Islander Group of Companies Ltd v Le Group des Insulaires Ltd [2024] FJHC 13; HBC251.2013 (9 January 2024)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 251 of 2013

BETWEEN: THE ISLANDER GROUP OF COMPANIES LIMITED a company incorporated in Fiji and carrying on business as a Resort Developer having its place of business at Level 7, Ernst & Young Chartered Accountants, Pacific House, Suva.

PLAINTIFF

AND: LE GROUP des INSULAIRES LIMITED a company having its registered office at Avarua, Rarotonga, Cook Islands.

FIRST DEFENDANT

CHRISTIAN JOGODZINSKI of 81 Washington Avenue, Suite 300, Miami Beach, Florida, FL 33139, Investor.

SECOND DEFENDANT

BEFORE: Hon. Mr. Justice Vishwa Datt Sharma

COUNSEL: Ms M Rakai for the Plaintiff
Mr R. Singh for the 1^stDefendant
Mr Solanki B for the 2^nd Defendant

Date of Judgment: 9th January, 2024

JUDGMENT

[Leave to Appeal]

INTRODUCTION

1. The First Defendant, Le Group des Insulaires Ltd through the Summons of 19^th April 2023 sought for the following Orders:
   1. It may be granted leave to appeal to the Judge of the High Court from the Orders of the Acting Master Ms. Vandhana Lal (Master) delivered by way of a Ruling on 4 April 20222 whereby it was ordered that the Plaintiff is granted leave to file its Supplementary Affidavit Verifying List of Documents (Ruling);
      
   2. Abridgment of time for the filing and service of this application; and
      
   100. The costs of this application be paid by the Plaintiff.
        
2. The Summons for Leave to Appeal is made in support of the Affidavit deposed by Jovilisi Liganivai.
   
3. The First Defendants application is currently for Leave only. It is not for the determination of the substantive rights at this stage of the proceedings.
   

BACKGROUND

4. On 15^th February 2022 the Plaintiff’s solicitors informed Master that they have additional documents to file and sought leave to file a supplementary Affidavit verifying list of documents.
   
5. The First Defendants Solicitors objected to the filing of the supplementary affidavit verifying lists of documents [SAVLD] on the grounds that the documents needed to be reviewed first by the First Defendant. The Master agreed and directed that the Plaintiff’s Solicitors to write to Munro Leys solicitors disclosing all the additional documents they intended to include in the SAVLD.
   
6. On 23^rd February 2022, the Plaintiff’s Counsel acknowledged before the Master that they have served the letter to Munro Leys solicitors on the morning of 23^rd February 2022. Counsel appeared on behalf of the First Defendant and asked for time to obtain the instructions from the First Defendant.
   
7. The Master than directed that the First Defendant had to confirm its position on the SAVLD to the Plaintiff by 04^th March 2022 and if the First Defendant does not consent to the filing of SAVLD, the Plaintiff is to file a formal application by 8^th March 2022.
   
8. The Plaintiff’s lawyers did not provide the additional documents to the First Defendant as was directed by the Master earlier until 10^th March 2022 when the Plaintiff provided the First Defendant with the Documents.
   
9. No formal application was filed by the Plaintiff by the 08^th March 2022 within the time frame as was ordered by the Court on 23^rd February 2022 by the Learned Master.
   
10. On 11^th March 2022, the First Defendant’s Counsel informed Court that the First Defendant does not consent to the filing of the Plaintiff’s SAVLD.
    
11. The Plaintiff made an oral application in Court for Leave to file SAVLD in 14 days. Again no application was filed within the time frame as per the order of the Court.
    
12. On 30^th March 2022, the Plaintiff’s application was filed in support of Alelia’s affidavit seeking an order that Leave be granted to file SAVLD. The returnable date of 01^st April 2022 was assigned on the application.
    
13. On the returnable date of the Plaintiff’s application, the First Defendant objected to the Plaintiff application for Leave to file SAVLD since:
    • (a) The Application was not filed and served in 14 days as directed by Court on 11^th March 2022.
      
    • (b) Plaintiff’s application is in breach of the Rules since it was not served two clear days prior to the hearing of the summons.
      
    • (c) Alelia’s affidavit is contrary to the guidelines as was set out in the Case of Paul v Director of Lands [2020] FJSC 3.
      
14. The Counsel for the Plaintiff acknowledged that they had filed but served the Plaintiff’s application late.
    
15. The Plaintiff’s application for leave to file SAVLD was head and a Decision was granted on 04^th April 2022 granting Leave to the Plaintiff to file its SAVLD without allowing the First Defendant the opportunity to file a response affidavit.
    
16. However, according to the Plaintiff, the additional documents were provide to the 1^st Defendant prior to the formal application filed on 30^th March 2022. The order the First Defendant is appealing is not clearly wrong rather it’s a discretionally exercise power which the master exercised.
    
17. There was no substantial injustice to the parties. The First Defendant was heard on 01^st April 2022 and was aware of the documents to be discovered.
    
18. The First Defendant has filed this current application out of time by one (1) day. The Complaint by the First Defendant on the outcome of the Ruling of 4^th April 2022 has been withdrawn on 25^th July 2022.
    

LEGAL PROVISIONS

19. Order 59 Rule 8 (2) of the High Court Rule 1988 provides:
    

‘No Appeal shall lie from an interlocutory order or judgment of the Master to a single judge of the High Court without the leave of a single judge of the High Court which may be granted or refused upon the papers filed.”

20. Order 59 Rule 11 states:
    

“Any application for leave to appeal an interlocutory order or judgment shall be made by summons with supporting affidavit filed and served within 14 days of the delivery of the order or judgment.”

21. The test when considering whether or not to grant Leave to Appeal an Interlocutory Order or Judgment is that whether that Appeal, if Leave is granted, has a Real Prospect of Success. The Appellant must demonstrate that his Case has some prospect of success in the sense that there is a Substantial Question to be argued in the Appeal.
    
22. As far as this Court is concerned, it is only required to determine and make a decision whether Leave should be granted to Appeal the Master’s Interlocutory Order made on the 4^th April 2022 granting the Plaintiff final 7 days’ time to file and serve its supplementary affidavit verifying list of documents.
    
23. I am not required at this stage of the proceedings to analyze ‘whether the grounds of proposed Appeal filed herein with Leave application will succeed, but merely whether there is a Real Prospect of success.
24. In Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431, the Court held that (at 441) that matter that should be considered by a Judge in such applications include;
    • (a) Whether the issue raised is one of general importance or whether it simply depends upon the facts of the particular case.
      
    • (b) Whether there are involved in the case difficult questions of law, upon which different views have been expressed from time to time or as to which he has been “sorely troubled”
      
    • (c) Whether the order made has the effect of altering the substantive rights of the parties or either of time and
      
    • (d) As a general rule there is a strong presumption against granting leave to appeal from interlocutory orders or judgments which do not either directly or by their practical effect finally determine any substantive rights of either parties.
      

DETERMINATION

25. The First Defendant is seeking for Leave to Appeal the Decision of the Acting Master of 04 April 2022, whereby the Master ordered that the “Plaintiff is granted Leave to file its Supplementary Affidavit verifying list of documents [SAVLD].
    
26. The First Defendant’s contentions are as follows –
    • (i) That the application of the Plaintiff was not filed and served in 14 days [1 day late]
    • (ii) Not served at least 2 clear days prior to its hearing.
    • (iii) Leave ought not be granted to Plaintiff to file/serve supplementary affidavit verifying list of documents.
    • (iv) Alelia’s affidavit does not provide any authority of the Plaintiff to depose the affidavit and the authority to depose the affidavit is given by the second defendant.
    • (v) The First Defendant was not given time to file /serve response to the Plaintiff’s application.
    • (vi) The Master failed to provide the First defendant with a written ruling.
      
27. The Plaintiffs contention however are the following:
    • (i) There is no authority from the First Defendant authorizing the deponent to depose the affidavit.
    • (ii) All documents within the Affidavit verifying list of documents were discovered and provided to the defendants on 10^th March 2022. However, First Defendant was provided with the list on 23^rd February 2022.
    • (iii) The Acting Master heard both parties.
    • (iv) Supplementary affidavit verifying list of documents was filed on 19^th May 2022 and withdrawn on 25^th July 2022 because it was opposed.
    • (v) First Defendant is out of time to file this Leave to Appeal application by 1 day.
      
28. There are no substantial merits in the Grounds of Appeal proposed herein.
    
29. The complaint of the First Defendant on the outcome of the Ruling delivered on 04^th April 2022 has been withdrawn on 25^th July 2022.
    
30. Leave to Appeal be refused.
    

AFFIDAVIT BY LAW CLERKS

31. The Plaintiff’s application seeking leave to file SAVLD on 30^th March 2022 was deposed by Alelia Daucakacaka, a legal secretary with solicitors Sherani and Co. The First Defendants supporting affidavit summons for leave to appeal was sworn by the solicitor Jovilisi Liganivai representing the First Defendant.
    
32. A list of documents is required to contain all relevant documents that are or have been on a party’s possession, and the deponent verifying the list is required to swear that the list provided is complete. A law clerk and/or a Legal Secretary of a Law firm has no personal knowledge of a party’s record and is unable to do this.
    
33. It is established that in the proceedings in which an individual is a party, only that individual can verify the completeness of the list as required. In this regard, paragraph 24/5/3 of the White Book (1999) 1, states-

“By whom affidavit should be made – the prescribed form of affidavit (see vol. 2, Section 1A, para 1A-25) requires The Plaintiff and Defendant to be the deponent. The obligation imposed by O.24, R.5 (3) is therefore an obligation on the relevant party personally. The obligation must be modified in relation to corporations, and the practice whereby solicitors swear verifying affidavit in their capacity as agents for their clients has escaped criticism, but the obligation cannot otherwise be delegated for example, to the holder of a power of attorney (Clauss v Pir [1987] 3 WLR 493; [1987] 2 All ER 752).

34. In the circumstances, it was clearly inappropriate for the Plaintiff’s supplementary affidavit verifying list of documents (SAVLD) to be sworn by the Legal Secretary.
    
35. The 1^st Defendants affidavit filed in support of the application for Leave to Appeal Master’s Decision does not have the legal authority from the 1^st Defendant Company to depose the affidavit rather deposed by the counsel requesting the 1^st Defendant.
    
36. Further to this, the Rules and practice are to the effect that each party is obliged to discover all relevant documents in their possession, custody or power. A party who received a sworn affidavit verifying list of documents and the documents listed in it, is entitled to assume, in the absence of any information to the contrary, that the other party has complied with its obligation to make a full discovery of all relevant documents and where that duty is breached, the consequences must be suffered by the defaulting party, not the innocent ones.
    
37. In practice where a party becomes aware of relevant documents, that have not been discovered by the other side and which it wishes to consider, it can request those undiscovered documents. However, this does not detract from the other sides obligations to discover all relevant documents, and it can only apply to documents that the party applying knows about and wishes to inspect.
    
38. In any case, a party is only interested in documents that assist its case. It never requests further and better discovery of documents that advance the other party’s case, because it does not need to produce them in evidence. Furthermore, it would suit the party to leave the documents undiscovered since, if the second party that needs to rely on the documents fails to discover them, the second party will not be allowed to produce them in evidence without an order of the Court.
    
39. In this case the documents in the Plaintiff’s Supplementary Affidavit [SAVLD] were all documents on which the Plaintiff intends to rely on for her claim. They were documents that the Defendants could not know existed, and which they had no reason to request from the Plaintiff. The Plaintiff was itself required to discover them well before the trial.
    
40. It is accepted that sometimes it is not possible to include all the relevant documents in the Affidavit verifying list of documents [AVLD]. However, a party should always notify the other side that their list is incomplete and must include the omitted documents in the supplementary affidavit verifying list of documents (SAVLD) in advance of the trial date to avoid trial by ambush.
    
41. As the saying goes “that one must come to Court with Clean hands”.
    
42. It is also noted that the fact on 15^th February 2022, the Plaintiff’s Solicitors informed Master that they have additional documents and sought leave to file them.
    
43. The First Defendant objected to this and Master directed the Plaintiff to write to Munro Leys solicitors disclosing all the documents they intend to include in SAVLD.
    
44. The documents were not furnished to the First Defendant as directed by the Master and therefore the Plaintiff was directed to file/ serve a formal application for Leave to file SAVLD.
    
45. The Plaintiff filed the application on 30^th March 2022. However, the First Defendant’s contention is that the Plaintiff’s application for leave to file SAVLD was not filed within 14 days as directed by the Master on 11^th March 2022 and it was served on to them in terms of the Order 32, Rule 3 and Order 32 rule 14 of the High Court Rules 1988 that requires the service to be effected 2 clear days prior to the hearing of the summons.
    
46. The Master had in fact exercised her discretion and thought fit in the circumstances to proceed with the grant of the Plaintiff’s application for leave to file SAVLD accordingly.
    
47. I find that there was no breach of rules by the Plaintiff when their summons was not served 2 clear days prior to the hearing in terms of Order 32, rule 3 and Order 32 rule 14 of the High Court Rules 1988.
    
48. However, the Court notes that after the Master delivered its decision on 04^th April 2022 on Plaintiff’s Summons for leave to file SAVLD, that the documents in question were already furnished to the First Defendant on 23^rd February 2022 of which the First Defendant was aware of. The First Defendant had knowledge and was aware of the additional documents furnished by the Plaintiff.
    
49. Further, the Supplementary Affidavit Verifying List of Documents [SAVLD] was withdrawn on 25^th July 2022 because it was opposed that the same was deposed as the 2^nd Defendants List of Documents when it was in fact the Plaintiff’s List.
    
50. The First Defendants Summons for Leave to Appeal the Master’s Decision of 04^th April 2022 was filed one (1) day late and therefore was out of time. Case of the on Privy Council in Ratnam v Cumarasamy and another [1964] 3 All ER at page 935 referred where Lord Guest said –
    

“The rules of court must, prima facie, be obeyed, and in order to justify a court in extending the time during 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 timetable for the conduct of litigation.

The only material before the Court of Appeal was the affidavit of the appellant. The grounds there state 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 circumstance, their lordships find it impossible to say that the discretion of the Court of Appeal was exercised on any wrong principle.” (emphasis is mine)

51. In the strength of the authority in the above Judicial decision, I wish to emphasize that the Rules are there to be followed and abided by and any non-compliance with those rules is fatal.
    

In Conclusion

52. The Plaintiff’s had furnished the First Defendant with all the documents in the list on 23^rd February 2022 which were discovered on 10^th March 2022.
    
53. Both parties were heard by the Master on the Plaintiff’s Summons for leave to file SAVLD and a Decision was delivered on 04^th April 2022.
    
54. SAVLD was filed on 19^th May 2022 and withdrawn on 25^th July 2022.
    
55. Therefore, there was nothing or no issue to deal with on the First Defendant’s Leave to Appeal application with the Exception that the First Defendant’s contention is that the Court must hear and determine whether the Master and the Plaintiff had complied with the High Court Rules and abided by its procedural aspect of the way the Plaintiff’s application was dealt with by the Master on the day in question.
    
56. The Plaintiff’s affidavit in support of the Summons seeking for Leave to file SAVLD cannot be deposed by the Law Clerk and/or the Legal Secretary. However, the discretion is on the Court to accept/allow and/or refuse the affidavit therein.
    
57. It is accepted that sometimes it is not possible to include all the relevant documents in the Affidavit Verifying list of documents [AVLD]. However, a party should always inform the other side about the incompleteness of the Affidavit Verifying List of Documents and that the list will be completed well before the trial date.
    
58. The First Defendants Application was filed one (1) day out of time. No extension of time was sought as per the rules.
    
59. There was no breach of the High Court Rules 1988 by the Plaintiff in terms of Order 32, Rule 3 and Order 32, rule 14 when the Plaintiff failed to serve its summons for leave to file SAVLD 2 days prior to the hearing. The Reason being that the First Defendant was aware that the Plaintiff intended to file SAVLD of the documents which were already furnished to the first defendant on 10^th March 2022 of which the first defendant is well aware of.
    
60. However, this is a 2013 matter filed on 22^nd August 2013 and is still impending in the court system for some 10 years now. Parties must move ahead and concentrate on the substantive matters rather than the interlocutries and have the substantive matter heard and determined by the Courts accordingly.
    

COSTS

61. Although, the matter proceeded to full hearing and parties to the proceedings furnished Court with written submissions and taking in consideration the length of hearing, it is appropriate that each party to bear its own costs at the Discretion of this Court.
    

ORDERS

(i) The First Defendants Summons for Leave to appeal the Masters Decision delivered on 04^th April 2022 fails and is accordingly dismissed.

(ii) Each Party to bear its own costs at the discretion of this court.

(iii) The parties to the proceedings must bear in mind that the substantive matter has been impending in Court since 2013 and needs to be heard and determined expeditiously accordingly.

(iv) The substantive matter now stands adjourned to 31^st January, 2024 for Mention at 9.30am.

Dated at Suva this 9^th day of January ,2024.

............................................................
VISHWA DATT SHARMA
JUDGE

cc: Sherani & Co., Suva
Munro Leys, Suva
Solanki Lawyers