McGoon v Ali [2015] FJCA 31; ABU16.2007 (27 February 2015)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CIVIL APPEAL NO: ABU 16 of 2007
with ABU 9 of 2007
(High Court HBC 217 of 2001 at Lautoka)

BETWEEN:

ALBERT JAMES McGOON by KARALAINI McGOON his next friend
Appellant

AND:

AKTAR ALI
MOHAMMED SHAMSUD-DEAN SAHU KHAN
IFTAKHAR IQBAL AHMED KHAN
Respondents

AND

BETWEEN:

AKTAR ALI
Appellant

AND:

ALBERT JAMES McGOON by KARALAINI McGOON his next friend
Respondent

Coram : Calanchini P
Lecamwasam JA
Corea JA

Counsel : Ms N Khan with Ms A Ali for McGoon
Mr D Naidu for Ali
Mr S Nacolawa for Sahu Khan
Mr Iqbal Khan in person

Date of Hearing : 14 May 2014
Date of Judgment : 27 February 2015

JUDGMENT

Calanchini P

[1] These are two appeals filed separately that arise from the judgment of the High Court delivered on 15 December 2006. The first in time (ABU 9 of 2007) was filed by Ali within time on 7 March 2007. It was within time since Rule 16 of the Court of Appeal Rules (the Rules) then provided that time ran from the date of perfection of the orders that flowed from the judgment. The orders were sealed by the Court on 5 February 2007. Rule 16 has since been amended with effect from 31 December 2008 to provide that time runs from the date of pronouncement of the judgment in court. The second in time (cross appeal) (ABU 16 of 2007) was filed by McGoon out by of time on 24 April 2007. Ward P granted an enlargement of time on 18 April 2007. On 3 March 2010 the Court of Appeal ordered that both appeals should be heard together. It would appear that the appeals were initially heard on 9 September 2010. However judgments were not delivered before two of the three judges hearing the appeal had left the Bench. This is a re-hearing of the appeal. Furthermore, the appeals had been listed for hearing on other occasions only to be vacated at the request of one or other of the parties.

[2] McGoon commenced the present proceedings on 1 August 2001 in the High Court at Lautoka claiming relief against the Respondents. The first Respondent Ali was his former employer. The second and third Respondents were two legal practitioners. The second Respondent (Sahu Khan) acted for Ali in earlier and in the present proceedings. The third Respondent (Iqbal Khan) acted for McGoon for the purposes of obtaining a consent judgment in earlier proceedings. The gist of the claim against the Respondents was that they had collectively deprived him of a sum of money being the damages that would have been awarded to him in earlier proceedings commenced in the High Court at Lautoka on 10 March 1999.

[3] That earlier action (HBC 85 of 1999) was a claim for damages for personal injury as a result of an accident at work. The accident occurred on 12 February 1998 when a logging skidder being operated by McGoon overturned. Those proceedings had been commenced on behalf of McGoon by his then legal practitioner Mr R Chaudhary. When that action was at the pre-trial conference stage the parties themselves agreed to settle the claim.

[4] The learned trial Judge made a number of findings of fact as to what transpired at the time of the agreement that are now summarised. Having reached agreement between themselves McGoon and Ali went to Sahu Khan's office in Ba. The learned Judge accepted that the purpose of the visit was for Sahu Khan to prepare a settlement document. The document was prepared at Sahu Khan's office. It was then signed by Ali and witnessed by Sahu Khan. The trial Judge also accepted that McGoon waited in an outside room in Sahu Khan's office and that Sahu Khan did not speak to McGoon on that occasion. More significantly the learned Judge found as a fact that McGoon did not sign the settlement document in Sahu Khan's office. The sole purpose of McGoon and Ali going to Ba was to get a document prepared, signed by Ali and witnessed by Sahu Khan. Ali did not go to his solicitor's office for legal advice.

[5] After leaving Sahu Khan's office Ali and McGoon went to McGoon's solicitor, Mr Chaudhary. McGoon was advised by Chaudhary not to sign the settlement document, informing him that it was not in his interests to do so. McGoon agreed to discuss the matter with his wife and return later. In the meantime the settlement document remained with Chaudhary. Although signed by Ali it remained unsigned by McGoon.

[6] Contrary to that arrangement, on the same day McGoon with Ali then looked for another solicitor and came across Iqbal Khan's office. The learned trial Judge found as a fact that they went to that office to arrange for another settlement document to be prepared in the terms of their agreement. McGoon did not go to Iqbal Khan's office for legal advice. Ali contacted Sahu Khan's office and requested that a copy of the settlement document be faxed to Iqbal Khan's office. McGoon and Ali then left Iqbal Khan's office and agreed to return the next day.

[7] The following day (10 August 1999) McGoon signed 2 documents in Iqbal Khan's office. The first was a retyped settlement document which was in substance the same as the first settlement document that was still in Chaudhary's office. The second document was an authority for Iqbal Khan to act for McGoon. Although Iqbal Khan's role may have been ethically questionable it did not go to the allegations made against him in the statement of claim.

[8] Ali then contacted Sahu Khan to find out how he should sign the second settlement document. He was told that he should go to another solicitor for that purpose. Ali went to a Mr Gordon's office where he signed and Mr Gordon witnessed the second settlement document. The executed settlement document was taken to Ba. The settlement monies were paid into Sahu Khan's trust account. A consent order was obtained in terms from Madraiwiwi J in the High Court at Lautoka on 17 August 1999. The sum of $14,200.00 was then paid to McGoon and he subsequently received a van in very poor condition. After two years the money ran out and the van was unserviceable. McGoon then commenced the present proceedings in the High Court.

[9] In the present proceedings (HBC 217 of 2001) McGoon pleaded five causes of action. These are reproduced in full in the judgment of Lecamwasam JA and I propose only to set out a summary of each cause.

[10] In his first claim McGoon pleaded that Ali and his lawyer Sahu Khan made untrue and fraudulent representations thereby causing him loss and damage. In the second cause of action McGoon sought against all three Respondents a declaration that the execution of the terms of settlement and the consent order made in the first action were obtained by undue influence and should be set aside. In the third cause of action McGoon alleged against all three Respondents a fraudulent conspiracy to compel him to settle for an amount of money far below that to which he was justly entitled. In his fourth cause of action McGoon claimed that even if Iqbal Khan was validly engaged as his solicitor, then Iqbal Khan was negligent in that he failed to exercise due skill and care thus compromising McGoon's claim against Ali and thereby resulting in McGoon suffering loss and damage. In the fifth cause of action McGoon claimed that Iqbal Khan's conduct was misleading and deceptive in breach of section 54 of the Fair Trading Decree 1992. That Decree has since been repealed by the Commerce Decree 2010.

[11] In relation to the workplace accident that gave rise to the first action the learned Judge found that there was insufficient evidence to determine the issue of liability. In relation to the quantum of the claim the learned Judge noted that there was medical evidence available that could have been relied on at the trial and in respect of which there was no contradicting evidence from the employer Ali.

[12] The learned Judge noted that McGoon's second proceedings were commenced nearly two years after McGoon had accepted the settlement of his first action and after all the settlement money had been spent. McGoon was by 2001 without income for ordinary daily living expenses.

[13] In relation to the issues raised by the pleadings concerning the settlement of the first action the learned Judge made the following findings of fact that appear in paragraph 88 of the unreported version of the judgment:

"1. The Plaintiff was in extremis i.e. he was desperate for money, for food, to send his children to school and to cease arguing with his wife. (Mrs McGoon, Mr Chaudhary, First Defendant.)

2. The First Defendant was aware of this and had the means to settle. (First Defendant).

3. The First Defendant had been supporting the Plaintiff by periodic payments and had determined by 13 April 1999 that these would cease, which left the Plaintiff without support and was the final cause of the factor No 1 above. (Mrs McGoon, First Defendant)

4. The Plaintiff was thoroughly well advised by his own solicitor that to settle on the offered terms was against his best interests (Mrs McGoon, Mr Chaudhary, First Defendant)

5. The Plaintiff was to some degree debilitated by his physical injuries, his inability to work, his unhappy situation at home and his desperation for immediate gratification of his needs. (Mrs McGoon, First Defendant)

6. The First Defendant took advantage of a situation which he had in part created by first making voluntary payments to the Plaintiff and then at his own whim withdrawing them. (Mrs McGoon, First Defendant)."

[14] The learned Judge also found on the evidence that when McGoon signed the terms of settlement on 10 August 1999 he showed no signs of incapacity from brain damage and that he was fully possessed of his mental faculties.

[15] In my judgment all the findings of fact set out above were open to the learned Judge on the evidence before him. There is no reason why those findings should be disturbed.

[16] The learned Judge dismissed four of the five causes of action pleaded by McGoon. The Judge set aside the consent order on the basis of unconscionable conduct on the part of Ali and gave judgment for McGoon on the second cause of action against Ali. He dismissed the claim made against Sahu Khan and Iqbal Khan in the second cause of action.

[17] The orders pronounced by the learned trial Judge were as follows:

"I enter judgment on the first cause of action for the 1st Defendant and the 2nd Defendant. The Plaintiff will pay costs to the 2nd Defendant. Pursuant to HCR O62 R.3(3) I decline an order in favour of the 1st Defendant, on the ground that it was his conduct that was the prime and substantial cause of this action.

On the second cause of action I enter judgment for the Plaintiff, against the 1st Defendant only, with costs, otherwise judgment for the 2nd and 3rd Defendants, and the Plaintiff will pay costs to those two Defendants. This judgment for the Plaintiff is solely to grant the one remedy, i.e. to set aside the consent order made in Action HBC 85 of 1999L on 17 August 1999. The other claims are dismissed.

On the third cause of action I enter judgment for the three Defendants, with costs to the 2nd and 3rd only.

On the fourth and fifth causes of action I enter judgment for the 3rd Defendant with costs.

All costs payable by the 1st Defendant to the Plaintiff, (under the second cause of action), and by the Plaintiff to the 2nd and 3rd Defendants may be agreed, otherwise they are to be taxed at the higher scale. The costs to be paid by the Plaintiff are to be repaid to him by the two firms of solicitors who filed this action and conducted the hearing, their liability being joint and several."

[18] It is against those orders that the two appeals have been filed. The Appellant Ali challenged the decision of the learned trial Judge whereby he set aside the consent orders made in the first action. The grounds relied upon by Ali in this appeal have been set out in full in the judgment of Lecamwasam JA.

[19] The Appellant McGoon challenged the decision of the learned Judge whereby he dismissed the four causes of action (first, third, fourth and fifth) in favour of the Respondents. Once again the grounds relied upon by McGoon in his appeal have been set out in full in the judgment of Lecamwasam JA.

[20] The Appellant Ali challenges the decision of learned trial Judge to set aside the consent judgment obtained in the first action primarily on the basis that there was no or insufficient evidence before the Court on which the Judge could find unconscionable conduct. Furthermore Ali claims that the evidence that was before the Court indicated that there was no basis in law for setting aside the consent judgment entered in the first action. The learned Judge, as previously noted, relied on the doctrine of unconscionable conduct and in doing so identified a number of matters arising from the evidence that supported reliance on that doctrine.

[21] Although the learned Judge has ordered that the consent judgment be set aside on the basis of unconscionable conduct on the part of Ali, earlier in his judgment (para. 8) he couched this particular claim in terms of undue influence. Although two different principles the facts pleaded in paragraph 24 of the Statement of Claim may be considered as possibly amounting to either undue influence or unconscionable conduct.

[22] From the comments made by the learned trial Judge in paragraph 65 of his judgment it would appear that the following was the settlement agreement signed by McGoon and Ali on 10 August 1999. There is no copy of that document in the appeal record.

"1. The Defendant shall pay to the Plaintiff the sum of $15,000 (Fifteen Thousand Dollars) and this sum shall be payable as follows:-

(i) $500.00 (Five Hundred Dollars) on the execution hereof (and the receipt of which sum the Plaintiff hereby admits and acknowledges).

(ii) The sum of $14,500.00 (Fourteen Thousand Five Hundred Dollars) within one month from the date of the execution hereof.

(iii) That in addition to the payment of $15,000.00 (Fifteen Thousand Dollars) the Defendant shall transfer the Motor Vehicle being Toyota Hilux Registration NO. E6141 in the name of the Plaintiff and the Plaintiff has inspected the said vehicle and has carried out his own independent examination and is taking the transfer of the same on the basis of as is where is and the transfer shall be done within two weeks from the date of the execution hereof.

2. That on the payment of the above sum of $15,000.00 (Fifteen Thousand Dollars) and the transfer of the said Motor Vehicle in the name of the Plaintiff the Plaintiff acknowledges that the above shall be in full settlement discharge and satisfaction of all claims, demands, actions, proceedings and rights whatsoever which the Plaintiff may now have or might have but for the settlement against the Defendant and/or anyone claiming through or under him in respect of the injuries sustained by the Plaintiff and all other costs and expenses incurred by reason of the accident which happened on/or about the 12th day of February, 1998 whilst the Plaintiff was operating the skidder at Semo Nadroga whilst the Plaintiff was in the employment of the Defendant AND THE PLAINTIFF HEREBY UNDERTAKES not to commence or proceed with any further or other suit or proceedings against the Defendant in respect of the said damages for injuries, costs and expenses or in respect of any claim which the Plaintiff now has or might have against the Defendant whatsoever arising out of or relating to the said accident AND THE PLAINTIFF HEREBY DECLARES that this settlement may be pleaded in bar to this action and/or any other action, suit or proceedings now or hereafter commenced or taken by the Plaintiff against the Defendant in respect of the said accident AND THE PLAINTIFF FURTHER ADMITS AND ACKNOWLEDGES that in particular the Discharge and Settlement herein relates to this action and to all claims whatsoever in respect of the said accident be it the claim under the Common Law or under the Workmen's Compensation Act and/or any other suit and/or regulation whatsoever applicable in respect of the said accident.

3. That the Defendant likewise discharges the Plaintiff in respect of all his claims under the Counter Claim filed herein and the terms of the discharge in relation to the Plaintiff referred to in Paragraph 2 above shall likewise apply to the Defendant in respect of his Counter Claim.

4. That except as in herein expressly admitted neither party has any further rights, demands actions, or claims or one against the other in respect of the accident referred to in the Statement of Claim herein and which occurred on the 12th day of February, 1998 and referred to in Paragraph 2 herein.

5. That each party shall bear his own Solicitor costs."

[23] There appears to be no dispute that Madraiwiwi J made a consent order in terms on 17 August 1999. At no stage in the second proceedings before the High Court was a copy of those sealed orders produced. The learned trial Judge's only reference to the consent orders is in paragraph 14 of his judgment. It appears that the learned trial Judge has assumed that in the context of the fresh action in which the setting aside of a consent order was sought, the orders had been entered and sealed. Under those circumstances, the consent judgment can only be set aside on any ground which may invalidate the agreement on which it was founded.

[24] At the outset it should be noted that when the first action was commenced in 1999 McGoon was named as Plaintiff in his own name. There was no next friend nominated that might have indicated disability. McGoon was for the purposes of those proceedings "sui juris" (of full age and sound mind). The learned Judge found on the evidence before him that McGoon was "sui juris" when he signed the settlement document on 10 August 1999 in Iqbal Khan's office. However in the second action McGoon sought relief by his next friend and thereby indicating that he was disabled.

[25] In any proceedings a plaintiff may decide to reach a settlement agreement with a defendant in order to bring the action to an end for any one of a number of reasons. It may be that the prospect of robust adversarial litigation is not something that a plaintiff wants to endure. It may be that (whether on advice or otherwise) a plaintiff accepts that the prospects of success are not as strong as first thought and that proceeding further poses an unacceptable risk. It may also be that there is an urgent need for finance which may be completely or partially alleviated by the acceptance of a lesser but certain amount received almost immediately pursuant to a compromise. There are no doubt other reasons as well. Settlement can occur where both parties are represented, where one is and the other is not represented or where neither party is represented. Furthermore when both parties are represented, as was the case in these proceedings, settlement can occur by agreement between their legal representatives on instructions received by them from their clients or settlement can occur by agreement between the parties themselves with no apparent involvement on the part of their legal representatives. The learned trial Judge accepted, on the authority of The Hope [1883] UKLawRpPro 36; [1883] 8 PD 144 that it was open to the parties to compromise the claim without the involvement of their legal practitioners. Provided that they have acted in good faith vis a vis their legal practitioners, there is no doubt that parties who are at arms length or on an equal footing may settle an action by agreement made between themselves. However in a case such as the present where there is considerable inequality between the parties, it is necessary to consider both the circumstances of the parties and the terms of the agreement.

[26] It was clear to the learned trial Judge on the evidence before him that it was McGoon's difficult financial position that was the principal reason for McGoon's desire to settle his claim. It is also apparent from the judgment that on the evidence available in the second action McGoon's chances of succeeding on the question of liability in negligence were by no means guaranteed. The trial Judge referred to the state of the evidence before him as "inconclusive on liability" and noted that McGoon did not give evidence at the hearing.

[27] A useful starting point when considering unconscionable conduct as the basis for setting aside an agreement is the unreported judgment of Keyser J in Evans –v- Lloyd [2013] EWHC 1725 (Ch). At para. 47 His Lordship referred to Snell's Equity 32nd edition 2010 under the heading "Exploitation of a Special Disadvantage" at para 8 – 036 and quoted:

"There is a well established equitable jurisdiction to set aside a purchase from 'a poor and ignorant man' at a considerable undervalue unless the purchaser satisfies the court that the transaction was fair, just and reasonable. The doctrine is distinct from undue influence because it does not require a pre-existing relationship between the parties and may arise between parties who are completely unknown to each other. However: "A bargain cannot be unconscionable unless one of the parties has imposed objectionable terms in a morally reprehensible manner, that is to say, in a manner which affects his conscience _ _ _

The doctrine applies where (1) (one party) is suffering from certain kinds of disability or disadvantage; (2) the bargain is oppressive to (that party); and (3) the other party acted unconscionably in that he or she knowingly took advantage of that party. _ _ _ Where these requirements are met the burden then passes to (the other party) to satisfy the court that the transaction was fair, just and reasonable."

[28] The first requirement was considered in Australian Competition and Consumer Commission –v- C.G. Berbatis Holdings Pty Limited and Others [2003] HCA 18; (2003) 214 CLR 51 at pages 62 and 63 where the High Court (per Gleeson CJ) considered that the disability or disadvantage must be a special disadvantage in the form of a disabling circumstance that seriously affected a party's ability to make a judgment in his own best interests. In the same decision the view was expressed that inequality of bargaining power alone does not establish a position of relevant disadvantage. At page 64 it was noted that:

"Many, perhaps even most, contracts are made between parties of unequal bargaining power and good conscience does not require parties to contractual negotiations to forfeit their advantage or neglect their own interests."

[29] Apart from poverty and lack of education which are well established disabilities or disadvantages for the purpose of the doctrine, illness, inexperience, impaired faculties and financial need are all matters that may affect a party's ability to make a judgment in his own best interests. (per Kitto J at page 415 in Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362.

[30] In relation to the second requirement Keyser J (supra) quoted the following which appears at para 8 – 038 in Snell's Equity:

"It must be established that the terms were overreaching and oppressive "and that they shock the conscience of the court.' It is not sufficient to establish that the transaction was imprudent."

[31] As for the third requirement, Keyser J (supra) quoted Snell's Equity para 8 – 039:

"The jurisdiction will not be exercised unless the purchaser was guilty of unconscionable conduct. This refers not only to the oppressive terms but to the behaviour of the stronger party, which must be morally culpable or reprehensible. It is not sufficient that the parties had unequal bargaining power or that the terms of the bargain were more favourable to one party than to another. Although the terms of the transaction may be so oppressive that the court may draw an inference that the defendant behaved unconscionably, a court will not find unconscionable conduct if 'D' was unaware that 'C' was acting under a special disadvantage, or if, in the course of negotiating the transaction, D behaved properly (i.e. did not use unfair or illegitimate tactics nor sought to take advantage of a mistake)."

[32] Although the passages quoted from Snell's Equity refer to a bargain or an agreement involving a purchaser there is no reason why the same principles should not apply generally to any other type of agreement. In this regard Lord Templeman delivering the opinion of the Judicial Committee of the Privy Council in Boustany –v- Piggott (unreported Privy Council Appeal No. 38 of 1992) [1993] UKPC 17 expressed the following propositions:

"(1) It is not sufficient to attract the jurisdiction of equity to prove that a bargain is hard, unreasonable or foolish; it must be proved to be unconscionable, in the sense that one of the parties to it has imposed the objectionable terms in a morally reprehensible manner, that is to say in a way which affects his conscience: Multiservice Bookbinding –v- Maiden [1979] Ch.84,110

(2) Unconscionable relates not merely to the terms of the bargain but to the behaviour of the stronger party, which must be characterised by some moral culpability or impropriety Lobb (Alec) (Garages) Limited –v- Total Oil (Great Britain) Limited [1983] 1WLR 87, 94.

(3) Unequal bargaining power or objectively unreasonable terms provide no basis for equitable interference in the absence of unconscientious or extortinate abuse of power where exceptionally, and as a matter of common fairness, it was not right that the strong should be allowed to push the weak to the wall: Lobb (supra) [1984] EWCA Civ 2; [1985] 1 WLR 173, 183.

(4) A contract cannot be set aside in equity as an unconscionable bargain against a party innocent of actual or constructive fraud. Even if the terms of the contract are "unfair" in the sense that they are more favourable to one party than the other (contractual imbalance), equity will not provide relief unless the beneficiary is guilty of unconscionable conduct: Hait –v- O'Connor [1985] UKPC 1; [1985] AC 1000.

[5] In situations of this kind it is necessary for the plaintiff who seeks relief to establish unconscionable conduct, namely, that unconscientious advantage has been taken of his disabling condition or circumstances: per Mason J in Commercial Bank of Australia Ltd –v- Amadio [1983] HCA 14; (1983) 46 A.L.R 402, 413."

[33] In this case can it be said that McGoon was under a special disadvantage that seriously affected his ability to make a judgment in his own best interests at the time when he signed the settlement agreement in Iqbal Khan's office on 10 August 1999? He had suffered injuries as a result of an accident at work. He had commenced in his own name an action in negligence for damages for those injuries. The trial Judge found that he had the necessary capacity to enter into the settlement agreement. The trial Judge concluded that McGoon was not in poor health at the time he signed the agreement. More significantly the trial Judge accepted that McGoon had received independent legal advice on the day before he signed the agreement. The trial Judge also rejected the claim that the Respondents or any of them had acquired "dominion over the mind" of McGoon. However there is no doubt that McGoon's dire financial position when he entered into the agreement to settle did indicate that he was at a disadvantage and was not able to make a sound judgment as to what was in his best interests.

[34] On the other hand as the learned Judge noted in paragraph 117 McGoon had waited 2 years before seeking to have the agreement set aside. That delay only came to an end when the proceeds of the consent judgment had been spent. McGoon was not mentally disabled and had rejected sound independent legal advice from his own lawyer and probably also from Iqbal Khan. He also appears to have acted against the instincts of his wife.

[35] After referring to text book and case authority on the principle of unconscionable conduct, the learned Judge discussed the facts which he concluded had established unconscionable conduct on the part of Ali. The Judge found and it cannot be disputed that McGoon was the weaker party. McGoon was the employee and Ali the employer. McGoon had been badly injured and Ali was not suffering any injury. McGoon was in desperate need of money and Ali had money. McGoon with a family to support faced the prospect of never working again and Ali was an active businessman. These are all matters that are relevant to the conclusion that McGoon was in a position of special disadvantage.

[36] The learned trial Judge does not discuss the terms of the agreement in the context of unconscionable conduct and in view of his comments concerning the state of evidence on the issue of negligence, it is difficult to assess whether the terms are objectionable in a morally reprehensible manner. However putting to one side the issue of liability, it is arguable that there was sufficient evidence to establish a substantial award in damages for past and future pecuniary and non-pecuniary loss. In my judgment the settlement did not fairly reflect the potential of the claim even allowing for the learned Judge's comments on the adequacy of the evidence before him to establish liability.

[37] The issue which presents the greatest difficulty for McGoon is the effect that the receipt of independent legal advice has on the application of the principle of unconscionable conduct in this case. The learned trial Judge considered that the advice give to McGoon did not outweigh the unconscionability of Ali's actions. However, there is some merit in the view that once McGoon had agreed in principle to settle the action on the terms negotiated, Ali's actions amounted to nothing more than facilitating the execution of a document that formalised an agreement already formed. In view of the advice given to McGoon, he could have withdrawn from the agreement at any time before execution. It was not as though Ali's conduct in ensuring that "everything came together" had been a contributing factor to the formation of the agreement. The agreement had been made by Ali and McGoon before they went to Ba for Sahu Khan to draw up the agreement for signature. There is no evidence that Ali in any way acted improperly after Chaudhary had given his legal advice to McGoon. The evidence was that they both wanted to settle the action on the agreed terms and they both went to another lawyer's office to have another document prepared with the same terms of settlement as agreed

[38] However there is one aspect of Ali's conduct that is significant. It is, in my judgment, Ali's direct approach to McGoon to negotiate a settlement of the claim that brings his role into question. What Ali presented to McGoon was the prospect, if agreement could be reached between the two of them, of almost immediate access to funds that would in the short term solve not only his immediate financial problems but also restore some tranquillity to his family life. When Ali and McGoon privately discussed settlement and reached agreement there was no counter-balancing voice urging caution. Had an offer of settlement been made by Ali through his legal practitioner Sahu Khan to McGoon's legal practitioner the situation would have been different. Mr Chaudhary would have been obliged to inform McGoon that an offer to settle had come from the other side. The manner in which Mr Chaudhary explained the offer to McGoon would have implied caution with the counter view that McGoon could do better at trial and that to accept was not in his best interests. However by the time McGoon got to discuss the matter with Mr Chaudhary, McGoon had been so seduced by the prospect of the almost immediate receipt of a sum of money that his mind had already been made up. No amount of sound advice from Mr Chaudhary was at that stage going to have any effect on McGoon's decision to settle. I have no doubt that Ali consciously took this approach knowing full well that McGoon, vulnerable as he was, would accept any sum of money that seemed to him to be sufficient to solve all his short term problems. I am satisfied that Ali's conduct was unconscionable and I agree with the conclusion of the learned trial Judge. I would dismiss his appeal.

[39] The second appeal is brought by McGoon challenging the decision of the learned trial Judge to dismiss his claims against the Respondents except for the judgment in his favour against Ali to set aside the consent judgment. The bases for this challenge are set out in grounds 1 to 7 in his notice of appeal and have been set out in the judgment of Lecamwasam JA.

[40] In ground 1 McGoon claims that the trial Judge erred when he held that McGoon was not influenced to his detriment by either Sahu Khan or Iqbal Khan. The learned Judge considered the evidence carefully and having weighed that evidence made certain findings of fact. I am satisfied that those findings were open to him on the evidence. As a result of those findings the learned Judge concluded that neither Sahu Khan nor Iqbal Khan had in any way influenced McGoon to his detriment. I see no error in that conclusion. This ground fails.

[41] Ground 2 is concerned with the execution of the settlement document and the obtaining of a consent judgment. The evidence before the learned Judge included a document which the learned Judge found was signed by McGoon authorising Iqbal Khan to act for him. There was also evidence to support the conclusion that a second written agreement prepared in Iqbal Khan's office was signed by McGoon on 10 August 1999 and witnessed in Iqbal Khan's office. The same document was signed by Ali and witnessed in Mr Gordon's office. The findings were open to the Judge on that evidence. His conclusions were consistent with those findings. This ground fails.

[42] Ground 3 challenges the admission into evidence of a document referred to as Exhibit 2D2. The admission of documentary material into evidence is now regulated by Part III of the Civil Evidence Act 2002. Having read the submissions filed by the parties I do not consider that the learned Judge has erred when he exercised his discretion to admit the document into evidence. This ground fails.

[43] Ground 4 relates to the weight attached to the document Exhibit 2D2 by the learned Judge. In my view the question of weight was a matter for the Judge to be determined in the context of the whole of the evidence both written and oral adduced at the trial. I see no reason why the weight attached to the document should be regarded as erroneous. This ground fails.

[44] Ground 5 relates to the finding that there was no evidence to support the claim that McGoon was mentally incapacitated at the time he agreed to settle his claim. There was evidence of head injuries suffered as a result of the accident. There was no evidence of incapacity at the time McGoon agreed to settle. McGoon's own lawyer was clearly of the view that McGoon was of sound mind when McGoon attended at his office with the settlement agreement signed by Ali. This ground fails.

[45] Ground 6 raises an issue similar to that raised in ground 1. The findings of fact made by the learned Judge clearly resulted in a conclusion that neither Sahu Khan nor Iqbal Khan had in any way exercised any influence over McGoon to sign the second settlement document. The findings of fact upon which that conclusion was based were open to the Judge on the evidence at the trial. This ground fails.

[46] Ground 7 fails because the evidence does not support the ground and because the proposition upon which the ground is based are not consistent with the findings of fact made by the Judge being findings that were open to him on the evidence.

[47] Ground 8 in McGoon's Notice of Appeal falls into a completely different category and must be considered upon principles that are unrelated to the other grounds of appeal.

[48] Ground 8 relates to that part of the judgment whereby the learned Judge ordered that the costs awarded against McGoon were to be re-imbursed to him by the two law firms that had acted for him in the second proceedings being HBC 207 of 2011. The liability of those two firms was ordered as joint and several. The two firms were Messrs S B Patel and Company (who instituted proceedings) and Natasha Khan Associates (who acted at the trial and on his trial). On its face it is an order in favour of McGoon. The party challenging that order was one of the two firms of Solicitors. However in order to challenge that order it was necessary for the two firms or one of them at least (if the challenge was based on jurisdictional issues) to apply to the Court to be joined as a party to the appeal. This was not done. Instead, McGoon's solicitors have attached their challenge to the costs order to McGoon's appeal. McGoon's interests on this issue are in direct conflict with the interests of his solicitors.

[49] The result is that this Court is faced with a ground of appeal that has been raised improperly by a party who is not a party to the appeal. The issue has been raised by McGoon's solicitors in direct conflict with the interests of McGoon. Any challenge to an order relating to costs only requires the leave of the Court (section 12(2) (e) of the Court of Appeal Act Cap 12). The only challenge to the orders that were made by the learned Judge so far as the solicitors are concerned is the order for re-imbursement of costs to McGoon. Leave was neither sought nor granted. Perhaps the most significant objection to the course of action taken by the solicitors was that at the appeal hearing there was no voice to be heard on behalf of McGoon. His Counsel was arguing against his interests in her attempt to have the order overturned. The challenge was not related to the award of costs against McGoon but rather against the order for re-imbursement of the costs to McGoon by the two firms of solicitors who had acted for him. Whilst the Respondents may have had some interest in the outcome since they were more likely to be paid the costs awarded under the orders made by the Judge, their concern was not the same as McGoons.

[50] I do accept that section 17 of the Court of Appeal Act does enable the Court to entertain an appeal made under the relevant Part of the Act on any ground which it thinks just. I also accept that the failure to obtain leave as required by section 12 (2) (e) of the Act does not in this case preclude the Court from itself granting leave (notwithstanding Rules 26 (2) and (3)) and proceeding to consider the appeal. The appeal is still an appeal made under the provisions of Part III of the Act (See: R.B Patel Ltd –v- J. P Bajpai and Co. Ltd and Others (1987) 33 FLR 92)). However a ground of appeal raised surreptitiously in a notice of appeal by a third person who is not a party to the appeal is not an appeal made under Part III as required by section 17 of the Act. The issue is not properly before the Court and the Court has no jurisdiction to consider that ground of appeal. The Court's powers are derived from statute alone and that statute, the Court of Appeal Act establishes the limits of this Court's powers.

[51] The end result is that the appeal by Ali should be dismissed and the appeal by McGoon on grounds 1 to 7 should also be dismissed. The purported appeal against the costs order raised by ground 8 should be struck out as an abuse of process.

[52] As for the costs of the appeals, in view of the issues raised by both appeals, parties should pay their own costs.

Lecamwasam JA

[1] The court is presented with 2 appeals, one filed by the plaintiff- appellant against the judgment of the learned High Court judge of Lautoka dated 15th December 2006 and another filed by the first defendant- appellant against the same judgment.

[2] The grounds of appeal of the plaintiff appellant are:

(1) That the learned Trial Judge erred in law and in fact in holding that the Appellant (Albert James Mc goon) was not influenced either jointly or severally to his detriment by the 2nd and 3rd Respondents;

(2) The learned trial judge erred in law and in fact in holding the third respondent was properly instructed to effect settlement by the appellant in the absence of any evidence from the third respondent to support the same and the unchallenged testimony of the plaintiff that she had not instructed to effect settlement and/ or instructed at all;

(3) The Learned Trial Judge erred in law and in fact in admitting Exhibit 2D2 through a secondary source that too a photocopy;

(4) The Learned Trial Judge erred in law and in fact in relying on Exhibit 2D2 as being true when the contents of the same was not put to the Plaintiff in her cross examination and neither did the 3rd Respondent confirm the same;

(5) The Learned Trial Judge erred in law and in fact in finding that there was no evidence before Court that the Appellant was mentally incapacitated despite medical evidence to the contrary;

(6) The Learned Trial Judge erred in law and in fact in that he failed to consider objectively that the Appellant, because of his medical condition could be unduly influenced by the 2nd and 3rd Respondents to sign the settlement;

(7) The Learned Trial Judge erred in law and in fact in not holding that the Appellant was also overborne in an unconscionable way by the 2nd and 3rd Respondents when he held that the Appellant was overborne by the 1st Respondent in the face of evidence that the Appellants' endorsement to the settlement was through a joint effort of all three Respondents in that;

• (i) the 2nd Respondent had knowledge that the Appellant was advised by his then lawyer not to accept the terms of settlement and despite the same proceeding with settlement;
  
• (ii) the 2nd Respondent was aware of the Appellant's medical prognosis's, the same being pleaded in the statement of claim;
  
• (iii) the 2nd Respondent purportedly prepared the terms of settlement without consultation with the Appellants counsel and/or the Appellant; and
  
• (iv) the 1st Respondent purportedly taking the Appellant with the terms of settlement to the 3rd Respondent to purportedly take over the Appellants case.
  

(8) The Learned Trial Judge erred in law and in fact in ordering the Appellants' current and previous Solicitors to reimburse costs to the Appellant upon a improper foundation and/or no foundation at all in that;

• (i) the cost order made against the Appellant and not his solicitors;
  
• (ii) the two solicitors were not asked to show cause as to why a cost order ought not be made against them and the same was contrary to the High Court Rules and natural Justice; and
  

(iii) There was a notice of change of solicitors filed from the Appellant's previous solicitors to the current ones and the previous solicitors ceased to have carriage of the Appellants claim.

[3] The grounds of appeal of the first defendant – appellant are:-

(1) The learned trial judge erred in law and in fact in setting aside the consent judgment and order made in action No. HBC 85 of 1999L on 17th day of August, 1999. ("The First Action") in as much as:-

(i) There was no evidence adduced to justify the setting aside of the judgment.

(ii) The learned trial Judge did not adequately and/ or properly take into account that the Plaintiff accepted the terms and conditions of the Settlement reached in the First Action after being independently advised of the terms and conditions and he was fully aware of the same when he executed and accepted the same.

(iii) The Learned Trial Judge did not adequately and/ or properly consider the issue of estoppels in as much Action.

(2) The respondent acted upon the terms and conditions of the settlement.

(a) by accepting the transfer of the motor vehicle and took full advantages of the use of ownership of the said motor vehicle from August 1999 to date.

(b) by accepting the sum of $500.00 upon the execution of the terms of settlement.

(c) by accepting the further sum of F$14,500.00 in August 1999 in accordance with the terms of settlement

(d) by undertaking not to commence or proceed with any further or other action in respect of any matter arising in the First Action and /or the accident occurring on the 12th day of February, 1998.

(e) by accepting the discontinuance and /or withdrawal of the counter claim of the Appellant and which was in the sum of $122,000.00 as claimed in the First Action.

(3) The learned trial judge had erred in law in fact in not taking relevant matters in account and taking irrelevant matters into account in coming to this decision.

(4) The decision of the learned trial judge in setting aside the judgment of the first action is unreasonable and cannot be supported having regards to the evidence as a whole and all the circumstances of the case.

[4] Briefly the facts are as follows:

The Plaintiff Appellant was employed by the 1st defendant Respondent as a skidder operator. On the 12th February 1998 while he was operating the skidder, it had gone down the slope and toppled causing injuries to the Plaintiff Appellant. He was taken to Lautoka Hospital and as his condition was serious he was subsequently transferred to Suva CWM Hospital in a helicopter.

[5] He had been taking treatment for three months and again he was transferred to Tamavua Rehabilitation Centre. Seriousness of the injuries sustained by him deprived him of resuming his job later on. Consequently, he filed Action No.85 of 1999L claiming damages from the employer i.e. the 1st Defendant in this case. Action No. 85 was later settled by the parties on the payment of $15,000 to the Plaintiff by the Defendant. The Plaintiff Appellant filed instant case two years after the settlement, alleging that the Defendants prevailed upon him to settle the matter as such the Plaintiff Appellant alleged that the settlement is not a genuine one and the Plaintiff Appellant moves Court to set aside the settlement dated 17th August 1999 and the Plaintiff Appellant claims damages, interest and costs.

[6] The Learned High Court Judge by order dated 15th December 2006 partly allowed the second cause of action in favour of the Plaintiff but decided the other four causes of action against the plaintiff Appellant that is in favour of the respective defendants.

[7] Being aggrieved by that order Plaintiff Appellant has invoked the jurisdiction of this court by way of appeal. When the appeal came up before us for argument, the respective counsel further argued in support of their respective stances taken in their written submissions.

[8] As per the Statement of Claim of the Plaintiff Appellant the five causes of action are as follows:

First Cause of Action Against the First Defendant and the Second Defendant

(1) Prior to and on the 10th day of August, 1999 the First Defendant and the Second Defendant in order to induce the Plaintiff to agree to compromise his claim in the High Court Action represented to the Plaintiff that the Plaintiff would not be successful in his claim for loss and damages in the High Court Action and that he should accept the terms of settlement proposed by the Second Defendant on behalf of the First Defendant.

(2) In reliance of the First Defendant's and Second Defendant's said representation the Plaintiff accepted the terms of settlement.

(3) In fact the said representation was not true.

(4) The said representation was made fraudulently in that the First Defendant and Second Defendant knew that it was false or made it recklessly not caring whether it was true or false.

(5) By reason of the First Defendant's and the Second Defendant's misrepresentation the Plaintiff has suffered loss and damage.

Particulars of Damage

To be quantified at trial, being the amount to which the Plaintiff would have been entitled to be awarded at the trial of the High Court Action.

And the Plaintiff Claims:

(a) Damages (General, exemplary and Punitive)
(b) Interest
(c) Costs
(d) Such other or further relief as seems just to this Honourable Court.

Second Cause of Action Against the First Defendant, Second Defendant and Third Defendant

(1) At all material times the Defendants and each of them knew or ought to have known the Plaintiff was in poor health having suffered severe personal injuries including traumatic brain injury at the time he executed the terms of settlement under which the First Defendant was released from all claims and proceedings in respect of his claim in the High Court Action. Also in the circumstances herein before stated namely the Defendants and each of them acquired dominion over the mind of the Plaintiff whereby the Plaintiff was prevailed upon and his execution of the terms of settlement procured.

(2) At the time of executing the terms of settlement the Plaintiff had no independent advice.

And the Plaintiff claims:

(a) A Declaration that the execution of the terms of settlement and Order of the Court in terms thereof were procured by undue influence and they ought to be set aside.

(b) An account of what is due to the Plaintiff from the First Defendant in accordance with the said Declaration after making all just allowances.

(c) Damages (General, exemplary and Punitive)

(d) Interest.

(e) Such further or other relief as seems just

(f) Costs

Third Cause of Action Against the first, Second and Third Defendants

(1) In the month of August, 1999 the defendants and each of them wrongfully and with intent to injure and defraud the Plaintiff conspired and agreed together to compel the Plaintiff into settling his claim against the First Defendant for a sum which was for below that which the plaintiff was justly and truly entitled to be paid.

(2) In pursuance of the said conspiracy the defendants and each of them prevailed upon the Plaintiff to change his solicitor from Mr. Rajendra Chaudhary to the Third Defendant wrongly advised the Plaintiff obtained his signature on the terms of settlement and wrongfully and fraudulently obtained an order of the High Court of Fiji in terms of the terms of settlement.

And the Plaintiff claims:

(a) Damages (General, Exemplary and Punitive)
(b) Interest
(c) Costs
(d) Such further or other relief as seems just.

Fourth Cause of Action Against the Third Defendant

(1) On or about the 10th day of August, 1999 the First Defendant and the Second Defendant purported to engage the Third Defendant on behalf of the Plaintiff in the High Court Action.

(2) If the Third Defendant was engaged by the Plaintiff (which is denied) it was an implied term of the said engagement that the Third Defendant should exercise all due skill and care while acting for the Plaintiff as aforesaid.

(3) The Third Defendant negligently and in breach of the said term failed to exercise due skill and care and compromised the Plaintiff's claim against the First Defendant whereby the Plaintiff suffered considerable loss and damage.

(4) By reason of the matters aforesaid the plaintiff lost prospects of recovering substantial damages arising out of the said collision and has thereby suffered loss and damages.

And the Plaintiff claims against the Third Defendants:

(a) Damages (General Exemplary and Punitive)
(b) Interest
(c) Costs
(d) Such further or other relief

Fifth Cause of Action Against the Third Defendant

(1) The Plaintiff repeats paragraph 1 to 31 hereinbefore and say that at all material times the Third Defendant whilst engaged in trade or commerce involved in misleading and deceptive conduct contrary to and in breach of Section 54 of the Fair Trading Decree.

Particulars Of Misleading and/or Deceptive Conduct

(1) Colluding and/or conspiring with the First Defendant to deprive the Plaintiff of a better form of settlement for injuries received by him.

And the Plaintiff claims against the Third Defendant

(a) Damages (including aggravated damages);
(b) Such other remedial orders under Section 127 of the Fair Trading Decree.
(c) Costs

[9] At the conclusion of the case the Learned High Court Judge dismissed the two counter claims and further made the following orders which I quote verbatim:

(1) I enter judgment on the first cause of action for the 1st Defendant and the 2nd Defendant. The Plaintiff will pay costs to the 2nd Defendant. Pursuant to HCR 062 r.3(3) I decline an order in favour of the 1st Defendant, on the ground that it was his conduct that was the prime and substantial cause of this action.

(2) On the second cause of action I enter judgment for the Plaintiff, against the 1st Defendant only, with costs, otherwise judgment for the 2nd and 3rd Defendants, and the Plaintiff will pay costs to those two Defendants. This judgment for the Plaintiff is solely to grant the one remedy, i.e. to set aside the consent order made in Action HBC 85 of 1999L on 17th August 1999. The other claims are dismissed.

(3) On the third cause of action I enter judgment for the three Defendants, with costs to the 2nd and 3rd only.

(4) On the fourth and fifth causes of action I enter judgment for the 3rd Defendant, with costs.

(5) All costs payable by the 1st Defendant to the Plaintiff, (under the second cause of action), and by the Plaintiff to the 2nd and 3rd Defendants may be agreed, otherwise they are to be taxed at the higher scale. The costs to be paid by the Plaintiff are to be repaid to him by the two firms of solicitors who filed this action and conducted the hearing, their liability being joint and several.

[10] I see much controversy in relation to the payment of costs levied on the two firms of solicitors which filed this action and conducted the hearing. The insistence with which the Respondents have agitated this point is apparent even in the written submissions of the Respondents which called on payment of costs by the relevant solicitors personally is in my opinion tinged with venom and vengeance against the solicitors of the Plaintiff Appellant.

[11] Such a reaction is not unnatural in view of the action taken by the solicitors of the Appellant against two colleagues of them. On the other hand legal profession needs people of that calibre who are fearless and upright who can go against even a colleague, when they see some wrong has been committed by a colleague.

[12] Such reaction is not unnatural and is in fact anticipated in view of the action taken by the solicitors of the appellant against two professional brethren. At the same time it is delightful to witness the ardour with which these members of the legal profession have emabarked on to serve the ends of justice jeopardizing the professional relationship with their colleagues.

[13] Ground Eight (8) of the grounds of the appeal seeks to challenge the order made in favour of the appellant by which the two solicitors were ordered to reimburse Mc Goon for the costs he was required to pay to Sahu Khan and Iqbal Khan. In fact it is Solicitor Mrs. Khan who was affected by the order and therefore it was she and not the appellant who sought to appeal the said order. She had drafted the Notice of Appeal and by doing so had put herself in a position of conflict with her client. Mrs. Kahn had not sought to be joined in the appeal as a person affected by the judgment. Ground 8 is not properly before the court as it is not the ground of appeal raised by the appellant. The order is in his favour and no doubt would want to be heard as to why it should remain. Mrs. Khan should have informed Mc Goon that he needed to instruct a new lawyer for his appeal so that she could challenge the order made against her to reimburse costs. Hence, the 8th ground of appeal is not properly before court. However I shall deal with the aspect of costs in succeeding paragraphs of my judgment.
[14] Although I do not consider the 8th ground of appeal as already stated, irrespective and independent of the 8th ground, I now consider the order of payment of costs against the plaintiff and reimbursement of such costs by the plaintiffs solicitor. Once an appeal is filed, the Court of Appeal, being sized of the appeal, has jurisdiction to correct all errors in fact or in law committed by the court of first instance. Therefore I am bound to consider the legality of the order made by the learned High Court Judge in regard to payment of costs and reimbursement.

[15] This order of payment has been made pursuant to Rule 11 (1) of High Court Rules where it says:

Personal Liability of Legal representative for costs(0.62, r.11

(1) Subject to the following provisions of this rule, where it appears to the court that costs have been incurred unreasonably or improperly in any proceedings or have been wasted by failure to conduct proceedings with reasonable competence and expedition, the Court may –

• (a) Order-
  
  • (i) The legal representative whom it considers to be responsible (whether personally or through a servant or agent) to repay to his client costs which the client has been ordered to pay to any other party to the proceedings; or
    
  • (ii) The legal representative personally to indemnify such other parties against costs payable to them.
    

[16] The discretionary provision stipulates that, the Court must be satisfied that "costs have been incurred unreasonably or improperly in any proceedings or have been wasted by failure to conduct proceeding with reasonable competence and expedition", before making any order as to costs. This provision is subject to Rule (4) which stipulates:

"Subject to paragraph (5), before an order may be made under paragraph (1) (a) of this rule the Court shall give the legal representative a reasonable opportunity to appear and show cause why an order should not be made."

[17] This Court is not confronted with cogent evidence to suggest that a reasonable opportunity was afforded to the solicitors to appear and show cause as to why an adverse order ought not to be made. The circumstances suggest that the solicitors were not given any opportunity let alone reasonable opportunity. In the absence of such opportunity being presented the order of the Learned High Court Judge is prima-facie wrong. However further advertence to Rule 11 (5) of the HCR is required before coming to a conclusion.

"The court shall not be obliged to give the legal representative a reasonable opportunity to appear and show cause where proceedings fail, cannot conveniently proceed or are adjourned without useful progress being made because the legal representative –

(a) fails to attend in person or by a proper representative;

(b) fails to deliver any document for the use of the Court, which ought to have been delivered or to be prepared with any proper evidence or account, or

(c) Otherwise fails to proceed."

[18] However, I do not see any material evidence to suggest that the solicitors of Plaintiff fail to come to Courts, fail to deliver any documents or fail to proceed. I see a smooth flow of proceedings without any disruption in this case.

[19] The rule is very clear on the point, when a reasonable opportunity cannot be given to show cause to a legal representative. If proceedings cannot be concluded or cannot be concluded or cannot run smoothly due to the solicitor then and only then is the Court not obliged to give a reasonable opportunity to show cause.

[20] In this case I find that the Plaintiff Appellant had concluded her case and even the Second Defendant has given evidence, therefore I do not see any disruption of proceedings and my view is that the Court has applied the law erroneously in not granting reasonable opportunity for the solicitors to show cause.

[21] Here in the instant case the Learned High Court Judge whilst ordering the payment of costs be borne by the Plaintiff's solicitors also allowed the second cause of action to the extent of reviving case No. 85/1999.

[22] These two orders seem to be incongruous in its co-existence. If the solicitors had failed to prosecute the case to the satisfaction of Court, Court could not have ordered revival of 85/1999 that being one of the main grievances of the Plaintiff Appellant. The order of revival itself is ample proof that the Plaintiff solicitors have discharged their professional duties well.

[23] In view of the above position the order of the High Court requiring the Plaintiff's solicitors to pay the cost of Defendant should be set aside. Furthermore, taking cognizance of the destitution of the Plaintiff, I order that parties should bear their own costs.

[24] The Appellant alleges that he was inveigled into the settlement by all three Defendants by deceiving him. His main contention is that he was mentally incapacitated at the time of the alleged settlement and moves Court to set aside the settlement.

[25] Though the Appellant was seriously injured as a result of the skidder mishap which occurred on 12th February, 1998, the settlement is said to have been reached on 10th August, 1999.

[26] According to the medical evidence available to the High Court, all injuries suffered by the Appellant were of a physical nature. These injuries could definitely have contributed to some degree of mental pain. Yet the intervening time period between February 1998 i.e. the time during which the injuries occurred and August 1999 i.e. the time during which the settlement was reached, was of a sufficiently long duration for the physical injuries to heal.

[27] Even though this court is not in a position to determine the full extent of the physical recovery of the Appellant by August 1999, it could safely be presumed that adequate time had elapsed for a considerable physical recovery. However, we are not in a position to presume on his mental condition due to the unavailability of conclusive medical evidence. The evidence of Doctor Taoi does not shed any light on the mental condition of the Appellant in August 1999. And even if it did, we ought to be mindful of the fact that Dr. Taoi is not specialized in Psychiatry.

[28] It was revealed in evidence that the Appellant had gone to collect the cheque by himself on the day following the court order for settlement. At another point there is an instance where The Appellant had narrated to his wife the discussion that had taken place in Mr. Chaudhry's office (page 373 vol. 2). Could it be reasonably presumed that a mentally incapacitated person would have the presence of mind to narrate the sequence of events that had taken place in Mr. Chaudhry's office or to go about his ordinary chores unaided by another? The answer regrettably is No. Hence, when you analyse all these things it is crystal clear that Mr. Mc Goon was not mentally incapacitated around the period of August 1999.

[29] As Mr. Mc Goon was in the habit of using a walking stick whenever he walked, one can presume that he would have had some physical disability but certainly not a mental injury.

[30] Hence I cannot agree with the position taken up by the Plaintiff-Appellant that the defendants had acquired dominion over his mind due to mental incapacitation. However, this court has to further scrutinise the chain of evidence to determine whether dominion over the mind of the Plaintiff-Appellant had been acquired through any other means such as misrepresentation or undue influence as alleged by the Plaintiff-Appellant in regard to the other defendants.

[31] The Learned High Court Judge has delivered an exhaustive and lengthy judgment encompassing all salient aspects of the case. Therefore I do not wish to go in to detail of facts or evidence of this case as it will be repetitive and a futile exercise.

[32] However, upon available evidence, it is apparent that McGoon had entered into the settlement despite advice of Mr. Chaudhry to the contrary. The very attractive proposition of F$ 15,000 may have lured him into accepting the settlement overriding any caution arising out of the sound independent legal advice he received from Mr. Chaudhary.

[33] The learned High Court Judge in his order held that the Plaintiff was overbourne in an unconscionable way by the first defendant. The doctrine of unconscionability as discussed in Commercial Bank of Australia Limited v. Amadio [1983] HCA 14; (1983) 151 CLR 447 according to Mason J is an act where

"a party makes unconscientious use of his superior position or bargaining power to the detriment of a party who suffers from some special disability or is placed in some special situation of disadvantage".

Further, to establish unconscionable conduct it is required to prove, quoting Deane J.;

"1). "a party to a transaction was under a special disability in dealing with the other party with the consequence that there was an absence of any reasonable degree of equality between them and

2). that disability was sufficiently evident to the stronger party to make it prima facie unfair or 'unconscientious' that he procure, or accept, the weaker party's assent to the impugned transaction in the circumstances in which he procured or accepted it."

In the present case, when the parties had gone to the office of the second defendant, it is alleged by the Plaintiff that the second defendant had told the Mc Goons 'to sign the documents, if not they will not get any money and there won't be any one to fight their case and that Albert will have to pay the damages of the machine as well'.

[34] According to the evidence of Mrs. Mc Goon, Mr. Sahu Khan (1st Defendant) had further told Albert that the case will not reach the High Court if Mr. Sahu Khan did not sign the document. The cumulative of these utterances may amount to a threat depending on the tone of the utterance, or it can even amount to a misrepresentation. Assuming these utterances are true, it is with scepticism that we view the Plaintiff-Appellant's reckless rushing into the settlement, especially disregarding the cautioning of Mr. Chaudhry. Applying the test in Commercial Bank of Australia v. Amadio, as the Plaintiff-Appellant was dissuaded from entering into the settlement prior to it by Mr. Chaudhry, there does not appear to be any special disability on the part of the Plaintiff-Appellant resulting in a lack of a reasonable degree of equality. In the face of the failure of the first requirement, the second requirement necessarily fails. No disability exists for the 'stronger' party i.e. Defendants to make unfair or unconscientious use of.

[35] The third defendant conveniently avoided the proceedings with nary an explanation against the allegations levelled at him. However, he had not taken part actively during the settlement process apart from filing a letter of authority. Not even Mrs. McGoon has seen him in person other than on the television. Even though the letter of authority referred to above is shrouded in ambiguity, the subsequent reasoning vitiates the need to take cognizance of the letter of authority. Therefore, it is not prudent to hold him liable on the flimsy evidence of a letter of Authority.

[36] In this case, the position of the first defendant in relation to the plaintiff is no way comparable to that of the 2nd and 3rd defendants. As observed by the learned High Court Judge "The plaintiff in the present case was the weaker party from several points of view. He was employee while the Defendant was employer. He had been badly injured while the first defendant had not. He was in desperate need of money while the fisrt defendant had money. He was, so far as the evidence reveals, a machine operator with the prospect of never working again while he still had a family to support and the first defendant was an active businessman."

[37] It is therefore apparent that the 1st defendant was in a more advantageous position than the plaintiff. Hence I concur with conclusion of the learned High Court Judge in holding that the plaintiff was unconscionably overborne by the 1st defendant and I uphold the finding of the learned High Court Judge in relation to the 2nd cause of action in entering judgment in favour of the plaintiff only to the extent of setting aside the consent order made in 85 of 1999L. Question of payment of costs by the plaintiff to the 2nd and 3rd defendants will not arise in light of the order in a preceding section where I have directed that the parties bear their own costs.

[38] On a careful consideration of facts of this case, it is clear that the settlement was arrived at before the McGoons went to Ba. i.e. before they had met the 2nd and 3rd defendants. According to the evidence of Mrs. McGoon in re-examination, she states at Page 387

"Q: Now, Mrs McGoon it was asked of you that your husband Mr. McGoon eventually told you that the case with Aktar was settled and you said "Yes".

A: Yes, My Lord.

Q: Was it after or before you went to Ba?

A: Before we went to Ba, My Lord.

Q: Was it before or after your husband went to see Mr. Chaudhary?

A: After he had seen Mr. Chaudhary."

[39] This evidence points to the unassailable fact that the plaintiff and the first defendant had come to a settlement prior to their meeting with the 2nd and 3rd defendants. A 'Settlement' in a matter of this nature cannot be anything other than an agreement on payment. i.e. quantum of payment.

[40] Even though Mr. Chaudhary advised the plaintiff not to settle on the basis of F$15000, as he was desperate to secure funds, the plaintiff had chosen not to heed the advice of Mr. Chaudhary. Mrs. McGoon states at page 364 thus;

"Q: After you received the F$ 14,200 cheque and the van, did you go and see any other lawyer?

A: Yes, Sir.

Q: Which lawyer would that be?

A: It was Mr. Anu Patel, Sir.

Q: Why did you go and see him?

A: Because the money given by Mr. Aktar Ali had finished and my husband wish to see Mr. Anu Patel because that will be another way of getting some money.

Further, at Page 380 she states'

Q: And you could not repair the engine that was damaged, cannot buy new tyres so you went to see another lawyer in order to get more money from Aktar.

A: Yes, My Lord"

This is reflective of Mr. McGoon's desperation to secure more money.

[41] The allegations levelled against the 2nd and 3rd defendants are mainly based on misrepresentation or undue influence practiced on the plaintiff in relation to the terms of settlement and not in relation to the main settlement. Entering of terms of settlement is the formal written culmination of a settlement already reached between the parties. Terms of settlement is based on and reflective of the verbal understanding between the parties to the settlement and cannot and will not be incongruous with such settlement. There is no complaint or allegation by the plaintiff to the effect that the 2nd and 3rd defendants deviated from the settlement at the point of entering the terms of settlement. Hence we can safely assume that the terms of settlement do contain the contents of the main settlement arrived at by the parties. As it is evident that Mr. McGoon visited Ba to meet the 2nd defendant subsequent to agreeing to the settlement between the 1st defendant and himself, it cannot be averred that the plaintiff was pressurized by the 2nd and 3rd defendants, who he met subsequent to agreeing to the settlement with the 1st defendant voluntarily.

[42] In the absence of any cogent evidence to suggest that the 2nd and 3rd defendants were instrumental in pressurising the plaintiff, either through misrepresentation or undue influence, I dismiss the 1st, 3rd and 4th causes of action. I order no costs. Parties must bear their own costs.

[43] As regards the 5th cause of action, we do not have sufficient evidence before us either by way of copies of action No. 85/1999 or any other written proof to reach a conclusion. Hence the 5th cause of action is dismissed.

[44] In view of the above reasoning, I reject the first ground of appeal of the Plaintiff – Appellant as it annot be reasonably concluded that there was opportunity for the second and third Respondents to influence the Appellant.

[45] As regards the second ground of appeal, the germane issue is not the settlement itself, but the susequesnt resording of the settlement as elaborated in my judgment. As the said ground is on a non – germane point of fact I reject the second ground of appeal.

[46] Third and fourth grounds of appeal relate to document 2D2. The acceptance of 2D2 does not affect the crux of the decision. I do not consider it necessary to dwell on the said ground. Therefore the Third ground of Appeal is also rejected.

[47] There is no evidence before court to the effect that the Plaintiff – Appellant was mentally incapacitated. The finding of the Learned High Court Judge in this regard is correct. Hence the ground of appeal invoking mental incapacity is rejected.

[48] Reiterating the foregoing reasoning, there was no opportunity for the second and third Respondents to influence the Plaintiff- Appellant to sign the settlement. No question of overborning in an unconcionable way in relation to second and third Respondents had met the Appellant long after arriving at the settlement. Therefore I agree with the learned High Court Judge, uphold his conclusion and reject the ground of appeal pleading undue influence.

[49] As stated in Paragraphs 15 and 16 the eighth (8th) ground of appeal is not properly before court.

[50] Therefore the grounds of appeal of the Plaintiff – Appellant are rejected and parties must bear their own costs.

[51] Regarding the appeal of the first Defendant- Appellant, I must emphasize that the learned High Court Judge proceeded not on the basis of evidence of the case, but on the doctrine of overborne by unconscionable conduct" of the first Defendant i.e. by being placed in an advantageous position viz-a-viz the plaintiff. Therefore the first ground of appeal of the Defendant- Appellant and the other grounds based on the same footing are rejected.

[52] On the basis of the same position the second and third grounds of appeal are rejected. Regarding the fourth ground, though the Learned High Court Judge has not acted on the direct evidence in the case he has acted on the legal situation emerged on the evidence led in the case. That is based on the aforesaid doctrine of unconscionable conduct. Therefore that ground is also rejected. The parties must bear their own costs in this regard as well.

Corea JA

[1] I have had the opportunity of reading the judgments of both Hon. Justice Lecamwasam and Hon. Justice Calanchini,P pertaining to Ground 8 of McGoon notice of appeal. I too agree that by inserting Ground 8 the solicitor Ms Khan has placed herself in direct conflict with the interest of her client. In my view the way the notice of appeal is drafted, the said ground is couched among the rest of the grounds of appeal of McGoon, in an apparent attempt to overcome the obstacle imposed under S12(2)(e) of the Court of Appeal Act. At this stage there is no evidence placed to ascertain whether the said ground was raised with or without the consent of McGoon.

[2] It is sufficient to say that the said ground is among the grounds of appeal tendered by McGoon.

[3] The circumstances of imposing the order of cost has been lengthily discussed by Lecamwasam JA, I too agree on the said findings.

[4] However in my view when there is a prima facie non compliance of High Court Rules by the Court in imposing an order on costs, it creates a procedural irregularity. The discretionary provisions under Order 62 Rule 11 of the High Court Rules should be exercised within the established principles, especially when guidelines are laid in the preceding rules.

[5] There was no evidence submitted to show that an opportunity has been granted for the Solicitors to show cause before the order on costs, was imposed. Under these circumstances, I believe it is a proper case where the Court of Appeal should use its discretionary power under Section 17 of the Court of Appeal Act. After careful consideration I am inclined to agree with the conclusions and findings of Lecamwasam JA.

The Orders of the Court are:
1. McGoon v Ali, Sahu Khan and Iqbal Khan ABU 16 of 2007

• On grounds 1 -7 appeal dismissed.
• On ground 8 – appeal allowed (Calanchini, P dissenting)
  

2. Ali v McGoon ABU 9 of 2007

• Appeal dismissed.
  

3. Parties to bear their own costs in this court and the court below.

Hon. Justice W. Calanchini
PRESIDENT, COURT OF APPEAL

Hon. Justice S. Lecamwasam
JUSTICE OF APPEAL

Hon. Justice M. Corea
JUSTICE OF APPEAL