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Choy v Kautoga [2005] FJHC 649; HAC0352.2004L (16 May 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0352 OF 2004L

BETWEEN:

ANIL CHOY a.k.a SAWELIO VUSO
f/n Raman Choy
Plaintiff

AND:

DAUNIYATU KAUTOGA, MERESEINI RAKAI and MATAIKA KOYAMAINAVURE
Defendants

Counsel for the Plaintiff: Mr. H. A. Shah
Counsel for the Defendants: Ms. A. Watkins

Date of Hearing/Date of Ruling: 16 May 2005

EXTEMPORE RULING

This matter comes before the court by way of a Notice of Motion filed on behalf of the defendant, which Motion seeks that the Summons be struck out pursuant to Order 18 Rule 18 upon the grounds that:

1. It discloses no reasonable cause of action;

2. It is frivolous and vexatious;

3. It is prejudicial and embarrassing; and

4. It is an abuse of the process of this Honourable Court.

An application of this type does not require evidence in support. It requires the court to make its determination based upon a perusal of the pleading itself.

In this matter, the allegation by the plaintiff against the defendant is that the plaintiff suffered damages as a consequence of the slander of him by the defendant. The pleading discloses that a letter was written by the defendant to the plaintiff. The statement of claim does not plead that the letter was published to anybody other than the plaintiff.

The statement of claim also purports to plead damages for conspiracy against the defendant. Again, the document fails to plead essential elements of that alleged conspiracy.

When the matter came before the court today, Counsel for the Plaintiff made an oral application to amend the statement of claim. Counsel was not in a position to indicate to the court, the nature of the proposed amendment nor in a position to file, albeit at this late stage, any formal or proper application for amendment or draft proposed amended documents. In the circumstances, that application lacks standing and cannot proceed.

Counsel for the Applicant/Defendant has made available to the court skeletal submissions.

I have taken account of the material contained in the skeletal submissions and the tests applicable to an application of this type. Perhaps the most salient test is that expressed by Lindley MR in Hubbuck & Sons Ltd v Wilkinson Heywood & Clark Ltd [1898] UKLawRpKQB 176; [1899] 1 Q.B. 86 at page 91 where the Master of the Role 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 shows that the summary procedure there introduced is only intended to be had recourse to in plain and obvious cases.”

Here, the Master of the Roles was dealing with the English equivalent of the High Court Rules Order 18 Rule 18.

The Fiji Court of Appeal in Attorney General v Shiu Prasad Halka (1972) 18 FLR 210 considered the issue where Marsack JA said:

“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.”

His Lordship was there dealing with the predecessor to the current Order 18 Rule 18.

Notwithstanding the caution, that is expressed in the authorities to which I have referred and the authorities referred to in the defendant’s submissions, I am of the opinion that this is such a plain and obvious case where the provisions of Order 18 Rule 18 should be availed upon and accordingly, I make an order in terms of the Summons dated the 12^th January 2005.

The plaintiff is to pay the defendant’s costs which I assess in the sum of Five Hundred Dollars ($500.00).

JOHN CONNORS
JUDGE

At Lautoka
16 May 2005