Yianni v Chandra [2004] FJHC 196; HBC0047ETR.2004S (27 April 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO. HBC0047J OF 2004S

BETWEEN:

TONY YIANNI
1ST PLAINTIFF

AND:

JANITA SWAMY
2ND PLAINTIFF

AND:

FIJI TIMES LIMITED
3RD PLAINTIFF

AND:

SURESH CHANDRA and VIJAY MAHARAJ,
Barristers & Solicitors, Trading as
MAHARAJ CHANDRA & ASSOCIATES (a firm).
DEFENDANT

Counsel for the Plaintiffs: D. Sloan: MUNRO LEYS
Counsel for the Defendant: V. Maharaj: MAHARAJ CHANDRA & ASSOC.

Date of Ruling: 27 April, 2004
Time of Ruling: 9.30 a.m.

EX-TEMPORE JUDGMENT

This is the Plaintiffs’ summons to consolidate this action with Civil Action No. 397 of 2003. They rely on Order 4 rule 2 of the High Court Rules.

Civil Action No. 397 of 2003 was commenced by the first named Defendant in a Writ of Summons filed on 23 September, 2003 against the 3 Plaintiffs for damages for libel. Defence was filed and Interrogatories posed and dealt with by the Court in Ruling of 18 November, 2003. Summons for Directions and consequent Orders, including Order for Discovery were made on 21 January, 2004. The Plaintiff subsequently filed his affidavit verifying list of documents on 3 February, 2004 and is presently waiting for the Defendants’ response to his pre-trial conference notice.

On 4 February 2004, the 3 Plaintiffs commenced their separate action, Civil Action No. 47 of 2004 claiming damages for defamation against the Defendant in CA 397/2003 and a second-named Defendant. According to the Plaintiffs’ Writ of Summons the Defendants were “Suresh Chandra and Vijay Maharaj, Barristers and Solicitors, trading as Maharaj Chandra & Associates (a firm)”. However, later documents filed by the Plaintiffs named Suresh Chandra as the first Defendant, and Maharaj Chandra and Associates, as the second Defendant. The Plaintiffs have not yet clarified the proper parties to CA 47/04. The Defendants had meanwhile file their defence on 4 February 2004.

Consolidation of Actions

Order 4 rule 2 of the High Court Rules 1988, as amended by Legal Notice 67/1993 provides:

“2. Where two or more causes or matters are pending, then, if it appears to the Court –

(a) that some common question of law or fact arises in both or all of them; or

(b) that the right to relief claimed therein are in respect of or arise out of the same transaction or series of transactions; or

(c) that for some other reason it is desirable to make an order under this rule,

the Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed until after the determination of any other of them.”

According to the Supreme Court Practice 1985 (White Book) Vol. 1 at p. 28:

“The main purpose of consolidation is to save costs and time, and therefore it will not usually be ordered unless there is “some common question of law or fact bearing sufficient importance in proportion to the rest” of the subject-matter of the actions “to render it desirable that the whole should be disposed of at the same time (Payne v. British Time Recorder Co. {1921} 2 KB1, p.16; Harwood v. British Statesman Publishing Co. Ltd. {1929} W.N. 38; Daws v. Daily Sketch {1960} 1 WLR 126; {1960} 1 All ER 397, C.A.)” Harwood’s Case is also authority for the proposition that cases maybe consolidated where the Plaintiff’s are the same and the Defendants are the same and equally where the Plaintiffs or Defendants or all are different. However, two actions cannot be consolidated, where the Plaintiff in one action is the same person as the Defendant in another action, unless the action of one is made as a counterclaim or third party proceedings in another action.

There are parallels to be drawn in the circumstances under which actions can be consolidated under O.4 r.2 to joinder of parties application under O.15 r.4 namely, that there exists same common question of law or fact in all the actions and where the rights to relief claimed arise out of the same transaction or series of transactions.

Court’s Consideration

The Plaintiffs agree to the general principle of law that two actions cannot be consolidated where the Plaintiff in one action is the same as the Defendant in the other action unless one of the actions has been made as counterclaim or stand as third party proceedings in the other action. The Court notes that in the earlier case by the Defendant there has not been any efforts by the Plaintiffs to file a counterclaim nor third party proceedings. However, they argue that the Plaintiff and Defendant are not the same in both actions. Whereas Civil Action No. 397 of 2003 is brought by Suresh Chandra trading as Maharaj Chandra & Associates, this present Civil Action No. 47 of 2004 is against both Suresh Chandra and Vijay Maharaj trading as Maharaj Chandra & Associates. Yet, as the Court has pointed out above, the Plaintiffs’ documents do not bear out this argument. The latest documents filed, including this Summons applying for consolidation and its supporting affidavit, makes clear that the 1st Defendant is the Plaintiff in Civil Action No. 397 of 2003. The argument for consolidation does not appear to be based on a firm foundation. The Fiji Court of Appeal in Housing Authority v. Penioni Bulu FCA No. 26/01 has warned on possible problems even where issues are the same thus:

“Although the parties are the same they are in different capacities in the two actions and in such cases the Courts have always been averse to consolidation. To the extent that the issue was the same in both cases difficulties must arise as to onus of proof where a party is Plaintiff in one case and a Defendant in another.”

The Plaintiffs in the alternate argue that failing consolidation, the Court should use its discretion and order consecutive trials permissible under O.4 r.2. In support, Counsel submits that both actions arise out of the same transaction or series of transactions and therefore the common factors in both, including the same witnesses and Counsel, would save time and costs. In the Courts view, while the subject of the action in this case arose out of the incident which prompted Civil Action 397/03, the facts and legal issues are not necessarily exactly the same in each case. It is not, for example, as if, the decision of liability in one will be necessarily accepted in the other. The defamation alleged by the Defendant in Civil Action 397/03 is not limited to matters personal only, but there is also the general implication of the failure on his part to his profession as a lawyer.

Counsel for the Plaintiffs emphasised the wide discretion of the Court in deciding whether to make an order for consolidation or not. Where it finds against it, the Courts have more often than not, ordered that the two actions be tried consecutively. It could very well be that it would be convenient for the Plaintiffs and others that such an order be made. In my view, the proper procedure would be to stay this later action, pending the decision in Civil Action 397 of 2003.

The Plaintiffs’ application is dismissed.

There will be an Order for the stay of this proceedings until the determination of Civil Action 397/03.

Costs in the cause.

F. Jitoko
JUDGE

At Suva
27 April 2004