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Carbon Industries (Fiji) Ltd v Australia and New Zealand Banking Group Ltd [1998] FJHC 212; Hbc0451d.93s (3 December 1998)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 451 OF 1993

Between:

1. CARBON INDUSTRIES (FIJI) LIMITED
2. DAVID McINTYRE CAMPBELL
Plaintiffs

and

1. AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED
2. BRIAN JOHN MURPHY
Defendants

Mr. A. Gates for the Plaintiffs
Mr. S. Parshotam for the first Defendant

DECISION

This is the first Defendant's application dated 10 November 1998 for 'Further Directions'.

The applicant says that this application is made pursuant to the Order of this Court made on 26 October 1998 and pursuant to Order 25 Rule 7(3) of the High Court Rules.

Mr. Parshotam by the 'Notice Applying for Further Directions' seeks two orders, namely:

(a) that privileges attach to documents referred to in Parts 2A, 2B, 2C and 2D of Schedule I of First Defendant's List of Documents as verified by the Affidavit of Vijen Singh sworn 3 November 1998 and filed in this action; and

(b) that the Plaintiffs are not entitled to inspect these documents or that the first defendant is in any way obliged to produce these documents for inspection by the Plaintiffs.

The grounds on which the application is made is that the parties have not been able to agree on the Plaintiffs' entitlement to inspection of the documents the subject of this application AND the first Defendant's obligation to produce the documents the subject of this application for inspection by the Plaintiffs.

For this application the defendant relies on the said affidavit of Vijen Singh.

The hearing in Chambers was set down for 20 November 1998 but Mr. Gates for some reason was not available and Mr. Sadhu who appeared for Mr. Gates sought another date. I had expected the application to proceed as I indicated to Mr. Sadhu that he is leaving it too late for I am proceeding on leave very shortly but I went out of my way and gave an early date, namely 27 November 1998 at 11.30 a.m.

Plaintiffs' submission

When the hearing took place on 27 November Mr. Gates raised preliminary objection to the making of the application. His argument very briefly is that the Defendant has not complied with the Order of this Court made on 26 October 1998 when it Ordered "that the First Defendant do file and serve its Affidavit Verifying Documents incorporating documents as referred to the Schedule attached to the Plaintiffs' said Summons within 7 days, secondly that there be inspection of such documents within 7 days thereafter, Thirdly each party do have liberty to apply generally". He said that the Order was drawn up and served. He says that the Defendant has not complied with the Order. The Court, he says, is functus officio. When asked he said that Affidavit has been filed by the Defendant but inspection not complied with and that there is a large number of documents inspection whereof is not allowed. This is a defiance of the Court Order. There is no place for further direction. He said that this case has been going on for sometime.

Mr. Gates said that he has filed Summons for leave ex parte for committal of the defendant for not complying with the Order.

Defendant's submission

Mr. Parshotam submits that under the Rules he is entitled to claim privilege and refuse inspection. He said that when the said order was made the Court did not have an Affidavit Verifying List of Documents, but now it has. It could not at the that time do any more than order discovery and inspection. He said that discovery has been done and the right to inspection is there but the only question is to decide on 'privileges'. Inspection he says is subject to privilege and he referred the Court to Or24 r.9 in this regard.

In reply to Mr. Parshotam, Mr. Gates said that there is nothing before the Court to "unsettle" the original order. Court is functus. Therefore Court cannot hear this application.

Consideration of the application

At the outset I would like to point out that this case has a history of stopping and starting; different counsel for the Plaintiffs have made their appearances and then bowed out. One counsel for the Plaintiffs has been sleeping on the matter for months. I now have Mr. Gates a new comer to the scene as Counsel and in his zeal he wants miracles to happen expecting the Court to give an early hearing date and gave me the impression that the Court had some part in the delay. I do not take too kindly to this kind of statements when they are not true. Counsel should do their part first. May be he has done it through ignorance of the history of this case. It has become a habit with some counsel and they tell the Court that this case has been "dragging" on for some time. I loathe to hear such comment for it is no use telling the Court this for it has nothing to do with any delay. The more one leans over backward to assist, and that is what I had done in this case, the least it is appreciated. The fact is that in most cases counsel do not do things in time as ordered. Here defendant is not blameless either, better co-operation is required.

In short I want to tell Counsel to get on with the case instead bickering over technicalities. The Rules are there to be obeyed, they are servants and not masters, but parties have not been following the Rules; nothing is done in time. I might also mention that although the case started in 1993, the Plaintiffs have amended their Statement of Claim the second time as early as 13 August 1997.

Mr. Gates says that the Court is functus. It most definitely is not. If it is, than don't come to this Court. This argument will bring the case to a standstill. He does not say what he wants to do if the Court is functus. He is attempting to pin the Court down to its said Order and his view is that that is the end of the matter as far as he is concerned. He wants me to act contrary to the Rules of the High Court and wants the Court to allow him to inspect alleged privileged documents.

I reject his argument altogether in this regard. I made the said order but that does not mean that I cannot entertain application arising from it. It is part of the order that liberty is reserved to the parties to apply generally. Mr. Gates wants the case to proceed quickly and at the same time he throws a spanner in the works by raising the objection that he has as that the Court is functus. Not only that he wants the court to grant him leave to commit the defendant for contempt in the present state of the facts. After the defendant had made this application and when a new date had been given for hearing he puts in a leave application for Committal of the defendant instead of waiting for the application to be heard.

Now that the Affidavit Verifying List of Documents has been filed and privilege is claimed in respect of certain documents, the parties should proceed from there in accordance with the Law and the Rules. It is the defendant's entitlement to claim privilege and that the Plaintiff's Counsel cannot deny. The circumstances in which the Order was made explains its contents and therefore whatever is claimed as privilege cannot be ignored.

It is generally desirable for each party to an action to see all relevant documents which are in the possession or power of his opponent, and, if necessary, to take copies of them. The right to inspect and copy documents in the possession of the other party is called the right to discovery.

There was order for discovery and inspection in the summons for directions in this case. I also made a similar order. After the order was served the defendant made an affidavit of documents stating as follows:

(a) What documents it has in its possession or power.

(b) Which (if any) documents it objects to produce, and on what grounds.

(c) What relevant documents it has had, but no longer has in its possession or power, and what has become of them.

(d) That it had not, and never has had, any other relevant documents.

There are certain documents which need not be produced, they are among others, communications between solicitor and client, documents prepared with a view to litigation, and any document which might incriminate the party producing it.

In the present circumstances I will vary the order to enable progress to be made in this case. It is ordered that there be discovery and inspection of documents within 14 days except those in respect of which privilege is claimed. Liberty is reserved to the parties to apply to Court for Directions should dispute arise in regard to, in particular, privileged documents. Thereafter the parties to have a Pre-trial Conference and have the action entered for trial. In anticipation that the parties will after the Legal Vacation in January 1999 be ready for trial I am prepared to assign a date of hearing of this action.

D. Pathik
Judge

At Suva
3 December 1998

HBC0451D.93S