IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0058 OF 2003

Between:

TANIELA BOLEA
Plaintiff

and

FIJI DAILY POST COMPANY LIMITED
Defendant

Mr. I. Tuberi for the Plaintiff
Mr. T. Tuitoga for the Defendant

DECISION

This is the defendant’s summons for an order that the ‘Statement of Claim’ be wholly struck out under Order 18 Rule 18(1)(a) of the High Court Rules 1988 on the grounds that the claim discloses no reasonable cause of action and that it is statute-barred.

Background facts

By Writ of Summons issued herein the plaintiff claims the sum of $44,692.31 being unpaid leave entitlement for 58.1 weeks from 17 October 1987 to 26 October 1998 as per Particulars of Claim set out in the Statement of Claim.

The defendant has filed Defence denying any liability.

Defendant’s submission

The defendant submits that the plaintiff is not entitled to any ‘additional’ money on top of his basic annual salary which he was paid in the absence of a specific contract that allowed for further payment. But no such agreement is allowed under Regulation 18(1) of the Employment Regulations.

For the above reason it is submitted by counsel that the plaintiff’s claim discloses a reasonable cause of action and that if allowed to proceed with this action it would amount to an abuse of the process of the Court.

The defendant further submits that the plaintiff’s claim is out of time and therefore statute-barred. It says that the plaintiff claims for periods commencing in 1987 and it is submitted that only the last two periods from 17/10/1996 – 16/10/1997 and 17/10/1997 – 26/10/1998, could be held to be within the 6 year limitation period which applies to the Plaintiff’s claim (s4 of the Limitation Act, Chapter 35).

Plaintiff’s submission

The learned counsel for the plaintiff submitted that the defendant cannot rely on the limitation period when it was in breach of not paying the amount due for leave on 22 April 1998 when it admitted that certain amount was due. The plaintiff says that there was sufficient acknowledgment that the defendant owed the plaintiff $10,262.00 gross.

He says that there was no employment contract provided by the defendant. Hence there was no agreement on the subject of annual leave.

The plaintiff submits that the defendant was in breach of Regulation 11 of the Employment Regulations 1985 when it failed to give the Plaintiff annual leave. Regulation 11 provides:

“11. Notwithstanding any other law for the time being in force every employer in any undertaking shall give to his employees paid holidays in accordance with the provisions of this Part:

Provided that nothing in these Regulations shall prevent any employer giving to his employees paid annual holidays in excess of those required to be given in accordance therewith.”

Consideration of applicant

This application is made under Or.18 r.18(1)(a) of the High Court Rules 1988 which provides:

18(1)	The Court may at any stage of the proceedings Order to be struck out or amended any pleading or the indorsement of any writ in the action; or anything in any pleading on the ground that –

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

(b)	…..

(c)	…..

(d)	…..

On the affidavit evidence before me and upon considering the submissions made by both counsel, I am of the view that the plaintiff has raised certain issues which merit adducing of evidence in the trial of the action to prove the case. If the defendant refutes the claim, which it does, then it could produce evidence to that effect in the trial so why not let the action proceed to 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 I apply the following principles of law: “it is not the practice in the civil administration of our Courts to have a preliminary hearing, as it is in crime” (per Sellers L.J. in Wenlock v Moloney [1965] 1 W.L.R. at p.1242). As stated in the Notes to Or.18 r.19 in The Supreme Court Practice 1979 Vol I 312 that: ‘it is only in plain and obvious cases that recourse should be had to the summary process under this Rule’ and that ‘it can only be adopted when it can be clearly seen that a claim or answer is on the fact of it obviously unsustainable’ (A.G. of Duchy of Lancaster v L. & N.W. Ry. Co [1892] 3 Ch 274, C.A.). It cannot be said here that the action is one which cannot succeed or is in some way an abuse of the process. 

Also, 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, 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”.

On the facts of this case in the exercise of my discretion I am not satisfied that the defendant has made out a case for the striking out of the claim as an abuse of the process of the Court on the ground allegedly of no reasonable cause of action and that it is statute-barred. It would be wrong to do so.

The application is dismissed with costs the sum of $250.00 to be paid within 14 days. The action is to take its normal course.

D. Pathik
Judge

At Suva
27 June 2003