IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC 393 of 1999

BETWEEN:

PUBLIC EMPLOYEES UNION
Plaintiff

AND:

PELEKI LEWENIQILA
1st Defendant

BULEWA, SEMISI & ASSOCIATES
2nd Defendant

Counsel: Mr J. Flower for Plaintiff
Ms T. Jayatilleke for Defendants

Hearing: 18th November 1999
Judgment: 1st December 1999

JUDGMENT

This is an application to set aside judgment in default entered on 21st September 1999. The grounds of the application are that the judgment entered was irregular and that the Defendants have a meritorious defence which justifies a hearing.

By writ of summons filed on 20th August 1999, the Plaintiff claimed $99,488.00 with interest, from the First and Second Defendants for money that was allegedly diverted from the Plaintiff by the First Defendant (the former General Secretary of the Public Employees Union) to the trust account of the Second Defendant. The writ was served on the Defendants on 24th August, and 30th August 1999 respectively. Acknowledgment of Service of the writ was filed on 7th September 1999 for the First Defendant, and on the Second Defendant on 9th September 1999.

The Second Defendant filed a Statement of Defence on 22nd September 1999. No Defence was filed for the First Defendant. Search for Defence was filed on 22nd September 1999, and Judgment in Default of Defence was filed on 28th September 1999.

In support of the application to set aside Judgment, the affidavit of Mohammed Isaaq Khan, Law Clerk, states that the law firm of Messrs. Tamara and Associates received instructions from the First Defendant to oppose the claim on 3rd September. At paragraph 5 of his affidavit he states:

“That in process of gathering information and particulars the time limit for filing defence lapsed and according to our calculation the Plaintiff could only file Judgment in Default on or after 22nd September 1999 as we have filed an Acknowledgement of Service on 7th September 1999 and fourteen days finished on 21st September 1999.”

He states that on 22nd September 1999 the law firm tried to file Statement of Defence but was told that Judgment in Default had been entered on 21st September 1999.

The Statement of Defence annexed to the affidavit is economical in its terms. It reads:

“1.	That the First Defendant admits paragraphs 1, 2 and 3 of the Statement of Claim.

2.	That the First Defendant has no knowledge of paragraphs 4, 5 and 6 of the Statement of Claim.

3.	That the First Defendant denies paragraphs 7, 8, 9, 10, 11 and 12 of the Statement of Claim.

4.	That the First Defendant further says that the Plaintiff’s claim against him:

(a)	discloses no reasonable cause of action;

(b)	is scandalous, frivolous and vexatious;

(c)	is an abuse of the process of the court.”

The Defence appears to be a complete denial of the uplifting of Union dues, cheques, depositing of the cheques into the trust account of the Second Defendant, of the demands in writing issued by the Plaintiff, of conversion of the money, of failing to provide statements of account, and of placing the Plaintiffs in a position of hardship and prejudice.

In reply, the Plaintiff filed the affidavit of Filimone Banuve, sworn on 15th October 1999. He states that the affidavit of Mohammed Isaaq Khan is irregular because it is not specified on whose behalf the affidavit is sworn. He states that the Plaintiff’s solicitors had filed a Search for Defence on 22nd September, and Judgment by Default on 27th September 1999. He says that Judgment was regular, that the Statement of Defence fails to show a meritorious defence and that the application to set aside should be dismissed.

The application was heard on 18th November 1999. Ms T. Jayatilleke for the First Defendant and Mr. J. Flower for the Plaintiff, made submissions on the basis of the affidavit material filed.

The principles governing an application under Order 19 Rule 9 of the High Court Rules are those applicable to applications under Order 13 Rule 7 of the High Court Rules 1988. If the judgment was regular, there must be an affidavit of merits stating facts showing a defence on the merits (Alpine Bulk Transport Co. Inc. -v- Saudi, Eagle (1986) 2 Lloyds Rep 221.)

The reasons given by the Defendant for the delay are relevant, but do not transcend the requirement of a meritorious defence.

If the Defendant alleges that the judgment entered was irregular, Order 2, Rule 2 applies. That rule requires any irregularity to be specified in the summons or notice of motion. If the Court is satisfied that the judgment entered was irregular, it may set it aside, or vary it to address the irregularity (Armitage -v- Parsons (1908) 2 KB 410.)

In this case, the First Defendant says that judgment was irregular because it was entered prematurely. Order 12 Rule 4 of the High Court Rules 1988 provides that the time limited for acknowledging service is fourteen days after service of the writ. In this case the fourteen days ran from 24th August 1999. Acknowledgement of Service was filed within the fourteen days on 7th September 1999.

Order 18 Rule 2 of the High Court Rules 1988, provides that:

“(1) Subject to paragraph (2), a defendant who gives notice of intention to defend an action must, unless the Court gives leave to the contrary, serve a defence on the plaintiff before the expiration of 14 days after the time limited for acknowledgment of service of writ or after the statement of claim is served on him, whichever is the later.”

In this case, the time for filing Statement of Defence, lapsed on 21st September 1999. The Search for Defence was made on 22nd September 1999. I therefore see nothing irregular about the Search for Defence, or the judgment in default. Although the First Defendant’s counsel submits that the solicitors were only late by one day, that on its own does not render the judgment irregular. I also note that the alleged irregularity was not particularised in the Notice of Motion dated 23rd September.

I therefore must now consider the reason for the delay, and whether the Defendant has raised a meritorious defence. The reason given by Mohammed Isaaq Khan was that:

“.... in the process of gathering information and particulars the time limit for filing defence lapsed.”

Although the reason given for the delay appears lame, I accept that the Defendant was only late by one day, and that there has not been an unconscionable delay in filing defence.

However, the overriding consideration is whether there is a meritorious defence. It is not at all clear what the defence is. The Court is forced to draw inferences from the blanket denial at Paragraph 3 of the proposed defence (Annexure A to the affidavit of Mohammed Isaaq Khan). It is not clear whether the First Defendant’s defence is that he did not handle the cheques specified at paragraph 7 of the Statement of Claim, or whether he admits uplifting the cheques and denies misappropriating them. It is not clear whether he denies depositing the cheques in the trust account of the Second Defendant, or whether he admits depositing the cheques into the account and claims he had a right to do so. Furthermore the affidavit of Mohammed Isaaq does not state any facts which raise a defence, or refer to the circumstances of a defence at all.

Whilst counsel for the First Defendant submits that it is for the Plaintiff to prove the matters alleged in the Statement of Claim at the trial, the question for the purpose of this application is whether the Defendant has shown a meritorious defence which ought to be tried. A meritorious defence according to the Supreme Court Practice 1997 p.145, is whether the defence has a real prospect of success, and carries “some degree of conviction.” The Fiji Court of Appeal in Wearsmart Textiles Limited -v- General Machinery Hire Limited and Shareen Kumar Sharma Civil Appeal No. ABU0030/97S said:

“...... we subscribe to the White Book’s preferred view that “unless potentially credible affidavit evidence demonstrates a real likelihood that a defendant will succeed on fact no “real prospect of success” is shown and relief should be refused.”

Applying these principles to the proposed Statement of Defence of the First Defendant, I am unable to say that the defence has any prospect of success at all.

As such I refuse the application to set aside judgment in default. Costs of the Plaintiff are to be taxed if not agreed and paid by the First Defendant.

Nazhat Shameem
JUDGE

At Suva
24th November 1999