Bale v National Bank of Fiji [2003] FJHC 308; HBC0216r.1997s (31 October 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0216 OF 1997

Between:

SAMISONI TUI BALE aka TUIMASI LUTU
T/A GENERAL FOOD MARKETING FIJI LIMITED
Plaintiff

and

NATIONAL BANK OF FIJI
Defendant

Mr. I. Tuberi for the Plaintiff
Ms. R. Lal for the Defendant

DECISION

This is the plaintiff’s motion dated 17 July 2003 to amend his Statement of Claim. An affidavit in support has been filed.

An affidavit in opposition by Mr. Trevor Seeto, Manager Legal of the defendant, was filed on 18 August 2003 to which the plaintiff replied on 29 August 2003.

On 11 September 2003 an order was made to file written submissions within 21 days. The plaintiff filed his on 8 October 2003 but the defendant has failed to do so.

I have considered the application after reading the affidavits filed herein and the written submissions made by Mr. Tuberi. I do not have the benefit of any legal submission from the defendant’s counsel.

This application is made under the provisions of Order 20 r.8 and Order 18 r.21 of The High Court Rules 1988.

The background facts to this application are that on 2 June 2003 Isimeli Drodroveivali was convicted at the High Court in Suva on some of the charges relating to conversion of the plaintiff’s money while he was an employee of the defendant. That conviction the plaintiff says is relevant to his claim in paragraphs (7) to (11) of the Statement of Claim and that Order 18 r21 of the Rules allows for convictions to be pleaded and relied upon. Therefore, the plaintiff says that the amendment he seeks be granted. The amendment sought is contained in the Amended Statement of Claim which is Annexure ‘STB 4’ to the plaintiff’s said affidavit in support.

The said orders 20 r.5 and 18 r.21 allow for amendments of this nature to be made. The following passage from the judgment of Lord Griffiths in Ketteman v Hansel Properties Ltd [1987] A.C. 198 (H L) is pertinent:

“.....whatever may have been the rule of conduct a hundred years ago, today it is not the practice invariably to allow a defence which is wholly different from that pleaded to be raised by amendment at the end of the trial even on terms that an adjournment is granted and that the defendant pays all the costs thrown away.... Whether an amendment should be granted is matter for the discretion of the trial judge and he should be guided in the exercise of the discretion by his assessment of

where justice lies. Many mid diverse factors will bear upon the exercise of this discretion.”

The judge has to see that under the Rules the parties are enabled to formulate the issues between them if they did not appear from the original pleading.

In this case the trial has not begun and the Minutes of the pre-trial conference has not been drawn up and hence the proposed amendment will not be prejudicial to the defendant. The defendant will have to be given the liberty to file an amended defence.

To conclude, for the reasons given hereabove and under the Rules the defendant cannot have reason to oppose the proposed amendment to the Statement of Claim.

The amendment sought is allowed with liberty to file and serve an Amended Statement of Defence within 21 days from the date of this decision. The costs are to be costs in the cause.

D. Pathik
Judge

At Suva
31 October 2003