Biumaiwasa v Prasad [2011] FJHC 419; HBC237.2010 (4 August 2011)

IN THE HIGH COURT OF FIJI
IN SUVA
CIVIL JURISDICTION

Civil Action HBC No. 237 of 2010

BETWEEN:

NIKO BIUMAIWASA, of Lot 36. Caubati Road, Nasinu, Watchman/Security Guard
PLAINTIFF

AND:

MATHURA PRASAD, of Lot 9, Caubati Road, Nasinu, Businessman
1ST DEFENDANT

AND:

AVRAN KRISHNA PRASAD, s/o Mathura Prasad, Lot 9, Caubati Road, Nasinu
2ND DEFENDANT

AND:

ALVIN BISHAN PRASAD, s/o Mathura Prasad, Lot 9, Caubati Road, Nasinu
3RD DEFENDANT

BEFORE: MASTER DEEPTHI AMARATUNGA

COUNSEL: REDDY & NANDAN SOLICITORS for the Plaintiff
SHERANI & CO. for the Defendants

DATE OF HEARING: 12th July, 2011
DATE OF RULING: 4th August, 2011

RULING

1. INTRODUCTION
   

1. The Defendants filed a summons seeking leave of the court to file and serve interrogatories against the Plaintiff and for an order that the Plaintiff to answer the interrogatories in an Affidavit Forum within 21 days after service of the interrogatories. The Plaintiff object to the interrogatories on the basis that the proposed interrogatories do not serve a clear litigious purpose as they will not save costs and that they do not promote the fair and efficient conduct of this action.
   

2. LAW
   

2. The laws relating to interrogatories are contained in Order 26 of the High Court Rules of 1988.
   
3. Order 26 rule 3 states as follows:
   

"(3) On the hearing of an application under this rule, the Court shall give leave as to such only of the interrogatories as it considers necessary either for disposing fairly of the cause or matte of for saving costs; and in deciding whether to given leave the Courtshall take into account any offer made by the party to be interrogated to give particulars or to make admissions or to produce documents relating to any matter in question."

(emphasis is added)

4. Neither party has submitted or referred any case authority on this matter. The summons for the leave to serve interrogatories is annexed with an affidavit containing the proposed interrogatories.
   
5. The said interrogatories contain 14 questions and questions 1, 2 6, 13 and 14 relates to the Plaintiff's and or his family's employment/s and income from them. The questions 3, 4, 5 relates to any medical insurance and their contribution and questions 7, 8, and 11, 12 relates to the expenses or reductions of the said income. These can be categorized broadly as questions relating to the income and expenses generally and any reimbursement from insurance specifically, to the injuries suffered from the alleged attack.
   
6. The only question that does not fall in to any of the broad categorization above is the question number 9 – which deals with previous convictions which is clearly not admissible in this proceeding. The said question is "Does the Plaintiff have any criminal record/conviction?" is clearly this cannot be an issue in the civil proceeding.
   
7. Plaintiff's claim is damages relating to an alleged assault, but the statement of claim contains 54 paragraphs an in particular paragraph 25 runs into 3 pages of the statement of claim and prayers of claims are as follows:
   
   1. 'An order for General Damages
   2. An order for Aggravated damages;
   100. An order for Exemplary Damages;
   4. And order for loss of Amenities/future earnings;
   5. An order for special damages/punitive damages;
   6. Costs.'
      
8. From the above prayers and the statement of claim, the focus of the trial and issues are not very clear, and the interrogatories would narrow down the trial and the issues will be more evident. These interrogatories will, help the parties more in the Pre Trial Conference, rather than proceeding to Pre Trial Conference without answering to them.
   
9. It is clear that except the question no. 9 which I have already decided as not relevant at this stage, for the reasons given earlier, all other questions are relevant according to the statement of claim and the types of the reliefs claimed, and if answered would help the parties to come to an agreement of issues relating to loss, damages and income of the Plaintiff, and these answers would help to identify the issues in the statement of claim. Even in the prayer of the claim it seems there are some overlapping and repetitions. The answers to interrogatories will reduce duration of the trial and the issues will be clear.
   
10. The guiding principle in deciding interrogatories as to whether they are 'fishing interrogatories' is summarized as follows (White Book) Supreme Court Rules (1988) at page 451-
    

'Fishing interrogatories it is often said are inadmissible. This only means that interrogatories are not allowed which do not 'relate to any matter in question in the cause or matter'. It is an important function to interrogatories to gain information not within the knowledge of the party applying; but they should be allowed which are designed to prove a cause of action or defence not as yet pleaded (Hennesy v Wright(No2) (1890) 24 QBD 445'

100. CONCLUSION

11. Considering the above principle, it is clear that the interrogatories filed, by the Defendant are not 'fishing interrogatories' (except question 9). So I would grant the leave for the Defendants to file and serve the plaintiff the proposed interrogatories (except question 9).
    

The Court Orders as follows:

1. The Defendants proposed interrogatories No1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 14 are allowed.
   
2. Plaintiff to reply to the said interrogatories within 28 days from the service of the same in a form of an affidavit.
   

100. Cost in the cause.
     

Dated at Suva this 4th day of August, 2011.

Mr D. Amaratunga
Acting Master of the High Court
Suva