Kama v Native Land Trust Board [2000] FJHC 16; Hbc0408d.99s (28 January 2000)

Fiji Islands - Kama v Native Land Trust Board - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> CIVIL ACTION NO. HBC 408 OF 1999

BETWEEN:

ESALA DELANA KAMA

1"> Plaintiff

AND:

NATIVE LAND TRUST BOARD

Defendant

COUNSEL: Plaintiff in Person

:Mr G. Leung for Defendefendant

Hearing: 21st January 2000

Decision: 28th January 200y 2000

DECISION

nbsp;

The Defendant has made an application by summons for directions for leave to file a counter-claim in this matter.

The application is made pursuant to Order 28 Rule 8(3) of the High Court Rules.

On 27th August 1999, the Plaintiff filed originating summons seeking declarations that the Defendant’s suspn of the Plaintiff from empm employment was null and void, and that the Defendant acted contrary to the Native Land Trust Board Terms and Conditions of Employment. The Plaintiff also claims for unpaid salary and benefits and special and general damages.

Affidavits from both parties have now been filed.

On the grounds that there is substantial dispute on matters of fact, I ordered that the proceedings continue as h they have been commenced nced by writ.

The matter is set for hearing for two days on 22nd and 23rd of February 2000.

The Defendant now seeks leave to file couclaim in the following terms:

“(a)  p; The Plae Plaintiff was employed by the Defendant as Deputy General Manager, Administration. At the material time, he was responsible inter alia for overseeing the Defendant’s overall finance division, accounts and ystemated thereto.

(c) ;&nspp; Bstween 1992 and 19nd 1996 inclusive, the Plai Plaintiff, being responsible for the same, failed to produce the Defendant’s annual audited accounts despite personal assurances that he would so produce those accounts.

(d) ;&nbssp; &nsp;&nby hisy his failure to use due care, diligence or skill, the Plai Plaintiff breached an express or implied term of his contract of employmeat hed pro carry out the responsibilities of his his positposition. As a result of such failure, the, the Defendant has suffered loss and damage and has been put to extra expenses and costs in providing for alternate arrangements to produce the Defendant’s annual audited accounts for the said period.

(e) &nnbsp;;&nspp; Tsp; The Defe Defendant seeks the following orders:

(i) &&nsp;; AspeclaDation the Pthe Plaintiff breached his chis contract of employment;

pan lang=EN-GB>(ii)>(ii)&nbsp &nsp;&nbsp &nbsp &nbssp; &&nsp;;&nsp; &nbp; &nnbp;&&nbp;; An order for damages for bfor breach of contract;

(iii) &bsp; nbsp; &nbbs; &nbp; &nbs; &nbbp;&nnbp;& &nbbsp; Anp; An orderorder for costs;

langB>(ivp; &nbsp  p; nbsp; &nbsp &nbsp &nbsch furtherefelief that that this Honouraburt mem ju/span

N-GB>&nbsp

The Plaintiff objects to the filing of this counter-claim. He says that it is filed out of time, and that the mattersed in the counter-claim weim were ventilated before Fatiaki J in Action No. 336/97.

Order 23 Rule 8 of the High Court Rules 1988 provides:

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“(1) & A defendefendant to an action begun by originating summons, who has acknowledged service of the summons and who alleges that he has any claim or is entitled to any relief or remedy against the plaintiff in respf anyer (wer and and howevhowever arer arising) may make a counter-claim in the action in respect of that matter instead of bringing a separate action.

(2) p; A defendant who wisoes te make a counter-claim under this this rule must at as early a stage in the proceedings as is practicable, inform the Court of the nature of his claim and, without prejudice to the powers of the Court under paragraph (3), the claim shall be made in such manner as the court may direct under rule 5 or rule 9.

(3) If it appearshon ttiicaof n of a plaintiff agai against whom a counter-claim is made under this rule that the subject-matter of the counter-claim ought fy reao be sed oa sep actihe Court may omay order rder the cthe counteounter-clar-claim toim to be struck out or may order it to be tried separately or make such order as may be expedient.”

The Plaintiff claims that the counter-claim iect, explores matters already decided by Fatiaki J.

In Case No. 336/97, the Plaintiff had issued originating summons on 14th August 1997 seeking declarations that a decision made by a disciplinary committee of the Defendant to demote the Plaintiff was null and void, and that the decision had been made in breach of the principles of natural justice.

In dismissing the summons Fatiaki J found no breach of naturstice, and said at page 22 of his judgment:

“Whatsmore a manager who refuses to accept responsibility for the shortcomings and inability of his department to meet a primary production target, in this case, the defendant Board’s annual accounts, lacks a fundamental trait or quality of leadership.

As defence counsel bluntly writes:n>

1"> p class=MsoNormaNormal style="margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> ‘In any language it wasn that the plaintiff had not been doing his job. Whatever disputes of fact exist between then the parties as might be apparent from their competing affidavits, nothing changed the incontrovertible fact that by the end of calendar year 1996, the plaintiff had failed to produce, despite his personal assurances the annual accounts of the defendant Board for the years 1991, 1992, 1993, 1994, 1995 and 1996'.”

The originating summons before this court is in relato a later decision of the Defendant of 19th August 1997, a decision Fatiaki J said “borderordered on contempt of court” as it was directly linked to the Plaintiff’s decision to take out Action No. 336/97.

The counter-claim, alleges that the Plaintiff acted in breach of the conditions of employment in relation to his duties between 19d 1996. There appears to beto be no logical link between the suspension of 19th August 1997, and the Plaintiff’s alleged breach of employment contract which appears to have led to the demotion reviewed by Fatiaki J. The Defendant in the proceedings before Fatiaki J appears to have accepted that the 19th August decision was in fact directly linked to the Plaintiff’s decision to bring a civil action against the Defendant.

In the circumstances I consider it inexpedient and unfair to allow this counter-claim to be filed. The Defendant should consider whether it wishes to commence a separate action.

I refuse the application. Costs are in the cause.

Nazhat Shameem

JUDGE

At Suva

28th January 2000

Hbc0408d.99s