IN THE HIGH COURT OF FIJI AT SUVA
APPELLATE JURISDICTION

Civil Appeal No. HBA 29 of 2020
Magistrate’s Court Civil Action No. 271 of 2018

BETWEEN

PETER CHANG of Suva (Exact address unknown to the plaintiff), Consultant.

APPELLANT [ORIGINAL 2ND DEFENDANT]

AND

PRIMETIME PROPERTIES LIMITED a limited liability company having its 
registered office at Suva.

FIRST RESPONDENT [ORIGINAL PLAINTIF]

AND

HIBISCUS COMPANY LIMITED

SECOND RESPONDENT [NOMINAL DEFENDANT]

Counsel			:	Mr. Fatiaki S. for the Appellant.
					Mr. O’Driscoll G. for the 1st Respondent

Date of Hearing		:	15th February 2022

Date of Judgment		:	24th March 2022

JUDGMENT

[1]	The 1st respondent instituted these proceedings against the defendants to recover $49,737.90 with costs. 
[2]	On 28th April 2020 the appellant filed a notice of motion seeking the following order:
For an order that the second defendant be struck out as a party to these proceedings on the grounds that the plaintiff has no reasonable cause of action against him and the claim against the second defendant is frivolous, vexatious and an abuse of process and a further order that the plaintiff pay to the second defendant costs on an indemnity basis.
[3]	The above application was filed pursuant to Order III rule 8 (Order 18 rule 18 of the High Court Rules) and Order XXVI rule 1 of the Magistrate’s Court Rules.
[4]	The learned Magistrate dismissed the application of the appellant without costs. The appellant appealed the said ruling to this court on the following grounds: 
1.	That the Learned Magistrate erred in law in holding that there were only two ways in which a Magistrate Court could strike out a matter when: 
1.1	the Learned Magistrate had the power to strike out the Plaintiff’s claim against the 2nd Defendant by applying Order 3 Rule 8 of the Magistrate Court Rules 1945 to invoke Order 18 Rule 18 (1) of the High Court Rules. 
1.2	Order 3 Rule 8 of the Magistrate Court Rules 1945 allows for the application of the High Court Rules which would have allowed the Learned Magistrate to exercise Order 18 Rule 18(1) of the High Court Rules to strike out the Plaintiff’s claim against the 2nd Defendant; 
2.	That the Learned Magistrate erred in law in misinterpreting and holding that Order 3 Rule 8 of the Magistrate Court Rules 1945 was not applicable in the instant case as there were only two instances wherein a Court can entertain an application to strike out being Order 25 Rule 2 and Order 30 Rule 2 of the Magistrates Court Rules 1945 when: 
2.1	There were no provisions in the Magistrate Court Rules 1945 for the striking out of a party to an action on the grounds that the claim discloses no reasonable cause of action and the claim was frivolous, vexatious and an abuse of process; 
2.2	The applicable provision would be applying Order 3 Rule 8 of the Magistrate Court Rules 1945 to invoke Order 18 Rule 18(1) of the High Court Rules; 
2.3	The High Court decisions in Beyer v Maharaj [2016] FJHC 101  held that the Magistrate Court had jurisdiction to strike out a matter by applying Order 3 Rule 8 of the Magistrate Court Rules 1945 to invoke Order 18 Rule 18 (1) of the High Court Rules; 
3.	That the Learned Magistrate erred in law and in fact in holding that the Applicant Counsel had relied on the decision of Radrodro v Church of Jesus Christ of Latter Day Saints [2005] FJHC 694; HBC 0204.2005L (11 November 2005) when in fact this was not the case. 
4.	That the Learned Magistrate erred in law in misapplying the decision of the High Court in Land Transport Authority v Shahid Logging Supplies [2018] FJHC 1140; Civil Action 283 of 2018 to the instant case when the facts of that case were clearly distinguishable to the instant case. 
5.	That the Learned Magistrate erred in law in not relying on and applying the principles established in the High Court decision of Beyer v Maharaj [2016] FJHC 101 which is binding on the Learned Magistrate and the case in point on the legal issue in respect of Grounds of Appeal 1 and 2 hereinabove. 
6.	That the Learned Magistrate erred in law in holding that there was no lacuna in the Magistrates Court Rules 1945 in respect of striking out when in fact there was as there is no provision within the Magistrate Court Rules 1945 for the striking out of matters on the grounds that a claim discloses no reasonable cause of action or is frivolous, vexatious and an abuse of process. 
7.	That the Learned Magistrate erred in law and in fact in not properly considering the oral and written submissions of the 2md Defendant in respect of the applicability of Order 3 Rule 8 of the Magistrate Court Rules 1945 to the type of striking out application that was before the Court. 
Wherefore the Appellant reserves the right to argue and/or file further or revised grounds appeal upon receipt of the Court’s record and with Leave of the Honourable Court. 
[5]	The main issue to be determined in this appeal is whether the Magistrate’s Court has jurisdiction to strike out a matter relying on the provisions of Order III rule 8, Order XXVI rule 1 of the Magistrate’s Court Rules and Order 18 rule 18 of the High Court Rules 1988.
[6]	Order III rule 8 of the Magistrates’ Court Rules provides:
In the event of there being no provision in these Rules to meet the circumstances arising in any particular cause, matter, case or event, the court and/or the clerk of the court and/or the parties shall be guided by any relevant provision contained in the Supreme Court Rules.
[7]	Order 18 rule 18 of the High Court Rules 1988 provides:
(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.

[8]	The learned counsel for the Appellant, in this regard, relied on the decision of Justice Amaratunga in the case of Beyer v Maharaj [2016] FJHC 101; Civil Action 216.2015 (15 February 2016) and cited the following paragraphs of the judgement:
23.	The learned Counsel for the Applicant states that there is no provision in Magistrates' Courts Act (Cap14) or the Rules made under that allowing a Magistrate to deal with strike out application. This is correct, but this does not mean that a Magistrate is bound to hear an action to the conclusion, that was filed outside the limitation period. Such a writ of summons is defective in limine and must be dealt by the court as soon as it is brought to the notice.
27.	If there are not clear provisions in the Magistrate Court Rules that should not be considered as the end of the matter. The guidance could be found in the Magistrate Court Rules Order 3 rule 8 which deal with
8.	In the event of there being no provision in these Rules to meet the circumstances arising in any particular cause, matter, case or event, the court and/or the clerk of the court and/or the parties shall be guided by any relevant provision contained in the Supreme Court Rules. (Emphasis added)
28.	So what the court below has to determine before seeking guidance from the High Court Rules of 1988 is whether there is no provision in the Magistrates' Courts Rules 'to meet the circumstances arising in any particular cause, matter, case or event.' In my judgment this requirement is fulfilled in this instance, though the learned Magistrate has not addressed this issue in the ruling dated 2nd June, 2015.
29.	The guidance is found in the Order 18 rule 18 of the High Court Rules of 1988 which deals with striking out of pleadings. It can be used as a guidance to strike out pleadings and also to dismiss the action in the court below. It should be borne in mind the basis of strike out is the right of the Respondent when the alleged claim is time barred, subject only to the extension of time period. He can ask the court for dismissal of the action without considering the merits (see Yew Bon Tew v Kenderann Bas Mara 1982 3All ER 833). The court in which the action is filed has the necessary jurisdiction either to extend the limitation period in terms of Sec 16 and 17 of the Limitation Act (Cap 35) or to refuse and extension before the action was filed. At the same time it has jurisdiction to strike out any pleading and dismiss the action that is time barred. In the Magistrate's Court this power is exercised using Order 18 rule 18 of the High Court Rules of 1988 as a guidance. It is an abuse of process to file the action that is statute barred in the Magistrate's Court.
[9]	As observed by Justice Amaratunga in his judgment what Order III rule 8 says is that the Magistrate’s Court shall be guided by any provision contain in the High Court Rules. 
[10]	The learned counsel for the appellant submits that the learned Magistrate failed to follow the principles enunciated in Beyer v Maharaj (supra). The learned Magistrate in his decision has followed the judgment of Justice Amaratunga in Land Transport Authority v Shahid Logging Supplies (supra). The facts in these two cases are different from each other however, in both these matters Justice Amaratunga has interpreted Order 3 rule 8 of the Magistrates Court Rules which is an issue of law.  
[11]	The learned Magistrate in concluding that the Magistrate’s Court does not have power to strike out matters relying on Order 18 rule 18 of the High Court Rules 1988 relied on the decision of Justice Amaratunga in the case of Land Transport Authority v Shahid Logging Supplies [2018] FJHC 1140; Civil Action 283 of 2018 (30 November 2018) where it was held:
High Court Rules can be applied in the Magistrates’ Court when there is a lacuna in the Magistrates Court Rules 1945 in terms of Order 3 rule 8 of the said rules.
[12]	The Magistrates Court Act and Magistrate’s Court Rules confer jurisdiction on the Magistrate’s Court to strike out matters in certain circumstances. 
Order XXV rule 2  - The court may strike out or permit to be amended any interrogatory which, in the opinion of the court, is scandalous or irrelevant, or not put bona fide for the purposes of the action, or not sufficiently material, or in any other way objectionable.
Order XXX rule 2 - If the plaintiff does not appear, the court shall, unless it sees good reason to the contrary, strike out the cause (except as to any counterclaim by the defendant), and make such order as to costs, in favour of any defendant appearing, as seems just:
Provided that, if the defendant shall admit the cause of action to the full amount claimed, the court may, if it thinks fit, give judgment as if the plaintiff had appeared.
[13]	Order XXV rule 2 and Order XXX rule 2 confer jurisdiction on the Magistrate’s Court to strike out claims under certain circumstances. The intention of the legislature in enacting these provisions are very clear. If the legislature intended to confer the same power as in Order 18 rule 18 of the High Court Rules 1988 on the Magistrates Court it would have included such provisions in the Magistrates Court Rules or in the Magistrates Court Act.
[14]	Order III rule 8 of the Magistrates Court Rules is very clear in that the Magistrate’s Courts are only guided by the High Court Rules 1988 and it cannot be understood to mean that it confers on the Magistrate’s Court to strike out a claim relying on the provisions of Order 18 rule 18 of the High Court Rules 1988.
[15]	As correctly held by the learned Magistrate there is no lacuna in Order III rule 8 of the Magistrates Court Rules. 
[16]	The other issues raised by the appellant can be determined at the substantive hearing of the matter and therefore no injustice would be caused to the appellant.   

ORDERS
(1)	The appeal is dismissed
(2)	The appellant is ordered to pay $2000.00 as costs of the appeal. 
(3)	The record is sent back to the Magistrates’ Court for the hearing of the substantive matter. 

Lyone Seneviratne
JUDGE
24th March 2022