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Devi v Anthony [2001] FJHC 171; HBA7.2000 (12 January 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL NO. HBA 7 OF 2000

BETWEEN:

SAJILA DEVI
Appellant/Defendant

AND

PATRICK ANTHONY
Respondent/Plaintiff

Raman Singh for the Appellant
R. Prasad for the Respondent

Dates of Hearing: 8th June, 27th September 2000
Date of Judgment: 12th January 2001

JUDGMENT

This is an appeal from a decision of the First Class Magistrate's Court at Suva on the 9th of March 1999 by which the Appellant was ordered to pay the Respondent the sum of $6,615.00 plus costs. On the 14th of July 1999 a Formal Decree was entered in favour of the Respondent for a total amount of $6,684.50, the additional $69.50 being for costs.

The Defendant now appeals against that Decree on two grounds which I summarise thus:

(1) The Learned Trial Magistrate erred in law in failing to exercise her discretion in favour of the Appellant on a Motion to set aside judgment when there was evidence explaining the circumstances relating to the attempted filing of a Statement of Defence which disclosed a defence on the merits.

(2) The Learned Trial Magistrate erred in law in failing to consider that the formal proof date was changed to an earlier date without notice to the Appellant.

The undisputed facts are that on the 30th of November 1998 the Defendant issued a Summons in the Magistrate's Court claiming the sum of $6,615.00 owing by the Defendant to the Plaintiff for moneys lent to the Defendant.

A request for further and better particulars of the claim was delivered to the Plaintiff's solicitors and these were duly supplied on the 11th of January 1999.

On the 26th of February 1999 the Magistrate fixed the date of formal proof to be on the 21st of April 1999.

On 9th March 1999, contrary to her order of the 26th of February, the Magistrate heard the Plaintiff's claim in the absence of the Defendant or her counsel and made an order in favour of the Plaintiff for the sum of $6,615.00 plus endorsed costs.

The Defendant alleges, and I am satisfied, that the Magistrate's Court did not give any notice to the Defendant or her counsel of the altered date for the hearing of the formal proof.

The Plaintiff denies that the Defendant was not notified by the Court and claims that in paragraph 9 of the affidavit of the Defendant sworn on the 6th of April 1999 the Plaintiff stated that the Defendant was properly notified. I reject that submission.

Paragraph 9 of the affidavit of the 6th of April states that, "I further say that the Defendant's allegations are without sufficient grounds and cannot be relied upon to allow setting aside judgment".

The Defendant subsequently applied to set aside the judgment but on the 11th of June 1999 the Learned Magistrate dismissed the Motion.

She stated in giving her reasons that she was not satisfied about the reasons advanced for failing to appear when directed or file a defence as ordered on the 29th of January 1999. On the 26th of February, when fixing the formal proof date as the 21st of April 1999, the Learned Magistrate also gave the Defendant liberty to file a defence within seven days. This was not done although according to an affidavit of Mitchell Prasad, a Filing Clerk in the employ of the Defendant's solicitors, a Statement of Defence was filed on the 5th of March 1999 but was returned by the Court Registry.

That Statement of Defence alleged that the Plaintiff had a friendly relationship with the Defendant during which he made a gift to her of some money but the friendly relationship turned sour when the Defendant refused to have a sexual relationship with the Plaintiff.

The Defence also alleged that as a result the Plaintiff confiscated the Defendant's passport and airline ticket in Sydney and only released it when the Defendant signed a document acknowledging a debt of $2,000.00 to the Plaintiff. It was alleged that this document was signed under duress.

On the 9th of March 1999 the Plaintiff gave formal evidence relating to his claim and the Learned Magistrate accepted that evidence.

In the submissions of the parties the Defendant contended that the claim was not a liquidated claim because it required further investigation to ascertain the correct amount. There are several authorities on what constitutes a liquidated demand but the most relevant which I have been able to discover was the statement of Farwell, L.J. in Lagos v. Grunwaldt [1909] UKLawRpKQB 183; [1910] 1 K.B. 41 at page 48 who said that a liquidated demand was where the debt is for goods sold and delivered, goods bargained and sold, work done, money lent, money paid, money received, interest, and upon accounts stated.

It is unnecessary for me to consider this question any further in this case because of the clear view I have formed that the second ground of appeal must be upheld.

In failing to notify the Defendant of the changed date of hearing of formal proof I am satisfied that the Learned Magistrate failed to apply the principles of natural justice.

In Kanda v. Government of Malaya (1962) A.C. 323 at p. 337 the Privy Council stated:

"If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him, and then he must be given a fair opportunity to correct or contradict them..... It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other."

In Annets v. McCann (1990) 170 CLR 596 at 598, Mason C.J., Deane and McHugh JJ stated:

"It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary Intendment..."

Accordingly the appeal is upheld and I refer the case back to the Magistrate's Court to be heard by another Magistrate. The Respondent must pay the Appellant's costs to be taxed if not agreed.

JOHN E. BYRNE
JUDGE

Cases referred to in Judgment:

Annets v. McCann (1990) 170 CLR 596 at 598.
Kanda v. Government of Malaya (1962) A.C. 323 at p.337.
Lagos v. Grunwaldt [1909] UKLawRpKQB 183; (1910) 1 K.B. 41 at p.48.