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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC0323 OF 1997L
BETWEEN:
ROSEDALE LIMITED
1st Plaintiff
AND:
MICHAEL HARVEY
2nd Plaintiff
AND:
MICHAEL KELLY and RAE McGILL
Defendants
Counsel for the Plaintiff: Mr. A.M. Daubney with Mr. R. Gordon
Counsel for the Defendants: Mr. V. Mishra with Mr. T. Vakalalabure
Date of Hearing: 24 May 2004
Date of Judgment: 11 June 2004
JUDGMENT
The Application
This matter comes before the court by way of a Summons wherein the 2nd plaintiff seeks an order pursuant to Order 35 Rule 2 and/or the inherent jurisdiction of the court that the judgment entered against the 2nd plaintiff dated 6th March 2003 be set aside and further that an extension of time as may be required for the bringing of the application under Order 35 Rule 2 be granted.
Background
This matter has a long and chequered history. It initially came for trial before Mr. Justice Lyons in August 1998. That trial was aborted, the reasons for which, are not relevant to the present application.
The matter subsequently came for trial in circumstances that will be dealt with later before Mr. Justice Byrne on 30 October 2002, following which, a judgment was delivered in favour of the defendants on the cross claim on 6 March 2003. It is that judgment that the 2nd plaintiff seeks to set aside.
The proceedings before Mr. Justice Byrne were conducted in the absence of the plaintiff and it is alleged by the 2nd plaintiff without his knowledge.
The court record will indicate that at all relevant times, the 2nd plaintiff was represented by counsel.
On the application of the plaintiff, the matter came before the court on 17 May 2002 and was stood over for Order 34 conference on 3 October 2002. On that day counsel for the 2nd plaintiff sought time to get further instructions, following which, the proceedings, that is the Order 34 conference, was stood over to 17 October 2002. On that day counsel sought leave to withdraw, which leave was granted, following which, the proceedings were then set down for hearing on 29 October 2002 and ultimately came on for hearing, the following day.
There is nothing in the court record to indicate that the 2nd plaintiff was advised of the hearing date.
Similarly, there is nothing in the court record to indicate that the provisions of Order 67 of the High Court Rules were complied with when leave for counsel to withdraw was granted.
Whilst judgment was delivered by the court on 6 March 2003, the 2nd plaintiff attests that he first became aware of the judgment on the 25th July 2003 when he was telephoned by a journalist in Brisbane, Queensland, Australia. The 2nd plaintiff resides in Brisbane where he carries on practice as a solicitor.
The evidence of the 2nd plaintiff is that he had no knowledge of the hearing date that he wasn’t advised by anyone of the matter proceeding to trial and that upon receipt of the information from the journalist, he then engaged new solicitors in Fiji to take action on his behalf and that he ultimately obtained a copy of the judgment of the 6th of March when the judgment creditors sought to register that judgment in Queensland. Following receipt of a copy of the judgment, this application was made to the court it having been filed on 15 October 2002.
There is no evidence before the court to contradict the 2nd plaintiff’s evidence that he had no advice that the matter was proceeding to hearing on 29/30 October 2002. In this regard, it should be noted that it was only set down for hearing on 17 October 2002. I note in passing that at the time it was most unusual for matters to be set down for hearing with such expedition at this court.
As is apparent from the pleadings and the evidence before me, the 1st and 2nd plaintiff were the owner and operator of a resort situate on Nananu-i-Ra Island, near Rakiraki. The defendants were New Zealanders who had been spent some time in Fiji desirous of becoming involved in the ownership and operation of a tourist resort. The plaintiffs and defendants entered into an agreement, the terms of which are in dispute for the defendants to at least manage the resort. The relationships between the parties was short-lived and following its termination, the 1st and 2nd plaintiffs commenced the substantive proceedings against the defendants.
There is little agreement between the parties as to the circumstances surrounding the commencement of the relationship, the terms and format of the agreement and the termination of the relationship. It would appear that the evidence of the defendant, Michael Kelly, and the evidence of the 2nd plaintiff, is diametrically opposed on most material issues.
The Issues
The issues for consideration by the court on an application to set aside the judgment entered after trial are set forth in Shocked and Another v Goldschmidt and Others [1998] 1 All E.R. 372. The leading judgment of the court was given by Leggatt LJ who said at page 377: -
“The cases about setting aside judgments fall into two main categories: (a) those in which judgment is given in default of appearance or pleadings or discovery, and (b) those in which judgment is given after a trial, albeit in the absence of the party who later applies to set aside. Different considerations apply to these two categories because in the second, unless deprived of the opportunity my mistake or accident or without fault on his part, the absent party has deliberately elected not to appear, and an adjudication on the merits has thereupon followed.”
Jenkins LJ in Grimshaw v Dunbar [1953] 1 All E.R 350 at 355 said:
“...a party to an action is prima facie entitled to have it heard in his presence. He is entitled to dispute his opponent’s case and cross-examine his opponent’s witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. If by mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that the litigant who is accidentally absent should be allowed to come to the court and present his case, no doubt on suitable terms as to costs...”
Leggatt LJ in Shocked after considering the authorities then set out at p. 381 a series of propositions or “general indications” which are: -
“(1) Where a party with notice of proceedings has disregarded the opportunity of appearing at and participating in the trial, he will normally be bound by the decision.
(2) Where judgment has been given after a trial it is the explanation for the absence of the absent party that is most important: unless the absence was not deliberate but was due to accident or mistake, the court will be unlikely to allow a rehearing.
(3) Where the setting aside of judgment would entail a complete retrial on matters of fact which have already been investigated by the court the application will not be granted unless there are very strong reasons for doing so.
(4) The court will not consider setting aside judgment regularly obtained unless the party applying enjoys real prospects of success.
(5) Delay in applying to set aside is relevant, particularly if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it.
(6) In considering justice between parties, the conduct of the person applying to set aside the judgment has to be considered: where he has failed to comply with orders of the court, the court will be less ready to exercise its discretion in his favour.
(7) A material consideration is whether the successful party would be prejudiced by the judgment being set aside, especially if he cannot be protected against the financial consequences.
(8) There is a public interest in there being an end to litigation and in not having the time of the court occupied by two trials, particularly if neither is short.”
The Lord Justice then said that the predominant consideration is the reason why the party against whom judgment was given absented himself.
“It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case” – Rich J in Cameron v Cole [1944] HCA 5; 68 C.L.R. 571 at 589.
Most recently, the issue has been considered by the Supreme Court of New South Wales Court of Appeal in Murphy v Doman (as representative of the estate of Simpson (dec’d)) – unreported [2003] NSWCA 249 – 11 September 2003 where at paragraph 48 Handley JA said: -
“Taylor v Taylor [1979] HCA 38; [1979] 143 CLR 1 and Allesch v Maunz [2000] HCA 40; [2000] 203 CLR 172 are decisions to the same effect. They establish that where judgment had been given in the absence of a litigant who has been denied a hearing through no fault of his own and where his absence has been adequately explained, that litigant has a prima facie right to have that judgment set aside to permit a re-hearing on the merits.”
Mr. Justice Handley whilst being a member of the New South Wales Court of Appeal is also a member of the Supreme Court of Fiji.
Jurisdiction
It is submitted by the defendants that the 2nd plaintiff having made his application outside the time prescribed in Order 35 Rule 2 is precluded from effectively applying to the court for the relief sought.
The court has inherent jurisdiction to make the orders sought. Should confirmation of this be needed then it is supplied by Mason J. in Grimshaw v Dunbar where he said at page 16: -
“A jurisdiction to set aside its orders is inherent in every court unless displaced by statute. In my opinion the jurisdiction extends not only to the setting aside of judgments which have been obtained without service or notice to a party.... but to the setting aside of a default or ex- parte judgment obtained when the absence of the party is due to no fault on his part.”
I am of the opinion therefore that the court has jurisdiction to grant the relief that is sought.
The Evidence
The predominant consideration for the court is the reason why the 2nd plaintiff was not present at the trial.
The evidence before the court from the 2nd plaintiff is, that he did not know that the matter had been listed for trial and accordingly was unable to appear. There is no evidence to refute the applicant’s evidence in this regard.
The court record shows that counsel for the 2nd plaintiff was granted leave to withdraw on the 17th of October 2002. It would appear that leave was granted without their having been compliance with Order 67 of the High Court Rules and accordingly there is nothing to confirm that the 2nd plaintiff was advised as required by those rules prior to leave being granted.
Leave having being granted to counsel to withdraw, the matter was then immediately set down for hearing on the 29th October 2002, some 12 days later, and was in fact heard on 30 October 2002. The court record indicates that the matter was in fact only listed on 17 October 2002 for the purposes of a conference pursuant to Order 34 of the High Court Rules.
From the evidence before me and the court file, I am satisfied that the 2nd plaintiff was not aware that the matter was listed for hearing on 29 October 2002. He accordingly had no notice of the trial and it cannot be said therefore that he disregarded the opportunity of appearing and participating in the trial.
The setting aside of the judgment will entail a re-trial on matters of fact which have already been investigated by the court. However, those facts have only been investigated to the extent of the defendants/cross claimant and two supporting witnesses having given evidence in a hearing, which from the court file, would appear to have lasted not more than one day.
From the evidence of the 2nd plaintiff and of the defendant, Michael Kelly, it would appear that the matters in issue depend to a large degree on the oral evidence to be given by Mr. Kelly and the 2nd plaintiff, Michael Harvey. There would also appear to be some corroborative evidence from other witnesses in support of both of them and some documentary evidence again in support of both points of view. In these circumstances, therefore, it is difficult to conclude that the 2nd plaintiff does not enjoy real prospects of success. A similar point of view might be expressed with respect to the defendants/cross claimants.
The 2nd plaintiff says that he became aware of the judgment, having been obtained against him, when he was contacted by a journalist on the 25th July 2003. He says that he had received no advice from the judgment creditors or anybody else prior to that time. He then says that he made contact with lawyers in Fiji and engaged them to take certain action on his behalf and that he sought advice. He further says that he did not obtain or was unable to obtain a copy of the reasons for judgment until that document was served on him on behalf of the judgment creditors when they sought to register the judgment in Queensland. He says that he then immediately caused this application to be made to the court. The application was filed with the court on the 15th of October 2003. It is of concern that a period of about 3 months elapsed from the 2nd plaintiff becoming aware of the existence of the judgment and the application being made. The reason for the inability to obtain a copy of the reasons for judgment between 25 July and October is unclear.
The conduct of the 2nd plaintiff throughout the history of the proceedings is criticized by the defendants/cross claimants. This criticism appears to be based upon supposition rather than factual material that is before the court. It is apparent from the material before the court, the 2nd plaintiff failed to amend his statement of claim in accordance with the orders of the court and that some delay may have been occasioned in the payment of the sum of Two Hundred and Fifty Dollars ($250.00) ordered to be paid by way of costs. The only other matter pertaining to the 2nd plaintiff’s conduct before the court is the apparent failure to give timely instructions to counsel from time to time. I question whether these matters are such as to preclude the 2nd plaintiff from the justice that would result in the matter being heard.
The defendants/cross claimants make no submission that witnesses who were called before Mr. Justice Byrne are no longer available. The evidence from the defendants is that some people are no longer available but there is no evidence to suggest that those people were in fact available when the matter came before Mr. Justice Byrne for trial in October 2002. I am not convinced that there will be a prejudice to the defendants/cross claimants, should the judgment be set aside on the basis that witnesses are no longer available. Any prejudice as to financial consequences, it would seem could be met by way of an appropriate order as to costs. There is no evidence before the court that the judgment creditors have acted in accordance with the judgment and no monies have been received by them in satisfaction of the judgment.
There is a of course a public interest in there being an end to the litigation and not having the time of the court occupied by a further trial of this matter. That interest however appears to have been overtaken by the events of the 17th October 2002 when the provisions of Order 67 of the High Court Rules appear not to have been complied with and the matter was set down for hearing, some 12 days later without any apparent concern for the 2nd plaintiff being advised as to the hearing date.
The court is asked to preclude the 2nd plaintiff from relief in the light of an interpretation of Hadkinson and Hadkinson 1952 (2) All E.R. 567. The rule arising from that authority is perhaps best described by Denning LJ at page 575 where he says: -
“....I am of the opinion that the fact that a party to a cause has disobeyed an order of the court is not of itself a bar to his being heard, but if his disobedience is such that, so long as it continues, it impedes the course of justice in the cause, by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make, then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed.”
There is nothing before the court in this matter, to evidence the 2nd plaintiff’s conduct, as falling within the rule as expressed above. This authority has particular application in particular circumstances and is not applicable in the circumstances of the present case. It cannot be said that the prospective orders of the court are impeded by the conduct of the 2nd plaintiff.
Conclusion
It is apparent that the issues in dispute between the parties and this matter can only properly be resolved by a trial, at which the parties and all relevant witnesses give evidence and the facility exists for that evidence to be tested.
Applying the relevant principles as expressed in Shocked v Goldschmidt, I am of the opinion that the judgment entered after trial in the absence of the 2nd plaintiff/cross defendant should be set aside and that the matter should then proceed to trial at the earliest possible time. It will of course be necessary for the 2nd plaintiff to pay the defendants/cross claimants’ costs of the trial of the 30th October 2003. I propose that the matter be re-listed for argument with respect to costs.
Orders of the Court
3. Costs of this application to be costs in the cause.
JOHN CONNORS
JUDGE
AT LAUTOKA
11 JUNE 2004
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