IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0221 OF 1998

Between:

VIJAY SINGH
f/n Devi Singh
Plaintiff

and

THE ATTORNEY GENERAL OF FIJI
BLUE SHIELD (PACIFIC) INSURANCE LIMITED
Defendants

Mr. R. P. Singh for the Plaintiff
Ms. N. Karan for 1st Defendant
Ms. D. Singh for 2nd Defendant

DECISION

This is the first defendant’s summons for an order to strike out the writ of summons under Or.18 r.18(1)(a), (b) and (d) of The High Court Rules 1988 and under the inherent jurisdiction of the Court on the grounds that:

(i)	it discloses no reasonable cause of action
(ii)	it is scandalous, frivolous or vexatious
(iii)	it is therefore an abuse of the process of the Court.

The first defendant filed an affidavit in support to which the plaintiff filed an affidavit in response. The parties filed written submissions as ordered but the second defendant did not do so.

I have considered the affidavit evidence and the submissions made by counsel.

The plaintiff in his writ of summons claims special and general damages against the 1st defendant for the negligence of a consultant physician in the C.W.M. Hospital for negligent advice and treatment of the plaintiff and for breach of contract of insurance against the second defendant whereby the plaintiff suffered pain, injury, loss and damages.

It was rather belated, when the pleadings closed and pre-trial conference minutes were about to be finalised, that the first defendant made this application.

The plaintiff maintains that the first defendant was negligent but this is denied by him (the defendant) for the reasons stated in the affidavit filed in support of his application and in the submission made by counsel.

The plaintiff submits that there are no grounds for this application.

The plaintiff says that the defendant had not hitherto asked for particulars of negligence. He is prepared to give particulars if the defendant (D1) asks for it. The D1 has already filed Statement of Defence.

On the ground that the action is ‘scandalous, frivolous or vexatious’ the D1 has not made any reference to this aspect in his submission. The plaintiff submits that this is not the case here. He further submits that this is not a case of abuse of the process of the Court.

The D1’s main complaint in making the application is that the plaintiff should have supplied particulars of negligence. The D1 says that the plaintiff was diagnosed with Hodgkin’s disease and “MOPP” protocol treatment for Hodgkin’s disease was conducted on him which is available in Fiji. The treatment consists of 6 cycles, however, only 4 cycles were conducted on the plaintiff when he suddenly advised the doctors at CWM Hospital that he is leaving for overseas treatment. The doctors in Fiji would only have given him further advise as to whether other treatment has to be carried out on him only after he finished his recommended cycles. Therefore, D1 says that the doctor acted in accordance with the required standard of care in a case of this nature.

The D1 says that there was no breach of duty on the part of the doctor who attended to the plaintiff in not advising him to undertake an overseas treatment as this could have been only done after completion of the recommended treatment. Hence, he says, no damage was caused to the plaintiff as a result of any negligence on the part of the first defendant.

Consideration of the application

This application is made under Or.18 r.18(1)(a), (b) and (d) of The High Court Rules 1998.

Upon considering the affidavit evidence before me and the submissions of counsel, I am of the view that the plaintiff has raised triable issues which merit adducing of evidence in the trial of the action to prove the case. The applicant (the First Defendant) refutes the claim and the plaintiff says he can produce evidence to that effect in the trial hence the action should proceed to trial.

The action is not an abuse of the process and in considering this application on this aspect 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.”

Also on the grounds stated in this application, 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 1 312 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”.

The applicant says that there is no reasonable cause of action but on the evidence before me I hold there are; and in coming to this conclusion I have borne in mind the following Notes to Or.18 r.19/11 of the Supreme Court Practice (U.K.) 1979 Vol.1 where it is stated:

“……..A reasonable cause of action means a cause with some chance of success when only the allegations in the pleadings are considered (per Lord Pearson in Drummond Jackson v British Medical Association [1970] 1 WLR, 688; [1970] 1 All E.R 1094, C.A.). So long as the statement of claim or the particulars (Davey v Bentinck [1893] 1 Q.B. 185) disclose some cause of action, or raise some question fit to be decided by a Judge or a jury, the mere fact that the case is weak, and not likely to succeed is no ground for striking it out (Moore v Lawson) (1915) 31 T.L.R. 418, C.A.; Wenlock v Moloney [1965] 1 W.L.R. 1238 [1965] 2 All E.R 871, C.A.)…” 

Similarly, Lindley M.R. in Hubbuck & Sons, Ltd v Wilkinson, Heywood & Clark Limited [1899] 1 Q.B. 86 at page 91 said:

“… summary procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks. The use of the expression “reasonable cause of action” in rule 4 shews that the summary procedure there introduced is only intended to be had recourse to in plain and obvious cases”.

In Attorney General v Shiu Prasad Halka (1972) 18 FLR 210 Marsack J.A. said of the predecessor to order 18, r.18 of High Court Rules at page 215:

“…. I think it is definitely established that the jurisdiction to strike out proceedings under Order 18 rule 19 should be very sparingly exercised where legal questions of importance and difficulty are raised”.

The Fiji Court of Appeal in its decision of National MBf Finance (Fiji) Limited v Nemani Buli, (Civil Appeal No. ABU0057 of 1998) very clearly enunciated and determined the principles for striking out. At page 2 of the judgment their Lordships said:-

“The law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be proved. If a legal issue can be raised on the facts as pleaded then the courts will not strike out a pleading and will certainly not to do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention…”

Conclusion

For the above reasons on the facts and circumstances of this case, on the authorities and in the exercise of Court’s discretion I refuse the first defendant’s application.

The summons is therefore dismissed with costs in the cause.

D. Pathik
Judge

At Suva
22 July 2003