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High Court of Fiji |
IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION
Civil Action No: HBC 406 of 2008
BETWEEN:
MOHAMMED ANWAR KHAN
Plaintiff
AND:
SUVA CITY COUNCIL
Defendant
Counsel: Ms. Lata for the Plaintiff.
Mr. N. Lajendra for the Defendant.
Date of Ruling: 13th May, 2011
RULING
[1] In this matter the plaintiff filed inter parte summons seeking following orders:
[2] A solicitor called Mr Sosaia has filed an affidavit in support of the plaintiff's summons.
[3] The facts of the case can be summarised as follows:
[4] On 17.12.2008, the plaintiff's solicitor obtained a judgment by default against the defendant for failing to file a statement of defence. It was served on the defendant, and the affidavit of service was filed on 19.01.2009.
[5] Subsequently, the defendant filed summons to set aside the default judgment. On 17.03.2009, the Master of the High Court set aside the default judgment with costs of 250.00 against the plaintiff, on the ground of irregularity.
[6] The plaintiff argues that the Master should have referred the matter to a High Court Judge, since the Master had no authority to set aside a judgment by default.
[7] Further, it is contended that the Master had erred in law and fact by considering the grounds of irregularity, which had not been even pleaded by the defendant in their summons.
[8] Furthermore, the plaintiff contends that the solicitor of the plaintiff's firm has given no consent to the default judgment to be set aside, although it is stated so in the ruling given by the Master.
[9] In response to the plaintiff's application, the defendant filed an affidavit. In the affidavit, it is deposed that the plaintiff's application is misconceived, as he has not observed the High Court Rules in respect of appealing an interlocutory order.
[10] This being an application for leave to appeal against the decision of the Master, I will consider the principles relating to granting of leave to appeal.
[11] It is trite law that leave will not generally be granted from an interlocutory order unless the Court sees that substantial injustice will be done to the applicant.
[12] Further, in an application for leave to appeal, it is incumbent on the applicant to show that the intended appeal will have some realistic prospect of succeeding.
[13] The Court's approach to interfere with interlocutory orders is succinctly stated by Tikaram J in Kelton Iinvestments Ltd & Tapoo Ltd and ...Civil Appeal No. ABU 0034 of 1995 as follows:
'The Courts have thrown their weight against appeals from interlocutory orders or decisions for very good reasons and hence leave to appeal are not readily given. Having read the affidavits filed and considered the submissions made, I am not persuaded that this application should be treated as an exception. In my view the intended appeal would have minimal or no prospect of success if leave were granted.'
[14] Again in Totis Inc. Sport (Fiji) Ltd & Another v. John Leonard Clark & Another, FCA No. 35 ofn1996 Tikaram J stated as follows:
'It has been long settled law and practice that interlocutory orders and decisions will seldom be amenable to appeal. Courts have repeatedly emphasized that appeals against interlocutory orders and decisions will only rarely succeed. The Fiji Court of Appeal has consistently observed the above principles by granting leave only in the most exceptional circumstances.'
[15] Some important guidelines as to how the court should consider the issue of granting leave to appeal can be found in Ex parte Bucknell [1936] HCA 67; [1936-37] 56 C.L.R. 221 at 224 where it was stated:
At the same time it must be remembered that the prima facie presumption is against appeals from interlocutory orders, and, therefore, an application for leave to appeal under sec. 35 (1) (a) should not be granted as of course without consideration of the nature and circumstances of the particular case. It would be unwise to attempt an exhaustive statement of the considerations which should be regarded as a justification for granting leave to appeal in the case of an interlocutory order, but is desirable that, without doing this, an indication should be given of the matters which the court regards as relevant upon an application for leave to appeal from an interlocutory judgment.
It is further stated at page 225;
It is apparent that many different considerations may be raised by cases in which leave only is needed and that all the grounds upon which applications may succeed cannot be stated in advance. It is possible, however, to say how certain types of cases should be dealt with. But any statement of the matters which would justify granting leave to appeal must be subject to one important qualification which applies to all cases. It is this. The court will examine each case and, unless the circumstances are exceptional, it will not grant leave if it forms a clear opinion adverse to the success of the proposed appeal.
[16] I will consider the grounds urged by the plaintiff for his leave to appeal application.
[17] The plaintiff relies on the affidavit of Sosaia Tapueluelu . In the affidavit it is stated, that the Master had erred in law, facts and procedure in considering the defendant's application.
[18] The default judgment was set aside by the Master on the basis of irregularity.
[19] It is the plaintiff's position that the issue of irregularity had not been pleaded in the defendant's summons, but was raised by the defendant from the Bar Table and thus, the Master had erred in law when he ordered to set aside the default judgment on the ground of irregularity. Further, the plaintiff submits that the Master has no jurisdiction to set aside the default judgment.
[20] In the present case, the irregularity, as can be seen from the order of the Master, has occurred due to the entering of the default judgment during the judicial vacation.
[21] Therefore, it is my considered view that the entering of the default judgment during the judicial vacation itself is patently wrong in law and defective in procedure and the Court can rectify it ex mere motu, even if the issue of irregularity was not raised by the defendant.
[22] Further, as stated in Dian Giesbrecht v. Rowena Grace Cross and Another Civil Action 540 of 2007, 'the time does not run in the High Court during the legal vacation period' is an accepted legal principle in Courts of Fiji.
[23] Therefore, the issue of irregularity in the present application, in my view is not a question of fact but a question of law.
[24] The principles governing the setting aside of default judgment are well settled. If the default judgment has been entered irregularly, the defendant is entitled to have it set aside as of right.
[25] The provisions governing the setting aside of default judgments are contained in Order 19 rule 9 of the High court Rules.
[26] Where a judgment is obtained irregularly the defendant is entitled ex debito justitiae to have it set aside. Anlaby v. Praetorious [1888] UKLawRpKQB 55; (1888) 20 Q.B.D 764.
Order 19 rule 9 reads:
The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order.
[27] The Master in his Ruling has very correctly observed, the fact that the default judgment had been obtained during the judicial vacation. It was further observed, that the time period for filing of court documents does not run during the judicial vacation.
[28] Therefore, it is explicit that the default judgment was entered irregularly.
[29] In addition to the judgment being irregular, it was set aside by consent. The solicitor who appeared for the plaintiff has also consented to set aside the default judgment.
[30] Although the plaintiff contends that the said solicitor had not given his consent, the plaintiff has failed to tender even an affidavit from the said solicitor to that effect.
[31] Further, apart from repeatedly stating that the Master had no jurisdiction to set aside the default judgment, the counsel for the plaintiff has failed to advance any valid reason or to cite any authority to substantiate the plaintiff's objection as to the want of jurisdiction of the Master. Unsubstantiated objection without any legal or factual basis is devoid of any merit.
[32] However, it is important to consider the jurisdiction and powers of the Master since the outcome of the plaintiff's appeal would mainly depend on it.
[33] Let me, therefore, now examine whether the Master has jurisdiction and power to set aside a default judgment.
[34] The Powers and jurisdiction of the Master are contained in Order 59 rule 2 of the High Court Rules.
Order 59 rule 2 reads:
The Master shall have and exercise all the power, authority and jurisdiction which may be exercised by a judge in relation to the following causes and matters;
[35] The hearing of a setting aside of a default judgment is clearly a chamber matter.
[36] The Master has the power and jurisdiction to hear chamber matters subject to restrictions contained in Order 59 rule 2 (a) (i) to (vii).
[37] However, it could be noted that restrictions contained in Order 59 r (2)(a)(i) to (vii) do not prevent the Master from hearing applications for setting aside default judgments. Further, entering a default judgment is purely an administrative act. Therefore, it is evident that the Master has jurisdiction to set aside default judgments.
[38] In the present case, the Master has set aside the default judgment on the basis of irregularity. As I stated earlier, an irregular judgment can be set aside as of right.
[39] Therefore, I hold that the learned Master has correctly exercised his discretion under the High Court Rules in granting the defendant's application for setting aside the default judgment. I, therefore, see no merits on the plaintiff's application for leave to appeal.
[40] Having regard to the above, it is my considered view that the grounds of appeal are unmeritorious, unfounded and there are no arguable legal issues which would warrant a consideration in the appeal.
[41] Further, the plaintiff will not be prejudiced if leave is refused. The plaintiff will still have the opportunity to put his case fully before the Court during the hearing of the substantive action and he will also have an opportunity to make an appeal if unsuccessful.
[42] For the reasons given above, and upon a careful consideration of the facts of this case, I refuse the plaintiff's application for leave to appeal.
Extension of time:
[43] The plaintiff applies for an extension of time in order to appeal against the order of the Master. Therefore, it would be appropriate for the court to consider, whether the plaintiff has advanced sufficient grounds before such an enlargement is granted.
[44] Order 59 rule 8 of the High Court Rules contains provisions relating to the appeal from the Master.
Order 59 rule 8 (2) reads:
No appeal shall lie from an interlocutory order or judgment of the Master to a single judge of the High Court without the leave of a single judge of the High Court which may be granted or refused upon the papers filed.
Order 59 rule 11 reads:
Any application for leave to appeal an interlocutory order or judgment shall be made by summons with a supporting affidavit, filed and served within 14 days of the delivery of the order or judgment.
[45] In the present action, the order of the master was delivered on 17.02 2009 and the summons seeking leave to appeal was filed on 26.03.2009, which shows that the application for leave to appeal was filed 23 days after the expiration of the time limit.
[46] The granting of leave to appeal out of time is entirely a matter for the discretion of the court. The plaintiff should place before the court an affidavit setting out the reasons for the relevant period of delay. But in the present application, the plaintiff has failed to offer a proper explanation for the delay.
[47] The following passage from Ratnam v. Comaraswamy and others [1964] 3 A.E.R 935, is very much relevant to the present application.
'The rules of Court must, prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation.'
[48] The factors to be considered in an application for leave to appeal out of time are stated in Safari Lodge Fiji Ltd v. Rosedale Ltd Civil Action No. 319 of 1999 as follows:
[49] It could be noted that the plaintiff has failed to establish the existence of any of the above mentioned grounds in the present application.
[50] Further, the plaintiff has failed to show what injustice would cause to him if an extension of time is not granted and also has failed to raise any point of law of general importance requiring the indulgence of the High Court. A mere assertion in the affidavit in support, that the plaintiff would suffer damages, loss, injustice and prejudice if leave is not granted, in my view, would not suffice to convince the court to enable it to decide in favour of the plaintiff.
[51] Therefore, the plaintiff's application for extension of time is refused.
[52] As I have already decided to refuse leave to appeal from the interlocutory order, it is not necessary for me to deal with the stay applications because there will not be anything to be stayed pending any intended appeal.
[53] Accordingly, I make following orders:
Pradeep Hettiarachchi
JUDGE
13.5.2011
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