| Fiji Islands - Kama v Native Land Trust Board - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 408 OF 1999
BETWEEN:
ESALA DELANA KAMA
Plaintiff
AND:
NATIVE LAND TRUST BOARD
Defendant
COUNSEL: Plaintiff in Person
:Mr G. Leung for Defendant
Hearing: 21st January 2000
Decision: 28th January 2000
DECISION
The Defendant has made an application by summons for directions for leave to file a counter-claim in this matter.
The application is made pursuant to Order 28 Rule 8(3) of the High Court Rules.
On 27th August 1999, the Plaintiff filed originating summons seeking declarations that the Defendant’s suspension of the Plaintiff
from employment was null and void, and that the Defendant acted contrary to the Native Land Trust Board Terms and Conditions of Employment.
The Plaintiff also claims for unpaid salary and benefits and special and general damages.
Affidavits from both parties have now been filed.
On the grounds that there is substantial dispute on matters of fact, I ordered that the proceedings continue as though they have been
commenced by writ.
The matter is set for hearing for two days on 22nd and 23rd of February 2000.
The Defendant now seeks leave to file counter-claim in the following terms:
“(a) The Plaintiff was employed by the Defendant as Deputy General Manager, Administration. At the material time, he was responsible
inter alia for overseeing the Defendant’s overall finance division, accounts and all systems related thereto.
(b) The Plaintiff was employed by the Defendant under a contract of employment. By virtue of that contract, the Plaintiff expressly
or impliedly warranted that he had the necessary skill and experience to carry out his responsibilities, which included preparation
of the Defendant’s annual audited accounts, such failure amounting to a breach of the Plaintiff’s contract and duty to the Defendant.
(c) Between 1992 and 1996 inclusive, the Plaintiff, being responsible for the same, failed to produce the Defendant’s annual
audited accounts despite personal assurances that he would so produce those accounts.
(d) By his failure to use due care, diligence or skill, the Plaintiff breached an express or implied term of his contract of
employment that he would properly carry out the responsibilities of his position. As a result of such failure, the Defendant has
suffered loss and damage and has been put to extra expenses and costs in providing for alternate arrangements to produce the Defendant’s
annual audited accounts for the said period.
(e) The Defendant seeks the following orders:
(i) A Declaration that the Plaintiff breached his contract of employment;
(ii) An order for damages for breach of contract;
(iii) An order for costs;
(iv) Such further relief that this Honourable Court may deem just.”
The Plaintiff objects to the filing of this counter-claim. He says that it is filed out of time, and that the matters raised in the
counter-claim were ventilated before Fatiaki J in Action No. 336/97.
Order 23 Rule 8 of the High Court Rules 1988 provides:
“(1) A defendant to an action begun by originating summons, who has acknowledged service of the summons and who alleges that
he has any claim or is entitled to any relief or remedy against the plaintiff in respect of any matter (whenever and however arising)
may make a counter-claim in the action in respect of that matter instead of bringing a separate action.
(2) A defendant who wishes to make a counter-claim under this rule must at as early a stage in the proceedings as is practicable,
inform the Court of the nature of his claim and, without prejudice to the powers of the Court under paragraph (3), the claim shall
be made in such manner as the court may direct under rule 5 or rule 9.
(3) If it appears on the application of a plaintiff against whom a counter-claim is made under this rule that the subject-matter
of the counter-claim ought for any reason to be disposed of by a separate action, the Court may order the counter-claim to be struck
out or may order it to be tried separately or make such order as may be expedient.”
The Plaintiff claims that the counter-claim in effect, explores matters already decided by Fatiaki J.
In Case No. 336/97, the Plaintiff had issued originating summons on 14th August 1997 seeking declarations that a decision made by
a disciplinary committee of the Defendant to demote the Plaintiff was null and void, and that the decision had been made in breach
of the principles of natural justice.
In dismissing the summons Fatiaki J found no breach of natural justice, and said at page 22 of his judgment:
“Whatsmore a manager who refuses to accept responsibility for the shortcomings and inability of his department to meet a primary production
target, in this case, the defendant Board’s annual accounts, lacks a fundamental trait or quality of leadership.
As defence counsel bluntly writes:
‘In any language it was plain that the plaintiff had not been doing his job. Whatever disputes of fact exist between the parties as
might be apparent from their competing affidavits, nothing changed the incontrovertible fact that by the end of calendar year 1996,
the plaintiff had failed to produce, despite his personal assurances the annual accounts of the defendant Board for the years 1991,
1992, 1993, 1994, 1995 and 1996'.”
The originating summons before this court is in relation to a later decision of the Defendant of 19th August 1997, a decision Fatiaki
J said “bordered on contempt of court” as it was directly linked to the Plaintiff’s decision to take out Action No. 336/97.
The counter-claim, alleges that the Plaintiff acted in breach of the conditions of employment in relation to his duties between 1992
and 1996. There appears to be no logical link between the suspension of 19th August 1997, and the Plaintiff’s alleged breach of employment
contract which appears to have led to the demotion reviewed by Fatiaki J. The Defendant in the proceedings before Fatiaki J appears
to have accepted that the 19th August decision was in fact directly linked to the Plaintiff’s decision to bring a civil action against
the Defendant.
In the circumstances I consider it inexpedient and unfair to allow this counter-claim to be filed. The Defendant should consider whether
it wishes to commence a separate action.
I refuse the application. Costs are in the cause.
Nazhat Shameem
JUDGE
At Suva
28th January 2000
Hbc0408d.99s
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