Earnshaw v Coral Surf Resort Ltd [2019] FJHC 200; HBC236.2008 (15 March 2019)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 236 of 2008

NICOLE EARNSHAW of 15 Rutherglen Drive, St. Andrews, New South Wales,

Australia.

PLAINTIFF

CORAL SURF RESORT LIMITED a limited liability company having its registered office at Pricewaterhouse Coopers, 52 Narara Parade and SILVER BEACH PROPERTIES LIMITED a limited liability company having its registered office at Pricewaterhouse Coopers, 52 Narara Parade, Lautoka trading as “The Naviti Resort”.

DEFENDANTS

Counsel : Mr. Dorsami Naidu for the plaintiff.
(Ms.) Nilema Samantha for the defendants.

Date of hearing : Monday, 10^th December 2018.
Date of ruling : Friday, 15^th March 2019.

RULING

(1) This is an application filed by the plaintiff seeking the following orders;

(i) That leave be granted to the plaintiff to call the evidence of its medical expert Associate Professor Arun Agrawal of Sydney Australia using Skype Video conferencing on 8^th and 9^th of November 2018.

(ii) The costs of this application be costs in cause.

(2) The application was made by summons dated 01^st November 2018 and supported by an affidavit sworn on 31^st October 2018 made by Mr. Jadhav Prakashan, an associate solicitor in the firm of Messers Pillai Naidu and Associates, the solicitors for the plaintiff. (The trial scheduled for 08^th and 09^th November, 2018 has been vacated. The trial is re-fixed for 30^th and 31^st May, 2019).

(3) The application was opposed. An affidavit in opposition sworn on 16^th November 2018 by ‘Ranjani Narayan’, an Insurance Officer in the employ of ‘New India Assurance Company Limited’, the insurer for the defendants, was filed on behalf of the defendants. The plaintiff did not respond to the defendant’s affidavit in opposition.

(4) Objections were taken by the defendants to the affidavit made by Mr. Jadhav Prakashan in support of the plaintiff’s summons. Counsel for the defendant’s submitted that the affidavit was defective.

(5) The first and the major argument of the defendants is;

“Jadhav’s affidavit should not be admitted in evidence by the Court as it does not contain a valid authority from the plaintiff for him to swear the affidavit on her behalf. Mr Jadhav is a solicitor employed by the firm who act for the plaintiff in this matter.”

(6) In support of that submission, counsel for the defendants referred me to the decision of the High Court in ‘Bulileka Hire Services Ltd v Housing Authority’, (2016) FJHC 322. In that case a party was relying on an affidavit made by a solicitor in support of an application to seek leave to appeal and a stay of proceedings. The High Court in that case had held that the affidavit made by the solicitor was not a proper affidavit and had struck it out. Justice Seneviratne in that case at paragraph (13) of the ruling had provided his Lordship’s reasoning as follows;

“... A solicitor cannot while representing his client before the court at the same time be his witness. The solicitor of a particular litigant can also be construed as his agent but the relationship between the solicitor and the client is different to that of an agent and the principle... They cannot assume that status of the clients and do everything what is expected of them... a solicitor cannot be a substitute for his client.”

(7) In response, counsel for the plaintiff relied upon the decision of the High Court in ‘Diana Giesbrecht v Rowena Grace Cross’ (HBC 540 of 2007, date of judgment 05^th October 2015) and submitted that the court had allowed the both defendants in that case to participate in the entire hearing via ‘skype’ based on the supporting affidavit made by the law clerk of the defendant’s solicitors.

(8) Let me first turn to the solicitor’s affidavit in support of the plaintiff’s application.

Solicitor deposed;

1. THAT I am an Associate solicitor in the firm of Messes Pillai Naidu and THAT I am an Associate solicitor in the firm of Messers Pillai Naidu

Associates and we act on behalf of the Plaintiff in this action.

2. THAT I have carriage of file under the supervision of my principal Mr Dorsami Naidu.
   
3. THAT in so far as the contents of this Affidavit is within my personal knowledge it is true in so far as it is not within my personal knowledge, it is true to the best of my knowledge and information and belief.
   
4. THAT the plaintiff intends to tender and rely on the served expert medical report of Associate Professor Arun Aggarwal, Neurology and Rehabilitation/Pain Specialist, dated 19 March 2015. Associate Prof. Aggarwal is a specialist doctor practicing in Sydney, Australia. The plaintiff is unaware whether the defendant wishes to cross-examine Ass Prof Aggarwal on his report, and asks that this be made clear. If the defendant does do require unnecessary expense and inconvenience would be avoided if such cross-examination were undertaken by means of Skype or similar means, with the doctor remaining in Sydney.
   

(9) The sole ground deposed in solicitor’s affidavit in support of the application is;

...unnecessary expense and inconvenience would be avoided if such cross-examination were undertaken by means of Skype or similar means, while the doctor remaining in Sydney.

(10) No effort has been made to disclose the “inconvenience” averred nor is it disclosed that the witness has refused to testify in Fiji.

(11) In solicitor’s affidavit in support, this court is asked to consider the inconvenience and expense involved in bringing Associate Prof. Aggarwal to Fiji from Australia to give evidence in the trial. Indeed, the plaintiff’s ‘expert’ witness evidence relates to a secondary issue rather than to the primary question of negligence.

(12) Of course, I do not deny for a moment that this Court has a wide discretion to grant the plaintiff’s application where it “... appears necessary for the purposes of justice”. All I am saying is that the “purposes of justice” however are not only served by advancing the interests of plaintiff. These must be carefully weighed against the interest of defendants and all the circumstances of the case.

(13) Leave all that aside for a moment. As regards counsel for the defendant’s first point, as noted earlier, the affidavit in support of the plaintiff’s summons is sworn by Mr Jadhav Prakashan, an associate solicitor in the firm of Messers Pillai Naidu and Associates, the solicitors for the plaintiff.

(14) Order 41, r.1 (4) provides;

(4) Every affidavit must be expressed in the first person and, unless the Court otherwise directs, must state the place of residence of the deponent and his occupation or, if he has none, his description, and if he is, or is employed by, a party to the cause or matter in which the affidavit is sworn, the affidavit must state that fact.

(Emphasis added)

(15) In the ‘Supreme Court Practice’ (1967) (The White book) the following note
appears at page 117;

“The affidavit may be made by the plaintiff or by any persons duly authorized to make it. If not made by the plaintiff, the affidavit itself must state that the persons making it is duly authorized to do so- Chigwin v Russell (1910) 27 T.L.R. 21.”

(16) Returning back to the affidavit in support of the plaintiff’s summons, I note with concern that there is no assertion in the affidavit that the deponent was authorized by the plaintiff to depose to the facts stated therein. The solicitor did not state that he was authorized to make the affidavit. When an affidavit is made in support of a summons under the High Court Rules by a person other than the plaintiff, it is necessary to show that the person making the affidavit was duly authorized to make it.

(17) This court therefore concludes that the solicitor’s supporting affidavit is defective and a nullity because there is no ostensible authority to prove that the solicitor was duly authorized to swear on behalf of the plaintiff. Therefore, I give it no weight whatsoever. I accept counsel for the defendant’s argument on the first point. However, the court has the jurisdiction to allow the affidavit to be supplemented. The defect may be remedied by supplementary affidavit and the court will look at the matter on merits. See; Les Fils Dreyfyus v Clarke (1958) 1 WLR 300.

(18) To avoid any misunderstanding, let me add this. I do not for one moment say that solicitors must not make affidavits on behalf of parties whom they represent. All I am saying is that solicitors should be authorized by the parties whom they represent to make affidavits. One word more, the prohibition is actually on the same solicitor who made the affidavit also appearing in court and conducting the proceedings on behalf of the party.

(19) Secondly, counsel for the defendant’s says that the affidavit is in a third person’s narration.

(20) The paragraph (4) of the affidavit is in these terms:

4. THAT the plaintiff intends to tender and rely on the served expert medical report of Associate Professor Arun Aggarwal, Neurology and Rehabilitation/Pain Specialist, dated 19 March 2015. Associate Prof. Aggarwal is a specialist doctor practicing in Sydney, Australia. The plaintiff is unaware whether the defendant wishes to cross-examine Ass Prof Aggarwal on his report, and asks that this be made clear. If the defendant does do require unnecessary expense and inconvenience would be avoided if such cross-examination were undertaken by means of Skype or similar means, with the doctor remaining in Sydney.
   

(Emphasis added)

(21) The deponent deposed ‘ the plaintiff intends’. This is not proper. The deponent does not express in first person. The plaintiff offends Order 41, r. 4(1). I accept counsel for the defendant’s argument on the second point.

(22) Thirdly, counsel for the defendants says that the affidavit does not disclose the professional address of the deponent.

(23) This objection had not been raised earlier than the hearing in this court. Had it been, then the minor error could have been remedied, and accordingly I do not uphold this technical point.

(24) Finally, counsel for the defendants says that the deponent does not state the sources and grounds of his information.

(25) Let me go back to paragraph (4) of the affidavit;

4. THAT the plaintiff intends to tender and rely on the served expert medical report of Associate Professor Arun Aggarwal, Neurology and Rehabilitation/Pain Specialist, dated 19 March 2015. Associate Prof. Aggarwal is a specialist doctor practicing in Sydney, Australia. The plaintiff is unaware whether the defendant wishes to cross-examine Ass Prof Aggarwal on his report, and asks that this be made clear. If the defendant does do require unnecessary expense and inconvenience would be avoided if such cross-examination were undertaken by means of Skype or similar means, with the doctor remaining in Sydney.
   

(26) Order 41, r.5 provides;

Contents of affidavit (O.41, r.5)

5. –(1) Subject to Order 14, rules 2 (2) and 4 (2), to Order 86, rule 2 (1), to paragraph (2) of this rule and to any order made under Order 38, rule 3, an Affidavit may contain only such facts as the deponent is able of his own knowledge to prove.

(2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof.

The wording of Order 41, r.5 is perfectly clear to me; “An Affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof.”

The application by the plaintiff seeking leave to lead evidence of the medical expert via ‘skype’ is interlocutory proceedings. It is true the affidavit is defective because it did not show what means the deponent had of knowing the facts he deposed to.

It is obvious from r.5 (2) itself that it operates as an exception from the primary rule of evidence stated expressly in Order 41, r.5 (1) that a person may only give evidence as the “facts” which he ‘is able of his own knowledge to prove’. R.5 (2), by including statements of information or belief plainly allows the adduction of hearsay. But such statements will have no ‘probative value’ unless the sources and grounds of the information and belief are revealed. The purpose of r.5 (2) is to enable a deponent to put before the court in interlocutory proceedings, frequently in circumstances of great urgency, facts which he is not able of his own knowledge to provide but which, the deponent is informed and believes, can be provided by means which the deponent identifies by specifying the original sources and grounds of his information and belief.

By having to reveal original source (not the immediate source), the deponent affords a proper opportunity to another party to challenge and counter such evidence, as well as enabling the court to assess the weight to be attributed to such evidence.

The importance of these dual disclosures is obvious as was stated by Lord Alverstone C.J over a century ago in J.L Young Manufacturing CO. Ltd. V J.L. Young Manufacturing Co. Ltd [1900] UKLawRpCh 177; (1900) 2 Ch. 753 at 754:

‘In my opinion some of the affidavits in this case are wholly worthless and not to be relied upon. I noticed that in several instances the deponents make statements on their Information and belief’ without saying what their source of information and belief is, and in many respects what they so state is not confirmed in any way. In my opinion so-called evidence on ‘information and belief’ ought not to be looked at all, not only unless the Court can ascertain the source of the information and belief but also unless the deponent’s statement is corroborated by someone who speaks from his own knowledge. If such affidavits are made in future, it is as well that it should be understood that they are worthless and ought not to be received in evidence in any shape whatever.’

As noted above, r. 5 (2) provides for an exception on interlocutory proceedings, permitting the inclusion of hearsay and secondary evidence in affidavits filed in such proceedings. The relaxation is allowed only if the deponent discloses ‘the original source’ of his information and ‘the grounds’ of his belief.

The need for and the importance of complying with the Rules were emphasized as far back as 1983 by the court in “Kenneth John Hart v Air Pacific Ltd”, Civil Appeal NO. 23 of 1983.

In 1995, the Supreme Court, the highest Court in the land warned; “We now stress, however, that the Rules are there to be obeyed, in future practitioners must understand that they are on notice that noncompliance may well be fatal to an appeal” See; Venkatamma v Watson, Civil appeal No. CBV 0002 of 1992 at p.3 of the judgment.

In August, 1997, the Court of Appeal in Sitiveni Rabuka & Others v Ratu VIliame Dreunamisimisi & Others (Civil Appeal No. ABU0011 of 1997) held as follows-

“In all the circumstances, having regard to the history of the proceedings in the High Court and bearing in mind what the Supreme Court said in Venkatamma, we have decided that the proper course for us to follow now is to reject the application for further time to comply with rule 17 and to dismiss the appeal.”

In the decision of the Privy Council in Ratnam v Cumarasamy and Another [1964] 3 All E.R at page 935; Lord Guest in giving the opinion of the Board to the Head of Malaysia said, inter alia:

“The rules of court must, prima facie, be obeyed, and, in order to justify a court in extending the time which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation. The only material before the Court of Appeal was the Affidavit of the appellant. The grounds there stated were that he did not instruct his solicitor until a day before the record of appeal was due to be lodged, and that his reason for this delay was that he hoped for a compromise. Their lordships are satisfied that the Court of Appeal was entitled to take the view that this did not constitute material on which they could exercise their discretion in favour of the appellant. In these circumstances, their lordships find it impossible to say that the discretion of the Court of appeal was exercised on any wrong principle.”

On the strength of the authority in the above judicial decisions, I wish to emphasize that the rules are there to be followed and non-compliance with those rules is fatal.

ORDERS

(i) The preliminary objections are upheld.

(ii) The paragraph four (04) of the supporting affidavit of the solicitor sworn on 31^st October, 2018 is expunged.
(iii) In the interest of justice, the court grants leave to the plaintiff to cure defects in the
supporting affidavit filed on 31^st October, 2018 by supplemental, affidavit.

(iv) There will be no order as to costs.

Jude Nanayakkara
[Judge]

At Lautoka,

Friday, 15^th March, 2019