Megan Bailiff v. Vilimaina Tuivuna

• Jurisdiction: Fiji
• Judge: U.L. Mohamed Azhar
• Judgment Date: 25 September 2018
• Date: 25 September 2018
• Docket Number: Action No. HBC 28 of 2016
• Counsel: Mr. Roopesh Singh for the Plaintiff,Mr. Jon Apted for the 1 & 2 Defendants
• Court: High Court (Fiji)

IN THE HIGH COURT OF FIJI

WESTERN DIVISION

AT LAUTOKA

[CIVIL JURISDICTION]

Action No. HBC 28 of 2016

Between:

Megan Bailiff c/- Joseph Barr & Associates of 9820 Willow Creek Road, Suite 230, San Deigo, CA 92131, USA.

Plaintiff

v.

Vilimaina Tuivuna c/- Aquarius Tours Limited a limited liability company having its registered office at KPMG, Level 10, Suva Central, Renwick Road, Suva trading as Tavarau Island Resort

First Defendant

AND

Aquarius Tours Limited a limited liability company having its registered office at KPMG, Level 10, Suva Central, Renwick Road, Suva trading as Tavarau Island Resort

Second Defendant

Before:

Master U.L. Mohamed Azhar

Date of Ruling: 25^th September 2018

Counsels:

Mr. Roopesh Singh for the Plaintiff

Mr. Jon Apted for the 1^st & 2^nd Defendants

RULING

Introduction

01. The saying that goes ‘the winner (usually) takes all’ usually applies to the litigations too, and this has resulted in the rule of indemnity cost being formulated that, the ‘loser pays the winner's cost. Since, the cost is ‘one panacea which heals every sore in litigation’ as observed by Lord Justice Bowen in Cropper v Smith (1884) 26 Ch. D. 700 (CA) at page 710, the rules of the courts in all jurisdictions not only give the courts the jurisdiction to grant cost, but also give discretion to secure a cost that a party may incur in future, in any litigation pending in court. Both the High Court Rules (Or. 23 r.1) and the Magistrate's Courts Rules (Order XXXIII Rule 4) provide such discretion to the respective courts in Fiji to order for security for cost. The summons before me is the one which was filed by the second defendant under the Order 23 rule 1 of the High Court Rules seeking to exercise the discretion of this court and to order the plaintiff to provide security for cost. The second defendant sought the following orders in the said summons:

• 1. The Plaintiff do within 14 days give security for the Defendants' costs to the satisfaction of one of the Masters of the High Court of Fiji on the grounds that -

  • (a) The Plaintiff is ordinarily resident out of the jurisdiction; and

  • (b) As otherwise appear in the affidavits of Viliame Tuivuna and Merissa Hung Fong Yam filed herewith;

• 2. In the meantime, all proceedings herein other than the proceedings relating to the giving of such security be stayed;

• 3. The costs of this application be costs in the cause or the Plaintiff's costs in any event.

Law

02. The Order 23 of the High Court Rules, which contains 4 rules therein, provides for the discretion of the court to order to provide security for cost and deals with the other connected matters. Whilst the rule 1 deals with the discretion of the court, the other rules 2 and 3 deal with the manner in which the court may order security for cost and supplementary power of the court. The rule 4 prohibits any such order being made against the state. The rule 1 reads as follows:

Security for costs of action, etc (O.23, r.1)

1.-(1) Where, on the application of a defendant to an action or other proceedings in the High Court, it appears to the Court -

(a) that the plaintiff is ordinarily resident out of the jurisdiction, or

(b) that the plaintiff (not being a plaintiff who is suing in a representative capacity) is a normal plaintiff who is suing for the benefit of some other person and that there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so, or

(c) subject to paragraph (2), that the plaintiffs address is not stated in the writ or other originating process or is incorrectly stated therein, or

(d) that the plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of the litigation, Then, if having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the plaintiff to give such security for the defendant's costs of the action or other proceedings as it thinks just.

(2) The court shall not require a plaintiff to give security by reason only of paragraph (1)(c) if he satisfies the Court that the failure to state his address or the mis-statement thereof was made innocently and without intention to deceive.

(3) The references in the foregoing paragraphs to a plaintiff and a defendant shall be construed as references to the person (howsoever described on the record) who is in the position of plaintiff or defendant, as the case may be, in the proceeding in question, including a proceeding on a counterclaim.

03. A cursory reading of the above rule clearly indicates that, the power given to the court is a real discretion, which is simply understood from the word ‘may’, used in the said rule. Lord Denning M.R. when interpreting the same word used in the Companies Act 1948 held in Sir Lindsay Parkinson & Co. Ltd v. Triplan Ltd [1973] 2 All ER 273 at 285 that;

Turning now to the words of the statute, the important word is “may”. That gives a judge a discretion whether to order security or not. There is no burden one way or other. It is a discretion to be exercised in all the circumstances of the case.

04. The next phrase that strikes in this rule is ‘if having regard to all the circumstances of the case, the Court thinks it just to do so’, which requires the court to consider all the circumstances of the case before it, in exercising the said discretion and to come to a conclusion that ‘it is just to do so’, before making any order and determine, whether and to what extent or for what amount a plaintiff (or the defendant as the case may be) may be ordered to provide security for costs. Sir Nicolas Browne Wilkinson V.C in Porzelack K G v. Porzelack (UK) Ltd, (1987) 1 All ER 1074 at page 1077 as follows:

“Under Order 23, r1(1) (a) it seems to me that I have an entirely general discretion either to award or refuse security, having regard to all the circumstances of the case. However, it is clear on the authorities that, if other matters are equal, it is normally just to exercise that discretion by ordering security against a non-resident plaintiff. The question is what, in all the circumstances of the case, is the just answer”.

05. It follows that, it is no longer, for example, an inflexible or rigid rule that a plaintiff resident abroad should provide security for costs. The Supreme Court Practice 1999 (White Book), in Volume 1 at pages 429 and 430, and in paragraph 23/3/3, states clearly and explains the nature of the discretion given to the court, it reads that;

The main and most important change effected by this Order concerns the nature of the discretion of the Court on whether to order security for costs to be given. Rule 1 (1) provides that the Court may order security for costs, “if having regard to all the circumstances of the case, the Court thinks it just to do so”. These words, have the effect of conferring upon the Court a real discretion, and indeed the Court is bound, by virtue thereof, to consider the circumstances of each case, and in the light thereof to determine whether and to what extent or for what amount a plaintiff (or the defendant as the case may be) may be ordered to provide security for costs. It is no longer, for example, an inflexible or rigid rule that a plaintiff resident abroad should provide security for costs. In particular, the former 0.65, r.6s, which had provided that the power to require a plaintiff resident abroad, suing on a judgment or order or on a bill of exchange or other negotiable instrument, to give security for costs was to be in the discretion of the Court, has been preserved and extended to all cases by r.1 (1).

In exercising its discretion under r.1 (1) the Court will have regard to all the circumstances of the case. Security cannot now be ordered as of course from a foreign plaintiff but only if the Court thinks it just to order such security in the circumstances of the case.

06. When considering all the circumstances of the case, the courts in Fiji should consider the plaintiffs country of origin too. The reason for that consideration may be explained in the following manner. Many jurisdictions recognize and enforce the foreign judgments in their jurisdictions, as if those judgments had, originally, been given by their local courts. This recognition may be based on bilateral or multilateral treaties or understanding on mutual assistance. Fiji is not an exception to this. It has two pieces of legislations, which provide for a statutory scheme for recognition and enforcement of judgments of foreign countries with which reciprocal arrangements have been made. The said legislations are Reciprocal Enforcement of judgments Act 1922 (Cap 39) and Foreign Judgments (Reciprocal Enforcement) Act 1935 (Cap 40). The first one was brought to facilitate the reciprocal enforcement of judgments and awards in United Kingdom and Fiji with the power of the president to extend it to the judgments of any other country or territory of the Commonwealth outside the United Kingdom. The second one was enacted with the purpose of making provisions for the enforcement, in Fiji, of judgments given in foreign countries which accord reciprocal treatment to judgments given in Fiji. Under this latter Act, the president has power to extend its application to the judgments given in other countries and some other commonwealth countries which are not included in the former Act (Cap 39).

07. If the plaintiff is neither from commonwealth countries, nor from the countries which have accorded reciprocal treatment to judgments given in Fiji, the defendant will not be able to enforce any order against the plaintiff. The fact, that any plaintiff is ordinarily resident of any country other than those two categories, will usually operate as a powerful factor in exercising the Court's discretion in the defendant's favour. If an order for security was made in any case and the plaintiff ultimately succeeds in his or her claim, no harm will be caused, because he or she can take back...