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Lavulo v American Home Assurance Company [2004] FJHC 416; HBC0324.2003L (14 May 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0324 OF 2003L

BETWEEN:

AMI JOHN LAVULO
Plaintiff

AND:

AMERICAN HOME ASSURANCE COMPANY
1st Defendant

AND:

MARSH LIMITED
2nd Defendant

AND:

ATTORNEY GENERAL OF FIJI
3rd Defendant

Counsel for the Plaintiff: Mr. J. Boseiwaqa
Counsel for the 2nd Defendant: Mr. G. Leung

Date of Hearing & Judgment: 14 May 2004

EXTEMPORE JUDGMENT

Before the court is a Summons filed on the 10th of November 2003 on behalf of the 2nd defendant. In that Summons the 2nd defendant seeks that the whole of the plaintiff’s statement of claim be struck out as against the 2nd defendant on the grounds that the discloses no reasonable cause of action and further that the plaintiff pay the 2nd defendant’s costs of the application.

I have had the benefit of the written outline submissions on behalf of the 2nd defendant and also on behalf of the plaintiff.

The background to the proceedings appears from the pleadings to be that the plaintiff having effected insurance pursuant to an insurance regime established by the 3rd defendant, the employer of the plaintiff, sought to claim on that policy and was dissatisfied for the reasons set forth in the pleadings with the payments made pursuant to that claim.

It appears from the pleadings that the 2^nd defendant is an insurance broker who participated in effecting or facilitating the insurance with the 1^st defendant on behalf of the 3^rd defendant and its employees.

The provisions of Order 18 Rule 18 have been considered by the court on numerous occasions and the authorities, which those considerations consistently rely on, have not changed in recent times. It is perhaps convenient to look at the decision of Mr. Justice Byrne in Akariva Vula Rokotuitavuki v Methodist Church in Fiji and Attorney General Action No. HBC0018 of 1996 where His Lordship there referred to the relevant authorities at page 4 of his judgment where he said and I quote:-

“The law governing applications such as this is well settled. Lindley M.R. in Hubbuck v Wilkinson [1889] 1 Q.B. 86 at page 91 said that it is only in plain and obvious cases that recourse should be had to the summary process under Order 18 Rule 18(1) of the Rules of the High Court. This was affirmed in Kemsley v Foot & Ors [1952] A.C. 345. In Attorney General of Duchy of Lancaster v L.N.W. Ry Co. [1892] UKLawRpCh 134; [1892] 3 Ch 274 said that Rule 18 can only be invoked when the claim is on the face of it “obviously unsustainable.”

And again the caution that should be exercised when considering applications of this type was highlighted again by this court by Mr. Justice Pathik in Hemant Kumar v Suresh Kumar & Ors [2003] HBC0033 of 2003 where His Lordship in applying Attorney General v Shiu Prasad Halka [1972] 18 FLR 210 at 215 said and I quote: -

“I think it is definitely established that the jurisdiction to strike out proceedings under Order 18 Rule 19 should be very sparingly exercised, and only in exceptional cases. It should not be exercised where legal questions of importance and difficulty are raised.”

It is with these authorities in mind that I cautiously approach the consideration required by the court in this application.

The plaintiff has submitted a number of authorities to the court, all of which highlight the need for the caution to which I have already referred.

The plaintiff’s pleading in its statement of claim describes the 2^nd defendant as an Insurance Broker and pleads that it was responsible for setting up the group insurance scheme of which the 3^rd defendant was one of the beneficiaries.

The plaintiff then in paragraphs 14 – 19 pleads generally with respect to the defendants and not specifically with respect to any of them or most relevantly with respect to the applicant, 2^nd defendant.

It appears that the pleadings in paragraph 14 – 19 inclusive may relate to the 1^st defendant but it is difficult to perceive how those pleadings relate to the 2^nd defendant.

Order 18 Rule 18(1)(a) being the order pursuant to which the application is made states and I quote: -

“The court may at any stage of the proceedings order to be strike out or amended any pleading or 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.”

Taking account of the cautious approach that the court is required to take in applications of this type. I am satisfied that the pleading of the plaintiff as against the 2^nd defendant, discloses no reasonable cause of action and accordingly I am of the opinion that the plaintiff’s statement of claim should be struck out as against the 2^nd defendant.

The Orders of the Court therefore will be: -

1. That the whole of the plaintiff’s statement of claim is struck out against the 2^nd defendant;
   
2. I assess the 2^nd defendant’s costs of the application in the sum of Five Hundred Dollars ($500.00).
   

JOHN CONNORS

JUDGE

AT LAUTOKA

14 MAY 2004