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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
[CIVIL JURISDICTION]
Civil Action No. HBC 29 of 2020
BETWEEN: JONE TUKUNA of Navakai, Nadi.
1st Plaintiff
AND: SAKIUSA SIRINATURAGA MASIWINI, ELIZEBETH
WYE, TEVITA DAKUNA, ASENA BULOUNICEVA SAQASERA all of Navakai, Nadi.
2nd Plaintiffs
AND: TOMASI TUSAI, PENAIA DRIU, VIJAY SINGH all of
Navakai, Nadi.
3rd Plaintiffs
AND: RONALD RITESH KUMAR, of Navakai, Nadi.
1st Defendant
AND: DIRECTOR OF LANDS
2nd Defendant
Before: Master U.L. Mohamed Azhar
Counsels: Mr. E. Moapa for the plaintiffs
Mr. E. Sailo for the first defendant
Mr. J. Mainavolau for the second defendant
Date of Ruling : 17.06. 2022
RULING
01. This is the Notice of Motion filed by the plaintiffs pursuant to Order 4 of the High Court Rules seeking consolidation of this matter with other three matters, namely, HBC 276 of 2019, HBC 277 of 2019 and HBC 278 of 2019. All are pending in this court. The Motion is supported by an affidavit sworn by the first named second plaintiff. The first defendant opposed the summons and filed his affidavit. At hearing of the summons both counsels made oral submission and later filed their respective written submission.
02. The courts have broad discretion to order a joint hearing or trial of all matters at issue in actions involving common questions of law or fact. This discretion includes order for consolidation of the actions. Consolidation may take several forms and it can be made for discovery only, or for trial only, or for all purposes. Courts usually consolidate cases to speed up the trial process and to eliminate duplicative trials involving the same parties, issues, and evidence. The courts, in general, when exercising this discretion look with favour of motion to consolidate that promotes judicial economy without causing prejudice the parties. The rules of the courts provide for the matter to be considered and the orders that may be made by the courts. This court recently had an opportunity in Dean v Jan [2021] FJHC 164; HBC133.2018 decided on 12 March 2021 to discuss the law on consolidation of matters. The Order 4 rule 2 of the High Court Rules provides for the law to consolidate matters pending in the High Court. It reads that:
Consolidation of Proceedings (O.4, r.2)
2. Where two or more causes or matters are pending, then, if it appears to the Court-
(a) that some common question of law or fact arises in both or all of them, or
(b) that the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions, or
(c) that for some other reason it is desirable to make an order under this rule,
the Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed until after the determination of any other of them.
03. The effect of the above rule in its unambiguous language is that, firstly, it is a wide discretion that is given to the court. Secondly, there must be two or more matters or causes pending in the court. Thirdly, it must appear to the court that one of the three subparagraphs of the rule is satisfied. Finally and more importantly the orders the court may make under this rule. The court may make three orders under this rule. They are (a) order those causes or matters to be consolidated on such terms as it thinks just, or (b) may order them to be tried at the same time or one immediately after another, or (c) may order any of them to be stayed until after the determination of any other of them. The order (a) for consolidation is different from other two orders (b) and (c), even though it has been used in a looser sense to include other two orders.
04. Austin J in A Goninan & Co Ltd v. Atlas Steels (Australia) Pty Ltd [2003] NSWSC 956 lengthily discussed the genesis and the development of the law and the current practice in common law in relation to consolidation of related matters and stated at paragraph 28 that:
The third limitation arising of the wording of the rule is that the order authorized by the rule is (relevantly) an order that the proceedings be "consolidated". An order for the consolidation of proceedings is, by the terms of the rule, different from an order that proceedings be tried at the same time or immediately after one another, or that one be stayed until determination of another. Sometimes, in the past, the word "consolidation" has been used in a looser sense to encompass these other kinds of orders: Lee v Arthur, at 62 per Moulton LJ. But in its "proper sense", an order for consolidation is an order "combining actions so that they thereafter proceed as one": Cameron v McBain, at 246 per Herring CJ; see also Thomas &Morgan (United Kingdom) Ltd v Erica Vale Australia Pty Ltd (1995) 31 IPR 335.
05. In that case, Austin J made an order consolidating five separate proceedings involving seven different parties into one proceeding, where all the proceedings raised the commons issue. The significance of the order was that, the five proceedings became one single proceeding, with one of the parties as plaintiff and two of the others as defendants. Each of the original parties was able pursue its claim against the others by way of cross-claim, resulting in only one set of pleadings of lesser volume.
06. On the other hand, there are circumstances which militate against the order for consolidation of related matters. For examples, two causes cannot be consolidated even though the parties are same, unless one action can be ordered to stand as counter-claim or third party proceedings in the other action. Likewise, it is generally impossible to order consolidation of matters where there are several lawyers have been instructed (see: White Book 1999, Vol I para 4/9/2 at page 30). These limitations, however, apply only in relation to order (a) mentioned in paragraph 3 above. However, the power to order consolidation is discretionary and will not be exercised if a party can show a real possibility of prejudice.
07. The ultimate purpose of the orders made under this rule is to serve costs and time. No order will be made under this rule unless there is some common question law or fact. The White Book 1999, in Vol I para 4/9/2 states at page 30 that:
The main purpose of consolidation to save costs and time, and therefore it will not usually be ordered unless there is “some common question of law or fact bearing sufficient importance in proportion to the rest” of the subject-matter of the actions “to render it desirable that the whole should be disposed of at the same time” (Payne v. British Time Recorder Co. [1921] 2 K.B. 1 at 16; Horwood v. British Statesman Publishing Co. Ltd [1929] W.N. 38; Daws v. Daily Sketch [1960] 1W.L.R 126; [1960] 1 All E.R. 397, CA). Where this is the case, actions may be consolidated where the plaintiffs are the same and the defendants are the same, or where the plaintiff or defendants or all are difference (Horwood v. British Statesman Publishing Co. Ltd (1929) per Sankey L.J. at 59). The circumstances in which actions may be consolidated are therefore generally similar to those in which parties may be joined in one action under O, 15, r, 4.
08. Accordingly, if there are two or more related cases pending in the same court, that court should first consider whether (a) some common question of law or fact arises in both mattes or all of them, or (b) the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions, or (c) some other reason makes it desirable to make an order under this rule. If the court is satisfied any of the above factors, then the court, considering the circumstances of the cases, may make any of the three orders mentioned in the rules, and they are (a) order that, those causes or matters to be consolidated on such terms as it thinks just or (b) order that, them to be tried at the same time or one immediately after another or (c) order any of them to be stayed until after the determination of any other of them. If the court makes an order for consolidation of several matter as per (a) above, it should then specify as to who will be the plaintiff/s, who will be the defendant/s, who will be cross-defendant/s and which pleading should be the claim and cross-claim etc. This is what that is meant by the phrase “on such terms as it thinks just” in the rule.
09. All plaintiffs in this case are the defendants in three separate matters commenced by the first defendant. The first defendant is the registered proprietor of land comprised in three separate State Leases bearing numbers 22447, 22448 and 22449 for Lots 2, 3 and 4 on SO 7592 being LD 4/10/6346, LD 4/10/6347 and LD 4/10/6348 respectively and situated at Navakai, Nadi. He summoned all three plaintiffs by way of Originating Summons (Expedited Form) pursuant to Order 113 of the High Court Rules and sought orders on all plaintiffs to deliver vacant possession of respective lands to him together with an order for cost on indemnity basis. Only the first plaintiffs filed their affidavit in opposition in the Case No.277 of 2019 and the first defendant filed his affidavit in reply. The second and third plaintiffs did not file the affidavits in other two matters, but all the plaintiffs filed the current motion to consolidate this matter with other three matters filed by the first defendant.
U.L.Mohamed Azhar
Master of the High Court
At Lautoka
17.06.2022
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