Blueshield (Pacific) Insurance Ltd v Fiji Bank Employees Union [2002] FJHC 58; Hbc0312d.1998s (12 July 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 312 OF 1998S

Between:

BLUE SHIELD (PACIFIC) INSURANCE LIMITED
Plaintiff

and

FIJI BANK EMPLOYEES UNION
Defendant

M.B. Patel for the Plaintiff
R. Naidu for the Defendant

DECISION

In June 1998 the Plaintiff issued its writ seeking $16,015.26 said to be unpaid due insurance premiums.

In July 1998 the Defendant filed a Defence which simply denied owing the Plaintiff any money. There was also a Counterclaim for unspecified damages said to flow from the Plaintiff’s early termination of the insurance cover.

In November 1998 the standard orders were made on a summons for directions. In March 1999 the Plaintiff filed its affidavit of documents. Nothing then happened until February 2001 when the Plaintiff issued a notice under RHC O34 seeking a pre-trial conference It appears that the conference has not yet taken place.

In July 2001 the Plaintiff filed the present application in which it seeks summary Judgment against the Defendant under the provisions of RHC O14. There is an affidavit in support by the Plaintiff’s claims manager Sekope Waqa and an affidavit in answer by Dewan Shankar, the Defendants National Secretary.

As is well understood the purpose of RHC O14 is to enable a plaintiff to obtain summary judgment without trial if he can prove his claim clearly and if the defendant is unable to set up a bona fide defence or raise an issue against the claim which ought to be tried (Roberts v. Plant [1895] UKLawRpKQB 22; (1895) 1 QB 597 CA).

Equally well known is the principle that a party must plead all the material facts upon which he intends to rely at the trial; otherwise that party is not entitled to give evidence of them at the trial (Philipps v. Philipps [1878] UKLawRpKQB 96; (1878) 4 QBD 127, 133).

In Chandra Naidu v. Carpenters Fiji Ltd (FCA Reps 92/425) the Court of Appeal held that providing a Statement of Defence discloses an arguable defence there is sufficient compliance with RHC O14 r 4 (1) even if no affidavit is filed in opposition to the application (which is, of course, the normal method of opposing).

In the present case the situation is reversed. There is an affidavit raising defences which cannot, as things stand, be raised at a trial since the Defence filed is a bare denial. The counter claim as presently pleaded is obviously unarguable. What should the Court do in such a situation?

It will be remembered that while a party may amend its pleadings once with leave before the pleadings are deemed to be closed (see RHC O20 r 3 and O18 r 19) any subsequent amendment must follow leave being granted (O20 r 5). While the granting of leave is not a foregone conclusion leave will however usually be granted if amendment will enable the real questions in controversy between the parties to be determined (G.L. Baker Ltd v. Medway Building and Supplies Ltd [1958] 1 WLR 1216; [1958] 3 All ER 540). This being the case I am of the view that I am entitled to look beyond the Statement of Defence to the affidavit in opposition to discover whether the Defendant has disclosed an arguable defence. Before taking that step however I have to be satisfied that the Plaintiff’s supporting affidavit verifies the facts upon which the Plaintiff’s claim is based (see O14 r 2). It is at this point, as I see it, that the Plaintiff faces a difficulty.

As has been seen the Plaintiff’s largely unparticularised claim to be owed money by the Defendant was met with a bare denial. Despite the denial however, Mr. Waqa did not offer any further proof that the amount claimed was indeed owed beyond stating on oath this was the case. No copies of business records such as statements of accounts or computer print outs were annexed to his affidavit as is the usual practice.

At the hearing of the application both affidavits were read. Mr. Shankar’s affidavit was difficult to understand, appeared to be self contradictory in parts and seemed to be plainly at variance with its own disclosed correspondence.

If the Plaintiff’s claim had been supported by some form of corroborating documentary evidence I should have been reluctant to allow the Defendant leave to defend but it is my experience in Fiji that calculations by Banks, insurance houses and other businesses are not at all infrequently incorrect.

In all the circumstances the Defendant will be given leave to defend upon payment into court forthwith of $10,000.

M.D. Scott
Judge

12 July 2002