Wakaya Limited v Nusbaum [2012] FJHC 1243; HBC256.2010 (30 July 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 256 of 2010

BETWEEN:

WAKAYA LIMITED
PLAINTIFF

AND:

MARSHA NUSBAUM
1ST DEFENDANT

AND:

KENNETH CHAMBERS
2ND DEFENDANT

AND:

DAVID GILMOUR
1ST COUNTERCLAIM DEFENDANT

AND:

MELIKI TUINAMUANA
2NDCOUNTERCLAIM DEFENDANT

AND:

RENEE LALA
3RD COUNTERCLAIM DEFENDANT

AND:

DILIP JAMNADAS
4TH COUNTERCLAIM DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. R. Naidu for the Plaintiff and 1st, 2nd and 4th Counter claim Defendants
Mr. Hiuare Willy for the 1st Defendant
2nd Defendant in person.

Date of Hearing: 24^th JULY, 2012.
Date of Ruling: 30^th JULY, 2012.

RULING

A. INTRODUCTION

1. The 2nd Defendant (hereinafter referred as the Defendant) is seeking to re-amend the proposed counter claim. The proposed amended counter claim is filed in court annexed to an affidavit and the Plaintiff and the counterclaim defendants are objecting to the said proposed amended counter claim. When the matter was fixed for hearing of the proposed amendment on the day of the hearing the Defendant sought further amendment on the basis of further discovery of material facts which he had detailed in the submissions. All the parties at the hearing of the application for leave to file the proposed amended counter claim consented, that the hearing is redundant, upon the application of the Defendant seeking further amendment to the proposed amended counterclaim which is filed in court, since he had not filed the re-amended counter claim. The application for the re –amendment is allegedly due to non-disclosure of all relevant facts by the Plaintiff and the counter claim Defendants, and because of that the Defendant seeks a peremptory order for disclosure of all relevant documents without specifying what those documents are. Earlier, I have dealt an application for specific discovery of the 2nd Defendant for further and better particulars and delivered a ruling. Again I cannot grant an order in general for discovery, with an unless order. The grant of peremptory order is discretionary and it should be clear for the parties what they have to comply and should not leave any room for further interpretation of the thing that the party has to comply. If not the purpose of the unless order is lost and may result abuse of the unless order for their advantage.
   

B. ANALYSIS

2. The Defendant seeks following orders in his written submission at the hearing of the summons seeking leave to amend the counter claim.
   

'(a). In terms of paragraph 1 and 2 our application for leave under HCR O.20 r 5 and 9 to amend the counterclaim: Leave to file a re-amended counterclaim as a new document.

(b). In terms of paragraph 3 of our application for leave to amend and paragraph 6 of our application for further direction: that unless the plaintiff and counterclaim defendant s give discovery of all relevant documents within 14 days thereof, the defendants shall have judgment on their counterclaim.

(c). That each party shall be at liberty to apply generally.'

3. The motion before me that is fixed for hearing sought following orders
   

'1.Granting leave for the defendants to file an amended counterclaim.

2. Directing that the amended counterclaim be filed as a new document.

3. Such further or other orders ....'

4. The affidavit in support of this motion has annexed the proposed amended counterclaim which comprised of 27 paragraphs and 14 pages, but now seeks to further amend it on the basis of some material facts being discovered since the filing of this amended counter claim. The proposed re-amended counterclaim is yet to be filed.
   
5. The Defendant is also alleging the reason for further amendment is the non compliance of the court order by the Plaintiff and the counter claim defendants. The alleged non compliance is regarding the direction of the court to discover the documents, as per the summons for direction filed on 8th December,2010 in the following manner
   

'1. That the Plaintiff within 14 days serve on the 1st and 2nd Defendants a List of Documents and file an affidavit verifying such list limited to the documents relating to the matter in question in this action.' (emphasis is added).

6. At that time the Defendant has filed the counterclaim and the defence to counter claim has also been filed.
   
7. The Defendant seeks a peremptory order for disclosure of all the relevant documents by the Plaintiff and the counterclaim defendants, though this is not an order sought in his motion. The basis that he is seeking such an order is the alleged non- disclosure of all the relevant materials. The Plaintiff as well as counterclaim defendants object to this request of the Defendant.
   
8. The court can grant unless order in the process of case management in order to expedite a matter that had experienced inordinate delay but such peremptory order has to be specific. The order for 'an affidavit verifying such list limited to the documents relating to the matter in question in this action' is not clear as the Defendant has a substantive counterclaim. What is relevant to the Defendant cannot be decided by the Plaintiff or counterclaim Defendants, as it is a subjective issue. The allegation of the Defendant is that the Plaintiff and the counterclaim defendants have not disclosed all relevant documents, but the remedy is not to seek unless order. The 2nd Defendant earlier made an application for such specific discovery and I have dealt that issue in a previous ruling in this case and do not wish to reiterate the principles involved in such discovery.
   
9. If an unless order is granted in a vague manner that can be subject to different interpretation and the non-compliance will itself be an issue that will lead to further dispute between the parties and this will further delay the action.
   
10. The Defendant has earlier made an application for further and better particulars and I have already delivered my ruling and I have laid down the principles and the reasons for rejection. I cannot re-visit the same issue again upon an oral application of the Defendant.
    
11. In Marcan Shipping (London) Ltd Vs George Kefalas et al [2007] EWCA Civ 463 Lord Justice Pill cited the case of Raja v Van Hoogstraten [2004] EWCA Civ 968; [2004] 4 All ER 793 Morore-Bick LJ's judgment and stated at paragraph 48 as follows
    

.................

'c) There was real doubt, the court held, as to what the defendant was required to do to comply with the disclosure obligations and there was no firm foundation for dindings of continued contempt.'

12. This indicates the importance of the unless order being precise and unambiguous, if not that can defeat the primary purpose of the unless order and further delay and unnecessary cost to the parties to litigation.
    

C. CONCLUSION

13. The application for unless order is overruled on the basis that the court cannot grant the guillotine order without being precise as to what document that are to be ordered for discovery. If peremptory order is granted, the parties should know exactly what they have to do, and what the failure to do so would result without the intervention of the court. The awarding of unless order is a discretionary remedy and should be applied carefully. If a vague order is made the parties may abuse it for their advantage making further delay in the action.
    

D. FINAL ORDERS

14. The Defendant is granted 14 days to file and serve the proposed re-amended counter claim in the form of supplementary affidavit, with necessary averments and documents if any, and the Defendant is granted 14 days there after to file a response if needed and the Defendant is granted further 14 days to reply to the response and the matter is re-fixed for hearing on the leave to amend the counter claim.
    

Dated at Suva this 30th day of July, 2012.

Master DeepthiAmaratunga
High Court, Suva