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Shell (Fiji) Ltd v Murgessa [2006] FJCA 86; ABU0014J.2004 (24 March 2006)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CIVILA APPEAL No. ABU 0014 of 2004
(High Court Civil Action HBC 65/97 Lab)

BETWEEN:

SHELL (FIJI) LIMITED

Appellant

AND

MURGESSA (f/n Kandsami)
Respondent

Coram: Scott, JA
Stein, JA
Ford, JA

Date of Hearing: Tuesday 21 March 2006

Date of Judgment: Friday 24 March 2006

Counsel:

DRAFT JUDGEMENT OF THE COURT

INTRODUCTION

[1]. Pursuant to leave being granted, the Appellant (Shell) appeals against an order made on 28 August 2003 by the High Court at Labasa (Pathik J) refusing leave to adduce documentary evidence which had not been discovered.

[2]. The relevant provision is Order 24 rule 16 of the High Court Rules, the material parts of which are as follows:

"16-1 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, fails to comply with any provision of this rule or with that order, as the case may be then .....

(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 ...."

BACKGROUND

[3]. In October 1993 Shell received information which suggested that the Depot Manager at its Labasa Branch, Murgessa (the Respondent to this appeal) was stealing from his employer. A director of Shell Mr. John Scott, went to Labasa and carried out an investigation.

[4]. According to Shell, the investigation concluded with Murgessa confessing to John Scott and signing a written admission that he had defrauded Shell by supplying fuel free of charge to one Ram Pyare. A copy of what is said to be the admission is exhibited to the affidavit of Satya Singh dated 21 May 2002.

[5]. Following the investigation, Murgessa was dismissed by Shell and the matter was reported to the police. In due course Murgessa stood trial on three counts of larceny by servant in the Labasa Magistrates’ Court but in May 1996 he was acquitted. An appeal against the acquittal was dismissed by the High Court at Labasa in October 1996.

[6]. As it happens, a member of this bench, Scott JA, was the High Court judge who dismissed the appeal. As appears from the High Court judgment there was no mention of an admission: Murgessa conceded supplying fuel free of charge to Ram Pyare but stated that he did so as compensation for fuel lost. Both the Magistrates’ Court and the High Court took the view that Murgessa had raised a reasonable doubt and therefore was entitled to be acquitted. In view of the previous involvement of Scott JA in this matter, we asked counsel whether they had any objection to him hearing this appeal: they did not.

[7]. Although copies of the record of the proceedings in the Magistrates’ Court were prepared for appeal purposes, the actual documents tendered in the Magistrates’ Court have been lost. The copy documents did not include the admission. Why this is so is not entirely clear. It seems however that the admission had not been disclosed to the defence and the original had been left by Mr. John Scott in Suva. Whether consideration was given to the admissibility of the admission (more properly in criminal proceedings termed a confession) in view of Mr. Scott’s status as a person in authority, we do not know. Unfortunately, Mr. John Scott died in about 2001.

COMMENCEMENT OF PROCEEDINGS IN THE HIGH COURT

[8]. On 7 September 1997, just under 12 months after the dismissal of the criminal appeal, Murgessa commenced civil proceedings in the High Court seeking damages for his summary dismissal.

[9]. In October 1997 a Defence was filed. Shell admitted dismissing Murgessa on 18 October 1997 but denied that any notice was required in the circumstances. In paragraph 4 it was pleaded:

"that the Defendant denies that the Plaintiff has suffered loss and damage because of any action on the part of the Defendant, rather than it was the action of the Plaintiff, which he admitted, which led to his dismissal and he was therefore the author of any loss or damage he may have suffered, whether from loss of earnings or otherwise". (emphasis added)

No particulars of that pleading were offered or sought.

[10]. On 7 March 2000 Counsel for the parties held a pre-trial conference as is required by RHC O 34 r 2. It was a singularly indifferent effort by Counsel concerned. Almost none of the specific facts and matters which the rules require to be considered was even addressed. In particular, no mention at all was made of discovery and inspection of documents. Neither of the lists prepared by solicitors in January and April 1998 mentioned any of the documents tendered in the Magistrates’ Court, nor the existence of an admission. According to Murgessa’s own affidavit of June 2002 his solicitors had received a copy of the record of the criminal proceedings in October 1996. Apparently no thought was given to the possible relevance of those proceedings to the High Court civil action.

[11]. On 23 April 2002 the action came on for trial in the High Court at Labasa. Counsel for Shell obtained an adjournment until 22 May 2002 on the ground that its sole witness was unavailable. On 22 May Counsel for Shell filed an application for leave to adduce copies of the Shell documents relevant to the investigation into the alleged thefts at the Labasa Depot which were tendered in the Magistrates’ Court. He also sought to adduce what was said to be the original of the admission. In a supporting affidavit it was stated that the admission and the other documents had been "stumbled upon" in May 2002 by an employee of Shell who was searching Shell’s archives for another file.

[12]. In his affidavit opposing the application, Murgessa denied making any admission and suggested that the admission and other documents had been "stumbled upon" as a result of "some divine intervention or ghostly guidance". He denied that any of the documents had been produced at his trial.

THE HIGH COURT’S RULING

[13]. Unfortunately, the judge was unable to deliver his ruling in which he dismissed Shell’s application until over a year after the application was made. While we fully appreciate the difficulties under which the civil judges of the High Court have been labouring, the delay in handing down the decision was doubly unfortunate. First, it further prolonged proceedings which had already been on foot for five years and secondly it indirectly led to the trial having to be abandoned because of the judges personal commitments. The trial will therefore have to be commenced again, de novo. We note, however, that the trial had only reached part of the way through the Plaintiff’s evidence before it was abandoned.

[14]. As will be seen from the Judge’s ruling, he regarded Shell’s application as being comparable with an application for an order for a new trial to be held on the ground of discovery of fresh evidence. In our view, this approach was mistaken. The application was not for a retrial to be held since the trial was still in progress. It was rather an application made during the course of the trial to refer to documents which might, or might not have been admissible and which had not been located by Shell until after discovery had taken place.

[15]. A common purpose which is designed to be served by proper pleadings, full discovery and the conscientious conduct of the pre-trial conference is the prevention of injustice occurring as a result of a party not knowing the nature of the case to be presented by his opponent. The exclusion of admissible evidence which is importantly relevant to the presentation of a party’s case will however not serve the ends of justice.

[16]. In the present case, the crux of Murgessa’s claim was that his summary dismissal was wholly without justification. Shell’s case, albeit incompetently pleaded, was that it was Murgessa’s defalcations which, when he was confronted with them he admitted, which justified his instant dismissal.

[17]. In our view, the documents which Shell wished to adduce, the originals of some of which had been tendered in the Magistrates’ Court and certified true copies of which were still on the Court’s file, went to the heart of Shell’s Defence. Furthermore, with the exception of the admission itself (which may or may not, following John Scott’s death now be admissible) Murgessa could not be heard to say that he was unaware of their existence, not only because they were tendered at his trial, but also because they apparently formed part of the record of those proceedings supplied to his solicitors in October 1996. In those circumstances it is at least arguable that they should have been disclosed by Murgessa himself.

[18]. Where documentary evidence which already existed at the time that discovery was made is omitted from that discovery as a result of a want of reasonable diligence, the party making late application to adduce that evidence can be penalized in the costs incurred by granting the other party such adjournment as may be necessary to take instructions and in order to prepare to meet the previously undisclosed material. In our view, such a course should have been followed in this case. Had this occurred been done so then the trial would have been able to proceed with only minimal delay. The consequence of not dealing with the application in that way was, as has been seen, that the trial had to be abandoned.

[19]. The fact that a document is discovered does not, of course, make it admissible. Whether each of the documents which came to light in May 2002 is admissible or not, we do not know. That question will be for the trial judge. The documents are however clearly highly relevant to the issue being litigated and as such should, in our view, be discovered.

RESULT

1.. Appeal allowed.
2.. Application to discover the additional documents granted.
3.. Appellant to have its costs which are assessed at $1,000.00.

Scott J.A.
Stein J.A.
Ford J.A.

Solicitors
Messrs. Gibson & Co., for the Appellant
Messrs. Kohli & Singh, for the Respondent.