IN THE HIGH COURT OF FIJI AT SUVA
CIVIL CASES

CIVIL ACTION NO. HBC 0167 OF 1993

BETWEEN:

BP SOUTH WEST PACIFIC LIMITED
Plaintiff

AND:

GOPAL PILLAY
Defendant

Counsel: Mr V. Maharaj for the Plaintiff
Mr A. Tikaram for the Defendant

Hearing: 3rd August 1999
Decision: 23rd August 1999

DECISION

This case was set for a two day trial, for 7th July and 8th July 1999.

On 30th June 1999 a Summons was filed in the High Court for the hearing of an application for leave to issue third-party notice against Subhash Chand f/n Shiu Prasad and Gursami f/n Rangsami. The Summons was supported by the affidavit of 
Gopal Pillay, the Defendant.

The application was heard inter-partes on 7th July 1999. Mr Tikaram for the Defendant submitted that he had only been instructed as counsel in this matter on 8th April 1999. He said that he immediately extracted the police file relevant to the proceedings, and filed the present application as soon as he perused it. He relied on the provisions of Order 16 Rule 1(1)(a) of the High Court Rules which provides:

“Where in any action a Defendant who has given notice of intention to defend -

(a)	claims against a person not already a party to the action any contribution or indemnity . . . . . .

then subject to paragraph (2), the Defendant may issue a notice . . . . .(in Order referred to as a third party notice) containing a statement of the nature of the claim made against him, and as the case may be, either of the nature and grounds of the claim made by him or of the question or issue required to be determined”.

Order 16 Rule 1(2) provides inter alia that where the notice is issued after service of the defence on the Plaintiff, the leave of the court is required.

Mr Tikaram submitted that a prima facie case was made out by the affidavit of 
Gopal Pillay in that his former employee Subhash Chand had been convicted of larceny on his own plea, and that the police file examined disclosed information relating to Gursami, an agent of the Plaintiff’s. He submitted that a duty of care existed by both third parties to the Defendant, one by virtue of his employment, and the other by virtue of the fact that he was delivering fuel to the Defendant on behalf of the Plaintiff. 

Mr Tikaram argued that given the considerable delay in this case caused by both parties since the writ was issued in 1993, the plaintiff would not be prejudiced or embarrassed by the inevitable delay if the application was successful. Finally he argued that any inconvenience could be protected by an order for costs.

The application was opposed by Mr Maharaj for the Plaintiff. He submitted that the application could have been filed in 1995 since the involvement of the third parties was known by the Defendant then, that this was a delaying ploy by the defendant, that since the events relating to the action took place prior to 1992, the defendant was barred from action against the third parties by virtue of the limitation period, and that there was no factual nexus between the criminal conviction of Subhash Chand and the facts in issue in this case. Finally he submitted that further delay prejudiced the Plaintiff’s ability to call witnesses who had a clear recollection of events.

On 12th July 1999 the Plaintiff, having been granted leave, filed the affidavit of Kalidas, an Accountant employed by the Plaintiff. He deposed that on a perusal of the police dockets in question, there was no evidence of conspiracy between Subhas Chand and Gursami, that the investigation showed that other employees of the company had received fuel and that many trucks (other than Gursami’s) had delivered fuel to the service station.

On 30th July 1999 the Defendant filed an affidavit in reply. The affidavit of Gopal Pillay deposes that although the police were unable to find sufficient evidence of a conspiracy, the allegations should be heard in open court.

The Defendant continues to maintain that there was a conspiracy to siphon petroleum products between Subhas Chand and Gursami.

The purpose of Order 16 Rule 1 is to prevent unnecessary multiple actions in respect of one dispute (Barclays Bank -v- Tom 1923 1KB p223). It is also to prevent the same question to be tried twice with possibly different results (Standard Ltd. -v- Hubbard (1967) Ch 1056).

The question for the court in this matter is firstly whether the defendant can claim indemnity against the third parties, and secondly whether it is just and expedient to have all actions tried together. Any prejudice to the Plaintiff must also be taken into account.

The writ of summons claims that the Plaintiff provided petroleum products to the Defendant. The Defendant owes the Plaintiff money for the petroleum. The Defendant’s defence is that he did not receive the products and that an agent of the Plaintiff, the tanker driver Gursami and the Defendant’s own employee had conspired together to steal the petroleum. The Defendant now wishes to add the third parties so that in the event that the Plaintiff succeeds, the Defendant can claim part or whole of the sum from the third parties as indemnity.

In Carshore -v- North Eastern Railway Company 1885 Ch 344, the approach the court took in deciding whether or not leave should be given to a Defendant to issue third party notice, was to ask whether the claim was a valid, rather than a frivolous one, and whether if established it will result in contribution or indemnity.

It is clear from the extracts of the police docket, annexed to the affidavit of Kalidas that whilst allegations have certainly been made as early as 5th August 1994 of a conspiracy between Gursami and employees of the Defendants to siphon petroleum products, these allegations have not been substantiated beyond suspicion. 

However, if the Defendant is able to substantiate the allegations, he would certainly be able to claim indemnity or contribution from the third parties.

There is no doubt that the Defendant was aware of the factual basis for this application shortly after the writ was filed. However, Mr Tikaram for the Defendant submits that he made this application as soon as he took over the case as counsel, and that his client should not be prejudiced because of the lack of action of his former solicitors. Whilst I sympathise with this submission, it is also important that the Plaintiff should not be prejudiced by the lack of action of the Defendant’s counsel.

It is clear that if this application is successful, further delay in the hearing of this action is inevitable.

Having considered the evidence submitted to the court in this matter, I am satisfied that the application for the issuing of third party notice is not a frivolous one, and that if the Defendant is able to prove his allegations against Subhash Chand and Gursami at the hearing he will have a valid claim of indemnity against them. Although the police investigations were unable to conclude that there was a prima facie case to justify prosecution of Gursami or Subhash Chand for conspiracy, I am of the view that the Defendant should have the opportunity to present his evidence at the hearing of this action.

I have considered the prejudice to the Plaintiff, and have also considered that much of the delay in this case has been caused by the Plaintiff itself.

I am satisfied that it is just and expedient to include the third parties in the same action to prevent a separate action relating to the same action, later.

Finally, in response to the argument that the joinder of a third party seven years after the cause of action, I note that the provisions of Section 23 of the Limitation Act Cap.35, permits the court to join parties to an action notwithstanding that the period of limitation has expired.

For these reasons leave to issue third party proceedings against Subhash Chand and Gursami is granted.

However the late filing of the application leading to the vacation of the hearing date is to be deprecated. The Defendant must pay the Plaintiff costs of this application to be taxed if not agreed.

[Nazhat Shameem] Ms
JUDGE

At Suva
8th July 1999