Ali v Lal [2011] FJHC 648; HBC149.2010 (13 October 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No HBC 149 of 2010

BETWEEN:

AYESHA ALI father’s name Rauf Khan and SHAFIA ALI father’s name Nasir Ali both of 8922 141A Street, Surrey, B.C. V3V-TT3 597-9749, Canada, Domestic Duties and Student respectively.
Plaintiffs

AND:

LALEEN SANJEET LAL
father’s name Ravend of Cuvu, Sigatoka, Driver
1st Defendant

AND:

CORAL SUN LIMITED
a limited liability company having its registered office at G H Whiteside & Company, 211 Ratu Sukuna Road, Suva.
2nd Defendant

AND:

SUN INSURANCE COMPANY LIMITED
a limited liability company having its registered office in Suva and carrying on business elsewhere in Fiji.
Third Party

Appearances:
Mr. N.Nand for the Plaintiff
Mr. F. khan for the Defendants.
Mr. Suresh Maharaj & Ass. for the Third Party

INTERLOCUTORY JUDGMENT (ON APPEAL)

1. The 3rd Party seeks leave to appeal from the Masters Order of 21st February 2011 dismissing the application of the 3rd Party dated 1st November 2010 which sought inter alia;
   

(i) that the Third Party Notice issued by the defendants against the Third Party be struck out and dismissed,

(ii) a declaration:

( a) that SICL is not liable to indemnify the 1st and 2nd defendants in respect of the claim by the plaintiff under SICL Policy number 307599 because the Notice of the bringing of the proceeding was not given within seven (7) days to SICL pursuant to section 11 (2)(a) of the Motor Vehicle (Third Party Insurer) Act, Cap 177.

(b) that SICL is not liable to satisfy any judgment that may be entered against the 1st and 2nd defendants arising out of the Motor Vehicle collision on the 2nd day of August, 2007 involving motor vehicle registration No. LH 277 and BQ 552, being the subject of the plaintiff's claims in Lautoka High Court Civil Action No. HBC 140 of 2010 and any further action that may be issued relating to the same collision involving motor vehicle registration numbers BQ 552 and LH 277.

(iii) that prayers (i) and (ii) above be determined as a preliminary point before any further steps is taken in the matter by the plaintiff and the defendant.

2. The Master in dismissing the said application rightly perceived the crux of the application before him at paragraph 10 of his Ruling as thus; “The issue raised in these proceedings is whether section 11 (2)(a) of the Motor Vehicle (Third Party Insurance) Act Cap 177 is mandatory in its provision and if so, whether the failure to comply with it is fatal to the 3rd party proceedings.” The Master referred to the Supreme Court judgment of their Lordships Daniel Fatiaki – President of the Supreme Court, Robert French and Rt. Hon Peter Blanchard, in Dominion Insurance Ltd v Bamforth [2003] FJSC 3; CBV0005.2002S (24 October 2003), which judgment is cited by both the 2nd Defendant as well as the 3rd Party in support of their opposing contentions by quoting in the abstract various paragraphs of the said judgment. The Master has noted that he did not have the benefit of written submissions from the 3rd Party (at paragraph 11 of his Ruling), and nevertheless proceeded to summarize the oral submissions of the Counsel for the 3rd Party and proceeded to his ruling. If the issue before the Master was of such importance as to require leave to appeal from an interlocutory ruling, one wonders why the 3rd Party did not tender written submissions in support of such an important issue. Be that as it may for the moment, it appears to this Court the present application may well be due to the absence of a working knowledge of sections 11(2)(a) and section 16 of the MOTOR VEHICLE Act (Cap 177), on the part of the officers of the 3rd Party Insurance Company which is a phenomenon common in most parts of the world in respect of the same corresponding sections among officers of insurance companies. The said sections are extensive and it should not be taken as a failing on the part of such particular officers. Therefore this Court will set out hereinafter both section 11 and section 16 of the Motor Vehicle Act and quote the relevant observations and reasoning of their Lordships in the said Supreme Court case of Dominion Insurance Ltd v Bamforth.
   
3. Section 11 of the Motor Vehicle Act (Cap.177) reads as follows;

11.-(1) If, after a certificate of insurance has been delivered under the provisions of subsection (4) of section 6 to the person by whom a policy has been effected, judgment in respect of any such liability as is required to be covered by a policy under the provisions of paragraph (b) of subsection (1) of section 6, being a liability covered by the terms of the policy, is obtained against any person insured by the policy, then, notwithstanding that the insurance company may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurance company shall, subject to the provisions of this section, pay to the persons entitled to the benefit of such judgment any sum payable there under in respect of the liability, including any amount payable in respect of costs and any sum payable by virtue of any written law in respect of interest on that sum.

(2) No sum shall be payable by an approved insurance company under the provisions of subsection (1)-

(a) in respect of any judgment unless before, or within 7 days after the commencement of the proceedings in which the judgment was given, the insurance company has notice of the bringing of the proceedings; or

(b) in respect of any judgment so long as execution thereon is stayed pending an appeal; or

(c) in connection with any liability if, before the happening of the event which was the cause of the death or bodily injury giving rise to the liability, the policy was cancelled by mutual consent or by virtue of any provisions contained therein and either-

(i) before the happening of such event, the certificate of insurance was surrendered to the insurance company or the person to whom the certificate of insurance was delivered made a statutory declaration stating that the certificate of insurance had been lost or destroyed and so could not be surrendered; or

(ii) after the happening of such event but before the expiration of 14 days from the taking effect of the cancellation of the policy, the certificate of insurance was surrendered to the insurance company or the person to whom the certificate of insurance was delivered made a statutory declaration that the certificate of insurance had been lost or destroyed and so could not be surrendered; or

(iii) either before or after the happening of the event but within a period of 14 days from the taking effect of the cancellation of the policy, the insurance company had commenced proceedings under this Act in respect of the failure to surrender the certificate of insurance.

(3) No sum shall be payable by an approved insurance company under the provisions of this section if, in an action commenced before or within 3 months after the commencement of the proceedings in which the judgment was given, the insurance company has obtained a declaration that, apart from any provision contained in the policy, the insurance company is entitled to avoid it on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in a material particular or if the company has avoided the policy on the ground that it was entitled to do so apart from any provision contained in it:

Provided that an insurance company which has obtained such a declaration in an action shall not thereby be entitled to the benefit of the provisions of this subsection in respect of any judgment obtained in any proceedings commenced before the commencement of that action unless, before or within 7 days after the commencement of that action, it has given notice thereof to the person who is plaintiff in the action under the policy specifying the non-disclosure or false representation on which it proposes to rely and that it intends to seek a declaration and any person to whom notice of such action is given may, if he desires, be made a party thereto.

(4) If the amount which an approved insurance company, under the provisions of this section, becomes liable to pay in respect of the liability of a person insured by a policy exceeds the amount for which it would, apart from the provisions of this section, be liable to pay under the policy in respect of that liability, it shall be entitled to recover the excess from that person.

(5) In this section-

"liability covered by, the terms of the policy" means a liability which is covered by the policy or which would be so covered were it not that the insurance company is entitled to avoid or cancel or has avoided or cancelled the policy; and

"material" means of such a nature as to influence the judgment of a prudent insurer in determining whether he will accept the risk and if so at what premium and on what conditions. (Underlining and emphasis mine.)

4. Section 16 of the Motor Vehicle Act(Cap. 177) reads as follows;
   

16.-(1) On the happening of any accident affecting a motor vehicle asu reng in the dehe death of or personal injury to any person, it shall be the duty of the owner, forthwith after such accident, or, if the owner was not using the motor<60;, and thereafter to give all such other information and to take all such steps as the insurance company may reasonably require in relation thereto, whether or not any claims have actually been made against the owner or such other person on account of such accident.

(2) Notice of every claim or action brought against the owner or made or brought against any other person who was using the vehicle at the time on account of any such accident shall be forthwith given to the insurance company with such particulars as such company may require, in the former case, by the owner and, in the latter case, by such other person and, where he has knowledge of clam or action, also by the owner.

(3) Neither the owner nor any other person shall, without the written consent of the insurance company, enter upon or incur the expense o f litigation as to any matter or thing in respect of which he is indemnified by a contract of insurance under this Act, nor shall he, without such consent, make any offer, promise, payment, or settlement, or any admission of liability as to any such matter.

(4) If the owner or such other person fails to give any notice or otherwise fails to comply with the requirements of this section in respect of any matter, the insurance company shall be entitled to recover from him as a debt due to it an amount, equal to the total amount including costs, paid by the insurance company in respect of any claim in relation to such matter. (Underlining and emphasis mine.)

5. In Dominion Insurance Ltd v Bamforth [2003] FJSC 3; CBV0005.2002S (24 October 2003) the Supreme Court of Fiji in an appeal from the Court of Appeal set out the grounds of Appeal in that case as thus;
   

The Grounds of Appeal

The grounds of appeal cover only those conclusions of the Court of Appeal relating to the effects of non-compliance with the requirements of the Motor Vehicle (Third Party) Insurance Act relating to notice of the bringing of the proceedings.

The grounds are as follows:-

“1. Their Lordships erred in law by proceeding to determine the effect of Section 11(2)(a) by reference to whether the provisions were directory or mandatory and that substantial compliance would suffice when they failed to consider the real effect and purpose of the provision which was to incorporate into the contract of compulsory motor vehicle insurance policy a condition precedent to liability of the insurer and recovery against it.

2. Their Lordships’ decision that the provision is directory or that substantial compliance would satisfy the requirements of Section 11(2)(a) is contrary to the express and clear words of the statute.

3. Their Lordships erred in construing Section 11(2)(a) of the Motor Vehicle (Third Party) Insurance Act as they did without reference to Section 16 of the said Act which was relevant in determining the legislative intent in respect of the seven days time limit.

4. Their Lordships erred in law in failing to apply the correct principles and the principles referred to by them in their decision and in particular overlooked the significance of likely prejudice which may be caused to insurers, the significance of the time limit of seven days and the consequence provided by the Act for failure to comply.

5. Their Lordships decision that notice after seven days and on the thirteenth day was substantial compliance is arbitrary and unreasonable.”

6. In the said Dominion Insurance case their Lordships dealt with the failure to give notice under section 11(2)(a) of the Motor Vehicle Insurance Act as follows;
   

Failure to give a Section 11 notice within time

As appears from the grounds of appeal set out earlier this appeal reduces to the question of the proper construction of s.11 (2)(a) of the Act.

In construing any statute the Court must take as its point of departure the ordinary and grammatical meaning of the words used in the statute. This is a rule which, it has been said, is dictated by basic considerations of fairness:-

“....those who are subject to the law’s commands are entitled to conduct themselves on the basis that those commands have meaning and effect according to ordinary grammar and usage.” Corporate Affairs Commission (NSW) v. Yuill [1991] HCA 28; (1991) 172 CLR 319 at 340 (Gaudron J).

The ordinary and grammatical meaning of the words must be construed according to their legislative context. It is not necessary first to find ambiguity in the meaning of the word before considering their context. Context itself may illuminate constructional choices. As this Court said in Qarase v. Chaudhry (Civil Appeal No. CBV0004/2000S) at para. 64:-

“Construction is a multi-dimensional process. It is not appropriate to approach a text on its basis that some kind of ambiguity must first be found to exist in a specific provision before taking into account the whole of its context and other relevant principles and considerations. At the very least context must be considered in the first instance.”

So much having been said, it is necessary also that the Court respect the limits placed upon its construction by the words of the statute. As McHugh J. said in Newcastle City Council v. GIO General Insurance Limited [1997] HCA 53; (1997) 191 CLR 85 at 109 the function of the Court remains one of construction and not legislation:-

“When the words of a legislative provision are reasonably capable of only one construction and neither the purpose of the provision nor any other provision in the legislation throws doubt on that construction a court cannot ignore it and substitute a different construction because it furthers the objects of the legislation.”

Nor can the Court construe legislation against its language because to do otherwise would yield an apparently harsh or inconvenient or unjust result in a particular case. This constraint may become acute in the case of a statute which imposes time limits for commencing proceedings or doing other things and makes no provision for any extension of those time limits. It is necessary then to consider s.11(2)(a) having regard to the ordinary and grammatical meaning of its words and the context and the purpose of the provision.

Section 11(1) of the Act imposes a statutory liability on the Insurer to pay the sum of a relevant judgment against a person insured to the person in whose favour the judgment has been awarded. That liability is extra-contractual although necessarily conditioned upon the existence of a policy of insurance. It is important therefore, when looking to the provisions of s.11(2), to bear in mind that the section is concerned with the imposition and the conditions of the imposition of a special statutory liability. It is not concerned with the plaintiff’s cause of action against the insured person which arises at common law. Nor is it concerned with an insured person’s right of indemnity under the policy. (underlining and emphasis mine.)

7. In the said Dominion Insurance case the Supreme Court observed the boundaries and character of section 11(2) as follows;
   

Subsection 11(2) sets the boundaries of this special statutory liability by setting out the conditions under which “No sum shall be payable by an approved insurance company under the provisions of subsection (1)”. There is no relevant leeway of choice in these words. They define the boundaries of the liability imposed by s.11(1) by reference to various circumstances in which “No sum shall be payable” under that subsection.

The Court of Appeal observed:-

“Section 11(2)(a) imports into the policy what is in effect a condition precedent to the liability of Dominion Insurance to make theent it would otld otherwise be required to make by s.11(1).”

That observation, with respect, i stricorrect. The condition precedent specified in s.11(2)(a) applies to the statustatutory tory liability created by s.11(1). It is not imported into the policy. In this connection also the submission made for Dominion Ince tha> that the Act has been “incorporated into the policy by reference” is not apposite as the liability created by s.1is be the insurer and the injured party who was not a ot a party to the policy or covered by it.y it.

It is correct to say, as the Court of Appeal said, that s.11(2)(a), as a matter of construction in accordance with the unambiguous opening words of s.11(2), defines a condition precedent to the liability imposed by s.11(1). When that point is reached no question of characterisation of the condition as mandatory or directory arises even if that characterisation were still useful in statutory construction - see Project Blue Sky Inc. v. Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490 at 516; Hawkes Bay Hide Processors of Hastings v. Commissioner of Inland Revenue [1990] 3 NZLR 313 at 316. For the construction question – what is the effect of non - compliance with the condition? - is answered, not by the words of the condition itself but by the clearly defined consequences of the failure to satisfy it – “No sum shall be payable.”

The character of the section as a condition precedent appears to have been recognised early in the life of the equivalent provision in s.19(2)(a) of the Road Traffic Act 1934 (UK). In Herbert v. Railway Passengers Assurance Co. [1938] 1 ALL ER 650 Porter J. observed at 654:-

“Without considering the matter thoroughly, the view which I hold at present is that, where an Act of Parliament stipulates that recovery shall not take place except in certain events, those events must take place before the plaintiff can recover.”

In that case it was held that a casual conversation between the insured defendant and the insurer’s agent in which the defendant mentioned that an action had been brought against him could not meet the notice of requirement. There was no room for mitigation of the operation of the section. Porter J. remarked at p.650:-

“This is a case in which one feels considerable sympathy for the plaintiff and [Counsel] has said everything that could be said on her behalf. Nevertheless, I am afraid that the law is too strong to give effect to his contentions.”

The nature of the notice condition as a condition precedent was confirmed recently in the Court of Appeal in Wake v. Wylie (2001) RTR 20. Kennedy LJ referred to s.152(a) of the Road Traffic Act 1988 as “not a statutory defence” but “a condition precedent to liability,” and “not a statutory time limit, but a state of affairs which by statute had to exist before the relevant insurers became liable to pay”(para. 34 and 38). The judgment of Kennedy L.J., with which Laws and Rix LJJ agreed, also provides a helpful review of case law on the section which it is not necessary to reproduce here.

The task that remains is to define the content of the condition. There is room for debate about the way in which an insurer may have notice of proceedings in which the relevant judgment is given. That was the approach taken by the Court of Appeal in Desouza v. Waterlow [1999] RTR 71 (C.A.) in relation to the like provision of s.152(a) of the Road Traffic Act 1988. Cazalet J., at 81, identified "the essential purpose" of the required notice thus:-

"...that the insurer is not met with information, out of the blue, that his insured has had a judgment obtained against him."

Roch LJ at 82 said:-

"The purpose of the provision is to avoid insurers being asked to satisfy a judgment against their insured in respect of a claim of which they knew nothing, obtained in proceedings of which they had no notice or warning."

In that case the object of the notice requirement had been met. The plaintiff had provided the insurer with a detailed plan and account of the accident within one month of its occurrence. The insurer's engineer had inspected the plaintiff's car and had authorised work to be carried out. There was a sequence of letters between the plaintiff and the insurer in which the plaintiff made clear that unless his claim was settled he intended to take proceedings. In that case the Court adopted a purposive approach where the language of the section permitted it to do so. The requirement of notice can be met in a variety of ways. Cazalet J. observed that notice could be given orally and could be given prior to the commencement of the proceedings. This was also the approach of the Privy Council in the earlier case of Ceylon Motor Insurance Association Limited v. Thambugala [1953] A.C. 584 concerning s.134 of the Motor Car Ordinance of Ceylon (No. 45 of 1938). Notice was held not to require precise identification of the particulars of the action instituted given that it could be provided prior to commencement of the action.

It is possible, with a purposive approach to the construction of s.11(2)(a) to eschew formality in the kind of notice required provided that it meets the substantive object of the provision. That object is to make the insurer aware, one way or the other, of the proceedings which are contemplated or have been commenced against a person covered by the policy. The term "notice" is sufficiently wide to allow a wide construction to be adopted which serves the purposes of the section. The language of s.11(2)(a) itself supports a wide construction as it matters not how the insurer gets notice of the proceedings as long as it "has notice" within the requisite time.

8. The Supreme Court further dealt with the nature of the "condition precedent" as applicable to section 11(2)(a) in the said Dominion case as follows;
   

But the nature of the condition in s.11(2)(a) as a condition precedent which marks out the boundary of the insurer's liability does not allow any "substantial compliance" construction. The condition is either met or not. No question of "compliance" arises for, unlike section 16, it does not purport to impose any duty on any person to notify. It simply requires that the insurer "has notice." Who then is to comply? "Substantial compliance" in this context must equate to "substantial fulfilment" of the requirement. So far as the time limit is concerned a construction which permits fulfilment after the expiry of the time limit is a construction which involves a legislative redrafting of the provision. This is not a function which the Court is authorised to undertake.

9. The Supreme Court in the said Dominion case compared and contrasted section 11 with section 16 of the same Act somewhat cautiously but illuminatingly as follows;
   

While construction by reference to contrasting provisions of the same statute is not always a reliable technique there is a significant contrast to be drawn between the structure and language of s.11 and that of s.16. Section 16 imposes a duty of notification upon the owner and the driver of a vehicle involved in an accident. The notice must be given "forthwith after the accident", a term which does allow some room for movement by reference to criteria such as reasonableness and practicability. It does not define a condition precedent to the contractual right of indemnity against the insurer. But it gives the insurer a right to recover, from the insured, where notice has not been given, any amount paid by the insurer in respect of a claim in relation to the matter. This is a provision which operates upon the contractual relationship between insurer and insured. It does not condition a freestanding statutory liability imposed on the insurer by the Act as is the case with s.11(2)(a). (Emphasis mine)

10. The Supreme Court gave its mind to the public policy aspect in the said Dominion case as follows;
    

Whatever may have been the problems at the time of the proceedings which have led to this appeal it does not appear, at least upon the basis of what the Court was told from the bar table, that these problems exist to the same extent now. While Courts should construe legislation, where possible, in a way that renders it workable rather than unworkable they must accept that the language may in some cases not permit a construction preferred on that basis. In such a case the legislature has made the judgment as to workability and the Court cannot substitute its own judgment to rewrite the Act.

It is almost always the case that strict time limits for doing anything will work injustice in some cases. It may be desirable that the legislature should make provision for Courts to ameliorate those injustices by permitting discretionary relief from the requirement of the time limit as for example does s.29A of the Motor Vehicle (Third Party) Insurance Act (W.A.).

11. Their Lordships in the said Dominion case setout their conclusions as follows;
    

Conclusion

For the preceding reasons the appeal should be allowed, and the orders of the Court of Appeal varied so that Mrs Wilson's claim against the Dominion ance is dismisismissed.

Turning to the question of costs, this was a case in which there was a public interest in the proper construction of s.11(2)(a). This no doubt explains why the Court of Appeal granted leave to appeal to this Court. The case is in the nature of a test case and the insurer has made its legal point. It is not a point which is a particularly attractive one. It indicates a need for some reform of the law. In the circumstances, as Mrs Wilson may well have been deprived entirely of any practical recovery for injuries she suffered as a result of the accident, it does not seem to us that she should be required to bear the further burden of meeting the insurer's costs of this appeal. This is a special case and does not detract from the general application of the ordinary rule that costs follow the event. In the circumstances we propose no order as to the costs of the appeal. (Mrs. Wilson referred to is a Plaintiff in the Dominion case.)

12. The purpose of adding the insurer as a 3rd party by the insured Defendant is for indemnity under the policy of insurance. To put in simple terms, it is to recover from the insurance company the money that the Defendant may be held liable to pay the Plaintiff. The cause of action against the 3rd party is a cause of action arising on the contractual terms of the insurance policy between the 2nd Defendant and the 3rd party (where section 16(1) &(4) applies) and has nothing to do with the statutory liability the 3rd party may have to the Plaintiff (where section 11(2)(a) applies)due to the mere fact of the (3rd party) insurance policy.
    
13. If the Defendant had moved to add the Insurance company as a co-Defendant alleging statutory liability directly along with the Defendant to the Plaintiff (only when the Insurance Company refuses or neglects to defend the case), then there would be no doubt, that non compliance with section 11(2)(a) may well be a bar to add the Insurance company as such a co- or as another Defendant(and not as a 3rd Party), as it is compliance with section 11(2)(a) that imposes the statutory liability on the insurance company. However such an instance is so rare in practice that it borders on the hypothetical.
    
14. However when the Insurance Company is sought to be added as a 3rd Party based on the insurance policy between the 2nd Defendant and the Insurance Company for the purpose of indemnifying, in terms of, the contractual terms of such policy of insurance, then it is compliance with section 16 (1) that matters to oppose it and not section 11(2)(a). There is no clear authority submitted before Court that both section 16 as well as section 11(2)(a) should be complied with for the contractual liability to indemnify to arise under the policy of insurance between the insured (2nd Defendant) and the insurer (Sun Insurance Company Ltd, added as 3rd Party). The repercussions of non compliance with section 16(1) is set out in section 16(4), in that the insurance company can seek to be indemnified by the insured, a reversal of the usual script so to speak. However it is the view of this Court that the contractual liability of the insurer to indemnify the insured is independent of the statutory liability of the insurer to the injured party. The several provisions in the Act gives the insurance companies upon whom a statutory obligation is imposed to issue 3rd party insurance policies, leave of movement, to avoid too harsh an imposition. On the one hand issuance of 3rd party insurance policies, are necessary for vehicular mobility which is paramount to any modern state. On the other hand entities that issue such policies need to be viable to honour such policies and the quantum of the maximum premium chargeable as against the liabilities that arise to be met, terms of re-insurance, and other factors of the trade may well compel a tendency for avoidance.
    
15. In the Dominion case the issue of liability was between the Plaintiff (injured party) and the Insurer ( Dominion Insurance) and as such subject to compliance with section 11(2)(a). However in this case the issue of liability relevant to making the Insurance company (Sun Insurance Company Limited) a 3rd Party arises between the 2nd Defendant and the said Insurance Company on the contractual terms of the Policy of insurance between them and as such subject to compliance with section 16 if any and as such not subject to compliance with section 11(2)(a).
    
16. Section 11(2)(a) does not state that notice should be in writing or that it should be given by a particular party. If by some means the insurer had the required notice within the stipulated period of time the statutory liability would survive. Notice under section 11(2)(a), is generally given by the Plaintiff, and it is still open for the Plaintiff to prove that the insurer had notice. It is not possible to determine whether such notice was received or given under section 11(2)(a), by affidavits alone (as it is sought at this juncture) without testing such evidence under cross examination. It would be a further folly to decide as to statutory liability of the insurer to the Plaintiff in an application to ad a 3rd Party which is primarily between the 2nd Defendant and the 3rd Party to the exclusion of the Plaintiff. Therefore no preliminary issues are determinable at this stage of the proceedings without evidence and prior to a trial.
    
17. In any event the fact that the 3rd Party has not filed its written submissions in support of its application before the Master would weigh heavily against allowing leave to appeal against the order of the Master. The Masters ruling is an interlocutory ruling and the 3rd Party is free at the trial to defend and oppose liability. The balance of convenience favour the joining of the 3rd Party, as any cost incurred may be recoverable, but not a right lost. Had the 3rd Party filed written submissions the Master may have dealt with those submissions extensively and answered the doubts of the 3rd party as to the operation of the several provisions and this leave to appeal application would not have been necessary. The 3rd Party has put the 2nd Defendant to unnecessary expense and cost in this application which this Court considers appropriate circumstances to award cost to be taxed on the indemnity basis against the 3rd Party, in dismissing this application for leave to appeal.
    
18. As such the application of the 3rd Party for leave to appeal the Ruling of the Master dated 21st February 2011 is dismissed with indemnity costs in favour of the 2nd Defendant against the 3rd Party. Consequently there is no order for stay and this matter is now transferred to the Master for directions and pre trial steps.
    

.............................................
Hon. Justice Yohan Fernando.
JUDGE.

High Court of Fiji
At Lautoka
13th October 2011.