IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO: 16 OF 2015

BETWEEN:

USHA KIRAN of Naqere, Savusavu, Bank Officer
PLAINTIFF

AND:

FIJI NATIONAL PROVIDENT FUND BOARD a corporate body established under the provisions of the Fiji National Provident Fund Act (Cap. 219) and having its principal place of business at the provident Plaza 2, 33 Ellery Street, Suva
DEFENDANT

Appearances: Mr. Kohli of Kohli& Singh for the Plaintiff
 Mr. Ratule of Gibson & Co for the Defendant

RULING

Background

1. By a statement of claim filed on the 9 June 2015 the plaintiff claims from the defendant all of her late husband's contribution to the Fiji National Provident Fund (hereinafter the FNPF). She claims that her husband had promised her before he died that his FNPF contribution would belong to her. In the claim she states that during her late husband's life he had never told her that she was not the nominee of his provident fund.

2. On the 25 September the plaintiff's counsel made an application to withdraw the matter without costs, this was objected by the defendant. However both parties agree that I should rule on whether the defendant is entitled to costs if the matter is withdrawn.

Determination

3. The chronology of events is a helpful guide in deciding whether the plaintiff is liable for costs. Notwithstanding that the general rule is that costs follow the event this is not always so because the Court's power to award costs is always discretionary. In other words there may be certain circumstances in which costs can be awarded against a winning party if their behavior prolongs the matter unnecessarily. For example if the matter went to mediation and one of the parties did not agree to the sum offered but at trial a sum similar to or less than what was offered became the judgment sum, an order for costs may go against them even though he won the case. Tactically a litigant may choose to withdraw a matter when the realization is that the litigation may fail. This is the case here and a litigant who choses this option should be commended for it.

Chronology

1.	09 June 2015: Filing of writ of summons and Motion to stop payment of funds;

2.	10 June 2015: Service of writ of summons & Motion;

3.	12 June 2015: Acknowledgement of service filed;

4.	16 June 2015: 1st call before Master hg date set 22/6;

5.	22 June 2015: Plaintiff did not appear-motion struck out by Judge with costs of $500:00 to the defendant;

6.	23 June 2015: Further motion to re-instate matter filed and dated 24 June 2015;

7.	24 June 2015: Matter came before the same Judge and the motion to re-instate withdrawn- application to be by summons, only the plaintiff attended;

8.	24 June 2015: Defendant served with motion of 23 June;

9.	30 June 2015: Statement of Defence; matter called before Master and adjourned to 1 July;

10.	01 July 2015: Mattercalled before Master and further adjourned to 6th July both parties attended;

11.	02 July 2015: Summons filed by plaintiff for injunctive relief dated 10 July 2015;

12.	06 July 2015: Matter called before Master Summons put before the Judge on 10 July 2015 for hg.;

13.	07 July 2015: Order of 22 June sealed by defendant;

14.	10 July 2015: Matter before judge –directions on the filing of affidavits given and defendant prevented from distributing funds until hearing- adjourned to 16 September for review and to set matter for hearing;

15.	15 July 2015: Order of 10th July sealed;

16.	21 July 2015: Affidavit in opposition to the affidavit in support of summons filed by the defendant;

17.	16 September 2015: Plaintiff's Counsel informed the Master that he wishes to obtain instructions to withdraw matter, matter adjourned to 25 September 2015, both parties present;

18.	25 September 2015: Plaintiffs Solicitor wants to withdraw matter but makes an application for no costs to be awarded – application opposed, defendant wants costs. 
4. It is clear from the chronology that the matter took approximately three months before the plaintiff sought leave to withdraw it. It is not very long comparatively speaking, during which time though the defendant had filed a defence but the matter was completed when facts disclosed at the interlocutory stage made the plaintiff's counsel realize that the claim need not go any further. 

Determination

5. The Counsel for the plaintiff submitted as a ground for costs not be awarded against his client is that enquiries were made by his client as to whether she was the nominee to her husband's FNPF contribution. This information was denied to her and as a result she instituted this proceeding. The plaintiff's Counsel refers to the plaintiff's affidavit in support of the application for injunctive relief where she states at paragraphs 11 & 12 that she went to the FNPF Labasa office on the 3 June 2015 and enquired about the amount outstanding in her husband's account but that no information was given to her. She was only told that she would be notified in writing. As a result she instructed her counsel to institute proceedings. In other words had she been informed from the beginning she would not have instituted proceedings. 

6. This affidavit was responded to by a Mr. Peni Gonelevu from the FNPF who states that such information is confidential not only in regards to the members account but also to the member's nominee. The only person to which this information can be released to is the member's nominee.

7. The defendant's Counsel submits that they are entitled to costs of $2,470:00 which consists of airfares, hotel accommodation and incidentals. In its written submission opposing the injunctive relief sought it refers to the statutory provisions under which it functions and the defects contained in the summons seeking relief. It is clear that no action shall lie against the Board in the exercise of its functions unless it was not acting in good faith or with reasonable care. The plaintiff came to realize the difficulty it was facing once the statutory provisions became clear and it should be commended for withdrawing the matter when it did. 

8. It is clear from the pleadings that the plaintiff thought that she was her husband's FNPF nominee although this thought was put to doubt when she was not given any information from the defendant's Labasa office. Being the wife of a husband who nominated one of his siblings to be his nominee not only came as a surprise to her but may have raised some question on what may have been a long relationship. This fact together with the statutory right of the defendant to respect the confidentiality of its members created an abyss between the two conflicting rights. One which is statutorily defined and one a common law right by virtue of being a wife from which she may receive some equitable relief. Such a situation requires a careful exercise of the Courts discretion as to costs.

9. Order 62 rule 3 states:-

 When costs to follow the event (O.62, r.3)
3.-(1) Subject to the following provisions of this Order, no party shall be entitled to recover any costs of or incidental to any proceedings from any other party to the proceedings except under an order of the Court.

(2) If the Court in the exercise of its discretion sees fit to make any order as to the costs of or incidental to any proceedings, the Court shall, subject to this Order, order the costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs….

10. The above provisions recognizes that normally costs follow the event but it also gives the Court the discretion to make other costs orders depending on the circumstances of the matter.

11. The defendant is quite right in not disclosing to the plaintiff any information pertaining to the deceased's members account as well as the members nominee but it could at least indicate to the plaintiff that she is not the nominee. In this way the defendant has not disclosed any confidential information about the member's nominee, nor details of the members account, but informed the plaintiff that she is not the nominee. This information is not confidential and does not infringe on the members rights, it is rather a useful information clarifying where the plaintiff stood in regards to her husband's contribution to the fund. In my view they are not disclosing any confidential information at all, nothing about who the nominee is or the amount kept in the fund has been disclosed. Neither has there been a breach of the Board's duty to act in good faith sufficient to give rise to an equitable action for breach of confidence against it. The simple answer that the plaintiff is not the nominee is sufficient, this she was not given. 

12. Perhaps one of the difficulties is in understanding the nature of the duty of confidence given to the Board. This duty is the equitable duty of confidence to uphold, protect and enforce the confidential relationship and trust between the Board as the possible discloser and the member. Once that is understood the Board could confidently say to the plaintiff that she is not the nominee without being worried that this information is in breach of the duty of confidence. It would be different if the plaintiff's husband was alive, in this instance any information on whether she is the nominee or not could not be disclosed without his consent.

13. Had the plaintiff been informed that she is not the nominee she may not have instituted the action and thereafter incurred costs.

14. Due to the circumstances of this matter as alluded to above I am of the view that it is proper that the Court should exercise its discretion and make another order as to costs. That is that in this instance the costs need not follow the event and I therefore order that both parties bear their own costs.

Order

15. I therefore make the following orders:-

 1. That the matter is discontinued and struck out; and

2.	 That each party are to bear their own costs.

H A Robinson
MASTER
 High Court, Labasa

 13 November 2015