Cruikshank v Spor (Fiji) Ltd [2005] FJHC 311; HBC0007.2004 (16 December 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0007 OF 2004

BETWEEN:

CORNINE CRUICKSHANK
of St. Giles Hill, Winchester, England
PLAINTIFF

AND:

SPOR (FIJI) LIMITED
a limited liability company having its registered office at Nadi
Airport Hanger, Nadi Airport, Nadi
DEFENDANT

Ms N. Khan for the Plaintiff
Mr D. Gordon for the Defendant

Date of Hearing: 28 November 2005
Date of Ruling: 16 December 2005

INTERLOCUTORY RULING OF FINNIGAN J

I have before me an Interlocutory Summons filed by the Plaintiff for summary judgment “for the prayers contained in the Plaintiff’s Statement of Claim” and for the costs of the action on an indemnity basis.

I gave the matter a hearing on 29 November 2005 intending to dispose of this relatively simple application. Instead of addressing the summons, Counsel for the Plaintiff first invited Counsel for the Defendant to address the Court on what she said was a preliminary point to be raised by the Defendant. This was an oral application by the Defendant for dismissal of the summons. Counsel for the Defendant stated 8 grounds on which the summons should be dismissed without a hearing. Counsel for the Plaintiff responded fully and therein and in Defendant’s Counsel’s answering submission both addressed also the merits of the application itself. Both Counsel gave me copies of the authorities upon which they relied.

Normally this application for summary judgment should be disposed of in a brief Ruling. However, in its 11 months this action has developed a history, very little of which has brought the Plaintiff closer to determination of her claims. I will take the trouble and the time to respond to some of Counsel’s submissions, hoping to show that they could have avoided this hearing and the hearty preparation they put into it. The essence is being lost in the procedures.

In the course of argument, Counsel for both parties put before me copies of letters about the substantive claim which had been exchanged between them including one that was written “without prejudice”. I was given as well a photocopy of a Notice of Acceptance of Money Paid into Court which was filed on 23 February 2005. As it happens, the original document itself is on the Court file along with a Notice of Payment into Court and both of these documents I had read while preparing for the hearing. Both documents were carefully drawn I am told, yet the purported acceptance dictates acceptance on its own terms. I am now aware that pursuant to the High Court Rules Order 22 Rule 7 there may be an argument that this payment and its purported acceptance should not have been made known to me.

It seems to me that the effect of the payment in and of the purported acceptance may themselves be subject to argument under Order 22 Rules 1 and 3, and they have by themselves settled nothing.

Central to the submissions of Counsel were two affidavits, one an affidavit of documents sworn by a legal clerk in the employ of the Defendant’s solicitors and the other an affidavit sworn in support of the Interlocutory Summons by a legal clerk in the employ of the solicitors for the Plaintiff. In these affidavits certain documents are discovered for inspection. The effects of these discoveries were argued by Counsel. The documents themselves (other than the ones placed before me by Counsel for the Defendant in submissions) I have not read.

The submissions of defence Counsel about the affidavit in support of the Plaintiff’s application are not without merit. It is concerned mostly with details of the conduct of these and earlier proceedings. Under Order 14 Rule 2 (1) this affidavit must verify the facts on which the substantive claims in the two causes of action are based. For the first cause of action there is only one statement of this kind. It is at para 15. The deponent annexes the contract on which the first cause of action is based, cites two isolated passages from it and expresses the deponent’s belief that the interest payable is compound interest.

For the second cause of action there are paras 17, 18, and 19. I am not impressed.

This affidavit falls far short of proving the facts of the two causes of action in which the Plaintiff seeks summary judgments. The deponent expresses her belief that the Defendant has no defence. This is permissible under Order 14. But so what? She gives no source, no justification, no reason for believing her belief, or for believing that her belief was reasonable and although this sort of affidavit is permissible it is quite unimpressive. Nothing in Order 14 reduces the responsibility of the Judge to make a reasoned decision on the facts.

Counsel for the Plaintiff, as does her deponent, submits that the statement of defence is no more than a mere denial. This is not correct. It puts the Plaintiff “to strict proof of her claims” and challenges her claims.

In doing so, the Defendant is on good ground. The first cause of action is a claim in contract for a principal sum plus compound interest. The document on which the Plaintiff relies may or may not bear that interpretation. In its second cause of action it claims that the conduct of the Defendant was misleading and deceptive in representing that the interest payable under the contract would be compound. All of this requires interpretation of the contract and evidence of the Defendant’s conduct and elucidation of how these two claims are to be reconciled. Untested affidavits and summary judgment will not meet this need.

In this affidavit there is absolutely minimum verification of any of the facts that are stated in the five separate allegations of the ways the Defendant is alleged to have been in breach of the Fair Trading Decree, and evidence for the claim that the Plaintiff has suffered loss and damages and continues to suffer them because of those alleged breaches is totally absent.

Conclusions

I have studied the written and oral submissions of Counsel and the authorities, which they gave me to read. I have reached certain clear conclusions.

The first is that the present case is not one for summary judgment. Some of my reasons, stated briefly, are as follows. First the Plaintiff claims (inter-alia) compound interest as detailed in the statement of claim, and this can only be granted if the Plaintiff establishes the favourable interpretation of the contract upon which she relies and clearly the Plaintiff’s interpretation is denied in the pleadings by the Defendant. I will not accept the documents discovered by affidavit, and certainly not the opinion of the Defendant’s lawyer provided to his client, as being evidence sufficient to found a summary judgment.

Second, the Plaintiff claims punitive and exemplary damages for an allegation that the Defendant’s conduct (in response to her initial claim) was misleading and deceptive in breach of Section 54 of the Fair Trading Decree 1992. This incidentally is not a claim of fraud as contended by Counsel for the Defendant. I reject the submission of Counsel for the Plaintiff that the Court is in a position to make a summary assessment of the quantum of damages. There is no foundation for that.

On the other hand, I find none of the arguments of Counsel for the Defendant persuasive and would not dismiss this summons for any of the reasons which he put forward. I am satisfied it was served more than 10 days before its true return date even if not 10 days before its first call, and find no merit in the other points.

On the merits of the application, neither do I accept the submissions of Counsel for the Plaintiff. I think the Court would be unwise to attempt to terminate this action without deciding the substantive issues raised on the pleadings.

I am invited by both Counsel to rule on the issue whether the documents disclosed by the Defendant’s affidavit of documents are admissible as evidence. It would be unwise for the Court to express any view about the admissibility or the probative value of the disclosed documents at this point. About the opinion of Defendant’s Counsel supplied to his client and now discovered by affidavit of the Defendant’s solicitors’ clerk, suffice it to say that the opinion of Counsel for one party supplied to his client does not determine the dispute. That responsibility is the Court’s.

I have formed certain preliminary impressions, but I think it unwise to express concluded views on most of the substantive matters raised by Counsel in the submissions because almost certainly I will be the Judge to try the case. Suffice it say that for the above reasons the application for summary judgment is dismissed. The parties have made very little progress since this action was filed in January 2005. I shall list this matter in the Callover on 24 February 2006 in order to allocate a hearing date. Counsel are already at the pre-trial conference stage of Order 34 and can be ready for trial, which might take place in 2006.

However, I have a suggestion. Central to the action is interpretation of the contract clause on which the Plaintiff bases her claim. A 9.00am fixture for hearing of argument on that as a pre-trial issue can be granted as soon as Counsel wish. It may determine the whole action.

Costs on this application will be Defendant’s, summarily assessed at $500.00.

D.D. Finnigan
JUDGE

At Lautoka
16 December 2005