IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 256 of 2010

BETWEEN:

WAKAYA LIMITED,
a limited liability company having its registered office at Ground Floor, Civic House, Suva, Fiji.
PLAINTIFF

AND:

MARSHA NUSBAUM
of 28 Beach Road, Suva in Fiji
1ST DEFENDANT/COUNTER CLAIM PLAINTIFF

KENNETH CHAMBERS
of Laucala Bay, Suva, Fiji
2ND DEFENDANT/COUNTER CLAIM PLAINTIFF

DAVID HARRISON GILMOUR of Trump Towers, USA
1ST COUNTER CLAIM DEFENDANT

MELIKI TOGAVUA TUINAMUANA of Tamavua, Suva
2ND COUNTER CLAIM DEFENDANT

RENEE D.S. LAL
of Suva, Fiji Islands, Barrister & Solicitor
3RD COUNTER CLAIM DEFENDANT

DILIP K JAMNADAS of 12 Allardyce Road, Domain, Suva,
Barrister & Solicitor
4TH COUNTER CLAIM DEFENDANT

Counsel : MR SINGH K. of Jamnadas & Associates for the Plaintiff, 1st, 2nd and 4th Defendants.
MR CHAMBERS K. In Person 2nd Defendant
MR HIWARE W. of H. M. Lawyers for the 1st Defendant
MS RENEE D.S. LAL In Person

INTERLOCUTORY JUDGMENT

1.	This is an Interlocutory Application filed on 30th November 2012 by the 1st, 2nd and 4th Counterclaim Defendants and sought the following Orders:

(i)	An Order that the 1st and 2nd amended counter claim against David Harrison Gilmour, Meliki Togavua Tuinamuana and Dilip K Jamnadas be struck out on the grounds that it discloses no reasonable cause of action.

(ii)	The costs of this application be paid by the 1st and 2nd Defendants on indemnity basis.

(iii)	Such other order made in the premises as shall be just.

2.	An oral application made by the counsel for the 1st, 2nd and 4th Defendants from bar table on 13th March 2013 for leave to amend or to withdraw and re-file the application. At the outset, I conclude there is no formal application before me to consider the oral application made by the counsel as such the said application has no merits. For the purpose of this Interlocutory Judgment, I am only considering the Interlocutory Application filed on 30th November 2012.

3.	The Interlocutory Application dated 30th November 2012 should be considered by this court in the light of the Judgment of the Supreme Court dated 9th May 2012 and the Learned Master’s Ruling made on 27th January 2012.

4.	The Defendants had filed a motion to join as the Counter Claim Defendants in pursuant to Order 15 Rule 6(2) (b) of the High Court Rules 1988 which states:

 “(2) (b) Orders any of the following persons to be added as a party namely:

(i)	Any person who ought to have joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon; or

(ii)	Any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy which in the opinion of the court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter” 

5.	Having heard the application of the Defendants, the Learned Master on 24th June 2011 by the Ruling dated 27th January 2012, ordered the joinder of the counter claim Defendants pursuant to Order 15 Rule 6(2) (b) stated in the paragraph 4 of the Master’s Ruling.

In the appeal to the Supreme Court Civil Appeal No. CBV0008/11 (unreported) decided on 9th May 2012 in paragraph 27 states:

“27. Apart from the matters set out above in paragraph 25, there were several issues such as locus standi of the Petitioner, the equitable ownership of the property in question as claimed by the 1st Respondent, the ownership of the 2nd Respondent, the effect of the contract on which the 2nd Respondent was entitled to the property, the validity of the consent regarding transferring of ownership between the 1st and 2nd Respondent, the validity of the certificate granting permission for burial when it was not gazette, the damages suffered by the Respondents as a result of the issue of the interim injunction by the High Court which were all issues that had to be considered by evaluating proper evidence and adjudicating upon them in a proper trial rather than relying on affidavits with supporting documents and submissions.”

The Supreme Court finding was that all the above issues are to be decided at a proper trial.

It is important to note the Master made his ruling on 27th January 2012 prior to the Judgment of the Supreme Court delivered on 9th May 2012.

6.	The Learned Master had delivered the Ruling to join the counter claim Defendants on an application filed by the Defendants on 29th April 2011. In his ruling Maser had given due consideration to the Order 15 Rule 6 of the High Court Rules 1988.

"Misjoinder and Nonjoinder of parties (O.15, R.6)

6.-(1) No cause or matter shall be defeated by reason of the misjoinder or nonjoinder of any party; and the Court may determine the issues or questions in dispute so far as they effect the rights and interests of the persons who are parties to the cause or matter.

(2) Subject to the provisions of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application –

(a)	 Order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b) 	Order any of the following persons to be added as a party, namely – 

(i) 	Any person who ought to have joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii) 	Any person between whom and any party to the cause or matter they may exist a question or issue arising out of or relating to or connected with any relief or remedy which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

(3) An application by any person for an order under paragraph (2) adding him as a party must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute or, as the case may be, the question or issue to be determined as between him and any party to the cause or matter.

(4) No person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorized.

(5) No person shall be added or substituted as a party after the expiry of any relevant period of limitation unless either – 

(a) 	the relevant period was current at the date when proceedings were commenced and it is necessary for the determination of the action that the new party should be added, or substituted, or 

(b) 	the relevant period arises under the provisions of subparagraph - 

(i) 	of the proviso to paragraph 4(1)(d) of the Limitation Act and the Court directs that those provisions should not apply to the action by or against the new party.

In this paragraph "any relevant period of limitation" means a time limit under the Limitation Act.

(6) The addition or substitution of a new party shall be treated as necessary for the purposes of paragraph (5) (a) if, and only if, the Court is satisfied that – 

(a) 	the new party is a necessary party to the action in that property is vested in him at law or in equity and the plaintiff's claim in respect of an equitable interest in that property is liable to be defeated unless the new party is joined, or

(b) 	the relevant cause of action is vested in the new party and the plaintiff jointly but not severally, or 

(c)	the new party is the Attorney – General and the proceedings should have been brought be relator proceedings in his name, or 

(d) 	the new party is a company in which the plaintiff is a shareholder and on whose behalf the plaintiff is suing to enforce a right vested in the company, or

(e) 	the new party is sued jointly with the defendant and is not also liable severally with him and failure to join the new party might render the claim unenforceable."

7.	I specifically quote the following paragraph from the Master's ruling:

"9. The said affidavit in support of the 2ndDefendant state that the said parties are needed to be added to the action for the alleged conspiracy that was pleaded as the tenth cause of action. The affidavit in support filed by the 1st Defendant also annexed documentary proof to his allegation of conspiracy. I do not seek to venture on the analysis of the said documentary evidence at this moment, but need only to add that none of the documents were denied by the proposed parties in their respective affidavits in opposition and some parties have even opted not to swear an affidavit in opposition clearly indicating that the said documents are undisputed at this moment." (emphasis mine)

This finding by the Master enumerate that there was a substantive matter for Trial between the added Counter Claim Defendants and the Plaintiff.

8.	The Learned Master's further conclusions and findings in paragraphs 12, 13, 14, 15 and 16 abundantly clear the counter claim Defendants are necessary to adjudicate this matter. The Plaintiff had already withdrawn his claim and the case to proceed only on the counter claim of the Defendants. I quote the paragraphs 12 to 17 of the Learned Master's ruling:

12. At paragraph 39 of the statement of Defence filled by the Defendants on 23rd September, 2010 states as follows in regard to the claim for conspiracy:

'At dives time from 17th September, 2007 the plaintiff conspired unlawfully, fraudulently and unconscionably with its employees, servants, officers or agents: David Harrison Gilmour of Trump Towers, USA the beneficial owner of Wakaya; Meliki Tuinamuana of Suva plaintiff's Finance Directory, Renee Lal and Dilip Jamnadas of Suva, Barristers and Solicitors for Plaintiff, to cause the defendants loss as aforesaid under Counterclaim Cause of Action 1-9 hereof.'

13. This is a very serious and bold allegation against the above named persons including some lawyers and it is nothing but fair to add them as parties to this action considering the circumstances of the action and the nature of the allegation considering the already delivered judgment of the court of appeal which in no uncertain terms have indicated that the Plaintiff did not even had a locus standi for an interim injunction.

14. The Defence to counterclaim was filed on 10th November, 2010 but no application for strike out of the said claim for conspiracy and or other claims were filled by the Plaintiff. The findings of the Court of Appeal is that even the Plaintiff did not have a locus standi to apply for an interim injunction, but the interim injunction was granted and the sole purpose of the claim and the interim relief was to prevent the burial of 2nd Defendant's son, was fulfilled . 

15. The writ of summons filled by the Plaintiff against the Defendants are solely based on the said attempted burial, which could not be materialized due to the interim injunction that was obtained, when the Plaintiff even did not have a locus standi for such an interim relief.

16. The Court of Appeal has referred the matter to the Master to assess the damages that incurred by obtaining an injunction when the Plaintiff did not even have a locus standi. Under the circumstances and the details described in the affidavit in support as well as well as in the annexing documents to it the Defendants are alleging conspiracy and claiming damages in the counter claim.

17. Considering the affidavit in support and the supporting documents and the statement of defence and the counterclaim for conspiracy which is directly alleged against the parties whom the Defendants seek to add there is clearly 'a question or issue arising out of or relating to or connected with any relief or remedy which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.' 

9.	In the appeal against the Judgment of the Court of Appeal, the said paragraph (27) of the Supreme Court Judgment (stated in the preceding paragraph 5 of this Judgment) the issues to be taken up at a proper trial are well enumerated. The Learned Master's finding in paragraph 18 of the Ruling states:

"…..I think that there are questions or issues arising out of or relating to or connected with any relief or remedy which in the opinion of the court it would be just and convenient to determine as between the Defendants and the parties that are proposed to be joined."

The above finding is supported by the Supreme Court and the joinder of 1st, 2nd, and 4th Defendants are justified.

10.	Further Conclusions

10.1	The counsel for the 3rd Counter Claim Defendant submitted pursuant to Order 59 Rule 8(2) of the High Court Rules 1988, no appeal shall lie from an Interlocutory Order or Judgment of the Master to a single Judge of the High Court without leave of a Judge which may be granted or refused on the papers.

10.2	It was submitted that the 1st, 2nd and 4th Counter Claim Defendants failed to file leave to appeal (which was the proper procedure to achieve a striking out of the joinder) within 14 days of the Order as set out in Order 59 Rule 11 of the High Court rules 1988. And further it was submitted the 1st, 2nd and 4th Counter Claim Defendants failed to appeal within 7 days and no application was made to a single Judge for enlargement of time under Order 59 Rule 10(1) of the High Court Rules. I agree with the submissions made by the 2nd Counter Claim Defendant and the 1st, 3rd and 4th Counter Claim Defendants had failed to address this issue.

10.3	The 1st, 2nd and 4th Counter Claim Defendants had objected to apply the principles in the case of Ca'bella Pacific Resorts Ltd v. Yaukuve Island Resort Limited [2012] (unreported) decided on 23rd May 2012 which I agree. The 1st, 2nd and 4th Defendants relies on Order 18 Rule 18 (1) (a) of the High Court Rules which states:

"18. – (1) The Court may at any stage of the proceedings order to be struck out 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 be; 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 as if the summons or petition, as the case may be, were a pleading.

10.4	The counsel had submitted it would set a bad precedent and effectively allow parties to disregard the requirements as to pleadings established under Order 18 Rule 18 of the High Court Rules 1988 in proceedings where the parties joined pursuant to a court order either as Counter Claim Defendants third parties Plaintiffs or Defendants. (emphasis mine)

The 1st, 2nd and 4th Counter Claim Defendants had made this application under 18(1) (a) of the High Court Rules 1988 which is described in paragraph 10.3 above. But the Master's finding in paragraph (a) which I quoted in paragraph 7 of this Judgment the evidence before court by way of documents were not denied by the 1st, 2nd and 4th Counter Claim Defendants. As such this court is of the view that there is a reasonable cause of action against the said 1st, 2nd and 4th Counter Claim Defendants on conspiracy with the Plaintiff. In the circumstances, the Application under Order 18 Rule 18(a) fails and discretion of this court is used in favour of the Defendants, and conclude that there is a reasonable cause of action between the Defendants and the Counter Claim Defendants.

In this regard, I quote Timber Resources Management Limited v. Minister for Information & 2 Others [2001] (unreported) HBC 212 of 2000 decided on 25th July 2001. Bryne J states:

"Time and again the courts have stated that the jurisdiction to strike out proceedings under Order 18 Rule 18 should be sparingly exercised and only exceptional cases where legal questions of importance and difficulty are raised per Marsack J. in Attorney General v. Shiu Prasad [1972] 18 FLR 210 page 215."

In the present case, I conclude that there is a cause of action against the 1st, 2nd and 4th Counter Claim Defendants which had to be decided at a proper trial. It is well accepted principle enumerated from case authorities that strike out on the grounds of no reasonable cause of action was exercised by the court rarely, and sparingly and only where a cause of action is plainly and obviously untenable. The 1st, 2nd and 4th Counter Claim Defendants failed to show that non existence of a cause of action. On the other hand all material before the court and the findings of the Master clearly establishes a cause of action against the 1st, 2nd and 4th Counter Claim Defendants.

10.5	The 1st, 2nd and 4th Counter Claim Defendants' submission is that court to allow the application pursuant to Order 18 Rule 18. In fact, reliefs in the said application were made under Order 18 Rule 18 (1) (a) (see para (i) of the prayer). Paragraph 39 of the Statement of Defence filed by the Defendants states:

"39. At dives time from 17th September 2007, the Plaintiffs conspired unlawfully, fraudulently and unconscionably with its employees servants, officers or agents David Harrison (1st Counter Claim Defendant) of Gilmour of Trump Towers USA beneficial owner of Wakaya, Meliki Tuinamuana of Suva (2nd Counter Claim Defendant) Finance Director, Renee Lal and Dilip Jamnadas of Suva, Barristers and Solicitors of the Plaintiff to cause the Defendants loss as aforesaid under Counter Claim Cause of Action 1 to 9 hereof."

10.6	There is no material to challenge this position and as directed by the Supreme Court these matters should be dealt at a proper trial which discloses a reasonable cause of action. The Learned Master further stated paragraph 12 of the Ruling:

"12. Considering the Affidavit in Support and the supporting documents and the Statement of Defence and the Counter Claim for conspiracy which is directly alleged against the parties whom the Defendants seek to add there is clearly a question or issue arising out of or relating to or connected with any relief or remedy which in the opinion of the court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter."

10.7	Considering the above findings of the Master and in the light of the statements made by the Supreme Court, the 1st, 2nd and 4th Defendants' submissions to allow the application under Order 18 Rule 18 (1) (a) fails. The said Counter Claim Defendants had not justified the application for strike out and I conclude the discretion of this court should be exercised in favour of the Defendants. I too agree with the submissions made by the 3rd Counter Claim Defendant and the Defendants. 

11.	As stated in the preceding paragraphs and specifically referring to the Judgment delivered by the Supreme Court (paragraphs 25, 27, 29 and 35) I find there is a substantive matter to be decided at a proper Trial in this case are necessary for the adjudication of this matter and as such the application under Order 18 Rule 18 (1) (a) fails. I further observe that the 1st, 2nd and 4th Counter Claim Defendants failed to lodge an appeal against the Ruling of the Master pursuant to Order 59 Rule 11 of the High Court Rules 1988.

12.	As a matter of fact as submitted by the Defendants and the 2nd Counter Claim Defendant the 1st, 3rd and 4th Counter Claim Defendants did not exercise their right of appeal for 12 months from the date of the Ruling by the Master, now come before this court to relitigate on the same issue under Order 18 Rule 18 (1) (a). For the reasons given in my Judgment the 1st, 2nd and 4th Counter Claim Defendants have no basis for such an application.

14.	Accordingly, I make the following Orders:

(1)	The Interlocutory Application filed on 30th November 2012 by the 1st, 2nd and 4th Counter Claim Defendants dismissed.

(2)	The 1st, 2nd and 4th Counter Claim Defendants are ordered to pay jointly, summarily assessed costs of $1,500.00 to the 1st and 2nd Defendants each and summarily assessed costs of $750.00 to the 3rd Counter Claim Defendant within 14 days of this Judgment.

(3)	As stated in paragraph 2 of this Judgment, Application made from the bar table by the 1st, 2nd and 4th Counter Claim Defendants' Counsel to withdraw and refile the application is refused.

Delivered at Suva this 22nd Day of November, 2013.

……………………..
C. KOTIGALAGE
JUDGE