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Naqa v Fiji Electricity Authority [2005] FJHC 704; HBC0237.2002 (22 February 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0237.2002

BETWEEN:

RATU SOLOMONI NAQA & 11 OTHERS
Plaintiff

AND:

FIJI ELECTRICITY AUTHORITY
Defendant

Counsel: Mr. I. Fa – for Plaintiff
Mr. N. Barnes – for Defendant

Date of Hearing & Ruling: 22nd February, 2005

RULING

The plaintiffs are members of various Mataqali and the owners of more than 2,000 acres of Native Land in and around Monasavu. In 1979 the FEA acquired some of that land for the purposes of constructing a hydro-electric dam. The defendant gained the exclusive use of the land and its associated water catchment area for its hydro-electric scheme.

The plaintiffs have never been compensated for this acquisition.

As a result writs were issued out of Suva under Action No. HBC0576.1998. It is from that action that these separate proceedings in 237 of 2002 were created.

The plaintiffs claim in this action (237 of 2002) that on or about the 11th of August 2000, Civil Action No. 576 of 1998 was settled.

That summons was brought before his Honour Justice Byrne in January of 2002.

Quite naturally applications for consolidation were made. These were finally attended to by the learned Justice on the 23rd of July 2002 by his order refusing consolidation but instead making the following order:

'That proceedings in Civil Action No. 576 of 1998 be stayed until the determination of Civil Action No. 237 of 2002.'

The matter sat in the learned Justice’s Chambers until the 24th of January 2003 where he then excused himself from the case citing a conflict of interest.

Thereafter on the 10th of March 2003 the defendant filed an application to further amend the defence and add a counterclaim. The court gave its ruling on that matter on the 14th of August 2003 in a judgment by my brother Justice Jiten Singh.

There then followed a series of unreasonable delays in bringing the matter on for trial as the parties first sought and then failed to comply with various summons for directions for setting the matter down.

The file came to my chambers in October of 2004. I read the thick file. Despite the volume of material contained therein it is clear that the issues at the heart of both proceedings are relatively straightforward. It is clear that the Electricity Authority acquired this land to establish a water catchment area and build a hydro electric dam. It is equally clear that the plaintiffs have never been compensated for that acquisition. The plaintiff claims that compensation was settled at a conference in Deuba. It says that as a result of that conference the defendant agreed to pay the plaintiff claimants a sum of approximately $52m.

The defendant says it did not agree to make such a payment. Further, even if it did agree it claims the clan took over the dam during the year 2000 Coup and caused significant loss of income as the FEA was forced to supply Fiji with electricity from expensive diesel generation causing a loss of something like $1m a week. The defendant also alleges that the representatives of the clan damaged the hydro electric engineering plant during the occupation and created large expense for its repair totalling several hundred thousand dollars.

It was obvious to me that the central issues of this case were capable of settlement by alternate dispute resolution. Suffice it to say attempts at that process were made. An internationally recognized mediator was appointed but at the last minute the mediation was scuttled.

In an effort to underpin that mediation I set a back up fixture for 1 week commencing 8th March 2005. I accepted counsels assurances given at a pre-trial conference that a short week long fixture would enable the discreet issue of ‘satisfaction and accord’ to be tried. I was advised that such a discrete hearing would resolve this case and perhaps the related proceedings.

I issued a Standard Pre-Trial Direction. The plaintiff has largely complied with that direction.

Yet again the parties have fallen into procedural dispute. The defendant now claims it mistakenly consented to that week long fixture expecting only the issue of satisfaction and accord to be dealt with and not its positive defences or counterclaim. It is prepared to proceed with the discreet satisfaction and accord issue on the week of the 7th of March but not practically able to argue its positive defence or counterclaim as there is insufficient time it says for that part of the hearing.

Largely inspired by that predicament it has filed the present summons which is the subject of this ruling. The present summons under Order 33 Rule 3 is to have the defendant’s positive defence and counterclaim severed from the proceedings. That application is opposed by the plaintiff.

Ruling

If the fixture of the 7th of March is vacated the next available fixture of any length is not until October of 2005. I am concerned at the lamentable delays in providing these plaintiffs with a hearing to determine compensation for the loss of their land. The reality, however, is that if I proceed with a fixture on the 7th of March and do not complete that fixture then the proceedings would have to be adjourned part-heard to October in any event.

Accordingly, whether I grant the defendant’s application or not I am clear that this action cannot be concluded until the end of October 2005. I made that position abundantly clear to plaintiff’s counsel.

The defendant applicant says that severing the positive defence and counterclaim will mean that the current fixture can continue and may be decisive of the litigation. It is said that if the issue is determined in favour of the plaintiff it is likely that the counterclaim and positive defence will never arise for trial. He can give no undertaking in that regard.

The plaintiff respondent strongly opposes separation of the positive defence and counterclaim and gives 4 reasons:

1. They say there are common facts and witnesses to the defendant and plaintiffs case. These are so closely interconnected that to conduct a hearing on one issue alone will be artificial and lead to injustice.
   
2. They say the same parties to the claim and counterclaim would have to be called; causing an unnecessary duplication of effort.
   
3. They say they do not trust the defendant as it has not settled the claim with these plaintiffs in the past, has delayed payment of compensation and they are accordingly worried that the only purpose of severance at this stage is to delay any judgment payment while the positive defence and counterclaim are resolved.
   
4. They say there have been considerable costs to date and that the costs of two separate trials would be prohibitive.
   

When making this final argument I asked counsel to confirm legal costs to date and give his estimate of costs for trial. He felt uncomfortable doing so. It appears that legal costs are being met by some contingency arrangement. Accordingly, while the costs of disbursements to the plaintiffs such as transport to and from Court would be considerable for them, they do not have the burden of paying counsel unless and until the litigation is successfully finalized.

In Ashmore v Corporation of London (No.1) [1992] 2 ALL E.R. 486 the court observed that the control of proceedings is always a matter for the trial judge and the parties are not entitled as of right to have their case tried to a conclusion in any particular way they deem fit.

The rule of law defines that courts exist for the finalizing of disputes between litigants and that in reaching that goal justice must be served. Litigants are not entitled to the uncontrolled use of a judge’s time. Order 33 Rule 3 and 4 allow the court to isolate any particular issues or questions for separate trial thus eliminating or reducing the delay and expense in determining an entire matter where a preliminary decision might be decisive of the litigation.

If I am satisfied that such an order would have the beneficial effect of expediting the hearing and eliminating the need for expensive trial preparation resulting in substantial saving on costs then it would be sensible for me to grant the order.

I accept the plaintiffs argument that the defendant’s positive defence and counterclaim are so closely linked with the plaintiffs allegations of satisfaction and accord that to severe those parts of the trial would unnecessarily create an evidential artificiality. In both proposed hearings Evidence clearly relevant to both matters would have to be discounted in respect of the one issue being determined. However, consideration of the evidence at one trial on both claim and counterclaim will ultimately mean less cost as succinct, contextual counterclaim evidence might be given.

Further, I am of the view that a ruling on the plaintiff's case alone in these proceedings will not be decisive of the litigation. If I rule for the plaintiffs in this action having severed the positive defence and counterclaim part two of the proceedings will remain. The defendants could quite rightly demand a hearing on their positive defence and counterclaim before appeal or application for stay. Conversely if I find against the plaintiffs after severance the part two ‘proceedings’ would still be the subject of litigation in the related proceedings. The only course certain to be decisive of the litigation is a complete hearing of this entire cause at one trial. I estimate such a hearing will take at least three weeks.

Vacation of fixture

The fixture I set for the 7th of March 2005 was allocated on the assurance of counsel at a pre-trial conference that the discreet issue of satisfaction and accord was the only issue. That it has transpired is in fact not the case. The defendant says and I accept that it never intended its positive defence and counterclaim to be argued at that fixture. The proceedings will take much longer than the week allocated to them.

I have come to the firm conclusion that this matter needs to be tried at one sitting and accordingly the fixture for the 7th of March is vacated and it is replaced with a fixture commencing on the 26th of September and proceeding throughout the month of October 2005.

My existing orders for the filing of evidential briefs is varied

The defendant is to file its briefs by the 30th of April 2005. The plaintiff may reply to those briefs of evidence by the 30th of May 2005. A final indexed volume of agreed exhibits before trial is to be prepared and filed in terms of my pre-trial case memorandum by the 30th of June 2005. There will be a simultaneous filing of case outline, argument and indexed authorities by the 31st of August 2005. There will be a final pre-trial conference on Friday the 9th of September 2005 at 9.30am. I reserve costs in the cause.

Gerard Winter

JUDGE

At Suva

22nd February 2005