IN THE HIGH COURT OF THE REPUBLIC OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. 45 of 2004

BETWEEN:

SUREND SAMI F/N Munsami of Tabucola, 
Labasa, as Administrator in the Estate of the late Amra Wati d/o Dalaya Sami, late of Tabucola, Labasa
PLAINTIFF

AND:

THE PERSONAL REPRESENTATIVE of Feroz Ali f/n unknown to the plaintiff, 
deceased.
1ST DEFENDANT

AND:

ASHOK'S TRANSPORT LIMITED 
a truck haulage company operating from Lot 5 Jai Ambamaa Road, Bhindi Sub Division, Vatuwaqa
2ND DEFENDANT

AND:

CDP SERVICES
a limited liability company having its head office at 159 Foster Road, Walu Bay Street, Suva.
3RD DEFENDANT

Before: Master Mohamed Ajmeer
Counsel: Mr H Robison for the plaintiff
Mr A Sen for the second defendant

Date of Hearing: 2 July 2008
Date of Ruling: 3 October 2014 

RULING

Introduction

[1]	This is an application to strike out the claim.

[2] 	On 04 April 2008 second defendant filed a summons to strike the 	plaintiff's claim (the application) on the grounds that: (a) it is disclosing 	no reasonable cause of action; (b) it is scandalous, frivolous or vexatious; (c) it is an abuse of process of Court. The application is supported by an affidavit of Uday Pratap, a Law Clerk employed by Messrs Maqbool & Company, plaintiff's solicitors. He in his affidavit, inter alia, states that:

1.	...

2.	...

3.	THAT this action has been pending since 12th July 2004.

4.	THE solicitor for the plaintiff has made various amendments without prior leave of this Honourable Court.

5.	THAT the plaintiff has also changed description of 1st defendant and added a new defendant without prior leave of this Honourable Court.

6.	THAT the plaintiff has issued amended writ of summons on 26th July 2007 without prior leave of this Honourable Court.

7.	THAT the plaintiff is insisting to pursue with this action without serving the writ of summons on the 1st defendant knowing very well that the writ (amended or otherwise) has expired.

8.	THAT the plaintiff's writ is defective and no action in law can be maintained against the 2nd defendant. 

[3] 	This application is made pursuant to Order 18 Rule 18 (a), (b), (d) of the High Court Rules 1988 (HCR) and the inherent jurisdiction of the Court.

[4] 	Plaintiff filed affidavit of Doreen Miller sworn on 23 April 2008 in response. In that responding affidavit the plaintiff, inter alia, states that:

'...
6. 	That leave was granted by the courts in April 2007 to amend the Statement of Claim.
7. 	That leave was granted by the Master of the High Court on Thursday 5th July 2007 to amend the Writ of Summons and notwithstanding that the Order was not sealed, we had complied by the rules in filing it within the prescribed period.
8. 	That the Plaintiff confirms that this action has been wholly and fully discontinued against the 1st Defendant and that the said Writ is thereafter maintained against the2nd Defendant. 
9. 	That the Summons of the 2nd Defendant for dismissal of this Action upon the grounds stated in the Affidavit therein is misleading, mischievous and vexatious'. 

[5] 	The striking out application was heard and argued before Master Udit on 2 July 2008. The ruling was to be delivered on notice. Before delivering 	his ruling, Master Udit ceased to occupy the bench since April 2009.

[6] 	I caused the matter to be called in open court on 30 September 2014, when both the counsels appeared. Then I asked the counsels whether they would object, if I deliver the ruling on the material (submissions) 	already placed in court. Both counsels kindly agreed and consented the 	ruling to be delivered by me. I accordingly proceed to deliver the ruling on the striking out application filed by the second defendant.

Background

[7] 	The plaintiff as an administrator in the estate of Amra Wati filed this action against the defendants seeking damages. The writ of summons was filed on 26 July 2004. The plaintiff's claim arose out of a motor vehicle accident wherein Amra Wati lost her life. The motor vehicle was driven by a Feroz Ali who was an employee of the second defendant. The vehicle belonged to the third defendant. The accident, according to plaintiff, occurred due to the negligence of Feroz Ali. On 12 February 2008 judgment by default was entered against the third defendant. On 4 April 2008, the claim against the first defendant was discontinued. On the same day (4 April 2008) the second defendant filed its application to dismiss the claim under Order 18 Rule 18 (a), (b) and (d) of the High Court Rules 1988. The striking out application was heard by Master Udit on 2 July 2008 and ruling is still pending. 

The Law

[8] 	The applicable law regarding striking out is seen in HCR. HCR Order 18 rule 18(1) is the applicable rule, which provides as follows:

"18.-(1)The court may at any stage of the proceedings order to be struck out or amendedany pleading or the indorsement of any writ in the action, or anything in any pleading or in theindorsement, 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" (Emphasis added).

Plaintiff's submission

[9] 	Mr Robison, counsel for the plaintiff had orally argued that, he can prove the case against the second defendant. Facts arising out of an action or omission by the servant, supposing injury to a third party, the Master (is liable) directly. Case does not require the servant to be joined. Master is liable as the servant would be liable. There is cause of action. Facts speak for itself. Servant is dead, then it is necessary to join the same or general as a party.

Defendant's submission

[10] 	Counsel for the second defendant, Mr Sen had stated that he would rely on the written submissions. He had filed two written submissions. One was filed on 19 May 2008, and another on 20 June 2008 as further submissions pursuant to the Master's order made on 5 June 2008. Mr Sen in his written submissions contends that, the plaintiff in this case intends to proceed for vicarious liability against the second defendant and for that matter against the third defendant without proceeding an action for tort against the tort-feaser. No action therefore in vicarious liability can be maintained against the rest of the defendants unless the Estate of Feroz Ali is properly made a party to the proceedings and allowed to defend the action. He further argues that, plaintiff has chosen to amend the proceedings as he wished and added new defendants at his discretion without making proper application for leave and the amendments are therefore irregular and no retrospective leave can be given by the court remedying such irregularities. He finally submits that, the plaintiff's attempt not to serve the personal representative of the deceased Feroz Ali, the driver of the motor vehicle is fatal to this action.

Analysis & Determination

[11] 	The second defendant applies to dismiss and strike out the claim under O. 18, r. 18 (a), (b) & (d) of HCR. Under these rules, the Court at any stage of the proceedings may order to be struck out or amended any pleading or the endorsement of any writ in the action on the ground that, (a) It discloses no reasonable cause of action or (b) It is scandalous, frivolous or vexatious; or (d) It is otherwise an abuse of the process of the court. The application seeks to strike the claim under O. 18, r.18 (1) (a), (b) & (d). It will be noted that the second defendant did not rely on ground (c) of r.18 that it may prejudice, embarrass or delay the fair trial of the action.

[12] 	It is important to note that when application to strike out is made under sub paragraph (1) (a) of r.18 that it disclosed no reasonable cause of action, no evidence (including affidavit evidence) will be admissible, see O.18, r.18 (2), HCR. On an application on this ground, it is only the pleading itself which is being examined, the court is required to assume that the facts pleaded are true and undisputed. However, evidence may be adduced when relying on other grounds ((b), (c) & (d)) and inherent jurisdiction of the court. In McDonald's Corp and another v Steel and another [1995] 3 All ER 615, it was observed that:

'It will be seen from the wording of r 19(2) [similar to our r 18 (2)] that, by necessary implication, evidence is admissible on an application to strike out a pleading on the ground that it is an abuse of the process of the court. Evidence is likewise admissible on an application under the court's inherent jurisdiction. It follows therefore that there can be no objection in principle to an application being made to the court on the basis that a statement of claim or a defence should be struck out as an abuse of process because, as disclosed in the affidavits filed in support of the application, the claim or defence is incapable of proof.'

[13] 	The second defendant's application indicates that the application is made 	pursuant to O.18, r. 18(1) (a), (b) & (d), HCR and the inherent 	jurisdiction of the Court. Since the second defendant has invoked the 	inherent jurisdiction of the court evidence is admissible.

[14] 	The summary powers to strike out pleadings, dismiss action and enter judgments are derived from two parallel sources. Firstly they are conferred by rules of court (HCR) and secondly they are exercisable 	under the court's inherent jurisdiction. These powers are cumulative, not alternative, and may be invoked by the parties and employed by the court simultaneously. However, the powers are permissive, not mandatory, and they confer a discretionary jurisdiction which the court will exercise in the light of the circumstances concerning the offending pleading, see paragraph 430, 37 Halsbury's Laws of England (4th Ed). 

[15] 	Although the application to strike out indicates that the application is made under HCR, O. 18, r.18 (1) (a), (b) & (c), in the written submissions tendered by the second defendant states that, the second defendant in this action is seeking dismissal of the plaintiff's action pursuant to Order 18 Rule 18. He generally relies on r.18 without specifying any particular ground. In the written submissions, the second defendant does not specifically state under which grounds of r. 18 it seeks to dismiss the action. It seems to me that, as I read the written submission of the second defendant, the second defendant seeks to dismiss the claim on the ground that it fails to disclose a reasonable cause of action vis-a-vis the second defendant. For this purpose Mr Sen has formulated three issues of law, which I will discuss shortly.

[16] 	Application for striking out should be made promptly, see Ram Pratap v 	Maleli Raibe HBC 414/85l. in Abdul Rafiq v Lautoka City Council [2004] HBC 314/02L 10 may 2004 Connors, J noted that an application 	made one month after change of solicitors and 3 month after a Statement of Defence was filed is not delaying matters. 

[17] 	In this case, the second defendant filed its statement of defence to the amended statement of claim on 20 September 2007. The application to strike out the statement of claim has been filed on 4 April 2008. That is to say, the application to strike out has been made after some six month of filing the statement of defence. An application to strike out the claim under O. 18, r.18 may be made at any time after filing notice of intention to defend, and even before filing the statement of defence. In the circumstances, I am of opinion that the application to strike has not been made promptly. That why the second defendant did not apply to strike out the claim on the ground (c) that it may prejudice, embarrass or delay the fair trial of the action.

[18] 	The second defendant attacking the amended statement of claim. Mr Sen, counsel for the second defendant submits that, the plaintiff had not right or colour in law to file an amended writ of summons without proper application being filed before this Honourable Court with summons and 	affidavit and prior leave being obtained and that there is nothing in the 1st (sic) defendant's file to show that any such application was ever made. This submission has no basis and not borne out by the case record. According to journal entry of 11 April 2007, Master J. J. Udit had granted leave for the plaintiff to file an amended statement of claim. The case record of 11 April 2007 states that, 'plaintiff to file an amended statement of claim by 24/4/2007'. The plaintiff accordingly had filed his amended statement of claim on 20 April 2007. Thereafter, on 5 July 2007 the court directed that the plaintiff to file and serve amended writ of summons by 25/7, see case record of 5 July 2007. In compliance of that direction the plaintiff filed amended writ of summons on 26 July 2007 and served the same on the second defendant on 13 August 2007. The second defendant then filed the acknowledgement of service on 22 August 2007 and its statement of defence to amended statement of claim on 20 September 2007.

[19] 	Interestingly, the second defendant challenges the amended statement of writ after filing its statement of defence to the amended statement of claim. If the seconded defendant had really intended to challenge the amended writ, he would have easily done so before filing its defence to it. But, nonetheless they did not do so. The second defendant, in my opinion, would be precluded to challenge the plaintiff filing his amended writ after responding to it by filing the defence. In any event, the plaintiff had filed the amended writ after leave was granted by the court to do so. Therefore the argument, that plaintiff has chosen to amend the proceedings as he wished and added new defendants at his discretion without making proper application for leave and the amendments are therefore irregular, fails.

[20] 	The second defendant seeks to strike out and dismiss the action on the ground that it fails to disclose reasonable cause of action against the second defendant (No reasonable cause of action – O. 18r. 18(1) (a)).

[21] 	'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 proved. 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 to 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 …': per Eichelbaum, Tompkins & Gallen, JJA in National MBF Finance (Fiji) v Nemani Buli [2000] ABU 57/98 6 July 2000.

[22] 	In Vijay Singh v Attorney-General & BlueShield (Pacific) Insurance Limited [2003] HBC 221/98 Decision 22 July 2003 Pathik, J held that, there are triable issues of negligence which merit adducing of evidence in trial to prove the plaintiff's case, hence there is a reasonable cause of action, this action is not an abuse of the process of court and action to strike out refused.

[23] 	In Taito Navualaba v Commander, Republic of Fiji Military Forces, Commissioner, Republic of Fiji Police Forces& Attorney-General [2004] HBC 355/03S Decision 11 February 2004, Pathik, J held: 'in an action of vicarious liability on an allegation of assault against soldier under D1's command and some policemen under D2, it cannot be said here that the action is one which cannot succeed or is in some way an abuse of the process. Although no soldier or policemen has been named as having taken part in the assault, the plaintiff will need to prove his case as a matter of evidence to the trial of the action the allegation that they come under the control and supervision of D1 and D2 respectively'.

[24] 	Returning back to the present case. Mr Sen in his written submission submits that, the plaintiff in this case intends to proceed for vicarious liability against the second defendant and for that matter against the third defendant without proceeding an action for tort against the tort-feaser. No action therefore in vicarious liability can be maintained 	against the rest of the defendants unless the Estate of Feroz Ali is 	properly made a party to the proceedings and allowed to defend the action. In this regards, Mr Sen has raised three issues of law namely: 

i.	Can the plaintiff without proceeding and maintaining a claim for negligence against the driver Feroz Ali, maintain an action for vicarious liability against the 2nd defendant (in whatever capacity)?

ii.	Can an action for vicarious liability be pursued against the master when the servant is not made a party to the proceedings?

iii.	How can hold the master liable if you are not pursuing the case against the servant?

[25] 	The above questions are inappropriate for the present purpose. My task in these proceeding is to determine whether the statement of claim 	discloses a reasonable cause of action against the second defendant, and for that purpose I will assume the facts pleaded in the amended statement of claim are true and undisputed. I will apply the 'plain and obvious test applicable to the summary procedure of striking out 	pleadings. In Dyson v A-G [1911]1 KB 410 at 414, Fletcher Moulton LJ thought it should be confined to cases where the cause of action was 'obviously and almost incontestably bad'.

[26] 	The amended statement of claim states that, one Feroz Ali, now deceased 	was at all material times the driver of a goods truck No. DC548 conveying goods to Suva via Savusavu travelling along the Labasa/Savusavu Road. His personal representative is now being sued as the 1st defendant (by notice of discontinuance filed 7 April 2008 by the plaintiff action against the 1st defendant was wholly and fully discontinued). The 2nd defendant was at all material times the employer of the 1st defendant. On 29 July 2001 the deceased was a passenger on board the 3rd Defendant's truck Registration No. 548 which was on a goods delivery run when it was involved in an accident at Nabalebale, Cakaudrove. The said truck was driven by the 1st defendant who was an employee of the 2nd defendant and the said truck was for all intents and purposes used by the second defendant to cart its goods between Labasa 	and Suva. The accident was caused by the negligence of the 1st defendant (vide paras 2-7 of the amended statements of claim). I will, for the present purpose, assume these facts are true and undisputed.

[27] 	It is true the claim in essence is one of vicarious liability. Mr Sen submits that, the plaintiff cannot, without proceeding and maintaining a claim for negligence against the servant (driver Feroz Ali), maintain an action for vicarious liability against the master (2nd defendant). Mr Robinson had orally argued that case does not require the servant to be joined. In essence his argument was that the plaintiff can bring and maintain action against the master for the negligence of his servant, even without joining the servant as a party to the proceedings.

[28] 	The plaintiff has opted not to proceed the claim against the Estate of Feroz Ali. That is his option. He has a right to do so. The second defendant is not entitled to challenge it. In an action of vicarious liability on allegation of negligence against the driver being the servant of the second defendant, it cannot be said that the action is one which cannot succeed or is in some way an abuse of the process. Although claim against the driver has been dropped, the plaintiff will need to prove his 	case as a matter of evidence at the trial of the action the allegations he has made in his amended statement of claim.

[29] 	As stated in paragraph 24 above, formulation of legal question by the second defendant clearly shows that it was possible to distil from the pleadings clearly defined issues of law which it would have been appropriate to determine as preliminary questions and which can be answered in a way which disposes the action. It is also open to the court, when dealing with an application to strike out a pleading, for example on the ground that it discloses no reasonable cause of action, to order the question to be tried as a preliminary issue, see Addis v Crocker [1961]1 QB 11, [1960]2 All ER 629.

[30] 	The second defendant may conveniently raise those issues of law which it 	has formulated in these proceedings as preliminary issues at trial. There are triable issue in this case. The plaintiff needs to prove his case through evidence at trial. An action will not be struck out when there are triable issues of negligence which merit adducing of evidence in trial to prove the plaintiff's case, see Vijay Singh v Attorney-General & BlueShield (Pacific) Insurance Limited (supra).

[31] 	In Nagle v Feilden [1966] 1 All ER 689 at 697, [1966] 2 QB 633 at 651, it was thought:

'It is well settled that a statement of claim should not be struck out and the plaintiff driven from the judgment seat unless the case is unarguable.'

[32] 	In my judgment the facts pleaded in the amended statement of claim give 	rise to a reasonable cause of action in tort vis a vis the second defendant, this action is not an abuse of the process of the court. The claim is capable of proof. It seems to me, at any rate, such a claim should be struck out but should be left to be argued at trial.

Conclusion

[33] 	For these reasons, I have reached the conclusion that it would be inappropriate to strike out the amended statement of claim and that the case must accordingly take its normal course. For the present purposes it suffices to say that the second defendant fails to demonstrate that plaintiff's claim is obviously doomed to fail. I would refuse and dismiss the second defendant's application to strike out the claim and the action, but I would order the second defendant to pay costs to the plaintiff in the sum of $250.00 which I summarily assessed. The costs are to be paid in 21 days of this ruling.

Result

[34] 	The result is that, I refuse and dismiss the application filed 4 April 2008 by the second defendant with summarily assessed costs of $250.00 payable to the plaintiff by the second defendant in 21 days of this ruling. Order accordingly.

……………………………………
M H Mohamed Ajmeer
Master of the High Court

At Labasa
3/10/2014
Solicitors:
For Plaintiff: Messrs Kohli & Singh, Solicitors
For 2ND Defendant: Messrs Maqbool & Company, Barrister & Solicitors