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South Sea Slipway Ltd v Fiji Ports Corporation Ltd [2024] FJHC 774; HBC184.2017 (8 February 2024)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO.: HBC 184 of 2017

BETWEEN : SOUTH SEA SLIPWAY LIMITED
PLAINTIFF

AND : FIJI PORTS CORPORATION LIMITED

FIRST DEFENDANT

: ASSETS FIJI LIMITED

SECOND DEFENDANT

APPEARANCES/REPRESENTATION
PLAINTIFF : Mr. S.J Stanson with Mr. N. Prasad & [Mitchell Keil Lawyers]
FIRST DEFENDANT : Mr. E. Narayan [Patel Sharma Lawyers]
SECOND DEFENDANT : Ms. M. Ali [Attorney -General’s Chambers]
RULING BY : Master Ms Vandhana Lal
DELIVERED ON : 08 FEBRUARY 2024

INTERLOCUTORY RULING

Application

1. The Plaintiff through an amended summon seeks discovery of documents from the Defendants:
   
   • (a) All Board Minutes discussing, proposing, debating and/or resolving the issue of the lease between the Plaintiff and the first Defendant and any further resolution of and concerning the acquisition of the lease and/or the property in question by the second Defendant;
   • (b) All Board and/or company papers that were placed before the Board meeting for the consideration of the directors in the course of their business to determine the matters referable to the lease and the reliance in respect of the determination that the lease was required to be terminated for a public purpose;
     
   • (c) The Master plan for redevelopment of the wharf complex; and
     
   • (d) All correspondences with the Asia Development Bank and/or its consultants concerning the redevelopment of the Wharf Complex, including but not limited to, again, the Master plan and all matters referable to the development of the site which have been referred to in both the affidavits in support of the interlocutory injunction and in respect of which claims were made and/or telegraphed/flagged that discovering would be sought of these matters at the appropriate time and which your clients were on notice of, as to both existence of the documents and the claim that would be made for their discovery in order to prosecute our client’s claim on issues legitimately identified and ventilated and in respect of which we would lightly seek to have recourse to, in other to prove the existence of what we say was a misuse of market power, as has been relied upon in our pleading;
     
   • (e) All correspondence between the first Defendant and Aitken Spence Shipping Limited a Sri Lankan corporation with respect to a 15 year concession to undertake managerial and operational responsibilities of the first Defendant.
     

Law

2. Order 24 Rule 7 of the High Court Rules gives court the power to order for discovery of particular documents.

Subrule 3 requires for the applicant to state 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, and that it relates to one or more of the matters in question in the cause or matter.

Subject to Rule 8 order for discovery will be made only if necessary.

Plaintiff’s Contention

3. The affidavits filed by the Plaintiff sworn on 27^th September 2018; 22 November 2018 and 25 March 2019 can be summarized as follows:
   
   • - The Plaintiff primarily seeks a declaration that the Notices of Non-Renewal and /or Termination dated 28^th November 2016 and 28^th June 2017 are null, void and of no effect insofar as they were issued by a party incapable of issuing them and/or were issued for a purpose that did not confirm to the ability to rely on non-renewed and/or termination for public purpose as provided for in subclause 6(2) (d) of the memorandum of Lease Agreement dated 15^th July 2002.
     
   • - Other reliefs sought are:
     • (a) Declaration that the Notice of Renewal constituting the option to exercise the renewal of the Lease Agreement dated 15^th July 2002, such exercise of option being made on 08^th August 2016 was valid and if full force and effect to exercise the option as made and provided;
       
     • (b) A declaration that the first and second Defendants by their servants and agents have engaged in anti-competitive conduct contrary to section 31A of the Fair Trading Act (as amended) insofar as they have sought to refuse to renew the lease to benefit by the removal of competition the corporate welfare of their corporate subsidiary Fiji Ships and Heavy Industries Limited;
       
     • (c) An order that the first and or second Defendants grant to the Plaintiff a lease of the premises for a term of 15 years after 01^st August 2017 but otherwise upon the terms of the lease dated 15^th July 2002.
       
   • - According to the Plaintiff, the Defendants deny that the Plaintiff is entitled to remain in occupation of the property at Muaiwalu Complex on the basis that the decision not to renew the term of the lease was based on the future development plans.
     
   • - The Second Defendant asserts it is not obliged to disclose a copy of the Master Plan and it did not possess a copy of the same.
     
   • - In response to the injunction application the First Defendant mentioned:- that it needed the property concerned as the said land is “crucial” for such development based on a Master Plan around 2015/16; the decision not to renew the lease was a Board decision; Plaintiff’s proposals were put to the Board on two occasion and on both occasions decision was not to renew; the Master Plan involves the reorganization and restructure of the whole wharf including the area that the Plaintiff Leases; it must protect its business from competitors.
     
   • - The Second Defendant’s affidavit in opposition to the injunction application deposed that the purposes is to get the property back is to run its operations under its (the First Defendant’s) port development Master Plan.
   • - The Ministry of Public Enterprises had engaged consultants from the Asian Development Bank to proceed with the Master Development Plan for all parts and the recommendations from the Master Plan would impact future decisions.
     
   • - The Second Defendant via a letter (RK 18 to affidavit of Radhika Kumar sworn on 27^th June 2017), stated the Board after further deliberation on and “taking” into consideration the [1^st Defendant’s] future development plans decided against renewal.
     
   • - The affidavit verifying list of Defendant’s document do not contain documents relied upon to the reach the decision for not renewing the lease.
     
   • - The Plaintiff solicitors have written to the Defendants solicitor requesting documents but have not received any response.
     
   • - The Defendant rely on the Master Plan to have the property resumed to ensure to protect the First Defendant’s competition which the Plaintiff states is illegal and contrary to the statute.
     

Determination

4. In his ruling of 01^st February 2018 Kumar J had identified that one of the question to be tries at trial would be if the first Respondent refused to grant option for renewal for public purpose or to stifle the competition against if and/or its subsidiary Fiji Ship and Heavy Industry Limited.
   
5. In its statement of defence the First Defendant on paragraph 11(iii) stated that “the land was intended to be resumed or taken for a public purpose in term of its future development plans”.
   
6. The Defendants states that the Master Development plans and/or copy of the same are privilege sensitive, confidential and restricted documents, hence they are not obliged to provide the same.
   
7. The discussion and/or negotiation undertaken in relation to the Master Plan are sensitive and protected in nature and are internal working documents if disclosed may cause misunderstanding.
   
8. The First Defendant will require necessary approvals from relevant government ministries and cabinet. Upon obtaining the necessary approval, the Master Plan can be disclosed to the court “in camera” due to the sensitivity of the information as this has not been previously disclosed and or in the public domain.
   
9. Apart from claiming the documents sought by the Plaintiff to be privileged, sensitive, and confidential and restricted ‘the Defendants have failed to outline why this is the case?
   
10. Document that are privileged from production are:
    
    • (1) Documents protected by legal professional privilege;
    • (2) documents lending to criminate or expose to forfeiture the party who would produce then; and
    • (3) documents privileged on the ground of public policy.
      
11. Merely seeking approval of relevant Ministry etc does not make document privileged from productions.
    
12. The Supreme Court Practice (1991 Edition) on paragraph 24/5/15 on page 441 discusses when documents are privileged on the ground that production would be injuries to the public interest:
    

This privilege does not depend on the obligation of a party; the rule is one on which a Judge should if necessary insist even though no objection is taken. The test is not whether the documents are “state documents” or marked “confidential” or whether their production might involve public discussion or criticism of a government department or the attendance of officials needed elsewhere, but whether production would be injuries to the public interest or in other words, whether the withholding of the documents is necessary from the proper functioning of the public service.

13. Upon considering the objection taken up by the Defendants I do not find the same to be bona fide and that there is any reasonable grounds for apprehending danger to the public interest.
    
14. The Plaintiff on their part have established that the First Defendant has or at some time had, in its possession, custody or power the requisite documents or class of document, and that those documents relate to matters in question in this cause.
    
15. No orders are made as sought in later part of paragraph (d) that is “in respect of which claims were made and/or telegraphed/flagged that discovering would be sought of these matters at the appropriate time and which your clients were on notice of, as to both existence of the documents and the claim that would be made for their discovery in order to prosecute our client’s claim on issues legitimately identified and ventilated and in respect of which we would lightly seek to have recourse to, in other to prove the existence of what we say was a misuse of market power, as has been relied upon in our pleading”.
    

Orders

16. The First Defendant is directed to make an affidavit stating if the First Defendant has or had at any time in their possession, custody or power, and if not then in their possession, custody or power, when they parted with the following documents and what has become of them:
    • (a) All Board Minutes discussing, proposing, debating and/or resolving the issue of the lease between the Plaintiff and the first Defendant and any further resolution of and concerning the acquisition of the lease and/or the property in question by the second Defendant;
      
    • (b) All Board and/or company papers that were placed before the Board meeting for the consideration of the directors in the course of their business to determine the matters referable to the lease and the reliance in respect of the determination that the lease was required to be terminated for a public purpose;
      
    • (c) The Master plan for redevelopment of the wharf complex; and
      
    • (d) All correspondences with the Asia Development Bank and/or its consultants concerning the redevelopment of the Wharf Complex, including but not limited to, again, the Master plan and all matters referable to the development of the site which have been referred to in both the affidavits in support of the interlocutory injunction application;
      
    • (e) All correspondence between the First Defendant and Aitken Spence Shipping Limited a Sri Lankan corporation with respect to a 15 year concession to undertake managerial and operational responsibilities of the First Defendant.
      

The said affidavit is to be filed and served by 12 noon on 01 March 2024.

17. The First Defendant is to pay cost of this application to the Plaintiff summarily assessed at $2,000 and to be paid by 12 noon on 01 March 2024.
    

............................
Vandhana Lal [Ms]
Master
At Suva.

08 February 2024

TO:

1. Suva High Court Civil File No. HBC 184 0f 2017;
2. Mitchell Keil Lawyers, Solicitors for the Plaintiff;
3. Patel Sharma Lawyers, for the First Defendant;
4. Attorney -General’s Chamber, for the Second Defendant.