IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. 219 of 2009

BETWEEN :

SURESH AUTAR son of Ram Autar of Lautoka,
Businessman trading as SURESH MOVIES HOUSE
PLAINTIFF

AND :

THE COMMISSIONER OF POLICE
1ST DEFENDANT

AND :

ATTORNEY GENERAL OF FIJI
2ND DEFENDANT

Before : Master Anare Tuilevuka

Counsel : Messrs Haroon Ali Shah for the Plaintiff
Legal Officer – AG’s Office for the Defendant

Date of Hearing : 15th December 2010
Date of Ruling : 27th January 2011

RULING

[1].	This is my ruling on an application by the Office of the Solicitor-General under Order 18 Rule 18 (1)(a) of the High Court Rules to strike out the plaintiff’s claim on the ground that it discloses no reasonable cause of action. As a starting point, I reiterate the general principle that the jurisdiction to strike out proceedings under Order 18 Rule 18()(a) is guardedly exercised, and only in exceptional cases where, on the pleaded facts, the plaintiff could not succeed as a matter of law. It is not exercised where legal questions of importance are raised.

[2].	The extent to which the jurisdiction is so guardedly exercised is evident from the New Zealand Court of Appeal decision in New Zealand Maori Council –v- A-G [1996] 3 NZLR 140 at 175-6, per Thomas (see also Fiji Court of Appeal decision in National MBF Finance –v- Nemani Buli (CA No. 0057/1998; Tabauvale –v- Divisional Engineer Northern [2004] FJHC 173; HBC 0033/2001B (23 January, 2004, as per Fatiaki CJ) where the learned Thomas JA said that even an inchoate feeling that at the end of the day, a claim is likely to fail is not firm enough ground to strike out a claim.

[3].	Usually, in an Order 18 Rule 1 (a) application, the Court will limit its inquiry into the facts as pleaded. Hence there is no requirement for parties to file an Affidavit. Where shortcomings in a pleading are curable by an amendment, Courts have used their discretion to allow the offending party to amend their pleading rather than strike it out (Marshall Futures -v- Marshall [1992] 1 NZLR 316 at 324).

[4].	The plaintiff was in the business of retailing DVD movies from its outlets in Lautoka and Nadi. 

[5].	His claim alleges that the defendants-police officers seized various DVD discs from two of his outlets in Lautoka on the 13th of November 2009 and from his Nadi outlet on the 17th of November 2009. He alleges also that the DVDs seized were in fact all originals which he had imported from abroad and which had been cleared by Customs Authorities at point of entry. The plaintiff's case theory is that - because the DVDs were original (and because they had been cleared by Customs) there was no infringement of the Copyright Act. 

[6].	The claim further alleges that the seizure of these discs had resulted in the plaintiff having to close its business operations in these outlets. Despite the plaintiff's pleas for the return of these DVDs – the defendants have refused to oblige.

[7].	The remedies that the plaintiff seeks are:

(i)	$26,950-00 being the value of the DVDs seized.
(ii)	General damages for unlawful seizure
(iii)	Exemplary and punitive damages
(iv)	A declaration that the seizure was unlawful
(v)	A declaration that the defendants are not entitled under the Copyright Act 1999 to seize DVDs that do not offend the Copyright Act.

[8].	There is no allegation of malice against the defendants. It is not alleged either that the defendants did not have any reasonable suspicion that the DVDs seized were in fact pirated.

[9].	In their submissions, the defendants highlight that the search was conducted after a tip-off and pursuant to a lawful search warrant. Also – they argue in their submissions that the company that had exclusive distribution rights over the movies concerned had not permitted the plaintiff to sell them. But this is a matter for trial. 

[10].	It is not clear whether the plaintiff's allegations and the defendant's responses applied to all DVDs seized or to some only. Again - these can only be clarified through a trial proper. 

[11].	The defendants also submit that they are immune from civil suit pursuant to section 17 and 20 of the Police Act and in conjunction with section 122 of the Copyright Act 1999 – emphasizing that the search was carried out pursuant to a regular search warrant issued by a Magistrate.

[12].	While there is indeed provision for immunity, whether or not it applies in any given case cannot be determined summarily. 

[13].	I acknowledge that the weight of authorities may indeed eventually see immunity being invoked (see Tiara Enterprises Ltd v A-G [2009] FJHC 155; HBC 418 of 1997 (29th July 2009) and Crystal Clear Video Ltd v Commissioner of Police [1988] FJHC 1; [1988] SPLR 130 (22 July 1988); R v Zotti [2002] SASC 164 (24 May 2002); Crystal Clear Video Ltd v Commissioner of Police [1988] FJHC 1; [1988] SPLR 130 (22 July 1988)). 

[14].	The cases of Tiara Enterprises Ltd v A-G and Crystal Clear Video Ltd dealt extensively with the wide powers given to police officers to seize goods where there is "reasonable suspicion" that an offence has been committed. A suspicion is indeed "something less than proof of a fact whether to the standard of the civil or criminal law" (see R v Zotti cited by Inoke J in Tiara Enterprises Ltd).

[15].	But again - the judicial pronouncements in these cases were not made summarily. They were made after a trial proper.

[16].	In my view – the law must presume the defendant officers to perform in accordance with the law the searches and seizure which they carried out pursuant to the lawful search warrant.

[17].	So, it is on the plaintiff who alleges otherwise to prove that the defendants did not carry these out lawfully.

[18].	But having said that, I think it would still be inappropriate for this Court to allow the defendants to rely on that presumption (however strong the presumption is) at this stage as a ground for striking out the claim. To do so, would simply be tantamount to shutting the plaintiff out without affording him the right to plead his case in Court.

[19].	Even a weak case is entitled to the time of the court (as per Kirby J in Len Lindon v The Commonwealth of Australia (No. 2) S. 96/005. Even if it all boils down to whether or not the defendants' suspicions in carrying out the search and in seizing the items were reasonable – the plaintiff should not be shut out now from the opportunity to prove at trial that the search and the seizure were unreasonable.

[20].	Accordingly, I dismiss the application to strike out. Costs in the cause. Case adjourned to 10th of February 2011 for mention.

Anare Tuilevuka
Master

At Lautoka
28th January 2011