Organica Fine Produce (Fiji) Pte Ltd v Williams & Gosling Ltd [2019] FJHC 774; HBC11.2019 (24 July 2019)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 11 of 2019

BETWEEN : ORGANICA FINE PRODUCE (FIJI) PTE LTD

FIRST PLAINTIFF

AND : JAVIER CARLOS IZQUIRDO

SECOND PLAINTIFF

AND : WILLIAMS & GOSLING LTD

FIRST DEFENDANT

AND : DAVID VAUGHAN AIDNEY

SECOND DEFENDANT

AND : EDDIE YUEN

THIRD DEFENDANT

APPEARANCES/REPRESENTATION

PLAINTIFFS : Mr Izquirdo as Managing Director for the First Plaintiff

and in Person as the Second Plaintiff

DEFENDANTS : Mr P Kumar [Mitchel Keil Lawyers]

RULING OF : Acting Master Ms Vandhana Lal

DELIVERED ON : 24 July 2019

INTERLOCUTORY RULING
Application To Examine Witness Vice Voce On Oath
Application for Adjournment of Hearing

1. The Plaintiffs on 19 June 2019 filed a Summon for an order that “the Third Defendant namely Eddie Yuen also known as Edward Dixon Yuen gives evidence by deposition and be examined viva voce on oath before a Judge, an Officer of the Court or some other person, at any place, of any person with respect to the Third Defendant’s three sworn affidavits filed in these proceedings on the application for security for cost filed on 10 May 2019”.
   

The Plaintiffs have made said application pursuant to Order 39 rule 1 of the High Court Rules and Inherent Jurisdiction of the Court.

They rely on the sworn Affidavits of the Third Defendant as sworn on 10 May 2019 and affidavits of the Second Plaintiff Javier Carlos Izquierdo filed on 6 June 2019.

Their grounds for examining Eddie Yuen Viva Voce on oath is that the Defendants have failed to disclose or admit of any settlement agreement made by the First Defendant in favour of the First Plaintiff for the loss of First Plaintiff’s sea freight container cargo.

2. The said application is opposed by the Defendants. They had filed their affidavit on 12 July 2019. [Affidavit of Edward Dixon Yuen sworn on 4 July 2019].
   

According to the Defendants, the concept of a deponent in an interlocutory application giving viva voce evidence is both unheard of and more importantly disallowed in interlocutory applications and has been since a long period of time in respect of which the judicature system has operated of and concerning the conduct of interlocutory applications before a Court.

The Defendants also seeks dismissed of the application on the ground that the First Plaintiff is a body corporate which under the High Court Rules requires legal representation. The Second Plaintiff is not a duly admitted Legal Practitioner thus cannot represent the First Plaintiff.

3. The Defendants have also made an application to have the hearing date of 25 July 2019 [application for security for costs and striking out application] be vacated and a new hearing date assigned as their Solicitor Mr J Stanton who is travelling from Australia would not be available for the hearing.
   

REPRESENTATION BY BODY CORPORATE

4. I will first most deal with the issue of representation by body corporate and whether the Second Plaintiff can represent the First Plaintiff in person in his capacity as the Managing Director of the First Plaintiff.
   
5. Order 5 rule 6 of the High Court Rules reads:
   1. Subject to paragraph (2) and to order 80 rule 2, any person (whether or not he or she sues as a trustee or personal representative or in any other representative capacity) may begin and carry on proceedings in the High Court by a Barrister and Solicitor or in person.
      
   2. Except as expressly provided by or under any enactment, a body corporate may not begin or carry on any such proceedings otherwise than by a Barrister or Solicitor”.
      
6. Exception to sub rule (2) is Order 12 rule 1(2), where a body corporate is allowed to acknowledge service of the Writ of Summons or Originating Summons and give notice of intention to defend. Such action can only be taken by a person duly authorised to act on its behalf. However apart from that the body corporate cannot take any further action otherwise than by a solicitor.
   
7. Explanatory note to Order 5 rule 6 of the Supreme Court Practice Volume 1, 1993 edition at paragraph 5/6/2 on page 30 reads:

“Although the Court can, pursuant to its inherent power to regulate its own proceedings, permit a director of a company to appear as an advocate on its behalf, the normal rule is that a body corporate must appear by a counsel or a solicitor and only in exceptional circumstances such as where the company’s assets are frozen by a Mareva injunction so that it cannot instruct solicitors, that the court will depart from that rule.

Where however a director is party to litigation to which his company is also a party, the court may allow the director to appear in person for purposes which are also those of the company. These are discretionary powers. A Company director has no right of audience on behalf of his company.

8. Scott J in Arbuthnot Leasing International Ltd –v- Havelet Leasing Ltd and Others [1991] 1 ALL ER 591, dealt with a similar issue. However in the said case the company’s assets were frozen and it could not use those assets to instruct solicitors.
   

At pages 594 to 597 His Lordship referred to several authorities whilst making his findings. These are:

“Re London CC and London Tramsways Co (1897) 13 TLR 254 where Cave J is reported as saying:

“A litigant was allowed to appear in person but a company must appear by attorney who could instruct counsel on their behalf”.

In Scriven v. Jescott (Leeds) Ltd (1908) 53 SJ 101 Bray J said:

“.......that a company could only be represented by attorney; and it was not in the same position as a litigant in person”.

In Frintin and Walton UDC v. Walton and District Sand and Mineral Company Ltd [1938] 1 ALL ER 649 Morton J. said, referring to a provision of the rules of court then in force (RSC 1883 Order 4, rule 2) that the rule –

“does not contemplate that a company can sue in person and the points to which my attention has been drawn are sufficient to satisfy me that a company cannot appear in person”.

In an Irish case, Battle v. Irish Art Promotion Centre Ltd [1968] IR 252 at 254, O’Dālaigh CJ said:

“This survey of cases indicates clearly that the law is, as we apprehended it to be when this application was first made to us, viz, that, in the absence of statutory exception, a limited company cannot be represented in Court proceedings by its managing director or other officer or servant. This is an infirmity of the company which desires from its own very nature ........ One sympathises with the purpose with which the appellant has in mind, to wit, to safeguard his business reputation; but, as the law stands, he cannot as major shareholder and managing director now substitute his persona for that of the company. The only practical course open to him would, it appears, to be for him personally to put the company in funds for the purpose of presenting its defence”.

In Tritonia Ltd v. Equity and Law Life Assurance Society [1943] 2 ALL ER 401 at 402; [1943] AC 584 at 586 Viscount Simon LC said:

“when an appeal is argued before the House of Lords, no one has any rights of audience except counsel instructed on behalf of a party or (when the litigant is a natural person) the party himself. In the case of a corporation, in as much as the artificial entity cannot attend and argue personally, the right of audience is necessarily limited to counsel instructed on the corporation’s behalf”.

In Engineer’s and Managers’ Association v. Advisory Conciliation and Arbitration Service (No.1) [1979] 3 ALL ER 223 at 234 – 225; [1979] 1 WLR 1113 at 1116 Lord Denning MR said:

“........the general rule in the High Court and the Court of Appeal is that we only hear members of the Bar. But we do allow exceptions when the circumstances make it desirable. Take litigants in person. Sometimes we have heard a husband speaking for his wife; a son speaking for his mother; and so forth .......”

In Ahse v Smith [1986] 1 ALL ER 350, [1986] QB 536, Sir John Donaldson MR referred to Collier v. Hickes [1831] EngR 686; 2 B & Ad 663 at 668[1831] EngR 686; , 109 ER 1290 at 1292) where Lord Tenterden CJ had said:

“this was undoubtedly an open court, and the public had a right to be present as in other courts: but whether any persons, and who shall be allowed to take part in the proceedings must depend on the discretion of the Magistrates: who, like other Judges must have the power to regulate the proceedings of their own courts”.

9. Scott J’s finding in Arbuthnot (Supra) was that “the Statute prohibited a body corporate from taking step in an action otherwise than through a solicitor and that the court has inherent discretion to regulate their own procedure and as such the Judge had power to permit any advocate to appear for a litigant if the exceptional circumstances of the case so warrants. However the general practice is that body corporate cannot appear by their director but only by solicitors or counsel”.
   
10. As mentioned earlier, in Arbuthnot the concerned Defendant Company had all it assets frozen so that it cannot use those assets to instruct solicitors.
    
11. In the present case before me, there is no exceptional circumstance shown. The company was represented by a solicitor Aman Ravindra Singh Lawyers. On or about the 02 April 2019 the Second Defendant filed a Notice of Intention to Act In Person for both the Plaintiffs.
    
12. Hence I find that the Second Plaintiff cannot appear for the First Plaintiff and direct the First Plaintiff to appoint a solicitor to act on its behalf in this matter henceforth.
    

APPLICATION FOR ADJOURNMENT OF HEARING

13. Since I am allowing time for the First Plaintiff to appoint a Solicitor to appear on its behalf, I will vacate the hearing date of 25 July 2019.
    

APPLICATION TO CALL EVIDENCE VICE VOCE

14. Order 39 rule 1 reads:

“The court may, in any cause or matter where it appears necessary for the purposes of justice, made an order (in Form 17 in Appendix 1 ) before a Judge, an Officer of the Court or some other person, act any place, of any person”.

15. Explanatory note to Order 39 rule 1 of the Supreme Court Practice Volume 1, 1993 edition states that the High Court under said rule makes its orders for evidence to be taken in this court, before the trial, of a witness who will unable to attend it.
    

At page 420 at paragraph 23/1 – 3/2 it is noted that:

“........a major matter for consideration is the likelihood of the Plaintiff succeeding. This is not to say that every application for security for costs should be made the occasion for a detailed examination of the merits of the case”.

16. The general practice of the High Court is that such application is heard on paper that is on affidavit evidence. It is not a practice of this Court to call for evidence vice voce on an application for security for costs.
    
17. I do not find circumstances justify that an order be made for Eddie Dixon Yuen to give evidence viva voce.
    

The affidavit evidence before this Court is sufficient for the Court to conduct a hearing of the interlocutory applications and make a finding.

Hence, I refuse the Plaintiffs application to call Eddie Dixon Yuen to give evidence vice voce on the application for security for costs.

Similarly on the application by the Defendants filed on 10 April 2019 to strike out Statement of Claim and Reply to Defence, I refuse the Plaintiff’s application to call Eddie Dixon Yuen to give evidence vice voce on the application. Furthermore the said application is under Order 18 rule 18 (1) (a) where no evidence is permitted apart from the pleadings.

18. Each Plaintiff is ordered to pay costs summarily assessed at $250 for each Defendant.
    

...............................
Vandhana Lal [Ms]
Acting Master
At Suva.