IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 133 of 2011

BETWEEN		: 	ROSY REDDY
PLAINTIFF

AND		:	YANKTESH PERMAL REDDY
FIRST DEFENDANT

: 	YANKTESH PERMAL REDDY; ROHIT REDDY;
KALPANA REDDY; ROHIT REDDY in place of Giyananand Naidu
SECOND DEFENDANTS

: 	REDDY CONSTRUCTION COMPANY LIMITED
THIRD DEFENDANT

: 	REDDY ENTERPRISES LIMITED
FOURTH DEFENDANT

: 	CLYDE EQUIPMENT (PACIFIC) LIMITED
FIFTH DEFENDANT

: 	REDDY HOLDINGS LIMITED
SIXTH DEFENDANT

: 	FINEGRAND LIMITED
SEVENTH DEFENDANT

APPEARANCES/REPRESENTATION
PLAINTIFF		:  	Mr. I. Fa [Fa & Company]
DEFENDANTS		:  	Mr. R. A Singh with Ms Naco [Parshotam Lawyers]

RULING BY		: 	Master Ms Vandhana Lal
DELIVERED ON	:  	12 April 2023

RULING

Application
1.	The Plaintiff alleges that the Defendants have failed to comply with orders for specific discovery made by court on 08th May 2017 and as a result the Defendants amended statement of defence filed on 03 September 2012 be struck out and there be judgment in favour of the Plaintiff.

2.	The said application is made pursuant to Order 24 Rule 16(1)(b) of the High Court Rules.

The Court order made on 08th May 2017
3.	The Plaintiff had earlier made an application pursuant to Order 24 Rule 7(1) and (3) of the High Court Rules for discovery of certain documents.

4.	After hearing the parties, my Predecessor on 08th May 2017 made orders as follows:

i.	 	That the First – Seventh Defendants make affidavits stating whether the documents enumerated at paragraph 1 – (i) – (viii) inclusive in the Plaintiff’s Summons dated 12th May 2016 is or has at any time been, in their possession, custody or power and if not then in their possession; custody or power, when they parted with them and what has become of them.

ii.	 	That all affidavits of the Defendants to be filed and served within 14 days.
What steps did Defendants take after the Order of 08th May 2017?
5.	On 23rd May 2017, the Defendants’ solicitors filed an affidavit [for discovery of specific documents].

6.	The Affidavit was sworn by the then fourth named Second Defendant on behalf of all the Defendants.

7.	On paragraph 3-6 of the affidavit, they state as follows:
“3.  	The Defendants have had, but have not now, in their possession, custody or power the documents enumerated in schedule 1 herein.

4.  	Copies of all documents referred to in Schedule 1, herein were in the Defendants possession, custody, or power on or about the respective dates of such documents.

5.  	Copies of all the said documents may be in the possession of the bodies or entities that had generated the said document.

6.  	The Defendants are taking steps to obtain copies of document enumerated in schedule I herein but have not been able to obtain such copies as at the date of this affidavit which is made in compliance with the orders of the learned Master.”

8.	Schedule 1 of the said affidavit lists following documents:

Name of document					Date
1.	Letter from Edward & Young to the Reserve Bank		31/08/01

2.	Letter from G Lal & Company to the Reserve Bank		26/08/03

3.	Letters (3) from Ernest and Young to Reserve Bank	          18/12/2007
4.	Reserve Bank of Fiji approval letters for the Sale of 
163,904 shares held by the Third Defendant 			2010
(Reddy Construction Limited) in the Fourth 
Defendant (Reddy Enterprises Limited) to the Seventh
Defendant (Finegrand Limited)

5.	Valuation Report for the 163,904 shares of the 
Third Defendant (Reddy Construction Company  		2010
Limited) transferred in 2010

6.	Reserve Bank of Fiji exchange control approvals 
and confirmation of remittances for transactions that  	2010
took place in 2010

7.	Reddy Construction Company Limited Accounts		2010-2011

8.	Documentation (including exchange control approvals) 
in relation to the reversal of all dividends paid to 		
YPR Group Limited of Hong Kong between 2001-2010  	2001 - 2010
from the transfer of 163,904 shares in Reddy Enterprises
Limited (Fourth Defendant) from the Third Defendant 
(Reddy Construction Company Limited).

The Plaintiff’s application for specific discovery and the Court’s finding
9.	When the Plaintiff’s had earlier made an application specific discovery of document, it alleged that the Defendants in their affidavit verifying list of documents filed on 21st October 2015 had not included these documents.

10.	According to the Plaintiff, these documents were mentioned in the affidavit of the then fourth named Second Defendant Giyananand Naidu opposing the Plaintiff’s application for summary judgment.  Due to these documents, it was found there to be disputed facts which was to be resolved at the trial.

11.	My Predecessor made a finding that the then Second Defendant’s affidavit filed in opposition to the summary judgment application revealed that the document then did exist and hence made orders for the Defendants to do discovery.

Order 24 Rule 16 (1) (b) of the High Court Rules
12.	The said provision of the law reads:

16. (1) If any party who is required by any of the foregoing Rules, or by any order made thereunder, to make discovery of documents or to produce any documents for the purpose of inspection or any other purpose, fails to comply with any provision of that Rule or with that order, as the case may be, then, without prejudice, in the case of a failure to comply with any such provision, to Rules 3(2) and 11(1) –
(a) 	……………………………………..; and

(b)  the Court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly.

Have the Defendants failed to comply with requirements for discovery?
13.	The orders made on 08 May 2017 specifically asks for the Defendants to state when they parted with the documents and what has become of them.

14.	The Defendants have failed to outline when they parted with the documents.

15.	The documents enumerated in the schedule all relates to the Defendants and I find even if the Defendants may not have possession or in their custody (as they allege) these documents but they do have a right/power to obtain them from relevant entities who has them and complete discovery to let the matter proceed towards trial.

16.	At this stage I would like to quote from the Supreme Court Practice (1991 Edition) Volume 1 where on page 428 it talks about obligation of solicitors in respect of discovery by their clients:
It is necessary for solicitors to take positive steps to ensure that their clients appreciate at an early stage of the litigation, promptly after the writ is issued, not only the duty of discovery and its width but also the importance of not destroying documents which might possibly have to be disclosed (per Megarry J. in Rockwell Machine Tool Co. Ltd v E.P Barrus (Concessionaires) Ltd. [1968] 2 All E. R. 98).  Moreover it is not enough simply to give instructions that documents be preserved.  Steps should be taken to ensure that documents are preserved (Infabrics Limited v Jaytex Limited. [1985] F.S.R 75 where, because a defendant had not preserved documents affecting the quantum of damage, the maxim omnia praesummuntur contra spoliatorem was applied against him).

17.	The Defendants had since 2017 to obtain the documents and complete discovery.

18.	Due to failure of complying with the rules has led to this matter being delayed for trial by some 06 years.

19.	My findings are that the Defendants are in default in complying with provisions of Order 24 Rule 16(1)(b) and hence an unless order ought to be made against them.

Orders
20.	The Defendants shall by 12 noon on 30 June 2023 complete discovery of its document enumerated in its affidavit verifying list of documents filed on 21 October 2015 and affidavit filed on 23 May 2017.

21.	And should the Defendants fail to do so, the statement of defence filed on 03 September 2012 shall stand struck out and there be judgment entered for the Plaintiff on its statement of claim.

…………..………..
Vandhana Lal [Ms]
Master of the High Court
At Suva.

12 April 2023

TO:
1. Suva High Court Civil File No. HBC 133 of 2011;
2. Fa & Company, Solicitors for the Plaintiff;
3. Parshotam Lawyers, Solicitors for the Defendants.