Raza v Ilangasinghe [2000] FJHC 92; Hbc0412d.1998s (4 August 2000)

Fiji Islands - Raza v Ilangasinghe - Pacific Law Materials

IN THE HIGH COF FIJI

At Suva

Civil Jurisdiction

CIVIL ACTION NO. 0412 OF 1998

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Between :

MEHBOOB RAZA

Plaintiff

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JINADASA ILANGASINGHE

Defendant

Mr. A. Sen for the Plaintiff

Mr. N. Barnes for the Defendant

p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> RULING

On the 19^th of May 1998 the plaintiff, a barrister and solicitor of theigh Court of Fijii, issued a Writ of Summons personally against the defendant, a resident magistrate in the Magistrates Court, Suva, claiming damages for loss allegedly sustained by him as a result of a written Ruling delivered by the defendant on the 10^th of December 1996, in which, in response to an application to transfer an inquest (No.5/95) then pending before him and in which the plaintiff was the solicitor appearing for the deceased’s family, the defendant referred what he considered was the cptible conduct of the plae plaintiff, pursuant to Section 6 of the Magistrates Court Act (Cap.14) read with Order III r.8 of the Magistrates Court Rules, toHigh Court to be deae dealt with as appropriate.

To complete the relevant background to the present action it is necessary to briefly refer to an earlier proce instituted by the plaintifintiff in the High Court, namely, Judicial Review No.HBJ 37 of 1996 in which the plaintiff despite being earlier refused leave to apply for judicial review `as misconceived and inappropriate’ nevertheless, successfully challenged the defendant’s finding that the plaintiff had committed acts of contempt against his (the defendant’s) Court.

p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> During the course of his don in the judicial review proceeding, the Chief Justice, after referring to the chro chronology of events and correspondence said, at p.7 of his unreported ruling :

`Given the circumstances described and all the goings-on directed at the (defendant),can understand if the <(defendant’s) reactions was one of umbrage over what he probably perceived as an undeserving campaign of hostility against him.’

His lordship was also mindful that `... as regards the (judicial review) application the court is not concerned with the merits of the Ruling itself, ... (but) ... with ... the decision-making process by which the learned Magistrate arrived at his findings in the Ruling’ nevertheless, at p.10 his lordship said :

`... much as one may understand his (the defendant’s) difficulties, it was however no reason for him as a judiciudicial officer to adopt a modus operandi in his Ruling that was contrary to law.’

and at p.11 the Chief Justice said :

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`He (the defendant) breached the rules of natural justice by not givroper notice to the (plaintiff) of his intended action as encapsulated in his Ruling. Nor did (the dant)dant) accord the (plaintiff) any opportunity to defend (himself) against his findings whire clearly adverse to (the plaintiff’s) interests.‘

and finally at p.12/13 :

`It seems clear also that (the defendant’s) ruling fell foul e principle of legality ...y ... in that he did not follow proper procedures when adjudicating the issues already referred to ... No court can have jurisdiction to adjudicate a criminal cause without the charges against a defendant being first formally laid by the appropriate authorities ...’

Having highlighted those various passages, I hasten to add that the defendant’s referral order (as opposehis contempt findings) was was not directly challenged by the plaintiff nor commented upon adversely in the Chief Justice’s decision in the judicial review proceedings. Certainly no oquashing theg the same was ever made or drawn to my attention although it might be said that the basis or justification for such an order is much less apparent given the Chief Justice’ssion.

The cause(s) of action plean the plaintiff’s Statement of Claim are not entirely clear and are pleaded aded as follows (after setting out a brief chronology of events leading up to the delivery of the defendant’s ruling):

`11. &nbbsp;& At all matl matl material times the defendant in his position under the office of Resident Maaistrate was under a do exercise his powers and perform his office in the jurisdiction to which he was appointed nted in a fair and disponsionate (sic) manner.

12. & &n&ssp;;&nspp;&nsp; The Plff tiff charges and the fact is that the defendant in making the findings, orders and in the ns fo rulieliven 10 ber, was acting and did did arrivarrive at e at the dthe decisiecision delivered perniciously, maliciousliously, in breach of the aforesaid duty and negligently.’

Then follows what appears to be a host of Particulars which collectively allege numerous breacheshey the defendant of his aforesaid duty.

As for the loss and damage the plaintiff alleges he sustained as a result of the actions and conduct of the defendant para.13 particularises these as being :

`(a)  p; The Plafntiff tiff tiff sought judicial review in proceedings No.HBJ37 of 1996 to which the Plaintiff will crave leave to refer to and rely on the affidavits filed therein ;

(b)  p; &nHsp; Hap; Has been held ueld up to hatred ridicule and contempt amongst his professional peers and the public by reason of the finding of the defendant ;

(c); &nbs;&nnbp;&&nbp;;&nbpp;&nbp; Has and continuebe o be unable to accept work which is allocated before the defendant thereby sustaining loss of income and suffering further embarrassment and humiliation.’

Faced with the above pleadings State Counsel, representing the defendantes to strike out the Statement of Claim as dias disclosing no reasonable cause of action and under the Court’s inherent powers. The defendant’s avit in suin support of the motion more clearly sets out the various grounds for the application where he deposes (after setting out Section 65(1) of the Magistrate Court Act) :

5. &nnbsp; &nbs;&nnbsp; &nbbsp; Tpan>THAT I did not make the Ruling referred to by the Plaindue t maliad fanegli, or each y agrt.&nb did oot convictnvict the the PlainPlaintiff tiff nor dnor did I id I punispunish himh him.&nbs. When I ted the plaintiff tiff to the High Court, I believed that I had the jurisdiction to do so under the existing laws as far as I could understand and interpret sucs ...

6.  p;&nbbsp;&nsp; &nsp;  p; &nbbp; &nbp;

7. & &&bsp;;&nspp;&nssp; &nbsp THan>THAT the Seatement of Claim also alleges neglig...&nHoweve corcoursaction a pto prings aggr eved by a by a judicjudicial dial decisiecision ison is to a to appealppeal.&nbs. Top; To bring proceedior nfor negligence against a magistrate is, ... , an abuse of process.

8. &nbssp;&nnbsp;&nsp; &nsp; &nbssp; &&nsp;;&nsp; &nbp; thAT lai Piff makesmakes reference ... to judicial review proceedings No.HBJ37 of 1996 ... A be srom tecithe Honef Juef Ju has ly considered ered partiparticularculars (a)(d)(e)(f)(g) and (h) of the Plai Plaintiffntiffs s Statement of Claim ... and therefre res judicata and cannot now be relitigated.

 p;&nssp;  p;

9.& &nsp; &nbss;&nbbs; &nbp; &nbp; &nbssp; n>spapan/span>THe gentone e ementlaim disciplinary procedures and not by way of Writ.

10. &nbbsp; &nbbsp; &nbp; THAT Plaintife alleges he has suffered loss ... because of his inability to accept work allocated to me. All is self-inflias ..emai.emaining to carry out my duties ... regardegardless of which counsel appears before fore me.’&me.’  p;

In reply the plaintiff in his affidavit opposing the application deposes:

`8. ; ...; .e thendafendant ...t ... in bad faith, acting unjudicially and in excess of jurisdiction ... in denial of natural justice not only scandalised me and embarrassed my professional status but also found me guilty of (contempt).

9. ;&nspp;&nssp;  p; &nbp; &nbp; an>.p. I was fu ther humiliumiliated by the defendant in referring his ruling against mehe Hiurt tdealt for mpt .pan>

10.  p;&nssp;  p; &nbp; ... Sn 65on 65(1) of the Magistrate Court Act provides immunity to judicial officers ... but only if the officer acts in good faith, within jurisdiction and judicially (and not otherwise).’

There can be no doubtinm the above extracts, that the plaintiff forcefully asserts that the defendant, in publishilishing his RULING on the plaintiff’s transfer application, acted `... in bad faith, unjudicially and in excess of jurisdiction ...’ but, having said that, it is only in his written submissions that plaintiff’s counsel makes plain that `(the plaintiff’s) first cause of action is malicious prosecution and abuse of legal process’.

As for the existence of a triable issue counsel writes :

`... this is not a case where there can be examination of dnts and the Courts can decide on its merits but it involves a state of mind of the defendanendant i.e. if in fact he was malicious.’

and in rejecting the availability of the statutory defence under Section 65(1) of the Magistrates Court Act counsel states :

`... in the Judicial Review (proceedings) it has already been established that the defendant did not have any power to cite the Plaintiff for contempt of Court and did so regardless ...’

and finally, in regards to the defendant’s belief that he did have such p counsel writes :

`The alleged belief ... of the defendant cannot be determined by affidavit, but evidence has to be called to see if the action taken by the defendant was a reasonable one - su woulrate oate on the mihe mind of a reasonable man.’

The power to strike out pleadings as disclosing no reasonable cof action is so well established that detailed analysis is s is unnecessary. Suffice it to say it is a is a power to be exercised cautiously and sparingly and only where the pleadings are ex facie so defective and untenable as to be incapablsucceeding even with minor amendments.

p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Whatsmore `the function of pleadings is to give fair notice of the case which has to be met and to define the issues on which the court will have to adjudicate in order to determine the matters in dispute between the parties’ : Halsbury’s Laws of England Vol.36 para.4.

Moreover it is not the function of `particulars’ to take the place of necessary averments in the pleading, nor `to state the material facts omitted ... in order by filling the gaps to make good an inherently bad pleading’ : per Scott L.J. in Prinson v. Lloyds Bank (1941) 2 K.B. at p.75.

In the present context the question that arises is, d averments in the plaintiff’s Statement of Claim< give fair notice of a claim for `malicious prosecution’ and/or `abuse of legal process’ ?

The ` `locus classicus’ of the nature, rationale, and ingredients of a cfor damages for `mali`malicious prosecution’ can in the leading case oase of Mohammed Amin v. Jogendra Kumar Bannerjee (1947) A.C. 322 where Sir John Beaumont in delivering the opinion of the Privy Council at pp.330/331 :

`The foundation for the action (for damages for malicious prosecution) lies in abuse of the process of the court by wrongfully setting the law in motion, and it is designed to discourage the perversion of the machinery of justice for an improper purpose. The plaintiff must prove that the proceedings instituted against him were malicious, without reasonable and probable cause, that they terminated in his fav/i>(if that is possible), and that he has suffered damage ... that damage might bght be claimed in an action under three heads (1) damage to the person, (2) damage to property, and (3) damage to reputation ... the word `prosecution’ in the title of the action is not used in the technical sense which it bears in criminal law is shown by the fact that the action lies for the malicious prosecution of certain classes of civil proceedings for instance, falsely and maliciously presenting a petition in bankruptcy or a petition to wind up a company [Quartz Hill Consolidated Gold Mining Co. v. Eyre [1883] UKLawRpKQB 126; (1883) 11 Q.B.D. 674]. The reason why the action does not lie for falsely and maliciously prosecuting an ordinary civil action is, ..., that such a case does not necessarily and naturally involve damage to the party sued. A civil action whicfalse wlse will be dismissed at the hearing ... But a criminal e involvinglving scandal to reputation or the possible loss of life or liberty to the partyged does necessarily and naturally involve damage, and in s in such a case damage to reputation will be presumed.’

A fortiori where the particular charge is against a senior barrister and sond solicitor and `officer of the Court’ who has been referred to the High Court to be dealt with on a concluded finding of `contempt of court’ in breach of various provisions of the Penal Code (Cap.17) and which finding was subsequently quashed in judicial review proceedings.

As for pleading such a cause of action Halsburys Laws of England 4^th edn. (Vol.45) para.1368 clearly provides that in an action for `malicious prosecution’ :

`A plaintiff must expressly state in his Statement of Claim :

(1) that in so far as thre ca of dso they term terminateinated in d in his favour ;

(2)  p; &nnsp;&&nsp; &nbp; &nbbp;&nthat there were was no reasonable or probable cause for the defendant instituting or carrying one prongs ;n> N-GB>(3) ;&nbssp; &nsp; &nbs; &nbbp;&nthat the defe defendant was actuated by malice ; and

(4)&n;"> &bsp; nbsp; p; &nnbp; &nbp; &nbbp;&nnbp;& that hhat he has suffered damage.

Any actual financial loss must be pleaded as an item of special damage.’

[See also : the precedent pleadin Atkins Court Forms (1990 Issue) Vol.25 at pp. 333 to 348]

In light of the above, tear answer to the question earlier posed at p.8 is : `no, the averments in then the plaintiff’s Statement of Claim do not distinctly plead the essentials of an action for malicious prosecution or abuse of legal process’.

In particular, other than a brief reference t `judicial review proceedings No. HBJ 37 of 1996' in the particulars of damage aage and loss, there is no express averment that the proceedings instituted by the defendant (whatever they were) `terminated in (the plaintiff’s) favour’, this particular averment is a pleading requirement that has been settled since Whitworth v. Hall (1831) 36 R.R. 715, and, despite the use of the word `maliciously’ in para. 12 of the Statement of Claim, there is no averment at all that the defendant had `no reasonable or probable cause for instituting the proceedings’.

The necessity for this latter averment is no better illustrated than in the judgment of the House of Lords in Glinski v. McIver (1962) A.C. 726 where Lord Devlin said at p.765 :

`My Lords it is a commonplace that in order to succeed in an action for malicious prosecutio plaintiff must prove both that the defendant was acas actuated by malice and that he had no reasonable and probable cause for prosecuting.’

(my underlining)

and, in highlighting the difference between `malice’ and want of `reasonable and probable cause’, Lord Denning said at p.759 :

`... we all know that malice or improper motive is never a ground for saying there is no reasonable or proper cause. In the wordLord Mansfield ield : `from the most express malice, the want of probable cause cannot be implied’ : See : Johnstone vton.’

(also : per Viscount Simonds ibid at 744)

p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Whatsmore in Herniman v. Smith (1938) A.C. 305 the House of Lords`reasonable and probable cause’, affirmed the definition of `reasonable and probable cause’ enunciated by Hawkins J. in Hicks v.kner (1878) 8 Q. 8 Q.B.D. 167, 171 and Held :

p class=MsoNormal stal style="text-align: justify; margin: 0pt"> `It is not required of any proy prosecutor (in an action claiming malicprosecution) that he t he must have tested every possible relevant fact before he takes action. His duty is not to ascerthin whether there is a defence, but whether there is reasonable and probable cause for the prosecution. Circumstances may in wit h it is right, before charging a man with misconduct, to ask him for an explanationation ; but no general rule can be laid dond where a person is satisfied, or has apparently sufficient evidence, that he has in fact fact been cheated, there is no obligation to call on the cheat and ask for an explanation, in as much as to ask for this may only have the effect of causing material evidence to disappear or be manufactured.’

In light of the above and given the nature of the proceedings before the Honourable Chief Justice, hservation’s may not be conc conclusive on the absence or presence of `reasonable and probable cause’ on the defendant’s part in referring the matter to the High Court.

As for the so-called claim of `abuse of legal process’ the learned editor of Clerk &Lindsell on TORTS (16^TH edn.) states at para.19-40 :

`An action lies for the abuse of ordinary civil process, which differs only from anon for malicious prosecution in that the gist of it seems tems to be the special damage. Maliceabsence of reasonablonable and probable cause must be proved in the same manner in the one as in the other.’

In respect of this claim too, absence of any averment that the defe had no `reasonable or probable cause’ is equs equally fatal to the plaintiff’s Statement of Claim as is the absence of any claim for `special damage’: [per Taulford J. in Cotterell v. Jones (1851) 87 R.R. 754 at 768].

It is common ground in the present case that the plaintiff was not charged with any criminal offence nor was any sort of trial conducted against him. No convicwas entered againagainst him by the defendant albeit that there were adverse findings made, nor, was any penalty or sentence imposed. Having said that hr, the pthe particular findf contempt of court in this this case was undoubtedly criminal in nature and tenor, and, it is at least arguable that a referral to t>High Court based upon such a finding amounts to the prhe prosecution of a criminal charge as opposed to `... prosecutn ordinardinary civil action’ for which a claim for `malicious prosecution’ would not ordinarily be availan the absence of `special damage’.

As for the second `element’, there can be no doubting that the Chief Justice’s decision in b>Judicial Review proceproceedings (op.cit) tantamounts to a vindication of the plaintiff’s grievances and might even be said to have `... determined the proceedings (initiated by the defendant) in his (the plaintiff’s) favour ...’ but does that necessarily or inevitably give rise to a claim for malicious prosecution against the defendant as appears to be assumed in the plaintiff’s claim ?

It is axiomatic that the termination of court proceedings in a party’s favour does not inexorably give rise tlaim or cause of action forn for `malicious prosecution’. If this were not so, thrtsourts would be inundated with civil claims for every criminal prosecution which ended with the acquittal of an accused person or where a conviction was subsely quashed on appeal. A fri where here here the quashing is ordered in a judicial review proceeding and not in an appeal where the merits (as opposed to the process) of the decision is under consideration.

In McC v. Mullan and Others (1984) 3 ALL E.R. 908 whhe respondent successfully applied for an order of c certiorari quashing a training order of a magistrate court and after which the respondent sued the magistrate seeking damages for false imprisonment, the House of Lords in considering the ambit of an immunity from suit provision granted to magistrates unless they acted `without jurisdiction or in excess of jurisdiction’, Held :

p class=MsoNormal stal style="text-align: justify; margin: 1 36.0pt"> `(2) The quashing of a magistrate’s decision or order by certiorari for excess or want of jurisdictas not conclusive against tnst the magistrate on the issue of their civil liability for acting without jurisdiction since an excess of jurisdiction affording sufficient grounds for judicial review was not to be equated with the excess of jurisdiction for the consequences of which magistrates were personally liable.’

Lord Templeman in his judgment in the case, after examining numeruthorities including b> Sirros v. Moore (1974) 3 ALL E.R. 776, said at p.929:

`If in the course of a trial which a magistrate is empowered to uake the magistrate misbehaves or does not accord the accuseccused a fair trial, or is guilty or some other breach of the principles of natural justice or reaches a result which is vitiated by any error of fact or law, the decision may be quashed but the magistrate acts within jurisdiction.’

It is convenient at this juncture to consider the statutory immunity afforded to a magistrate in terms of Section 65(1) of the Magistrate’s Court Act (Cap.12) which the defendant plainly relies upon as providing `a complete defence to this claim’ and which reads (so far as relevant):

`No magist... acting judicially shall be liable to be sued in any civy civil court for any act done or ordered to be done by him in the discharge of his judicial duty whether or not within the limits of his jurisdiction provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of.’

It will be seen at once that a magistrate’s statutory immunity from suit in this cy differs in material respects from that conferred under ther the equivalent United Kingdom and New Zealand legislations, and extends so long as she ishe is `... acting judicially ... in the discharge of his judicial duty ...’ irrespective of `whether or not (such action or order) is within the limits of his jurisdiction’ and so long as he honestly `believed himself to have jurisdiction’ to do or to order what he did.

In similar vein Saunders J. in striking out the tiff’s Statement of Claim for want of a causecause of action where the claim was that the defendant `had acted maliciously within his jurisdiction’, said, of the meaning of the above section, in Mahesh Prasad v. Surendra Prasad Esq. and Another Lautoka Civil Action No : 330 of 1991 (unreported) at p.2:

`This means that ... a resident magistrate, cannot be sued in any civirt, if, at the time he acts, or orders an act to be done, ine, in the discharge of his judicial duty, he believes himself to have jurisdiction to do or to order the act complained of, whether he has jurisdiction in fact, or not.’

In the present case the defendant has cateally deposed :

`5. ;&nbssp;&nbsp Tsp; THAT I did ake mhe Ruhe Ruling referred to by the Plaintiff due to any malice, bad faith, negligence, or in breach of any agreement. I did not ct the tiff id I id I h him. nbsen I reported the plaintlaintiff to theo the High High Court, I believed that I had the jurisdiction to do so under the exi lawsar as I could understand and interpret such laws laws ...for suitable action to prevent suct such recurrences and safeguard the interest of the lower Court ... I further state that His Lordship the Chief Justice has not said in any of his three decisions relating to the judicial review that my reporting of the Plaintiff to the High Court amounted to an act of malice, bad faith or dereliction of my duty. With resI state that the rthe reasoning behind his lordship’s final decision appears to be that I made a procedural error.’

In light of the foregoing it might well be that Section 65(1) of the Magistrates Court Act provides a complete defence, but it is inappropriate that I should reach a concluded view on the matter in this present application and I refrain from expressing one.

Furthermore in so far as the plff seeks damages for `hatred, ridicule and contempt’ which is the ancient fort formula first used by Baron Parke in Parmiter v. Coupland (1840) 55 RR. 529 at 532 for defining a libellous publication, there is not the slightest doubt in my mind that the plaintiff’s Statement of Claim does not even begin to establish a cause of action or claim for damages for defamation and, even if such a claim could be raised by substantial amendments (which I very much doubt), nevertheless, it would be inadmissible in so far as `... neither party, witness, counsel, jury or judge can be put to answer civilly, or criminally, for words spoken (or written) in office’ : per Lord Mansfield C.J. in R. v. Skinner (1772) Lofft 55 at 56.

More particularly, in Law v. Llewellyn (190B. 487 where the Statement of Claim was struck out as disclosing no reasonable cause of action, Romer L.J. after referring to Munster v. Lamb [1883] UKLawRpKQB 106; (1883) 11 Q.B.D. 588 and Hodson v. Pare [1899] UKLawRpKQB 22; (1899) 1 Q.B. 455, said at p.491:

`... a magistrate is a `judge’ within the meaning of the rule that defamatory observations made by a judge in the course of his judicial duties, that is, when sitting as a judge, are not actionable, even though it is alleged or suggested that the observations were made without reasonable or probable cause, and maliciously.’

For the foregoing reasons I conclude that the plaintiff’s Statement of Claim as drafted, discloses no reasonable cause of action and is so inept and vague as to be incapable of amendment without wholly transforming it. Accordingly the Statement of Claim is hereby struck out.

D.V. Fatiaki

JUDGE

At Suva,

4^th August, 2000.

HBC0412D.98S