IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 271 OF 1992

BETWEEN:

STANDARD CONCRETE INDUSTRIES LIMITED
a limited liability company having its
registered office at Suva, Fiji
Plaintiff

AND

J.P. BAJPAI AND COMPANY LIMITED
of Nabua, Suva
First Defendant

AND

ISHWARI PRASAD BAJPAI Director of
J.P. BAJPAI AND COMPANY LIMITED
of Nabua, Suva
Second Defendant

R. Gopal for the Plaintiff
A. Seru for the Defendants

Date of Hearing: 28th November 1994
Date of Ruling: 28th November 1994

RULING

In this action the Plaintiff claims from the Defendants the sum of $15,156.03 being the amount allegedly due and owing by the First Defendant to the Plaintiff for concrete sold and delivered to the First Defendant by the Plaintiff from time to time between the months of October and December 1991.

The Second Defendant is sued as the guarantor of the debt allegedly owing to the Plaintiff by a Letter of Guarantee dated 12th of July 1990 allegedly given to the Plaintiff.

The Statement of Claim further alleges that the debt is well-known to the Defendants as particulars had already been supplied to them by the Plaintiff.

The Defendants in their Defence admit that the Second Defendant is guarantor of the First Defendant's indebtedness but deny that there is such indebtedness due to the Plaintiff. Save for the fact that particulars for a "certain debt" had been supplied to the First and Second Defendants by the Plaintiff the Defendants deny any liability to the Plaintiff. Rather they counter-claim that as a result of the failure of the concrete supplied by the Plaintiff at the First and Second Defendants' building project the project was delayed for one month in its completion covering the period from the 18th of October to the 18th of November 1991.

As a result the Defendants claim to have suffered damage and give particulars in their counter-claim. It is not necessary to refer to these in this Ruling.

After he completed his opening counsel for the Plaintiff raised a preliminary question which requires this Ruling namely who has the right to begin in the case?

The Courts have from time to time had to consider this question. Counsel for the Plaintiff relied on a passage in Halsbury's Laws of England 3rd Edition, Vol. 15 at Paragraph 270.

In the limited time available to me I have looked at the later edition of Halsbury's Vol. 17, Paragraph 17 and one of the cases cited therein. Both editions of Halsbury mention the case of Scott v. Lewis (1836) 7 C & P 347 at 349 where Coleridge J. stated that the right to begin depends more upon what justice to the parties requires than upon any strict rule. 

One of the cases cited by Halsbury in the 4th Edition in Paragraph 17 of Vol. 17 is W. Lusty & Sons Ltd. v. Morris Wilkinson & Co. (Nottingham) Ltd. (1954) 2 All E.R. 347 which was a decision of Lloyd-Jacob J.

This was an action under the English Registered Designs Act (1949) to restrain the Defendants from threatening a Plaintiff with proceedings for infringement of the copyright in a registered design. The Plaintiffs alleged that letters written to them by or on behalf of the Defendants constituted threats. By their defence the Defendants denied the threats and counter-claimed against the Plaintiffs.

In his ruling at page 348 Lloyd Jacob J. cited with approval the remark of Brett, L.J. whom he described, as I think we would all agree, as "the renowned Lord Justice", in Thomson v. South Eastern Railway Co. (1882) 9 Q.B.D. 320.

Brett, L.J. put the matter in perfectly simple form. He said at page 328 that the duty falling on the court is to consider "what is the fair mode of trying that which is shown to be the substantial matter ..."

Lloyd Jacob J. then continued that, having regard to the admissions offered by counsel for the Defendants in the case before him, the "substantial matter" before the court was the determination of the issue in the counter-claim, viz., whether or not the Plaintiffs had infringed the registered design. His Lordship held that this was a matter on which counsel for the Defendants would be entitled to open.

In this case counsel for the Plaintiff rather curiously appears to be willing to forgo his right to begin for what I have little doubt are tactical reasons. He argued that the Defendants should begin. He has referred me to the Minutes of a Pre-trial Conference held between the parties' solicitors on the 13th of May 1993 when it was decided:

(1) It is not in issue that the Plaintiff sold concrete to the First Defendant in the sum of $15,156.03.

(2) It is not in issue that the Second Defendant is the guarantor of the debt.

It is then stated that the following are in issue:

(1) Was there a concrete failure at the Defendants' building project at Nabua?

(2) If there was a concrete failure whether it caused a one month's delay from 18th October 1991 to 18th November 1991 to the Defendants' building project?

(3) Was there a breach of duty of care by the Plaintiff to the First and Second Defendants?

(4) Whether the Defendants have suffered any damage as a result of any such breach?

In the light of the authorities I have mentioned I have come to the conclusion that the substantial matter before the Court is the determination of the issue of the counter-claim namely whether there was a concrete failure by the Plaintiff in the concrete supplied by it and if so whether this caused the Defendants any loss which they are entitled to recover from the Plaintiff.

Accordingly in my judgment the Defendants should begin in this case and I so rule.

JOHN E. BYRNE
J U D G E

Authorities mentioned in judgment:

Halsbury's Laws of England, 3rd Edition, Vol. 15, Paragraph 494.
Halsbury's Laws of England, 4th Edition, Vol. 17, Paragraph 17.
Thomson v. South Eastern Railway Co. (1882) 9 Q.B.D. 320.
W. Lusty & Sons Ltd. v. Morris Wilkinson & Co. (Nottingham) Ltd. (1954) 2 All E.R. 347.

No other authorities were mentioned in argument.
HBC0271D.92S