IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

C 485/2001

Tahaafe anor

v

Tea anors

Ford J
30 January 2002; 1 February 2002

Practice and procedure – strike out application based on O 8, RR 6(1)(i) and (iii) – dismissed

Liuaki Manly Tahaafe died on on 10 March 2001. The 21 year-old deceased had been working as a deck hand on the "Southwind II", a fishing vessel owned by the fourth defendant, the Friendly Island Fishing Company Limited. It was alleged that on 9 March 2001, while carrying out his duties of trying to "fin a live shark", the deceased was attacked on the left calf by the shark and he sustained serious injury to his leg. He died the following day at Vaiola hospital. The plaintiffs were the deceased's parents. They lived in the United States. They brought the action under the Fatal Accidents Act (Cap 34) and they purported to sue on their own behalf and in a representative capacity on behalf of Denisi Hou who was the deceased's "common-law wife". Initially when the writ was issued there were seven named defendants. After giving notice to the court last November, the plaintiffs applied on 25 January 2002 for leave to discontinue against the fifth, sixth and seventh defendants, being the secretary for the Ministry of Fisheries, the Ministry of Fisheries and the Government of Tonga respectively. Leave was granted accordingly. The remaining four defendants made an application to strike out the proceedings.

Held:

1. The first ground of the application was that the case was frivolous and vexatious as it was a clear case of novus actus. The only evidence available was affidavit evidence. Courts take a restrictive approach to the use of affidavit evidence in strike out applications and as such the leave to file the affidavits was refused. The first ground was not made out.

2. The second ground of the strike out application was based on an abuse of process of the court as the proper defendants should be the hospital or the government. However that argument went to the merits of the claim itself and was not an appropriate submission in the context of a strike out application.

3. The strike out application was dismissed and the plaintiff was granted leave to file an amended statement of claim.

Cases considered:
Jagroop v Soakai [2001] Tonga LR 234 (CA)
Norman v Mathews (1916) 85 LJKB 857
Turners & Growers v Westpac [1997] 1 NZLR 359
Wenlock v Moloney [1965] 2 All ER 871

Statute considered:
Fatal Accidents Act (Cap 34)

Rules considered:
Supreme Court Rules 1991

Counsel for plaintiff: Ms Helu
Counsel for defendent: Mr Garrett

Judgment

The writ and statement of claim in this proceeding were filed on 4 September 2001. The case arises out of the death of one, Liuaki Manly Tahaafe, on 10 March 2001. The 21 year-old deceased had been working as a deck hand on the "Southwind II", a fishing vessel owned by the fourth defendant, the Friendly Island Fishing Company Limited. It is alleged that on 9 March 2001, while carrying out his duties of trying to "fin a live shark", the deceased was attacked on the left calf by the shark and he sustained serious injury to his leg. He died the following day at Vaiola hospital.

The plaintiffs are the deceased's parents. They reside in the United States. They bring the action under the Fatal Accidents Act (Cap 34) and they purport to sue on their own behalf and in a representative capacity on behalf of Denisi Hou who is described as the deceased's "common-law wife". I have not heard argument at this stage as to whether Ms Hou is entitled to bring a claim under the Fatal Accidents Act.

Initially when the writ was issued there were seven named defendants. After giving notice to the court last November, the plaintiffs applied on 25 January 2002 for leave to discontinue against the fifth, sixth and seventh defendants, being the secretary for the Ministry of Fisheries, the Ministry of Fisheries and the Government of Tonga respectively. Leave has now been granted accordingly.

The present application before the court has been made by the remaining four defendants. It is an amended application to strike out the whole of the proceeding pursuant to Order 8, Rules 6(1)(ii) and (iii) of the Supreme Court Rules. Paragraph (ii) relates to "frivolous and vexatious" proceedings and paragraph (iii) relates to proceedings which are alleged to be an "abuse of the process of the court".

In the original strike out application filed on 26 September 2001, the defendants first ground had been that the claim "disclosed no cause of action" in terms of paragraph (i) of the rule but that ground has not been proceeded with.

An affidavit, sworn by the brother of the deceased, was filed in support of the defendants' original strike out application. It seemed to focus on the relationship between the plaintiffs and their deceased son and, by implication, the parent's entitlement to bring a claim under the Fatal Accidents Act. The court was anticipating that argument on the strike out application would proceed along these lines but that particular affidavit was not referred to at the hearing and instead a totally new tack was pursued.

On 24 January 2002 the defendants filed, without first obtaining leave from the court, two further affidavits, one by the first defendant and the other by an employee of the fourth defendant. The admission of these affidavits was objected to by counsel for the plaintiffs and I indicated that, rather than hold up the hearing over this issue, I would reserve my ruling and continue to hear submissions on the strike out application and then include my ruling on the admissibility of the affidavits in this judgment.

The principal submissions made by Mr Garrett in support of the strike out application are summarised in his submissions in the following two paragraphs:

"The defendants make this application to strike out at this point because they submit that there is such a clear case of novus actus interveniens -- namely the treatment received by the deceased at Vaiola hospital -- that even if all other elements for a successful action in negligence were proven (which the defendants allege is not possible), the case would inevitably fail because the chain of causation is so clearly broken.

The defendants' second ground for this application is that the action is an abuse of process of the court because the defendants are sued for an ulterior motive. The defendants contend that the proper defendant is either Vaiola hospital authorities or the Kingdom of Tonga as the responsible authority therefore. It is submitted that for reasons unknown to the defendants, the plaintiffs are reluctant to sue those parties directly, and wish, effectively to have the defendants do so for them by way of joinder."

The affidavit of the first defendant, which counsel seeks leave to rely upon, purports to describe the deceased's condition when he was transferred from the "Southwind II" to the "Sea Taxi" and the other affidavit refers to the deceased's condition when he arrived back on the wharf at Nuku'alofa before his transfer to Vaiola hospital. The affidavit from the first defendant also sets out his knowledge and recollection of the accident itself and the aftermath.

The thrust of the defendants' submission under the first head of its strike out application is that the case is frivolous and vexatious because, as counsel put it, "whatever may have occurred on the "Southwind II"; the real cause of the deceased's tragic death was the grossly negligent treatment he received at Vaiola hospital". Earlier in his submissions, Mr Garrett had said:

"Although the court has no evidence before it at this point, counsel for the plaintiff (sic) is aware that the deceased died while undergoing an operation to better repair the injury. The suspicion is that the deceased's succumbed because of an excessive dose of anaesthetic."

The principles applicable to strike out applications were recently considered by the Court of Appeal in Jagroop v Soakai [2001] Tonga LR 234 (CA) at 236:

"The principle upon which an application to strike out a claim may be entertained by the court is clear. No party should have his claim denied without a hearing in the ordinary way except where the claim is so hopeless that it cannot possibly succeed … If the (plaintiff) has a cause of action which may possibly succeed he is entitled to pursue it."

The first ground advanced by the defendants is that the proceeding should be struck out as being frivolous or vexatious because it is a clear case of novus actus. Counsel was unable to refer the court to any authority in support of that proposition and his failure to do so is not in the least surprising.

The words "frivolous or vexatious" refer to cases that are plainly and obviously unsustainable. As Lush J expressed it in Norman v Mathews (1916) 85 LJKB 857 at 859:

"There is an inherent power in every court to stay and dismiss actions or applications which are frivolous and vexatious and abusive of the process of the court … In order to bring a case within the description it is not sufficient merely to say that the plaintiff has no cause of action. It must appear that his alleged cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the court."

It was not explained to the court how it is alleged that a defence of novus actus can convert a claim based on a proper cause of action into a frivolous and vexatious proceeding. In Wenlock v Moloney [1965] 2 All ER 871 at 874, Danckwerts LJ, in reference to "frivolous or vexatious proceedings" and proceedings that are alleged to be "an abuse of the process of the court", said:

"… the commonest case was where a plaintiff was seeking to bring an action on a point which had already been decided or was obviously wholly imaginary."

It is not alleged that the present case comes within that category of proceeding.

The issues raised by the defendants are factual issues which are very much in dispute. It is not appropriate to try and determine such issues by affidavit evidence on a strike out application. As Danckwerts LJ went on to say in the Wenlock case, "… this summary jurisdiction of the court was never intended to be exercised by a minute and protracted examination of the documents and facts of the case."

Affidavits establishing that an action is frivolous or vexatious within the recognised and accepted definitions of those words, or otherwise an abuse of the process of the court would be admissible but these days the courts tend to take a restrictive approach to the use of affidavit evidence in strike out applications. With reference to the equivalent procedural rules in New Zealand, the High Court has said:

"The court could only have regard to defendant evidence which was uncontradicted, uncontroversial, consistent with the pleading in question and interpreted in the light most favourable to the party against whom it is filed." Turners & Growers v Westpac [1997] 1 NZLR 359.

This court has tended to take a slightly more flexible approach to the use of affidavit evidence but nevertheless the New Zealand authority does provide a useful guideline in this area of the law. In any event, the evidence contained in the affidavits which the defendants seek to introduce in the present case goes well beyond the accepted parameters and leave to file the affidavits is refused. The first ground has not been made out. The issues of fact raised in the statement of claim can only be properly determined by hearing oral evidence.

The second ground of the strike out application is based on an abuse of process of the court. Commenting on the English equivalent of our rule, the learned authors of the Supreme Court Practice (1991) para 18/19/17 state that the term "abuse of process of the court":

"… connotes that the process of 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."

Civil Procedure 2001 Vol 1 (the White Book) (para 3.4.3) states:

"Although the term 'abuse of the court's powers' is not defined in the rules or practice direction, it has been explained in another context as 'using that process for a purpose or in a way significantly different from its ordinary and proper use'," reference is then made to Attorney-General v Barker, The Times, March 7, 2000.

In the present case, the defendants submitted that the claim is an abuse of the court's process because the proper defendant should be Vaiola hospital or the government. As counsel put it, "why should they (the defendants) be forced into the expense of been involved in a case in which it is so clear that they are not responsible". That argument goes to the merits of the claim itself and is not an appropriate submission in the context of a strike out application based on abuse of process of the court.

Whilst the statement of claim is, adopting the expression used in the Wenlock case, "long, inartistic and wandering" consisting as it does of some 111 paragraphs, the claim itself is not an abuse of the process of the court.

The strike out application is dismissed with costs to the plaintiff.

Consequent upon the discontinuance of the claim against the fifth, sixth and seventh defendants, the plaintiff is granted leave to file an amended statement of claim. Hopefully, counsel will now take the opportunity to reflect further on the pleadings and in the amended statement of claim present the allegations in a more focused manner.