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Pacific Coatings Ltd v Gunac (South Pacific) Ltd [2010] FJMC 25; Civil Case 406.2009 (3 May 2010)

IN THE RESIDENT MAGISTRATE’S COURT OF SUVA

Civil Case No:- 406/09

PACIFIC COATINGS LIMITED

V

GUNAC (SOUTH PACIFIC) LIMITED

For Plaintiff : -
For Defendant : -

RULING

1. The Plaintiff filed this case on 11th of November 2009 and writ of summon was issued on the Defendant. On the 16th December 2009, the Defendant moved 14 days to file the defendant’s statement of Defense, accordingly court ordered and fixed 14th of January 2010 for the defendant to file his statement of defense.
   
2. On 14th of January 2010, neither Defendant nor the counsel for the defendant was present and counsel for the plaintiff moved the court to enter a judgment by default against the defendant. Accordingly, the court entered a judgment by default against the defendant.
   
3. On 15th of January 2010, the Counsel for the Defendant filed a motion together with the Affidavit in Support to set aside the judgment by default dated 14th of January 2010.
   
4. The plaintiff field affidavit in opposition in respect of the application for the set aside the judgment by default dated 14th of January 2010. Subsequently both parties filed their written submissions. After perusal and consideration of the said affidavits of both parties and submissions, I deliver my order in respect of the application of set aside of the judgment by default dated 14th of January 2010.
   
5. Defendant stated that on the 14th of January 2010, the counsel for the defendant was informed by the court clerk, that there was no magistrate present and the case would be adjourned since there will be no magistrate presiding in courts No 2. The counsel for the Defendant then informed the said court clerk to stood down the said case at the end of the mention list as the said counsel for the defendant had to appear in court No 5 as well. The Defendant stated that the counsel for the defendant relied on the information given by the said court clerk that there was no Magistrate presiding in Court No 2, and only the counsel had to give consent with the Plaintiff counsel on the next mention date. Subsequently when the counsel came to court No 2, found that the matter was called in open court before my sister learned magistrate and judgment by default was granted against the defendant.
   

Legal Background.

6. Rule 3 of order XXXIV of the magistrates’ courts’ rules is the relevant provision in this application.
   

" if a defendant in any suit makes such default or failure the court, may give judgment by default against such defendant, or make such other order as to the court make seem just".

" Provided that any judgment by default, may be set aside by the court upon such terms as to cost or otherwise as the court may think fit".

7. The rule 3 of order XXXVI conferred the discretion to the magistrates’ court both in respect of the giving of a judgment by default or in the making of such other order and discretion in like terms to set aside the judgment by default as per the proviso of the said rule 3 of order XXXVI.
   
8. Fry LJ held in Anlaby v Praetorious (1888) 20 Q.B.D.764 ( which was referred in Subodh Kumar Mishra v Car Rental (Pacific) Ltd [1985] 31 FLR 49), " there is a strong distinction between setting aside a judgment for irregularity in which case the court has no discretion to refuse to set it aside and setting it aside where the judgment thought regular, has been obtained through some slip or error on the part of the defendant in which case the court has a discretion to impose terms as a condition of granting the defendant relief".
   
9. In was held in Craig v Kanssen ( 1943) K.B.256, " accordingly,if the judgment was obtained irregularly as is contended, the appellant was entitled to have it set aside ex debito justitiae, but if regularly, the court was obliged to act within the framework of the empowering provision".
   
10. The basic principles applicable to setting aside judgments in the exercise of court’s discretion are set out in "Halsbury’s Laws of England vol 37, 4th Ed. Para 403, where it reads " in the case of a regular judgment, it is an almost inflexible rule that the application must be supported by an affidavit of merits setting the facts showing that the defendant has a defence on the merits, for this purpose it is enough to show that there is an arguable case for a triable issue". ( Pravin Gold Industries Ltd v The New India Assurance Company Ltd, (2003), FJHC 298, HBC0250d,2002s.(4 February 2003).
    
11. Accordingly, the court has to decide two issues in this application for the set aside of the judgment by default dated 14th of January 2010.
    
    1. Was that said judgment by default an irregularly obtained?
       
    2. If not, is there an arguable case for a triable issue if the defence is allowed on the merits of the defence?
       

First Issue:

12. The claim is the liquidated demand and My Learned Sister magistrate quite correctly dealt with the case according to the rule no 3 of Order VI of Magistrates’ Courts rules.
    
13. Wherefore, I am of the view that the judgment by default dated 14th of January 2010 is a regularly obtained order.
    

Second Issue.

14. The draft statement of defence was annexed with the submission of the defendant and in that they denied the claim as the same cause of action was already dealt with in another civil litigation.
    
15. Furthermore, the first few weeks in the January 2010, the magistracy in the Suva had to rearranged and reorganized its cause allocation as during the period of 14th of January only three learned Magistrates were presiding in Court No 3, Court No 4 and Court No5 following the termination of the former learned Magistrates in Court No 1, Court No 2 and Court No5. This transitional period of reorganizing and rearrangement of cause allocation created some difficulties and I am of the view that reason may be lead the said court clerk to inform the learned counsel of the defendant as he was affirmed in his affidavit in support.
    
16. It was held in Gardner v jay (1885)29,Ch.D.50. pg 58 ( which was referred in Subodh Kumar Mishra v Car Rental (Pacific) Ltd [1985] 31 FLR 49), that " when a tribunal is invested by act of parliament or by rules with a discretion, without indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view to indicating the particular grooves in which the discretion should run".
    
17. Accordingly, I ruled that there is an arguable case for a triable issue if the defence is allowed on the merits of the defence.
    
18. Wherefore, I set aside the judgment by default dated 14th of January 2010 entered against the defendant and ordered the defendant to file defendant’s statement of defence within 14 days. Further no cost or condition is granted against the Defendant according to the reason set out in paragraph 15.
    

On this 03rd day of May 2010.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.