ANZ Banking Group Ltd v Vikash [2010] FJHC 3; HBC208.2004L (18 January 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 208 of 2004L

BETWEEN:

ANZ BANKING GROUP LIMITED
Plaintiff

AND:

JAINENDRA VIKASH
Defendant

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr Babu Singh for the Plaintiff
Mr F Khan for the Defendant

Solicitors: Parshotam & Co for the Plaintiff
Faiz Khan Lawyers for the Defendant

Date of Hearing: 8 December 2009
Date of Judgment: 23 December 2009 delivered on 18 January 2010

INTRODUCTION

[1] This is one of those cases where the matter had gone to trial on 18 August 2008 but judgment remained undelivered. The delay was caused mainly by Counsel’s failure to file their written submissions after the trial. The situation was exacerbated by the events of 10 April 2009 and the trial Judge not being re-appointed to the Bench.

[2] On 27 July 2009, at my direction, the Deputy Registrar wrote to the solicitors involved seeking their views as to how I am to deal with this matter. The Solicitors for the Plaintiff were happy for me to deliver judgment based on the trial Judge’s notes and Counsels’ submissions but the Defendant’s solicitors did not agree to this procedure and asked for hearing de novo.

THE APPLICATION

[3] On 13 October 2009, Solicitors for the Plaintiff filed a Summons for an order that I deliver judgment on the papers. The application was eventually heard on 8 December 2009 after two adjournments and this is my judgment.

[4] The main ground on which this application was based was that a retrial would give the Defendant an opportunity to correct errors made at the previous trial. The other grounds were that delivery of the judgment was delayed because the Defendant did not file his closing submissions until 3 months after the hearing and that the Court record would contain the record of evidence on which judgment could be delivered and a retrial would involve unnecessary costs.

[5] The application was vehemently opposed as Mr Khan, Counsel for the Defendant, put it in his submissions. He submitted that it was the Plaintiff itself that caused the delay and argued that this case involved the credibility of witnesses so a hearing de novo is imperative. However, he concedes that this Court has a discretion in deciding whether a matter should be heard de novo or not and cited The Queen v His Honour Stephen Oliver QC [2005] EWHC 291 (Admin) Case No CO/2602/2004, a decision of Evans-Lombe J of the High Court of Justice, Queen’s Bench Division, Administrative Court, London. The relevant passages are as follows:

12. By contrast the position at common law is not entirely clear. As a matter of practice as I myself experienced at the bar, the death or incapacity of a judge in the middle of a case will usually require the case to be re-heard before another judge. What is not entirely clear is whether this results from case management considerations or from lack of jurisdiction. In Coleshill v Manchester Corporation [1928] 1KB 776, a personal injuries case, Lord Justice Scrutton commented, after judgment had been delivered, on the fact that in the course of the case the trial judge, Mr Justice Fraser had died and the case had been continued by Mr Justice Acton "at the urgent request of the parties" with earlier witnesses not being recalled but the new judge having recourse to the transcripts. He said:-
    

"I think it is a precedent which should not be followed in future. I doubt whether a judge has any jurisdiction to continue the hearing of a case in which witnesses have been called in court in the course of the trial before the jury and another judge, it not being a case of evidence being taken on commission or before an examiner."

13. In The Forest Lake [1968] Probate Division p 270, an admiralty case, the presiding judge sitting with two elder brethren of Trinity House, was compelled to retire due to ill health in the middle of the case. The report records that the president Sir Jocelyn Simon ordered, in the circumstances, that the action be heard de novo and Mr Justice Karminski was nominated to re-hear it. The plaintiffs applied to that judge for an order restoring the action to the list for hearing and that the evidence already given in court on commission should be used, and an order for directions made by the previous judge be renewed so as to enable the same elder brethren, who had sat as assessors at the first hearing, to sit again. Mr Justice Karminski plainly regarded himself as continuing the proceedings previously heard by Mr Justice Hewson. In the course of his judgment on the application he said this:-
    

"The matter, so far as I am concerned, would have been quite without difficulty as a matter of principle but for the observations of Scrutton LJ in Coleshill ...."

14. He distinguished Scrutton LJ's comments as being obiter and for case management reasons which could not have been appropriate for a challenge to the jurisdiction of the court. In the course of his judgment he drew attention to the decision of Mr Justice McKinnon in The British Reinforced Concrete Engineering Company Ltd's Application [1929] 45 TLR p 186 where that judge also distinguished Scrutton LJ's comments on case management grounds. Indeed, had the Court of Appeal in the Coleshill case proceeded on the basis that Mr Justice Acton had no jurisdiction to take that case up and try it to its conclusion, it should have ordered a retrial.
    
15. In my judgment the balance of authority leads to the conclusion that the common law position is that the death or incapacity of a judge in the middle of a case (including a Commissioner in the course of a tax appeal) does not mean that there is no jurisdiction for a second judge to take over the case in mid-trial and complete it. It will be open to him, particularly under modern rules of evidence, so to order the trial that costs thrown away are minimised. In a case not involving witnesses this will be relatively easy. However in the majority of cases, and in particular where witnesses are involved it will be necessary, as a matter of case management, to try the matter de novo. It seems to me that in the two tax cases of Odhams Press and TW Law, heard before the Finance Act 1967 the Court and the Commissioners were proceeding along these lines. It follows that the issue in the present application is whether section 45(3) is to be construed as requiring the consent of the parties where, for any reason, one of two Special Commissioners, dealing with an appeal under the Taxes Management Act 1970, is incapacitated before the appeal in question is finally disposed of, so as to enable this to happen by permitting the appeal to be continued in front of the remaining Commissioner or by a reconstituted panel of Commissioners.
    

[6] There is no statutory provision touching on the point so I have to rely on the common law position, which I respectfully adopt as stated in the above passages. I do not think it makes any difference whether the interruption was during the trial or after it. It is clear from these passages that not only does this Court have discretion by way of jurisdiction, it also has discretion by way of case management.

EXERCISE OF DISCRETION

[7] The availability of Judge hours for the hearing of cases in this Division is notoriously limited. Even now, I am fully booked for the whole of 2010 with trials and any new matters ready for hearing in 2010 will have to wait until 2011. Interlocutory applications are heard in between and in the mornings before these trials.

[8] This claim was filed on 16 July 2004. It eventually went to trial 4 years later on 18 August 2008. If I were to order a trial de novo, it will be another year at least before the matter is reheard. It is a claim for a very small amount $11,074.23. By the time the matter is reheard legal costs may have well exceeded the claim, if not already. Further, the witnesses’ memories of events that took place over 6 years ago must have been dimmed and any advantage that may have been gained in respect of the credibility of witnesses in a trial held over a year ago as opposed to a new trial to be held at least a year hence may have been nullified and now non existent.

[9] The trial Judges notes are, as usual, comprehensive and appear to be verbatim. All submissions have now been filed. I note from the record that Mr Khan appeared for the Defendant at the trial. Mr Babu Singh was not Counsel for the Plaintiff at the trial. So if I were to order a re-trial, Mr Khan would be at a distinct advantage over Mr Babu Singh.

[10] In the circumstances, exercising this Court’s discretion as a matter of jurisdiction and as a matter of case management, I think, in the interests of justice and fairness to both parties and in the interests of the Court’s limited resources being available to others, this matter should not be heard de novo. However, I will allow the parties Counsels to make oral submissions and I will set a date convenient to both of them and the Court, subject to what follows.

COSTS

[11] This application was made necessary by the Defendant’s stubborn insistence on a hearing de novo over such a small claim so he should not only pay for the costs of this application but also a hearing fee as if the matter is being heard de novo over one day. I summarily set the costs at $800 which are to be paid to the Plaintiff within 14 days.

[12] If the costs and hearing fee are not paid as ordered, the Defendant will be taken to have foregone his right to make oral submissions and this Court will deliver its Judgment on notice.

ORDERS

[11] The Orders are therefore as follows:

1. The Defendant shall pay the Plaintiff’s costs of $800 within 14 days from the date of delivery of this Judgment.
   
2. The Defendant shall pay to the Registry the hearing fee for a one day trial within 14 days from the date of delivery of this Judgment.
   
3. If such costs and fee are paid as ordered, this matter will be set down for oral submissions on a date mutually convenient to Counsel and the Court.
   
4. If such costs and fee are not paid as ordered, Judgment will be delivered on notice based on the trial Judges notes and Counsel’s submissions already filed.
   

............................................................
Sosefo Inoke
Judge