IN THE HIGH COURT OF FIJI
[WESTERN DIVISION] AT LAUTOKA
CIVIL JURISDICTION

Civil Action No.: HBC081of 2004

BETWEEN:

SHIU RAM 
of Votualevu Housing, Nadi, Businessman.
PLAINTIFF

AND:

CARPENTERS FIJI LIMITED 
a limited liability company having its registered office at Suva, Fiji.
DEFENDANT

Appearances: 
Mr Roopesh Singh for the Plaintiff
Mr K. Naidu for the Defendant

JUDGMENT

Introduction

1.	This is an application filed by the Defendant to strike out the Plaintiff's action made pursuant to Order 18 Rule 18 of the High Court Rules (HCR) and the inherent jurisdiction of the High Court upon the grounds that:

(i)	The Plaintiff's Statement of Claim discloses no reasonable cause of action; and/or

(ii)	The Plaintiff's Statement of Claim is scandalous, frivolous or vexatious; and or

(iii)	The Plaintiff's Statement of Claim may prejudice, embarrass or delay the fair trial of the action; and or

(iv)	The Plaintiff's Statement of Claim is an abuse of process of Court.

2.	The application is supported by an Affidavit of Jolame Rokoyawa sworn on 23rd December, 2014.

The Plaintiff filed an Affidavit sworn by him on 13th March, 2015, opposing the said application.

The Defendant filed an Affidavit in Reply sworn by JolameRokoyawa on 28th April, 2015.

3.	There is another application before this Court filed by the Plaintiff by way of Notice of Motion on 3rd December, 2014 seeking leave to amend the Statement of Claim. The Court has ruled that the striking out application should be heard first. Accordingly the hearing on the application for striking out was concluded on oral submissions made by the Learned Counsel for both parties. They also tendered their written submissions at the end of the hearing.

4.	In the Affidavit in Support of the application it is stated inter alia that the Claim should be struck out due to the following reasons:

(i)	The Plaintiff's Statement of Claim ought to be struck out in terms of the application herein and as per paragraph 10 of the Amended Statement of Defence filed on 17th September, 2008.

(ii)	Given the considerable passage of time (approximately 10 years) now having elapsed, it would be extremely prejudiced to and will result in an injustice to the Defendant if the Plaintiff were to be given any indulgence or leave to file an Amended Statement of Claim at this belated and in these circumstances.

(iii)	That actual words published in the action for libel and slander by the Plaintiff have not been pleaded in the Claim and accordingly the Claim is defective;

(iv)	That the issues subject of the pleadings between the parties including the Pre-Trial Conference are now academic and/or moot and/or already determined and ought to be struck out as it will prejudice, embarrass and delay the fair trial of the action;

(v)	That the alleged publication is in any event relates to an action undertaken by the Official Receiver (not a party to the proceedings) in the exercise of its statutory duty and not by the Defendant and accordingly protected by qualified and/or absolute privilege.

5.	Paragraph 10 of the Amended Statement of Defence which is referred to in the Affidavit in Support states that: -

"The Defendant by way of further defence pleads the "doctrine of absolute privilege" is applicable and the Plaintiff's action does not disclose a reasonable cause of action and is scandalous, vexatious, frivolous and is an abuse of the process for the Court and is embarrassing."

6.	The Plaintiff in Reply states in his Affidavit that he has a good cause of action as:

(i)	The Receiving Order was obtained by the Defendant wrongly filing it in the wrong Court when they knew he resided in Nadi;

(ii)	The Receiving Order was caused to have been made by the application by the Defendant in court, papers for which were never served on him and;

(iii)	The advertisement in the Royal Fiji Gazette was caused to be made by the Defendant and or their application and further the Magistrates Court set aside the Receiving Order against him on the basis that the same was not properly obtained by the Defendant.

(iv)	The effect of the receiving order had made him lose his reputation with his bankers, ANZ, witnesses from whom will come to testify at the trial of this action.

 The Law and Analysis

7.	Order 18 Rule 18 (1) which is the applicable rule for this application provides as follows:

18 (1):The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any Writ in the action, or anything in any pleading or in the endorsement, 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 Court; 

and may by 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) …………………………………………
 
8.	The principles applicable to striking out applications have been discussed by the 
Court on many occasions.

In NapolioniKurucakeRatumaiyale v Native Land Trust Board and Pacific Octopus Limited (2000) 1 FLR 284 it was held as follows:

 "Principles applicable to a striking out application; relief is rarely and sparingly used; party seeking relief must show opponent lacks a reasonable cause of action; a weak case is not a prima facie sufficient to warrant summary termination; summary relief is not substitute for proceeding by way of demurrer/trial; whether pleadings can be reframed if it appears a party may have a reasonable cause of action; what is just in each case."

9.	In Anil Choy v DayniyatuKautoga and Others FJHC 649; HAC 0352, 2004L (16th May, 2005) the following observations were made by Justice John Connors in regard to striking out applications:

"I have taken account of the material contained in the skeletal submissions and the tests applicable to an application of this type. Perhaps the most salient test is that expressed by Lindley MR in Hubbuck& Sons Ltd v Wilkinson Heywood & Clark Ltd[1899] 1 Q.B. 86 at page 91 where the Master of the Role said:

"Summary procedure is only appropriate to cases which are plain andobvious, so that any master or judge can say at once that the statementof claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks. The use of expression "reasonable cause of action" in rule 4 shows that the summary procedure there introduced is only intended to be had recourse to in plain and obvious cases." 

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

10.	The caution to be exercised by Court when considering applications of this type was discussed in the following authorities too.
Hemant Kumar v Suresh Kumar and Others [2003] HBC 33/03;
Anthony William Cooper v Public Trustee Corporation Limited and Others [2004] HBC 82/05;
Barbados Mills v Commander, Republic of Fiji Military Forces and Attorney General [2005] HBC 456/03;

11.	From the principles set out by the aforesaid authorities it is clear that the jurisdiction to strike out proceedings on the ground that it discloses no reasonable cause of action should only be exercised in exceptional cases where, on the pleaded facts the cause of action is obviously unjustifiable. It is not enough to say the case is weak and unlikely to succeed; it must be so clearly untenable or that no cause of action exist.

12.	In this matter the Defendant argues that the Statement of Claim does not disclose whether defamation is claimed as matter of the plain and literal meaning of the publication or by way of innuendo. It is also argued that in any event the actual words of the publication have not been pleaded. They submit Prasad vs USP [1998] 44 FLR 272 in support of their argument.

13.	It was held in Prasad v USP [1998] 44 FLR 272 that: -

"…On the authorities I hold that there is, as the Plaintiff has not clearly pleaded in his Statement of Claim what the actual words used were and by whom and also if the Plaintiff is pleading a true legal innuendo he has not set out in his Statement of Claim the extrinsic facts on which he relies (Gatley on Libel and Slander 9th Ed.-1998 p.678-26.43).On these grounds the Defendants can apply to have the Statement of Claim struck out and that is what the Defendants are now applying to Court for; it is open to the Plaintiff to generally obtain leave to amend. In Aqua Vital Australia Ltd v. Swan Television (1995) Aust. Tors Reports 62.709 it was held that it would be a rare case in which a court would strike out a plea of true innuendo on the ground that there were no extrinsic facts to support the innuendo without out giving the Plaintiff every reasonable opportunity properly to particularise the plea. "

14. While stating that a striking out application could be brought in a defamation
action in which the Plaintiff has not clearly pleaded in his Statement of Claim what the actual words used were, the said authority also confirms that at such instances it is open for the Plaintiff to generally obtain leave to amend. 

15.	The Supreme Court Practice 1999 (Ed) 1 at page 347 paragraph 18/19/2 refers to the discretion of Court to allow an amendment to salvage an action of this nature. It is stated therein as follows:

"Striking out or amendment- The rule empowers the Court to amend any pleading or indorsement or any matter therein. If a statement of claim does not disclose a cause of action relied on, an opportunity to amend may be given, though the formulation of the amendment is not before the Court (CBS Songs Ltd v Amstrad[1987]R.P.C. 417 and [1987] R.P.C. 429). But unless there is reason to suppose that the case can be improved by amendment, leave will not be given (Hubbuck v. /Wilkinson [1899] 1 Q.B. 86 at 94, CA). Where the statement of claim presented discloses no cause of action because some material averment has been omitted, the Court, while striking out the pleading, will not dismiss the action, but give the Plaintiff leave to amend (see "Amending or adding to particulars", para. 18/12/66), unless the Court is satisfied that no amendment will cure the defect (Republic of Peru v. Peruvian Guano Co. (1887) 36 Ch.D.489)."[emphasis added] 
 
16.	Upon reading the pleadings, considering the submissions of counsels and the authorities referred to herein before, I am of the view that the Plaintiff has an option in this case to move for an amendment of the Statement of Claim to include the actual words used which he alleges to be defamatory. Therefore I hold that the Plaintiff's claim should not be struck out merely because he has not pleaded the actual words of the publication in his Statement of Claim.

17.	The Defendant argues further that the Defendant was not the author or publisher of the publication and that the publication were made by the Official Receiver in discharge of its statutory functions and the Official Receiver is not a party to the action. It is also stated by the Defendant that the contents of the publications are merely reproduction or report of a judicial order made in the Magistrate Court and the Magistrates Court that made the Order enjoys absolute privilege and any reproduction with the qualification of malice shares the same privilege. They also state that the Plaintiff has not pleaded its claim based on any form of malice therefore the publications are protected by privilege even on the assumption that it is defamatory.

18.	The Plaintiff alleges in his Statement of Claim that the Defendant wrongly obtained judgment against the Plaintiff's Company in the Magistrate Court matter and filed and obtained a Bankruptcy Order against him based on the judgment against his Company. The claim for defamation is for obtaining a Receiving Order against the Plaintiff in the said proceedings and advertising the same on the local daily and Fiji Gazette.

19.	From the Submissions of the Learned Counsel it is clear that there is a legal issue to be tried in this matter; issue is whether the alleged publication is protected by privilege. I find that this is an issue which should be formulated as a preliminary issue at trial.

20.	In Attorney General v Shiu Prasad Halka(1972) 18 FLR 210Marsack JA said:

"I think it is definitely established that the jurisdiction to strike out Proceedings under Order 18 Rule 19 should be very sparingly exercised where legal questions of importance and difficulty are raised."

21.	Next issue to be considered herein is whether the Plaintiff's claim prejudice, embraces or delay a fair trial of the action. The Defendant argues that the publication occurred in 2002 and the Writ and Statement of Claim were filed in 2004. Therefore with the passing of time, circumstances of the case and overall position of the Plaintiff, has made the Claim moot and academic. It is also stated by them that the pleadings, discovery, inspection and all other pre-trial matters have been dealt with and the Claim has been pending trial for quite some time and the grave delay by the Plaintiff in prosecuting his Claim has taxed the Defendant heavily on legal fees, administrative real keeping and particularly upholding its interest and defence throughout an untenable claim that is now ten years old. They contend that the passage of time, untenable claim, nature of relief sought by the Plaintiff and overall development circumstances of the case will prejudice and embarrass a fair trial of the action.

22.	While alleging that the Plaintiff delayed prosecuting his claim and also that his claim is untenable it is surprising to note that Defendant has waited nearly ten years from the date the Pre- Trial Conference to make this application. The Pre Trial Conference has been held on 7th December 2005.

23.	Supreme Court Practice (1999) Vol. 1 page 348 paragraph 18/19/3 refers to applications of this nature. It is stated as follows;

"Application-Although the rule expressly states that the order may be made "at any stage of the proceedings", still the application should always be made promptly, and as a rule before the close of pleadings. Where the Statement of Claim is being attacked, the application may be made before the defence is served(Att.Gen. of Duchy of Lancaster v. L. & N.W. Ry. [1892] 3 Ch. 274]; but where it is sought to stay or dismiss the action, the application should not be made before the service of the Statement of Claim (Wright v. Prescot U.D.C. (1916) 115 L.T.772; cf. Electrical Co.v. Att.-Gen. for Ontario [1919] A.C. 687). Where the defence or other subsequent pleading is being attacked, the application should be made as soon as practicable after the service of such defence or pleading. The application may be made even after the pleadings are closed (per Brett M.R. in Tucker v. Collinson (1886) 34 W.R. 354, or the trial set down (Goymer v. Lombard North Central Wheelcase Ltd (1993) The Times, April 1, CA), though it should not be heard at the opening of the trial, save in exceptional circumstances (Halliday v. Shoesmith [1993] 1 WLR 1, CA).

In the Ch D, the application is made by summons or by motion. In the QBD it is made to the Master by summons." [emphasis added] [emphasis added]

24.	In this matter the application to strike out is made by the Defendant after the pleadings were filed and even after the Pre-Trial Conference was held in the year 2005. Therefore the Defendant is in my view should also be responsible for the delay in making this application, it has not been made promptly. Though this action has been instituted in 2005 there is no evidence before me to prove that the Plaintiff was responsible for the delay in prosecuting his claim. There is no evidence before me of any prejudice likely to be suffered by the Defendant. Therefore I am not in agreement with the argument of the Defence Counsel that it will be prejudiced of a fair trial by the Plaintiff prosecuting his Claim. 

25.	Due to the reasons set out above I hold that this action is not an abuse of the process of Court and the legal issue raised by the Defendant should be left to be tried as a preliminary issue at the trial.

Conclusion

26.	Accordingly, I make the following Orders:

(a)	The application by way of Summons made by the Defendant on 23rd December, 2014 to strike out the Statement of Claim is dismissed.

(b)	No order for costs. 

Lal S. Abeygunaratne
[Judge]

At Lautoka

01 October 2015