Singh v Turaga [1999] FJHC 58; HBC0267D.1998S (24 June 1999)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL CASE

CIVIL ACTION NO. HBC0267 OF 1998

BETWEEN:

AVINASH SINGH & ABHAY KUMAR SINGH
Plaintiffs

AND:

JOFILITI TURAGA, COMMISSIONER OF
POLICE AND ATTORNEY GENERAL OF
FIJI
Defendants

Counsel: Mr A.K. Singh for Plaintiffs
Mr K. Keteca for Defendants

Hearing: 23rd June 1999

Decision: 24th June 1999

DECISION

This is an application under Order 24 Rule 16, for the court to strike out the defence of the Defendants for failure to comply with an order made on Summons for Directions. The application is made by summons supported by the affidavit of Subhag Wati Singh, Law clerk.

Writ of Summons in this matter was filed on 18th May 1998 claiming damages for unlawful arrest and detention at Samabula Police Station on 21st November 1997. A Statement of Defence was filed on 19th June 1998. A Reply to the Defence was filed on 8th September 1998, and Summons for Directions were issued on the same day.

On 23rd September 1998, the matter was called before the Deputy Registrar. There was no appearance for the Defendants. The matter was adjourned to 7th October 1998. There was no appearance for the Plaintiffs, and counsel for the Defendants requested more time.

On 21st October 1998, there being no objection to the Summons for Directions, the Deputy Registrar granted Order in terms of the Summons. The Order was sealed on 20th November 1998. The Order required the Plaintiffs and the Defendants to serve on each other a list of documents and an affidavit verifying such list within 14 days.

On 11th November 1998, the Plaintiffs filed an affidavit and a list of documents. The Defendants did not comply.

On 8th February 1999, the Plaintiffs filed the Summons and Affidavit applying for the Defence to be struck out under Order 24 Rule 16.

The matter was again called before the Deputy Registrar on 3rd March 1999. The Defendants, requested time to file an affidavit on reply. The Deputy Registrar ordered the Defendants to file affidavit in reply within 14 days, with 14 days to reply to the Plaintiffs if necessary.

The Defendants did not comply. The matter was called on 14th April 1999. Counsel for the Defendants told the Deputy Registrar that an affidavit would be filed on the same day. An affidavit was not filed on that day.

The matter was again called before the Deputy Registrar on 5th May 1999. The Defendants were not represented. The matter was adjourned before me for 15th June 1999.

On 15th June, there was still no affidavit filed by the Defendants in response to the summons. The Defendants asked for more time to file an affidavit. I ordered that unless an affidavit was filed within 7 days, the defence would be struck out.

On 21st June 1999 the affidavit of Ajay Singh, Executive Officer, at the Attorney-General’s Chambers was filed. The affidavit deposed that the Defendants had failed to file the affidavit verifying list of documents by 4th December 1998 because the Order was not served on the third Defendant until 26th November 1998, and because the Legal Officer handling the matter forgot to send the Order to the second Defendant. Paragraph 4(f) of the affidavit deposes that the Defendants had prepared the Affidavit verifying list of documents by 25th February 1999 and asked the Plaintiffs to consent to late filing. The Plaintiffs’ counsel did not consent. The affidavit states that the mistake was inadvertent and that there was no intention to disobey the Court order, nor to suppress any documents from disclosure.

Counsel made submissions on the application on 23rd June 1999. Mr A. Singh for the Plaintiffs accepted that the striking out of the defence was an exceptional sanction. However he argued that the Defendants had breached orders of the court not once but several times. Mr A. Singh asked for the application to be allowed and for indemnity costs against the Defendants.

Mr K. Keteca in response submitted that the failure to comply with discovery was inadvertent and that there was no real, substantial or serious risk that a fair trial is no longer possible. He submitted that there was no intention to suppress documents and argued that if the plaintiff had agreed to late filing of the affidavit and verifying list, much of the delay and cost could have been avoided. He submitted that indemnity costs were not justified because the Defendants’ conduct had not been reprehensible. He submitted that costs be in the cause.

Order 24 Rule 16(1) of the High Court Rules provides as follows:

“If any party who is required by any of foregoing rules, or by any order made thereunder to make discovery of documents or to produce any documents for the purpose of inspection or any other purpose, fails to comply with any provision of that rule or with the order, as the case may be, then, . . . . .

(a) that party shall not be entitled subsequently to produce a document in respect of which default was made without the leave of the court; and

(b) the court may make such order as it thinks just, including in particular, and order that the action be dismissed, or, as the case may be an order that the defence be struck out and judgment be entered accordingly.”

In Landauer Ltd. -v- Comins & Co. (a Firm) The Times August 7, 1991 the Court of Appeal held that the test for an application to strike out under Order 24 Rule 16, since the decision of Mr Justice Millet in Logicrose Ltd. -v- Southend United Football Club (The Times March 5 1988) was whether there had been a real or substantial or serious risk that a fair trial was no longer possible. However if the court were satisfied that a fair trial was possible, but that there had been conduct which was contumacious such as the deliberate suppression of a document, the court could allow the application to strike out.

As Mr Keteca correctly pointed out, this test is not satisfied on the evidence before me.

The affidavit of Subhag Wati Singh simply discloses a breach of the order for discovery. It does not address the issue of whether failure to comply has rendered a fair trial impossible. Nor does the Plaintiff allege that the Defendants are deliberately disobeying court orders or suppressing documents.

I accept the affidavit of Ajay Singh, that the conduct of the Defendants was negligent rather than intentional. I am not satisfied that the delay in complying with the order for discovery will prevent a fair trial.

I therefore dismiss the Plaintiff’s application, and grant the Defendants’ further time of 14 days to comply with the order on summons for directions.

However, the conduct of the Defendants in this matter has been far from satisfactory. The very casual attitude to complying with the order for discovery, and with the order to file an affidavit in this immediate application is to be depracated.

As Sir Nicholas Browne Wilkinson VC said in Christy Hunt -v- Davis and Anr The Times January 24, 1990 in response to an application to strike out defence and counterclaim, a totally relaxed approach to complying with court orders must not go unmarked by the disapproval of the court.

I am of the view that since the conduct of the Defendants forced the Plaintiffs into making the present application, and since there was delay in the hearing of the application due to the Defendants’ failure to file an affidavit in response, the Defendants must pay the Plaintiffs costs for this application.

I am not satisfied that the conduct of the Defendants was sufficient to justify indemnity costs (Police Service Commission -v- Beniamino Naiveli Civil Appeal No. HBU0052/95S). I fix costs at $295 to be paid by the Defendants to the Plaintiffs within 21 days.

[Nazhat Shameem] Ms
JUDGE

At Suva
24th June 1999