Sharma v National Insurance Company Ltd [2005] FJHC 638; HBC0049.1999 (15 July 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0049 OF 1999

BETWEEN:

VIJENDRA DUTT SHARMA
PLAINTIFF

AND:

NATIONAL INSURANCE COMPANY LIMITED
DEFENDANT

No Appearance for the Plaintiff (Submissions of Mr G.P.Shankar handed up)
Mr A.K. Narayan and Ms A. Watkins for the Defendant

Date of Hearing: 16 June 2005
Date of Ruling: 15 July 2005

REASONS FOR RULING OF FINNIGAN J

This is the Defendant’s application for an order that the Plaintiff’s claim be dismissed. It was filed on 23 December 1999. Associated with it is an application to fix security for costs filed on 22 March 1999. Both applications languished through a long serious of appearances and adjournments until the general callover on 5 May 2005 when, upon appearance for both parties, I set it down by agreement for hearing on 16 June 2005. I noted the matter would be heard that day, it was a firm fixture. On the day, Counsel for the Defendant appeared, Counsel for the Plaintiff was represented to the extent that other Counsel appeared in order to hand up his written submissions.

Written submissions for the Defendant were addressed orally by Counsel. I read and considered also the submission of Counsel for the Plaintiff, but it addressed only the costs security issue. At the end of the hearing I ruled in favour of the Defendant’s application to strike out the Plaintiff’s claim and said I would issue my reasons in writing. I do this now. Counsel withdrew the application for security for costs. That application is withdrawn by leave.

Reasons

It should be a rare thing that an application is dismissed without a hearing. There are cases where the Court would do that under Order 18 Rule 18 (1) for which no evidence would be taken into account, the pleadings themselves being all that is required. This is not such a case. The Defendant relies upon the several affidavits filed by both parties, and although it does submit there is no reasonable cause of action its argument is that the action is frivolous vexatious and an abuse of the process of the Court.

The claim is for $200,000.00 said to be due under a Contract of insurance for a house and shop that were destroyed by fire. The Plaintiff gives his address on the Writ as “VANCOUVER, Canada suing by the local ATTORNEY resident in Fiji”. The Defendant filed its application for security for costs, pointing out by affidavit that the Plaintiff appeared to have no address either here or in Canada and no assets in Fiji. On 30 April 1999 the Plaintiff was ordered by the Court to file an affidavit in reply, all further progress in this action being stayed in the meantime. An affidavit was filed well out of time on 12 May 2000. It was sworn by a person stating he is the Plaintiff’s son and that the Plaintiff is in Canada for health reasons. He annexed a photocopy of a document which appears to be a Power of Attorney, undated but registered with the Registrar of Titles on 27 January 1986. He claims full authority to act on behalf of his father and says that the action was instituted by his father by virtue of the said Power of Attorney. Did his father not want his whereabouts known?. The Defendant filed an affidavit in reply, noting that the health reasons were unexplained and that the whereabouts and assets of the Plaintiff were still unknown. The deponent queried also the probative value of the copy of the purported Power of Attorney.

It is part of the Plaintiff’s pleaded claim that the Defendant had refused to pay money under the insurance policy to his bankers, the Bank of Hawaii. On 22 June 2000 the Defendant filed an affidavit sworn by an Investigator who stated that he had discovered;

(i) That immediately before the fire the Plaintiff was in financial difficulties and unable to meet his repayment schedule with the Bank of Hawaii;

(ii) That the Bank of Hawaii had advertised a mortgagee sale (of the property in question) immediately before the fire;

(iii) That the Plaintiff and/or his son had removed a lot of items from the premises immediately before the fire;

(iv) That the Plaintiff was in Fiji a day or two before the fire but discreetly left Fiji without notification;

(v) That the fire to the Plaintiff’s premises was a case of arson as the premises was fully secured at the time of the fire and there were no sign of any break-ins.

The Investigator also stated on oath that (for whatever probative value this might have) he had found out from the police;

(i) That they were treating the fire as a deliberate arson;

(ii) That they were waiting to interview the Plaintiff upon his return because, according to the police, both he and his Attorney have been classified a prime suspects in the arson case;

(iii) That the Plaintiff is aware of these facts.

On 8 September 2000 the Attorney filed three affidavits. With the first was a letter from a doctor in Canada saying that the Plaintiff was at that time an unstable diabetic on oral hypoglycaemics. He had been “taken to Vancouver Hospital. His sugar was rather high. He was treated with insulin and intravenous fluids........ He is medically unfit for travel overseas”. The deponent finally gave the residential address of the Plaintiff as 787 E 32 Avenue, Vancouver, B.C. V5V 296 Canada. He stated that he himself had substantial assets worth more than $40,000.00, including 3 vehicles which he identified.

There is some probative value in the investigator’s report of alleged police statements, because the second affidavit was in answer to that of the private investigator. It stated the Plaintiff had no account with the Bank of Hawaii, that he never had financial difficulties and that there had been a mortgagee sale of the subject property. He said he thought the Police investigation was not carried out properly, with a confused reference to proof beyond reasonable doubt. The same day he filed a third affidavit which repeated 5 of the matters he had sworn in the other affidavits.

On 19 January 2001 the Defendant filed a further affidavit stating that the Defendant had enquired at the given address in Canada and learned the Plaintiff does not reside at the address at all. Annexed to the affidavit were reports of searches carried out at the Department of Road & Transport for the ownership of the 3 vehicles which the Plaintiff’s son had sworn he owned in support of his claim to be worth more than $40,000.00. The photocopies of the search reports are almost impossible to read but the deponent swears that they show that “the .........claims are completely false”. On 9 June 2004 the Attorney filed a further affidavit saying that he likewise could not read the Defendant’s annexures but still had possession of two of the vehicles and had sold the third. He stated that “as far as I am concerned [the Plaintiff] is still alive”, and that the address given to the Defendant was the correct one and that he had given it with a correct telephone number and a photograph of the Plaintiff to the investigator. He pointed out that the application for security for costs had by then dragged on for a long time. On 23 August 2004 an affidavit for the Defendant was filed which added nothing to the facts and inappropriately made submissions and cited law.

Decision

Counsel asked that I disregard the affidavit filed out of time but I thought it best to read it. It helps to complete the picture. Counsel cited authority for the principles which I must apply and they are well known so I do not set out the authorities. I accept that under Order 18 Rule 18 [1] of the High Court Rules this summary process should be exercised in a Defendant’s favour only in plain and obvious cases. It is for claims which are on their face “obviously unsustainable”. Counsel points out that in the Statement of Claim there is a gap between the claimed insurance policy on the one hand and the claimed damaged building on the other. This is true, and a failure to make that connection at trial would have been fatal to the Plaintiff’s case by itself. It is not by itself however fatal at this stage of the proceedings.

The Statement of Claim itself is admirably brief and, apart from the gap mentioned above, a model that could well be emulated by other practitioners. What undermines it is the evidence in the affidavits. Before going further I remind myself of the principles stated clearly in the Wenlock –v- Moloney & Others [1965] 2 All ER 871. I am aware that at this stage the Court must not succumb to the temptation to try the substantive issue on the untested affidavits. Ultimately the test for me is whether “what was originally maintainable action ......[has become] inevitably doomed to failure”.

The burden of the Plaintiff’s affidavits is that he is a bona fide litigant, that his claim is a bona fide claim and that his son in Fiji is a bona fide attorney for him who has assets sufficient to secure the Defendant’s costs should the action fail. After reading those affidavits and after considering them for some time I felt bound to uphold the submissions of Counsel for the Defendant. The Plaintiff’s claim to be resident at and address in Vancouver did not stand when put to the test, his doctor’s letter does not support the doctor’s claim that the Plaintiff is medically unfit to travel. The Plaintiff pleads that the Defendant’s failure was a failure to pay the insurance money to the Bank of Hawaii as mortgagee but in his son’s affidavit swears that he had no account with that bank. He claimed he had no financial difficulties but swore the subject property had been sold in a mortgagee sale. He openly accepts that there has been a police investigation of the events and of his claim and the only comment he had chosen to make related to the need for the police to prove their case beyond reasonable doubt. In respect of assets in Fiji, it appears the Defendant is right in ascertaining that the Plaintiff has none and those of his son appear even by the son’s own affidavit to be rather less then he at first claimed. Finally, while I take no account of delay because some of the delay in this matter since the year 2000 has been caused in the Court, nonetheless for his part the Plaintiff in pursuit of his claim has been at best desultory.

I am satisfied that this is one of those rare cases where an apparently maintainable action is inevitably doomed to failure. I therefore strike it out.

I award costs to the Defendant and assess these at a nominal figure, $300.00.

D.D. Finnigan
JUDGE

At Lautoka
15 July 2005