IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 336 OF 2005L

NO. 138 OF 2006

BETWEEN:

ATIL CHANDRA GOSAI 
f/n Jagdish Chandra Gosai of Martintar, Nadi, Accountant.
Plaintiff

AND:

SANJIT PATEL
s/o Mahijibhai Patel of Nadi Town, Merchant and Councilor of Nadi Town Council
Defendant

Messrs Singh & Chaudhary Lawyers for the plaintiff
Messrs Pillai Naidu & Associates for the defendant

Date of Hearing: 21 June 2006
Date of Decision: 23 June 2006

DECISION
(Setting Aside Application)

Background

[1] On 28 September 2005 the Nadi Town Council held a meeting ("the meeting"). The defendant chaired the meeting in his Mayoral capacity. The plaintiff, a councilor, attended the meeting. He has alleged that certain defamatory statements were made against him at the meeting and has sued the defendant. The writ herein commencing the action was issued on 23 November 2005.

[2] On 3 February 2006, default judgment was entered against the defendant. He had failed to file a defence. A Notice to Assess Damages resultant from the default judgment has been issued.

Present application

[3] By summons dated 2 June 2006, (as amended), the defendant applied to set aside the default judgment and the Notice to Assess Damages. He seeks leave to file a statement of defence and to defend the claim against him.

[4] The application is opposed. Affidavits have been filed by both parties. The matter was heard on 21 June 2006. The plaintiff did not attend. He was represented by counsel when the hearing date was fixed.

[5] In summary, learned counsel for the defendant has submitted that the defendant’s affidavit in support discloses an arguable defence on the merits, that the application to set aside was promptly made and that the reasons for failing to file a statement of defence on time have been adequately explained.

Relevant principles

[6] The principles applicable for analysis of the merit of an application to set aside a default judgment are well known and settled. The leading authority is Evans –v- Bartlam [1937] 2 All E.R. 646. The principles of that case have been widely adopted in Fiji, and by the Fiji Court of Appeal in Pankanji Bamola & Anor. –v- Moran Ali Civil Appeal No.50/90 and Wearsmart Textiles Limited –v- General Machinery Hire & Anor Civil Appeal No. ABU0030/97S.

[7] Those principles (also referred to as preconditions) are:-

(i) adequate reasons must be given why the judgment was allowed to be entered by default;

(ii) the application to set aside must be made promptly and without delay; and

(iii) there must be an affidavit of merits, i.e. an affidavit stating facts showing defence on the merits.

Turning to each of these preconditions, the following can be observed:

The reasons why no defence was filed

[8] The reasons advanced in the defendant’s affidavit are far from convincing. He states that in order to have filed a proper defence, his solicitors required certain records including minutes of the meeting and the report of an inquiry he conducted, from the Nadi Town Council, and he relies on a belief, the source of which is not disclosed, that the release of these documents took considerable time, hence the entry of the default judgment.

[9] The inquiry report, annexed SP3 in his affidavit, pre-dates the filing of the writ. Likewise, the minutes of the meeting. The plaintiff’s affidavit in reply shows that the defendant presented the minutes of the meeting, (plaintiff’s annexure B), at the next council meeting on 19 October 2005. Those minutes appear to have been confirmed by the council on 19 October. There is much merit in the plaintiff’s contention that these documents should have been in the defendant’s possession before the writ was filed. I am inclined to believe that they probably were.

[10] The defendant also suggests that the plaintiff is partly at fault for failing to respond to his solicitor’s letter of 9 December 2005 where the plaintiff’s solicitors were informed that the defendant would require a further 21 days to file a statement of defence. The failure to respond may have been discourteous but it certainly did not justify the defendant sitting on his hands and not taking any further steps to preserve his position.

Delay

[11] The default judgment was entered on 3 February 2006. The Notice to Assess Damages returnable on 24 March 2006, was served on the plaintiff on 4 March 2006. Three months were allowed to pass before the filing of this application. The application was not promptly made. However there is no evidence before me or a submission that the plaintiff will suffer irreparable injury as a consequence of the defendant’s latches in making the application. In the circumstances I have not found the delay to have been unreasonable. I have found that any injustice to the plaintiff would be minimal and such inconvenience may be compensated by way of payment of costs.

Defence on the merits

[12] The defendant relies on a plea of qualified priviledge. Although not adequately particularized, he also raises the defences of justification and fair comment. Learned counsel submitted that if leave were granted to defend, the particulars of these defences would be particularized in the statement of defence to be filed as required by the rules.

[13] Nevertheless it is clear from the evidence before the Court, that the statements forming the subject matter of this action were made in the course of a local government council meeting. The defendant contends that the council members and Nadi ratepayers had some legitimate interest in connection with the subject matter, ie. the circumstances surrounding the discounting of substantial arrears of rates owed in respect of the property contained in CT7081. In my view, given the forum in which the statement were allegedly made, section 14 of the Defamation Act Cap.34 ("the Act") provides the defendant a statutory defence to the claim.

[14] The learned author of Gatley on Libel and Slander, 6th Ed. states in paragraph 488 on page 411 –

‘It is the duty of everyone, in the interest of public efficiency and good order, to bring any misconduct or neglect of duty on the part of a public officer or employee, or any public abuse, to the notice of the proper authority for investigation. Any complaint or information as to such misconduct, neglect of duty or abuse, though volunteered, is priviledged, provided it is made in good faith to the person or body who has the power or duty to remove, punish or reprimand the offender, or merely to inquire into the subject matter of the complaint’.

[15] The law is clear. Statements published on an occasion of qualified priviledge are protected for the common convenience and welfare of society. Bankes LJ held in Gerhold –v- Baker (1918) W.N at p.369 that:

"It was in the public interest that the rules of our law relating to priviledged occasions and priviledged communications were introduced because it is in the public interest that persons should be allowed to speak freely on occasions when it is their duty to speak, and to tell all they know or believe, or on occasions when it is necessary to speak in the protection of some [self or] common interest".

[16] The statement of claim itself discloses that the statements which the plaintiff considers defamatory were made during a meeting of the Nadi Town Council – paragraph 3. Such meetings are public meetings falling within the ambit of s.14 of the Act. The proposed defences raised all involve mixed questions of fact and law upon which the question of liability or otherwise of the defendant ultimately depends. I am not required to embark on a full investigation of the merits or otherwise of the claim and defence at this stage. The basic facts before the Court satisfy me that the defendant has disclosed a defence on the merits having both a real prospect of success and carrying some degree of conviction. He has raised triable issues satisfying this precondition.

Conclusion

[17] Looking at the matter overall, and in the exercise of my discretion, I am satisfied that the judgment should be set aside. I do not consider the plaintiff to have suffered such prejudice as cannot be satisfied by a compensatory costs order.

Orders

[18]

(i) The default judgment herein is set aside.
(ii) The Notice to Assess Damages is struck out.
(iii) Statement of defence to be filed and served within 14 days.
(iv) Reply to defence to be filed and served 14 days thereafter.
(v) The defendant is to pay the plaintiff’s costs summarily assessed in the sum of $150-00 within 14 days.
(vi) Case to be called for mention on 4 August 2006.

GWEN PHILLIPS
JUDGE

At Lautoka
23 June 2006