IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CASE NUMBER: HBC 14 OF 2006

BETWEEN:

HARRY and DOREEN ROBINSON
PLAINTIFFS

AND:

HOME FINANCE COMPANY LIMITED
1ST DEFENDANT

AND:

TOWER INSURANCE (FIJI) LIMITED
2ND DEFENDANT

Appearances: Mr. M. Sadiq for the Plaintiffs.
Mr. A. Ram for the 1st Defendant.
Mr. A. Sen O/I of AK Lawyers for the 2nd Defendant.
Date / Place of Judgment: Wednesday, 18th January, 2012 at Labasa.
Coram: The Hon. Justice Anjala Wati.

JUDGMENT

Catchwords: 
Order 33 High Court Rules, 1988- application for leave to try issues before the trial.

Legislation:
The High Court Rules, 1988.

1.	The current application seeks leave of the Court, pursuant to Order 33 Rules (3), (4), (5) and (7) of the High Court Rules 1988, to have the following issues tried before the trial:-

(a)	Is flood one of the perils covered under the certificate of insurance issued to the plaintiffs by the 2nd defendant on the 19th December 2008;

(b)	Does the role of the 1st defendant as incoming mortgagee changes or becomes fiduciary in nature once it acts as agents of the 2nd defendant, the insurer; and

(c)	If the role as raised in question (b) above changes, then does the 1st defendant owe a duty to the plaintiffs to protect their interest in full.

2.	Mr. Sadiq, counsel for the plaintiff submitted that trying these issues prior to trial will eradicate the need for a trial or a lengthy trial.

3.	Mr. A. Ram, counsel for the 1st defendant submitted that Order 33 application was filed before the claim was amended. After the amendment, the Order 33 application is stale in respect of the first issue of whether flood was covered as one of the perils by the insurance policy. In respect of other issues, Mr. Ram stated that one needs to get evidence of whether there existed a fiduciary relationship and whether that was breached. These are matters which cannot be safely tried on affidavits and on pleadings alone. A full trial is the complete and safe answer.

4.	Mr. Sen, counsel for the 2nd defendant stated that this application was resurrected after the 2nd defendant filed an application to strike out the action for want of prosecution as the plaintiff had been not moved the matter forward since 11th February 2009, when they last filed an amended statement of claim. The current application was filed on 13th May, 2008. The application for striking out was filed on 17th March, 2011. Mr. Sen said that the current application was thought to be abandoned as no action was taken on it since 13th May, 2008. Mr. Sen further said that the application has become redundant and not in order because it seeks to determine questions of facts but not supported by any affidavits. The questions too, are fictitious. The question regarding the cover on flood is not in existence, from the pleadings. There are no statement of facts, no affidavit evidence, how can the question then be decided. In order 33 applications, it must be shown that determination of the preliminary points will dispose of the matter thus obviating the need for a trial. This application, Mr. Sen stated, does not satisfy any limits of Order 33. The application lacks merits on form. The claim has also not been prosecuted expeditiously and some strict timetable must be laid for the progress of the matter. Alternatively, Mr. Sen said that the application and the entire case must be struck out for want of prosecution.

5.	The application is governed by Order 33. Under Order 33, the Court has the following discretion:

(a)	Order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause of matter, and give directions as to the manner in which the question or issue shall be stated: Order 33 Rule 3.

(b)	To order different questions or issues to be tried at different places or by different modes of trial and one or more questions or issues may be ordered to be tried before the others: Order 33 Rule 4(2)

6.	The first question of fact that the plaintiffs want the Court to be given leave to be tried separately before the trial is:-

(a)	Whether the insurance policy entered between the plaintiffs and the 2nd defendant covered flood as one of the insured perils.

There is no need for the above question to be tried by the Court as the plaintiffs have accepted vide their amended statement of claim that the policy did not cover the peril.

7.	The second question for which leave is sought is whether the role of the 1st defendant as incoming mortgagee changes or becomes fiduciary in nature once it acts as agents of the 2nd defendant, the insurer, and if it changes, does it owe a duty to the plaintiffs to protect their interest in full.

8.	The second and third questions are questions of fact which can never be comprehensively tried on the pleadings or affidavits, even if I grant leave. The fact of establishing a fiduciary duty and the breach of the same needs a full scale trial through. 

9.	Even if I order that the 2nd and 3rd questions be tried separately and before the trial, the answer will not dispose off the cause. There are many other causes of action pleaded (like misrepresentation, breach of s. 54(1) of Fair Trading Decree by 1st defendant, breach of s.6 of Insurance Act 1998 by 1st defendant, breach of contract by 2nd defendant, breach of s.4 of the Insurance Act by 2nd defendant and breach of s. 54(1) of Fair Trading Decree 1992 by 2nd defendant) which will still need to be tried with the same witnesses, same documents and almost the same length of trial.

10.	There is no basis for grant of leave and as such I refuse the application and dismiss the same. 

11.	In order to expedite the progress of the case, I make the following directions:-

(a)	Each party to simultaneously within 14 days file their list of documents and discovery of the same to take place within 7 days thereafter.

(b)	Within 21 days thereafter, the parties must enter into a pre-trial conference and minutes of the same to be filed within 7 days thereafter.

(c)	Thereafter, the plaintiffs must take all other necessary steps like binding the copy pleading and file a summons to enter action for trial. The summons to be listed before a judge for the month scheduled for Labasa session for allocation of trial judge and trial dates.

(d)	All orders to take effect from the date of judgment.

(e)	General liberty is granted to parties to make any other application in Court.

(f)	Orders accordingly.

Anjala Wati
Judge
18.01.2012

To:
1.	Mr. M. Sadiq, counsel for the plaintiffs.
2.	Mr. A. Ram, counsel for 1st defendant.
3.	AK Lawyers, for 2nd defendant.
4.	File: HBC 14 of 2006.