|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
[CIVIL JURISDICTION]
CIVIL ACTION NO. HBC 99 OF 2023
BETWEEN
HAROON ALI SHAH of Vuda Point, Lautoka.
PLAINTIFF
AND
THE COMMISSIONER OF POLICE
FIRST DEFENDANT
AND
THE ATTORNEY-GENERAL OF FIJI
SECOND DEFENDANT
Before : Master P. Prasad
Counsels : Ms. R. Prasad for Plaintiff
Mr. S. Kant for Defendants
Date of Hearing : 14 November 2024
Date of Decision : 14 February 2025
RULING
(Strike out)
Order 18 Rule 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 case of action or defence, as the case may be;
(b) it is scandalous, frivolous or vexatious;
(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.”
“Exercise of powers under this rule—It is only in plain and obvious cases that recourse 18/19/7 should be had to the summary process under this rule, per Lindley M.R. in Hubbuck v. Wilkinson [1898] UKLawRpKQB 176; [1899] 1 Q.B. 86, p.91 (Mayor, etc., of the City of London v. Horner (1914) 111 L.T. 512, C.A.). See also Kemsley v. Foot [1951] 2 K.B. 34; [1951] 1 All E.R. 331, C.A., affirmed [1952] A.C. 345, H.L. It cannot be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintiff really has a cause of action (Wenlock v. Moloney [1965] 1 W.L.R. 1238; [1965] 2 All E.R. 871, C.A.). If there is a point of law which requires serious discussion, an objection should be taken on the pleadings, and the point set down for argument under O.33, r.3 (Hubbuck v. Wilkinson [1898] UKLawRpKQB 176; [1899] 1 Q.B. 86, p.91).
Where an application to strike out pleadings involves a prolonged and serious argument, the Court should, as a rule decline to proceed with the argument unless it not only harbours doubts about the soundness of the pleading but, in addition, is satisfied that striking out would obviate the necessity for a trial or substantially reduce the burden of preparing for a trial, and therefore, where the Court is satisfied, even after substantial argument both at first instance and on appeal, that the defence does not disclose a reasonable ground of defence, it will order it to be struck out (Williams & Humbert Ltd v. W. & H. Trade Marks (Jersey) Ltd [1986] A.C. 368; [1986] 1 All E.R. 129 H.L.).”
“Principles—A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered (per Lord Pearson in Drummond-Jackson v. British Medical Association [1970] 1 W.L.R. 688; [1970] 1 All E.R. 1094, C.A.). So long as the statement of claim or the particulars (Davey v. Bentinck [1892] UKLawRpKQB 216; [1893] 1 Q.B. 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 it out (Moore v. Lawson (1915) 31 T.L.R. 418, C.A.; Wenlock v. Moloney [1965] 1 W.L.R. 1238; [1965] 2 All E.R. 871, C.A.);...”
“The practice in Fiji of preemptively applying to strike out a claim is wrong and must cease. Counsels ability to overlook the purpose of this summary procedure is astounding. The expense to the administration of justice, let alone clients, is a shameful waste of resources....
Apart from truly exceptional cases the remedy should not be granted. The approach to such applications is to assume that the factual
basis on which the allegations contained in the pleadings are raised will be provided at trial. 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 upon a contention that the facts
cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of such a factual contention....
The rule of law requires the existence of courts for the determination of disputes and that litigants have the right to use the court for that purpose. The courts will be alert to their processes being used in a way that results in an oppression or injustice that would bring the administration of justice into disrepute. However, the court cannot and must not deny proper access to justice by the glib use of a summary procedure to pre-emptorily strike out an action no matter how weak or poorly pleaded the Statement of Claim supporting the case is....
It is not for the court in deciding whether there is a reasonable cause of action to go into the details of the issues that are raised by the parties. This summary jurisdiction of the court was never intended to be exercised by a detailed examination of the facts of the case at a mini hearing to see whether the plaintiff really has a good cause of action merely a sufficient one. This is not the time for an assessment of the strengths of either case. That task is reserved for trial. The simple fact that these parties engaged in argument by opinion over statutory interpretation must bring into existence a mere cause of action raising some questions fit to be decided by a judge.”
No reasonable cause of defence
“To establish that the pleadings disclose no reasonable cause of action, regard cannot be had to any affidavit material [Order 18 r.18(2)]. It is the allegations in the pleadings alone that are to be examined: Republic of Peru v Peruvian Guano Company [1887] UKLawRpCh 186; (1887) 36 Ch.D 489 at p.498”.
“It is clear from the authorities that the court’s jurisdiction to strike out on the ground of no reasonable cause of action is to be used sparingly and only where a cause of action is obviously unsustainable. It was not enough to argue that a case is weak and unlikely to succeed, it must be shown that no cause of action exists.”
“There are several cases which guide the court to form an opinion of reasonable cause of action for the purpose of Order 18 Rule 18. However, there is not much cases which deals with the other part of first ground that is the reasonable defence, as the said sub rule states ‘It discloses no reasonable cause of action or defence, as the case may be’. The reasons being that, if there is no defence, generally the plaintiffs will seek to enter the summary judgement under Oder 14, rather than seeking relief under Oder 18 rule 18 to strike out the defence. In any event, if there is any such application to strike out any pleading for not disclosing a defence, the courts can adopt the meaning given by Sir Roger Ormond in Alpine Bulksport Co. Co. v. Saudi Shipping Co. Inc (1986) 2 Lioyd', 221 for thor the ‘defence’ which is "a real prospect of success"carry some degree of conviction". Thus, the court must from a provisional view of the probable outcome of the action. In addition, the court can also consider whether legal questions of importance and difficulty are raised in an impugned defence filed by either party.
“[9] I shall begin by referring to the legal requirements that constitute an action based on false imprisonment and then proceed to see whether they fit into the facts and circumstances of the present case as re-capped above.
[10] False imprisonment is made out of “a person’s freedom of movement (not necessarily in a prison) had been restricted.”
[11] That was a proposition laid down as far back as the year 1845 in the English Case of Bird v. Jones [1845] 7QB 742, which has stood the test of time.
The competing policies and the balancing process
[12] No doubt, there are competing public policies.
[13] On the one hand, there is the freedom of law enforcement officers. On the other is the citizen’s right to free movement.
[14] In that regard, having looked at the judgment of the High Court (vide: pp.7 to 16 of the Vol. 1 of the Copy Record) I could not find a reference to that aspect.
Definition and Elements
[15] On the basis of authoritative judicial precedents and academic literature the definition and legal elements necessary to constitute false imprisonment may be stated as follows:
Definition of False Imprisonment
[16] In my view the most comprehensive definition of false imprisonment is as stated by John Fleming. He says: “It is the wrong
of intentionally and without lawful justification subjecting another to a total restraint of movement by either actively causing
his confinement or preventing him from exercising his privilege of leaving the place in which he is.” (Fleming on the Law of
Torts 9th ed., LBCIS, 1998).
[17] Most other definitions ignore the words “without lawful justification”. (For example, Street on Torts at p.28, 8th ed. Butterworths). To my mind that is the most important and decisive element bearing in mind the fact that we are dealing with a
case of false imprisonment involving the Police.
“Moving on to the issue of whether this Court has the jurisdiction to try and/or convict for an offence that is not operative at law during the time of the alleged offence. The Charge of Failure to Comply with Order is clear by law. The alleged offence allegedly took place on the 28th of March 2020. While the law was published by way of gazette on the 3rd of April, 2020, the restrictions came into force on the 19th of March, 2020 as clearly stated in the Gazette. Therefore, to state that this Court does not have jurisdiction to hear or try the matter is a frivolous application by the Applicant.”
“10. The issue of contention in this matter is whether there was any law in effect at the time of offending and whether the law incused the coastal area. ...
12. The Public Notice for this gazette was published on the 3rd of April, 2020, that is a fact. However, it does not necessarily mean that when it is gazetted on the 3rd of April 2020 then it becomes a law. It had become a law the moment it was announced as clearly stated in the Notice where it clearly states:
“I hereby give notice of the following orders which were made pursuant to Section 69(3) of the Public Health Act 1935 for the protection of the public health, approved by the Minister for Health and Medical Services and publicly announced on 19 March, 2020.”...
14. In light of the above, Prosecution had proved the element of the order of the Permanent Secretary of Health and Medical Services...but was coastal areas restricted per se in the Gazette?...
17. Defence has submitted in their submissions that the Honourable Prime Minister had allowed fishing but there was no evidence presented before this Court on when specifically, was fishing allowed. The prosecution witness clearly stated in his evidence that the reason he was out on patrol at sea was for the specific reason to police movement in the coastal areas during the lockdown. However, this contradicted the Gazette which failed to specify whether the coastal areas were restricted and how far were the coastal areas restricted. The prosecution witness was unable to tell this Court how the coastal areas were included in the Notice. The prosecution witness was adamant that the Notice itself gave them authority to restrict coastal area movement but he also agreed that the definition of greater Lautoka area was not clear in the Gazette.
18. As such, from the evidence presented before this Court, I find that there are doubts int eh prosecution evidence and it failed to prove the elements beyond reasonable doubt.”
[28] I consider it appropriate to firstly identify the essential elements that a Plaintiff must prove in order to succeed in an action for malicious prosecution. The Appellants in their written submissions have referred to the case of A v New South Wales, [2007] HCA 10. The High Court of Australia in this case has traced in great detail the history and development of the tort of malicious prosecution. They have re-iterated the oft relied upon four elements a Plaintiff must establish in order to succeed in an action for malicious prosecution. They are;
“(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the Plaintiff by the defendant;
(2) that the proceedings terminated in favour of the plaintiff;
(3) that the defendant, in initiating or maintaining proceedings acted maliciously; and
(4) that the defendant acted without reasonable and probable cause”
[29] Halsburys Laws of England (4th Edn), Vol 45, para 1368, stipulates that the Plaintiff should expressly plead these four essential elements. Therefore, it is prudent to examine if the Appellants have pleaded these four elements in their Statement of Claim and also whether they have proved them at the trial. Significantly, the Appellants have acknowledged this requirement and in paragraph 35 of their written submissions state that “Since malicious prosecution is an action on the case, the Plaintiff has the substantive burden of proof to establish all the elements of the case and must show damage”. ...
[37] The ordinary dictionary meaning of ‘malice’ alone may not be appropriate to define malice in this context. As stated in A v New South Wales (supra), malice would mean “... acting for purposes other than a proper purpose of instituting criminal proceedings. Purposes other than a proper purpose include, but are not limited to, purposes of personal animus of the kind encompassed in ordinary parlance by the word ‘malice’ ”. It would be necessary that ‘the defendant must have had malicious intent in the sense of improper purpose’. Accordingly, ‘malice’ would constitute “... an element that focuses upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law”.
[38] I consider it pertinent to mention another important view expressed in that case. It was stated that - “Two further observations should be made about the element of malice. First, its proof will often be a matter of inference. But it is proof that is required, not conjecture or suspicion. Secondly, the reference to “purposes other than a proper purpose” might be thought to bring into this realm of discourse principles applied in the law of defamation or in judicial review of administrative action. No doubt some parallels could be drawn with principles applied in those areas. But drawing those parallels should not be permitted to obscure the distinctive character of the element of malice in this tort. It is an element that focuses upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law” (emphasis added).
[39] The element of ‘absence of reasonable and probable cause’ cannot be adjudged by a single yardstick and has to be determined on the facts and circumstances of each case. I am once again inclined to rely on A v New South Wales (supra), where it was said that an action for malicious prosecution will not lie “where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge”.
Order 18 Rule 1 (b), (c) and (d)
(a) The Plaintiff’s Summons to strike out the Defendants Statement of Defence is hereby dismissed; and
(b) The Defendants are entitled to costs summarily assessed in the sum of $2,000.00 payable by the Plaintiff within 1 month.
P. Prasad
Master of the High Court
At Lautoka
14 February 2025
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2025/45.html
