IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 41 of 2012

BETWEEN:

PRAKASH MANI and NIVEDITHA KAMINI GOUNDER
both of 27 Lagoon Way, West Harbour, Auckland, New Zealand.
PLAINTIFFS

AND:

VEER CHAND and RAM DULARE
(deceased) of Calia, Navua, Caretaker.
FIRST DEFENDANTS

VIJAY NARAYAN
of 96 Fitz William Road, Toogabhie, NSW 2146, 

ASIMAN NISHA NARAYAN 
as Administratix of the Estate of DEO NARAYAN and RAM NARAYAN 
of 47 Mala Mala Street, Lautoka, 

PRANIL VINESH RAJAN, 
MOHAMMED ALI and SHAUKAT ALI, 
RAJENDRA SINGH, 
DURGA PRASAD, RAJENDRA SHARMA 
and GYAN WATI all of Calia, Navua.
SECOND DEFENDANTS

NAVUA RURAL LOCAL AUTHORITY.
THIRD DEFENDANT

DIRECTOR OF TOWN & COUNTRY PLANNING
FOURTH DEFENDANT

THE ATTORNEY – GENERAL OF FIJI
FIFTH DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSEL : 	Mr. S. Chandra for the Plaintiff 
Ms. Lal R. for the 1st Defendant 
Mr. Green R and Mr. Pickering J. for 3rd and 4th and 5th Defendants.

Date of Hearing : 26th October, 2012
Date of Ruling : 5th November, 2012

RULING

A.	INTRODUCTION

1.	This is an application by the third, forth and fifth Defendant to strike out the Plaintiff's claim against the said Defendants pursuant to Order 18 Rule 18 1 (b) and (d) of the High Court Rules 1988 on the grounds that the Summons is scandalous, frivolous or vexatious and is an abuse of the court process. The Plaintiff seeks to obtain an order of the court for the division of the land in terms of an agreement between the parties, but at the same time seeks to challenge the permission given by the 3rd and 4th Defendants to erect a fence within the said land and also seeks a declaration that revocation of the permission granted to the Plaintiff be nullified. Once the sub-division is granted the issue of fence will not arise as any boundary should be in accordance with sub-division and all the existing structures including fences has to be realigned with sub-division. It is common ground any 'development' in a co-owned land is subject to final subdivision. The permission granted by the 3rd Defendant to erect a fence was not appealed during the stipulated time period in terms of the Section 5 of the Town and Country Planning Act and in this action the local authority, the Director of the Town and Country Planning and the Hon. Attorney General were made parties on the basis of the permission granted for erection of fence and the revocation of the permission to erect the fence to the Plaintiff. There is no need to add these parties to this action as the Plaintiff is seeking to divide the land and, the parties that are needed for such division of a land are only parties who has an interest/ ownership in the land and not any public authorities who gave permission for any 'development' of the said land including erection of structures and also more importantly to erect fences. The basis of joining the said parties solely on permission granted to erect a fence, which the Plaintiff did not appeal or challenge within the time period stipulated in Section 5 of the Town and Country Planning Act. The Plaintiff did not seek extension of the time for the appeal in terms of the provisions contained in said Act. The 3rd, 4th and 5th Defendants are joined to this action where the primary purpose is the division of the and wrongfully joined an action seeking to nullify the said decisions regarding the erector of fence, is an abuse of process and the alleged claim against them is also frivolous.

B.	FACTS 

2.	The Plaintiff in this case is seeking the following Orders

(1.)	An Order for Sub-division of the property in terms of the deed dated 8th November 1993 to obtain separate Certificate of Title.

(2.)	An Order that the status quo to be maintained by the Defendants until the determination of this action.

(3.)	A Declaration that the Third Defendant's action to revoke the approval dated 18th August 2011 unlawful and unjustified.

(4.)	A Declaration that the Third Defendants are estopped from revoking approval dated 18th August 2012.

(5.)	Specific and General Damages.

(6.)	The Plaintiff be awarded cost of this Action against the First, Third and Fourth Defendants.

(7.)	The First Defendants have been permitted by the Second and Third Defendants to build an Extension to his house and illegally fencing the area.

3.	Though the Defendants could have filed an affidavit in support of the summons but they opted not to file and relied on the pleadings. The issues before me are a legal and are as follows

a.	Is the Plaintiff's alleged cause of action against the 3rd, 4th and 5th Defendants an abuse of process?

b.	Is the alleged cause of action against the said defendant frivolous?

C.	THE LAW AND ANALYSIS

4.	The principal on striking out claim is established under Order 18 Rule 18 of the High Court Rules 1988, which provides that;-

Striking out pleadings and endorsements (O.18, r.18)

18.-(1) The Court may at any stage of the proceedings order to be struck or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that-

(a)	it discloses no reasonable cause of action or defence, as the case may; or

(b)	it is scandalous, frivolous or vexatious; or 

(c)	it may prejudice, embarrass or delay the fair trial of the action; or 

(d)	it is otherwise an abuse of the process of the court; and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2) No evidence shall be admissible on an application under paragraph (1) (a).

(3) This rule shall, so far as applicable, apply to an originating summons and a petition

D.	ABUSE OF PROCESS

5.	The Plaintiff is seeking to revoke the approval granted by the 3rd Defendant for erection of a fence and also for a declaration that said approval was unlawful and unjustified. At the same time the Plaintiff is seeking an order of the court to declare that the 3rd Defendant is estopped from revoking the approval granted to the Plaintiff. This revocation was notified to the Plaintiff on 12th January 2011. (see paragraph 8 (g) of the statement of claim). The statement of claim was filed on 17th February, 2012 which was after one year from the communication of the said decision of the 3rd Defendant, to the Plaintiff. This is according to the statement of claim and it is an admitted fact. I need not venture more on the inordinate delay and fallacy of such a declaration as it is evident!

6.	Fourth Defendant is Director of Town and Country Planning who is vested with authority in the sphere of public law relating to the issue of permission on matters relating to Town and Country Planning Act. Any such decision is subject to an appeal in terms of the Section 5 of the same Act.

7.	Order 15 rule 18 of the High Court Rules of 1988 (which is analogous to R.S.C Ord. 15 r 16 in U.K in 1983) was discussed with its evolution in the light of the judicial review and the expansion of the Order 53 (identical provision in Fiji) regarding judicial review and its overlapping jurisdiction in O'Reilly v Mackman (1983) 2 A.C. 237 by Lord Diplock at p 276 in the following manner

'My Lords, the power of the High Court to make declaratory judgments is conferred by what is now R.S.C .Ord. 15 r 16. The language of this rule which first made in 1883 has never been altered, though the numbering of the rule has from time to time been changed. It provides

'No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether or not and consequential relief is or could be claimed.'

This rule, which is in two parts separated by "and", has been very liberally interpreted in the course of its long history, wherever it appeared to the court that the justice of the case required the grant of declaratory relief in the particular action before it. Since "action" is defined so as to have included since 1938 and originating motion applying for prerogative orders, Ord. 15 r 16 says nothing as to the appropriate procedure by which declarations of different kinds ought to sought,…."

8.	In the case of Sheetal Investments Ltd v Australia and New Zealand Banking Group Ltd [2011] FJHC 271; HBC 227.2010 (13 May 2011) it states that:

"….In Halsbury's Laws of England Vol. 37 page 322 the abuse of process is described as follows:

An abuse of 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 endorsement does not offend any of the other specified grounds for striking out, the facts may show 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 endorsement 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 an 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 ……' (emphasis is mine)

9.	The term 'abuse of process' is defined in the following extract from Walton v Gardiner (1993) 1777 CLR 378 as follows:

"…..Abuse of process includes instituting or maintaining proceedings that will clearly fail, proceedings unjustifiably oppressive or vexatious in relation to the defendant, and generally any process that gives rise to unfairness ……"

10.	The case of Timber Resource Management Ltd v Minister for Information [2011] FJHC 770; HBC 212.2000 (22 November 2011) it states that:

"…. The term 'abuse of the process of the court' is also explained in White Book as follows:

This term connotes that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent the improper use of its machinery, and will, in a proper case, summarily prevents its machinery from being used as a means of vexation and oppression in the process of litigation. (Castro v Murray (1875) 10 Ex. 213; Dawkins v. Prince Edward of Saxe Weimar; Willis v. Earl Beauchamp (1886) 11 P. 59, PER Brawn L.J. p. 63)…."

11.	Lord Diplock O'Reilly v Mackman (1983) 2 A.C. 237 stated at page 279 as follows regarding the availability of the judicial review relating to the decision of a statutory body 

'It will be noted that I have broadened the much-cited description by Atkin L.J. in Rex v Electricity Commissioners, Ex parte London Electricity Joint Committee Co (1920) Ltd [1924] 1 K.B. 171, 205 of bodies of persons subject to the supervisory jurisdiction of the High Court by prerogative writs might issue, to those "having the duty to act judicially". For the next 40 years this phrase gave rise to many attempts, with varying success, to draw subtle distinctions between decisions that were quasi-judicial and those that were administrative only. But the relevance of argument of this kind was destroyed by the decision of this House in Ridge v Baldwin [1964] A.C 40, where again the leading speech was given by Lord Reid. Wherever any person or body of persons has authority conferred by legislation to make decisions of the kind I have described, it is amenable to the remedy of an order to quash its decision either for error of law in reaching it or for failure to act fairly towards the person who will be adversely affected by the decision by failing to observe either one or other of the two fundamental rights afforded to him a reasonable opportunity of learning what is alleged against him and of putting forward his own case in answer to it, and to whom the decision falls to be made.' (emphasis is added)

12.	The 3rd to 5th Defendants submit that the Plaintiff in this matter should have initiated the proceedings against the 3rd and 4th Defendants by way of a judicial review application if they were not satisfied with the approval granted by the 4th Defendant to erect a fence on the land to the 1st Defendant. The Plaintiff's similar application for erection of a fence within the land though initially granted, was subsequently revoked. The Plaintiff neither appealed against the order to revoke the permission granted to them nor appealed against the permission granted to the 1st Defendant to erect a fence. The pleading as set out in paragraphs 8 [a] – [d], indicates that the Plaintiff is dissatisfied with the decision of the Navua Local Authority, and Director of Town and Country Planning (3rd and 4th Defendants). The relief sought by the Plaintiff against the 3rd - 5th Defendants are in the sphere of public law as opposed to private law. The efficiency of the public authorities needs sanction of the court and finality of the said decisions is an essential ingredient for efficient administration of the public authorities.

Section 5 of the Town and Country Planning Act stipulates that:-

Appeals

5.-(1) There shall be a right of appeal, subject to the provisions of this section, from decisions of the Director to the Minister within twenty eight days of notification of the decision to the appellant, and the decision of the Minister on the matter at issue shall be final:

Provided that the Minister may for good cause extend the said period of twenty-eight days.

(2) 	The right of appeal shall be exercisable by-

(a)	Any applicant and any local authority dissatisfied with the grant or refusal of development permission or the conditions attached to such permission or the prohibition of the grant of such permission under the provisions of subsection (3) of section 7;

(b)	Any person having an interest in the land and any local authority dissatisfied with the revocation or modification of or refusal to revoke or modify development permission under the provisions of subsection (1) of section 9;

(c)	Any person having an interest in the land and any local authority dissatisfied with the confirmation of or refusal to confirm an order requiring discontinuance of use or an order imposing conditions on the continuance thereof or an order requiring steps to be taken for the alteration or removal of buildings or works under the provisions of subsection (1) of section 10;

(d)	Any objector and any local authority dissatisfied with a decision of the Director under the provisions of section 23;

(e)	Any objector and any local authority dissatisfied with a decision of the Director under the provisions of subsection (4) of section 27.

13.	So, if the Plaintiff was not satisfied, he had to appeal to the minister within the stipulated time and if not seek an extension of the time for such an appeal outside 28 day time period. Even judicial review will not be available without exhausting the stipulated procedure. An order of a public authority refusing the appeal or refusing the extension would in certain circumstances allow judicial review. The proper recourse would have been to seek judicial review after exhausting the clearly laid down procedure for appeal, but this is subject to the provisions regarding judicial review and the Administrative Law. In R (Bancoult) –v – Secretary of State for the Foreign and Commonwealth Office [2001] Q.B. 1067 (Ca), per Laws LJ;

"….familiar rule of discretion, namely that judicial review is a legal recourse of last resort; and a claimant must exhaust any proper alternatively remedy open to him before the judicial review court will consider his case'.

In R – v – Hammersmith and Fulham London Borough Council, exp Burkett [2002] UKHL 23 [2002] 1 WLR 1593 per Lord Steyn;

"…the established principle that judicial review is a remedy of last resort".

14.	The Courts in Fiji have reiterated that judicial review is the legal recourse of the last resort. In the case of Tony Udesh Bidesi, Judicial Review No. HBJ 0020 of 1997 Scott J stated that it is clear that His Lordships based is judgment mainly on the requirements of an applicant to first exhaust other remedies available to him. In addition, in Suresh Charan and Others – v – Shah and Others HBJ 0014/94 in which the Court held that it would not entertain an application for Judicial Review until an applicant has exhausted his rights to first pursue other remedies available to him. In the case of Amrit Lal – v - The Senior Education Officer, Nadroga & Navosa Others HBJ 001 of 2005, Justice Connors refused an application for judicial review since the Applicant has not exhausted the appeal procedure in the Public Service Act.

15.	The State – v – Tauz Khan, Director of Town and Country Planning & Others HBJ 14 of 1996 the Court held that any decision by the Director of the Town and Country Planning is subjected to an appeal to the minister.

 "It is the duty of relevant authorities to ensure that the procedures set out by statute are implemented and as far as the appeal is concerned it should have been heard by the Minister. Whether the Director of Town and Country Planning was right or wrong, it is for the matter for the Minister to consider on appeal as required by him under the Act and not the Court. The Director of Town and Country Planning that he stands by his decision as one who is authorized by statute to make and in if it was wrong, then it was one, which the Minister had to decide upon under section 5 of the Act.

The Minister's decision on appeal in the matter at issue "shall be final". Here he has not dealt with the appeal". (emphasis added).

16.	The Plaintiff has not appealed against the order of the Director of land, but seeks to revoke the orders of the Director in this action where he seeks division of the land. The causes of actions are different and any revoke of permission will nor arise if the division of the land is granted by court. The public authorities who do not have an interest in the land need not be brought to an action for division of the land. The decisions of the public authority cannot be challenged in an action for division of land which is clearly a private law remedy. They needs to be by way of separate actions. In any event whether filing of this action without exhausting the appeal is clearly an abuse of process.

17.	The leading authority on this issue is the case O'Reilly v Mackman (1983) 2 A.C. 237. In this case, four prisoners in an English prison were charged with disciplinary offences before a Tribunal known as the Board of Visitors to the prison. In each case, the charges were found to be proved and penalties were imposed. Three of these prisoners instituted proceedings by way of writ in the Queen's Bench Division of the High Court alleging that the Board of Visitors had acted in breach of the Prison Rules and the rules of natural justice. One prisoner proceeded through the Chancery Division of the English High Court. The prisoners sought a declaration that the Board of Visitors' findings against them and the penalties awarded were awarded were of no effect. English Court of Appeal ordered the proceedings struck out on the ground that they were an abuse of process of the court and that the only remedy for the prisoners was by way of judicial review under Order 53 of the Rules of the Supreme Court. This ruling was confirmed in the House of Lords.

18.	Lord Diplock's judgment in upholding the decision of Lord Denning's leading speech in striking out of the action for declaration, where the judicial review is applicable, for abuse of process held that though the declaratory action and judicial review was optional causes till 1977 it was no longer so in the light of the expansion of the jurisdiction and the procedure in the R.S.C 53 and this is a pertinent issue in this case as well. The said judgment discussed the legislative history and its development extensively in the said judgment at page 275-279 and arrived at the said determination in the light of the development of the law and the amendments to the relevant rules. In Fiji the High Court Rules of 1988 inherited the amended Supreme Court Rules and application of case law on this subject of judicial review and declaratory judgments needs closer examination of the law that prevailed in U.K in 1988 and the said judgment of Lord Diplock is applicable. 

19.	In Cocks v Thanet District Council [1983] 2 A.C 286 Lord Brindge of Harwich held 	

'When the Court of Appeal, of which I was a member, decided De Falco's case (supra), we did not, of course, have the benefit of Lord Diplock's analysis of the consequences of the introduction in 1977 by the amended Order 53 of the Rules of the Supreme Court of the new public law procedure by way of an application for judicial review. That apart, I believe our decision was influenced by a failure to appreciate the significance of the dichotomy of functions to which I have drawn attention in the two fore-going paragraphs and a consequent misunderstanding of the true effect of the earlier Court of Appeal decision in Thornton v. Kirklees Metropolitan Borough Council [1979| 1 Q.B. 626. The view expressed in De Falco (supra) by Lord Denning M.R. at p.476 and by myself at p.480, that an applicant for accommodation under the Act of 1977 who wishes to challenge the housing authority's decision that he was intentionally homeless can do so either by action or by application for judicial review, I can now see to have been based on false reasoning. I am the more ready to say so since Lord Denning has also subsequently resiled from his previous opinion: see Lambert v. Baling London Borough Council [1982] 1 W.L.R. 550 at p.557.

After reference to Thornton (supra), in De Falco (supra) 1 said, at p.480:

"If an ordinary action lies in respect of an alleged breach of duty, it must follow, it seems to me, that in such an action the plaintiff as well as claiming damages or an injunction as his remedy for the breach of duty can claim any declaration necessary to establish that there was a relevant breach of duty, and, in particular, a declaration that a local authority's decision adverse to him under the Act was not validly made."
In the light of the dichotomy between a housing authority's public and private law functions, this is a non-sequitur. The fallacy is in the implicit assumption that the court has the power not only to review the housing authority's public law decision but also to substitute its own decision tothe contrary effect in order to establish the necessary condition precedent to the housing authority's private law liability.

I have already indicated my agreement with the views of my noble and learned friend, Lord Diplock, as expressed in O'Reilly's case, and I grate-fully adopt all his reasons for the conclusion that:(emphasis is mine)

20.	Lord Diplock further held in O'Reilly's case (1983) 2 A.C. 237

"The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision – making powers for any longer period than is necessary in fairness o the person affected by the decision."

21.	The Plaintiff in the statement of claim admitted that the decision to revoke the permission granted to erect a fence to the Plaintiff was revoked on 12th January, 2011 and the writ was filed on 12th February, 2012 after the lapse of one year. This was done when the Section 5 of the Town and Country Planning Act provides 28 days to appeal against such a decision to the minister and it also gives discretion to extend the time period of appeal beyond 28 days. The Plaintiff waited for one year and now seeks to nullify the said decision and also seeking declaration that the court that the Defendants are estopped from revoking the permission granted to the Plaintiff. This is not possible as the Plaintiff remained silent for over one year without seeking an appeal or extension of time to appeal in terms of the Section 5 of the Town and Country Planning Act.

22.	In Ram Prasad v Attorney General of Fiji [1999] FJCA 52, the Appellant, who commenced proceedings by writ and statement of claim bought an action for wrongful dismissal following the termination of his employment at the Ministry of Primary Industries. The Appellant had been dismissed from his employment in the public service following being found guilty of some 26 disciplinary charges involving the mishandling of money. In his statement of claim, the Appellant had alleged that the employer (the government) had failed to comply in material respects with the Public Service Commission (Constitution) Regulations. This was said to take the proceedings into the realm of Public law. The judge at first instance (Pathik J) held that the proceedings should have been commenced by way of judicial review and struck out the Writ and Statement of Claim as an abuse or process. The Fiji Court of Appeal quoted with approval the observations of Pathik J as follows

"…..Now that all remedies for infringement of rights protected by public law can be obtained upon an application for judicial review, it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities …"

23.	In Goundar v Colonial Fiji [2003] FJHC 284; HBC0298.2002s (30 May 2003) by Justice Pathik who decided the issue of actions based on Judicial Review and writ of summons and held as follows:

'I agree with Mr. Nagin's submission that the decision of the Permanent Arbitrator can only be challenged by way of Judicial Review and not by way of writ of summons as the plaintiff has done in this case.

The Arbitrator in this case was performing a public duty. To challenge the decision of the Arbitrator the plaintiff should have proceeded by way of judicial review. The plaintiff's Union took up her case for the sole purpose of ascertaining whether her dismissal by her employer was fair and reasonable or not.

The very issue before the Court was dealt with by me in Joeli Naitei and 1. The Public Service Commission 2.The Attorney-General of Fiji (Civil Action No. 256 of 2000 – judgment 7.8.01). In determining the issue I shall adopt the same reasoning as in that case and for ease of reference and for completeness I set out the same authorities at the risk of being lengthy.

Here the plaintiff is seeking to enforce a public right on the performance by the Arbitrator of a public duty. Hence the decision is susceptible to judicial review. It is different if there is a contract between the aggrieved person and the public body, and in this regard it is worth noting the following passage from the book The Applicant's Guide to Judicial Review by Lee Bridges and Others at p.5:

"However, if there is a contract between the aggrieved person and the public body then it is likely that any actions or decisions the body makes in relation to that person be governed by private law rather than public law. The individual will not therefore be able to challenge them by judicial review: his or her remedy will be to sue for damages (and/or a declaration or injunction) in an ordinary civil court or tribunal". (emphasis added)

In this case there is no contract between the plaintiff and the defendant and hence no question of private law arises. The "question will depend to an extent on the kind of body to be challenged and more so on the functions they are exercising in the particular case" (Bridges, ibid at p6).

The following extract from the judgment in O'Reilly v Mackman (1983) 2 A.C. 237 is pertinent:

"That since all the remedies for the infringement of rights protected by public law could be obtained on an application for judicial review, as a general rule it would be contrary to public policy and an abuse of the process of the court for a plaintiff complaining of a pubic authority's infringement of his public law rights to seek redress by ordinary action and that, accordingly, since in each case the only claim made by the plaintiff was for a declaration that the board of visitors' adjudication against the plaintiff was void, it would be an abuse of the process of the court to allow the actions to proceed and thereby avoid the protection afforded to statutory tribunals".

Under Order 53 where the plaintiff wrongfully brings his claim by way of judicial review, the court has power to order that that claim be continued as though it had been commenced by writ. But where the claim is wrongly commenced by writ or originating summons as in this case, the Court has no power to convert it into a claim for judicial review. As stated by Henry J in Doyle and Others v Northumbria Probation Committee (1991) 1 W.L.R. 1340 at 1344:

"And if the plaintiffs were now to bring a free-standing application for judicial review, their delay has been such that I would find it difficult to envisage the court granting leave to them to apply for such judicial review. Therefore it seems to me that if the defendant committee succeeds in the application that it is making, that will be end of the plaintiffs' claim."

I have considered the legal arguments put forward by the learned counsel for the plaintiff. She has raised certain points. The main hurdle that the plaintiff has to get over is whether the writ of summons is the correct mode of proceeding with her grievance. As I have said, for the above reasons, the plaintiff has adopted the wrong mode, in other words she should have proceeded by way of judicial review. There is abundance of authority on the subject and I have dealt with it at length in Ram Prasad s/o Ram Rattan and the Attorney-General of Fiji (Civil Action No. 311/92) which was upheld by the Court of Appeal which also dealt with the issues at some length. [Ram Prasad f/n Ram Rattan v The Attorney-General of Fiji, Civil Appeal No.ABU0058 of 1997S – Judgment 27.8.99].

Having decided that this was not the correct mode, I conclude with the following passage from the judgment in Moroccan Workers Association v Attorney-General (1995) 1 Law Reports of the Commonwealth 451 (SC) vide Commonwealth Law Bulletin July 1995 p747 –749.

"Matters of public law and administration ordinarily fell within the purview of s.31 of the Supreme Court Act 1981 and RSC Ord 53. The remedies therein provided that judicial review ought to be the normal recourse in all cases where allegations were made that rights under public law were being infringed, e.g. where a private person was challenging the conduct of a public authority or a public body, or of anyone acting in the exercise of a public duty. The institution of proceedings by originating notice of motion for purely declaratory relief without any explanation of the delay that occurred before their institution in February 1993 and which were brought for the purpose of challenging matters of public law and administration was an inappropriate procedure and an abuse of the process of court."

In this case judicial review was the procedure under Order 53 of The High Court Rules. The ratio of O'Reilly as found in Lord Diplock's speech at p.285 was extended to Cocks v Thanet District Council (1983) 2 A.C. 286. There the action was commenced by writ and "it was stopped in that course, in that it was struck out as an abuse of the process of the Court in the House of Lords".

In the outcome in the light of the many authorities on the issue before me and in view of the decision that I have reached as to the form the proceedings should take in matters of the nature before the Court I will allow the procedural objection raised by the defendant.
Before departing from this subject of distinction between private law and public law, it is accepted that Ram Prasad, a decision of the Court of Appeal, is authority for the decision in this case. A number of other cases in the High Court have been struck out for the reasons stated in Ram Prasad. Some of the cases are:

Jimione Buwawa v The Permanent Secretary for Education and Others (Suva High Court Judicial Review No.HBJ0019 of 1997, 22 July 1997, Pathik J) – dismissing an originating summons; Fiji Public Service Association v Civil Aviation Authority of Fiji & Others, (Lautoka High Court Judicial Review No.HBJ0015 of 1998 – 30 November 1998 – Madraiwiwi J); Eroni Waqaitanoa v The Commissioner of Prisons & Others, (Suva High Court Civil Action No.HBC0271 of 2000 – 7.9.2000 – Scott J); Shakuntala Nair v The Secretary, Public Service Commission & Another. (Suva High Court Civil Action No.HBC0359 of 2000 – 28.5.2001 – Scott J). For completeness I would mention that Bryne J was inclined towards a different view from his brother Judges in the Fiji Teachers Union v The Permanent Secretary for Education & Another (Suva High Court Civil Action No. HBC0021 of 1997, 21.7.98) after referring to an extract from Administrative Law by Wade and Forsyth and relying on Doyle (supra) and British Steel plc.v Customs and Excise Commissioners (1997) 2 All E.R. 366. However, His Lordship's decision predates Ram Prasad.

For these reasons I declare that the plaintiff is not entitled to continue with his Writ of Summons or seek the relief sought by her otherwise than by application for judicial review if she is still able to do so under Order 53 of The High Court Rules. It is for her counsel to decide what course the plaintiff should take to pursue her grievance.'

24.	In the case of O'Reilly v Mackman (1983) 2 A.C. 237 Lord Denning in his judgment at page 254 discussed the action for declaratory relief as opposed to action for judicial review and discussed why the declaratory relief was considered as complimentary cause prior to 1977 before the complete overhaul of Order 53 and stated as follows:

'Does declaration still lie against the board?
………..

Now that those limitations have been swept away by R.S.C Ord 53, the remedy by an action for a declaration had many defects. It could be started, as for right, without the leave of the court. It could be started years and years after the event. It could involve long trials with discovery, cross-examination, and so forth. So many defects were present in that remedy by action that I am quite clear that now that the new procedure has been introduced, there should no longer be recourse to the remedy by action for a declaration. If a complaint is brought by ordinary writ-without leave – it can and should be struck out as abuse of the process of the court.'

25.	Lord Denning further at page 254 under a heading Abuse of process stated as follows
Abuse of process

Some point was made about the scope of 'abuse of process". Reference was made to the opening paragraph of Lord Diplock's speech in Hunter v Chief Constable of the West Midlands Police [1981] 3 WLR 906,909. But that should not be regarded as statutory definition. Suppose a prisoner applied under R.S.C Ord. 53 for judicial review of the decision of the board of visitors: and the judge refused leave. It would to my mind, be an abuse of process of the court for him to start afresh an action at law for a declaration, thereby avoiding the need for leave. It is an abuse for him to try and avoid the safeguards of Order 53 by resorting to an action at law. So also if he deliberately omits to apply under appropriate remedy is given by the procedure of the court-with safeguards against abuse – it is an abuse for a person to go by another procedure so as to avoid the safeguards.' (emphasis is mine)

26.	There are many safeguards against the abuse of the judicial review process, that are contained in the Order 53 of the High Court Rules of 1988 and the most effective and important one being the leave of the court and discretion of the court being exercised initially at the point of institution of the action as opposed to the right of the party to file an action relating to writ of summons including originating process. This is a paramount consideration, as the matters relating to decisions of the statutory body would invariably relate to the broad policy as opposed to a particular law or private law remedy. This is evident when the statute itself has a mechanism for appeal and also a time period for the appeal and also a mechanism for extension of time. These are all mechanisms that are incorporated to prevent the public authorities being unnecessarily being dragged to court for disputes that can easily be dealt in alternate dispute resolution mechanism. It is clearly an abuse, not to utilize the in-built dispute resolution mechanisms and circumvent them by filing a writ action where unnecessary parties are joined where public law remedies and private law remedies are mixed as in this case.

27.	Lord Diplock in appeal upheld the striking out of the action for abuse of process in O'Reilly v Mackman (1983) 2 A.C. 237 and further stated 

At p 280

'On the other hand as compared with an action for the declaration commenced by writ or originating summons, the procedure under order 53 both before and after 1977 provided for the respondent decision making statutory tribunal or public authority against which the remedy of certiorari was sought protection against claims which it was not in the public interest for courts of justice to entertain.'

28.	Then Lord Diplock at length discussed in his judgment at p 280- 282 the safeguards that are found in the judicial review as opposed to writ seeking declaration. In a judicial review first the leave to apply for the order was required and for that affidavit evidence is needed and if false statements are made it can be considered as perjury and uberima fides of the facts stated in the affidavit is also required and failure to disclose the candid facts would result the application being dismissed. Lord Diplock at page 280 O'Reilly v Mackman (1983) 2 A.C. 237 stated as follows

'The public interest in good administration requires that public authorities and third parties should not be kept in suspenseas to the legal validity of a decision the authority has reached in purported exercise of decision –making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision. In contrast, allegation made in a statement of claim or an indorsement of an originating summons are not on oath, so the requirement of a prior application for leave to be supported by full and candid affidavit verifying the facts relied on is and important safeguard against groundless or unmeritorious claims that a particular decision is a nullity. There was also power in the court on granting leave to impose terms as to costs or security.

Furthermore, as Order 53 was applied in practice, as soon as the application for leave had been made it provided a very speedy means, available in urgent cases within a matter of days rather than months, for determining whether a disputed decision was valid in law or not. A reduction of the period of suspense was also effected by the requirement that leave to apply for certiorari to quash a decision must be made within a limited period was accounted for to the satisfaction of the judge. The period was six months under the pre-1977 Order 53: under the current Order 53 it is further reduced to three months.' (emphasis is added)

29.	After discussing the plethora of safeguards that are found in judicial review in terms of Order 53 held in O'Reilly v Mackman (1983) 2 A.C. 237 at p 282 as follows:

'… to proceed against the authority by an action for a declaration of nullity of the impugned decision……instead of applying for an order of certiorari and this despite the fact that, by adopting this course, the plaintiff evaded the safeguards imposed in the public interest against groundless, unmeritorious or tardy attacks upon the validity of decisions made by public authorities in the field of public law.' (emphasis is added)

30.	Lord Diplock O'Reilly v Mackman (1983) 2 A.C. 237 at p 284 further stated:

'My Lords, at the outset of this speech, I drew attention to the fact that the remedy by was of declaration of nullity of the decision of the board was discretionary – as are all the remedies available upon judicial review. Counsel for the plaintiffs accordingly conceded that the fact that by adopting the procedure of an action begun by writ or by originating summons instead of an application for judicial reviews under Order 53 (from which there have now been removed all those disadvantages …..) the plaintiffs had thereby been able to evade those protections against groundless, unmeritorious or tardy harassment that were afforded to statutory tribunals or decision-making public authorities by Order 53, and which might have resulted in the summary, and would in any event have resulted in the speedy deposition of the application, is among the matters fit to be taken into consideration by the judge in deciding whether to exercise his discretion by refusing to grant a declaration: but, it was contended, this he may only do at the conclusion of the trial.

So to delay the judge's decision as to how to exercise his discretion would defeat the public policy that underlies the grant of those protections; viz, the need, in the interest of good administration and third parties who may be indirectly affected by the decision, for speedy certainty as to whether it has the effect of a decision that is valid in public law. An action for declaration or injunction need not be commenced until the very end of the limitation period; if begun by writ, discovery and interlocutory proceedings may be prolonged and the plaintiffs are not required to support their allegations by evidence on oath until the actual trial. The period of uncertainly as to the validity of a decision that has been challenged upon allegations that may eventually turn out to be baseless and unsupported by evidence on oath, may thus be strung our for a very lengthy period, as the actions of the first three appellants in the instant appeal show. Unless such an action can be struck our summarily at the outset as an abuse of the process of the court the whole purpose of the public policy to which the change in Order 53 was directed would be defeated.' (emphasis is added)

31.	In Shireen Lateef v Digicel & Others [2008] FJHC 35, Singh J observed:

On the same day that O'Reilly v Mackman was decided, the House of Lords delivered another milestone judgment in Cocks v Thanet District Council [1983] 2 AC 286. It further extended the O'Reilly principles. It decided that where private rights are affected and which depended on prior public law decision, they must ordinarily be brought by judicial review. O'Reilly has been considered and applied by the Court of Appeal – Ram Prasad v Attorney General of Fiji ABU 58 of 1997. It says that an applicant must use judicial review in a case where he/she seeks to enforce public rightful proper performance of the respondent of public duty. [Emphasis added]

32.	It could be argued that the Plaintiff claims are based on the tort of negligent as pleaded in paragraph 23 of the statement of claim but in Shireen Lateef [supra] the Court held that the matter should be brought by way of judicial review. The Court of Appeal in Digicel Fiji Ltd v Pacific Connex Investments Ltd. [2009 FJCA 63; ABU0049.2008S (8 April 2009), stated the following:-

41. In our view, if one asks the question how these proceedings would have measured up to their requirements for judicial review one clear point stands out. These were public law issues. It may be the claim for damages is based on tort (as originally contended by Pacific Connex) or to equity as contended for in this Court. However, on any view the root of the claim is in public law. The consequence of this, on the authorities is that the proceedings should have been brought by judicial review. To bring them via Originating Summons was an abuse of the process of the court. We have not lost sight of the fact that this may lead to the Plaintiff being deprived of its remedy simply because it chose he wrong procedural route. It is not open to amend the proceedings to convert such proceedings to a judicial review. The only real course open to the Plaintiff would appear to be to now apply for judicial review out of time and pray in aid the wrong choice of proceedings as a possible basis for motivating the High Court to permit the proceedings to proceed notwithstanding the time issue.

33.	The Plaintiff neither appealed in terms of the Section 5 of the Town and Country Planning Act nor did it seek extension of the time to appeal as per Section 5 of the Town and Country Planning Act. The Plaintiff has not sought judicial review of any decision taken by a public authority. The Plaintiff filed this action seeking division of the land and added 3rd and 4th Defendants solely for the purpose of challenging a decision taken in the sphere of public law. This is an abuse of process in the light of the provisions contained in the High Court Rules of 1988 and the decisions of O'Reilly v Mackman (1983) 2 A.C. 237 and Cocks v Thanet District Council [1983] 2 A.C 286 are applicable 3rd to 5th Defendants should be struck off from this proceedings.

E.	SCANDALOUS, FRIVOLOUS OR VEXATIOUS.

34.	Since I have already decided in favour of the striking out of the 3rd to 5th Defendants on the basis that it was an abuse of process I need not venture further on the second ground for striking out, but for completeness I will address the issue whether the action against 3rd – 5th Defendants are scandalous and vexatious. Lindely L.J stated in Attorney Gen. of Duchy of Lanchester v. L. & N.W.Y [1892] 3 Ch 274 at 277, frivolous and vexatious mean cases, which are obviously frivolous and vexatious or obviously unsustainable. The case of Rakesh Kumar & Reena Kumari Ram v Habib Bank Limited Civil Action No: HBC 248 of 2009 held that:

"…it must be emphasized that a mere statement of claim is not automatically indicative of a cause of action. The reasonable cause of action means a cause with some chance of success. The plaintiff must show some real prospect of his statement of claim. He cannot succeed by showing some whimsical claims on the statement of claim. If the statements if claim fails to address the legal foundation of claim and fails to address the legal foundation of claim and files to state what and how the defendant is liable it shall be struck out …."

35.	In the case of National MBF Finance (Fiji) Ltd v Buli [2000] FJCA 28; ABU0057U.98S (6 July 2000), it was held that:

"….when examining the facts, the court must also draw a legal fiction to assume that the party alleging such facts would be proving such facts. Moreover, amass of case law on this point enumerate that if a legal issue can be raised on the facts as pleaded, then the court should not strike out a pleading. Therefore, a case should only be struck out if such case is ex facie unsustainable on the facts pleaded and judicial notice can be taken of the falsity of the facts …."

36.	It is obviously frivolous to add the 3rd, 4th and 5th Defendants to this writ of summons that primarily seeks to divide the land among the co owners of the land. The said 3rd to 5th Defendants are not parties who owned the land or have an interest in the land except in their general sphere of public law. The basis of joining them is the approval of the fence erected by the 1st Defendant and the revocation of the approval of the fence erected by the Plaintiff. The erection of fence is secondary to division of the land and any division of the land should supersede all the erections and permission granted to erections of such structures or developments in the said land. It is frivolous to add the parities who granted any permission to erect a structure including a fence prior to the subdivision, to an action for division of the land. So the addition of the 3rd - 5th Defendants which was made solely on the basis of the approval of the fence to the 1st Defendant and also the revocation of the permission to erect a fence to Plaintiff is, frivolous and vexatious and the said 3rd to 5th Defendants needs to be struck off. 

F.	CONCLUSION

37.	The 3rd, 4th and 5th Defendants are struck off from this action. The cost of this application is assessed summarily at $500.

G.	FINAL ORDERS

a.	The 3rd, 4th and 5th Defendants are struck off from this action.
b.	The said Defendants are granted $500 (collectively) to be paid by the Plaintiff assessed summarily.

Dated at Suva this 5th day of November, 2012.

………………………………………….
Master Deepthi Amaratunga
High Court, Suva