IN THE HIGH COURT OF FIJI AT LABASA
CIVIL JURISDICTION

Civil Action No. 09 of 2005

BETWEEN:

SINGHS SHOPPING LIMITED
PLAINTIFF

AND:

LABASA TOWN COUNCIL
1ST DEFENDANT

AND:

CHARAN JEATH SINGH
2ND DEFENDANT

Appearances: Mr. Sen of Maqbool & Co for the Plaintiff
Mr. Ram of Gibson & Co for both Defendants.

RULING

Introduction

This is an application by the 2nd Defendant by Summons dated 7 May 2012 for discovery pursuant to Order 24 rules 3 & 7 of the High Court Rules. The summons is supported by an affidavit deposed by the 2nd Defendant Charan Jeath Singh which states so far as is relevant the following:-

(6). That the Plaintiff filed Schedule of Special Damages which states that on or about 30th April 2003 the Defendants had unlawfully entered their premises and raised, invaded and removed all the stocks from the shop and threw outside, the Plaintiff therefore is claiming special damages in the total sum of $365,000:00.

(7). The Plaintiff has not provided documentary evidence in its schedule of damages to substantiate its claim despite requests made by the 2nd Defendant's solicitor. The discovery of these documents is essential to establish what if any loss has occurred to the Plaintiff's due to interference with the tenancy of the Plaintiff.

In its Summons the 2nd Defendant seeks an order from the Court for discovery of the following documents:-

(i) Shop inventories etc

Copies of invoices for the purchase of each of the items mentioned in their Schedule of Special Damages and copies of cheques showing payment.

(ii) Stock-in-trade

Copies of invoices for the stock-in-trade mentioned and copies of cheques showing payment.

(iii) Renovation of Building

Copies of the following:-

(a)	Building contract
(b)	Copies of invoices from the builder
(c)	Copy of approved plans and specifications for the renovations
(d)	Cheques for payments made

(iv) Pain and Suffering

Copies of medical reports for pain and suffering of the Plaintiff.

(v) Income from Business

Copies of tax returns filed by your client for the years 2000, 2001, 2002 and 2003.

(vi) Future Earnings

Documents showing how the future earnings are arrived at.

Background

The Plaintiff in its statement of claim alleges that it was a tenant of the Labasa Town Council whilst operating a three in one shop at the Labasa Municipal Market. That it sold from the shop among other things vegetables, root crops, sea food and other foodstuff including groceries. The Plaintiff further alleges that on or about the 30th April 2003 in the middle of the night the Defendants and/or with their servants unlawfully interfered with the Plaintiff's shop in that they raided, invaded and broke and entered into the shop and removed all his stock. That the frozen food and goods were also removed and thrown outside to rot and all the merchandise, goods and stock were removed put outside where they were damaged or stolen or taken away by unknown people. That the 2nd and 3rd Defendant authorized the 1st Defendant to interfere with the rights of the Plaintiff and acted in bad faith and abused their powers as Mayor and Deputy Mayor to further their own business and economic gain. That the 2nd Defendant in particular and his family, have a substantial interest in a supermarket near the Labasa Municipal Market situated near where the Plaintiff had his shop.

The Defendants deny the claim by the Plaintiff and stated that the Plaintiff was not a tenant at the time, that he was given a notice to vacate the premises but did not. That the Defendants had a right to enter into the premises and that any goods which were removed were placed neatly outside the premises and that security officers were present to guard the goods. That the Plaintiff was told and knew that the Defendants had plans to upgrade the market area adjacent to the Labasa River on which portion of land the Plaintiff's shop was but did not vacate the premises as requested.

The application

The Schedule of Special Damages the subject of this application was filed by the Plaintiff on 29 August 2007, almost five (5) years ago. It was filed as far as I could gather from the file to support its claim at the hearing of the matter. It was not supported by any documentary evidence nor did the Defendants on being served with the schedule respond to it. 

At the hearing of the application the counsel for the 2nd Defendant relied on their submission and addressed the Court on the need to discover these documents as they are relevant to the claims made. They also provide in their well written submission useful authorities on the basis upon which the application is made, the meaning of documents and the law on discovery. 

The Plaintiff's Counsel on the other hand made a very brief submission which was that he has given all the documents in his client's possession custody or power to the Defendants and that he does not have any more to give. All the documents requested by the Defendants to be discovered were taken by them when they wrongfully entered into his shop and removed everything from within it. Further it is the Plaintiff who has to prove his case and if he does not have any evidence then that is the end of the matter. He further stated that he does not need to provide a written submission.

In view of the approach taken by the Plaintiff's counsel and his straight forward answer to the request for discovery it seems prudent to accept his submission that he really does not have the documents requested. There is no doubt that the documents requested is relevant to the determination of special damages as stated by the Plaintiff in his schedule of special damages. 

Master Udit in Singh –v Minjesk Investments Corporation Ltd [2008] FJHC 394 referred to the statement of Brett LJ in Compagni Financiere Du Picafique – v – Peruvian Guano Co. (1882 11 OBD 55 at page 63 as stating the principle of discovery. His Lordship Mr Justice Byrne in Parvati Manilal Lallu Ranchod – v – Sundar Lal Lallu Suva High Court Civil Action No. Hbc0488j.91s at page 3 of the judgment after referring to the above case summarized the principle as follows:

"This text was applied by Menzies J. in Mulley – v – Manifold [1959] HCA 23: [1959] 103 CLR 341 at 345 where his Honor stated that discovery is a procedure directed towards a proper examination and determination of the issues between the parties as disclosed in the pleadings and not towards assisting a party upon a fishing expedition."

His Lordship continued:

"Only a document which relates in some way to a matter in issue is discoverable but it is sufficient if it would or if it would lead to a train of enquiry which would, either advance a parties own case or damage that of his adversary". (emphasis added)

I am satisfied that the documents requested are relevant to the issues to be determined and therefore could be discovered. The delay in the application is however a concern, the problem in my view is the acceptance in our jurisdiction to initiate our discovery procedures under Order 25 summons for direction. This application need not have been made if discoveries were ordered under order 24 earlier.

This application was made pursuant to Orders 24 rule 3 & 7. Where an application for specific discovery is made under rule 7 the Court can make the following orders:-

1. The Court may make an order requiring any other party to make an affidavit stating whether document specified or described in the application or any class of document so specified is in his/her possession, custody or power; and or

2. The Court may make an order requiring any other party to make an affidavit stating whether the documents specified in the application or any class of documents so specified has at any time been in his/her possession, custody or power and if not then in his/her possession custody and power, when he/she parted with it and what has become of it.

In view of the fact that there was no real argument about the discovery of the documents sought and the only opposition offered was that the documents or class of documents sought are not presently with the Plaintiff the Court has no option but to make the following orders in allowing discovery.

Conclusion

The Plaintiff is therefore ordered to allow discovery by making an affidavit stating one of the following:-

1. That if the Plaintiff does have the documents specified in the application in his/her possession, custody or power to state that fact in his/her affidavit; or

2. If the Plaintiff does not have the documents specified in the application to state that it did have those documents in his/her possession, custody and power and to state when he/she parted with it and what has become of it.

3. The Plaintiff is given 7 days to file and serve the above affidavit.

4. The matter is further adjourned before me on 10 August 2012.

5. Costs to be cost in the cause.

Dated at Labasa this 1 August 2012.

H A Robinson
Master, High Court, LABASA