IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 488 OF 1991

BETWEEN:

PARVATI MANILAL LALLU RANCHOD
(f/n Pranjivan) of Levuka,
Domestic Duties
Plaintiff

AND

SUNDARLAL LALLU
(f/n Lallu Ranchod)
of Levuka, Businessman
Defendant

Mr. V. Maharaj: For the Plaintiff
Mr. H.K. Nagin: For the Defendant

Dates of Hearing: 3rd December 1992 and 7th April 1993
Date of Interlocutory Judgment: 29th June 1993

INTERLOCUTORY JUDGMENT

By her Writ of Summons dated the 10th of October 1991 and subsequent Statement of claim dated the 18th of February 1992 the Plaintiff seeks a declaration that she was induced to execute a Deed and Transfer to the Defendant of all her interest in a Partnership between herself and the Defendant in a Supermarket business and Theatre Property in Levuka for the sum of $50,000.00.

Alternatively she seeks a Declaration that the Defendant has at all material times held the Plaintiff's one undivided half share in the Partnership business as Trustee for the Plaintiff.

She seeks a further Declaration that there was a fiduciary relationship between herself and the Defendant which was breached by the Defendant.

The Plaintiff then seeks two Orders, first that the Defendant do execute all documents necessary to re-transfer to the Plaintiff her one undivided half share in certain land in Levuka and all her interest in the Supermarket Property and that the Defendant do produce up-to-date and audited accounts of the Partnership since 1980, and all dealings by the Defendant with the Partnership Property and all moneys received by the Defendant.

Finally she seeks an Injunction to restrain the Defendant from transferring or in any way dealing with the Plaintiff's interests in the above properties.

The Plaintiff alleges that she was induced to execute the Deed and Transfer in favour of the Defendant as a result of duress or undue influence and misrepresentation by the Defendant to her and asks the Court to declare that the purported transfers of the Plaintiff's interests as set out above are null and void.

The Statement of Defence and Counter-claim filed by the Defendant on the 2nd of June 1992 amounts to a general denial of the Plaintiff's allegations.

To protect her interests the Plaintiff lodged a Caveat against the land and on the 10th of October 1991 Scott J. extended this Caveat and granted an Injunction against the Defendant restraining him from dealing, conveying or transferring the land in question until further Order.

Here it is necessary to mention that following the execution of the Transfer by the Plaintiff to the Defendant, the Defendant sold the land to another person free of all encumbrances for $100,000.00. As a result of the lodging of the Caveat by the Plaintiff the Defendant claims that his sale of the land has been delayed and counter-claims damages from the Plaintiff.

There are several affidavits by the parties on the Court file deposing as to what they claim are the facts of the case but I need not refer to these in any detail for the purposes of this Ruling.

The present position of the case is that it appears all interlocutory matters except discovery have been completed. The Defendant has not sought discovery from the Plaintiff but by Summons dated the 29th of September 1992 which is presently before me the Plaintiff seeks an Order that the Defendant swear and file an affidavit stating whether he has at any time been in possession of certain documents which she claims are relevant to the issues. The documents are Partnership Books of Accounts of the Supermarket from 1980 to 1991, audited Partnership accounts from 1980 to 1991, copies of tax assessment certificates from the Inland Revenue Department for the years 1980 to 1991 and documentary evidence of all taxes paid to the Inland Revenue Department by the Defendant on behalf of the Partnership.

Previously by letter dated 31st August 1992 the Plaintiff's solicitors requested the Defendant's solicitors to make discovery of the above documents but the request was refused, hence the present Summons.

The Plaintiff claims in an affidavit sworn on 15th of September 1992 that the documents she requests are relevant to the issues raised in the pleadings and in the Defendant's affidavits.

The Defendant denies this, and states that the documents are irrelevant to the issues before the Court and that the Partnership Accounts of the Supermarket were never audited so that neither the Defendant nor the Plaintiff would have in their possession audited accounts. The Defendant claims that the Plaintiff's request for discovery is merely a ploy to delay the hearing of this case because the Defendant has at all times desired the case to be set down for trial as quickly as possible.

I have received written submissions by the parties and will now discuss these as briefly as possible. Before doing so however it is necessary to state that the reason why discovery is confined to the period 1980 and 1991 is that 1980 was the year when the Plaintiff's husband died and 1991 the year when the Plaintiff purportedly disposed of her share in the business formerly conducted by her husband and herself in Levuka Town.

The classic statement governing the legal principles applicable to discovery is that of Brett, L.J. in Compagnie Financiere Du Pacifique v. Peruvian Guano Co. (1882) 11 Q.B.D. 55 at p.63 where His Lordship said that any document must be considered relevant to the matters in dispute in an action which, it is reasonable to suppose, contains information which may-not which must-either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary.

This text was applied by Menzies J. in Mulley v. Manifold (1959) 103 C.L.R. 341 at p.345 where His Honour stated that discovery is a procedure directed towards obtaining a proper examination and determination of the issues between the parties as disclosed in the pleadings and not towards assisting a party upon a fishing expedition. His Honour continued: 

"Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to a train of enquiry which would, either advance a party's own case or damage that of his adversary."

The Defendant objects to giving the discovery requested by the Plaintiff on several grounds. The first is that the real issue in this case is whether the Plaintiff was forced into signing the Deed of Dissolution of the Partnership and the Transfer documents and secondly there is no need to look at any accounts from 1980 to 1991. It is submitted that the Court must only look at the circumstances surrounding the signing of the two documents and, if it decides the documents were fully understood by the Plaintiff and voluntarily signed by her there is no need to go into the question of accounts. It follows, according to the Defendant, that it is only if the Court decides that the Deed of Dissolution and Transfer were not voluntarily executed by the Plaintiff that the other issues may become relevant. The Defendant contends that this action was filed only to protect and extend the Caveat.

In my judgment this is an over-simplification of the Plaintiff's position. It is clear from the pleadings that the Plaintiff is not seeking only an extension of her Caveat and furthermore, in my judgment, it would be wrong to defer the issue of discovery until after the questions of voluntariness and duress were first decided. The Defendant relies here on Order 24, Rule 4 of the High Court Rules which empowers the Court to allow a cause or matter to be determined before allowing any discovery of documents to be made by the parties. I note however that in the commentary to the Supreme Court Practice 1988 on this rule the authors state that the rule is rarely applied.

The Defendant next objects that it is not bound to give discovery because it was not served with a Notice by the Plaintiff within 14 days of the Order of the then Chief Registrar dated 24th June 1992 requiring the Defendant to make discovery.

In my view there is no merit in this objection. Order 24, Rule 7 of the High Court Rules clearly states that the Court may at any time on the application of any party make an order requiring any other party to a cause or matter to make an affidavit of documents. Accordingly where as here no formal Notice requiring discovery was given by the Plaintiff I do not consider this failure is fatal to the Plaintiff's application.

As to the Defendant's objection that the Partnership Accounts of the Supermarket were never audited and that secondly the Defendant should not be made to give discovery of any accounts I am of the view that this objection also cannot be sustained.

The Plaintiff is seeking discovery of accounts and as her counsel states would be content with unaudited accounts which it is believed may assist her case. In my view the Defendant should be ordered to make discovery of unaudited accounts of the Partnership provided these are relevant to the issues.

In my judgment they are.

Paragraphs 6 to 10 of the Statement of Claim refer to the Partnership business and allege that after the death of the Plaintiff's husband the Defendant assumed sole control of the Partnership business and rarely consulted the Plaintiff on Partnership matters or rendered to her any Partnership accounts. The Plaintiff claims that she has limited education and consequently the Defendant was obliged to be scrupulously honest in his dealing with her relating to the business.

The Plaintiff alleges that the Defendant concealed from her accounts and the day-to-day affairs of the Partnership business. For this reason she says she seeks up-to-date accounts of the Partnership since 1980.

Whether or not the Plaintiff's allegations as to duress can be made out remains to be seen but in my view the Plaintiff is entitled to the discovery of at least unaudited accounts for the years in question.

The Defendant next objects to discovery of taxation returns on the ground that he does not have the documents in his possession and further that the Plaintiff would be entitled to request tax records herself from the Inland Revenue Department. I consider this objection is good and I decline to order the Defendant to produce the copies of the relevant returns to the Plaintiff. It will be simple for her to make application herself as a former partner in the business and I so direct.

I accept as a correct statement of the law the remark of Walton J. in George Ballantine & Son Ltd and others v. F.E.R. Dixon & Son Ltd and others (1974) 2 All E.R. 503 at p.508 that:

"In determining whether particular discovery is material or not, the Court will exercise a discretion in refusing to enforce it, where it is remote in its bearings upon the real point in issue, and would be an oppressive inquisition."

In my judgment the discovery requested by the Plaintiff with the exception of the income tax returns of the Partnerships is not oppressive and may well have a real bearing on the issues in this litigation.

I accordingly order that the Defendant within 14 days of the date of this order make discovery to the Plaintiff of -

(a)	Partnership Books of Accounts of Ranchod's Supermarket from 1980 to 1991; and

(b)	unaudited Partnership Accounts from 1980 to 1991.

I also order that the costs of this application be in the cause.

JOHN E. BYRNE
J U D G E
HBC0488J.91S