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High Court of Fiji |
IN THE HIGH COURT FIJI
AT LAUTOKA
CIVIL JURISDICTION
Civil Action No. HBC 218 of 2002/L
BETWEEN:
PHYLIS JAUREGUY
formerly of Route 3 Box 107 La Honda CA 94020, United States of America
now of PO Box 93, Korolevu, Fiji.
Businesswoman.
Plaintiff
AND:
KAMAL SEN
(father's name Jai Ram) of 33 Dravuni Street, Waiyavi Stage 1, Lautoka, Fiji,
Driver.
1st Defendant
AND:
JANARDAM NAIDU
father's name not known to the Plaintiff of P.O. Box 650, Ba, Fiji,
Truck Owner.
2nd Defendant
Before: Master Anare Tuilevuka
Counsels : Messrs Mishra Prakash & Associates for the Plaintiff
A.K. Lawyers for the Defendants
Date of Ruling : 29th October 2010.
RULING
(Specific Discoveries)
Introduction
[1]. This case is already marked for trial on 25th and 26th of November 2010 before Madam Justice Wickramasinghe. But the defendant seeks, amongst other Orders for specific discovery – an Order that the trial date be vacated and not be fixed until after the hearing of this application and compliance with any orders made hereon. That Order I will leave to Wickramasinghe J to decide.
[2]. Meanwhile – what is before me is a Summons for Specific Discovery filed by the defendant on 24th March 2010 pursuant to Order 25 and Order 24 Rules 7, 10 and 12 of the High Court Rules 1988 and the inherent jurisdiction of the Court.
[3]. The Orders that the defendant seeks are as follows:
(a) that the plaintiff within 14 days disclose by affidavit copies of her travel, health and income protection policies of insurance for the period 1st January, 2000 to 1st January 2005 or has at any time been in her possession custody or power and if she parted with them, when she parted with any of them and what has become of them AND FOR A FURTHER ORDER that the Plaintiff do within 14 days thereafter make available such documents or copies of them for inspection on behalf of the Defendants.
(b) That the Plaintiff do within 14 days disclose by affidavit whether copies of financial statements and income tax returns to IRS in USA and notices of assessment of tax for the relevant periods being 1st January 1999 to 31st December 2009 pertaining to the Plaintiff are or have at any time been in her possession, custody or power and if she parted with any of them, when she parted with any of them and what has become of them AND FOR A FURTHER ORDER that the Plaintiff do within 14 days thereafter make available such documents or copies of them for inspection on behalf of the Defendants.
(c) That the plaintiff do within 14 days disclose by affidavit whether copies of Contracts of Service in USA for all relevant periods being 1st January 1999 to 31st December 2009 pertaining to the Plaintiff are or have at any time been in her possession, custody of power and if she parted with any of them, when she parted with any of them and what has become of them AND FOR A FURTHER ORDER that the Plaintiff do within 14 days thereafter make available such documents or copies of them for inspection on behalf of the Defendants.
(d) That the Plaintiff do within 14 days disclose by affidavit the records of all bookings that were made and those that were cancelled for the period 1st January 1999 to 31st December 2009 for the business of Mike's Divers.
(e) That the Plaintiff do within 14 days disclose by affidavit whether copies of financial statements and income tax returns to FIRCA and notices of assessment of tax for the relevant periods being 1st January 1999 to 31st December 2009 pertaining to Mike Divers are or have at any time been in her possession, custody or power and if she parted with any of them, when she parted with any of them and what has become of them. AND FOR A FURTHER ORDER that the Plaintiff do within 14 days thereafter make available such documents or copies of them for inspection on behalf of the Defendants.
(f) That the Plaintiff do within 14 days disclose by affidavit whether copies of returns of income and financial Statement for all income received by the Plaintiff from for Mike's Divers or any other source in Fiji for all relevant periods being 1st December 1999 to 31st December 2009 together with copies of Notices of Assessments of Tax in respect thereof in Fiji or the USA pertaining to the plaintiff is or has at any time been in her possession, custody or power and if she parted with any of them, when she parted with any of them and what has become of them AND FOR A FURTHER ORDER that the Plaintiff do within 14 days thereafter make available such documents or copies of them for inspection on behalf of the Defendants.
Background
[4]. According to the Statement of Claim, on 15th July 2001, the plaintiff was driving motor vehicle registration number DM576 along the Queens Highway at Votua in Sigatoka when her vehicle collided with DC759 which was being driven by Kamal Sen, the 1st defendant. The plaintiff allegedly suffered severe personal injuries as a result of the collision and was admitted to the Suva Private Hospital for that. She claims damages for pain and suffering, loss of amenities, and loss of earning capacity. She also claims special damages to the total amount of US$116,823.69 for transport costs, loss of salary and medicine/medical costs.
[5]. The plaintiff also alleges that her business interests and/or its growth and/or profitability suffered directly as a result of this accident and claims damages in respect of the same and loss of profits.
[6]. She claims also that as a result of the above, she has received a reduced salary and has lost teaching time which adversely affects her pension plan and the amount she will receive upon retirement.
Affidavits
[7]. The application for specific discovery is supported by the affidavit of Ashneel Sudhakar sworn on 22nd March 2010. Sudhakar deposes as follows in paragraphs 2, 3 and 4 of his affidavit:
2. I am aware from my experience in claims of this nature that policies of insurance for travel, health and income protection and financial documents such as the profit/loss, balance sheets, depreciation schedules, tax and VAT Returns and assessments of tax are highly relevant for the purposes of assessing quantum of loss and damage including any economic loss.
3. Our office wrote to the Plaintiff's Solicitors on 24th April, 2009 requesting specific discovery of documents noted therein. The Plaintiff's Solicitors did not respond. The Defendants Solicitors sent reminders vide letters dated 12th May, 2009, 19th June, 2009 and 5th October, 2009. I now produce a copies of the said letters marked "AS-1", "AS-2" and"AS-4" respectively.
4. The Plaintiff has not complained that it does not have the documents listed in our letter of 24th April, 2009 and the financial statements, VAT Returns and tax assessments can in any event be obtained from the tax office. I verily believe that the original or copies of the financial documents listed in the summons herein would have in the ordinary course of business been prepared and financial statements by law would have had to be lodged with all relevant tax authorities. Ordinarily, copies would have been supplied to the accountant's preparing the financial statements and copies would have been retained by the accountants and the plaintiff for reference and records.
[8]. The plaintiff opposes the application by the affidavit of Richard Sudhir Prakash sworn on 3rd May 2010 and filed on 04th May 2010. Prakash deposes as follows in paragraphs 7, 8, 9 and 10:
7. I verily believe that the documents that are being asked for by the Defendant's Solicitors are not relevant to the Plaintiff's claim against the Defendants.
8. The Plaintiff has lost a large number of documents during shifting of places. She has had severe medical problems as a result of the accident. She has what documents she can. Annexed hereto and marked with the letters "A" and "B" are letters dated 15th October 2009 and 29th October 2009. She is in considerable distress and she feels she is unable to work properly and is unable to bear the expense of all sorts of additional discovery.
9. All documents relating to special damages being claim has been discovered to the Defendant's Solicitors.
10. I verily believe that the Defendant is trying to prolong this matter. This matter has been set down for trial on the 1st day of June 2010 and has taken almost eight years for it to come to trial.
Principles Applicable
[9]. Courts have a wide jurisdiction to order discovery and inspection of documents. Behind this robust approach, is the philosophy that, with proper discoveries, and the more discovery there is between the parties, the better disposed they are in thrashing out the issues between them in the pleadings. Ultimately, the Court will be far better disposed to determine the real issues raised in the pleadings. This is cost effective in that it saves time.
[10]. Discovery can be sought at any stage of a proceeding even after a judgement or order in an action has been made (see Singh v Minjesk Investment Corporation Ltd & Anor – High Court Civil Action No. HBC 148 of 2006 where Master Udit cited Korkis –v- Wer & Co. [1914] LT 794 as authority for this position).
[11]. In Singh v Minjesk, Master Udit canvassed the applicable principles and case law authorities in some detail. From his analysis, what emerges clearly is that the onus initially is on the applicant to establish the following by way of affidavit evidence:
- (i) identify clearly the particular document or documents or class of documents that he seeks from to be discovered by the opposing party (see Order 24 Rule 7(1)).
- (ii) show a prima facie case that the specific document or class of documents do in fact exist or have existed (see Order 24 Rule 7(1)).
- (iii) establish that these documents are relevant in the sense that they relate to the matter in question in the action. In other words, the information in the document must either directly or indirectly enable the applicant either to advance his own case or to damage the case of his or her adversary. Alternatively, it is sufficient if the information in the document is such that it may fairly lead to a train of enquiry which may have either of these consequences. The relevance of a document is to be tested against the issues and/or questions raised by the pleadings (see A.B Anand (Christchurch) Ltd –v- ANZ Banking Group Limited (1997) 43 FLR 22 30 January 1997).
It is important to note that whether or not any particular document is admissible or inadmissible is immaterial to its discoverability. It is enough if the document is likely to throw some light on the case (see Volume 13 paragraph 38 of Halsbury's Laws of England – 4th Edition) page 34 s cited in Singh v Minjesk).
(iv) show that these documents were in the physical possession, custody (i.e. the mere actual physical or corporeal holding of the document regardless of the right to its possession) or power (i.e. the enforceable right to inspect it or to obtain possession or control of the documents from one who ordinarily has it in fact) of the opposing party (see Order 24 Rule 7(3)).
[12]. An applicant will need to be heedful of accumulated case law material that Courts will not allow the discovery process to be used towards assisting a party upon a fishing expedition such as to fish for witnesses or a new case (see Martin and Miles Martin Pen Co. Ltd v Scrib Ltd [1950] 67 RPC 1-7 as cited in Singh v Minjesk), Calvet -v- Tomkies [1963] 3 All ER 610. Nor will discovery be ordered in respect of documents which are not related to or may not affect the actual outcome of the action: Martin and Miles Martin Pen Co. Ltd. -v- Scrib Ltd. [1950] 67 RPC 1-7). Furthermore, discovery will also be prohibited if it is for a general purpose of enabling a party.
Defendant's Submissions
[13]. I reproduce below in part paragraphs 5.1 to 5.1.4 of the defendant's submissions.
5.1 The Plaintiff's claim is for the sum of US$133,267.60 as special damages alone as per the schedule of special damages."
5.2 In addition the Plaintiff claims general damages for:
(i) Pain and suffering
(ii) Loss of amenities
(iii) Loss of earning capacity
(iv) Loss to business interests and/or its growth and/or profitability suffered as a result of the accident.
(v) Reduced salary and loss of teaching time which adversely affects her pension plan and the amount she will receive upon retirement."
5.3 The Defence does not admit the extent of the loss alleged by the Plaintiff. Accordingly, the issue of quantum is a live matter for the trial irrespective of liability (my emphasis).
5.4 As can be seen from the Plaintiff's List of Documents, no disclosure is made of any of the documents sought in the Summons of Specific Discovery.
5.5 The Pre-trial Conference Minutes at paragraph 7 and 8 makes an issue the extent of damages and losses that the Plaintiffis are entitled to and its quantum. This of necessity requires the Plaintiff to prove its loss.
5.6 On 24th April. 2009 the Defendant's Solicitors wrote to the Plaintiff's Solicitors requesting the following documents:
5.7 The written request appears as annexure "AS-1" to the supporting Affidavit of Ashneel Sudhakar. That letter points out that it was agreed at the PTC Stage that the Plaintiff was to disclose all documents in support of her claim for special damages.
5.8 Subsequent letters were written to the Plaintiff for those documents as shown in annexures AS-2, AS-3 and AS-4 of the Affidavit.
5.9 In the letter of 5th October, 2009 (Annexure AS-4) the Defendants pointed out that if the Plaintiff failed or refused to provide the documents the Defendants would make an application for Specific Discovery.
5.10 An Affidavit in reply has been filed on behalf of the plaintiff by Richard Sudhir Prakash dated 4th may 2010. In that the deponent refers to the schedule of special damages filed on the 15th December, 2008. That schedule was thrown out by the Master from the Court records on 13th December, 2009. Thereafter, another schedule was filed by the Plaintiff on 6th April, 2009 and the previous schedule is not a part of the Copy Pleadings.
5.1.1 If the Plaintiff is claiming loss of profits from business then the income tax returns would show what her income was before the accident and what it became after the accident. That would surely assist in showing her loss of business.
5.1.2 The Plaintiff further claims (paragraph 8 of Richard Affidavit) that the Plaintiff has lost a large number of documents during shifting places. It is submitted that the Plaintiff could have obtained those documents from the relevant tax authorities if she had lost them There has no evidence or explanation been given if the Plaintiff attempted to obtain the tax documents from the tax authorities.
5.1.3 The Court is referred further to paragraph 8 of the Richard Affidavit where the deponent on behalf of the Plaintiff states that she has given what documents she can to the Defendant. She is in considerable distress and she feels she is unable to work properly and is unable to bear the expenses of all sorts of additional discovery.
5.1.4 The Plaintiff however has discovered no documents to the Defendant that supports her claim for losses as pleaded.
Plaintiff's Submissions
[14]. Below is the part of the plaintiff's submissions which encapsulates her attitude against the defendant's application for specific discovery:
1.2 The Plaintiff has discovered a number of documents. We refer to the schedule of special damages filed by the Plaintiff on the 15th day of December, 2008.
1.3 The Defendant in any event is not entitled to have discovery of documents other than special damages and the Plaintiff has filed the same. We refer to Order 25 Rule 8 which provides as follows:-
"8- (1) When the pleading in any action to which this rules applies are deemed to be closed the following direction shall take effect automatically:
(a) There shall be discovery of documents within 14 days in accordance with Order 24, Rule 2, and inspection within seven days thereafter, save that where liability is admitted, or a where the action arises out of the road accident, discovery shall be limited to disclosure by the plaintiff of any documents relating to special damages."
1.4 This special rule is due to the recognition given to the fact that persons suffering from accident injuries need quick and effective justice. Trials ought not to be delayed by such applications.
1.5 Under Order 34 Rule 2 there has to be a pre-trial conference were the possibility of obtaining admissions of facts and documents are considered along with quantum of damages discovery and other matters. Pleading have long been closed and the time for discovery under 24 Rule 2 must be made within 14 days of pleading being closed. In this case the time has long expired. The Defendant is not entitled to the contracts and other documents sought, particularly documents of third parties. If it wants documents by of contracts of service or booking etc it can subpoena the necessary records. (my emphasis)
1.6 We refer to the affidavit of Richard Sudhir Prakash sworn for the Plaintiff and filed on the 4th of May, 2010 paragraphs 8 to 10 which reads as follows:-
8 The Plaintiff has lost a large number of documents during shifting of places. She has had severe medical problems as a result of the accident. She has given what documents she can. Annexed hereto and marked with the letters "A" and "B" are letters dated 15th October 2009 and 29th October 2009. She is in considerable distress and she feels she is unable to work properly and is unable to bear the expense of all sorts of additional discovery. (my emphasis)
9. All documents relating to special damages being claim has been discovered to the Defendant's Solicitors.
10. I verily believe that the Defendant is trying to prolong this matter..........
1.7 Under Order 25 Rule 3 the Court can make an application for further directions but it is submitted that the same does not include further discovery. In any event the footnote to that rule 25/8/2 provides as follows:-
25/8/2 Further or different directions – Para. (3) of this rules entitles any party to an action which the rules applies to apply to the court for such further or different directions or orders may, in the circumstance, be appropriate. Any party making any such application will of course, have to justify his application upon proper grounds, or otherwise he may be mulcted in costs, for para (3) is not intended to provide an escape route out of the operation of r.8 whether to delay the progress of the action or otherwise.
1.8 Furthermore the Defendant itself has not discovered any documents. It is not in a position to insist on discovering when it itself has not given any. Indeed it is by its conduct precluded from asking for any further document.
Analysis
[15]. In his written submissions, Mr. Mishra submits that the application ought not be allowed at this late stage – highlighting that the trial of the matter had to be vacated on 1st June 2010 on the defendant's application. However – as stated – the discretion to order specific discovery is exercisable even after judgement or an order has been made (paragraph 12 above).
[16]. Prakash annexes two e-mails from the plaintiff dated 15th October 2009 and 29th October 2009 which read as follows:
"I do not have any where close to the required documents. This is impossible for me to do. Please do not continue with the case....drop it!!!
And the October 29th e-mail:
"...I just could not fathom the amount of records ..that they needed so many years down the road from the time of the accident. I already sent copies I am sure of salary, retirement, insurance costs. Doctors reports etc.
If you feel you can go ahead and get any settlement it is fine with me..however, the stress of this I just can not handle at this time.
[17]. The above is hardly an excuse not to make an attempt to try and obtain the documents. Ideally – before a plaintiff even files a claim, he should bring all his documents with him to the first interview.
[18]. At the outset, Sudhakar deposes as follows in paragraph 2 of his Affidavit:
"I am aware from my experience in claims of this nature that policies of insurance for travel, health and income and financial documents such as the profit/loss, balance sheets, depreciation schedules, tax and VAT Returns and assessments of tax are highly relevant for the purposes of assessing quantum of loss and damage including any economic loss"
[19]. Having noted the above, let me now then analyse whether the documents sought are discoverable.
Travel, health and income protection policies of insurance from 1st January 2000 to 1st January 2005
[20]. The plaintiff has not pleaded anything about having maintained an insurance cover under these heads. However, in the affidavit of Ashneel Sudhakar, is annexed a letter dated 24th April 2009 by AKLawyers to Mishra Prakash & Associates which appears to indicate that there had been some agreement at a pre-trial conference held between counsels that the plaintiff would discover these policies to the defendant. The letter then goes on to say that these are relevant to the claim for special damages.
[21]. The affidavit of Prakash states at paragraph 4 that the Schedule of Special Damages filed has all relevant documents attached to it in regards to the claim for special damages.
[22]. I do note that the special damages claimed amounts to US$116,823.69 for transport, loss of salary, medicine and medical costs.
[23]. I agree with the defendant that these documents would be relevant in the assessment of special damages. But do these documents exist? If so, are they in the possession, custody or control of the plaintiff? No doubt that - if they do exist, it would be perfectly within the right and power of the plaintiff to require and effect their production for the inspection of the defendant.
Financial statements and income tax returns to IRS in the United States and Notices of Assessment of Tax from 1st January 1999 to 31st December 2009
[24]. The defendant submits that if the plaintiff is claiming loss of profits from business then the income tax returns would show what her income was before the accident and what it became after the accident. That would surely assist in showing her loss of business.
[25]. This seems to me to be a reasonable assertion.
[26]. The defendant submits that as a taxpayer, the plaintiff would have had to prepare and file documents sought in paragraphs (b), (c) and (f) of the Summons (see paragraph [2] above) a required by law under the Income Tax Act. Related source documents would have been provided to whoever was preparing the returns.
[27]. Mr. Narayan refers to various case law authorities in Fiji, Australia and in England to show that Courts have consistently proclaimed that tax returns and financial statements are discoverable in that they are relevant and within the power of the plaintiff to obtain (Super Chem Products Ltd v American Life and General Insurance Co Ltd & Ors (2004) 2 ALL ER 358 at 370-371; Kumar –v- The National Insurance Co of Fiji Ltd HBC 0148D of 1998L; Barbeques Galore (Australia) Propriety Limited v Jones Lang Lasalle (SA) Propriety Limited (2006) SASC 31 (31st February, 2006). The clear position that emerges from these cases is that, where loss of business profit, pension and income (including loss of past and future earning capacity) are part of the damages-claim, the discovery of tax returns and financial statements will shed light on the plaintiff's financial situation.
Contract of service in the USA from 1st January 1999 to 31st December 2009
[28]. As part of her claim for special damages, the plaintiff claims US$76,000-00 for loss of salary. She also pleads in paragraph 9(b) that:
"As a result the plaintiff has received a reduced salary. She has lost teaching time which adversely affects her pension plan and the amount she will receive upon retirement"
[29]. I totally agree with the defendant's submission that these documents are relevant in showing how much the plaintiff earned before and after the accident. I also believe that it is within the plaintiff's powers to obtain these documents from the relevant authorities in the US.
Record of all bookings that were made or cancelled for 1st January 1999 to 31st December 2009
[30]. The plaintiff claims US$6,000 on "Transport" as part of her claim for special damages. Obviously, travel documents which include bookings are relevant to her claim.
[31]. Notably, the defendant does not canvass this in his submissions. I believe they are relevant. However, I have misgivings about whether the plaintiff could reasonably be expected to have kept the details of all these bookings from 1999 to 2009. I am of the view that the Plaintiff should be more detailed in his pleadings about the particulars of his travel for which she claims US$6,000 costs. If the claim is principally about travel between the US and Fiji, then her passports including old ones will show details of the frequency of her travels between the US and Fiji between 1999 to 2009. Her passport should be discovered in full if she is unable to locate her travel documents.
Copies of financial statements and income tax returns to FIRCA and notices of assessment of tax from 1st January 1999 to 31st December 2009 pertaining to Mike's Divers
[32]. I repeat paragraphs 26 to 29 above.
Copies of income and financial statement for all income received by the Plaintiff from Mike's Divers or any other source in Fiji from 1st December 1999 to 31st December 1999 together with copies of Notices of Assessments of Tax in Fiji or in the US
[33]. I repeat paragraphs 26 to 29 above.
Conclusion
[34]. In the circumstances, I was inclined to make an order under Order 24 Rule 16(1)(a) that – unless the plaintiff makes discovery of these documents within 14 days of the date of this Order, she shall not be entitled subsequently to produce them without the leave of the Court and shall be ordered to pay costs to the defendant to be assessed then.
[35]. However, I realize that the consequences of such an unless Order would merely be playing right into the hands of the plaintiff and be devoid of any per-emptive effect.
[36]. Accordingly – after careful consideration, I grant order in terms of prayers (a) to (f) only of the Summons as outlined above in paragraph 3. The plaintiff is to file and serve a supplementary affidavit verifying list of documents for this purpose in 14 days of this ruling. Copies of all documents are to be made available in for inspection 7 days thereafter.
[37]. If the plaintiff is unable to discover any document, then she should set out clearly in the affidavit what attempts she has made to locate the documents and why she is not able to discover these documents including details of when she parted with any of them and what has become of them.
[38]. Alternatively, if the plaintiff intends to amend her statement of claim to discontinue in whole or in part her claim for special damages on account of her inability to discover all or certain of the documents stated hereinabove in paragraph 3, then she is at liberty to file and serve her amended statement of claim in 14 days hereof.
[39]. Costs in the cause.
[40]. Meanwhile, I will adjourn this case to Wickramasinghe J on Friday 12th November 2010 to consider the application to vacate the hearing date.
Anare Tuilevuka
Master
At Lautoka
29th of October 2010.
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