Anderson v Salaitoga [1992] FJHC 24; Hbc0353d.89s (26 June 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 353 OF 1989

Between:

KYLIE JANE ANDERSON
Plaintiff

- and -

IOWANE SALAITOGA
Defendant

Mr. L. Namasivayam for the Plaintiff
Mr. R. Krishna for the Defendant

RULING

This is an application by the plaintiff pursuant to Order 39 rule 1 of the High Court Rules for the issuance of a 'Letter of Request' for the examination of four named witnesses (notably not including the plaintiff) residing in Melbourne, Australia.

The sole ground deposed in counsel's affidavit in support of the application is: "... the cost of recording their evidence in Fiji will be prohibitive." No effort has been made to qualify the witnesses or itemise and quantify the "prohibitive" amount averred nor is it disclosed that the witnesses have refused to testify in Fiji or whether or not alternative local sources of the evidence are available but in any event the plaintiff's 'expert' witnesses evidence relates to a secondary issue rather than to the primary question of negligence.

Indeed all of this necessary information including the fact of the plaintiff's confinement to a wheelchair was sought to be introduced by counsel in oral submissions.

Not surprisingly defence counsel strongly objected to the nature and content of counsel's submissions and if I may say so with some justification.

Counsel also complained at the long delay in making this application. Reference was made to the fact that the accident occurred in April 1987 and was not instituted until almost 2 1/2 years later in September 1989. The fact that there have been 2 amendments to the Statement of Claim, with the more recent involving the entire claim and, more importantly, the vacating of 3 firm trial dates at the request of counsel for the plaintiff to enable the present application to be made.

Having considered the matter however I do not accept that this application is unduly late or is not an honest one.

I accept that this Court has a wide discretion to grant the plaintiff's application where it "... appears necessary for the purposes of justice". The "purposes of justice" however are not only served by advancing the interests of plaintiffs. These must be carefully weighed against the interests of defendants and all the circumstances of each case.

In this regard the court is asked to consider the not inconsiderable inconvenience and expense involved in instructing Australian Counsel to appear and cross-examine the plaintiff's witnesses whose depositions are to be recorded.

Needless to say it was the plaintiff herself who chose this forum in which to institute her action and as was said by Chitty J. in Ross v. Woodford [1875] UKLawRpCh 144; (1894) 1 Ch. D. 38 at p. 42:

"There are many cases where the Court has been reluctant to accede to applications by a plaintiff to take evidence abroad because the tribunal has been chosen by the plaintiff himself: so too with regard to the case of the plaintiff asking for a commission to examine himself, the Court has full discretion, but it exercises that discretion strictly, and does not grant the application unless a very strong case is made out;"

I am also mindful that the lay witness who is sought to be examined was a passenger in the plaintiff's vehicle at the time of the accident and very likely would be closely cross-examined as to the veracity of her evidence. In such an event this Court would be denied the benefit of seeing her demeanour.

Then learned counsel for the defence has also very properly drawn the court's attention to the existence of 2 other civil actions before this Court arising out of the same accident in which the plaintiffs in those actions live in the United Kingdom and Canada respectively, and needless to say the costs in their cases would be even more 'prohibitive'.

Finally if this application is granted this Court could be faced with the extraordinary situation of having to decide the question of liability principally on the basis of evidence entirely recorded overseas.

I do not consider in all the circumstances of this case having regard to the ground put forward; the paucity of information available and the competing interests of the defendant that this application ought to be granted and accordingly is dismissed.

(D.V. Fatiaki)
JUDGE

At Suva,
26th June, 1992.

Hbc0353d.89s