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Kumar v Aung [2004] FJHC 329; HBC0521.2003S (2 July 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0521 OF 2003

BETWEEN:

DR. MAHENDRA KUMAR
f/n Bans Karan
Plaintiff

AND:

DR. THAN AUNG
Defendant

Counsel: Ms Bindula Devi – for the Plaintiff
Mr. Semi Leweniqila - for the Defendant

Date of Hearing: 29th June, 2004
Date of Judgment: 2nd July, 2004

JUDGMENT OF THE COURT

Introduction

The defendant makes his application by way of summons dated the 12th of March, 2004 pursuant to Order 13 Rule 10 of the High Court Rules supported by an affidavit from the defendant. The defendant applies to have a default judgment entered against him on the 24th of February set aside.

The proceedings have a common cause with Civil Action 483 of 2003. They relate to the same alleged libel. The proceedings were commenced in almost an identical fashion. Default judgment was obtained in almost an identical fashion but for the appropriate dates of that judgment.

The same reasoning applied to Civil Action 483 of 2003 applies to my decision in this case and is with appropriate amendment as to dates adopted in full.

The simple fact of the matter is that the plaintiff should have brought this action not by endorsement on the writ but by a full Statement of Claim offering the particulars required in Order 82. While he may have obtained his default judgment in a technically correct manner it is not just that he did so. The plaintiff first needed to particularly identify the libels complained of contained within a series of memoranda. Further the plaintiff needed to allege what words or matters complained of were used in a defamatory sense other than their ordinary meaning. As in 483 of 2003 I adopt the reasoning contained in the New Zealand High Court decision of Russell v Cox [1983] NZLR 654 at 659. It was in that case that the learned Justice Hardieboys noted that the exercise of the discretion for the court on these applications is what is just in all circumstances. In my opinion the learned justice correctly identified three non- exclusive factors to be considered.

Firstly, whether delay has been reasonably explained. I find that it has. Secondly whether a substantial ground of defence has been disclosed. Again while generally pleaded the defence is clearly an available one particularly against the general endorsement contained on this writ. Thirdly whether the plaintiff will suffer irreparable injury if the judgment is set aside. I find as I did in 483 of 2003 that there will be no prejudice of the plaintiff in properly bringing its claim for the determination of the Court.

Conclusion

Accordingly I grant the defendant’s application the judgment as against this defendant by default on the 24th of February 2004 is set aside. I order the plaintiff to file and serve a Statement of Claim on his writ by the 31st of July, 2004. The defendant is thereafter to have 14 days to reply to that claim. Costs are reserved for the cause.

Gerard Winter
JUDGE

At Suva
2nd July, 2004