IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0034 OF 2002

Between:

TELECOM FIJI LIMITED
Plaintiff

and

JONE BEBE
Defendant

Mr. H. Nagin for the Plaintiff
Mr. R. Matebalavu for the Defendant

JUDGMENT

This is Jone Bebe’s (the “defendant”) summons for an order pursuant to order 20 rule 5 of the High Court Rules 1988 for leave to amend his Statement of Defence

“to include a Counterclaim and to plead breaches of the contract of employment between the defendant and the plaintiff, of the terms of the Corporate Instructions Manual II 1995 between the defendant and the plaintiff, and of the Recognition Agreement executed in 1994 between the plaintiff and the defendant’s union the Fiji Posts and Telecommunications Employee’s Association and for leave to dispense with Affidavit in Support of this application.”

With his application supported by an affidavit the defendant annexed the proposed ‘Amended Statement of Defence and Counterclaim’.

The Summons is opposed by the plaintiff through Samuela Vadei, the legal counsel of the plaintiff, who in his affidavit in opposition stated, inter alia, that the defendant’s application is an abuse of the process of the Court and that there is no reasonable cause of action against the plaintiff. The allegations are denied by the plaintiff.

Consideration of the application

As ordered, both counsel made useful written submissions and I have given them due consideration.

In his written submission, Mr. Matebalavu sets out the contents of the Statement of Claim and also what is contained in the Statement of Defence (present Defence). He then sets out what is contained in the proposed amendment.

It is the defendant’s submission that the dispute between the parties should be resolved once and for all. He submits that this can be achieved by allowing the ‘counterclaim’ proposed in the amendment because it is necessary to decide whether the defendant has been lawfully terminated in the first place. He says that this is an issue which the defendant will seek to propose was unfairly avoided by the plaintiff to evade through the present claim.

The plaintiff, on the other hand, whilst opposing the application states, inter alia, that by his proposed Statement of Defence and Counterclaim the defendant raises a different cause of action. Mr. Nagin stated that the defendant had discontinued the judicial review proceedings (HBJ0010.2001) which he instituted. Similarly, civil action No. HBC0243.2001 in which he raised the same issue as in the proposed counterclaim was also discontinued. He said that the defendant has also lodged a ‘trade dispute’ with the Permanent Secretary for Labour seeking the same reliefs.

Mr. Nagin says that this application is misconceived.

On the facts before me the defendant is entitled to apply as he has done. There is a claim in a liquidated sum against the defendant. In his Statement of Defence the defendant is allowed by the Rules to raise relevant issues and also to counterclaim. It is necessary that all the issues arising from the incident in this action be heard and determined in one and the same action. In this connection it is pertinent to refer to the following pronouncement of Bowen L.J. in Cropper v Smith (1883) 26 Ch.D.700 at 710-711:

“It is a well established principle that the object of the Court is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights ………I know of no kind of error or mistake which, if not fraudulent or intended to over-reach, the Court ought not to correct. Courts do not exist for the sake of discipline, but for the sake of deciding matters in controversy, and I do not regard such amendment as a matter of favour or grace….. It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right.”

The application in this case is made under Order 20 Rule 5 (1) of the High Court Rules 1988 which provides, inter alia:

“the Court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleading, on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.”

In considering an application of this nature, the principle to be applied is as stated by Jenkins L.J. in G.L. Baker Ltd v Medway Building & Supplies Ltd [1958] 1 W.L.R. 1216 at 1231:

‘…….but there is no doubt whatever that it is a guiding principle of cardinal importance on this question that, generally speaking, all such amendments ought to be made “as may be necessary for the purpose of determining the real questions in controversy between the parties”.’

Conclusion

In the outcome, on the pleadings as they stand they were not so framed as to enable the Court to determine the real question in controversy. For the aforesaid reasons in the light of Order 20 Rule 5 and on the authorities I allow the defendant his application to file an Amended Statement of Defence and Counterclaim.

The defendant is ordered to file the document within 14 days and thereafter the action to take its normal course. In view of my decision of this day in C.A. 494/02 each party to bear his own costs. 

D. Pathik
Judge

At Suva
20 June 2003