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Peck v Peck [1992] FJHC 27; Hbd0004d.92s (20 July 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

DIVORCE ACTION NO. 4 OF 1992

Between:

BRENDA MARY PECK
Petitioner

- and -

DAVID GEORGE PECK
Respondent

Mr. B. Sweetman for the Petitioner
Mr. T. Fa for the Respondent

RULING

On the 26th of June lawyers acting for the petitioner filed in Court and served on the respondent's solicitors a Notice to Produce various itemised documents which mainly comprised statements of several numbered bank accounts in several international banks in London, Boston, Geneva, Australia and Fiji.

The respondent in purported compliance with the Notice has prepared and exhibited a document entitled "Certificate of Means" Ex.D5a. Such a general document cannot be considered as strict compliance with the petitioner's Notice.

During the course of the trial learned counsel for the petitioner has raised on more than one occasion the question of compliance with the Notice but this appears to have fallen on deaf or reluctant ears. In the event counsel was constrained to invoke Order 24 r.10 seeking a court order for the production of the requested statements for his perusal.

The correct rule however would appear to be Order 24 rule 11 which enables a party in proceedings to apply for an order for production of a document in circumstances where a reference to the particular document is made in the pleadings or affidavits of the other party. In this case however no such 'reference' has occurred, certainly none was pointed out by counsel for the petitioner, and, therefore no power to make an order for production arises under this rule.

I accept that part of the petitioner's claim is for maintenance and property settlement and it would greatly facilitate her claim if the material requested were provided to her.

But it is no part of the Court's function to lend its assistance to what appears to be a 'fishing exercise' or to force the respondent to furnish evidence against his wishes unless to do so was "... necessary either for disposing fairly of the cause or matter or for saving costs".

In such an event the Court is empowered by Order 24 rule 12 to order the production of any document in the possession, custody or power of a party for the inspection of the Court (not necessarily the parties) and failing which the Court is empowered to dismiss the action or strike out a defence or enter judgment and even committal as a final resort.

In this case whilst I accept it would be difficult to accurately assess or calculate the amount of the petitioner's entitlement (if any) to maintenance and/or property settlement in the absence of the requested records nevertheless the ability of the respondent to pay what ever sum is ordered is but a minor consideration (if at all relevant).

I also have some difficulty in seeing the relevance (without more) of the movements and fluctuations in the bank statements of the respondent during the course of the marriage. In that regard there has been no suggestion so far that the petitioner contributed either directly or even indirectly into the accounts in question during the short 19 odd months that she lived with the respondent.

Needless to say the non-production of the requested statements which one would expect would be readily available in the normal course of modern day computerised banking records, can in the absence of satisfactory explanation lead to an adverse inference being drawn against the party refusing to produce such records.

Furthermore the Court can only be expected to act upon the evidence led before it in any proceedings.

The application is refused but no doubt learned counsel for the petitioner is at liberty to lead secondary evidence and cross-examine the respondent as he sees fit on the matter.

(D.V. Fatiaki)
JUDGE

At Suva
20th July, 1992.

HBD0004D.92S