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High Court of Fiji |
IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION
Civil Action No. HBC 25 of 2008
BETWEEN
COLONIAL FIJI LIFE LIMITED and COLONIAL HEALTH CARE (FIJI) LIMITED
companies duly incorporated in Fiji and having its registered office at Level 10,
Suva Central Building, Corner of Renwick Road and Pratt Street,
Suva Colonial Fiji Life Limited being successor in title to the
Colonial Mutual Life Assurance Society Limited pursuant
to the Colonial Fiji Life Act 1999.
APPELLANTS
AND
ESAVA CAKAUNITAVUKI of Garden of Joy, Navua, in the Republic of Fiji and of
Melbourne, Australia District Sales Manager.
RESPONDENT
Counsel : Mr Apted J. with Ms Chen W. for the Appelant
Ms Vaurasi L. for the Respondent
Date of Hearing : 27th November 2019
Date of Judgment : 27th January 2020
JUDGMENT
[1] The plaintiff instituted these proceedings seeking to recover $1,576,600.00 as special damages, general damages and exemplary damages from the defendant for unlawful termination of his employment.
[2] On 09th March 2015 the defendant filed summons for further and better discovery of documents seeking the following order:
AND FOR FURTHER ORDER that the plaintiff does within 7 days thereafter make available copies of such documents contained in the further and better list and as specified in the schedule hereto for inspection on behalf of the defendants.
AND that the proceedings be stayed until the plaintiff complies with such orders as the court makes
AND that the costs of and occasioned by this application be paid by the plaintiff.
[3] On 26th July 2016 the learned Master of the High Court made the following orders:
(a) The plaintiff to file and serve An Affidavit Verifying a List of Documents in respect of Tax Returns and Notices of Assessment for the period 2002 - 2014 inclusive.
(b) The Plaintiff is directed to file and serve a Supplementary Affidavit annexing any salary slip, evidence of income, contracts or letters and advertisements of his employment as a part-time Purchasing Officer during the 2010 period only.
(c) If the plaintiff is unable to discover any document, then he should set out clearly in the affidavit what attempts he has made to locate the documents and why he is not able to discover these documents including details of when he parted with any of them and what has become them.
(d) Costs be in Cause.
[4] On 12th June 2018 the learned Master made the following orders on an application filed by the defendant seeking to have the plaintiff’s action dismissed for non-compliance of the orders made on 26th July 2016:
[5] On 17th June 2018 the plaintiff filed affidavit verifying his 5th supplementary list of documents. On 02nd July 2018 the learned Master of the High Court fixed the matter for hearing to determine whether an “unless order” needs be imposed. On 3rd August 2018 the hearing was conducted and the learned Master on 22nd March 2019 made the following orders:
23. Costs to be in cause.
[6] The defendant filed an application for leave to appeal the said order of the learned Master of the High Court and the court by its order dated 15th October 2019 granted leave to appeal on the following grounds:
by failing to find that –
(a) the rules, forms and principles applying to discovery were not limited to the physical disclosure of documents but also require a party to make a sworn affidavit deposing inter alia as to various details regarding various documents which were no longer in the party’s possession;
(b) these rules, forms and principles are to ensure that a party makes full and truthful discovery and does not withhold any documents that might assist the other party;
(c) despite the defendant’s requests and court’s orders, the plaintiff has consistently failed to make affidavits verifying his lists of documents that complied fully with the rules, forms and principles;
(d) Order (c) made on 26 July 2016 required the plaintiff, in addition to giving reasons for not discovering documents, to “set out clearly in the affidavit what attempts he made to locate the documents and why he is not able to discover these documents including details of when he parted with any of them and what has become them”;
(e) Order A made on 12 June 2018 directed him to “comply in full with the court’s Ruling of 26th July, 2016 within 14 days’ time frame”;
(f) the plaintiff had failed to comply with both orders; and
(g) to the extent that the plaintiff purported to comply with the direction in the Affidavit Verifying Plaintiff’s Fifth List of Documents filed on 21 June 2018, the reason that he gave for not being able to discover the documents could not be true on the grounds identified in the defendants’ submissions.
[7] In the order made on 12th June 2018 the then learned Master has very clearly stated what the plaintiff is required to do. I do not see any ambiguity in that order. Subsequently the same Master of the High court has found that the plaintiff has failed to comply with the orders and made orders imposing a time limit to comply with the earlier order and also said that if the plaintiff fails to comply with the orders within the period prescribed an “unless order” would be imposed.
[8] The appellant submitted that the learned Master who succeeded the previous Master of the High court has disregarded the orders of her predecessor in office.
[9] After the ruling dated 12th June 2018 the plaintiff filed another affidavit verifying list of documents and on 3rd August 2018 the appellant moved to have the statement of claim struck out for non-compliance of the order of the made on 12th June 2018.
[10] The learned Master of the High Court made, inter alia, the following determinations:
Upon pursuing the file I note there was a bundle of documents filed by the plaintiff on 02 December 2016.
Items numbered 22 – 34 are copies of notice of assessment by Australian Tax Authority. Only item missing from this is the assessment for the year 2005.
Items numbered 15 are copy of payment summary for the year 01 July 2009 till 30 June 2010. Whilst item 16 is payment summary for 01 July 2010 to 30 June 2011.
The above documents are sufficient discovery under order of 26 July 2016 except for the assessment for 2005.
There is no need for plaintiff to do further discovery of these documents except for the assessment for 2005.
I will allow plaintiff further time to obtain the assessment for year 2005 from the Australian Taxation Office and file his affidavit regarding the same.
Considering the above I do not find that an “unless order” is warranted for and hence will not make one.
[11] The issue here is whether the plaintiff has complied with the orders of the learned Master of the High court.
[12] The explanation offered by the plaintiff for not providing the Tax Returns for the period 2002 to 2004 is as follows:
Over the years I have moved houses several times and most of my documents have been either misplaced or lost;
After my termination which the principal subject of my within claim, I engaged the services of Mr Devanesh Sharma of Messrs R. Patel Lawyers to institute an action against my employers, and I had provided him with some relevant documentation such as my District Sales Manager Contract, my termination letter and a number of letters of commendations from Colonial for outstanding professional performance over the years. However, I changed solicitors after a few years and my claim progressed towards discovery/disclosure of documents, I requested from Devanesh Sharma the documents that I had provided to him, but I was advised by him that his firm has not retained the said documents.
I have been unable to retrieve most of the documents stored electronically from my computer due to the volatile nature of storage in computers; and
The documents I have retrieved has been provided to the Solicitors of the Defendants by way of discovery being the Plaintiff’s Bundle of Documents filed and served on the Solicitors of the Defendant.
[13] It is important to note after the ruling dated 12th June 2018 the plaintiff did not tender any documents. He only filed an affidavit explaining why he did not comply with the orders of the court. The then learned Master of the High Court had made orders after carefully considering the documents discovered by the plaintiff.
[14] In her ruling the learned Master has disregarded the findings of her predecessor in office and made orders which are contrary to the previous orders.
[15] The learned Master arrived at the conclusions which I have reproduced above in paragraph 10 without giving reasons. The plaintiff did not seek to challenge the ruling of the Master dated 12th June 2018. In the ruling which is in appeal the learned Master has referred to the affidavits verifying list of documents filed prior to the ruling made on 12th June 2018. The then learned Master has delivered his ruling after considering all the affidavits verifying list of documents filed by the plaintiff. Therefore, his successor in office did not have jurisdiction to deviate from the ruling and make a different finding based on the same affidavits verifying list of documents.
[16] The learned counsel for the defendant submitted that one PAYG payment summary belongs to a person named Liong Louis and in some of the PAYG payment summaries tendered by the plaintiff the second page is missing.
[17] One of the explanations offered by the plaintiff for not disclosing the documents that due to the volatile nature of the storage in computers he could not retrieve most of the documents. However, he does not say what documents he could retrieve and whit documents he could not. If he could retrieve some documents there is no reason why he could not retrieve the others. If he had difficulties in retrieving documents he could have obtained assistance from a technician. In my view he has not made a genuine effort to disclose the documents required by the defendant.
[18] The other reason for not providing the documents is that they are either lost or misplaced. The plaintiff could have obtained copies of tax documents from the Fiji Revenue and Customs Authority but there is nothing to say, in his affidavits, that he even made an attempt to obtain the tax assessments and tax returns from FRCA.
[18] In Singh v Minjesk Investment Corporation & Anor, Civil Action No. HBC 148 of 2006 Master Udith made the following observations:
One of the grounds of objection is that the applicants have failed to establish that the tax certificates exist or have existed and were or are in the custody of the plaintiff. There can be no dispute that the tax certificates sought are documents which are in the wider sense of the definition of possession, custody or power are with the plaintiffs. Even if they do not have the respective tax certificates within their immediate custody, it is undoubtedly in their possession. I say because they possess necessary power to obtain the same from Fiji islands Revenue and Customs Authority.
[19] Order 24 rule 16(1) of the High Court Rules 1988 provides:
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) the Court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly.
[20] Safari Lodge (Fiji) Ltd v The TIKI (Fiji) Ltd [2018] FJHC 29; HBC226.2013 (26 January 2018)-
The counsel for the plaintiff further submitted that, the failure of the plaintiff to comply with the order of the court did not render the trial unfair. It is true that, the fair trial is heart of the rule of law and cornerstone of the public faith in the justice system. The norm of fair trial has been the yardstick in both civil and criminal suits in making the decisions which might affect one party to the actions. This had, therefore, influenced the courts to set a test for an application to strike out under Order 24 Rule 16. This was affirmed by Mr Justice Millet in Logicrose Ltd. -v- Southend United Football Club (The Times March 5 1988). However, the Court of Appeal in Landauer Ltd. -v- Comins & Co. (a Firm) The Times August 7, 1991, was of the view that, the striking out of action may be justified in cases of contumacious conduct, such as the deliberate suppression of documents, on the analogy of striking out for want of prosecution, even if a fair trial were still possible. It was held in that case that;
“While it was accepted that the normal pre-requisite for the striking out of an action under Order 24, rule 16 of the Rules of the Supreme Court for failure to comply with a requirement for discovery of documents was the existence of a real or substantial or serious risk that a fair trial was no longer possible, it might be that cases of contumacious conduct, such as the deliberate suppression of a document, would justify striking out even if a fair trial were still possible”.
[21] The plaintiff in this case is claiming damages for loss of employment. In calculating the special damages sought by the plaintiff it is necessary to have some proof of the plaintiff’s earning during the relevant period. The plaintiff therefore, cannot supress such documents from the defendant which are in his personal custody.
[22] The learned counsel for the plaintiff in her submissions discussed the jurisdiction of the court to unless orders and cited the decision in Samat v Qelelai [2012] FJHC 844; HBC201.2002L (30 January 2012) where it was held:
Fundamentally, courts are required to determine cases on merit rather than dismissing them summarily on procedural grounds. However, for better case management, the courts at times are required to exercise its inherent jurisdiction and make unless orders against parties who persistently default adhering to court orders. The court therefore makes unless orders requiring the defaulting party to comply with the order by a certain date and specify the consequence of the default.
Clearly, unless orders can only be made by courts in exercising its inherent jurisdictions. Further, an unless order should only be made when the court determines that the defaulting party is breaching the court order made 'relating to procedural compliance' either intentionally or contumaciously or acting lethargically and dragging his feet - so to say, thereby causing delays in the conclusion of the case. When making an unless order, a court must act fairly and reasonably. Moreover, the consequence of the order should be proportionate to the non-compliance once the default has occurred.
"...............While, as pointed out in Grovit v Doctor [1997] UKHL 13; [1997] 2 ALL ER 417, it is an abuse of the court's process to commence proceedings without the intention of prosecuting them with reasonable diligence, so far as we have been able to establish, from the somewhat sparse materials before us, such an absence of intention was not made out and accordingly striking out the proceedings on such grounds was not justifies. The fact that the limitation period for the Appellants' cause of action had not expired at the time of the dismissal is a second consideration favouring the giving of directions, possibly taking the form of "unless orders", rather than terminating the proceedings. (emphasis added)
[23] There is no statutory provision enabling court to make unless orders. The court makes unless orders in the exercise of its inherent powers of the court and such power can be exercised on the where there is no statutory provision and in the interest of justice.
[24] As I have stated earlier in this judgment Order 24 rule 16 empowers the court to strike out a claim when the plaintiff fails to comply with the orders of the court made pursuant to Order 24 for discovery of documents.
[25] Since the plaintiff has failed to give a reason acceptable to court for not disclosing the documents relevant to the matter in full his action is liable to be struck out.
ORDERS
Lyone Seneviratne
JUDGE
27th January 2019
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