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Prasad v Dalip Chand and Son Ltd - Ruling [2017] FJHC 74; HBC43.2016 (7 February 2017)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No. HBC 43 of 2016


BETWEEN : RAJENDRA DEO PRASAD of Tokatoka, Queens Highway, Navua, Bus Operator.

PLAINTIFF


AND : DALIP CHAND & SON LIMITED a limited liability company having its registered office at Ritova Street, Labasa.

1stDEFENDANT


AND : LAND TRANSPORT AUTHORITY, a statutory body established under the Land Transport Act having its registered office at Valelevu, Nasinu.

2nd DEFENDANT


Appearances : AP Legal for the Plaintiff
Sherani & Co. for the 1st Defendant
Mr. Chand & Mr. Stevens for the 2ndDefendant

Before : Acting Master S. F. Bull
Ruling : 25 January 2017


RULING

Introduction

  1. On 12 August 2016, this Court granted an ex-parte injunction restraining the First Defendant
    1. From operating bus services in the Basoga area and from disrupting the Plaintiff’s bus services in the Basoga area until further orders of the Court, or until determination of these proceedings.
  2. The First Defendant has since filed two summonses, the first being to strike out the plaintiff’s action, and the second, to dissolve the ex parte injunction orders of 12 August 2016.

The claim

  1. The Plaintiff commenced these proceedings by writ of summons with indorsement of claim, seeking the following reliefs:
    1. General damages against the First Defendant for loss of revenue;
    2. General damages against the First Defendant for harm and damage to the Plaintiff’s reputation and public standing
    3. An order restraining the First Defendant, its servants, agents...from operating bus service in the Basoga area...
    4. An order restraining the First Defendant from representing to the general public that First Defendant, its servant, agents...from making any representations that the First Defendant is an operator of bus services in the Basoga area...
    5. An order restraining the First Defendant, its servants, agents...from interfering or disrupting the Plaintiff’s bus services in the Basoga area...
    6. Costs against the First Defendant on a solicitor-client indemnity basis;
    7. Post and Pre-judgment interest at the rate of 8% per annum;
    8. Any other Orders that the court deems fair, just and reasonable.

The application to strike out

  1. The First Defendant says that the plaintiff’s action has been filed in the wrong forum; that it discloses no reasonable cause of action; is scandalous, frivolous or vexatious, or otherwise an abuse of the process of the Court.
  2. The First Defendant argues that instead of bringing this action in the High Court, the Plaintiff should have filed an appeal to the Land Transport Authority Board, or, failing that, appeal to the Land Transport Appeals Tribunal under the provisions of the Land Transport Act.
  3. Though the Plaintiff acknowledges that RRL 12/23/23 was transferred by the Authority to the First Defendant, its contention is that route 507A was never part of the transfer. A copy of the minutes of the LTA Board Meeting of 27 March 2012 is annexed to show that Route 507A was not part of the expression of interest for Road Route Licence (RRL) 12/23/23. A letter from the LTA dated 16 April 2012 advising the First Defendant Company of the Board’s resolution on 27 March 2012 also does not show Route 507A as one of the routes transferred. While he says the annexed RRL on page 6 of Annexure C of the First Defendant’s affidavit shows Bulileka Transport Limited as the holder of RRL 12/23/23, I note that the said RRL states that it was approved vide the Board’s resolution on 23/02/96, so clearly, it is not the current RRL.
  4. The Plaintiff maintains that these proceedings are not a challenge to the decision of the LTA Board but are about the First Defendant acting outside the Board’s decision, resulting in the infringement of his rights.

Is the High Court the correct forum?

  1. Section 6 of the LTA Act establishes the Land Transport Authority as a body corporate with perpetual succession and a common seal with, inter alia, powers to sue and be sued.
  2. The powers of the Authority are set out in section 9 of the LTA Act, with one being the power to regulate and control all or any means of land transport. When deciding whether to issue, renew or vary a condition of a permit, the Authority is bound by regulation 5 (1) of the Land Transport (Public Service Vehicles) Regulations 2000.
  3. Part III of the LTA establishes the Land Transport Appeals Tribunal whose function it is to hear and determine appeals against decisions of the Authority relating to licensing of drivers, any matter requiring a decision of the Authority under Part VI of the Act, and any other matter prescribed by the Minister by regulations. (Section 40)
  4. Under section 48, a decision of the Tribunal is appealable to the High Court on points of law only.
  5. Having considered the pleadings, the affidavit material before the Court, as well as counsel’s submissions on whether the Plaintiff has instituted this action in the correct forum, I am of the view that the action is properly before the Court. I say this being satisfied that the action is not an appeal against the Authority’s decision to award the RRL to the Defendant, but is premised on the Plaintiff’s allegation that the First Defendant has acted outside the terms of his Road Route Licence, thus breaching the Plaintiff’s rights. The First Defendant’s submission that the Plaintiff should have first appealed to the Tribunal flies in the face of its action in HBC 7 of 2016, in which it claims for damages and an injunction against the Plaintiff here for operating its buses on the First Defendant’s bus route.

The striking out application

  1. The application to strike out is brought under Order 18 Rule 18 of the High Court Rules 1988, Section 48 of the Land Transport Act (the LTA), and the inherent jurisdiction of the Court.
  2. Order 18 Rule 18 reads:

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).
  1. It is settled law in this jurisdiction that the High Court has power to dismiss or permanently stay proceedings which are an abuse of its process. The power however, must be exercised with considerable caution, and only in plain and obvious cases. (Pratap v. Christian Mission Fellowship [2006] FJCA 41; ABU0093J.2005 (14 July 2006) (per Barker, Henry, and Scott JJA); See also Hubbuck v Wilkinson [1889] 1 Q.B. 86 at page 91, per Lindley MR; see also Kemsley v Foot &Ors [1952] A.C. 345)

Reasonable cause of action


  1. The test in determining the existence of a reasonable cause of action is whether the cause of action “has some chance of success when only the allegations in the pleadings are considered.” (Drummond-Jackson -v- British Medical Association (1970) 1 WLR 688)
  2. No evidence is admissible in an application to strike out for want of a reasonable cause of action, and “only the allegations in the statement of case are considered.” (Order 18 rule 18 (2); Drummond, supra, at 696; [1970] 1 All ER 1094 at 1101)
  3. The Plaintiff’s allegations in the pleadings are that he is the holder of Road Route Licence 12/23/34, authorising him to operate bus services in the Basoga area. The First Defendant does not hold any licence permitting it to operate bus services in the Basoga area, but on 18 July 2016, it commenced bus operations in the area, resulting in direct financial losses to the Plaintiff, and damage to the Plaintiff’s reputation.
  4. Having considered the Plaintiff’s statement of claim only, and without delving into whether the claim is likely to succeed, I am satisfied that there is a reasonable cause of action, with some chances of success. I am satisfied that this is not a plain and obvious case in which I ought to exercise the Court’s discretion to strike out the Plaintiff’s claim for want of a reasonable cause of action.

Scandalous, frivolous and vexatious

  1. In NBF Asset Management Bank v Taveuni Estates Ltd (supra), the Court stated:

The terms "frivolous" and "vexations" (sic) are not defined in the High Court Rules. In accordance with the rules of statutory interpretation, those words should be given their ordinary meaning. In the Shorter Oxford English Dictionary frivolous means "of little or no weight or importance, paltry, not with serious attention or (in law, pleading) manifestly futile". Vexatious means "causing or tendency to cause vexation (i.e. something causing annoyance, irritation, dissatisfaction or disappointment) or (legal) actions being instituted without sufficient grounds for the purpose of causing trouble or annoyance to the defendant". I accept that it is only necessary to establish that the pleading be either frivolous or vexations for the Court to exercise its discretion.


On abuse of process

  1. Halsbury’s Laws of England 4th Edition Vol 37 para 434 has this to say about abuse of process:

An abuse of the 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 indorsement does not offend any of the other specified grounds for striking out, the facts may show that 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 indorsement 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 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.


22. I am not satisfied that the claim is of “little or no weight or importance...” or even that it has been brought to “cause vexation...annoyance or irritation.” (From the Shorter Oxford English Dictionary; NBF Asset Management Bank v Taveuni Estates Ltd Civil Action No.HBC 543 of 2004).
23. Similarly, the applicant has not pointed out anything scandalous in the writ or claim and on the material before me, I do not think that the claim is scandalous, frivolous, or vexatious. The Plaintiff argues that Route 507A was not transferred to the First Defendant. He places reliance on the minutes of the Board meeting of 27 March 2012 identifying the relevant routes on expression of interest for the Board’s determination, as well the notification letter from the LTA to the First Defendant, advising it of the success of its application for the RRL, and the routes transferred.


24. On the other hand, the First Defendant relies on the RRL 12/23/23 and the routes stated therein to say that it is permitted to operate on Route 507A. These are tribal issues requiring determination at a trial.


Application for dissolution of ex parte injunction

  1. Lest there be any doubt as to the jurisdiction of the Master to hear injunction applications, pursuant to Order 59 Rule 2 (l), the Honourable Chief Justice has conferred jurisdiction “upon all Masters of the High Court to hear applications for injunctions.”

Legal Principles

  1. The principles on the grant of injunctions and whether to dissolve an injunction pending the determination of the matter are settled. They were stated by Lord Diplock in American Cyanamid v. Ethicon Limited [1975] UKHL 1; [1975] 1 All ER 504 as being:
  2. The Plaintiff bears the onus of satisfying the Court that the injunction ought to continue. (See Westpac Banking Corporation v. Adi Mahesh Prasad Civil App ABU 27 of 1997S (FCA Reps 99/1)
  3. It is submitted for the First Defendant that the Plaintiff had obtained the ex-parte injunction by saying that the First Defendant does not hold any road route permit allowing it to operate in the Basoga area. Mr. Kapadia says that the Plaintiff had obtained the injunction without disclosing a material fact, namely, that the First Defendant does hold the road route licence for 12/23/23, in which is listed Route 507A.
  4. In Eastern Express Ltd v Merchant Bank of Fiji Ltd Civil Action No. 26 of 2001, Fatiaki J cited Bank of Mellat v. Nikpour (1985) F.S.R. 87 where Donaldson, L.J. said:

This principle that no injunction obtained ex parte shall stand if it has been obtained in circumstances in which there was a breach of the duty to make the fullest and frankest disclosure is of great antiquity. Indeed, ito well enshrinedrined in the law that it is difficult to find authority for the proposition; we now know it; it is trite law. Bppily we have beeerred toed to a dictum of Lord Justice Warrington in the case ofse of R. v. Kensington Income Tax Commissioners, ex p. Princess Edmond ligna (1917) 1 K.B. 48B. 486 at p.509. He said : `It is peis perfectly well settled that a person who makes an ex parte application to the court - that is to say, in the absence of the person who will be affected by that which the court is asked to do - is und obligation to the court tort to make the fullest possible disclosure of all material facts within his knowledge, and if he does not make that fullest possible disclosure, then he cannot obtain any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained by means of the order which has thus wrongly been obtained by him’.


  1. In R. v Kensington Income Tax Commissioners, ex p. Princess Edmond de Polignac [1917] 1 KB 486 at p.505, Lorens-Hardy M.R. M.R. said that

...on an ex parte application uberrima fides is required, and unless that can be established, if there is anything like deception practised on the Couhe Court ought not to go ingo into the merits of the case, but simply say "We will not listen to your application because of what you have done."


  1. Indeed, the Court in Thomas A. Edison Ltd. v Bullock [1912] HCA 72; 15 CLR 679 stated at 681:

Dalgish v Jarvie [1850] EngR 688; (2 Mac & G, 231), a case of high authority, establishes that it is the duty of a party asking for an injunction ex parte to bring under the notice of the Court all facts material to the determination of his right to that injunction, and it is no excuse for him to say he was not aware their importance. Uberrima fides is required, and the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the Court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall.


Material facts

  1. In Brinks Mat Ltd. v. Elcombe [1988] 1 WLR 1350 at 1356-1357,Ralph Gibson LJ summarised the duty to make full and frank disclosure of material facts as

...those which it is material for the judge to know in dealing with the application as made: materiality is to be decided by the court and not by the assessment of the applicant or his legal advisers...


The applicant must make proper inquiries before making the application... The duty of disclosure therefore applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had made such inquiries.


  1. In dealing with material requiring disclosure in ex parte applications, the Court is not so much concerned with whether the undisclosed facts would have resulted in a refusal of the ex-parte order. Rather, the test is whether the Court should have such facts before it when weighing whether or not to grant an order ex-parte. (Citibank NA v. Express Ship Management Services Ltd. [1987] HKLR 1184, CA at 1190D)
  2. In this case, when the Plaintiff obtained ex-parte injunction against the First Defendant, he simply placed before the Court the documents showing that Route 507A had not formed part of the transfer in RRL 12/23/23. These were: RRL 12/23/34 showing that the Plaintiff was permitted to operate in the Basoga/Vunivau area; a copy of RRL 12/23/23 up to the period ending 6 October 2006, a copy of a letter from the Plaintiff dated 15 July 2016 advising the LTA of rumours of the First Defendant’s intention to operate on Route 507A; and a copy of the letter dated 16 April 2012 from the LTA notifying the First Defendant of the routes transferred to it under RRL 12/23/23. Route 507A was not listed as one of these routes.
  3. Plaintiff’s counsel admitted he could have conducted a search for the First Defendant’s RRL 12/23/23 but did not do so.
  4. Annexure C of the First Defendant’s affidavit of 01/09/16 is RRL 12/23/23 which shows the First Defendant as the licence holder approved by Board Resolution of 27/03/12. The licence shows Route 507A as one of those transferred to the First Defendant under RRL 12/23/23, allowing the First Defendant to operate on the Basoga/PWD/Labasa/Bulileka route from Mondays to Fridays, departing from Nasea at 5.30p.m and arriving at Bulileka at 6p.m. This licence was not before the Court when the Plaintiff brought its ex parte application to restrain the First Defendant from operating on that route.
  5. I have no hesitation in holding that this licence was a fact material for the Court to know in deciding whether or not to grant an injunction against the First Defendant. As a long time bus operator, the Plaintiff would have known of the existence of RRL 12/23/23 transferred to the First Defendant by Board Resolution of 27/03/12, just as the earlier RRL 12/23/23 was transferred to the Plaintiff by resolution of the same Board on 23/02/96.
  6. In any event, in Civil Action No. HBC 7 of 2016 between the same parties, the First Defendant (Plaintiff in HBC 7/16) had annexed to its affidavit in support of an injunction against the Plaintiff (Defendant in HBC 7/16) a copy of its RRL 12/23/23, showing Route 507A as one of the routes transferred under that RRL to the First Defendant “Vide Board Resolution 27.03.12.”The Plaintiff would have therefore known about RRL 12/23/23 prior to the bringing of its ex parte application. Thus the failure to place this RRL before the Court was a material non-disclosure on the Plaintiff’s part, entitling the First Defendant to dissolution of the ex-parte interim injunction.
  7. On this point, the Courts have held that it mattered not that the non-disclosure was innocent, negligent or deliberate. The non-disclosure of a material fact was sufficient to dissolve the injunction. (See Rama v Australia and New Zealand Banking Group Ltd Civil Action No. 315 of 1992 per Byrne J; Chandra v Devi Civil Action No. HBC 597 of 1999, per Shameem J)
  8. Consequently, the Plaintiff cannot expect to obtain “any advantage from the proceedings, and he will be deprived of any advantage he may have already obtained by means of the order which has thus wrongly been obtained by him.”(Kensington (supra), at 509, per Warrington L.J.)
  9. It follows that the ex parte interim injunction of 12 August 2016 is accordingly dissolved.

  1. Orders
    1. The application to strike out is dismissed.
    2. The ex-parte injunction of 12 August 2016 is dissolved.
    3. Costs in the cause.
    4. Case is adjourned to Monday 30 January 2017 at 9am for mention only.

S.F. Bull

Acting Master


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