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Paul v Gandolfi [2018] FJHC 253; HBC29.2016 (4 April 2018)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 29 of 2016


BETWEEN : SATYA PAUL of MQ 35, University of the South Pacific Campus, Laucala Beach Estate.


PLAINTIFF


AND : FRANCO GANDOLFI C/- UNIVERSITY OF THE SOUTH PACIFIC a duly incorporated body constituted under the University of the South Pacific Act Cap 266 and having its institution at Laucala Bay Road, Suva in Fiji.


FIRST DEFENDANT


AND : UNIVERSITY OF THE SOUTH PACIFIC a duly incorporated body constituted under the University of the South Pacific Act Cap 266 and having its institution at Laucala Bay Road, Suva in Fiji.


SECOND DEFENDANT


BEFORE: Master Vishwa Datt Sharma


COUNSELS: Ms. Narayan for the Plaintiff

Ms. Chan for the Defendant


Date of Hearing: 16th May, 2017

Date of Ruling: 4th April, 2018


RULING


[Application by the Defendant seeking an order to strike out the Plaintiff’s Writ and the Statement of Claim pursuant to Order 18 Rule 18 (1) of the High Court Rules, 1988 and under the inherent jurisdiction of this Court]


APPLICATION


  1. This is the Defendant’s Summons to Strike Out Statement of Claim and Dismiss Action seeking for the following orders:

On the Grounds:

(i) That discloses no reasonable cause of action;
(ii) That it is scandalous, frivolous or vexatious;
(iii) That may prejudice, embarrass or delay the fair trial of the action; or
(iv) That it is otherwise an abuse of the process of the Court.
  1. The application was made pursuant to Order 18 Rule 18 (1) of the High Court Rules 1988 and under the inherent jurisdiction of the High Court.
  2. The Plaintiff opposed the Defendant’s Striking out and Dismiss application and on 21st June, 2016 filed an Affidavit in Response to the Defendant’s application.
  3. A reply affidavit of the 1st Defendant was also filed upon the authority of the 2nd Defendant.
  4. The application was heard in terms of the affidavit evidence filed coupled with the written and oral submissions made in this proceedings by the Defendant and the Plaintiff.

BACKGROUND

  1. The Plaintiff’s Substantive Claim is for Defamation and seeks for General Damages or loss of reputation, interest and costs. The Plaintiff claims that his reputation has been damaged by the 1st Defendant who made several imputations concerning the Plaintiff and these imputations particularised are Defamatory of the Plaintiff being an academic and Professor in Economics.
  2. The Plaintiff further says that he was not accorded a fair opportunity to have any allegations raised by the USP to be properly investigated and hence did not get an opportunity to be heard about any of the issues raised against him.
  3. The Defendant denied each and every allegations of fact in the Plaintiff’s Claim and say that the Plaintiff is not entitled to any of the relief sought in the Claim.

LAW and PRACTICE

  1. The law on striking out pleadings and endorsements is stipulated at Order 18 Rule 18 of the High Court Rules 1988 which states as follows-

18.-(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).

  1. In Paulo Malo Radrodro vs Sione Hatu Tiakia & Others, HBS 204 of 2005, the Court stated that:

"The principles applicable to applications of this type have been considered by the Court on many occasions. Those principles include:

  1. A reasonable cause of action means a cause of action with some chance of success when only the allegations and pleadings are considered – Lord Pearson in Drummond Jackson v British Medical Association [1970] WLR 688.
  2. Frivolous and vexation is said to mean cases which are obviously frivolous or vexations or obviously unsustainable – Lindley Li in Attorney General of Duchy of Lancaster v L.N.W Ry [1892] UKLawRpCh 134; [1892] 3 Ch 274 at 277.

c. It is only in plain and obvious cases that recourse would be had to the summary process under this rule – Lindley MR in Hubbuck v Wilkinson [1898] UKLawRpKQB 176; [1899} Q.B. 86.

  1. The purpose of the Courts jurisdiction to strike out pleading is twofold. Firstly is to protect its own processes and scarce resources from being abused by hopeless cases. Second and equally importantly, it is to ensure that it is a matter of justice; defendants are permitted to defend the claim fairly and not subjected to the expense inconvenience in defending an unclear or hopeless case.
  2. "The first object of pleadings is to define and clarify with position the issues and questions which are in dispute between the parties and for determination by the Court. Fair and proper notice of the case an opponent is required to meet must be properly stated in the pleadings so that the opposing parties can bring evidence on the issues disclosed – ESSO Petroleum Company Limited v Southport Corporation [1956] A.C at 238" – James M Ah Koy v Native Land Trust Board & Others – Civil Action No. HBC 0546 of 2004.
  3. A dismissal of proceedings "often be required by the very essence of justice to be done"....... – Lord Blackburn in Metropolitan – Pooley [1885] 10 OPP Case 210 at 221- so as to prevent parties being harassed and put to expense by frivolous, vexations or hopeless allegation – Lorton LJ in Riches v Director of Public Prosecutions (1973) 1 WLR 1019 at 1027"
  1. His Lordship Mr Justice Kirby in Len Lindon –v- The Commonwealth of Australia (No. 2) S. 96/005 summarised the applicable principles as follows:-
    1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.
    2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action ... or is advancing a claim that is clearly frivolous or vexatious...
    1. An opinion of the Court that a case appears weak and such that is unlikely to succeed is not, alone, sufficient to warrant summary termination... even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and arguments and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
    1. Summary relief of the kind provided for by O.26 r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer.... If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
    2. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleading.
    3. The guiding principle is, as stated in O 26 r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

ISSUES for DETERMINATION

  1. Following are the issues which require determination by this honourable court;-

ANALYSIS and DETERMINATION

Whether the Plaintiff’s Writ of Summons and Statement of Claim discloses any reasonable cause of action?

  1. The following notes to Order 17 r19 of the Supreme Court Practice (UK) 1979 Vol. 1 or 18/19/11 on what is meant by the term 'a reasonable cause of action' sufficiently provides the answer to the applications.

"......A reasonable cause of action means a cause with some chance of success when only the allegations in the pleadings are considered (per Lord Pearson in Drummond Jackson v British Medical Association [1970] 1 WLR, 688; [1970] 1 All ER 1094 CA). So long as the statement of claim or the particulars (Davey v Bentinck [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 not likely to succeed is no ground for striking out (Moore v Lawson (1915) 31 TLR 418, CA.; Wenlock v Moloney [1965] 1 WLR 1238 1 W.L.R. 1238 [1965] 2 All ER 871, CA)...."

  1. Reference is also made to Lindley M.R. in Hubbuck & Sons, Ltd v Wilkinson, Heywood & Clark Limited [1899] 1QB 86 at page 91 said:

".....summary procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks. The use of the 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".

  1. In this instant case, in summary, the Plaintiff’s Substantive Claim is for Defamation and that the Plaintiff was not given a fair opportunity to have any allegations raised by the USP to be properly investigated. Hence seeks for General Damages or loss of reputation, interest and costs. The Plaintiff claims that his reputation has been damaged by the 1st Defendant who made several imputations concerning the Plaintiff and these imputations particularised are Defamatory of the Plaintiff being an academic and Professor in Economics.
  2. The Defendants have denied each and every allegations made by the Plaintiff and submitted that the Plaintiff is not entitled to any relief as sought therein.
  3. It is for the Plaintiff to establish that he has a Cause of Action in this case in terms of the facts and the Pleadings filed herein. On the other hand, the Defendant must establish that the Plaintiff does not have a Cause of Action in this case.
  4. According to the Defendant’s, the Plaintiff’s claim against the Defendants are somewhat made at paragraphs 12, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27 and 28 respectively –

At Paragraph 12- "THAT the Defendants did not call for Staff Review Committee or any other enquiry committee to investigate the performance issue of the Plaintiff nor did they call the 13 petitioning staff to provide evidence of the Plaintiff's work ethics and his performance as Head of School or his behaviour with other teaching staff."

The Defendant’s therefore submitted that it is clear that the Plaintiff's allegations against the Defendants is that they did not call a Staff Review or other committee to investigate the Plaintiff's performance, work ethics and behaviour with staff. Staff Review and other committees are provided for under internal rules. It is apparent that the Plaintiff's allegation is that internal rules have not been followed.

At paragraphs 13 to 15, the Plaintiff complains about his removal as Head of School after being given an ultimatum to resign and that 14 of 18 staff members wanted the Plaintiff to remain the Head of School (paragraphs 13 and 14 of the Claim).

The Defendant’s submitted that these allegations show that the communication regarding the Petition and whether the Plaintiff should remain the Head of School was between USP's staff members and were internal email communications.

At paragraph 15- the Plaintiff specifically alleges-

THAT on or about 10th November 2015 [Professor Gandolfi] removed the Plaintiff as the Head of School of Economics with immediate effect based on his performance. The ... Defendants both failed to comply with the provisions of the University of the South Pacific Staff Review Procedures and breached clause 7(vi) of the Letter of Engagement."

  1. The Plaintiff outlined his response in the subsequent paragraphs 16 and 17. He pleads at paragraph 17-

THAT on or about 17 November 2015, the Plaintiff wrote to [Professor Gandolfi] refuting the allegations and advised that his removal is in breach of the University of the South Pacific's Review Procedures and he has been deprived of fairness, has been prejudiced and his reputation as Professor of Economics has been damaged among the teaching members of the said University due to being demoted from Head of School of Economics."

According to the Defendant’s, the Plaintiff’s allegation of reputational damage is pleaded here as arising from the alleged breach of the University's internal rules and procedures.

At paragraphs 18 and 19- the Plaintiff alleges that Professor Gandolfi "made several imputations concerning the Plaintiff" which are defamatory. However, the imputations which the Plaintiff alleges clearly show that these relate to the Plaintiff being relieved of his duties as the Head of School and do not concern any publication made by Professor Gandolfi or statement made to a third party.

  1. The Plaintiff then at paragraph 20 makes an allegation that he was required to leave his office which he had occupied as Head of School.

At paragraph 20, he alleges that the action of requiring bins to change offices caused him embarrassment.

  1. The Defendants say that this allegation clearly concerns actions taken by Professor Gandolfi in carrying out his administrative duties and discretions as the Dean. Additionally, the allegation does not show any publication of words made by Professor Gandolfi or communication to a third party in any way.
  2. Paragraphs 21 to 23 confirm that the Plaintiffs preceding complaints including of reputational damage are all based on an alleged failure by USP to follow Staff Review Procedures before relieving the Plaintiff of his duties as Head of School.

23. At paragraphs 22 and 23, he says-

"22. [Professor Gandolfi] breached the University of the South Pacific Staff Review Policies and removed the Plaintiff from the position of Head of School of Economics in a degrading and shameful manner which damaged his reputation as mentioned in paragraph 20 herein.

23. THAT the actions of [Professor Gandolfi] prejudiced the Plaintiff’s fair treatment [sic] to be heard on his performance first before he was removed from the position of Head of School of Economics thus breached the Plaintiffs right to fair treatment and right to be fairly heard."

  1. The Plaintiff then at paragraphs 24 and 25 alleges that his reputation was damaged by implication from an email that Professor Gandolfi sent to staff members in the School of Economics saying-

"I am looking forward to collaborating with all of you and helping rebuild the school so that it can shine once again".

  1. However, the Defendants submitted that it apparent these words do not refer to the Plaintiff at all. More importantly, this email clearly shows that it was sent by Professor Gandolfi to staff in the School of Economics as a part of his administrative duties and discretions as the Dean of the Faculty, operating under USP's internal laws.
  2. The Defendants submitted that the Plaintiff makes his only claim in negligence in paragraph 28. He prefaces this claim in paragraph 27 by making these allegations-
  3. On the other hand, the Defendants must establish that the Plaintiff does not have a Cause of Action in this case.
  4. The Striking out application of the Defendants is an interlocutory summary proceeding and is only appropriate to cases which are plain and obvious.
  5. The allegations and/or claims made in terms of the substantive matter as set out hereinabove by the Plaintiff needs to be determined on witnesses and documentary evidence subjected to cross examination at a full hearing. Such allegations cannot be determined on the affidavit evidence alone since the entire evidence may not have been divulged in the affidavit filed herein.
  6. Bearing in mind the facts of this case and the nature of the pleadings filed by the parties to the proceedings, this case cannot be classed as ‘plain and obvious’ in nature.
  7. Therefore, Prima Facie, it is too early in the proceedings to decide that there is no cause of action within this proceeding before the Court.

Issue (ii) Whether the Plaintiff’s Writ of Summons & the Statement of Claim is Scandalous, Frivolous or Vexatious & Abuse of Process of the Court?

  1. It is well established that jurisdiction to strike out claim or pleadings should be used very sparingly and only in exceptional cases: Timber Resource Management Limited v. Minister for Information and Others [2001] FJHC 219; HBC 212/2000 (25 July 2001).
  2. 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....”

  1. Whether the claim is Scandalous? Reference is made to the Supreme Court Practice 1993 (White Book) Vol. 1 at paragraph 18/19/14 states as follows-

"The Court has a general jurisdiction to expunge scandalous matter in any record or proceedings (even in bills of costs, Re Miller (1884) 54 L.J.Ch. 205). As to scandal in affidavits, see O.41, r.6.’

Allegations of dishonesty and outrageous conduct, etc., are not scandalous, if relevant to the issue (Everett v. Prythergch (1841) 12 Sim. 363; Rubery v. Grant (1872) L.R. 13 Eq.443).

"The mere fact that these paragraphs state a scandalous fact does not make them scandalous" (per Brett L.J. in Millington v. Loring (1881) 6 Q.B.D. 190, p.196). But if degrading charges be made which are irrelevant, or if, though the charge be relevant, unnecessary details are given, the pleading becomes scandalous (Blake v. Albion Assurance Society (1876) 45 L.J.C.P. 663)."

  1. Whether the nature and contents of the Plaintiff’s Claim in terms of the Writ of Summons and the Statement of Claim tantamount to scandalous facts and are irrelevant and therefore makes the Plaintiff’s Claim Scandalous?
  2. The Plaintiff’s Claim is yet to be put to the Test in terms of the evidence to be tendered at the hearing and then for the determination of the Claim.
  3. Therefore, the Defendants cannot submit that the Plaintiff’s Summons and the Statement of Claim at this stage of the proceedings is scandalous in nature.
  4. The issue of whether the Plaintiff’s Claim is frivolous or vexatious? Reference is made to paragraph 18/19/15 of the Supreme Court Practicec1993, Vol. 1 (White Book) which reads as follows:-

"By these words are meant cases which are obviously frivolous or vexatious or obviously unsustainable per Lindley LJ in Attorney General of Duchy of Lancaster v. L. & N.W.Ry [1892] UKLawRpCh 134; [1892] 3 Ch. 274, 277; The Pleading must be "so clearly frivolous that to put it forward would be an abuse of the Court" (per Juene P. in Young v. Halloway [1894] UKLawRpPro 42; [1895] P 87, p.90; ...."


39. In Devi v. Lal [2014] FJHC 75; HBC 120.2008 (7th February, 2014) - It was held as follows-

“The Oxford Advanced Learners Dictionary of Current English 7th Edition defines the words "frivolous" and "vexatious" as:-

Frivolous: "having no useful or serious purpose"

Vexatious: "upsetting" or "annoying"

‘Therefore, for a claim to be frivolous or vexatious, the Appellants must establish that the claim lacks merit (i.e. has no useful purpose) and is only to upset or annoy the Applicants’.

  1. Taking into consideration the above matters together with the written submissions and oral arguments raised in Court by both Counsels, the Defendants need to establish that the Plaintiff’s Claim lacks merits. This Court needs to hear and determine the same in terms of the law and the evidence that the Parties to the proceedings may and or intend to produce at the hearing proper in order to allow this Court to deliberate and determine the substantive issues of alleged “Defamation and that the Plaintiff was not given a fair opportunity to have any allegations raised by the USP to be properly investigated. Hence seeks for General Damages or loss of reputation, interest and costs. The Plaintiff claims that his reputation has been damaged by the 1st Defendant who made several imputations concerning the Plaintiff and these imputations particularised are Defamatory of the Plaintiff being an academic and Professor in Economics”, accordingly.
  2. However, this claim prima facie cannot be judged summarily to be frivolous or vexatious; it needs to be appropriately investigated, examined and determined in terms of the availability of evidence before a court of law accordingly.
  3. Therefore, in the given circumstances, the Plaintiff’s claim cannot be said to be frivolous or vexatious.

Issue (iii) -Whether the claim is otherwise an abuse of the process of the Court?

  1. 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)

  1. 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."

  1. 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"

  1. Again, the summary procedure should not be used to determine the “abuse of process of the court’, rather the substantive matter needs to be heard to determine the issue within the writ and the statement of claim making a claim whether it is groundless and unfounded in the sense that the plaintiff does not know of any facts to support it.
  2. Further reference is made to the case of Timoci Uluivuda Bavadra v Therney General (Su (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 hearing. All I have to decide whether there is an issue to be tried. It is not enough for the defendant to show on this application that the plaintiff’s case is weak and unlikely to succeed”.

  1. In Tawake v Barton Ltd [2010] FJHC 14; HBC 231 of 2008 (28 January 2010), Master Tuilevuka (as he was then) summarised the law in this area as follows;

"The jurisdiction to strike out proceedings under Order 18 Rule 18 is guardedly exercised in exceptional cases only where, on the pleaded facts, the plaintiff could not succeed as a matter of law. It is not exercised where legal questions of importance are raised and where the cause of action must be so clearly untenable that they cannot possibly succeed (see Attorney General –v- Shiu Prasad Halka 18 FLR 210 at 215, as per Justice Gould VP; see also New Zealand Court of Appeal decision in Attorney –v- Prince Gardner [1998] 1 NZLR 262 at 267."

Issue (iv) - Whether the Statement of Claim will prejudice, embarrass or delay the fair Trial of the action?

  1. The action was filed by the Plaintiff on 09th February, 2016 wherein his Substantive Claim is for Defamation and that the Plaintiff was not given a fair opportunity to have any allegations raised by the USP to be properly investigated. Hence seeks for General Damages or loss of reputation, interest and costs. The Plaintiff claims that his reputation has been damaged by the 1st Defendant who made several imputations concerning the Plaintiff and these imputations particularised are Defamatory of the Plaintiff being an academic and Professor in Economics.
  2. The current application before this Court for determination is an Interlocutory Striking out Application filed by the Defendants. The substantive issues are yet to be heard and determined by this Court.
  3. Further, matters of this nature cannot just be dealt with on affidavit evidence summarily to reach a just and fair decision. This Court needs to hear the evidence in its entirety and reach a just and fair determination accordingly. This Court is adamant in expediting this case and make further appropriate directions to ensure that the litigation is brought to its conclusion soon.

Therefore, I do not find that the Defendants currently is and will until the final disposition of the substantive action in anyway whatsoever be prejudiced, embarrassed or that there will be any further delay in having a fair Trial of the action accordingly.

  1. If the Defendants are mindful of the fact that the statement of claim has not been properly filed and or it has any short comings in terms of particularization of the claim or needs expunging of certain paragraphs as sought by the Defendants herein, then the Plaintiff is at liberty to seek amendment to the Statement of Claim accordingly, unless the Defendant thinks otherwise.
  2. Having perused and analyzed the issues raised by the Defendants couple with the principles dealing with the present application to Strike out the Plaintiff’s Writ of Summons and the Statement of Claim, this court does not possess all the requisite material and evidence to reach a definite and certain conclusion to strike out the Plaintiff’s Claim as sought for, since the evidence remains untested.
  3. Therefore, to determine the aforesaid issues raised herein, investigation and examination of the appropriate witnesses in terms of evidence are of a paramount importance and requirement to reach a just and fair decision in the circumstances.

Issue (v) - Whether Court has Jurisdiction to hear this case?

  1. According to the Defendants all the pleaded claims, including those of negligence and defamation, fall within the exclusive jurisdiction of USP’s Visitor, and are outside of the jurisdiction of the Court, because they touch upon USP’s internal laws and the administration of those laws. The Defendant further submitted that it is well established law that a universality’s visitor has exclusive jurisdiction over matters within the visitor’s jurisdiction to the exclusion of the courts of law.

He added that the Claim should be struck out and dismissed because it does not disclose a reasonable cause of action, is frivolous and vexatious, may prejudice, embarrass or delay the fair trial of the action and is otherwise an abuse of the process of the Court.

The Plaintiff submitted that this matter also involves a claim for defamation, which again the visitor has no jurisdiction to hear.

  1. The question of Jurisdiction as to the Court in which this case should be filed. I find that the Courts do not preclude any aggrieved party from bringing a common law claim in employment law or otherwise to be determined in a just and fair manner. It should be remembered that Courts deal with any impending matters before Courts independently, fairly and in a just manner as is required of a Court of Law.
  2. The Defendant’s action of filing a striking out application is asking the Master to exercise jurisdiction. If strict arguments are to apply, then surely even the striking out application should not have been brought before the Master to determine, rather let the Judge of the High Court deal with the substantive matter and decide the impending substantive issues in a just and fair manner. This Court then would have been in a position to decide on the jurisdiction, whether this matter ought to be decided by the Court of law and/or by the Visitor of the USP.
  3. Overall, I therefore in the above circumstances find that there are both triable issues as well as legal issues that needs to be investigated and determined in terms of the availability of the evidence before the Court at the trial proper in a just and fair manner.
  4. In summary, the Defendant’s application seeking the striking out of the Plaintiff’s claim on the following grounds fails respectively.
  5. Further, considering the nature of the Plaintiff's substantive action, this is not the most appropriate stage of proceedings to determine the success of its claim.
  6. Taking into consideration oral arguments and written submissions from both parties and bearing in mind the substantive nature of the claim, this court is inclined to grant reasonable costs to the Plaintiff summarily assessed at Court’s discretion in the sum of $1000.

62. In Conclusion, following are the final orders of this court-

FINAL ORDERS

(i) That the Defendant’s Summons seeking the Striking Out of the Plaintiff’s Writ of Summons and the Statement of Claim is hereby dismissed.
(ii) That the Defendants to pay the Plaintiff summarily assessed costs of $1000 of this application within 14 days.
(iii) The Matter to take its normal cause in terms of the substantive action.
(iv) Further directions to be made on 4th April, 2018.

Dated at Suva this 4th day of April, 2018


..........................................................
VISHWA DATT SHARMA

MASTER

cc: Diven Prasad Lawyers, Suva
Munro Leys Solicitors, Suva


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