The plaintiff's Writ was served on the registered office of the appellppellant company at Rodwell Road, Suva on the 3rd of November 1993 and on 10th of November 1993 the appellant company appeared in the Labasa Magistrate, Court by counsel and was given 14 days to file a defence.
Thereafter the action was adjourned on no less than four (4) occasions over a period of four (4) months to allow the appellant company to file its defence, and on each occasion the appellant company was represented by counsel.
Still no defence was filed and on the 13th of April 1994 the plaintiff formally proved her claim in the absence of counsel for the appellant company, and judgment was entered in her favour
in the sum of $5,869.92 with costs of the action. This was later evidenced by a formal decree of the Labasa Magistrate Court issued on the 28th of April 1994.
Almost a year later on 1st March 1995 the plaintiff took out a Writ of FIFA in an effort to enforce the judgment against the appellant company.
On 5th May 1995 the solicitors acting for the appellant company filed a Motion in the Labasa Magistrate Court seeking various orders including a stay of execution and liberty to defend the plaintiff's claim.
The Motion(2) proposed Statements of Defence and two (2)(2) affidavits, one deposed by a Devendra Narayan, Finance Manager of Burns Philp (Fiji) Limited and the other, by Tarun Vikash Anand, Credit Controller of B.P.T. (South Sea) Company Limited. No affidavit was forthcoming from any senior official of the appellant company as one might have expected nor has there been any
attempt to cast any doubt upon the appellant company's congratulatory letter of 24th December 1991.
Be that as y, in a three (3) page ruling delivered by the trial magistrate on 16th August 1995, the appellant company's Motion was dismissed with costs. The appellant company's solicitors almost immediately gave Notice of Intention to Appeal against the ruling and a fortnight later the Grounds of Appeal were filed. On 25th October 1995 a stay of execution pending appeal was sought and this was granted on 21st December 1995 on condition that the appellant company deposit the judgment sum in court.
Before dealing with the learned trial magistrate's ruling however, it maobserved that no Noti>Notice of Intention to Defend was ever filed in the action by the appellant company (See: Order VI r.6 of the Magistrate Court Rules); nor was any application ever made within time by the appellant company, to be let in to defend the action (See: Order VI r.7); nor was a Statement of Defence ever filed by the appellant company despite being given 4 months in which to do so; nor was judgment entered by the plaintiff pursuant to Order VI r.8.
In these circumstances Order XXX r.5, Order XXXII r.11and even Order XXXIV r.3V r.3 of the Magistrate Court Rules, gives the learned trial magistrate a discretion to set aside the judgment upon 'sufficient cause (being) shown', and upon such terms as to the court may seem fit. (cf: Order 13 r.10 and Order 19 r.9 of the High Court Rules)
The learned trial magistrate in his ruling of the 16th August 1995 correctly sets out the principles that guide the exercise of the court's unfettered discretion when he wrote:
"In an application for getting a default judgment set aside there are severaeveral considerations that engage the attention
of the court viz. whether the defendant-applicant can give a satisfactory explanation for his absence from court, whether he has
a valid defence and whether any prejudice would be caused to the plaintiff respondent."
The learned trial magistrate then proceeded to deal with each point in turn and finally dismissed the appellant company's application
which he described as having 'no merit whatsoever'.
Learnunsel for the appellant company in arguing the appeal handed in a comprehensive fourteen (14) page written submission in which not a single reference was made to anything which was written by the learned trial magistrate in
the above-mentioned ruling.
Indeed the submission appears to have misconceived the nature of the appeal or this court's appellate powers in dealing with it in
so far as the submission ends with the following paragraph:
"We respectfully submit that this Honourable Court exet exercise its discretion in favour of the appellant and set aside the
default judgment in this matter in terms of the application of 11 May 1995."
I say at once that this Court in this appeal has no such 'discretion' in the matter nor is the appellant's application of 11th May 1995 before this Court for determination. This is not an application for the exercise of a concurrent discretion vested in this Court (cf: bail applications) but an appeal against the exercise of a judicial discretion vested in the trial magistrate.
In such an event Lord Wright said in Charles Osenton and Co.ohnston (1942) A42) A.C. 130 at p.148:
"(the) court starts with the presumption that the judge has has rightly exercised his discretion. It must be satisfied that
the exercise was wrong ... The appellate court must not reverse the judge's decision on a mere 'measuring cast' or on a bare balance
..."
In similar vein Griffiths L.J. said in Eagil Trust v. Pigott-Bru> (1985) 3 ALL E.R. E.R. 119 at p.121:
"..hould like to make one or two general observations observatervations about the Court's approach to appeals of this nature
from the exercise of a judge's discretion.
/b>
The House of Lords has in a series of recent decisdecisions reminded this court that its function is to review the exercise of the
judge's discretion and not to entertain an appeal from it in the sense of being invited to substitute its own discretion for that
of the judge ...
Obviously, where the court is developing a new discretioretionary jurisdiction ... there will inevitably in the early days be a number
of appeals to this court so that clear guidance can be given as to the principles on which a judge at first instance should exercise
his discretion. But, once those principles have been clearly settled, there is a heavy burden on an appellant to demonstrate to this
court that the judge has either failed to apply well-settled principles or, alternatively, that his discretion can be attacked on
what are colloquially known as 'Wednesday' grounds (see Associated Provincial Picture Houses Ltd. v. Wednesbury Corp [1947] EWCA Civ 1; [1947] 1 ALL ER 680, [1948] 1 KB 223).
"... have been clearly settled ..." by numerous decisions of the courts both locally and overseas. To cite but one example, McCarthy J. thirty (30) years ago in Paterson v. Wellington Kindergarten Inc. (1966) N.Z.L.R. 975 said at p.983:
ass=MsoNormal stal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> "In approaching an applic to set aside a judgment ..nt ... the Court is not limited in the considerations to which it may have
regard, but three have long been considered of dominant importance. This was accepted by the Chief Justice in the court below and
by all counsel in this Court. They are, 1. That the defendant has a substantial ground of defence; 2. That the delay is reasonably
explained; 3. That the plaintiff will not suffer irreparable injury if the judgment is set aside. 
