IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0456 OF 2003

BETWEEN:

BARBADOS MILLS
Plaintiff

AND:

THE COMMANDER, REPUBLIC OF FIJI MILITARY FORCES
THE ATTORNEY-GENERAL OF FIJI
Defendant

Counsel: Mr. Valenitabua – for Plaintiff
Mr. K. Tuinaosara – for 1st Defendant
Mr. Keteca – for second Defendant

Hearing: 11th February, 2005
Judgment: 18th February, 2005

JUDGMENT

The Application

The first defendant applies by way of summons dated the 9th of December 2003 for orders that the statement of claim be struck out on the basis that it discloses no reasonable cause of action, is frivolous and vexatious and is otherwise an abuse of the process of the court.

The application is made pursuant to Order 18 and the inherent powers of the court.

Background Facts

The parties agreed that the prime argument would be made in respect of file HBC 456/03. However, as the factual matrix and essential principles of argument were held in common between that file and the 4 others cited in the entitulement it was agreed that my decision on the Mills case would bind the applicant and the plaintiff in respect of all cases.

At the time of the 2000 Coup Mr. Mills, a Corporal in the Republic of Fiji Military Forces was involved in the attempted mutiny at the Queen Elizabeth Barracks, Nabua. When the mutiny failed the plaintiff went into hiding and later surrendered himself through the kind offices of a Church Minister to a Major in the Military Forces. He was detained for questioning at the military camp but then transferred for safe keeping to the Nabua Police Station.

It is said while he was at the Nabua Police Station a group of soldiers arrived, presented a document purporting to be an order for the release of Corporal Mills into their custody, and escorted the corporal away.

Rather than returning to barracks it is alleged that the military truck used for his transportation from the Nabua Police Station diverted to the Army’s Rifle Range at Vatuwaqa where the plaintiff and others were brutalized.

Corporal Mills pleads that he was punched, kicked and beaten with sticks and rifle butts by the soldiers. As a result he says he received extensive and severe injuries all over his body, was unable to walk and had to be carried on arrival back at the Queen Elizabeth Barracks to the main cell block. He was later admitted to the intensive care unit of the Colonial War Memorial Hospital. The Corporal says he sustained permanent and severe injury.

In his amended Statement of Claim the Corporal says that the first defendant as Commander of the Republic of Fiji Military Forces either expressly or impliedly ordered this brutality. I take it that the plaintiff is pleading condonation by the Commander of his soldiers actions. In addition, although poorly pleaded, it is said that the Commander should be held vicariously liable for the injuries sustained by Corporal Mills. It is said that the Commander first defendant is sued in accordance with the provisions of the Crown Proceedings Act, Cap. 24. 

The pleadings have been crafted so as to avoid a claim solely based in tort, rather, the plaintiff claims damages flowing from a breach of the plaintiff’s constitutional rights of freedom from cruel and degrading treatment and the right to be treated with humanity and inherent dignity. The plaintiff pleads that these non-derogable rights were breached when the Commander either ordered or allowed that beating to occur. As a result he claims damages for breach of these constitutional rights caused, he says, by the Commander.

The Application

The application essentially argues:

1.	The absence of any reasonable evidence to support the allegations.

2.	The lack of constitutional liability of the first defendant.

3.	The State’s liability for its servants.

4.	A breach of time limits. 

Decision

The Fiji Court of Appeal in its decision on National NBF Finance (Fiji) Limited v Nemani Buli (Civil Appeal No. ABU0057 of 1998) clearly 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 provided. 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 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….”

The rule of law requires the existence of courts for the determination of disputes and that litigants have a right to use the court for this purpose. Courts must also, however, be alert to their processes being used in a way that results in an oppression or injustice that would bring the administration of justice into disrepute. This is because “The courts authority possessed of neither the purse nor the sword ultimately rests on some sustained public confidence in its moral sanction” (Justice Felix Frankferter in Baker v Carr, 369 US 186267 [1962].

The courts then, will guard against the frivolous and vexatious litigant using the courts resources only as a means of vexation and oppression. Similarly the court will prevent an abuse of its process to avoid unfairness and injustice. In exercising that jurisdiction the court is protecting its ability to function as a court of law in the future as much as in the case before it (cf Reed v New Zealand Trotting Conference [1984] 1 NZLR 8 at page 9 per Richardson J.)

However, that there is a caution to be exercised by the court when considering applications of this type was highlighted by Mr. Justice Pathik in Kumar v Kumar & Others, 2003 Civil Action No. 23 of 2003, where his Lordship in applying Attorney-General v Halka, (1972) 18 FLR 210 at 215 said:

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

I agree.

It is only in plain and obvious cases that resort should be had to this summary process. This is not such a case. Throughout his written submission and in answer to questions from the bench counsel for the first defendant conceded that the majority of his arguments were based on a wrong principle. In his written submissions (at paragraph 14, 45 and 31, by inference) counsel argues an absence of evidence in the plaintiffs pleadings to sustain the pleaded allegations is fatal.

However, in strike out applications I am obliged to assume that the factual basis on which the allegations contained in the pleadings are raised will at trial be provided. It is only in exceptional and very rare cases that the court might take judicial notice of a completely false or untenable factual contention.

The plaintiff has pleaded that he was arrested, detained, uplifted under order, beaten, brutalized and suffered injury. These are facts that I must assume are capable of proof. For that reason the trial should proceed.

Each of the statements of claim allege that the plaintiff was severely assaulted or brutalized by military personnel. Each of the pleadings is that these grave assaults clearly breached the plaintiff’s constitutional rights to freedom from cruel and degrading treatment. Those rights are non-derogable. Each plaintiff alleges that the Commander 1st Defendant was liable because the soldiers concerned were acting either under his direct orders or indirectly had their actions condoned by him. That issue can only be properly addressed after the court has heard evidence.

These proceedings are certainly not frivolous or vexatious. These proceedings don’t need to be struck out as part of the process of the court exercising a jurisdiction to protect its ability to function as a court of law in the future. Indeed far from it in my view the rule of law demands that these cases have a full hearing.

Time Limitations and Notice to RFMF

The defendant argues that a notice ought to have been given to the RFMF of these proceedings one month before the action was commenced. They make that argument in reliance on section 52(1) of the Fiji Military Court Act (Cap. 81). That section reads:

“No action shall be brought against any officer or soldier for anything done by him under this Act unless the same is commenced within three months after the act complained of was committed or unless notice of such action has been given at least one month before such action was commenced.”

However, the subsection refers to “anything done by the (officer or soldier) under this Act”. My brother Justice Scott considered this argument by inference in Viliame Lotawa v The Attorney-General, Civil Action No. HBC0262 of 2001S where a similar argument was run by counsel for the State that the action by the plaintiff was time barred. His honour observed:

“…I do not think that it is the plaintiff’s case that the alleged actual tortfeasors were performing duties imposed on them under the RFMF Act and accordingly I reject the submission.”

The allegation in this and the other claims are that the soldiers and possibly their Commander were acting unlawfully and outside the RFMF Act. Accordingly, I find that there was no requirement on the part of the plaintiff to comply with the technical requirements of the RFMF Act (Cap. 81) when instituting these proceedings. Even if there were such a requirement in my view the one month delay is unexceptional, it certainly has caused no prejudice to the first defendant. 

For similar reasons I would, on these pleadings, reject the plaintiffs need to comply with the ‘particulars’ requirements of Section 52(2) RFMF Act.

Conclusion

It is clear that the first defendant contends that his defence will be:

1.	That he did not authorize any assault of the plaintiffs.

2.	The soldiers who assaulted the plaintiffs acted beyond their respective orders and they should therefore be sued in their personal capacity.

3.	That the principle of condonation of assault is inapplicable.

4.	In the alternate the first defendant relies on the doctrine of necessity under a state of emergency to justify the unlawful detention and brutalization of the plaintiffs.

5.	Alternatively the State should be liable for any damages caused the plaintiffs by the soldiers as the Commander is a servant of the State and protected from personnel liability under the Crown Proceedings Act.

Each of these fore-shadowed defences raised against the plaintiffs allegations are only capable of determination after the hearing of evidence. The evidence will form the factual matrix within which the complex issues of law might be resolved. Foremost in that resolution will be whether or not a breach of the Republic’s Constitution might lead to an award of damages independent of any liability in tort or the need to resort to Constitutional redress for remedy.

Thereafter the issue of the Commander’s ability to claim indemnity from the State might be argued. However, this argument too contains significant issues of mixed fact and law, that only a full hearing should properly resolve.

Finally I echo the words contained in the decision of the Attorney-General v Halka [1972] FLR 210 at 218 where Marsack JA said:

“I fully appreciate the diligence and the industry shown by counsel in presenting the profound and well reasoned arguments submitted to this court but the fact that such arguments were necessary supports, in my view, the opinion which I have expressed, that important and difficult questions of law are involved in this action. Consequently it is not a case in which the court’s discretion should be exercised in the direction of striking out under the rule quoted.”

For these reasons the application by the first defendant to have these proceedings summarily struck out is dismissed. Costs are fixed at $1,000.00 in respect of Action No. 456 of 2003. There are no costs on the remaining Actions 458 and 460 of 2003 but my order in this matter otherwise applies.

Gerard Winter
JUDGE

At Suva
18th February, 2005