Wing Ip Chin v Nands Consultancy and Management Services Ltd [1994] FJHC 117; HBC0244d.92s (15 September 1994)

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

ACTION NO. 244 OF 1992

BETWEEN:

WING IP CHIN
of 67 Millet Road, Vatuwaqa, Suva in Fiji, Businessman
Plaintiff

AND

NANDS CONSULTANCY & MANAGEMENT SERVICES LIMITED
a limited liability company having its registered office at 67 Millet Street,
Vatuwaqa, Suva
1st Defendant

SHARDA NAND
of 67 Millet Street, Vatuwaqa, Suva, Businessman
2nd Defendant

ANZ BANK LIMITED
a limited liability company of Suva
3rd Defendant

ACTION NO. 213 OF 1992

BETWEEN:

NANDS CONSULTANCY & MANAGEMENT SERVICES LIMITED
a limited liability company having its registered office at 67
Millet Street, Vatuwaqa, Suva in Fiji
Plaintiff

AND

WING IP CHIN
of 67 Millet Street, Vatuwaqa, Suva in Fiji, Businessman
Defendant

ACTION NO. 244 of 1992

I. Fa for the Plaintiff
V. Kapadia for the 1st and 2nd-named Defendants
V. Nathan for the Commissioner of Police intervening.

ACTION NO. 213 OF 1992

V. Kapadia for the Plaintiff
I. Fa for the Defendant

Dates of Hearing: 3rd August and 7th September 1994
Date of Interlocutory Judgment: 15th September 1994

INTERLOCUTORY JUDGMENT

These two actions have been consolidated. In Action No. 244 of 1992 to which for practical purposes I shall refer as the first, although the Writ was issued some three weeks after the Writ in No. 213 of 1992, the Plaintiff claims the sum of $125,000.00 which he claims to have paid to the 2nd Defendant on the 12th of November 1991 as a deposit on behalf of a business known as Ten Tsi Enterprises for the supply of marine products with a view to his re-selling them overseas.

The Plaintiff claims that the 2nd Defendant has refused to supply the marine products and has refused to repay the Plaintiff's money.

In the Statement of Defence the 2nd Defendant admits receiving the sum of $125,000.00 from Ten Tsi Enterprises initially as a deposit for beche-de-mer products and alleges that such products have been supplied by the 1st Defendant from time to time to Ten Tsi Enterprises. The Defendants also say that either the whole sum of $125,000.00 or part thereof has also been utilized towards the cost of other professional services rendered by the 1st Defendant to the Plaintiff at the Plaintiff's request.

The Defendants further claim that they supplied beche-de-mer products to the value of $65,539.90 in February 1992 and these products together with other services amount to the sum of $232,468.90.

In an amended Statement of Claim in Civil Action No. 213 of 1992 Nands Consultancy & Management Services Limited allege that the Defendant Wing Ip Chin has up to 4th of October 1993 paid Nands Consultancy & Management Services Limited the sum of $132,350.00 which has to be off-set against the amount owing by Wing Ip Chin to Nands Consultancy Management Services Limited leaving a total of $100,118.90 allegedly owing by Wing Ip Chin to Nands Consultancy & Management Services Limited.

Details of how this sum is arrived at are set out in the amended Statement of Claim but it is unnecessary to refer to them here.

The trial of both actions began before me on the 3rd of August 1994 when Mr. Nathan counsel for the Commissioner of Police sought leave to appear to have set aside a Subpoena Duces Tecum issued by the Plaintiff Wing Ip Chin and requiring the Commissioner to produce the following documents:

"(1) The Statement of Complaint lodged by Mr. Wing Ip Chin of 64 Pathik Crescent, Namadi Heights against Mr. Sharda Nand of Nand's Consultancy and Management Services Limited of 67 Millet Road, Vatuwaqa pertaining to a complaint by Mr. Wing Ip Chin on or about the 14th day of May, 1992 that Mr. Nand had taken from him the sum of $125,000.00 (one hundred and twenty five thousand dollars) to supply Beche-de-mer, but Mr. Nand having taken the money refused to supply the Beche-de-mer and refused to refund the sum of $125,000.00 (one hundred and twenty five thousand dollars) taken from Mr. Wing Ip Chin for the supply of Beche-de-mer.

(2) The Statement of Complaint lodged by one Mr. Amit Singh (s/o Vijay Chand) of 41 Pathik Crescent in support of the complaint by Mr. Wing Ip Chin against Mr. Sharda Nand for obtaining from Mr. Wing Ip Chin the sum of $125,000.00 (one hundred and twenty five thousand dollars) for the supply of Beche-de-mer but having obtained the money refused to supply the Beche-de-mer and refusing to return the money.

(3) A copy of the Police Investigation Report into the complaint lodged by Mr. Wing Ip Chin abovementioned as per the letter by Mr. Wilisoni Tuiketei to Mr. Wing Ip Chin dated the 3rd of June, 1992.

(4) A copy of all documents obtained by the Police in the course of their investigation in relation to Mr. Wing Ip Chin's complaint in particular Bank Statements obtained from the ANZ Bank, Dominion House Branch into Account No. 30-376391-00."

Mr. Nathan stated that he had received instructions earlier that day to appear on behalf of the Commissioner of Police and object to the production of those documents on the ground of public interest immunity.

After hearing brief argument I then directed the Police Commissioner or his Assistant or any other relevant officer to swear and file an affidavit disclosing the documents subpoenaed by the Plaintiff Wing Ip Chin to the production of which the Commissioner objected and the grounds of his objection. I stated that I would hear argument on this question on the 5th of September and then began to hear evidence. It was not possible for the hearing to resume until the 7th of September. On that date an affidavit had been filed by Jone Waisale the Assistant Commissioner of Police (Crime) which in most respects does not comply with my order in that it does not state reasons in any detail as to why the Commissioner refuses to disclose the documents listed in the subpoena.

Mr. Waisale merely states that he has been informed and verily believes that the documents sought under paragraphs 2, 3 and 4 of the schedule to the subpoena should not be disclosed as they are privileged on the grounds, inter alia of public interest and legal professional privilege.

Mr. Waisale also deposes that the documents asked for in paragraph 1 of the schedule have (without prejudice) already been given to the Plaintiff's solicitors.

Counsel for the Commissioner, admitting the deficiency, then gave as grounds on which the Commissioner objected to the production of the documents first that to do so would compromise the freedom of communication necessary between the Police Commissioner and persons who gave statements to the Police, and secondly the freedom of communication between the Commissioner of Police and the Director of Public Prosecutions.

Mr. Nathan submitted that it was most important for the proper functioning of the Police Force that the Commissioner should receive from the Court protection against their discovery unless there were compelling reasons of public policy to the contrary.

Mr. Nathan stated that the Statement of Complaint referred to in paragraph 2 of the schedule to the subpoena forms part of a Police file relating to a complaint by the Plaintiff against Mr. Sharda Nand which has gone to the office of the Director of Public Prosecutions and that in the light of the decision in Evans v. Chief Constable of Surrey Constabulary (Attorney General intervening) (1989) 2 All E.R. 594 the Court should refuse the order of production of the Statement of Mr. Amit Singh.

Part of the Headnote of Evans v. Chief Constable of Surrey Constabulary, a decision of Wood J., reads as follows:

"Before a question of public interest immunity could be raised, the document had to be disclosable within the rules of discovery normally applicable in litigation. If a public interest claim was raised, it was necessary for those who sought to overcome it to demonstrate the existence of a counteracting interest calling for disclosure of the particular documents involved. It was only then that the court could proceed to the balancing process (see p.596 j to p 597 a d e g, p.598 f g and p 600 d h j, post); Burmah Oil Co Ltd v Bank of England and A-G [1979] UKHL 4; [1979] 3 All ER 700 and Air Canada v Secretary of State for Trade (No 2) [1983] 1 All ER 910 followed.

Furthermore, it would be contrary to the public interest for the report to be the subject of disclosure since it was important in the functioning of the process of criminal prosecution that there should be freedom of communication between police forces around the country and the Director of Public Prosecutions in seeking his legal advice, without fear that those documents would be subject to inspection, analysis and detailed investigation at some later stage. It followed that the appeal would be allowed (see p.603 e to h, post); dictum of Glyn-Jones J in Auten v Rayner [1960] 1 All ER 692 at 696 applied."

Mr. Nathan also relied on a decision of the Court of Appeal of Fiji in Civil Appeal No. 11 of 1989 Public Service Commission v. Manunivavalagi Dalituicama Korovulavula.

In that case the Court of Appeal over-ruled a direction by the trial judge to produce to the Court for the Court's inspection a letter written to the Commissioner by the Permanent Secretary to the Minister for Communications, Works & Transport and cited extensively passages from the English Court of Appeal decisions in Air Canada v. Secretary of State for Trade (No. 2) (1983) 1 All ER 161 and later in the House of Lords in (1983) 1 All ER 910 in which the House of Lords confirmed the decision of the Court of Appeal. I can do no better than quote these passages here to illustrate their bearing on the present application. Lord Denning M. R. said at p.181 of the report:

"The 'due administration of justice' does not always depend on eliciting the truth. It often depends on the burden of proof. Many times it requires the complainant to prove his case without any discovery from the other side.

Where a man is charged with a crime, no matter how minor it may be, the prosecution must prove the case against him without any disclosure from him of any documents that he has. When a public authority is accused of any abuse or misuse of its power, or any non-performance of its public duties (in proceedings for mandamus or certiorari or under RSC Ord 53), the accuser must make out his case without the help of any discovery save in most exceptional cases. No one has ever doubted the 'justice' of those proceedings. Now let us take the same accusation against a public authority but made in an action for a declaration. Does this different mode of procedure alter the 'justice' of the case? Ought not the rule of discovery to be the same whichever procedure is adopted? Then take legal professional privilege. A defendant may have made the most self-revealing statements to his lawyer. He may have given his whole case away to him. But 'justice' demands that this should not be disclosed to the other side. If the plaintiff fails to prove his case, for want of any admission by the defendant, no injustice is done to him. Even though the truth may not have been ascertained, no injustice is done. In these cases all that 'justice' requires is that there should be a fair determination of the case whatever the real truth may be. Likewise, when a plaintiff alleges that the defendant has done him some wrong, but has no evidence whatever to support it, he seeks to obtain it by making a 'fishing expedition'. He asks to see all the documents of the other side so as to see if he can get some evidence out of them. The court invariably refuses. It refuses because 'justice' requires that he should have some material to go on before he goes a-fishing.

So I hold that when we speak of the 'due administration of justice' this does not always mean ascertaining the truth of what happened. It often means that, as a matter of justice, the party must prove his case without any help from the other side. He must do it without discovery and without putting him into the box to answer questions."

In the House of Lords at p.916 Lord Fraser said:

"It follows in my opinion that a party who seeks to compel his opponent, or an independent person, to disclose information must show that the information is likely to help his own case. It would be illogical to apply a different rule at the stage of inspection from that which applies at the stage of production. After all, the purpose of inspection by the court in many cases, including the present, would be to let the court see whether there is material in favour of disclosure which should be put in the scales to weigh against the material in favour of immunity. Inspection is with a view to the possibility of ordering production, and in my opinion inspection ought not to be ordered unless the court is persuaded that inspection is likely to satisfy it that it ought to take the further step of ordering production.

A great variety of expressions have been used in the reported cases to explain the considerations that ought to influence judges in deciding whether to order inspection. In Conway v. Rimmer [1968] UKHL 2; [1968] 1 All ER 874 at 888[1968] UKHL 2; , [1968] AC 910 at 953 Lord Reid said:

'If [the judge] decides that on balance the documents ought probably to be produced, I think that it would generally be best that he should see them before ordering production, and if he thinks that the Minister's reasons are not clearly expressed, he will have to see the documents before ordering production.'"

Later at p.917 said:

"The weight of the public interest against disclosure will vary according to the nature of the particular documents in question; for example, it will in general be stronger where the documents are Cabinet papers than when they are at a lower level. The weight of the public interest in favour of disclosure will vary even more widely, because it depends on the probable evidential value to the party seeking disclosure of the particular documents, in almost infinitely variable circumstances of individual cases. The most that can usefully be said is that, in order to persuade the court even to inspect documents for which public interest immunity is claimed, the party seeking disclosure ought at least to satisfy the court that the documents are very likely to contain material which would give substantial support to his contention on an issue which arises in the case, and that without them he might be 'deprived of the means of .......... proper presentation' of his case.

Then Lord Wilberforce at p.919 agreeing with the Court of Appeal said:

"In a contest purely between one litigant and another, such as the present, the task of the court is to do, and be seen to be doing, justice between the parties, a duty reflected by the word 'fairly' in the rule. There is no higher or additional duty to ascertain some independent truth. It often happens, from the imperfection of evidence, or the withholding of it, sometimes by the party in whose favour it would tell if presented, that an adjudication has to be made which is not, and is known not to be, the whole truth of the matter; yet, if the decision has been in accordance with the available evidence and with the law, justice will have been fairly done. It is in aid of justice in this sense that discovery may be ordered, and it is so ordered on the application of one of the parties who must make out his case for it. If he is not able to do so, that is an end of the matter. There is no independent power in the court to say that, nevertheless, it would like to inspect the documents, with a view to possible production, for its own assistance."

Lord Edmund-Davies who agreed with the other Lords based himself more on the rules of discovery of documents contained in Order 24, Rule 13 of the Rules of this Court than on questions of public interest immunity. Rule 13 reads as follows:

"(1) No order for the production of any documents for inspection or to the Court shall be made under any of the foregoing rules unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.

(2) Where on an application under this Order for production of any document for inspection or to the Court, privilege from such production is claimed or objection is made to such production on any other ground, the court may inspect the document for the purpose of deciding whether the claim or objection is valid."

He then continued at p.921:

"The narrow issues presently calling for decision are thus set out in the appellants' printed case:

'(i) The circumstances in which the court should examine documents privately before deciding whether to order their production; and in particular (ii) whether the party seeking such examination discharges the burden of showing that documents are necessary for disposing fairly of the cause by showing that they are likely to give the court substantial assistance in determining the issues; or whether he must go further and show that they are likely to assist his own case.'

My Lords, I proceed to state the obvious. Under our Supreme Court practice, discovery of documents between parties to an action with pleadings (as in the present case) is restricted to documents 'relating to matters in question in the action' (RSC Ord 24, r 1(1) and no order for their inspection by the other party or to the court may be made 'unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs' (Ord 24, r 13(1))). It is common sense that the litigant seeking an order for discovery is interested, not in abstract justice, but in gaining support for the case he is presenting, and the sole task of the court is to decide whether he should get it. Applying that test, any document which, it is reasonable to suppose, contains information which may enable the party applying for discovery either to advance his own case or to damage that of his adversary, if it is a document which may fairly lead him to a train of inquiry which may have either of those two consequences, must be disclosed."

Mr. Nathan made a similar submission in relation to the documents referred to in paragraph 3 of the schedule to the subpoena and said that this was clearly covered by the authority of the cases mentioned but particularly that of Evans v Chief Constable of Surrey Constabulary.

As to paragraph 4 of the schedule he argued that this was too wide and it would be oppressive for the Court to order the production by the Police of the documents therein mentioned.

Mr. Kapadia counsel for the Defendants, Nands Consultancy & Management Services Limited and Sharda Nand supported Mr. Nathan but more for the reasons advanced by Lord Edmund-Davies in the Air Canada case. Furthermore he asked whether the production of all these documents was really necessary or whether it was in fact merely a "fishing expedition" by the Plaintiff? He stated that it was unnecessary for the Plaintiff to call on the Police Commissioner to produce these documents when key witnesses were to be called by the parties to give evidence. I was informed from the bar table that Mr. Amit Singh was going to be called as a witness by the Defendants but I remind myself that much can happen in the course of a trial and at this stage the Plaintiff has not even completed his examination-in-chief. It may be that the Defendants will decide after all not to call Mr. Singh but I would have thought that if the Plaintiff considered Mr. Singh would assist his case he would want to call him. I do not see the need therefore for an outsider in the person of the Police Commissioner to produce a statement of complaint allegedly made by Mr. Amit Singh when it is perfectly possible for the Plaintiff to call Mr. Singh to give evidence.

Mr. Nathan and Mr. Kapadia cited three other cases in support of their claim that the subpoena should be set aside namely Makanjoula v. Commissioner of Police of the Metropolis (1992) 3 All E.R. 617, Halford v. Sharples and Others (1992) 3 All E.R. 624 and a decision of Jeffries J. in New Zealand Commissioner of Police v. Ombudsman (1985) 1 NZLR 578.

I agree with Mr. Fa that these three cases are distinguishable from the instant on their facts and on the particular legislation applicable to them and I therefore disregard them for the purpose of this judgment. I note however that in Makanjuola at p.620 Lord Donaldson M.R. expressly endorsed the opinion of Lord Denning M.R. in Neilson v. Laugharne that if a Plaintiff wished to pursue his claim, he would have to make it out on his own evidence and that of such witnesses as he could find and should not be allowed to indulge in a 'fishing expedition'. I consider that endorsement is relevant to the present application.

Mr. Fa argues that it is necessary for the proper presentation of the Plaintiff's case that the documents should be discovered. He invited me to inspect the documents before giving my ruling. He stated that the reason why the Plaintiff wants production of the documents is to corroborate the Plaintiff's claim that he had lent money to the Defendants for a particular purpose and said that the Investigating Officer in the Police Force had determined that no beche-de-mer had ever been supplied by the Defendants to the Plaintiff.

In the light of the authorities that have been cited to me I have come to the clear conclusion that the documents requested in paragraphs 2, 3 and 4 of the schedule to the Plaintiff's subpoena should not be disclosed by the Police Commissioner on the ground of public interest immunity. The documents mentioned in paragraphs 2 and 3 in my judgment fall clearly within the ratio of the cases I have mentioned.

In my judgment paragraph 4 of the schedule in addition is framed much too widely and it would be unfair for the proper administration of justice to compel the Commissioner to produce such documents.

I therefore rule that the Plaintiff's subpoena of the 26th of July 1994 in so far as it seeks production of the documents mentioned in paragraphs 2, 3 and 4 must be set aside.

I make no order for costs.

JOHN E. BYRNE
J U D G E

Cases and text books mentioned in judgment:

(1) Air Canada v. Secretary of State (No. 2) (1983) 1 All E.R. 161, 910.

(2) Blackstone's Criminal Practice 1993.

(3) Commissioner of Police v. Ombudsman (1985) 1 NZLR 578.

(4) Conway v. Rimmer [1968] UKHL 2; (1968) AC 910.

(5) Evans v. Chief Constable of Surrey (1989) 2 All E.R. 594.

(6) Halford v. Sharples (1992) 3 All E.R. 624.

(7) High Court Rules Order 24, Rule 13.

(8) Makanjoula v. Commissioner of Police of the Metropolis (1992) 3 All .R. 617.

(9) Public Service Commission v. Korovulavula, Fiji Court of Appeal Civil Appeal No. 11 of 1989.

Other text books referred to in argument:

(1) Halsbury's Laws of England, Volume 13, Fourth Edition.

HBC244D.92S