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Fiji Times Ltd v Fiji Post Company Ltd - ruling [1995] FJHC 134; Hbc0314d.95s (9 August 1995)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 0314 OF 1995

Between:

FIJI TIMES LIMITED
Plaintiff

- and -

FIJI POST COMPANY LIMITED
First Defendant
TANIELA BOLEA
Second Defendant
C.J. PATEL & COMPANY LIMITED
(proposed) Third Defendant

Mr. M. Daubney for Plaintiff
Mr. S.P. Sharma for (proposed) Third Defendant

RULING

This is an opposed interlocutory application by the plaintiff company for leave to join C.J. Patel & Co. Ltd. as an additional defendant in this action which was instituted by the plaintiff company against the 1st and 2nd defendants alleging a breach of Section 46 of the Fair Trading Decree 1992 which makes it an offence in trade or commerce to engage in the practice of 'exclusive dealing'.

In support of its application the plaintiff company has filed an amended Statement of Claim alleging that C.J. Patel & Co. Ltd. had aided, abetted, counselled or procured the 1st and 2nd defendants to contravene the provisions of Section 46 of the Fair Trading Decree and/or was directly or indirectly, knowingly concerned in the aforesaid contravention in securing and/or facilitating the provision of 'exclusive advertising agreements' between the 1st and 2nd defendants and various local supermarkets.

The 'particulars' provided in the amended Statement of Claim refers to a letter of 6 June, 1995 which contain the terms of a proposal whereby C.J. Patel & Co. Ltd. would provide a cash subsidy for supermarket advertising placed with the 1st defendant's newspaper the 'DAILY POST' over a specified period, and thereafter to act as a 'conduit' for the payment of all supermarket advertising placed in the 1st defendants' newspaper pursuant to 'exclusive advertising agreements' entered into between the 1st defendant company and the supermarkets.

Counsel for the proposed third defendant company in opposing the application submits that the plaintiff company's affidavit in support "... is wholly devoid of any facts acts or circumstances indicative of at least a prima facie (proof of the third defendant company's involvement in the defendants' scheme)." Objection is also taken to the 'hearsay' nature of the evidence deposed in the affidavit.

As to this latter point Order 41 r.5(2) of the High Court Rules expressly provides:

"An affidavit sworn for the purpose of being used in interlocutory proceeding may contain statements of information or belief with the sources and grounds thereof."

In this latter regard the deponent identifies his 'source' as being 'the Plaintiff' and although objection is taken to its hearsay nature I cannot agree that there is any substance in it having regard to the averments and 'Particulars' provided in the amended Statement of Claim.

I turn then to consider whether or not and despite its objection, this is an appropriate case for the grant of the court's leave to join the proposed 3rd defendant company under Order 15 r.6(2)(b) of the High Court Rules 1988 which provides:

"... at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application -

(b) order any of the following person to be added as a party namely -

(i) any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectively and completely determined and adjudicated upon , or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

It is plain that the above Order is drafted in the widest possible terms and enables the Court even 'of its own motion', to order joinder so as to bring all parties to any dispute relating to the one subject-matter before the Court at the same time so that the dispute may be determined without the delay, inconvenience and expense of separate actions and trials (per Lord Esher M.R. in Byrne v. Brown (1889) 22 Q.B.D. at pp. 666-667).

I am content to adopt as the correct approach by the court to an application under Or. 15 r.6(2)(b), the statement of Lord Denning M.R. in Gurtner v. Circuit (1968) 2 Q.B. 587 at 595 when he said:

"It seems to me that when two parties are in dispute in an action at law, and the determination of that dispute will directly affect a third person in his legal rights or in his pocket, in that he will be bound to foot the bill, then the court may in its discretion allow him to be added as a party on such terms as it thinks fit. By so doing, the court achieves the object of the Rule. It enables all matters in dispute to "be effectively and completely determined and adjudicated upon" between all those directly concerned in the outcome."

I am also mindful that it has been held by the High Court of Australia in Yorke v. Lucas [1985] HCA 65; (1985) 158 C.L.R. 661 at 666-669 that to have 'aided and abetted' a contravention under the Trade Practices Act it must be proven that the person accused was aware or should have been aware of the facts that give rise to the contravention and that proof of intent (to aid or abet) is not required.

Furthermore as to the material which the court may have regard to in the exercise of its discretion I accept the judgment of Sheppard J. in Jytel Pty Ltd. v. Australian Telecommunication Commission (1988) A.T.P.R. 40-847 (referred to by defence counsel) where it was:

"Held: (2) In deciding whether the Statement of Claim disclosed the alleged cause of action ... although the court should ultimately only have regard to the allegations in the Statement of Claim, it would place some importance on the restricted documents (which) would assist the Court in assessing the nature and strength of the applicant's case."

A fortiori where the document concerned forms almost the entire basis of the plaintiff's claim against the proposed additional defendant as the letter of 6th June 1995 appears to be in this case.

In all the circumstances I am satisfied that this is a proper case for the exercise of the Court's discretion and accordingly the plaintiff company's application to join C.J. Patel & Co. Ltd. as a third defendant in the action is granted. The amended Statement of Claim if not already filed is to be filed and served on the 3rd defendant company in accordance with Order 15 r.9 of the High Court Rules 1988. The action is to take its normal course thereafter.

(D.V. Fatiaki)
JUDGE

At Suva,
9th August, 1995.

HBC0314D.95S