court’s process – Application therefore declined.

PRACTICE & PROCEDURE – Application seeking to set aside regularly entered default judgement – Applicant failing to provide reasonable explanation for delay and disclose a defence on the merits - No improvement on attempt to provide explanation and disclosure of defence under previous application – Application declined.

PRACTICE & PROCEDURE – PLEADINGS – Pleading proposed defence to claim based on defamation by newspaper publication - Draft defence pleading fair comment, truthfulness and in the public interest – No particulars and basis for the proposed defence disclosed in affidavit material – Affidavit in support of application seeking to set aside default judgment must disclose facts and not arguments and or submissions and opinions - Application declined.

EVIDENCE –Use of Affidavits – Affidavits must set out facts and not arguments, submissions and or opinions – Arguments, submissions and opinions in an affidavit do not amount to facts.

Papua New Guinean Cases Cited:
Vivisio Seravo v. Jack Bahafo (Unreported judgement delivered on 21/03/01) N2078.
Provincial Government of North Solomons v. Pacific Architecture Pty Ltd [1992] PNGLR 145.
Leo Duque v. Avia Andrew Paru (Unreported judgment delivered on 18/10/96) SC510.
Curtain Brothers (Queensland) Pty Ltd & Kinhill Kramer Pty Ltd v. The State [1993] PNGLR 285.
Abiari v. The State [1990] PNGLR 250.
Philip James Mamun v. The State (Unreported judgement delivered on 27/03/97) SC532. Jimmy Ono v. The State (Unreported judgement delivered on 04/10/02) SC698.
Anderson Agiru v. The Electoral Commission and The Independent State of Papua New Guinea (Unreported judgement delivered on 24/06/02) SC687.
Christopher M Smith v. Ruma Constructions Ltd (Unreported judgement delivered on 11/10/02) SC695.
Andrew Baing & Anor v. PNG Stevedores Pty Limited & Anor (Unreported judgement delivered on 23/02/00) SC627.

Counsel:
Mr. B. Frizell for the Applicants/Defendants
Mr. Z. Dawidi for the Respondent/Plaintiff.

27th February 2004

KANDAKASI, J:	By notice of motion filed on 13th January 2004, the defendants are applying for a set aside of a default judgement entered against them on my orders made on 21st February 2003. That followed an unsuccessful application by the defendants for an extension of time to file and serve their defence out of time before me on the same date.

Prior to filing of the application before me now, the defendants filed an application to the Supreme Court for leave to lodge an appeal against the decision refusing their application for extension of time. A settlement of the index to the appeal book took place on 16th April 2003. Nothing further appears to have happened. This resulted in the plaintiff filing an application to dismiss the application for leave on 31st July 2003. No date was set for a hearing of the application seeking dismissal of the application for leave. Meanwhile, the defendants wrote to the Deputy Registrar of the Supreme Court on 26th August 2003, and asked her to place their application for leave on the call-over list. On 2nd September 2003, the parties appear to have attended upon the Deputy Registrar and obtained 12th of September 2003, as the date for a hearing of the application for leave.

On the 4th of September 2003, the plaintiff’s lawyers wrote to the defendants’ lawyers and indicated that they will object to the application for leave proceeding on the 12th of September 2003. They took that position as they wanted their client’s application seeking to dismiss the application for leave to be heard first, which was by then fixed for hearing on the 2nd of October 2003. On the 2nd of October 2003, the hearing of the motion for dismissal was vacated and the application was adjourned to the next call-over. The parties then entered into a number of correspondences on a date for a hearing of their respective applications. Finally the applications appear to have been listed for hearing on the 11th of December 2003 and a decision was reserved until the 18th of December 2003. The decision granted the application for leave to appeal, following which an appeal was lodged on 5th January 2004.

The Parties’ Arguments

At the outset of the hearing, the Court asked Mr. Frizelle of counsel for the defendant/applicants as to the propriety of his client’s application. The Court raised this, particularly in view of their pending Supreme Court appeal and in view of the fact that I signed the default judgement after having rejected an application by the defendants for an extension of time to file and serve their defence out of time. The defendants argue in effect that there is nothing wrong with their application and that they have no difficulty with me hearing it on its merits. Then in respect of the merits of their application, they argued that they have a reasonable explanation for the delay in filing their defence, that they have a good defence on the merits and a good explanation for the timing of their application.

The plaintiff on the other hand, argues for a dismissal of the application because it is an abuse of the Court’s process. On the merits of the application, he argues that, there is no reasonable explanation for the delay and the timing of the application and that the affidavits filed in support of the application do not disclose a defence on the merits. 

Issues

From these arguments, it is clear that the issues for me to consider and decide upon are these:

(a)	Whether it is an abuse of the Court’s process for the defendants to apply for a set aside of the default judgement given that:
(i)	the default judgment was entered after a failed application for leave to file and serve their defence out of time; and
(ii)	the defendants have lodged an appeal that is pending before the Supreme Court against the decision dismissing the leave application? and

(b)	Subject to an answer to the above question, have the defendants made out a case for a set aside of the default judgement?

Relevant Facts and Background

The relevant facts from which these issues and arguments arise are straightforward. The plaintiff filed his writ of summons on the 31st of October 2002 and served it on the defendants on the 1st of November 2002. Five days later on 6th November 2002, the defendants filed their unconditional notice of intention to defend and had it served on the plaintiff on 11th November 2002. Therefore, the defendants had until 15th December 2002, to file and serve their defence, but they failed to do that.

On 28th January 2003, the defendants filed a motion seeking leave of the Court to file and serve their defence out of time. That motion was fixed for hearing on 21st February 2003. The plaintiff also filed a motion seeking judgment in default of the defendant’s defence. That motion was fixed for hearing on 21st February 2003 as well. Both applications came before me on the date set and with the agreement of the parties, I heard the application of the defendants first and following a refusal of that application, I proceeded to hear the plaintiff’s application and granted it.

The only affidavit in support of the application for leave was by a Brian Gomez, which was very brief. It was in these terms:

"… I Brian Gomez, of P.O. Box 6817 Boroko National Capital District, Assistant General Manager Editorial, make oath and say as follows:-

1.	I am the assistant General Manager Editorial of the second defendant and am authorised by it to swear this affidavit.
2.	The first and second defendants (‘the defendants’) require longer than the time prescribed in which to file a defence to determine the facts relied upon in relation to the matter complained of that was published.
3.	The defendants have a good defence of the allegations a copy of which is annexed hereto and marked with the letter ‘A’."

I heard the arguments of the parties both for and against in full, in relation to the application for leave. I then held that, in the absence of any authority to the contrary, the principles applicable to an application for a set aside of a judgment in default with appropriate modification should apply to an application for leave to file and serve a defence out of time. For I was and am still of the firm view that, a satisfactory explanation must be provided for allowing prescribed time limits to expire. Such explanation should include a provision of evidence of steps meaningfully taken toward a filing of a defence but for the time limits. The explanations should come from the defendant and in the case of a company, a responsible person having knowledge of the relevant facts. I arrived at that view because, there is no provision in the rules or in any law that allows for an automatic extension of the time limits under the Rules of the Court. Instead, it is something that is within the jurisdiction and discretion of the Court to allow on a proper case made out for an extension of the time stipulations, to avoid unnecessary delays and costs to the parties and unnecessary waist of the Court’s limited judicial time.

Also, I was and am still of the view that, if a defendant is able to provide an explanation for allowing time to expire, that alone is not enough. He or she has a further obligation to demonstrate by appropriate evidence that he or she has a good defence on the merits, which warrants a hearing. The reason for this is again, the need to avoid unnecessary delays in a plaintiff getting to judgment, avoidance of unnecessary costs to the parties and wastage of the Court’s limited judicial time. 

Applying the above principles to the application before me, I found that the defendants did not provide a reasonable explanation for allowing the time limits for the filing of their defence to expire and that the affidavit in support did not disclose a defence on the merits. The draft defence attached to Mr. Gomez’s affidavit had no factual foundation for it. Hence, I concluded that without any factual foundation in the affidavit in support of the application, there could be no draft defence. The statement of facts in an affidavit from a defendant or a responsible person must disclose the basis for a draft defence. 

I alluded to the need to do that in Vivisio Seravo v. Jack Bahafo. I was then and now still persuaded by what the Supreme Court said in Provincial Government of North Solomons v. Pacific Architecture Pty Ltd. There the Supreme Court said at p.148:

"Disclosing a defence on the merits means that the applicant must produce to the court evidence that he has a prima facie defence … [and] ‘[a]an affidavit to be considered as showing a defence on the merits must set out statements of facts.’…

… [T]he defendant must ‘condescend upon particulars.’ It is not enough to swear ‘I say I owe the man nothing.’ Doubtless, if it is true, that you owed the man nothing, as you swear, that would be a good defence. But that is not enough. You must satisfy the Judge that there is reasonable ground for saying so."

The Supreme Court reaffirmed this in its subsequent judgement in Leo Duque v. Avia Andrew Paru, in these terms:

"It is clear to us from the authorities we have set out earlier in our judgment and subsequent cases in this jurisdiction that as a matter of practice, an applicant must in an affidavit state material fact showing a defence on the merits.

In the present case it was the responsibility of the appellant to state material facts showing a defence on the merits. As we have indicated before, the appellant filed an affidavit setting out the reasons why judgement was entered but he failed to state any facts which shows any defence on the merits. A proposed defence prepared by the lawyer is not capable of serving this purpose. The expression of opinion by the lawyer that there is good prospect of success can only amount to a legal opinion. It is not capable of raising the material facts."

In this case, following a refusal of the application for leave, the defendants did not argue against the plaintiff’s application for judgment in default of their defence. Accordingly, I ordered judgment in default against the defendants.

Now in support of the application before me, the defendants filed three affidavits. These are the affidavits by Brian Gomez, sworn on 7th November 2003, the first defendant, Yehiura Hriehwazily, sworn on 9th February 2004 and Bill Frizzell sworn on 10th February 2004. 

Mr. Frizzell’s affidavit gives a chronology of events and the steps taken after the entry of the default judgement. I have covered that in earlier part of this judgment so I need not repeat them. The affidavit of the first defendant is very brief, with only 5 paragraphs. The first paragraph describes himself as the first defendant. The rest of the paragraphs read:

"2.	That at all material times, I was in the employ of the Second Defendant as Editor of the National newspaper in which one of our journalist, Mr. Moresi Ruahma’a did attend at a press conference called by the National President of the PNG Maritime Workers Unions, Mr. John Mahuk at his office on 28th August 2002 in the National Capital District.
4.	At the said conference, Mr. Mahuk made statements which I reported in the National newspaper on or about 29th August 2002. These reports are now the subject of a defamation suit by the Plaintiff. The Second Defendant and I have a defence to those claims as provided for under the law (Defamation Act).
5.	I had no reason to believe what Mr. Mahuk said at the time was an inaccurate statement of the PNG Habours Board’s investment and other businesses.
6.	I believe I have a good defence and copy of it is annexed hereto and marked with the letter ‘A’."

The affidavit of Brian Gomez repeats what the first defendant says as well as the chronology of events deposed to by Mr. Frizzell. The only things he adds to are in paragraphs 5 to 10 and 19 to 24. These paragraphs read:

"5.	The plaintiff was at all material times the Chairman of the PNG Harbours Board appointed by the Minister pursuant to section 4(3) of the Harbours Board Act, Chapter No. 240 and responsible collectively with the other members of the Board in accordance with the Act.
6.	The article [the publication alleged by the plaintiff] refers, inter alia, to the investment of public monies.
7.	The second defendant is entitled as a matter of law pursuant to sections 8, 9, 10 of the Defamation Act (‘the Act’) to the defences in those sections.
8.	The facts giving rise to the article show that the publication was one to which the said sections of the Act applies.
9.	It will be a matter to be determined at the hearing whether section 10 of the Act applies. In addition the words complained of in paragraph 7 of the statement of claim merely identify the plaintiff but those words on their own have no imputation.
10.	I say that the fact is that the first and second defendants can make out their defence on the merits.

19.	The defendants published a daily newspaper. There are on a number of occasions allegations made in defamation against the defendants many months and sometimes more than a year after the publication of an article.
20.	The average number of articles in a daily publication would be more than fifty (50) and it often requires considerable time to ascertain the facts and circumstances giving rise to the article complained of.
21.	The reason for not making the application to set aside the default judgement immediately upon its issue was because the defendant/appellants have sought leave from the Supreme Court and if granted will pursue a ruling in respect of tests applicable to the extension of time in which to file a defence.
22.	There has been no prejudice to the position of the plaintiff to these proceedings as the first date fixed for hearing of the assessment of damages was 28th November 2003.
23.	The delay in filing of the defence in 2002 related to the inability of the second defendant to ascertain within the prescribed period the actual source of that part of the article published which has been complained of.
24.	Annexed hereto and marked with the letter ‘A’ is a copy of the Defence of the first and second defendants including relevant particulars not included in the defence annexed to my affidavit although part of the basis of the particulars required by Order 8 Rule 86 is contained in the article itself."

In my view, paragraphs 7 to 10 and 24 are not statements of fact but are arguments or submissions without the factual foundation for them. The law on what must be set out in an affidavit is clear. An affidavit must set out facts to the exclusion of any submissions on the law and or other arguments. For the whole purpose of using affidavits is to put relevant facts in a matter before the Court. This is restated in s. 34(1)(a) of the Evidence Act in these terms:

(1)	Subject to this section, in any legal proceedings before a tribunal to which this Division applies the tribunal may at any time order that—

(a)	a particular fact or facts may be proved by affidavit; …"
							(Emphasis supplied)

This is not surprising because only facts is what the Court is interested in and nothing else except where a person is called to give evidence as an expert, in which case he may be permitted to express an opinion. It is the function of the Court to draw such inferences and conclusions and to determine what is in issue between the parties based on the evidence or facts before it and not a party or a witness. Given this opinions, arguments and or the submissions amounting to a determination on the issue before the Court by witness are inadmissible evidence and are certainly not facts on which a Court can act. 
Paragraphs 19 to 21 and 23 of Mr. Gomez’s affidavit go into the timing of the application before me, while paragraph 22 speaks of no prejudice to the plaintiff. It is reasonable to infer from paragraphs 19 and 20 that the second defendant is not organised well. That is particularly in terms of keeping proper records of articles it publishes. This is particular so when it has received a number of allegations of defamation already. Based on that, the reasonable inference is that, because of the disorganization, it took the defendants more than the 44 days prescribed under the Rules of the Court for them to access their records.

From these affidavits, it is clear to me that there is no real improvement from the position the defendants were in when I declined their application for leave and followed by the signing of default judgment against them. In my view, the affidavits in support of the application now before me do not state facts disclosing a defence on the merits. All there is are arguments and submissions on what defence they have, which they claim per paragraph 10 of Mr. Gomez’s affidavit that they will be able to prove at a trial. But there is no disclosure of the fact relied on that will enable them to prove their proposed defence at trial, and even before that a possible defence in terms of the draft annexed to the affidavits of Mr. Gomez or the first defendant.

With the above in mind, I now proceed to consider the issues presented. I start that process with a look at the first issue first.

Whether the Application is an Abuse of the Court’s Process?

The question of whether or not there is an abuse of the Court’s process usually concerns the correct practice but more importantly the procedure adopted by a party to bring a matter to the Court’s attention. This requires in my view, an examination of what is before the Court, what has in fact happened and the events leading to it. It is therefore necessary to consider what happened in this case in the context of what is before the Court. 

What is before the Court is not a straightforward and usual application for a set aside of a regularly entered default judgment. Rather, as already noted, it is an application for a set aside of a default judgment entered with the knowledge but without the objection of the defendants after a failed application for leave by the defendants/applicants to file and serve their defence out of time.

Again as noted, I held in the context of the application for leave that, the principles that apply to an application for a set aside of a default judgement equally applies to an application for leave to file and serve a defence out of time. Then applying those principles, to the application then before me, I refused the application on being satisfied that, the requirements for disclosing a defence on the merits and a reasonable explanation for allowing the prescribed time limits for the filing of their defence to expire. 

By the present application, the defendants are in effect asking this Court to reconsider the very arguments and principles already considered and applied in the application for leave. This can only happen before the Supreme Court on appeal. There, the defendants will be entitled to a rehearing of the application but on the record. That means they will not be at any liberty to introduce any new evidence except based on "fresh evidence." Even that, would be on the basis of any such evidence meeting the test of the evidence not being available and could not be secured and tendered in the Court below. 

There is indeed an appeal against this Court’s decision on the leave application and that is pending before the Supreme Court. Hence, the application before this Court is a duplication of the appeal in effect. In so doing, the defendants are trying to have two bites at the cherry. I have no doubt in my mind that, this amounts to an abuse of this Court’s process. 

Where the Court finds that there is an abuse of its process, it has the power to stop it at any time by dismissing the process that amounts to an abuse of its process. For a variety of circumstances, both this Court and the Supreme Court have in fact exercised that power. An example of that by the Supreme Court is in Anderson Agiru v. The Electoral Commission & Anor. In that case, the Supreme Court reasoned as follows in dismissing the proceedings:

"From the history of the various proceedings instituted by the Appellant in both the National and Supreme Courts and the case law we have alluded to, there are no doubts in our minds that the application, the subject of this appeal, was an abuse of then process. The decision not to appeal to the Supreme Court against the order of the National Court refusing to grant leave under O.16 r.3 of the NCR but to make a double barrelled application directly to the Supreme Court under Constitution secs. 155(2)(b) and 155(4) was a calculated and deliberate choice by the Appellant. For him to then seek to obtain the same remedy eventually through an application under Constitution s. 57 cannot be permitted."

In the case before me, I find that the defendants made a deliberate decision to appeal to the Supreme Court and might add, rightly so procedurally and in terms of the jurisdiction of the Court. Further, I am of the view that, if the defendants are successful on the appeal, they could obtain leave to file and serve their defence out of time. The default judgment could consequently be set aside, which is the very relief sought in the application before me. The inevitable conclusion then is that application before me is an abuse of the Court’s process. I would therefore order a dismissal of the application for this reason.

There is a further reason to dismiss the application. That goes into the merits of the application, which is the subject of the second issue. I therefore, turn to that now.

Have the Defendants made out a case for a set aside of the default judgement?

The principles applicable to an application seeking a set aside of a default judgement are trite in this jurisdiction. The Supreme Court restated those principles in one of its recent judgment in Christopher M Smith v. Ruma Constructions Ltd. These principles require an applicant to satisfy the Court as to:

(1)	why it allowed judgment to go in default; 
(2)	a reasonable explanation for any delays in making the application; and
(3)	having a defence on the merits. 

Applying these principles to the present case, I ask the questions:

(1)	Have the defendants provided a reasonable explanation for allowing judgment to go in default?
(2)	Have the defendants provided a reasonable explanation for making this application almost a year after the entry of the default judgment? and
(3)	Have the defendants disclosed in their affidavits in support of the application, a possible defence on the merits?

Addressing the first question first, I note that the only explanation for allowing judgement to go in default is what paragraphs 19 and 20 of Brian Gomez’s affidavit state. In these paragraphs the deponent says, the defendants publish a daily newspaper in which they publish on average over 50 articles. As such, it takes considerable time to ascertain the facts and circumstances giving rise to an article. Then in respect of their publications, they receive on occasions a number of allegations of defamation. There is no indication in Brian Gomez’s affidavit or any other affidavit that, this was one case in which, considerable time was required to ascertain the facts and circumstances giving rise to the publication the subject of the claim against the defendants. 

One thing is however, very clear, the defendants have had a number of claims of defamation against them. It would therefore, be reasonable for them if they were responsible reporters or a publishers of a newspaper to keep records of the full details of and concerning any article they publish that has the potential of attracting a claim in defamation. This would as of necessity include the details of any inquiry or step they might have taken toward verifying the truth or otherwise of any article they wish to publish before actually publishing it. Then, when faced with an allegation of defamation, they would readily respond.

In the present case, there is no explanation as to whether they keep any such record. If so, there is no explanation as to why it would take more than 44 days, the period allowed under the Rules of the Court, or "a considerable time" to use their own words, to file and serve their defence. This is the only difference in the facts when contrasted with their failed leave application. Nevertheless, as already noted, the same issue arises again and the defendants have not made any significant improvement on the need to provide a reasonable explanation for allowing judgement to go in default. In these circumstances, I find that the defendants failed to provide a reasonable explanation for allowing the entry of the default judgment against them.

Turning now to the second question, I note that the defendants accept that they did not make the application now before me promptly. They were present at the time of the order for the default judgment against them on 21st February 2003. There has been a delay of over 10 months before the present application was filed on 13th January 2004. Based on the affidavits of Mr. Frizell and Mr. Gomez affidavits, the defendants argue that they took this period to pursue and to defend an application seeking to dismiss for want of prosecution their appeal against the decision on their leave application. 

The kind of explanation provided and the kind of steps taken are similar to what took place in the case of Christopher M Smith v. Ruma Constructions Ltd. Indeed I note that, the same law firm, Warner Shand Lawyers, through the same counsel Mr. Frizzell acted for the respondent. Accordingly, counsel had reason to be familiar with what they did for their client and what the Supreme Court said about them, by the time this matter required their attention.

In that case, the National Court entered summary judgement against the respondent in its absence. It therefore appealed to the Supreme Court against the judgment. There was some delay in prosecuting that appeal resulting in an application seeking to dismiss the appeal for want of prosecution. The Supreme Court declined that application and directed the appeal be progressed to a hearing. Subsequently, the respondent withdrew its appeal and sometime later applied for a set aside of the summary judgement. The National Court heard that application and granted it. That resulted in an appeal to the Supreme Court by the appellant. 

The Supreme Court held that the principles governing an application for a set aside of a default judgement equally applies to an application seeking to set aside an ex parte summary judgement. Then applying those principles to the case before it, the Supreme Court held that:

"the respondent cannot rely on the delay due to the appeal they were pursuing. That was the alternative avenue they had to the summary judgment. This amounted to nothing because the respondent discontinued the appeal."

The Supreme Court handed down its decision on 11th October 2002, well before the entry of the default judgment in these proceedings on 21st February 2003. It seems counsel for the defendants has not learnt any lesson from that judgment, resulting effectively in a repeat of the same kind of action displayed or taken in that case. The present case therefore, falls almost on all fours in relation the requirement now under consideration. Based on the reasons, the Supreme Court gave in the case cited, I remain unconvinced that the defendants have provided a reasonable explanation for the delay of over 10 months.

This now leaves me to consider to the final requirement that the defendants must meet, which is to disclose a defence on the merits. Of the three requirements, an applicant seeking a set aside of a default judgment must meet the requirement to disclose a defence on the merits is a very important one. The Supreme Court affirmatively stated this in Andrew Baing & Anor v. PNG Stevedores Pty Limited & Anor and Christopher M Smith v. Ruma Constructions Ltd. 

As noted already, only paragraphs 7 to 10 and 19 to 24 of Mr. Gomez’s affidavit touch on the defendant’s defence. However, as also noted already, these parts of Mr. Gomez’s affidavit and the relevant parts of the other affidavits are not statements of fact but are arguments or submissions without the factual foundation for them. This is against the law and the purposes for allowing the use of affidavits as stated in s. 34(1)(a) of the Evidence Act and elaborated by the case law on the subject.

These affidavits needed to state facts that include for example the kind of inquiry the defendants carried out as a responsible newspaper and journalists and or editors to verify the accuracy of the statement. There is no reference to any attempt at seeking any comments from the plaintiff or otherwise verify the truth of the matters published before going into print and publishing. Clearly, the publication was of public interest but that did not give them or anybody else the license to publish it without first ensuring that the claim was truthful and accurate. It was incumbent upon the defendants to ensure what they proposed to publish was truth and accurate, especially when they have had a number of defamation claims lodged against them already. They have simply failed to state facts demonstrating that they did for example had the claims verified with the plaintiff or any other person in possession of the relevant facts for a balanced and fair reporting.

Further, the draft defence admits the publication but pleads that, the contents of the publication were true and that it was for the public benefit. They also plead further or in the alternative that, the publication was fair and made in good faith. It then purports to give particulars of the fair comment and publishing in good faith. It does so by repeating effectively that, the publication was true, fair and in the public interest but does not disclose the factual basis these claims.

Order 8 r. 86 of the Rules of the Court is clear and specific. This provision obligates a defendant to an action for defamation that claims, fair comment, truth and for the benefit of the public to specify the "basis" for claiming that. This is important because, it brings into play the provisions of O. 8 r. 87. That in turn is necessary to enable the Court and the parties to know what exactly is in issue between the parties, before the action proceeds to a trial. So even if I were to only consider the draft defence to determine whether a defence on the merits has been disclosed, I cannot be satisfied that there is a defence on the merits without knowing the basis for the defendant’s claim that, their publication was fair comment, true and for the benefit of the public.

For these reasons, I am not satisfied that the defendants have disclosed in their affidavits in support a defence on the merits. As already noted, there is no real improvement from the position the defendants were in when I declined their leave application. 

Even if I was wrong in arriving at the above conclusion, that would be of no benefit to the defendants. The reason for this is simple. In the context of the application for leave to file and serve their defence out of time, I considered the question of whether or not the defendants disclosed a defence on the merits. As the affidavit did not state any statement of facts that disclosed a defence on the merits, from which a draft defence could be arrived at, I held that no defence on the merits were disclosed. The present application invites this Court to reconsider the same question and in so doing, in effect review my own decision.

If the position, at least procedurally was not clear, the Supreme Court judgement in Christopher M Smith v. Ruma Constructions Ltd made it clear at pp. 6 and 12 in these terms:

"The approach taken by the trial judge with respect is fundamentally wrong. In essence the learned trial judge reviewed the decision of Woods J. The trial judge had no jurisdiction to do this under an application to set aside judgement under O 12 r 8 of the Rules. This power belongs to the Supreme Court under the Supreme Court Act or s 155 (2) (b) of the Constitution." 
…
"The learned trial judge with the greatest respect did no address this point in his deliberations and more importantly his judgement. In my view, the National Court was without any jurisdiction to entertain any application questioning the summary judgment after this Court had ruled that the summary judgement was final and that the respondent should pursue its appeal."

In the case before it, even though the Supreme Court was satisfied that the respondent did disclose a defence on the merits, the Court was nevertheless of the view that the respondent was not at any liberty to bring the application seeking to set aside the summary judgement. This was particularly so after the respondent chose to seek and did in fact obtain leave to pursue an appeal against the decision. That is exactly the situation before me in this application. The defendants successfully applied to the Supreme Court to lodge an appeal against my decision in the earlier application for leave. Consequently, they lodged an appeal to the Supreme Court, which is now pending, before that Court. In these circumstances, this Court has no jurisdiction to deal with the matter, even if, I was satisfied that the defendants have disclosed a defence on the merits.

For these reasons, I find that the defendants have not made out a case for a set aside of the default judgement entered against them on the 21st of February 2003. I therefore order a dismissal of the application with costs against the defendants.
_______________________________________________________________________
Lawyers for the Plaintiff:				Kassman Lawyers
Lawyers for the Defendants:				Warner Shand Lawyers