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Shantilal Brothers (Fiji) Ltd v Reddy Construction Company Limited [1997] FJHC 219; Hbc0381d.89s (17 July 1997)

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

ACTION NO. 381 OF 1989

BETWEEN:

SHANTILAL BROTHERS (FIJI) LIMITED
a limited liability company having
its registered office at Suva
Plaintiff

AND

REDDY CONSTRUCTION COMPANY LIMITED
AND FLETCHER CONSTRUCTION COMPANY (FIJI) LIMITED
both carrying on business as Joint Venture in Fiji
under the name of "Reddy Fletcher Contractors"
Defendant

H. Lateef for the Plaintiff
V. Kapadia for the Defendant

Date of Hearing: 17th July 1997
Date of Ruling: 17th July 1997

RULING

This is a building case in which the Plaintiff is claiming damages for breach of contract from the Defendant. The breach is alleged to concern defective tiling by the Defendant in a building built by them in Toorak, Suva.

On the 12th of December 1996 Mr. H. Lateef appeared before me for the Plaintiff and Mr. R. Patel of Sherani & Co. for the Defendant when I fixed the case for hearing before me on 22nd, 23rd and 24th July 1997.

On the 16th of July 1997 the Defendant issued a Notice of Motion returnable today for an Order that this case be heard by another Judge or alternatively that the hearing be adjourned to another date before another Judge on the grounds appearing in an affidavit of one Sanjlesh Lal sworn on the 16th of July 1997. Mr. Lal is a Law Clerk employed by the solicitors for the Defendant. He states that he had been informed by Mr. B.C. Patel, counsel for the Defendant that the Defendant is likely to call Mr. Malcolm Brain of J.S. Hill & Associates Limited as a witness at the trial.

Mr. Lal deposes that he believes I was one of the Plaintiffs in High Court Action No. 228 of 1990 brought against J.S. Hill & Associates Limited and Mr. Malcolm Brain who is one of the Directors of that Company gave evidence on behalf of J.S. Hill & Associates Limited.

He says that in the circumstances it does not appear to be proper that I be required to determine the issue of credibility involving Mr. Malcolm Brain.

Finally he states that he has been advised by Mr. B.C. Patel that it is not possible to disclose the exact nature of the evidence that will be given by Mr. Brain as it will depend very much on the evidence led by the Plaintiff but what is certain is that an issue of credibility would arise if Mr. Brain gives evidence.

I believe it is common knowledge among many members of the legal fraternity and judiciary of Fiji that Mr. Malcolm Brain gave evidence on behalf of J.S. Hill & Associates Limited and was cross-examined at some length as to his credibility by counsel for my wife and myself who were Co-Plaintiffs in that action.

It is fair to say that I entertain very strong views about the credibility of Mr. Malcolm Brain as a result of the evidence which he gave in our action against his Company of which I believe he is a Director. Therefore, in normal circumstances I would have agreed to disqualify myself from hearing the instant case. But, as I stated to counsel this morning, I do not consider that if left to myself to decide, the present circumstances are normal.

I was informed by Mr. Kapadia who appeared for the Defendant and who had this morning spoken to Mr. B.C. Patel in New Zealand that Mr. Patel stated that he was not aware until a few days ago that I was to be the trial Judge in this case. I cannot accept this statement. The solicitors for the Defendant well knew over seven months ago that I was to be the trial Judge and that the Defendant must have equally well known that if the case proceeded to trial it would wish to call Mr. Malcolm Brain. It would then have had an opportunity if it wished to apply to me to disqualify myself at least soon after I had fixed a date for hearing. This was not done but if it had been done I would have had no hesitation in rejecting the application on the ground that there were many other builders in Fiji who could in my opinion give evidence as to quality of building work other than Mr. Brain. I expressed this view this morning to Mr. Kapadia.

Mr. Lateef stated that the Plaintiff would incur substantial costs if I granted the Defendant's application and gave as an example the fact that on the weekend of 5th and 6th of July last he had been in conference with overseas counsel Mr. Stanton for approximately six hours preparing the Plaintiff's case. Mr. Lateef stated that he would consent to the Defendant's application only on condition that the Defendant paid to the Chief Registrar of this Court no later than 10.00 a.m. tomorrow the 18th of July the sum of $1,500.00 costs assessed on a solicitor-own client basis.

Mr. Kapadia then took instructions and agreed to this condition.

The result is that by consent I now refer this case back to the Deputy Registrar to fix another date of hearing before another Judge. It is only fair to say that if Mr. Lateef had not consented to this Order I would have rejected the Defendant's application because I consider it an abuse of process to make such an application less than seven days before the date fixed for trial of an action. It is desirable that the legal profession appreciate that when a case is fixed for hearing the Court administrative system comes into action and arranges for the allocation of staff and a Court for the hearing. It also means in this instance that other litigants could have taken dates which I had allotted for the hearing of this case. As such they have now been deprived of that right.

It is to be hoped that there will be no further late applications of this nature. Of course cases occasionally have to be adjourned at short notice for various reasons such as illness of one of the parties, counsel or the Judge but where as here the Defendant knew over seven months ago of the name of the Judge who was to hear the case, to make such an application at such a late date is either being stupidly optimistic or shows complete disregard of the orderly administration of the Courts. Neither of these alternatives will be accepted by this Court.

The Order I make is that subject to the Defendant paying the sum of $1,500 costs of this application to the Chief Registrar of this Court by 10.00 a.m. on 18th July 1997 and thereafter to the solicitors for the Plaintiff this action is to be adjourned to the Deputy Registrar's list to be re-fixed for hearing by another Judge, failing which the trial will proceed before me on the 22nd of July 1997.

JOHN E. BYRNE
J U D G E

HBC0381D.89S