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Natovakalau v Danford [2003] FJHC 272; HBC0188d.2001s (23 May 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0188 OF 2001

Between:

LIVAI NATOVAKALAU
Plaintiff

and

JAMES DANFORD
Defendant

Mr. E. Veretawatini for the Plaintiff
Mr. K. Marawai for the Defendant

DECISION

This is the defendant’s summons dated 25 July 2002 seeking an order that the judgment entered against him in this action on 20 June 2001 in default of Notice of Intention to Defend be set aside on the grounds set out in his affidavits in support.

The main reason which he gives in his first affidavit for failing to file his Statement of Defence is: ‘I was busy on duty attending to sick patients at the Korovou Hospital, as it was my duty and obligation that I took oath on’. In his ‘Amended Affidavit in Support’ he says that he has a valid defence to the plaintiff’s claim. He stresses the point that the 30% disability claim by the Plaintiff at the hearing of assessment of damages to his right eye, did not result from the fight in question. He says that by this ‘misinformation’ the plaintiff has ‘caused injustice’ to him in the context of the damages to be assessed. The defendant further refers to the Deputy Registrar’s statement in his Ruling (on Assessment of Damages) of 11 July 2002 that ‘the Defendant to file the summons to set aside the Default Judgment and seek leave to file his defence’. Hence this application.

The application is vigorously opposed by the plaintiff. The detailed facts surrounding this case are set out in the plaintiff’s affidavit in opposition and filed in Court.

Briefly, the plaintiff says that after service of writ of summons on the defendant he did not do anything and judgment was obtained against him on 20 June 2001. When it came to assessment of damages, the defendant after leave was granted by the Deputy Registrar, filed his written submission through his solicitor on 27 June 2002, but instead of confining himself to ‘quantum’ he went on to dispute liability which was not the issue at the material time. As a result the Deputy Registrar who was to assess damages gave the defendant leave to file an application to set aside the said judgment. The plaintiff thinks that this is a ‘very highly irregular decision’. He says that it has taken the defendant ‘exactly one year’ to file this application. The plaintiff says that no good reason has been advanced to set aside.

Consideration of the issue

This is a default judgment which reads:

“No Defence having been filed by the Defendant in the within action. It is this day adjudged that the Defendant do pay damages to the plaintiff to be assessed with costs”.

The reason given by the defendant in his first affidavit for not filing his Statement of Defence is no reason at all for the Court to set aside the judgment. However, in his Amended Affidavit he has raised a solid defence as it affects assessment of damages greatly. To entitle the plaintiff to damages for eye injury it has to be proved. The question of liability arises, namely, whether the alleged injury arose as a result of the ‘fight’ etc.

The Deputy Registrar before whom assessment of damages was placed was put in a dilemma judging from his said Ruling. He could not proceed with assessment because of matters raised by the defendant particularly his denial of liability for the injuries allegedly suffered by the plaintiff. The Registrar in his Ruling said: ‘I therefore order the Defendant to file the summons to set aside the Default Judgment and seek leave to file his defence.’ This the defendant did on 25 July 2002.

Bearing in mind the above circumstances, although the application is made out of time, the circumstances in my view require judgment to be set aside (Beale v Macgregor, 2 T.L.R. 311). Although the judgment was regular but not on merits, there is an affidavit of merits i.e. an affidavit stating facts showing a substantial ground of defence [Farden v Richter [1889] UKLawRpKQB 79; (1889), 23 Q.B.D. 124].

In all the circumstances of this case I adopt the following ‘headnote’ to Maclaurin v Little [1907] NZGazLawRp 21; (1906) 9 G.L.R. 348 which correctly states the effect of the decision of Chapman J. The headnote reads:

Where judgment by default was entered by the plaintiffs, and it appeared that a slip had been made as to the time within which a defence ought to have been filed, and the affidavit filed by the defendant showed a good defence to the action, the judgment was set aside at defendant’s cost, defendant to have liberty to file a defence within four days, failing which the judgment was to stand.

Although there has been a failure to file a Defence within time, it should not in the situation here cause the Court to refuse to exercise its discretion. The failure has been satisfactorily explained and I find merit in the proposed defence that has been annexed to his affidavit [Howell v Ngakapa (1895) 13 N.Z.L.R. 298].

For these reasons, the judgment by default will be set aside. The defendant has liberty to file a statement of defence within 14 days from the date of this order failing which the judgment will stand. I fix the costs of this summons against the defendant at $250.00 to be paid within 7 days.

D. Pathik
Judge

At Suva
23 May 2003