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Matrix Risk Management Ltd v Singh [2023] FJHC 929; HBC139.2017 (6 September 2023)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO.: HBC 139 of 2017

BETWEEN : MATRIX RISK MANAGEMENT LIMITED

PLAINTIFF

AND : ITESH SINGH

FIRST DEFENDANT

: ETUATE BAKANICOVA TALENIWESI

SECOND DEFENDANT

: MATRIX GUARDS PTE LIMITED

THIRD DEFENDANT

: RICHARD JAGDISHWAR LAL

FOURTH DEFENDANT

: LAWRENCE ROBERT

FIFTH DEFENDANT

APPEARANCES/REPRESENTATION
PLAINTIFF : Ms. S. Naidu [AP Legal]
DEFENDANTS : Ms. Lagonilakeba with Ms Seduadua [Lal Patel Bale Lawyers]
RULING BY : Master Ms Vandhana Lal
DELIVERED ON : 06 SEPTEMBER 2023

INTERLOCUTORY RULING

Applications for determination

1. The applications for determination before this court are as follows:
   1. The Plaintiff’s application dated 02^nd October 2017 seeking orders for change of name pursuant to Order 32 Rule 1 of the High Court Rules and Section 28 (4) of the Companies Act.
      
   2. The Plaintiff’s application filed on 23^rd October 2019 seeks orders for specific discovery.
      

The Plaintiff’s application dated 02^nd October 2017 for change of name.

2. The said application is made pursuant to Order 32 Rule 1 of the High Court Rules and Section 28(4) of the Companies Act.
   
3. Order 32 Rule 1 of the Rules outlines the mode of making application in chambers, it does not give court powers to make changes to a party’s name.
   
4. Whilst Section 28(4) of the Companies Act outlines procedures for changing company name.
   
5. According to the Plaintiff, when proceedings were initiated in May 2017 the Third Defendant operated under the name of “Matrix Guards Pte Limited”. The Third Defendant had since changed its name to “Secured Guards Pte Limited” on 25^th July 2017.
   
6. According to the Defendants, the Plaintiffs had initiated proceedings as passing-off case for which the Plaintiff itself sought orders for the Third Defendant to change its name. By consent the name was changed.
   

It would be unfair to the Third Defendant as it will affect the business operation or reputation of Secured Guards Pte Limited.

7. My findings are that amendment to the Third Defendant’s name is necessary since the Third Defendant now operates under a different name. As informed by the Defendants the change of name was done to the orders sought by the Plaintiff.
   

The Plaintiff’s application for specific discovery

8. The orders sought by the Plaintiff is:
   • (i) That all above-named Defendants serve upon the Plaintiff within twenty-one (21) days further lists of documents for specific discovery as listed in Annexure A of the Affidavit in Support, of this application, of Rasika Reshma and that such specific discovery be verified by affidavit.
     
   • (ii) That all above-named Defendants to make an affidavit stating whether any of the documents required for specific discovery in the Affidavit in Support of Rasika Reshma or any class of document so specified or described is, or has at any time been, in his possession custody, or power, and if not then in his possession custody or power, when he parted with it and what has become of the documents.
     
   • (iii) That all above-named Defendants serve upon the Plaintiff copies of documents for specific discovery within twenty-one (21 days after service by the above-named Defendants of further lists for specific discovery verified by affidavit.
     
   • (iv) That in the event that the Defendants do not comply with Orders 1 to 3 above then the Defendants respective Statements of Defence shall be struck out and Judgment entered in favour of the Plaintiff.
     
9. This application is made pursuant to Order 24 Rule 7 of the High Court Rules which reads:

7 (1) Subject to Rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his or her possession, custody or power, and if not then in his or her possession, custody or power, when he or she parted with it and what has become of it.

(2) An order may be made against a party under this Rule notwithstanding that he or she may already have made or been required to make a list of documents of affidavit under Rule 2 or 3.

(3) An application for an order under this Rule must be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this Rule has, or at some time had, in his or her possession, custody or power the document, or class of document, specified or described in the application and that it relates to one or more of the matters.

10. Whilst rule 8 provides:

On the hearing of an application for an order under Rule 3 or 7, the Court, if satisfied that discovery is not necessary, or not necessary at that stage of the cause or matter, may dismiss or, as the case may be, adjourn the application and shall in any case refuse to make such an order if and so far as it is of opinion that discovery is not necessary ether for disposing fairly of the cause or matter or for saving cost.

11. The Supreme Court Practice Vol 1 (1999 Edition) on page 471 outlines the qualification the said provision of rule is subject to:

“First, a party was and is entitled to apply for a further and better list, where it appears on the face of the list already served or on the face of disclosed documents or on an admission that in all probability the party has or has had other relevant documents beyond those disclosed.

The second qualification is that under the present rule an application may be made for an affidavit as to specific document or class of documents. This must be supported by an affidavit stating that in the belief of the deponent that other party has or has had certain specific documents which relate to a matter in question.

A prima facie case should be made out for (a) possession custody or power and (b) relevance of the specified documents.

When these are established, the court has discretion whether or not to order disclosure.

The order must specify with precision the document or documents or categories of documents which are required to be disclosed.”

12. As per the affidavit verifying list of documents filed on 15^th August 2018, the Defendants state they have in their possession following documents:
    1. Original Company Search of Matrix Guards Pte Ltd;
       
    2. Copy of Certificate of Registration of Company Matrix Guards Pte Ltd;
       
    3. Copy of Letter dated 27 March 2017 from Matrix to Itesh Singh Re: Executive Management Restructure of Company & Notice of Intended Redundancy;
       
    4. Copy of Fiji Times Online article dated 16 January 2016 titled Security firm under security;
       
    5. Copies of various Resignation letters on various dates from staff of Matrix Risk;
       
    6. Copy of letter dated 16^th May 2017 from Ministry of Defence & National Security, To Whom it May Concern Re: Master Licence;
       
    7. Copy of letter dated 18th May 2017 from Lal Patel Bale Lawyers to Cromptons Re: Notice to Quit P A Lal Holding Limited and Matrix Risk Management;
       
    8. Copy of letter dated 14^th June 2017 from Comfort Home Furnishing Limited to Matrix Guards Pte Ltd;
       
    9. Copy of Email trail from 24^th to 26^th May 2017 between Peter McGahan, Etuate Taleniwesi Re: Leave Pay;
       
    10. Email trail dated 12^th May 2017 between Rasika Reshma and Etuate Taleniwesi Re: Resignation – Etuate Taleniwesi;
        
    11. Email trail dated 05^th April 2017 from Lawrence Robert to Itesh Singh’s email address Re: s/h hiace;
        
    12. Original search of Secured Guards Pte Limited;
        
    13. Copy of Service Agreement between Matrix Risk Management Ltd and Dubbo t/a Sheraton Royal Denarau Resort dated 14^th January 2005;
        
    14. Copy of Service Agreement between Matrix Risk Management Ltd and Dubbo t/a Westin Denarau Resort dated 31^st July 2006;
        
    15. Copy of email dated 29^th June 2017 from Semi to Timoci Veiqaravi;
        
    16. Copy of email trail dated 03^rd September, 2017 between Khamen Chandra and Itesh Singh;
        
    17. Copy of Business Proposal of Matrix Guards Pte Ltd dated 23^rd May 2017;
        
    18. Email trail between 21^st and 22^nd May 2017 between Rasika Reshma and Comfort Home Furnishing various person re: Notice Matrix Fiji;
        
    19. Copy of letter dated 14^th June 2017 from Comfort Home to Matrix Guards Pte Ltd;
        
    20. Email dated 17^th May 2017 from James Trusler to Amitesh Prakash Re: Termination of Guard Service.
        
13. The documents sought by the Plaintiff is extensive. They are seeking discovery of 255 documents from the Defendants.
    

Do the specified documents relate to one of the matters in question in the cause? And has the Plaintiff made out a prima facie case for possession, custody or power and relevance of the specified documents?

14. In the affidavit in support the Plaintiff has failed to outline the relevance of each document so requested. But have generally stated that “the discovery sought by the Plaintiff is to establish its claim of passing off, breach of contract, breach of fiduciary duty and so on as outlined in its Statement of Claim filed on 02^nd June 2017.”
15. The deponent further states that the Plaintiff’s solicitor’s role to the Defendants’ solicitors requesting for the documents however the Defendants have “refused the request for specific discovery.”
    
16. The Plaintiff’s claim is for “passing off”, as it alleges the Third Defendant had since 13^th April 2017 and before the issue of writ had passed off and attempted to pass off and caused enabled and assisters to pass off the third Defendant’s business as that of the Plaintiff business.
    

The Plaintiff has also alleged that the First and Second Defendants have breached their term of employment contract with the Plaintiff and also breached duty of confidentiality by providing confidential information to the Third, Fourth and Fifth Defendants.

17. In her oral submission, the Plaintiff’s solicitor gave only one reason why a particular set pf document was required by the Plaintiff she gave an example of the business licences and NFA licence to establish when the Defendant’s started operating.
    

According to her, the documents are also required to prove damages and find how information were passed off from Plaintiff to the First and Second Defendant thus establishing the Third Defendant and how all the Defendants benefited from it.

21. However, the Defendants have in their list of documents disclosed regarding the registration of Matrix Guards Pte Ltd and Secured Guards Pte Limited. They have also disclosed Copy of letter dated 16^th May 2017 from Ministry of Defence & National Security, To Whom it May Concern Re: Master Licence;
    
18. The Plaintiff has failed to outline in its affidavit or during the hearing how each of the 255 documents are relevant to the issue at hand.
    
19. I do not think it is the courts’ duty to identify the relevance of each document to the matter at hand.
20. The list requested by the Plaintiff is exhaustive and it should have outlined to this court how each of them is relevant to the matter.
    
21. Accordingly, I find the Plaintiff has failed to qualify for an order under Order 27 Rule 7 of the High Court Rules.
    

Orders

22. Leave is granted on the Plaintiff’s application dated 02 October 2017 to amend the Third Defendants’ name henceforth to be read as “Secured Guards Pte Limited formerly known as Matrix Guards Pte Limited.”
    
23. The Plaintiff’s application dated 23^rd October 2019 for specific discovery is dismissed.
    
24. On the Plaintiff’s application of 23^rd October 2019, the Plaintiff is ordered to pay the Defendants cost summarily assessed at $1,000 (in total) by 12 noon on 22 September 2023.
    

............................
Vandhana Lal [Ms]
Master of the High Court
At Suva.

06 September 2023

TO:

1. Suva High Court Civil File No. HBC 139 of 2017;
2. AP Legal, Solicitors for the Plaintiff;
3. Lal Patel Bale Lawyers, Solicitors for the Defendants.