Perry v Gregory [2006] FJHC 83; HBC0064.2003L (29 November 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 0064 OF 2003L

NO. 252 OF 2006

BETWEEN

JOHN LINDSAY PERRY & OTHERS
Plaintiffs

AND

LAWRENCE GREGORY & OTHERS
Defendants

Appearances: Mr. N. Prasad for the plaintiffs
Ms M. Muir for the defendants

Hearing: 8 September 2006
Decision: 29 November 2006

Ruling

[1] By the summons issued on 22 May 2006, the plaintiffs seek further orders and directions as to the future conduct of the action to enter it for trial. The application is made pursuant to orders 32 and 28 rule 9 of the High Court Rules and in light of order (2) in the Ruling of Connors J dated 26 February 2006.

[2] The application was particularized at the commencement of hearing. Mr. Prasad sought leave to file a statement of claim in which the plaintiffs propose to plead a claim grounded in breach of trust and breach of fiduciary duty. He stated that the application was an extension of the earlier Ruling of Connors J.

Ruling of 26 February 2006

[3] In his Ruling on the defendants application to strike out the action and the plaintiffs application that the originating summons proceed by oral evidence, Connors J held inter alia:

(i) that the affidavits filed make it patently clear that there are significant issues to be determined between the plaintiffs and defendants

(ii) the said affidavits show that there is a significant dispute between the plaintiffs version of events and the defendants

(iii) there was no basis upon which the court would be able to resolve these factual differences without taking oral evidence.

[4] An order pursuant to order 28 rule 9 was made that the proceedings continue as if begun by writ.

The plaintiffs contentions

[5] In essence Mr. Prasad submitted that further orders should be made so that all issues between the parties are put fairly before the court.

Defendants position

[6] The application was strongly opposed. Ms Muir submitted that the proposed statement of claim would raise new issues. She also submitted that I ought not grant the application given that the plaintiffs had not filed a formal application for amendment. Strong arguments were made on the prejudicial impact the continuing of delay has caused her clients.

Order 28 rule 9

[7] If an order is made for the action to be continued as if begun by writ, the court may order that the affidavits stand as pleadings with or without liberty to any party to add to them or to apply for further particulars. The order of Connors J that the action shall continue as if begun by writ did not specify any further directions in regard to pleadings. Hence the plaintiffs summons for further directions. In dealing with such applications the Court may include directions for the filing of a statement of claim and/or defence, discovery and any other matters usually dealt with at a summons for directions. Atkins Court Forms 2nd Edition 29, 1991 Issue at page 372.

[8] I agree with Mr. Prasad’s submission that further directions are needed here.

The proposed amendment

[9] Mr. Prasad did not provide a draft of the precise amendments to be pleaded. However a statement of claim is yet to be filed. A formal application to amend would have been premature.

[10] In dealing with Ms Muirs objections in this regard, it is my view that the plaintiffs should be allowed to plead the facts and circumstances which will lead to a decision of the real matters in controversy between the parties. In the exercise of my discretion I have considered the following principles:

"It is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made for the purpose of determining the real question in controversy between the parties to any proceeding or of correcting any defect or error in any proceedings" (per Jenkins L. J in G. L. Baker Ltd –v- Medway Building & Supplies Ltd [1958] 1 W.L.R 1216 P. 1231 cited in The Supreme Court Practice 1995 Notes at 20/5-8/6).

Other principles which I am obliged to consider are:

(i) the object of the Court is to decide the rights of the parties and not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights

(ii) mistakes should be corrected by amendment if it can be done without injustice to the other party

(iii) as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy it is as much a matter of right on his part to have it corrected if it can be done without injustice, as anything else in the case is a matter of right. (The Supreme Court Practice 1995 Notes at 20/5 – 8/6).

[11] I am very mindful of the prejudicial impact on both parties caused by the delay in concluding this case. Ms Muir informed me that her clients, who now live abroad, can only travel to Fiji in July 2007. I propose listing this action for trial in July 2007.

Orders

[i] The plaintiffs are to file and serve a statement of claim within 14 days

[ii] The defendants are to file and serve a statement of defence 14 days thereafter

[iii] The plaintiffs to file and serve a reply to defence 7 days after service on them of the statement of defence

[iv] The parties are to exchange lists of documents within 14 days of service of the reply to defence

[v] Any further interlocutory application must be filed returnable no later than 26 January 2007

[vi] Case to be called on 1/12/06 9.00 am to fix a hearing date in July 2007

[vii] Costs in the cause.

Gwen Phillips
JUDGE

At Lautoka
29 November 2006