IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0494 OF 2002

Between:

JONE BEBE
Plaintiff

and

TELECOM FIJI LIMITED
Defendant

Mr. Rabo Matebalavu for the Plaintiff
Mr. H. Nagin for the Defendant

JUDGMENT

By motion dated 16 January 2003 the defendant is applying for an order that the plaintiff’s action be struck out with costs on the ground that it is an abuse of the process of the Court pursuant to Order 18 Rule 19 (1)(d) of the High Court Rules 1988.

The application is supported by an affidavit sworn by Samuela Vadei, the Company Secretary and Legal Counsel of the defendant company. The plaintiff swore an affidavit in reply on 25 February 2003 and a reply thereto was filed by the defendant on 14 May 2003.

As ordered, I have before me written submissions from both counsel to which I have given due consideration.

Background facts

The plaintiff’s employment with the defendant was on 18 August 2000 terminated for allegedly deliberately and wilfully sabotaging and damaging the defendant’s International Telecommunication Services.

On 28 March 2001 the plaintiff filed Judicial Review (No. HBJ0010 of 2001) against his termination. But this was discontinued by him on 18 April 2001. Then on 6 June 2001 the plaintiff filed Civil Action No. HBC 243/01 against the defendant claiming wrongful termination but this action was also discontinued on 8 November 2001.

Then on 28 January 2002 the defendant filed a Writ No. 34/02 claiming $125,000.00 from the plaintiff for deliberate and wilful sabotage. While this action was pending the plaintiff filed the present action (C.A. 494/02). The defendant submits that in action 34/02 Jone Bebe even applied to file an amended Statement of Defence to include a Counterclaim claiming substantially the same relief sought in the statement of claim in this action (C.A. 494/02).

Defendant’s contention

The defendant contends that this action of the plaintiff is an abuse of the process of the Court.

After outlining the actions that the plaintiff took after being terminated from employment and discontinuing the actions as stated hereabove, the defendant submits that there was no need for the plaintiff to file this present action. 

Counsel submitted that the plaintiff sought to canvass the same matters in other actions and also his application to amend his pleading to include these very claims.

Plaintiff’s contention

The learned counsel for the plaintiff submits in opposition to the application to strike out that there is only this action (No. 494/02) pending in the High Court as all other actions previously brought by the plaintiff (Judicial Review 10/01 and C.A.243/01S) have been discontinued with the consent of the same defendant.

Counsel says that the perusal of the plaintiff’s Statement of Claim, and, indeed, the on-going proceedings and counter-actions between the plaintiff and the defendant tend to show that many issues and facts are in dispute between them.

The plaintiff says that the defendant’s action No.34/02 has no direct bearing on the plaintiff’s present claim and that the questions raised in the plaintiff’s Statement of Claim have not at all been litigated between the parties.

The plaintiff denies that it has abused the process of the court in the circumstances stated hereabove.

Consideration of the issue

It is quite clear that the only actions pending before the Court are C.A. 34/02 and the present action (C.A. 494/02). In C.A. 34/02 the defendant in that action is the plaintiff and the plaintiff is the defendant, and it is vice versa in C.A. 494/02.

On the affidavit evidence before the Court it is obvious that the plaintiff is not happy with his dismissal and he is seeking certain relief in C.A. 494/02. On the other hand in C.A. 34/02 the defendant claims damages etc. arising out of the alleged misconduct of the plaintiff when he was in employment of the defendant and consequently the plaintiff’s employment was terminated.

While I am considering this application, I should state that I have this day delivered a Decision in 34/02 relating to the plaintiff’s application to file ‘Amended Statement of Defence and Counterclaim’ allowing the plaintiff’s application.

By allowing the application in 34/02, the door is now open to the plaintiff to now raise some if not all the issues in 494/02.

On the facts and circumstances of this case it cannot be said that the steps the plaintiff took were an abuse of the process of the Court particularly when his two other actions were discontinued by him. It cannot be said that it is in the least plain obvious or clear beyond doubt that the action cannot succeed, or an abuse of the process of the court. The plaintiff definitely had the right to bring this action.

In the context of this case I find the following statement of Megarry V.C. in Gleeson v J. Wippell & Co. [1977] 1 W.L.R. 510 at 518 apt:

“First, there is the well-settled requirement that the jurisdiction to strike out an endorsement or pleading, whether under the rules or under the inherent jurisdiction, should be exercised with great caution, and only in plain and obvious cases that are clear beyond doubt. Second, Zeiss No. 3 [1970] Ch. 506 established that, as had previously been assumed, the jurisdiction under the rules is discretionary; even if the matter is or may be res judicata, it may be better not to strike out the pleadings but to leave the matter to be resolved at the trial”. 

In considering this application I have borne in mind the following passage from Halsbury’s Laws of England 4th Ed Vol. 37 para. 434 on ‘abuse of process’ which I consider pertinent:

“An abuse of the process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the process is misused. In such a case, even if the pleading or indorsement does not offend any of the other specified grounds for striking out, the facts may show that it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or indorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court.”

On the facts and circumstances of this case for the above reasons, on the authorities and as a matter of discretion, I do not consider that it would be right to strike out the writ or pleadings, indeed it would be wrong to do so. I leave it open to the parties how far my decision in 34/02 referred to hereabove can or should affect them in this action necessitating the consideration of the two actions being consolidated.

Accordingly, for these reasons this application fails and in view of my decisions of this day in C.A. 34/02 each party to bear his own costs.

D. Pathik
Judge
At Suva
20 June 2003