IN THE COURT OF APPEAL OF TONGA
Court of Appeal, Nuku’alofa

CA 10/99

Kaufusi

v

Kingdom of Tonga

Burchett, Tompkins, Beaumont JJ 
13 July 1999; 23 July 1999 

Practice and procedure — application to strike out claim — no proof of claim — application granted 
Tort — claim of malicious prosecution — burden on plaintiff — particulars — burden not discharged 

The appellant, a civil servant, was dismissed due to irregularities in overtime claims. Cabinet referred the matter to the Ministry of Police and charges were laid. In the Supreme Court those charges were dismissed for failure to establish a prima facie case. The appellant sued the respondent in the Supreme Court for damages for malicious prosecution. The respondent moved the Court for orders (a) to strike out the appellant’s statement of claim; and (b) to dismiss his action. The learned Chief Justice made both the orders sought. The appellant appealed those orders. 

Held: 

1. In an action for malicious prosecution, the burden is on the plaintiff to prove malice and absence of reasonable and probable cause. If the defendant denies it, it is not the practice to require the defendant to give particulars of his denial. 

2. As no instigator had been named, the statement of claim was struck out. 

3. Given the long history and the lapse of time, it was open to his Honour to conclude, on the face of the pleading, that in the interests of justice the action should be terminated. 

4. The appeal was dismissed with costs. 

Cases considered: 
 Davy v Garrett [1878] 7 Ch D 473 
 Griffiths v London & St Katherine Docks Co [1884] 13 QBD 259 
 Northern Territory v Mengel (1995) 185 CLR 307 
 Stapeley v Annetts [1970] 1 WLR 20; [1969] 3 All ER 1541 
 Waters v Sunday Pictorial Newspapers Ltd [1961] 2 All ER 758; [1961] 1 WLR 967 

Statutes considered: 
 Crown Proceedings Act CAP 13 

Rules of Court considered: 
 Supreme Court Rules 1991 

Counsel for appellant : Mr Edwards 
Counsel for respondent : Solicitor-General 
The Supreme Court decision appears at page 28. 

Judgment

Introduction 

The appellant sued the respondent in the Supreme Court for damages for malicious prosecution. The respondent moved the Court under Order 8, Rule 6(1) for orders (a) striking out the appellant’s statement of claim; and (b) dismissing his action. 

Order 8, Rule 6(1) and (2) provides: 

“Rule 6. 

(1) The court may at any time order that any pleading or part therof be struck out if 

(i) it discloses no reasonable cause of action or defence, as the case may be; or 

(ii) it is scandalous, frivolous or vexatious; or 

(iii) it is unclear, or may otherwise prejudice or delay the fair trial of the action; or 

(iv) it is otherwise an abuse of process of the Court; 

and may order the action to be stayed or dismissed, or judgment to be entered accordingly. 

(2) No evidence shall be heard on an application under paragraph (1)(i).” 

The learned Chief Justice made both the orders sought. This is an appeal from those orders. 

In order to understand the issues in the appeal, it will be necessary to refer first to the material allegations in the appellant’s pleading. 

The claims made in the statement of claim 

By his amended statement of claim, the appellant “sued (the respondent) in respect of Ministry of Finance”, relevantly alleging what follows: 

1 … (T)he [appellant] at all material times was employed by the [respondent] 

2 … (T)he [respondent] is sued in respect of the Audit Department, Cabinet and Crown Law. 

3 … (T)he [appellant] was criminally prosecuted by the [respondent] at the Supreme Court ... with two charges, one of which related to falsification of account ... and the other of knowingly dealing with forged document ... 

4 The [appellant] appeared in the Supreme Court on 13, 17, 18 and 19/3/97 and defended the two criminal charges … against him. 

5 The trial of the [appellant] lasted four days and at the conclusion of the prosecution case the learned trial Judge [Lewis J] on the 19th day of March 1997 delivered a written judgment dismissing the criminal charges against the [appellant] as there was no prima facie case against the [appellant]. 

6 There was no reasonable and probable cause for the proceedings and the [respondent] instituted and carried on the prosecution maliciously. 

7 Particulars of the malice alleged aforesaid consist of one or more than one of the following: 

(a) In preparing the prosecution the [respondent] or its counsel ought to have known that there was no case or evidence against the [appellant]. 

(b) The [respondent] or its counsel was grossly ignorant of the law. 

(c) During the first week of March, 1997, the [appellant] and his counsel William Edwards were asked to meet with Crown Counsel Mrs Simiki and Miss Tapueluelu. The [appellant] was asked to plead guilty and if so the Crown counsel will ask the court for a conviction and discharge. If the [appellant] refused to plead guilty the Crown would file more charges against the [appellant]. The [appellant] refused to plead guilty and as a result he was indicted with additional 16 charges without any evidence adduced at any preliminary hearing in the Magistrate Court or on any evidence adduced in the Supreme Court for the purpose of such further charges. 

(d) The [appellant] was intimidated and threatened to plead guilty and on or about the 13th March, 1997 was charged with an additional 16 charges. 

(e) … (T)here were 11 people suspended from the Treasury, and two people from Ministry of Health. There were 7 people from the Treasury who were reinstated and treated differently from the [appellant] and others notwithstanding that they were all alleged to have committed the same improper conduct. 

(f) … (T)he work of the [appellant] in the Treasury was carried out openly and on instructions and authorisation of the Accountant General and also at the request of other Ministries. 

(g) ... (T)he said arrangements between the Treasury and other Ministries were agreed upon by the Heads of Department involved and authorised by Accountant General. 

8 (T)he 16 additional charges against the [appellant] were brought recklessly and without the proper procedure being applied to lay the proper foundation for the said charges. The court refused to proceed with the said additional charges …” 

The reasoning of the primary Judge 

The learned Chief Justice first considered whether the proceedings should be struck out on the ground that the statement of claim, on its face, disclosed no reasonable cause of action. His Honour held that the particulars of malice alleged in paragraphs 7(a), (e) and (f) “could reveal a reasonable cause of action [so far as they went] …” and rejected that objection. He added that further consideration needed to be given to “the identity of the [respondent] in relation to the [respondent’s further] submission that the pleading was unclear [within the meaning of Order 8 Rule 6(1)(iii)”. 

His Honour said: 

“In determining whether the pleadings are unclear or may delay the fair trial of the action or that they are an abuse of process, the court may consider evidence. The [appellant] has not sought to produce any. The [respondent] has produced an affidavit by the Chief Establishment Officer in the Prime Minister’s Office. 

That affidavit sets out a little of the background. He deposes to the fact that, in 1993, the acting Auditor General filed a report that suggested there were irregularities in the payments of overtime by staff in the Treasury. Cabinet considered the matter and, in October of that year, suspended a number of civil servants including the [appellant]. Having sought the [appellant’s] explanations, Cabinet decided, in January 1994, to dismiss him. A letter was then sent to Cabinet by a senior Treasury official asking it to reconsider the decision, which it did but, in March 1994, the decision was reaffirmed. 

At the time of the decision in January to dismiss the [appellant], Cabinet also resolved to refer the matter to the Ministry of Police to consider charges and such charges were laid. It was those that were dismissed for failure to establish a prima facie case. The judgment in that case is exhibited to the affidavit and shows that the grounds, upon which [Lewis J] found the evidence failed, related to a failure by the investigating police officer to ask the [appellant] whether he did actually work the overtime that formed the basis of the charge. [Lewis J] considered that, on the evidence produced by the prosecution, ‘a jury may be left suspicious of him but it could never be said that there is sufficient evidence … to enable the jury to reach a verdict.’ [Lewis J] concluded: ‘Initially I formed the view at the close of the Crown case that there may be cases to answer. On a reconsideration of the evidence and the record of interview I have reversed my opinion’.” 

After referring to the corresponding English Rule of Court providing for the striking out of a pleading that “may prejudice, embarrass or delay [a] fair trial”, the Chief Justice said: 

“Embarrassment has been said to occur if the plaintiff’s case is in such an unintelligible form that the defendant is unable to meet it. The pleading should state the facts which will put the defendants on their guard and tell them what they will have to meet when the case comes on for trial. 

I can find no authority to assist with the meaning or scope of the word ‘unclear’ used in our rule. Far too many actions in this Court are commenced by, and tried on, unclearly worded pleadings and so the power to strike out under this provision must be based on something substantially more. Clearly when the rule was made, there was an intention to convey something different from a possibility it may embarrass the other side. The use of the comma followed by the words ‘or otherwise’ in our rule also show that it was intended to mean something other than that it would delay the fair trial. I take it therefore to be a wider ground for striking out and that it must include any case where the pleading is so unclear that the other party cannot know with any certainty the case he has to answer. 

The basis on which the [respondent] suggests the pleadings are unclear relates to the identity of the [respondent] and of the person or body that had malice. By the Crown Proceedings Act, the Government is properly sued in the name of the Kingdom as has been done. The problem is that, if malice is to be established, it is necessary to know who is claimed to have shown that malice and that the malice related to the institution of the prosecution. Without that it is impossible to defend.” 

Having analysed the pleading and the respondent’s affidavit evidence with a view to ascertaining who is said to have had the malice necessary to establish this cause of action, his Honour held that the identity of this party or parties had not been “clarified”; and that the respondent’s complaint was justified since it could not “possibly know the case [it] has to answer in order to draft a defence”. 

The Chief Justice concluded: 

“The application of the [respondent] is that the writ be set aside and the claim be dismissed. The power of the court to strike out pleadings is one that should only be exercised in the clearest cases. It is an important principle that every man is entitled to his day in court. There is clear authority also that, rather than strike out a defective pleading, the court should always consider whether the defect could be cured by amendment. 

This action started as a claim not only for malicious prosecution but also for wrongful dismissal and unfair treatment. I ordered that those were matters for judicial review and that, as the [respondent] was so very far out of time, they would be struck out. I gave time to the [appellant] to amend his pleading and pointed out the need to set out the allegation of malice. Having had time to do so, the present statement of claim has been filed. I do not think, therefore that further amendment would help. On the pleading before me, the [appellant] could never succeed and I am satisfied it is a proper case to order that it is struck out and, for the same reason, I consider the appropriate order is that the [appellant’s] action be dismissed.” [Emphasis added] 

The appellant’s grounds of appeal 

The appellant’s arguments may be summarised as follows: 

(1) Not every infraction of the requirements of the Rules of Court will result in a strike out: only where a party can show prejudice will his opponent’s pleading be struck out for an irregularity. At the same time, the appellant accepts that the respondent may claim to have the appellant’s case pleaded in an intelligible form, lest the respondent be embarrassed in seeking to meet it (reference is made to Davy v Garrett [1878] 7 Ch D 473 at 486). However, Order 8, Rule 6 also empowers the Court to amend a pleading. This is in addition to the Court’s power to amend under other provisions of the Rules. The incorporation of such a power in Order 8, Rule 6 emphasised that, in a suitable and proper case, the Court may exercise its coercive and curative power at the same time. The strike out remedy should be employed only in plain and obvious cases. The only possible defect is a lack of particularity. This can be cured by an application for further and better particulars. 

(2) Where a statement of claim is defective because of the omission of an essential averment, the Court will give leave to amend, rather than dismiss the action (reference is made to Griffiths v London & St Katherine Docks Co [1884] 13 QBD 259 at 261). Thus, a pleading will not be struck out if it is merely demurrable - it must be so bad that no legitimate amendment could cure the defect. The strike out power will only be exercised where the case is clear beyond doubt: the Court must be satisfied that there is no reasonable cause of action (reference is made to Waters v Sunday Pictorial Newspapers Ltd [1961] 2 All ER 758; [1961] 1 WLR 967). 

(3) His Honour erred in allowing evidence in a strike out application under Order 8, Rule 6 brought on the ground that a pleading discloses no reasonable cause of action. Order 8, Rule 6(2) prescribes that no evidence shall be allowed on such an application. 

(4) The primary Judge addressed the issue of malice too narrowly; and reference is made to the following observation of Deane J in Northern Territory v Mengel (1995) 185 CLR 307: “Malice will exist if the act was done with reckless indifference or deliberate blindness …” 

Conclusions on the appeal

As has been seen, two distinct issues arose for his Honour, one concerned with the pleading, the other with whether the action should be dismissed. We will deal with them separately. 

(a) Should the statement of claim have been struck out? 

In our opinion, His Honour correctly decided that the statement of claim could not stand in that form. 

We accept, in the appellant’s favour, that the respondent might, in principle, be held vicariously liable for the actions of its officers (see Halsbury’s Laws of England (4th Ed) Vol 45 at 164). We also accept that a defendant in an action for malicious prosecution need not be the actual prosecutor: it is sufficient if the defendant procures or instigates the prosecution (including an indictment in the name of the Crown): see Salmond and Heuston Law of Torts (19th Ed) at 465. But it is an essential ingredient in any pleading of the tort of malicious prosecution that the defendant (by itself or by its agents) was actuated by malice: see Halsbury’s Laws of England (4th Ed) Vol 45 at 624. The issue of malice in this context is a question of fact: see Halsbury’s Laws of England (4th Ed) Vol 45 at 616. 

It is true, as the appellant’s counsel submitted, that the existence of malice may be inferred. Indeed, malice can be inferred from the absence of reasonable and probable cause for preferring a criminal charge: “Those facts which constitute the want of reasonable and probable cause may also supply evidence of malice” (Halsbury’s Laws of England (4th Ed) Vol 45 at 621). But the essential requirement of pleading remains that malice, in fact, that is, not in any merely abstract sense, must be alleged in the statement of claim. 

Once it is accepted that malice, in this specific, factual sense, must be alleged in the pleading it must follow that the statement of claim was fundamentally flawed: it failed to identify who had the malicious state of mind (see Halsbury’s Laws of England (4th Ed) Vol 36 at 17). That is, the appellant had to nominate in his pleading the individual person or persons whom he alleged to have instigated his prosecution; and, he had to further allege that they did so with malice, before any claim of the respondent’s vicarious liability could be contemplated. 

It should be borne in mind, in this connection, that in an action for malicious prosecution, the burden is on the plaintiff to prove malice and absence of reasonable and probable cause. If the defendant denies it, it is not the practice to require the defendant to give particulars of his denial (see Stapeley v Annetts [1970] 1 WLR 20; [1969] 3 All ER 1541). The appellant did not nominate an instigator. 

The statement of claim was liable to be struck out accordingly. This part of the appeal therefore fails. 

(b) Should the action have been dismissed? 

The principles in this area are well known. If a defective pleading is capable of reduction to a proper form, the court will usually, in its discretion, grant leave to amend it. If, on the other hand, the circumstances are such that the pleading should be struck out and it appears not to be possible to plead a reasonable cause of action, the court will usually, again in its discretion, refuse leave to amend and, as a consequence, dismiss the action: 

“If the court concludes that the pleading or any part of it should be struck out, the court will consider whether there is sufficient justiciable issue remaining; if there is not, the court will direct the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be” (Halsbury’s Laws of England (4th Ed) Vol 36 at 57). 

As we have held, his Honour correctly ruled that the pleading was fundamentally defective by virtue of its failure to identify who was alleged to have maliciously instigated the prosecution. Further, as has been noted, the primary Judge went on to hold, on the particulars alleged in the pleading before him, that the action should be dismissed. In so ruling, his Honour had regard to the circumstances mentioned in the passage from his reasons we have quoted above; that is, the facts (1) that the original application for judicial review was so far out of time that it was struck out; and (2) that he had, at the time of striking out the original application, given the appellant time to amend his pleading, pointing out the need for the appellant to set out an allegation of malice. 

The chronology of some of these events should be noted here. The appellant’s suspension occurred in October 1993. His dismissal was confirmed on 19 January 1994. He did not institute these proceedings until nearly five years later, in October 1998, some 18 months after his criminal trial. On 12 January 1999, the Chief Justice made orders and gave directions as follows: 

“1. The part of the Statement of Claim that refers to unfair treatment and dismissal should have been an application for judicial review, is out of time and shall be set aside. 

2. The [appellant] have 14 days to file amended Statement of Claim for malicious prosecution that shall include particulars of the malice alleged. The Court will then fix a chambers hearing. The [respondent] need not file a defence until after such hearing. Application to strike out is adjourned to that hearing.” 

The amended statement of claim was filed in January 1999, and, as we have seen, struck out by his Honour in March 1999. 

We agree with his Honour that, on the allegations in that statement of claim, the appellant could never have succeeded. The question then for us is: was His Honour in error in concluding, on the pleading, that no sufficient justiciable issue remained? 

We have found the question to be not without its difficulties. It is true that his Honour did, at one point, refer to the respondent’s affidavit evidence; and that in a proceeding under Order 8, Rule 6(1)(i), Order 8, Rule 6(2) prohibits this. But when his Honour came to dismiss the action, he did so on the face of the pleading, that is, on the basis that it (rather than the evidence) disclosed no reasonable cause of action; and that no further opportunity to re-plead should be given. 

We are not persuaded that His Honour fell into error in these respects. We take into account, in this connection, the circumstance that, before his Honour, no submission was put on behalf of the appellant that, should he decide to strike out the pleading, the appellant ought to be given yet another opportunity to re-plead. Given the long history of the matter and the lapse of time, we think that it was open to his Honour to conclude that, in his judgment, there was no sufficient justiciable issue remaining on the appellant’s pleading. In all of the present circumstances, we can see no basis for appellate intervention with respect to that discretionary judgment. No error of principle in his Honour’s approach has been demonstrated. A power to dismiss was available for use in an appropriate case. In our view, it was open to his Honour to conclude, on the face of the pleading, that, in the interests of justice, the action should then be terminated. 

The appeal must be dismissed, with costs. 

Postscript

During the course of argument, counsel for the appellant foreshadowed the possibility that his client might institute other proceedings for malicious prosecution. After the above reasons were written, counsel for the appellant provided us with a fresh draft pleading, which we have now read. Having considered the matter generally, there is nothing in the fresh document that suggests that we change anything we had previously written.