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Sharma v Hardwood Sales & Marketing (Fiji) Ltd [2012] FJHC 1160; HBC137.2008 (13 June 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 137 of 2008

BETWEEN:

ATISH CHAND SHARMA
of Lot 11, J.P. Maharaj Road, Nakasi, Nasinu, Unemployed.
PLAINTIFF

AND:

HARDWOOD SALES & MARKETING (FIJI) LIMITED,
a limited Company having registered office at Lot 19, Regan Street, Nausori.
DEFENDANT

BEFORE : Master Deepthi Amaratunga
COUNSEL : Mr. Daniel Singh for the Plaintiff
No appearance for Defendant

Date of Hearing : 01st March, 2012
Date of Ruling : 13th June, 2012

RULING

1. INTRODUCTION
   

1. The Plaintiff is seeking the leave of the court to join Mohammed Daud Khan of Lot 10, J.P. Maharaj Road, Nakasi, Businessman as 2nd Defendant to this Action. The claim is bases on alleged injury while under the employment of the 1st Defendant, a limited liability company. The alleged incident happened on 31st August, 2007 and the application for the addition was filed on 16th September, 2011. The reason as stated in the affidavit in support is the alleged dissipation of funds by the 1st Defendant Company. This is not a ground that is accepted in law for joinder of party after the expiration of limitation time.
   

2. FACTS AND ANALYSIS
   

2. The Plaintiff has filed this action for injury caused to him while he was engaged as joiner in the course of his employment, when he was using an electric bench saw.
   
3. The alleged injury occurred on 31st August, 2007 and the Plaintiff allege that 1st Defendant was his employee at that time.
   
4. The action claiming damages for personal injury was filed on 30th April, 2008 and the 1st Defendant filed a summons seeking strike out of 1st Defendant from the action, but this was not granted.
   
5. On 16th September, 2011 the Plaintiff is seeking leave of the court to join Mohammed Daud Khan of Lot 10, J.P.Maharaj Road, Nakasi, as the 2nd Defendant.
   
6. The reason for the said joinder as stated in paragraph 11 of the affidavit in support is
   

'11. That I believe that the Director the Defendant Company is dissipating his assets in Fiji with the intension of permanently migrating abroad.'

7. The intended 2nd Defendant has filed an affidavit in opposition and denied the averments contained in the paragraph 11 of the affidavit in support.
   
8. The application for joinder is made after the expiration of the limitation time period and the Plaintiff has to satisfy the requirements in order 15 rule 6 (5) the High Court Rules
   

100. LAW.
     

1. Order 15 Rule 6 empowers the court to make an order for addition of a party. The said provision states as follows:-
   

"2) Subject to the provisions of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application-

(a) .......;
(b) Order any of the following persons to be added as a party, namely-

• (i) Any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or
  
• (ii) Any person between whom any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.
  

The 'opinion of the court' and 'just and convenient to determine' refers to in the above provision grants the court a discretion, but this discretion is only relating to the addition or substitution before the expiry of the limitation period in terms of the Limitation Act. It is to be noted that if the claim is already statute barred in terms of the Limitation Act as against the party who is intending to be added or substituted, the provisions contained in the Order 15 rule 6(5) and 6(6) applies and discretion granted in the Order 15 rule 6(2) is restricted to the situation mentioned in in the said rule 6(5)(a) or rule 6(5)(b). The provision that has to be fulfilled in those circumstances are different from a person who intends to be added when the application was made with in the limitation period.

9. Order 15 rule 6 (5) states as follows:
   

'No person shall be added or substituted as a party after the expiry of any relevant period of limitation unless either –

1. The relevant period was current at the date when proceedings were commenced and it is necessary for the determination of the action that the new party should be added, or substituted, or
   
2. The relevant period arises under the provisions of sub paragraph (i) of the proviso to paragraph 4(1) (d) of the Limitation Act and the Court directs that those provisions should not apply to the action by or against the new party. (emphasis is added)
   

10. The word 'necessary party' is interpreted in an exclusive and very restrictive manner in the Order 15 rule 6 (6) and it states as follows:
    

"(6) The addition or substitution of a new party shall be treated as necessary for the purposes of paragraph (5)(a) if, and only if, the Court is satisfied that-

1. The new party is a necessary party to the action in that property is vested in him at law or in equity and the plaintiff's claim in respect of an equitable interest in that property is liable to be defeated unless the new party is joined; or
   
2. The relevant cause of action is vested in the new party and the plaintiff jointly but not severally; or
   

100. The new party is the Attorney-General and the proceedings should have been brought by relater proceedings in his name; or
     

4. The new party is a company in which the plaintiff is a shareholder and on whose behalf the plaintiff is suing to enforce a right vested in the company; or
   
5. The new party is sued jointly with the defendant and is not also liable severally with him and failure to join the new party might render the claim unenforceable." (emphasis is mine)
   

11. It is clear that the Plaintiff has not satisfied the requirements stipulated in Order 15 rule 6(a) as it has to satisfy the requirements contained in Order 15 rule 6(6) and there is no evidence of such requirements as laid down form Order 15 rule 6(6)(a) to (e).
    
12. Order 15 rule 6(b) grants the court a discretion to add a party and the discretion granted in such instance is the similar to the discretion of extension of limitation time in personal injury.
    
13. In Supreme Court Rules (1988) at p 182 15/6/3 it was stated
    

'......being actions in respect of wrongs caused in personal injuries or death and the Court directs that those provisions should not apply to the action by or against the new party under its discretionary power to extend the time limits for such actions under s33 of the 1980 Act. This was the course taken in Liff v Peasley [1980] 1 All ER 623 CA, where from the procedural point of view, the application to join the additional defendant was regarded in order, although in fact the Court exercised its discretion against the plaintiff.'

14. The provisions regarding the extension of the time period in Limitation Act, is contained in Section 16 and state as follows
    

Extension of time limit for actions in respect of personal injuries

16.-(1) The provisions of subsection (1) of section 4 shall not afford any defence to an action to which this section applies, in so far as the action relates to any cause of action in respect of which-

(a) the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and

(b) the requirements of subsection (3) are fulfilled.

(2) This section applies to any action for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under any Act or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.

(3) The requirements of this subsection shall be fulfilled in relation to a cause of action if it is proved that the material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which-

(a) either was after the end of the three-year period relating to that cause of action or was not earlier than twelve months before the end of that period; and

(b) in either case, was a date not earlier than twelve months before the date on which the action was brought.

(4) For the purposes of subsection (3), reference to the three-year period relating to a cause of action means a reference to the period of three years from the date on which that cause of action accrued:

Provided that-

(a) in relation to any cause of action in respect of which, by virtue of section 11, an action could have been brought after the end of the period of three years from the date on which that cause of action accrued, any such reference to the three-year period relating to that cause of action shall be construed as a reference to the period up to the end of which an action could, by virtue of that section, have been brought in respect thereof;

(b) in relation to a cause of action in respect of which, by virtue of section 15, the period of limitation did not begin to run until a date after the cause of action accrued, any such reference to the three-year period relating to that cause of action shall be construed as a reference to the period of three years from the date on which, by virtue of that section, the period of limitation began to run.

(5) Nothing in this section shall be construed as excluding or otherwise affecting-

(a) any defence which, in any action to which this section applies, may be available by virtue of any provisions of any Act other than those contained in subsection (1) of section 4 (whether it is an Act imposing a period of limitation or not) or by virtue of any rule of law or equity; or

(b) the operation of any Act or of any rule of law or equity which, apart from this section would enable such an action to be brought after the end of the period of three years from the date on which the cause of action accrued.

15. In the affidavit in support seeking leave of the court the reason for the substitution of the 2nd Defendant is that the 1st Defendant, which is a limited liability company, is dissipating its assets and there is no provision to add 2nd Defendant under such circumstances and to seek leave of the court outside the limitation time period for such addition as such situation is clearly not covered in Section 16 of the Limitation Act.
    

4. FINAL ORDERS
   

1. The motion filed on 16th September, 2011 seeking addition of 2nd Defendant to this action is struck off.
   
2. The cost of this application is cost in the cause.
   

Dated at Suva this 13th day of June, 2012.

Master Deepthi Amaratunga
High Court, Suva