IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC 380 OF 1999

BETWEEN:

AIR FIJI LIMITED
Plaintiff

AND:

SHAILEND SHANDIL
1st Defendant

ISLAND NETWORK CORPORATION LTD.
2nd Defendant

Counsel: Mr W. Clarke for the Plaintiff
Mr S. Matawalu for the Defendants

Hearing: 17th November 1999
Decision: 3rd December 1999

DECISION

This is an application by way of Summons pursuant to Order 18 Rule 18 of the High Court Rules 1988, to strike out the Plaintiff’s Statement of Claim on the following grounds:

(a)	that it discloses no reasonable cause of action;

(b)	that it is scandalous, frivolous and vexatious;

(c)	that it is otherwise an abuse of the process of the court.

The application is in respect of a writ of summons filed on 13th August 1999. The Statement of Claim endorsed on the writ claims General, Special and Punitive Damages for defamation of character arising from a broadcast read by the First Defendant and published by the Second Defendant on 3rd and 4th August 1999. The broadcast was in relation to the air-crash of an aircraft belonging to the Plaintiff on 24th July 1999. The particulars of the defamatory words are at Paragraph 7 of the Statement of Claim. They are as follows:

“An Air Fiji Flight PC 153 bound for Moala in Lau suffered a mechanical failure mid-air causing it to make an emergency landing.”

The application was heard on 17th November 1999. Mr S. Matawalu for the Defendants, submitted that the words particularised in the Statement of Claim were not defamatory on their own, and that they did not suggest anything defamatory to a reasonable person. He submitted that the words were only offensive to the Plaintiff because of the air-crash of another air plane two weeks prior to the broadcast. He said that alleging mechanical failure was not defamatory especially when it could happen to any aircraft without warning. He said finally that without a full transcript of the broadcast the Defendants were prejudiced in the preparation of their Defence.

Mr W. Clarke for the Plaintiff, submitted Order 18 Rule 18 applications were not available in defamation actions. He further submitted that no affidavit evidence had been filed in respect of Grounds (b) and (c) of the summons, and that therefore these grounds should be dismissed summarily.

In respect of Ground (a), that is, that there is no reasonable cause of action disclosed by the Statement of Claim, Mr Clarke submitted that the test in respect of defamation actions was whether the words could be defamatory in the legal sense. He submitted that they clearly could. However, counsel agreed that the full transcript of the broadcast could be incorporated in the Statement of Claim so that the implied meanings alleged could be clearer.
Order 18 Rule 18 reads as follows:

“(1) The court may at any stage of the proceedings order to be struck out or amended any pleading or in the endorsement of any writ in the action, or anything in any pleading or in the endorsement on the ground that -

(a)	it discloses no reasonable cause of action or defence as the case may be; or

(b)	it is scandalous, frivolous or vexatious; or

(c)	it may prejudice, embarrass or delay the fair trial of the action or

(d)	it is otherwise an abuse of the process of the court;

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2) No evidence shall be admissible on an application under paragraph (1)(a).”

No affidavit evidence has been filed in respect of grounds (b), (c) and (d). There is therefore no evidence before me, supporting the contention that the proceedings are scandalous, vexatious and an abuse of the process of the court. Nor is there any evidence of any prejudice suffered by the Defendants. Procedures under Order 18 Rule 18 should only be used in “plain and obvious cases” where the claim is “obviously unsustainable” (Supreme Court Practice 1995 p.332).

In Dyson -v- Attorney-General (1911) 1 KB 410 p.419, Fletcher-Mowlton LJ said that the plaintiff should not “be driven from the judgment seat” unless the cause of action was obviously bad and almost incontestably bad. However parties should be protected from litigation which is frivolous, vexatious or hopeless.

On a reading of the Statement of Claim filed by the Plaintiff, I am not satisfied that the claim is frivolous, or vexatious or an abuse of the process. Whilst counsel for the Defendants submitted that the claim was an attempt to mitigate its losses from the air crash of July 1999, there is no evidence at all, of this before me. As such I dismiss the application in terms of grounds (b) and (c) of the Summons.

In respect of the application that no reasonable cause of action is disclosed in the pleadings, the question for the court is whether the cause of action has “some chance of success when only the allegations in the pleading are considered”, (per Lord Pearson in Drummond-Jackson -v- British Medical Association (1970) 1 WLR 688).

In that case, it was held that in a defamation action, if the words complained of are capable of a defamatory meaning, the statement of claim should not be struck out. In Levene -v- Roxhan (1970) 1 WLR 1322, it was held that where the words complained of are interwoven with other circumstances the statement of claim should not be struck out.

Turning therefore to the Statement of Claim in this case, I find that the words particularised in Paragraph 7 are certainly capable of suggesting that Air Fiji aircraft have a history of mechanical problems in the context of the broadcast of the air crash of 24th July 1999, which is referred to in Paragraph 5 of the Statement of Claim. As such the Statement of Claim has at least some chance of success. However, I find, and counsel agree, that the Statement of Claim should be amended to include the full broadcasts of 3rd August and 4th August 1999, since they represent the context of publication referred to in Paragraph 8 of the Statement of Claim.

As such I order the amendment of the Statement of Claim to incorporate the full broadcast so that the Defendants can properly file a Defence.

In the circumstances therefore, I dismiss the application but make no order for costs. The Plaintiff is to file an amended Statement of Claim within 14 days of the date of delivery of this decision.

Nazhat Shameem (Ms)
JUDGE

At Suva
23rd November 1999