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Singh v Fiji Sugar Corporation [2014] FJHC 755; HBA2.2009 (22 October 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Appeal No. HBA 2 of 2009

BETWEEN:

SOHAN SINGH
APPELLANT/DEFENDANT

AND:

FIJI SUGAR CORPORATION
RESPONDENT/PLAINTIFF

BEFORE : Hon. Justice Kamal Kumar

COUNSEL : Mr A. Sen for the Appellant/Defendant

Mr A Ram for the Respondent/Plaintiff

Date of Hearing : 10 July 2014
Date of Ruling : 22 October 2014

RULING
(Appeal - Application to Set-Aside Default Judgment)

1.0 Introduction

1.1 On 5 August 2008, Appellant filed Notice of Intention to Appeal.

1.2 On 22 August 2008, Appellant filed Notice and Grounds of Appeal with Grounds of Appeal being:-

"1. The Learned Magistrate erred in setting aside the judgment entered against the plaintiff when the said judgment was entered in accordance with the order of Honourable Justice Winter who had specifically directed the plaintiff to expeditiously proceed with the hearing of this matter and the event of noncompliance, defendant was given liberty to enter judgment against the plaintiff.

2. The Learned Magistrate erred in setting aside the judgment when the said judgment entered was regular and entered in accordance with the rules of Magistrates Court and further upon persistent and deliberate non-appearance by the plaintiff or its Counsels.

3. The Learned Trial Magistrate erred in setting aside the judgment when the official court record was unequivocal in that the plaintiff had refused to appear in this case despite being aware of the date set by the honourable Court.

4. The Learned Trial Magistrate erred in setting aside the judgment when it was transparently clear that the plaintiff by its counsel had taken no pro-active approach in obtaining a date or doing any inquiry to see expeditious conclusion of this matter.

5. The Learned Trial Magistrate erred in setting aside the judgment upon the reasons advanced by him in his judgment when such reasons are irrelevant in determination of the issue before the Court and the principles relevant in setting aside the Default Judgment."

1.3 On 21 September 2009, Appeal was called for the first time before the Master when it was adjourned to 28 and 29 September for Counsel to go through the copy records and to confirm whether it is in order.

1.4 On 29 September 2009, Appellant's Counsel informed the Court that copy Judgment of Justice Winter's Ruling in respect to earlier setting aside Application was not including in the copy record.

1.5 It is noted that _ between 29 September 2009 and 16 March 2012 (some 2½ years), the Appeal was adjourned for some twenty five (25) times to enable parties and Court to compile copy record of Magistrates Court proceedings.

1.6 On 16 March 2012, the Learned Master noted that copy record is ready and adjourned the appeal to 26 May 2012 to fix hearing date.

1.7 On 26 May 2012, Counsel for the Appellant informed Court that Respondent proposed settlement and he needed time for settlement.

1.8 Since then the appeal has been adjourned some seventeen (17) times before the Learned Master including once before his Lordship Justice Corea to review settlement.

1.9 Finally on 13 October 2013, the Learned Master made an order that unless Terms of Settlement is filed by 23 January 2014, parties will have to show cause as to why the matter should not be struck out.

1.10 Appeal was again adjourned to 29 January 2014, 21 February 2014, 25 February 2014, 14 March 2014 and 30 May 2014 when appeal was adjourned for hearing on 10 July 2014.

1.11 On 14 January 2014, Appellant filed Notice of Motion dated 19 December 2013 seeking following Orders:-

"a. That the copy in this matter be amended to include judges notes and order of Honourable justice winter dated 29th March 2006.

b. Upon the records being supplemented, the appeal be set down for hearing.

1.12 Whilst parties filed Affidavits in respect to the above Application as directed by the Learned Master this Application was never dealt with by the Master.

1.13 As a result, on 4 July 2014, Appellant filed Application by Summons dated 4 July 2014 seeking an Order that Notice of Motion dated 19 December 2013 be determined before hearing of the Appeal which Application was also listed for 10 July 2014 before me.

1.14 On the morning of 10 July 2014, after perusal of the Court file and with the assistance of Senior Court Officer, Mr Rakesh Sharma I managed to locate the file and notes of Justice Winter dated 29 July 2006 in respect to Appeal against decision of the then Learned Magistrate Mr S Kumar.

1.15 On 10 July 2014, when this matter was called for hearing I informed the Counsel that his Lordship Justice Winter's (as he then was) note was available and that it was being typed out. This matter was then stood down until 11.00am.

1.16 When the Court resumed, Counsel for parties were handed typed note of his Lordship Justice Winter.

1.17 As a result Counsel for the Appellant sought leave to withdraw -- Summons dated and filed on 4 July 2014.

1.18 Accordingly, the Summons dated and filed on 4 July 20014 and Notice of Motion dated 19 December 2013 and filed on 14 January 2014 was dismissed and struck out with no order as to costs.

2.0 Background Facts

2.1 On or about 26 March 1999, Respondent (Plaintiff) filed claim against Appellant (Defendant) claiming a sum of $2,914.00 paid to the Appellant by mistake pursuant to crop lien given by the grower in favour of the Appellant when there was a prior crop lien noted with the Respondent in favour of Fiji Development Bank (FDB) in Magistrates Court Action No. 142 of 1999 (hereinafter referred to as "MCA").

2.2 On 5 July 1999, appellant filed Defence and Counter-Claim in person claiming a sum of $9,086.00 plus $1,260.00 being monies allegedly advanced by Appellant to the grower on the strength of the crop lien given in favour of the Appellant.

2.3 Respondent filed Reply to Defence and Defence to Counter-Claim.

2.4 MCA was listed for hearing on 9 February 2000, when it was adjourned on Respondent's application.

2.5 Since then MCA was adjourned for mention on 7 June 2000, when it was listed for hearing on 9 August 2000 but hearing date was adjourned to 29 November 2000.

2.6 Hearing date of 29 November 2000 was once again vacated as the Appellant appeared by Counsel for the first time and sought adjourned.

2.7 MCA was listed for hearing on 14 December 2000, 26 April 2001, 18 August 2001, 30 November 2001 and 12 April 2002 but these hearing dates were vacated for some reason or the other.

2.8 Since then MCA has been adjourned for mention to enable parties to either gather information or agree to facts some seven (7) times when it was listed for hearing on 17 March 2003.

2.9 Hearing date of 17 March 2003 was again vacated and matter was listed for hearing on 13 August 2003.

2.10 However this hearing date was also vacated MCA was re-listed for hearing on 6 October 2003.

2.11 On 6 October 2003 there was no appearance for and on behalf of Respondent/Plaintiff and after standing the matter down until 11:05am and there still being no appearance on behalf of the Respondent the Learned Magistrate struck out Respondent's claim and defence to Counter Claim.

2.12 Thereafter Appellant formally proved his Counter-Claim and judgment was entered in favour of the Appellant for the sum of $10,346.00 plus $400.00 costs.

2.13 On 17 October 2003, Respondent filed Notice of Motion to set-aside the judgment and to re-instate Respondent's claim. The Application was opposed by the Appellant.

2.14 The then Resident Magistrate Mr S Kumar re-instated Respondent's claim but refused to set-aside Judgment entered in favour of the Appellant and stayed execution of the Judgment pending determination of Respondent's claim.

2.15 The Respondent appealed against the above decision to High Court and on 29 March 2006 his Lordship Justice Winter (as he then was) allowed the appeal and made following orders/directions:

"Appeal succeeds

The judgment of Magistrates Court of 7 April is quashed.

The application for setting aside the judgment on counter claim is granted on terms.

(a) The full amount of the judgment and interest at % to the 31 March 06.

12% is to be paid into Court (on interest bearing account). 5% by the 30/4/06.

(b) Interest on the counterclaim is to run at the face rate on the crop lien until final judgment indemnity.

(c ) A cost of the defendant are to be

prepared entered and submitted to the Master for taxation by the 10th April.

(d) The plaintiff is to certify its case for hearing no later than the 30th April 06.

The original proceedings are to be referred to another magistrate for hearing. I request the Chief Magistrate arrange an urgent fixture."

2.16 MCA was called on 22 January 2007 before Resident Magistrate Mr S Kumar, when it was adjourned to 26 February 2007 and then to 28 March 2007 for it to be called in another Court.

2.17 On 28 March 2007, MCA was called before Resident Magistrate Mr P Lomaloma (as he then was) and was adjourned to 8 August 2007 for hearing.

2.18 On 8 August 2008, MCA was adjourned to 14 August 2008 for mention. According to the file note, Statement of Claim and Defence has had been lost. Parties were to assist in reconstruction of the file. I have my doubts as to whether pleadings were actually lost as I have seen the original pleadings with original stamp evidencing payment of filing fees in Magistrates Court file at the time of hearing of this Appeal and prior to delivery of this Judgment.

2.19 On 14 August 2007, no one appeared for either party when MCA was adjourned to 21 August 2007 for mention.

2.20 On 21 August 2007, MCA was called before Resident Magistrate Mr A Tuilevuka (as he then was) when Counsel for the Appellant appeared and there was no appearance for the Respondent. On Appellant's Counsels' application MCA was adjourned to 10 September 2007 for formal proof of Appellant's counter-claim.

2.21 On 10 September 2007, the Resident Magistrate Mr P Lomaloma struck out Defence to counter-claim and Affidavit of Muttu Sami sworn on 18 June 2003, whereupon Appellant formally proved his counter-claim.

2.22 On 18 September 2007,___ judgment was entered against the Respondent in the sum of $10,346.00 plus costs of $200.00.

2.23 By Notice of Motion dated 13 November 2007, the Respondent moved the Court to set aside the judgment.

2.24 On 1 August 2008, the then Resident Magistrate set-aside the judgment and Ordered new trial before another Magistrate and Ordered Respondent to pay costs of $500.00.

2.25 Appellant filed this appeal against the decision to set-aside the default judgment entered on Appellant's counter-claim.

3.0 Grounds of Appeal

3.1 Except for Ground 1 gist of the other Grounds of Appeal is that the Learned Resident Magistrate failed to apply the principles of setting aside Judgment entered in default of appearance.

3.2 Since MCA was already listed for hearing before another Magistrate even though hearing date was vacated by the Court Ground 1 is not relevant for the purpose of this appeal.

3.3 The Learned Magistrate gave reasons for setting aside the Judgment as stated at paragraphs 7 and 8 of his Ruling in following terms:

"7. The issues raised by the Plaintiff's Counsel involve facts such as whether the case was listed on the day or not, whether there was misconduct by staff at the Court House. These questions can only be resolved in a proper trial where witnesses can testify and be cross-examined. The Court cannot make enquiries on this own into these issues of fact and rule thereon without either party being given the opportunity to test the evidence.

8. The second issue is whether or not I made an inadvertent mistake when I wrote on the record that the defence and defence to counter-claim had been struck out. Resolving this issue requires to me decide issues of fact known only to me, in which case I become a witness in a case that I am sitting on as a Magistrate."

3.4 The reasoning at paragraph 7 of the Ruling is contrary to the finding of facts by the Learned Magistrate at paragraph 4 of his Ruling where he states as follows:

"Plaintiff counsel submits that his non-appearance in Court was because the matter was not listed on the day and that his clerk checked and the file was in the registry and the clerk there told him it would not be called but that a NOAH would issue for the next date. However, the record shows that the file was listed in Court No. 1, was called before me and was formally proved because Plaintiff's counsel failed to turn up."

3.5 It seems that the Learned Magistrate got carried away by allegations and counter-allegations by clerk of law firms acting for the parties and the allegation against the Registry Staff.

3.6 I failed to understand why the allegation and counter-allegation by clerks needs to be resolved in a proper trial. All Court needs to do as to ascertain the facts from the Court record and if MCA was called on the date it was listed to be called and Court record support this as it does in this case then the Court should take heed of the Court record rather than what Solicitors law clerks are saying in their Affidavit.

3.7 I accept Appellant's Counsels' submission that the Learned Magistrate erred in setting aside the judgment for reasons in paragraph 7 and 8 of his Ruling.

3.8 The reasoning in paragraph 8 of the Ruling is also totally misconceived and misunderstood for the reason the Learned Magistrate was under a mistaken belief or led to believe by Respondent's Counsel that the Learned Magistrate instead of striking out claim, stuck out Appellant's defence. This is far from the truth.

3.9 On 19 September 2009, and prior to Appellant's evidence the Learned Magistrate stated as follows:

"Court - I note the Prosecution has only turned up once. Record supports defence. Defence to counter-claim and affidavit of Murti Sami 18 June 2003 stuck out."

3.10 It seems that the Learned Magistrate was led into believing that he in-advertently struck out the Appellant's Defence by Respondent's sub-mission to the Magistrates Court.

3.11 The reason I am saying that the Learned Magistrates may have been led to believe this by Respondent's submission is that at second paragraph at page .... of Respondent's submission filed in Magistrate Court in respect to setting aside application states as follows:

"Defence and Defence to counter claim and affidavit of Murti Sami 18 June 2003 struck off."

3.12 The quote from Learned Magistrates Ruling has following three sentences:-

First: "I note the Prosecution has only turned up once."

Second: "Record supports defence."

Third: "Defense to counter-claim and affidavit of Murti Sami on 18 June 2003 struck off."

3.13 Therefore the Learned Magistrate erred by setting aside the Judgment for this reason as Defence was never struck out by him.

4.0 Application to Set Aside Judgment

4.1 In view of substantial delay caused I will exercise Courts discretion to see whether the Judgment by default entered on 10 September 2009 should be set aside or not.

4.2 In Shocked and Another v Goldschmidt and Others [1998] 1 All E.R.372, Lord Justice Leggatt is respect to setting aside Judgment obtained in default stated as follows:

"The cases about setting aside judgments fall into two main categories: (a) those in which judgment is given in default of appearance of pleadings or discovery, and (b) those in which judgment is given after a trial, albeit it 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 by mistake or accident or without fault on his part, the party has deliberately elected not to appear, and an adjudication of the merits has thereupon followed." (pp. 377 and 378)

4.3 His Lordship in identifying the factors to be taken into account in setting aside default judgment in default of appearance stated as follows:

"(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."

4.4 In Cameron v Cole (1994) 68 C.L.R.571 his Honour Justice Rich stated as follows:

"It is a fundamental principal 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". (p 589)

4.5 In Grimshaw v Dunbar [1953] 1 All E.R 350 Lord Justice Jenkins sated as follows:

"Be that as it may, 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 witness 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..." (p 355 para-A)

4.6 The above principle and factors was quoted and adopted with approval by his Lordship Justice Connors (as he then was) in Rosedale Limited v Kelly [2004] FJHC; HBC 0323. 1997L (11 June 2004)

4.7 In summary the factors that needs to be considered in dealing with application to set-aside Judgment _ in default of pleading or appearance are:

"(i) Whether there has been inordinate delay in making the application.

(ii) Whether the default/non appearance and delay has been reasonably explained.

(iii) Whether there is real prospect of success of claim or defence.

(iv) Whether party in whose favour judgment has been entered will be prejudiced.

(v) Public interest in litigation to proceed to conclusion in an efficient and timely manner.

(vi) Overall Interest of Justice."

4.8 However, before considering the above factors, the court needs to see whether the Learned Magistrates had powers to adjourn the MCA for formal proof when it was listed for mention on 21 August 2007.

4.9 There is no provision in the Magistrates Court Rules that gives the Magistrates power to strike out any pleading and adjourn the matters for formal proof when a party fails to appear on a mention date.

4.10. A Magistrate can only strike out pleadings of defaulting party and hear evidence of party in attendance when the matter is set down for hearing.

4.11 Order 30 of the Magistrates Court Rules provide as follows:

Order 30 - Non Attendance of Parties at Hearing

Non appearance of both parties

"1. Where a civil case on the cause list has been called, if neither party appears, the court shall, unless it sees good reason to the contrary, strike the cause out of the cause list.

Of Plaintiff

2. If the Plaintiff does not appear, the court shall, unless it sees good reason to the contrary, strike out the cause (except as to any counterclaim by the defendant), and make such order as to costs, in favour of any defendant appearing, seems just;

Provided that, the Defendant shall admit the cause of action to the full amount of claim, the court may, if it think fit, give judgment as if the Plaintiff had appeared.

Of Defendant

3. If the Plaintiff appears, and the Defendant does not appear or sufficiently excuse his absence, or neglects to answer when duly called, the court may, upon proof of service of the summons proceed to hear the cause and give judgment on the evidence adduced by the plaintiff, or may postpone the hearing of the cause and direct notice of such postponement to be given to the defendant.

Counterclaim where plaintiff does not appear

4. Where the defendant to a cause which has been struck out under rule 2 has a counterclaim, the court may, on due proof of service on the plaintiff of notice thereof, proceed to hear the counterclaim and give judgment on the evidence adduced by the defendant, or may postpone the hearing of the counterclaim and direct notice of such postponement to be given to the plaintiff.

Setting aside of judgment made in absence of party

5. Any judgment obtained against any party in the absence of such party may, on sufficient cause shown, be set aside by the court, upon such terms as may seem fit;

Re-listing of cause struck out

6. Any civil cause struck out may, be leave of the court, be replaced on the cause list, on such terms as to the court may seem fit."

4.12 The only provision pursuant which a Magistrate can hear evidence on the claim or counter-claim without one of the parties being present is Order 30 of the Magistrate Court Rules.

4.13 Therefore the procedure to be adopted by the Magistrates Court when a party fails to appear on a mention date or a date set down to fix hearing date is as follows:

"(i) Fix a hearing date;

(ii) Serve Notice of Adjourned Hearing (NOAH) on the absent party or the absent party's solicitor on record.

(iii) In any party fails to appear at the hearing and upon proof of service of the NOAH on the absent party, Magistrate can then determine the matter pursuant to provision of Order 30 of the Magistrates Court Rules."

4.14 Since the above procedures were not adopted by the Learned Magistrate when formal proof date was assigned and Appellant formally proved his counter-claim, the judgment entered on 18 September 2007 should be set aside.

4.15 I will now consider whether the judgment would have been set aside if the Learned Magistrates had followed the procedure in paragraph 4.13 of this Judgment.

Whether there has been inordinate delay.

4.16 Judgment was delivered on 18 September 2007. Application to set aside the judgment was made on 20 November 2007.

4.17 Delay of two months is quite long given the fact the Respondent's Solicitors became aware about Appellant's counter-claim being formally proved as early as 21 September 2011.

Whether non- appearance has been reasonably explained.

4.18 It is well established that when judgment is entered against any party for failure to attend Court or default of pleadings such party must by way of Affidavit evidence show that:
(i) The reason for delay in filing setting aside applications;
(ii) The is reason for default or non-appearance
(iii) It has meritorious claim or defence which has real prospect of success.
(iv) No prejudice will be caused to the other party if judgment is set aside;
(v) It is in the interest of justice that judgment be set aside.

4.19 It is apparent from Affidavits filed that there is allegations and counter-allegations between clerks of law firms representing the parties.

4.20 There is also allegation against one of the Court Officers by Respondent's clerk.

4.21 It seems to me that there is a practice for Legal presentations to take same date for various matters and then rely on their clerks to arrange appearance in matters which the Legal Practitioner choose not to attend. This practice is more prevalent in Magistrates Court.

4.22 Whilst Legal Practitioners have right to choose how they manage their case load, it is to be borne in mind that, if because of clerks inaction or oversight, Judgment is entered against the Legal Practitioners client then the Legal Practitioner and his client has to face the consequences of such inaction or oversight.

4.23 In this instance the Respondent relied heavily on the blame game between the clerks of the law firms as reason for Respondent or his Counsel not appearing in Court.

4.24 The attendance record at pages 13 and 15 of the Copy Record shows that Counsel for the Respondent last appeared in MCA on 28 November 2007 before Resident Magistrate Mr Lomaloma. Thereafter MCA was called on 8, 14 and 21 August 2007 when there was no appearance on behalf of the Respondent. Except for 14 August 2007, Counsel for the Appellant appeared on other two occasions.

4.25 Whilst in the Affidavit of Madakani Lata sworn on 13 November 2007 (Page 108 of copy Records) (hereinafter referred to as "Madakani Affidavit") she explains what allegedly happened on 14 August 2007, she failed to explain Respondent's Legal Counsel's absence on 8 August 2007.

4.26 At paragraphs 8, 9 and 10 of Madakani's Affidavit she states as follows:-

"8. Early in the month of September 2007, Maqbool & Company's Clerk Uday visited our office and I asked him whether he knew of the date to which this case had been adjourned.

9. He gave me 21st September 2007 as the date, I later conveyed this date to our Senior Clerk Salendra Kumar who entered the date in the Court diary.

10. On 21st September 2007, I handled the case file to Mr Ram who then went to attend Court."

4.27 At paragraph 4 of Uday Pratap's Affidavit sworn on 20th February 2008 (hereinafter referred to as "Uday's Affidavit") and filed on behalf of the Appellant he states as follows:-

"4. I categorically state that this case was called on 8th August 2007 and neither the plaintiff nor its solicitors appeared. The case was again called on 14th of August 2007 neither the plaintiff nor its solicitors or clerks of Gibson & Company were in Court. The case was adjourned to 21st August 2007 and I advised the plaintiff and Mr. Sen of the said dates."

4.28 At paragraph 10 of Salendra Kumar's Affidavit sworn on 8 March 2008, (hereinafter referred to as "Salendra's Affidavit") filed on behalf of the Respondent he states as follows:-

"10. In reply to paragraphs 22 and 26 of the Defendant's affidavit I annex hereto marked "A" a photocopy of our case file cover which records a minute made on 8th Auguste, 2007, that the case was adjourned to 14th August, 2007 for a mention and bears the initial of the Defendant's counsel."

4.29 The file note annexed as annexure "A" to Salendra's Affidavit is not reliable and seems suspect for following reasons:

"(i) 21 September 2007 being the date allegedly advised by Uday Pratap as stated in Madakani's Affidavit is not stated there;

(ii) If MCA was listed in diary then why relevant page of diary was not annexed;

(iii) Why there is no file record in respect to setting said application called on 5 and 19 February, 11 and 14 March and 1st April 2008 when Counsel for Respondent appeared in Court."

4.30 For reason stated herein I do not give any weight to the Affidavit evidence of both Solicitors clerk.

4.31 Whilst it is desirable that when a matter is adjourned to another date for mention, hearing or for any other reason in the absence of a litigant or the litigant's Counsel a NOAH be served on the absent litigant or Counsel, it is incumbent upon the litigant or his or her Counsel and it is their sole duty to ensure that he/she keeps a proper record of the Court proceedings.

4.32 If matters are not called on the date it is supposed to be called as is alleged by the Respondent then t it is incumbent the Legal Practitioner to liaise with the Court Registry and ascertain the dates rather than liaising with clerks of the opposing Counsel.

4.33 I find that the reasons advanced on behalf of the Respondent for non appearance of Respondent's Counsel on 14 and 21 August 2007 and on 10 September 2007 as totally unsatisfactory.

Whether Respondent's Claim and Defence to Counter-Claim has Real Prospect Of Success

4.34 Respondent claim arises out of payment made on crop lien by mistake on its part to the Appellant when there was prior crop lien given by the grower in favour of FDB.

4.35 Appellant in his defence states that he paid the grower $12,000.00 pursuant to the Crop Lien given in his favour and he only did so because of representation made by Respondent that there is no prior Crop Lien.

4.36 Appellant counter-claims $9.086.00 plus $1,260.00 interest being the balance amount to be paid under the Crop Lien.

4.37 Respondent will need to establish that Respondent did not make any representation and the Crop Lien in favour of the Appellant was registered/noted subsequent to the FDB's Crop Lien.

4.38 It is apparent that Oral evidence needs to be heard in respect to alleged representation by Respondents officers to the Appellant and such evidence will determine whether Respondent's Claim and Defence to Counter-Claim is successful or not.

4.39 However, the fact that Crop Lien in favour of the Appellant was noted by the Respondent and Respondent paid a sum of $2,914.00 were indicated that Respondent by it. So offices did make to the representative to the Appellant and payment was of $2,914.00 was not made by mistake.

4.40 Subject to my comment at paragraph 5.33 I do not think Respondent has any real prospect of success in respect to its Claim or Defence to Appellant's Counter-Claim if Appellant did advance the amount of $12,000.00 to the grower.

Prejudices to the Appellant

4.41 Respondent states that it has paid the Judgment sum in Court as such Appellant will not suffer any prejudice.

4.42 This submission is totally misconceived. Mere fact that judgment sum is paid in Court does not mean the party entitled to the judgment sum is not prejudiced.

4.43 The litigant in whose favour judgment is entered will be prejudiced if he/she is not in a position to call witness to prove his/her Counter-claim or disprove Plaintiff's claim or documents been destroyed.

4.44 In this instance the Appellant has except for stating the delay allegedly caused by Respondent has failed to state as to how he will be prejudiced if Default Judgment is set aside.

4.45 In Arvind Harakh v. Fiji Public Service Association (Unreported) Lautoka High Court Civil Action No. HC0347 of 1994L it was stated as follows:

"This [public interest prejudice] occurs when cases do not move through the courts system with smooth and steady progression from Writ to trial and judgment, from commencement to disposal. It is not in the public interest for cases to languish in Court registries unresolved." (Page 6)

4.46 Another factor highlighted by this Honourable Court in Arvind Harakh v. FPSA (Page 7) is:

"the added difficulty cast upon the trial judge. He or she has to hear from witnesses with diminished recollections, and not to hear from witnesses who may have been able to supply the determinative evidence upon which the judge might with confidence have founded his decision. He is left instead with less than the originally available evidence such remainder being less convincing than could have been if it could have been recollected and heard earlier. None of this is in the public interest for the operation of a fair system of justice."

4.47 The following passage from Halsburgh Laws of England 4th Edition (Vol. 37) lends support to the "public interest prejudice" category:

"...The Principle is that it is the duty of the plaintiff's advisers to "get on" with the case, since public policy demands that the business of the courts should be conducted with expedition..." (para. 448)

4.48 The following statement of Lord Woolf in the case of Grovit & Others v. Doctor & Others was quoted with approval by this Honourable Court in Harakh v. FPSA:

"The requirement laid down by the second principle that the delay has to cause serious prejudice to the defendants can and has been the subject of criticism. It is suggested:-

(1) The effectiveness of the court's power to strike out proceedings as a sanction against delay is undermined by the need to show prejudice to the defendants.

This requirement prevents the court taking into account the adverse effect which delay can have on the reputation and efficiency of the civil justice system as a whole. Defendants (for reasons which will be explained later) find it difficult to establish prejudice, so the requirements of the Rules of the Supreme Court and the County Court Rules as to time can usually be ignored with a reasonable degree of confidence that nothing very serious will happen in consequence. Actions therefore take much longer to come to trial than they should and the general impression given to the public is that litigation is a very long drawn-out process with which they should try to avoid becoming involved.

(2) What is regarded as capable of amounting to prejudice is too restricted. Normally little regard is paid to the anxiety caused to litigants as a result of litigation. The fact that a defendant will normally recover his costs if he succeeds is regarded as providing a sufficient protection to the defendant for the consequence of being involved in the proceedings. This is far from being the position, the costs payable do not usually indemnify the defendant for the cost actually incurred and their recovery is delayed.

(3) In order to establish prejudice a defendant is required usually to show that the delay has prejudiced him in the conduct of his defence. This will involve him in having to demonstrate, for example, that his witnesses' recollection has been adversely affected. Relying on this sort of ground is all right from the defendant's point of view if the action is struck out but can be unfortunate if the action is not struck out since he has undermined his own case by his comments about his witnesses."

4.49 MCA was filed in 1999 and has been subject to two formal proofs by Appellant and two Setting Aside Applications by the Respondent, one Appeal to High Court by Respondent and this current Appeal.

4.50 It is beyond reason as to how this matter took so long to resolve.

4.51 From the Copy Record received it is clear that it is the parties or their Counsel in particular Respondent or his Counsels' action which resulted in this matter pending in court for 15 years.

4.52 The Court below is to take some responsibility for the state of affairs of this proceeding with the caveat this comment is no way directed to current Magistrates as none of them has handled the MCA to-date.

4.53. Interest of Justice also demands that this matter be put to an end by leaving the Default Judgment as the facts of this case fits squarely within the principle of public interest prejudice stated in Arvind Harakh and Grovit's.

4.54 If not for my reasons stated at paragraphs 4.9 to 4.14 of this Judgment I would not have set-aside the judgment by default by applying the principles of setting aside default judgment sated above.

5.0 Conclusion

5.1 I will set aside Judgment by default entered on 18 September 2007 in Labasa Magistrates Court Action No. 142 of 1999 for reasons stated at paragraphs 4.9 to 4.14 of this Judgment.

5.2 Whilst the judgment is set aside the state of affairs leading to setting aside application and the Learned Magistrate failing to take into account relevant consideration and taking into account irrelevant considerations, the Appellant had legitimate grounds to bring this Appeal, I am of the view costs of the Appeal should be awarded to the Appellant.

5.3 I make following Orders:

(i) Judgment entered on 18 September 2007 in Labasa Magistrates Court Action 142 of 1999 in favour of the Appellant (Defendant) be set aside.

(ii) Respondent pay Appellant's costs of this Appeal assessed in the sum of $1,000.00 within seven days of this Judgment

(iii) Senior Court Officer of Labasa Magistrates Court (Civil Section) to refer this matter to the Magistrate with a view to assigning urgent hearing date.

(iv) Senior Court Officer to report progress of the Magistrates Court Action No. 142 of 1999 to the Chief Magistrate and Chief Registrar of High Court on a fortnightly basis until such time this matter is determined.

(v) If the Magistrate Court Action No: 142 of 1999 is not heard and determined by 15 January 2015, then the Magistrates Court Action is to be transferred to Master of High Court, Labasa for the Master to assign a trial date of the said Action before a Judge of the High Court pursuant to section 33 of the Magistrates Court Act.

K. Kumar
JUDGE

At Suva
22 October 2014

Maqbool & Co. for the Appellant/Defendant
Gibson & Co. for the Respondent/Plaintiff