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High Court of Fiji |
IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION
Civil Action No. HBC 324 of 2016
BETWEEN
MWH NEW ZEALAND LIMITED a company incorporated in New Zealand
and having its place of business as Kadavu House Level 2, 414
Victoria Parade, Suva and having a local agent MWH.
PLAINTIFF
AND
FIJI ROADS AUTHORITY a statutory body established under the
Fiji Roads Authority Decree No.2 of 2012 as amended of
Fiji Development Bank Building Level 4, 360
Victoria Parade, Suva.
DEFENDANT
Counsel : Mr. W. Clarke with Mr. R.G. Craig for the Plaintiff
Mr. D. Sharma for the Defendant
Date of Hearing : 29th March, 2017
Date of Ruling : 26th April, 2017
RULING
(On the application for striking out)
[1] The plaintiff instituted these proceedings by an originating summons seeking the following reliefs;
(a) A declaration that clause 10 of the agreement for the provision of road management services in Fiji between the Plaintiff and the Defendant dated 27th January, 2012 (Agreement):
(b) A declaration that the Plaintiff is entitled to submit the dispute (as defined in the Affidavit in support of the Originating Summons) for mediation as required by clause 10.2 of the Agreement;
(c) By reason of the matters referred to in (a) and (b) above an order for specific performance of clause 10.2 of the Agreement, namely, the selection of a mediator of the Dispute by Chief Justice of Fiji; and
(d) Costs.
[2] Clause 10.1, 10.2 and 10.4 of the agreement read as follows;
10.1 In the event that any dispute or difference of any kind between the parties in connection with or arising out of this agreement arises (“Dispute”), the parties will attempt in good faith to settle such dispute by mutual discussion between the chief executive officers of each party held within 20 business days (or 10 business days if the Dispute relates to an invoice) after the date that the disputing party gives notice of the dispute to the other party identifying the dispute in reasonable detail and requesting consultations between the parties to resolve the Dispute.
10.2 If, at the end of such 20 business day (or, 10 business day) period, the Dispute is not resolved, either party may submit may submit the Dispute for mediation. If the parties cannot agree a mediator within 5 business days of the submission of the dispute for mediation, a mediator will be chosen by the Chief Justice of Fiji. The mediator shall fix the time, place and procedure for mediation but in any event, the mediation shall commence within 10 business days of appointment of the mediator.
10.4 If the dispute cannot be resolved within 15 business days of the commencement of mediation (or within any extended time agreed to in writing between the parties), the mediation shall sees and either party may submit the Dispute for Arbitration in accordance with the then existing rules and regulations of the Rules of conciliation and the Arbitration of the International Chamber of Commerce. Judgment upon the Arbitrator’s award shall be final and binding and may be enforced by any court of competent jurisdiction. The prevailing party in any action arising under this Contract shall be entitled to its costs of litigation, including reasonable legal fees.
[3] The defendant filed summons on 20th February, 2017 seeking the following orders;
[4] The law relating to striking out summons is found in Order 18 rule 18 of the High Court Rules 1988 which provides as follows;
(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.
[5] One of the grounds upon which the plaintiff seeks to strike out the claim is that the summons of the plaintiff does not satisfy the provisions of Order 5 rule 4 of the High Court Rules 1988. Order 5 Rule 4 of the High Court Rules provides thus;
(1) Except in the case of proceedings which by these Rules or by or under any Act are required to be begun by writ or originating summons or are required or authorised to be begun by petition, proceedings may be begun either by writ or by originating summons as the plaintiff considers appropriate.
(2) Proceedings-
(a) in which the sole or principal question at issue is, or is likely to be, one of the construction of an Act or of any instrument made under an Act, or of any deed, will, contract or other document, or some other question of law, or
(b) in which there is unlikely to be any substantial dispute of fact,
are appropriate to be begun by originating summons unless the plaintiff intends in those proceedings to apply for judgment under Order 14 or Order 86 or for any other reason considers the proceedings more appropriate to be begun by writ.
[6] At the conclusion of the hearing the learned counsel for the plaintiff was given time till 12th April, 2017 to file written submissions. However, no submissions were filed on behalf of the plaintiff.
[7] The learned counsel for the defendant submitted that since there is a substantial dispute as to the material facts and the sole or principal question at issue is not one involving the construction of the contract but will require determination of contested facts adduced by the evidence of at least four witnesses.
[8] In my view the reliefs prayed for by the plaintiff in its originating summons depend entirely on the interpretation of the terms of the agreement. The entire mater revolves around the question whether Clause 10 of the agreement continues to be in force and continues to bind the defendant even after the termination of the agreement. I do not see any reason why the court needs oral testimony of the witnesses to make finding on that question.
[9] Even if the court decides that there is a need for oral testimony to arrive at a finding on the above question, that would not be a ground for the court to strike out the summons of the plaintiff in view of the provisions of Order 28 rule 9 of the High Court Rules 1988 which provides as follows;
(1) Where, in the case of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may, in particular, order that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof.
(2) Where the Court decides to make such an order, Order 25, rules 2 to 7, shall, with the omission of so much of rule 7(1) as requires parties to serve a notice specifying the orders and directions which they require and with any other necessary modifications, apply as if there had been a summons for directions in the proceedings and that order were one of the orders to be made thereon.
(3) This rule applies notwithstanding that the cause or matter in question could not have been begun by writ.
(4) Every reference in these Rules to an action begun by writ shall, unless the context otherwise requires, be construed as including a reference to a cause or matter proceedings in which are ordered under this rule to continue as if the cause or matter had been so begun.
[10] It is thus clear that if the court finds that a particular action should have been instituted by writ of summons and not by originating summons it can order that the matter be continued as if it was begun by writ of summons and there is no provision in law which empowers the court to strike out summons on that ground.
[11] The learned counsel for the defendant submitted that the two affidavits filed on behalf of the plaintiff by Mr. Rudge and Mr. Caseley are contrary to Order 41 rule 1(4) of the high Court Rules 1988, in that they have deposed to certain facts which were not within their personal knowledge. He also submitted that the defendant is unable to respondent these averments of the two affidavits because the substance of the alleged conversation and/or statements are not disclosed.
[12] Order 41 rule 1(4) provides as follows;
Every affidavit must be expressed in the first person and, unless the Court otherwise directs, must state the place of residence of the deponent and his occupation or, if he has none, his description, and if he is, or is employed by, a party to the cause or matter in which the affidavit is sworn, the affidavit must state that fact.
In the case of a deponent who is giving evidence in a professional, business or other occupational capacity the affidavit may, instead of stating the deponent’s place of residence, state the address at which he works, the position he holds and the name of his firm or employer, if any.
[13] The learned counsel specifically referred to paragraphs 18-20, 24-51, 53-59, 62-69 and 72-82 of the affidavit of Mr. Casely and paragraphs 5-28 and 31-37 of the affidavit of Mr. Rudge.
[14] From the careful perusal of these two affidavits I find that there are certain averments which are not in the personal knowledge of the affirmants. As we all know an affidavit is sworn evidence before courts of law. In any affidavit there may be certain averments which are not to the personal knowledge of the affirmant. However, it will, itself, not be a ground for the court to reject the entire affidavit or to strike out the claim. The court can always disregard and/or exclude the irrelevant or inadmissible evidence when it arrives at its findings.
[15] In this summons the court has not been called upon to decide on the substantive rights of the parties. The relief prayed for by the plaintiff is a mere declaration that even after the termination of the agreement clause 10 will continue and the parties are bound by it. As I have stated earlier to decide on that issue there is no necessity to adduce oral evidence.
[16] The learned counsel for the defendant submitted that this action by the plaintiff is an abuse of the process of the court in that the proper procedure was to institute proceedings by writ of summons whereas the plaintiff has file an originating summons.
[17] It important at this stage to consider what abuse of the process is. The abuse of the process is the use of legal process to accomplish an unlawful purpose; causing a summons, writ, warrant, mandate, or any other process to issue from a court in order to accomplish some purpose not intended by the law. It cannot be said that the plaintiff instituted these proceedings for an unlawful purpose. Seeking a declaration form court that particular clause of the agreement between the plaintiff and the defendant is not using the legal process to accomplish an unlawful purpose. If instituting of proceedings by originating summons where the correct procedure was to file writ of summons is an abuse of the process of the court, the legislature would not have enacted provisions to convert an originating summons action into a writ action when the court is of the view that the action should have been begun by a writ. Therefore, the submission of learned counsel for the defendant that the plaintiff’s action is an abuse of the process of the court is without merit.
[18] For the above reasons the court makes the following orders.
ORDERS
Lyone Seneviratne
JUDGE
26th April, 2017
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