Westside Motorbike Rentals (Fiji) Ltd v Toganivalu [2011] FJHC 96; HBC55.2008 (31 January 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC NO. 55 OF 2008

BETWEEN:

WESTSIDE MOTORBIKE RENTALS (FIJI) LIMITED, a duly incorporated limited liability company having its registered office at Martintar, Nadi.
Plaintiff

AND:

MOSESE TOGANIVALU, SURESH PARASAD (f/n not known to the Plaintiff, PENI DOLOVALE as TRUSTEES OF NAMAKA PUBLIC SCHOOL of Namaka, Nadi.
Defendants

Before: Master Anare Tuilevuka.
Counsel: Mr. Janend Sharma for the Plaintiff/Respondent
Mr. A.K Narayan for the Defendant/Applicant
Date of Ruling: 31st January 2011.

RULING

BACKGROUND

[1]. The plaintiff used to run a motor-vehicle repair workshop situated in Namaka Industrial Subdivision. The workshop was a concrete and iron building which contained various motor vehicle parts, accessories and other components. Adjoining the plaintiff’s workshop was Namaka Public School.

[2]. The plaintiff alleges that on 31st August 2006, a fire started in Namaka Public School which then spread over to the plaintif’s building. The plaintiff’s claim is essentially for loss and damage of motor vehicle parts, accessories and other components. These items are particularized in paragraph 5 of the statement of claim including the cost per item. The total cost allegedly suffered by the plaintiff is $35,440-00 (thirty-five thousand, four hundred and forty dollars).

[3]. The plaintiff alleges that the spread of the fire was caused by the negligence of the defendants in their failure to control it and/or take necessary precautions. In the alternative, the plaintiff appears to rely on the rule in Rylands v Fletcher in paragraph 7 of the statement of claim. The plaintiff claims damages in the sum of $35,440.00 being the cost of motor vehicle parts, accessories and components lost and damaged in the fire.

SUMMONS FOR SPECIFI DISCOVERIES

[4]. Before me is a Summons for Specific Discoveries filed by the defendants seeking that the plaintiff do within 14 days disclose by affidavit copies of:

• (i) financial statements including profit/loss, balance sheet, fixed assets, depreciation schedule and income returns for the period ending 31st December 2004 to 31st December 2007 inclusive together with the assessments by the Tax Office for the said years pertaining to the plaintiff is or has at any time been in its possession, custody or power and if it parted with them, when it parted with any of them and what has become of them.
  
• (ii) copies of VAT returns for the period ending 31st December 2004 to 31st December 2007 inclusive together with the relevant assessments by the tax office for the said years pertaining to the Plaintiff is or has at any time been in its possession, custody or power and if it parted with any of them, when it parted with any of them and what has become of them.
  
• (iii) copies of all stock cards, stock records, stock take records for the period ending 31st December, 2005 pertaining to the plaintiff if or has at any time been in its possession, custody of power and if it parted with any of them.
  
• (iv) copies of all receipts for purchase of all items allegedly destroyed in the fire pertaining to the plaintiff is or has at any time been in its possession, custody of power and if it parted with any of them, when it parted with any of them and what has become of them.
  

[5]. The defendants also seek an Order that the plaintiff make these documents available for inspection.

[6]. The plaintiffs have filed an affidavit in opposition of Beatrice Nast. Nast says that all these documents are confidential and not relevant to the proceedings. She explains that the plaintiff had vacated the Namaka Industrial subdivision where the fire took place. She further states that – as director of the plaintiff company – she had kept documents and records at her home in Nadi but these were all destroyed in the January 2009 floods. She says that the defendant’s application is a fishing expedition and an abuse of process.

PRINCIPLES APPLICABLE

[7]. Discovery can be sought at any stage of a proceeding even after a judgement or order in an action has been made (see Singh v Minjesk Investment Corporation Ltd & Anor – High Court Civil Action No. HBC 148 of 2006 where Master Udit cited Korkis –v- Wer & Co. [1914] LT 794 as authority for this position).

[8]. The following principles emerge from Singh v Minjesk Investment Corporation Ltd & Anor – High Court Civil Action No. HBC 148 of 2006. The onus initially is on the applicant to establish the following by way of affidavit evidence:

• (i) identify clearly the particular document or documents or class of documents that he seeks from to be discovered by the opposing party (see Order 24 Rule 7(1)).
  
• (ii) show a prima facie case that the specific document or class of documents do in fact exist or have existed (see Order 24 Rule 7(1)).
  
• (iii) establish that these documents are relevant in the sense that they relate to the matter in question in the action. In other words, the information in the document must either directly or indirectly enable the applicant either to advance his own case or to damage the case of his or her adversary. Alternatively, it is sufficient if the information in the document is such that it may fairly lead to a train of enquiry which may have either of these consequences. The relevance of a document is to be tested against the issues and/or questions raised by the pleadings (see A.B Anand (Christchurch) Ltd –v- ANZ Banking Group Limited (1997) 43 FLR 22 30 January 1997).

It is important to note that whether or not any particular document is admissible or inadmissible is immaterial to its discoverability. It is enough if the document is likely to throw some light on the case (see Volume 13 paragraph 38 of Halsbury's Laws of England – 4th Edition) page 34 s cited in Singh v Minjesk).

(iv) show that these documents were in the physical possession, custody (i.e. the mere actual physical or corporeal holding of the document regardless of the right to its possession) or power (i.e. the enforceable right to inspect it or to obtain possession or control of the documents from one who ordinarily has it in fact) of the opposing party (see Order 24 Rule 7(3)).

[9]. Courts will not allow the discovery process to be used towards assisting a party upon a fishing expedition such as to fish for witnesses or a new case (see Martin and Miles Martin Pen Co. Ltd v Scrib Ltd [1950] 67 RPC 1-7 as cited in Singh v Minjesk), Calvet -v- Tomkies [1963] 3 All ER 610.

Nor will discovery be ordered in respect of documents which are not related to or may not affect the actual outcome of the action: Martin and Miles Martin Pen Co. Ltd. -v- Scrib Ltd. [1950] 67 RPC 1-7). Furthermore, discovery will also be prohibited if it is for a general purpose of enabling a party.

ANALYSIS

[10]. The defendant has filed helpful submissions. None has been filed by the plaintiff, despite having been given time on request of counsel.

[11]. The plaintiff's claim is essentially for loss and damage of motor vehicle parts, accessories and other components which are particularized in paragraph 5 of the statement of claim.

[12]. As far as the request for specific discoveries of Financial statements and VAT Returns are concerned (see paragraph 4 (i) and (ii), at first these documents appeared irrelevant to the claim or the defence. I say that because the statement of claim does not include any claim for loss of business profit, loss of business profit or pension or income (including loss of past and future earnings).

[13]. However, upon closure analysis, I have accepted the defendants' submission that these are highly relevant, and are within the powers of the plaintiff to obtain, and therefore are discoverable.

[14]. The defendants had submitted that documents supplied to prepare returns would ordinarily include a record of purchases by way of invoices or receipts. If a journal was not kept, copies of the documents would have been provided to the accountant. This is standard business practice.

[15]. To reiterate, these documents are relevant to the issue of quantum and the plaintiff has the right and therefore the power to obtain relevant copies of these from the Fiji Islands Revenue & Customs Authority. Accordingly – I grant Order in Terms of prayers (i) and (ii).

[16]. Copies of all stock cards, stock records, stock take records for the period ending 31st December, 2005 AND copies of all receipts for purchase of all items allegedly destroyed in the fire are relevant to the claim. These documents would go a long way in resolving the issue of quantum. I also grant order in terms of prayers (iii) and (iv).

CONCLUSION

[17]. I allow the application and grant Order in Terms of all the prayers (i),(ii), (iii) and (iv) in the Summons for Specific Discoveries.

• (a) the plaintiff is to – within 14 days hereof – file a supplementary affidavit disclosing all the documents in prayers (i), (ii), (iii) and (iv) (see paragraph 4 above).
  

[18]. I note that the defendant also requires in addition to the above – an Order that the plaintiff make available for inspection – the above documents 14 days thereafter. That would appear to be superfluous if certified copies of the same are annexed to the supplementary affidavit. In any event – I grant order in terms also as follows:

• (b) the plaintiff is to - 14 days thereafter, make these documents available for inspection to the defendants.
  

If fr one reason or another, the plaintiff is not in a position to discover all or any of these documents, then the plaintiff should explain why in a supplementary affidavit to be filed in 14 days.

Anare Tuilevuka
Master

At Lautoka
31st January 2011