Lata v Chand [2012] FJHC 1288; HBC99.2006 (17 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 99 of 2006

BETWEEN:

PADUM LATA, of Naulu Road, Nakasi, Nasinu, Salesgirl in personal proprietor 2. AND as the Administratix of the estate of her late husband Mohammed Kamal late of Nakasi, Nasinu, deceased.
PLAINTIFF

AND:

JAGDISH CHAND, of Lot 33, Namuku Street, Samabula, Suva, Labourer as the nominal person to act as the administrator in the estate of his said brother Suresh Chand.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. Daniel Singh for the Plaintiff
Mr. Nagin H.K for the Defendant

Date of Hearing: 9th February, 2011
Date of Ruling: 17th August, 2012

RULING

A. INTRODUCTION

1. The Defendant in its notice of motion seeks to add two defendants and also to amend the statement of Defence accordingly. The amendment of the statement of defence is needed if the addition of the two defendants are granted hence the proposed amendment is dependent on the application for addition of two Defendants. The Defendant's motion state that the said application is made in terms of the Order 15 rule 6 and Order 20 rule 5. One of the intended Defendants, who was the driver of the vehicle on which the Plaintiff and the deceased were passengers, named in the writ of summons but later amended and the said party was deleted from the amended writ as well as from the statement of claim. All the pre-trial steps were completed and the copy pleadings were filed, awaiting a hearing of the action, when this application was made by the Defendant to add two more parties as the Defendants.
   

B. FACTS

2. The Plaintiff as well as her deceased husband sustained personal injuries due to a motor accident pertaining to collision of mini-van and a taxi, while they were passengers in the said mini van.
   
3. The Plaintiff filed this action for damages for the injuries sustained by her and for the death of her husband, who succumbed to injuries, as the administrix of the estate of her husband, against the both drivers of the vehicles that collided initially and later amended the writ to include only the present Defendant, and this amendment was sought in 2008 and it was granted by the court.
   
4. The action proceeded with only one Defendant and the minutes of the pre-trial conference was filed 19th November, 2008 and the copy pleadings were filed on 30th January, 2009 and the action has completed all the pre-trial steps and awaited for the trial.
   
5. The present notice of motion was filed by the Defendant, on 16th August, 2010 seeking amendment of the pleadings and for addition of the Defendants.
   

C. ANALYSIS

6. Order 15 Rule 6 empowers the court to make an order for addition or substitution of a party. The said provision states as follows:-
   

"(1) No cause or matter shall be defeated by reason of the misjoinder of nonjoinder of any party: and the Court may determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

(2) Subject to the provisions of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application-

(a) .......;

(b) Order any of the following persons to be added as a party, namely-

(i) Any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or

(ii) Any person between whom any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

7. The 'opinion of the court' and 'just and convenient to determine' refers to in the above provision grants the court a discretion, but this discretion is only relating to the addition or substitution before the expiry of the limitation period in terms of the limitation act and does not apply to the applications made after the expiration of the limitation period as in this case before me.
   
8. Order 15 rule 6 (5) states as follows:
   

'No person shall be added or substituted as a party after the expiry of any relevant period of limitation unless either –

1. The relevant period was current at the date when proceedings were commenced and it is necessary for the determination of the action that the new party should be added, or substituted, or
   
2. The relevant period arises under the provisions of sub paragraph (i) of the proviso to paragraph 4(1)(d) of the Limitation Act and the Court directs that those provisions should not apply to the action by or against the new party. (emphasis is added)
   

9. It is clear that the Court no longer exercises the discretion granted in the Order 15 rule 6 (2) when the party who intends to add a party makes the application after the expiry of the limitation period and the party who is making the application has to satisfy the court that it is necessary for the determination of the action that the new party should be added, or substituted. This is a qualification that has to be fulfilled before the said parties are added to this case. The cause of action arose in 2004 and the application for substitution was made only in 2010, that is six years after the incident and clearly out of the limitation period. So, in order to allow the addition the court must be satisfied that intended parties are 'necessary' to the action.
   
10. The word 'necessary party' is interpreted in an exclusive and very restrictive manner in the Order 15 rule 6 (6) and it states as follows:
    

"(6) The addition or substitution of a new party shall be treated as necessary for the purposes of paragraph (5) (a) if, and only if, the Court is satisfied that-

1. The new party is a necessary party to the action in that property is vested in him at law or in equity and the plaintiff's claim in respect of an equitable interest in that property is liable to be defeated unless the new party is joined; or
   
2. The relevant cause of action is vested in the new party and the plaintiff jointly but not severally; or
   

100. The new party is the Attorney-General and the proceedings should have been brought by relator proceedings in his name; or
     

4. The new party is a company in which the plaintiff is a shareholder and on whose behalf the plaintiff is suing to enforce a right vested in the company; or
   
5. The new party is sued jointly with the defendant and is not also liable severally with him and failure to join the new party might render the claim unenforceable." (emphasis is mine)
   

11. Supreme Court Rules (1988) p 184 15/6/6 states as follows
    

'Adding or substituting defendants- Prima facie, the plaintiff is entitled to choose the person against whom to proceed, and to leave out any person against whom he does not desire to proceed.

........

Under this rule, the Court has power to add or substitute a defendant on the application of the defendant, and also of a person not already a party, and in either case against the wishes of the plaintiff.

........

But a defendant against whom no relief is sought by the plaintiff will generally not be added against the wish of the latter (Hood-Barris v Framptom & Co [1924] W.N. 287); a third party notice is in such a case usually the proper course. Such a defendant can, however, be added in a proper case (Dollfus Mieg et compagnie S.A v Bank of England)

Where defendants applied for an order that one D. be joined in an action with D's consent but against the will of the plaintiff D. was joined. The test was held to be: "would the order for which the plaintiff was asking in the action directly after the intervener, not in his commercial interest, but in the enjoyment of his legal right?"(Amon v Raphael Tuck & Sons Ltd [1956] 1 Q.B 357).

.....

Where defendants applied to join additional defendants against the plaintiff's wishes for the sole purpose of adding additional plaintiffs in their counterclaim and the presence of the additional parties was not necessary for the determination of the issues as pleaded between the plaintiff and the defendants the application was refused (Atid Navigation Co Ltd v Fair play Towage and Shipping Co Ltd [1955] 1 W.LR 336 [1955] 1 All ER. 698.'

12. At the oral hearing of the present application by the counsel for the Defendant seeking to add the Driver and the owner of the vehicle on which the Plaintiff and the Deceased were travelling at the time of the collision of the two vehicles, the Plaintiff's counsel stated that Defendant cannot add one or more Defendants, but did not refer to any case law or provision of law. Though the counsel for the Defendant, understandably, did not agree with said contention he did not submitted any case law or did not even referred to Supreme Court Rules(White Book). After going through the relevant paragraphs in the White Book (relevant paragraphs are quoted above) it is wrong to state that a Defendant cannot add another Defendant, as it is possible in certain instances, but in this case the Defendant's application for addition of other Defendants cannot be allowed as it was done after the time period for limitation has expired and the Defendant has not fulfilled the requirements in Order 15 rule 6 (6) as the Defendant has failed even to address the vital issue in its affidavit in opposition or in the oral submissions.
    
13. It is clear that the intended parties to be added do not fall in to any of the categories restrictively defined in the said provision. The application for the addition of the parties as defendants is rejected. The summons for amendment to the statement of defence is also refused as the said amendment is dependent on the application for addition of parties. I assess the cost of this application summarily at $750.
    

D. FINAL ORDERS

1. The motion seeking amendment and addition of the parties filed on 16th August, 2010 is struck off.
   
2. The Plaintiff is granted a cost of $750 assessed summarily to be paid within 21 days.
   

100. The matter is referred to registry to allocate to a judge for trial at earliest opportunity granting priority to the matter as it involved a death of the Plaintiff's husband and personal injury to the Plaintiff, due to a motor accident happened in 2006.
     

Dated at Suva this 17th day of August, 2012.

Master Deepthi Amaratunga
High Court, Suva