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Shyam v Gremay Pacific Ltd [2016] FJHC 201; HBC90.2012 (23 March 2016)

THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Action No. HBC 90 of 2012
BETWEEN:

PREMIKA SHYAM and MERMAIDS NITE CLUB 7 RASTA BAR of 40 Quaia Street, Lami.
PLAINTIFF

AND:

GREMAY PACIFIC LTD a limited liability company having its Registered office at 61 Millet Road, Vatuwaqa Industrial Subdivision, Suva in Fiji.
DEFENDANT

BEFORE: Master Vishwa Datt Sharma

COUNSELS: No appearance by the Plaintiff
Ms. S. Narayan for the Defendants

Date of Hearing: 25th June, 2015
Date of Ruling: 23rd March, 2016

RULING

(Application to Strike out the Plaintiffs Writ of Summons, Statement of Claim, Reply to Defence, Defence to Counter-Claim and Enter Judgment on Defendant’s Counter-Claim )

INTRODUCTION

The Defendant filed and served a Summons together with an affidavit in support of Rodney Chand on 28th April, 2014 and sought for the following orders-

That the Writ of Summons and the Statement of Claim filed by the Plaintiff on 29th March, 2012 and Reply to the Statement of Defence and Counter- Claim filed by the Plaintiff on 12th June, 2012 in the within action be struck out as it discloses no reasonable cause of action;
That judgment be entered in favour of the Defendant in terms of the Counter- Claim filed by the Defendant on 30th April, 2012 and or alternatively leave be granted to the Defendant to formally prove the Counter- Claim;

That the costs of this action be paid by the Plaintiff; and

Any other order that this court deem just and expedient.

This application was made pursuant to Order 18 Rule 18 (1) (a) and (d); Order 24 Rule 16 (1) (b) and Order 25 Rule 9 of the High Court Rules 1988 and the Inherent Jurisdiction of the High Court.

The Summons and the Affidavit in Support was served at the office of the Plaintiffs Lawyers, Vakaloloma & Associates at 57 Amy Street, Suva on 15th May, 2014.

No Reply to the Defendant’s application was filed by the Plaintiff.

Subsequently, the Plaintiffs’ Lawyer Vakaloloma & Associates filed an application to withdraw as the Plaintiffs’ Counsel but was later struck out on 10th November, 2014.

The Plaintiff’s Counsel was served with a Notice of Adjourned Hearing on 12th March, 2015 requiring Counsel’s courts attendance on 13th March, 2015, he failed to turn up to court and matter scheduled for hearing on 25th June, 2015.

The Defendant’s application was heard with Written Submissions on 25th June, 2015 on an undefended basis.

ISSUES

There are Four (4) main issues which require determination by this honourable court and they are:

Whether or not the statement of claim discloses no reasonable cause of action or it is otherwise an abuse of the process of the court; (Order 18 Rule 18(1)(a) and (d);
Whether the Plaintiff’s claim should be struck out for want of prosecution and or abuse of court process; (Order 25 Rule 9);
Whether the Plaintiff’s Defence to Counter-Claim be struck out; (Order 24 Rule 16(1)(b); and
Whether the Defendant is entitled to judgment in terms of its Counter- Claim or in the alternative, to have its Counter- Claim formally proved. (Order 24 Rule 16 (1) (b)).

In order to address the above issues at (a), (b) and (c), it is necessary to visit the relevant laws regarding the striking out application, and then determine the issue at (d) -whether the Defendant is entitled to judgment in terms of its Counter-Claim or in the alternative, to have the Counter-Claim formally proved.

LAW ON STRIKING OUT OF APPLICATION

The Application to strike out has been made pursuant to Order 18 Rule 18 (1) (a) & (d) and Order 24 Rule 16 (1) (b) and Order 25 Rule 9 of the High Court Rules 1988 and the Inherent Jurisdiction of the High Court.

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:

It discloses no reasonable cause of action or defence, as the case may be; or
It is scandalous, frivolous or vexatious; or
It may prejudice, embarrass or delay the fair trial of the action; or
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).

(Since this application is filed pursuant to Order 18 Rule 18 (1) (d) only, this court will therefore confine its determination to Rule 18 (1) (d) only)

Order 24 Rule 16 (1) (b) states that if any party who is required by any of the foregoing rules, or by any order made thereunder, to make discovery of documents or to produce any documents for the purpose of inspection or any other purpose, fails to comply with any provision of that rule or with that order, as the case may be, then, without prejudice, in the

(a).............
(b) the Court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly.

Order 25 Rule 9 of the High Court Rules 1988 and to the Inherent Jurisdiction of this Honourable Court states inter-alia as follows:

“(1) If no step has been taken in any cause or matter for six months then any party on application or the Court of its own motion may list the cause or matter for the parties to show cause why it should not be struck out for want of prosecution or as an abuse of the process of the Court.
(2) Upon hearing the application the Court may either dismiss the cause [or] matter on such terms as may be just or deal with the application as if it were a summons for directions.’
(Underline is mine for emphasis)

In dealing with the issue of striking out of application, I bear in mind the following passage from Halsbury’s 4th Ed. Vol. 3 at para 435:

“The power to strike out, stay or dismiss under the inherent jurisdiction is discretionary. It is a jurisdiction, which will be exercised with great circumspection and only where it is perfectly clear that the plea cannot succeed, it ought to be exercised sparingly and only in exceptional cases. However, for this purpose the court is entitled to inquire into all the circumstances of the case, and to this end affidavit evidence is admissible.

In the case of Khan v Begum (2004) FJHC 430; HBC0153.2003L (30 June 2004) Justice Connors discussed 18 (1) (a) and (d) where he held that;

“It is said that the fact the court has this inherent jurisdiction is one of the characteristic which distinguishes the court from other institutions of the government. It is a jurisdiction, to be exercised summarily and as I have said, is in addition to the jurisdiction conferred by the rules. It is not in issue that if a party relies solely upon Order 18 rule 18 there no evidence may be considered by the court in making its determination but that limitation does not apply where the applicant relies upon the inherent jurisdiction of the court.”

In National MBF Finance (Fiji) Ltd v. Buli Civil Appeal No. 57 of 1998 (6 July 2000) the Court stated as follows:-

"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 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. It follows that an application of this kind must be determined on the pleadings as they appear before the Court...."

Analysis and Determination

It is not noted that the Plaintiff at no time filed and served any affidavit in response to show cause to the Defendant’s striking out application or did the Plaintiff and the Counsel representing the Plaintiff thought fit to appear at the hearing for the reasons best known to them.

Order 18 Rule 18 and Order 24 Rule 16

Order 18 Rule (1) (a) – no reasonable cause of action-

Under this rule the Defendants allege that there is no reasonable cause of action within the Statement of Claim filed by the Plaintiff.

Order 18 Rule (1) (a) is subjected to Order 18 Rule (2) where it is stated that no evidence shall be admissible on an application under paragraph (1) (a).

Bearing in mind Order 18 Rule (2), in that circumstances, the court is obliged to look at the pleadings filed before the court and analyse whether or not the action discloses a reasonable cause of action or defence at the case at hand.

If the facts as pleaded do raise legal questions or tribal issues of fact on which the rights of the parties depend, the court should not strike out the pleadings as per the case of Bano v Rashid [2014] FJHC 266.

I will now turn to address the issue of reasonable cause of action.

Justice Jitoko in the case of “Prasad v Home Finance Company Limited [2003] FJHC 322; HBC0116D.2002S (23 January 2003)” has discussed the issue of reasonable cause of action where his lordship stated that:

“What constitutes a reasonable cause of action or defence does not mean that the Court should delve into whether the claim or defence is likely to succeed. As Lord Person stated in Drummond Hackson v. British Medical Association [1970] 1 WLR 688, [1970] 1 ALL ER 1094 CA at P.1101: No exact paraphrase can be given, but I think a reasonable cause of action means a cause of action with some chance of success, when (as required by r.19 (2) only the allegations in the pleading are considered............................

The Courts view and many decisions on this matter is clear: As long as the statement of claim or the particulars (Davey v. Bentict: [1892] UKLawRpKQB 216; (1893) 1 QB 185) disclose some cause of action, or raise some question fit to be decided by a Judge or a jury, the mere fact that the case is weak, and no likely to succeed is no ground for striking it out. (Supreme Court Practice 1985 Vol. 1 p 306).......

It is therefore very clear that in both the exercise of its powers under O.18 r. 18 and under its inherent jurisdiction, a Court may only strike out a Statement of Claim and dismiss the action if in the words of Lord Blackburn, in Metropolitan Bank v. Pooley (1885) 10 App. (a 210 at p.221, if and when required by the very essence of justice to be done”.

The test of reasonable cause of action does not require the court to determine whether the cause of action in the pleadings will eventually succeed. The only issue to be considered is that the facts pleaded in the pleadings disclose some cause of action or a dispute fit to be decided by the court as per the case of Bano v Rashid [2014] FJHC 266.

In Razak v. Fiji Sugar Corporation Ltd [2005] FJHC 720; HBC 208. 1998L (23 February 2005) his Lordship Justice Gates (current Chief Justice) stated as follows:-

"A reasonable cause of action means a cause of action with "some chance of success" per Lord Pearson in Drummond-Jackson v British al Astociation [19n [1970] 1 All ER 1094 at p.1101f. The power to strike out is a summary power "which should be exercised only in plain and obvious cases", where the cause of action was "plainsustle"; Drummond-Jacd-Jackson kson at p.1101b; A-G of the Duchy of Lancaster v London and NWway Company [any [1892] UKLawRpCh 134; [1892] 3 Ch. 274 at p.277.

The Defendant submitted that the Statement of Claim does not plead particulars as required under the Therethis is a clear breach of Order 18 Rule 11 of thef the High High Court Rules 1988 which deals with particulars of pleadings. Further, the Plaintiff seeks special damages but has failed to plead what those special damages are and or provide any specific particulars of those damages. Several paragraphs in the Statement of Claim are merely statements rather than any claims being made against the Defendant.

The claim prima facie cannot be judged summarily to determine that there is no reasonable cause of action; it needs to be appropriately examined by a court of law accordingly.

Therefore, in the given circumstances, the Plaintiff’s claim cannot be said to have no reasonable cause of action at this stage of the proceedings.

Order 18 Rule 1 (d) – Whether the Plaintiffs Claim is otherwise an abuse of process of the court-

It is well settled that this Court has inherent jurisdiction to strike out the claim or pleadings for abuse of Court process and reference is made to paragraph 18/19/18 of the Supreme Court Practice 1993 Vol. 1.

At paragraphs 18/19/17 and 18/19/18 of Supreme Court Practice 1993 (White Book) Vol 1 it is stated as follows:-

"Abuse of Process of the Court"- Para. (1) (d) confers upon the Court in express terms powers which the Court has hitherto exercised under its inherent jurisdiction where there appeared to be "an abuse of the process of the Court." 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 prevent its machinery from being used as a means of vexation and oppression in the process of litigation (see Castro v. Murray (1875) 10 P. 59, per Bowen L.J. p.63). See also "Inherent jurisdiction," para.18/19/18."
"It is an abuse of the process of the Court and contrary to justice and public policy for a party to re-litigate the issue of fraud after the self-same issue has been tried and decided by the Irish Court (House of Spring Gardens Ltd. v. Waite [1990] 2 E.R. 990, C.A)."
"Inherent Jurisdiction - Apart from all rules and Orders and notwithstanding the addition of para.(1)(d) the Court has an inherent jurisdiction to stay all proceedings before it which are obviously frivolous or vexatious or an abuse of its process (see Reichel v. Magrath [1889] UKLawRpAC 20; (1889) 14 App.Cas. 665). (para 18/19/18).

Further reference is made to the case of Timoci Uluivuda Bavadra v The Attorney General (Sup. Ct. (now High Court) C.A. No. 487 of 1987 where Rooney J said:

“I am not required to try any issues at this hearill I have to decide whether there is an issue to be tried. It is not enough for the defendafendant to show on this application that the plaintiff’s case is weak and unlikely to succeed”.

The following passage from the judgment of Court of Appeal in National MBf Finance (Fiji) Limited v Nemani B(Civie Appeal No. No. ABU 0057 of 1998) very clearly enunciated and determined the principles of striking out. At page 2 of thgment their Loir Lordships said:-

“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 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...”

In Halsbury's Laws of England Vol 37 page 322 the phrase "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."

The phrase "abuse of process" is summarized in Walton v Gardiner (1993) 177 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"

Again, the summary procedure should not be used to determine the "abuse of process of the court', rather the matter to be heard to determine the issue within the writ making a claim whether it is groundless and unfounded in the sense that the plaintiff does not know of any facts to support it.

Order 24 Rule 16 (1) (b)

Order 24 Rule 16 (1) (b) of the High Court Rules, 1988 deals with Failure to comply with requirement for discovery and states-

"If any party who is required by any of the foregoing rules, or by any order made thereunder, to make discovery of documents or to produce any documents for the purpose of inspection or any other purpose, fails to comply with any provision of that rule or with that order, as the case may be, then, without prejudice, in the case of a failure to comply with any such provision, to rules 3(2) and 11(1),-
'the Court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly'.

32. There has been non-compliance of the orders made on the Summons for Directions and no further cause of action was taken by the Plaintiff to complete the cause thereafter.

Order 25 Rule 9

Order 25 Rule 9 of the High Court Rules 1988 states that- If no step has been taken in any cause or matter for six months then any party on application or the Court of its own motion may list the cause or matter for the parties to show cause why it should not be struck out for want of prosecution or as an abuse of the process of the Court.

The basic law on Order 25 Rule 9 has been crystallized in the leading authority of Birkett vs James (1978 AC 297 (1977) 2 ALL ER whereby the House of Lords held"

"The power should be exercised only where the court is satisfied wither (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as it is likely to cause or to have caused serious prejudice to the defendants wither as between themselves and the plaintiff or between each other or between and a third party."

Upon the perusal of the court file, the last or final cause of action taken by the Plaintiff was on 06th December, 2012 when he filed a Summons for Directions and subsequently, on 15th February, 2013, orders were granted by this court in terms of the summons. No action was taken by the Plaintiff to comply with the directions obtained herein and the matter remained pending unattended by the Plaintiff until 16th September, 2014. A period of 19 months had lapsed since the court granted the orders on the Summons for Directions.

Subsequently, the Plaintiff filed a Summons and an affidavit in support seeking an order of this court to grant him leave from acting and representing the Plaintiff in this matter. The application was struck out for non-appearance of the Plaintiff/Counsel.

On 28th April, 2014, the Defendant filed a Summons together with an affidavit in support seeking orders to Strike out the Plaintiff's Statement of Claim, Reply to Statement of Defence and Defence to counter claim and further that Default Judgment be granted in terms of the Defendants Counter Claim and or proved accordingly.

I reiterate that no affidavit or response was filed by the Plaintiff's to show cause why the matter should not be struck out for want of prosecution or as an abuse of process of this court in terms of Order 25 Rule 9 application by the Defendant.

The onus is on the Plaintiff to provide a cogent and credible explanation for not taking any steps to advance the litigation in this case after the 17th October, 2014.

The perusal of the court record reveals that the Plaintiff did not pursue this case any further with the orders granted on the Summons for Directions for him to comply and did not carry out any litigation at all after the 17th October, 2014. This resulted in the matter pending for a period of about 19 months. In Law, this time period of non attendance to the court orders is too long and therefore tantamount to delay.

Further, there has been no notice of intention to proceed filed by the Plaintiff after six (6) months delay as required by Order 3, Rule 5 of the High Court Rules, 1988 which states as follows-

"Where six months or more has elapsed since the last proceeding in a cause or matter, a party intending to proceed must give to every other party not less than one month's notice of his intention to proceed.

In application on which no order was made is not a proceeding for the purpose of this rule.

In this case, more than 19 months had elapsed. The Plaintiff did not file the notice envisaged in Rule 5.

On a notice under Order 25 Rule 9 is issued, the Plaintiff must appear in court and show cause why the action should not be struck out for want of prosecution or as an abuse of the process of the court.

The notice was served on the Plaintiffs solicitor and he thereafter filed an application seeking leave of this court to withdraw as counsel representing the Plaintiff in the within action. His application was struck out for non appearance and there has been no appearance either by the Plaintiff's counsel or the Plaintiff himself.

Therefore, the matter needs to be struck out for want of prosecution.

Coming to the counter Claim of the Defendant, the claim is such in nature that Default Judgment cannot be entered rather the Law requires the claim to be formally proved by the Defendant accordingly.

For the aforesaid rational, I make the following orders:-

That the Plaintiffs Writ of Summons & Statement of Claim, Reply to Statement of Defence & Defence to Counter Claim filed on 12th June, 2012 is hereby struck out for want of prosecution.

The Defendants Counter Claim to be formally proved on a date to be assigned by the court;

The Plaintiff to pay costs summarily assessed at $1,000.

Dated at Suva this 23rd Day of March, 2016

MR VISHWA DATT SHARMA
Master of High Court, Suva.

cc: Mr. Vakaloloma of Vakaloloma & Associates, Suva.
Ms. Swastika Narayan of Diven Prasad Lawyers, Suva.