IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CASE NUMBER: HBC 0146 of 2007

BETWEEN:

SHIU CHANDAR
PLAINTIFF

AND:

POST FIJI LIMITED
DEFENDANT

Appearances: Mr. R.J. Singh for the plaintiff.
 Ms. Roslin Sharma for the defendant.
Date/Place of Judgment: Monday 12th March, 2012 at Suva.
Coram: The Hon. Madam Justice Anjala Wati.

JUDGMENT

CATCHWORDS:
PRACTICE & PROCEDURE: – AMENDMENT OF PLEADINGS – statement of defence – nature of amendment- amendment after expiration of limitation period- prejudice to the parties - amendment allowed.

LEGISLATION:
The High Court Rules, 1988; Order 20 Rule 5(2) and (5).

The Cause

1.	The defendant seeks to amend its statement of defence to the plaintiffs claim that he was wrongfully terminated from his employment on the 29th day of August 2001, the claim being filed on 3rd April, 2007.

2.	The defendant's initial defence refuted unlawful termination. The rest of the statement contained bare denial of all other allegations in the claim.

3.	The grounds on which the amendment is sought is that when the plaintiff instituted the action against the defendant, it appointed and instructed Fa & Co lawyers to represent its interest. The lawyers failed to advise the employer that it could make a counter-claim against the plaintiff for damages for breach of the contract of employment. The amendment is necessary and important in the interest of the employer.

4.	The proposed amendment seeks to include a counter-claim against the plaintiff for fraudulently using, converting and/or misappropriating the employer's funds of $41,290.00. The employer thus claims general damages for breach of employment.

The Submissions

5.	Ms. Sharma stated that the amendment is necessary to fully traverse the issue of termination. The plaintiff has not been taken by surprise and nor is the amendment a completely new defence based on new facts or evidence outside the knowledge of the plaintiff. The plaintiff was tried in Magistrates Court for conspiracy to defraud but acquitted due to lack of evidence. At the criminal trial it was noted by the Court that the plaintiff had used his discretionary powers as the postmaster to allow for the TMO transaction by way of cheque instead of cash. The employer needs to prove by way of facts how the action was a fraudulent act.

6.	Ms Singh further submitted that the defendant has not acted with an ulterior motive and the amendment will put the matters of real concern before the Court.

7.	Mr. Ronal Singh stated that the application is made too late in the day after the matter had been set down for hearing on various occasions. Mr. Singh stated that at one stage the employer had even proposed settlement and his client had refused. The aspect of amendment then followed. Mr. Singh stated that the amendment is not made in good faith. The aspect of fraud could have been included initially. It was not and so it should be disallowed. Further, Mr. Singh stated that the aspect of fraud has been decided. The Magistrates Court has delivered a verdict saying that there was no fraud by the plaintiff and so any amendment is just a sham.

8.	Ms. Sharma respondent that in Magistrates Court the employer could not produce evidence to establish fraud but in this trial they would be able to give evidence of fraud and justify lawful termination.

The Law and Analysis

9.	The amendment that is sought is indeed late. I do however note that the defendant at all times had denied the aspect of unlawful termination. It maintained that the termination was lawful but in its initial statement of defence it failed to clarify or plead why the employee was terminated which supported its version of termination.

10.	Without allowing the amendment on fraudulent activities of the plaintiff, the defendant will be barred at the trial for adducing evidence on fraud to support its version of the termination. It is thus necessary that to try the core issue of whether the termination was lawful the amendment be granted.

11.	The defendant is raising a counter-claim for breach of contract. This is not something that the plaintiff is facing for the first time. In fact he had been tried by a lower Court on the employer's complaint of fraudulent activities which gave rise to a charge against the plaintiff for conspiracy to defraud. It was important that these facts be pleaded in the defence but the defendant failed to do so for reasons unbeknown to me. Whatever may have been the reason for the omission, I do not find that the defendant has a bad motive when it seeks to include in its defence what it should have done from the very beginning.

12.	It is another matter that the plaintiff was acquitted. The criminal standard of proof is higher than that of the civil standard of proof in fraud although a higher standard than that of balance of probability is normally required in cases of fraud. The plaintiff always knew the employer's allegation of fraud and I do not find that he will suffer an injury which cannot be compensated by an order for cost for late amendment.

13.	The allegation of fraud though introduced for the first time was always around and in existence for being the major reason for termination and so it should be allowed to give efficacy to the employer's defence. The amendment to include a counterclaim is from the same fact of termination and I see no reason why the same should be disallowed: Order 20 Rule 5(2) and (5) of the High Court Rules, 1988.

14.	The plaintiff is entitled to cost of the late amendment because he will be put to filing a reply to defence and defence to counterclaim. A fresh list of documents may have to be filed and a fresh pre-trial conference would be necessary. A lot of time and cost will be involved in filing the fresh documents.

Final Orders

15.	The defendant is given 7 days to file and serve its amended statement of defence and counter-claim.

16.	The plaintiff is granted 14 days thereafter to file reply to defence and defence to counter-claim.

17.	The defendant is given 7 days thereafter to file reply to defence to counter-claim.

18.	Each party to thereafter file their Affidavit verifying List of documents within 14 days.

19.	Inspection and discovery of documents to take place within 14 days thereafter.

20.	Thereafter, within 14 days, the parties to enter into Pre Trial Conference and file the minutes of the same in Court.

21.	Thereafter, the plaintiff must file the copy pleadings within 14 days.

22.	When the matter is ready for trial, the plaintiff must file a summons to enter action down for trial.

23.	The Master of the Court to monitor the progress of the matter.

24.	The Master of the Court to make necessary orders and directions upon non-compliance with any one of my orders.

25.	The defendant must pay to the plaintiff costs of $1,500 for the late amendment.

26.	Orders accordingly.

Anjala Wati
Judge
12.03.2012

To:

1.	Gordon & Chaudhry Lawyers, counsel for the plaintiff.
2.	Ms. Roslin Sharma, counsel for the defendant.
3.	File: HBC 0146 of 2007.