IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0065 OF 1997

Between:

MURGESSA
f/n Kandsami
Plaintiff

and

SHELL (FIJI) LIMITED
Defendant

Mr. A. Kohli for the Plaintiff
Mr. V.P. Ram for the Defendant

DECISION

This is the defendant’s Motion dated 21 May 2002 seeking the following orders:

1)	THAT leave be granted to tender and produce at the hearing of this action the following documents:-

(a)	First Report of John Scott dated 18th October 1993

(b)	Second Report of John Scott dated 18th October 1993 with
the annexed written admission signed by the Plaintiff

(c)	The Report of John Scott dated 19th October 1993 with the annexures

(d)	The copy exhibits tendered in the Criminal Case No. 412/94 and annexed to the case record.

An ‘Affidavit in Support’ of the application of Satya Singh, Lautoka Terminal Supervisor with the defendant Company, sworn 21 May 2002 together with annexures was filed followed by an affidavit in reply from the plaintiff and a reply thereto from the defendant.

As ordered, both counsel filed written submissions, with Mr. A. Kohli filing his on 16 October 2002. 

Defendant’s/Applicant’s submission on admissibility

In this action the plaintiff claims damages for wrongful dismissal. As Mr. Parshu Ram for the defendant states, the claim follows an unsuccessful prosecution by the Director of Public Prosecutions (DPP) both in the Magistrates Court, Labasa and an appeal against acquittal in the High Court again at Labasa.

Mr. Ram says that there was an ‘admission’ in writing by the plaintiff to the deceased Mr. John Scott but it was not produced in Court, and how this document was omitted is explained by him in his written submission as follows:

Although not explained in particular by the witness the late Mr. John Scott, there was reference to an admission which was not produced at the hearing but which was talked about by the witness, and for some reason the prosecution who was a qualified practitioner did not either pursue that portion of the evidence or attempt to produce the document.

In cross examination counsel for Murgessa, Mr. Kohli chose not to say anything and the question of the admission passed by without further concern. Suffice it to say for the purposes of this section of the submission that there was an admission made. Following the admission a copy of which appears to have been handed to Murgessa the Plaintiff was dismissed from employment.

The only available record of prosecution of the plaintiff in the Magistrate’s Court and certified correct by the Magistrate – the original file and the exhibits cannot be traced despite a thorough search.

Mr. Ram says that he has now found documents which were not available at the time of filing ‘List of Documents’ and therefore the list is ‘defective’. Hence he says that he is duty bound to disclose the fact at this stage of the proceedings when the plaintiff is still being cross-examined and so there can be no apparent inconvenience to him to file an ‘Amended List of Documents’. Counsel says that the document is absolutely relevant to the defendant’s defence, but which had for long been believed to have been lost and that there can be no suspicion that the defendant deliberately failed to disclose them earlier. 

Plaintiff’s submission in reply as to admissibility

The plaintiff submits, inter alia, that the deceased John Scott in the criminal trial did not produce the original of the alleged ‘admission’ document. He says that there was no mention of the ‘admission’ in the Defence in the defendant’s List of Documents simply ‘because he did not make any admission’ and that he ‘did not have in his possession any admission as alleged’.

Mr. Kohli while opposing the application said that the defendant is ‘making lame excuses in order to tender documents which their present solicitor believes to be vital and which their previous solicitors too did not bother checking’.

On law, he said that the Evidence Act and ‘best evidence rule’ ‘would only be applicable if the documents had been disclosed when ordered by the Court’.

Consideration of the issue

This is essentially a case in which the defendant now wishes to introduce secondary evidence in support of its case by being allowed to produce a certified true copy of the ‘record’ of proceedings in a criminal case in which the plaintiff was involved. This ‘record’ contains the documents which are applied to be tendered.

This application has come about at a time when the plaintiff (the first witness) is still being cross-examined on his evidence-in-chief. The case was adjourned, but because Mr. Ram, counsel for the defendant fell sick, the cross-examination could not be concluded and the hearing could not continue. The hearing was adjourned, but before it resumed Mr. Ram files the present application. 

It is to be noted that the case is by way of ‘pleadings’ and the parties are bound by their pleadings. It is therefore for the plaintiff to adduce all his evidence on the basis of those pleadings and the parties may not seek to adduce fresh and additional evidence to strengthen their own case.

The evidence sought to be introduced is not evidence in rebuttal. As Halsbury 4th Ed Vol 17 at para 18 states:

“There is a judicial discretion to allow further evidence to be called, even when it should have been adduced in the first place, where the judge considers it necessary in the interests of justice. Such evidence in rebuttal will generally be allowed when the party wishing to adduce it has been taken by surprise and for that reason did not call the evidence earlier.”

The defendant is seeking leave of the Court to produce the ‘document’ referred to in its application pursuant to Or.24 r.16 (1)(a) which provides, in so far as it is material, as follows:

16. – (1) If any party who is required by any of the foregoing rules, or by any order made thereunder, to make discovery of documents or to produce any documents for the purpose of inspection or any other purpose, fails to comply with any provision of that rule or with that order, as the case may be, then, without prejudice, in the case of a failure to comply with any such provision, to rules 3(2) and 11(1), - 

(a)	that party shall not be entitled subsequently to produce a document in respect of which default was made without the leave of the Court and 

(b)	…..
(emphasis added)

The essential facts surrounding this case are as already stated hereabove and as contained in both counsels’ submissions.

It certainly is a most peculiar case. One fails to understand why in the criminal case in the Magistrate’s Court the late John Scott was unable to produce such an alleged crucial piece of evidence i.e. the alleged written ‘admission’ when it could have been easily located. Now after some years someone has stumbled upon the said document. There was no disclosure even impliedly that there was such a document and that it has been lost.

To use the words of Malins, V.C. in Rogers v Manley, The Law Times Vol. XLII, NS 1880 584 at 585, I find this to be ‘one of the most painful cases’ bearing in mind the circumstances in which the said document is alleged to have been lost and now found in the form of ‘secondary evidence’.

The question before me is whether under these circumstances it is in my jurisdiction to allow this additional evidence to be brought forward to contradict that statement on which the plaintiff’s counsel has been taken by surprise at this stage of the case.

The defendant has now discovered what I would say is fresh evidence and on the admissibility of such evidence Williams J in Young v Harper, 8 NZLR at 176 said this, and I agree with him:

“With respect to the discovery of fresh evidence, it is a most dangerous ground on which to grant a new trial. It ought only to be allowed under extremely exceptional circumstances. In England there are only two or three cases in the books in which a new trial has been allowed on this ground. There can be no more fruitful encouragement to perjury than the granting of new trials for this reason.” (Williams, J., in Young v. Harper, 8 NZLR. at p.196).

In order for an application of this nature to be successful, the Court must be satisfied that the evidence sought to be adduced could not by the exercise of reasonable care and diligence have been discovered before the pleadings closed. The following statements of the Court in Cooke v Berry (1 Wilson K.B. 98) are pertinent (although it refers to ‘new trials’):

“New trials are never granted upon the motion of a party where it appears he might have produced and given material evidence at the trial if it had not been his own default, because it would tend to introduce perjury and there would never be an end of causes if once a door was opened to this.”

On this point, Lord Chelmsford pointed out in Sheddon v Patrick (1869) (L.R. 1 H.L.Sc at 545) that:

“It is an invariable rule in all the Courts, and one founded upon the clearest principles of reason and of justice, that if evidence which either was in the possession of parties at the time of trial or by proper diligence might have been obtained is either not produced, or has not been procured, and the case is decided adversely to the side to which the evidence was available, no opportunity for producing that evidence ought to be given by the granting a new trial.”

The determination of the issue in this case is a matter for the discretion of the Court. There is no denying the fact that the Court has a discretion to permit any party to introduce ‘further evidence’ at any stage of the proceedings. It has been said that this power in the Court is necessary to cope with surprise and matters occurring after the commencement of the hearing or even to allow for slips, accidents or oversights. But that is not the case here. At no time prior to the application herein there is any evidence of a search for the missing document ever having been made or even if there had been any that such document existed.

Conclusion

To conclude, this is a matter for the discretion of the Court bearing in mind particularly the alleged circumstances which gave rise to this application.

It appears that these documents, for reasons best known to late Scott and the Prosecutor then, were hidden from the Court in the criminal proceedings. By making this application at the fifty-ninth minute of the eleventh hour is it intended to bring to life this hidden evidence when the late Scott who is alleged to have obtained an ‘admission’ did not produce it when he himself was alive? I would not allow it in the circumstances when it was not thought fit to produce it at first as the defendant’s case; by allowing it to be produced it would for one thing result in upsetting all the trials particularly of a criminal nature that took place years ago.

Maybe it was a ‘battle of tactics’ in the lower Court. As someone has said ‘legal proceedings are not sporting events the results going to the better side in a battle of tactics’. The object is to ‘reach a decision according to the truth and justice of the matter for which purpose rules of evidence and procedure are to be regarded as useful servants and not tyrannical masters’.

This was a case, I would say, of the failure of this applicant’s tactics both in the criminal trial as well as in this civil action. In such a situation permission cannot be given to adduce further evidence. The party has itself to blame for failure to adopt certain ‘tactics’, I would go to the extent of saying that if evidence such as in this case has been withheld deliberately or otherwise from a party’s case, he will not usually be allowed to put in that evidence subsequently. If allowed it will amount to allowing a party to re-open his case. If I were to allow it in this case we will be back to square one with pleadings having to be amended and possibly the trial will have to be commenced de novo. A very dangerous precedent will be created and the case will not be disposed for some years yet.

The application is therefore dismissed with costs to the plaintiff’s solicitors in the sum of $400.00 to be paid within 21 days. The trial should resume without further undue delay.

D. Pathik
Judge

At Labasa
27 August 2003