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High Court of Fiji |
IN THE HIGH COURT OF FIJI
NOTHERN DIVISION
AT LABASA
[CIVIL JURISDICTION]
Civil Action No. HBC 04 of 2023
BETWEEN :
TAIYAB HUSSAIN of Nasekula, Labasa, Businessman.
PLAINTIFF
AND :
DIRECTOR OF TOWN AND COUNTRY PLANNING having its office at 1 Fiji FA House, Gladstone Road, Suva.
1st DEFENDANT
AND :
ATTORNEY GENERAL OF FIJI
2nd DEFENDANT
Before : Acting Master L. K. Wickramasekara
Counsel : Sen Lawyers for the Plaintiff
Attorney Generals Chambers for the Defendants
Date of Ruling : Thursday, 30th of May 2024
RULING
01. Defendants in this action have filed Summons to Strike Out the Plaintiffs Writ of Summons filed on the 16/01/2023 and the Third Amended Statement of Claim filed on the 13/09/2023, with the supporting affidavit of Manasa Tuilau, a Senior Town Planner-Northern at the Department of Town and Country Planning. This application has been filed on 08/11/2023.
02. Plaintiff has opposed the said application by the Defendants and have filed an Affidavit in Opposition against the said application on the 23/11/2023.
03. An Affidavit in Reply, sworn by Manasa Tuilau, has been filed on the 07/12/2023 further in support of the summons.
04. Comprehensive written submissions have been filed by the Defendants on the 21/02/2024 as per the directions of the Court and the Plaintiff has filed its written submissions on the 04/03/2024.
05. Matter was fixed for Hearing on the 03/04/2024. Both parties, however, failed to attend the hearing and thus it was fixed to be dealt by way of written submissions. Leave was also granted to the Defendant’s counsel to file further written submissions in reply to the Plaintiffs submissions with consent of the Plaintiffs’ counsel.
06. Accordingly, a Supplementary Written Submissions were filed by the Defendants on 08/04/2024.
07. Having read the affidavits in evidence of the parties and the comprehensive written submissions tendered, I now proceed to make my Ruling on this Summons to Strike Out as follows.
08. The reliefs sort as per the Plaintiffs Third Amended Statement of Claim are as follows:
- A declaration that revocation of the proposed subdivision of Lot 3 m 1971 Wairabia, Nasekula, Labasa – Waiver of building line restriction along Wainikoro-Dama and formation of the 9.0m wide access road to industrial lots pursuant to a letter dated 24th November 2021 be declared null and void.
- That the Plaintiff be allowed to obtain completion certificate as prayed for and appearing in the High Court Civil Action No. HBC 46 of 2021.
- For an order that this action, be consolidated with the High court Civil Action No. HBC 46 of 2021.
- Costs for General Damages.
- Interests.
- Such further and/or other relief as this Honorable Court may deem just and expedient.
09. As per the facts pleaded in the Third Amended Statement of Claim, the Plaintiff had claimed that he had pursued a plan for subdivision of a land as verily described in the statement of claim. Plaintiff further claims that upon the assurance of the iTaukei Land Trust Board of the entitlement of the Plaintiff to possess the entirety of the said land, the Plaintiff had obtained the consent of the Director of Town and Country Planning, the 1st Defendant, to engage the services of a consultant and surveyors for the proposed subdivision.
Striking out pleadings and indorsements (O.18, r.18)
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).
(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.
“At a glance, this rule gives two basic messages, and both are salutary for the interest of justice and encourage the access to justice which should not be denied by the glib use of summery procedure of pre-emptory striking out. Firstly, the power given under this rule is permissive which is indicated in the word “may” used at the beginning of this rule as opposed to mandatory. It is a “may do” provision contrary to “must do” provision. Secondly, even though the court is satisfied on any of those grounds mentioned in that rule, the proceedings should not necessarily be struck out as the court can, still, order for amendment. In Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 3) [1970] Ch. 506, it was held that the power given to strike out any pleading or any part of a pleading under this rule is not mandatory but permissive, and confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending plea. MARSACK J.A. giving concurring judgment of the Court of Appeal in Attorney General v Halka [1972] FJLawRp 35; [1972] 18 FLR 210 (3 November 1972) held that:
“Following the decisions cited in the judgments of the Vice President and of the Judge of the Court below I think it is definitely established that the jurisdiction to strike out proceedings under Order 18 Rule 19 should be very sparingly exercised, and only in exceptional cases. It should not be so exercised where legal questions of importance and difficulty are raised”.
“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. [1872] UKLawRpEq 22; 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)”.
"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 endorsement 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 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 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."
“ Power of Director to refuse or approve applications
8.-(1) The Director shall consider the application together with the plans or diagrams and documents and recommendations (if any) aforesaid and may require the applicant to amend his plan or diagram to fulfil such requirements as the Director may consider necessary and may approve the application subject to the completion of such amendments and the fulfilment by the applicant of any condition imposed by the Director under the provisions of this Act.
(2) If the Director is of the opinion that building or further building development is undesirable on the land which is the subject of the application or, having regard to the health, amenity or convenience of the neighbourhood, that any subdivision of land shown on the plan is unsuitable, he may refuse the application or he may, in approving the application in whole or in part, impose such conditions as are necessary to give effect to such decision.
(3) If the Director is of opinion, having regard to the health, amenity or convenience of the neighbourhood, that the establishment of any noxious or offensive trade, business or manufacture should not be permitted or that a portion of the land being subdivided not exceeding in any case one-twentieth of the total area thereof should be reserved as an open space, the Director may, in approving the application in whole or in part, impose such conditions as are necessary to give effect to such decision.
(4) The decision of the Director upon the application shall be communicated to the local authority which shall, unless notice of intention to appeal to the Minister shall have been given as hereinafter provided, forthwith take such steps as are necessary to enforce the observance of the decision of the Director.
(5) Any person who contravenes or fails to comply with any condition imposed by the Director under this section shall be deemed to have contravened or failed to comply with the provisions of this Act.
Refusing approval of any application to subdivide land
9. Without in any way limiting the discretion of the Director, it shall be sufficient reason for refusing approval of any application to subdivide land if-
(a) any such land is the subject of a registered lease of native or Crown land issued ostensibly for agricultural or pastoral purposes whether or not such lease contains any specific condition limiting the use of such land to such purposes; or
(b) any such land is the subject of a registered lease of native or Crown land which will normally expire by effluxion of time within a period of ten years from the date of any application for permission to subdivide such land; or
(c) provision is not made for any drainage reserves or drainage easements which may be necessary to enable the allotments or parcels of land and any new roads, streets, lanes or pathways to be sufficiently drained into a public drain or existing road or street or lane or pathway or stream at or along which the drainage from such land or any such new road, street, lane or pathway may lawfully be discharged or caused to flow; or
(d) in any plan of subdivision any section ten chains or more in length of a new road or street, is not intersected or met by a crossroad or street or connecting road or street.”
“ Procedure when Director refuses application
14. When the Director has refused to approve an application under this Act or has approved an application in part or subject to conditions, the Director shall forthwith communicate his decision together with the reasons therefor to the applicant who may, within twenty-eight days after the receipt of such communication, appeal to the Minister whose decision shall be final:
Provided that the Minister may-
(a) for good cause extend the said period of twenty-eight days; and
(b) seek and obtain the advice of the Advisory Committee on such appeals or on any other matters under this Act.”
“ ...As noted above, the exercise of statutory powers does not give rise to a private law duty of care; See;Davis v Radcliffe (1990) 2 ALL ER 536.
It is well established that in cases where the exercise of a statutory discretion involves the weighing of competing public interests, particularly financial or economic interests, no private law duty of care arises because the matter is not justiciable by the courts. It is for the body to whom Parliament has committed that discretion to weigh the competing public interest factors; the courts cannot undertake the task; A distinction is drawn between such ‘policy discretions’ on the one hand and ‘operational powers’ on the other. Broadly, operational powers involve the carrying out policy decisions. The exercise of operational statutory powers can, but not necessarily will give rise to private law duty of care ; See Anns v Merton London Borough [1977] UKHL 4; [1977] UKHL 4; (1977) 2 ALL ER 492, per Lord Wilberforce and Rowling v Takro Properties Ltd (1988) 1 ALL ER 163.
As was said by Sir Nicolas Browne-Wilkinson V.C inLonrhoPlc v. Tebbit (1991) 4 ALL E.R 973 at p.981:
‘......it is well established that in case where the exercise of a statutory discretion involves the weighing of competing public
interests, particularly financial or economic interests, no private law duty of care arises because the matter is not justiciable
by the courts. It is for the body to whom Parliament has committed that discretion to weigh the competing public interest factors:
the courts cannot undertake that task.’
Moreover, if the breach of a statutory duty does not give rise to private cause of action, it would exclude the existence of a Common
Law duty of Care. In ‘Stovin v Wise” [1996] UKHL 15; (1996) 3 All. E. R 801, Lord Hoffman said;
‘The same is true of omission to perform a statutory duty. If such a duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed ....... If the policy of the Act is not to create a statutory liability to pay compensation, the same policy should ordinarily exclude the existence of a common law duty of care.’
The approach was re-echoed by Lord Bridge in Murphy v Brentwood D.C (1990) 2 All E. R. where his Lordshipsaid;
‘(There) may be cogent reasons of social policy for imposing liability on the authority. But the shoulders of a public authority are only broad enough to bear the loss because they are financed by the public at large. It is pre-eminently for the legislature to decide whether these policy reasons should be accepted as sufficient for imposing on the public the burden of providing compensation for private financial losses. If they do so decide, it is not difficult for them to say so.’
For the reasons which I have endeavoured to explain, the Plaintiffs private law cause of action for breach of statutory powers is not only vexatious it is an abuse of process of the court. The enforcement of a positive statutory duty lies in a public law action brought by way of judicial review and not in a private law claim for damages.”
Sangeeta Mani Reddy & Anr. V Nag Mani Reddy, The Director of Lands & Anr. (Supra).
“13. The 1st Defendant through a letter dated 24th November 2021 advised Labasa Town Council that all approvals granted to the plaintiff in respect of the proposed subdivision of Lot 3 M 1971 Wairabia, Naskula including extension and approval dated 30th June 2020 was revoked.
“After careful consideration, the Director has decided as follows:
That all approvals granted for the above mentioned site including extension of approval dated 30/06/2020 is hereby revoked.”
Emphasis added.
“2) The Plaintiff cannot be deprived of his right to continue to challenge the Director of Town and Country Planning’s decision and therefore, it is premature for the Defendant to seek dismissal of these proceedings when sufficient reasons have been advanced as to why it should not stay on foot.”
Emphasis added.
L. K. Wickramasekara,
Acting Master of the High Court.
At Labasa,
30/05/2024.
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