Cakobau v Pacific Transport Ltd [2001] FJHC 217; HBC233.2000 (18 July 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 233 OF 2000

Between:

RATU SETEO RASAU CAKOBAU
Plaintiff

And

PACIFIC TRANSPORT LIMITED

SERU WAQA
Defendants

Mr. S.R. Valenitabua for the Plaintiff
Mr. M.B. Patel for the Defendant

DECISION

By Summons dated 15 January 2001 the plaintiff seeks the following Orders:-

"(a) that the abovenamed Defendants’ Statement of Defence in this action be struck out and judgment entered against the Defendants.

Alternatively

(b) that summary judgment be entered against the Defendants herein with damages to be assessed."

In support of this application the plaintiff relies on the affidavit sworn by him and filed herein.

I refer to the said affidavit wherein the relevant sections are items 14 to 16. Therein the plaintiff, in short, complains that the defendants had failed to file and serve their List of Documents and /or Affidavit Verifying List of documents; he also submits that the defendants have no defence to this action.

The defendants through their solicitors do not agree that there is no defence. They say that by saying he (the plaintiff) is not the ‘sole cause’ of the accident he is ‘deemed to unconditionally accept that he contributed to the accident’. The defendants say that the fact that the plaintiff was acquitted does not necessarily mean that the plaintiff was not at fault at all concerning the accident. As for discovery of documents this has been already attended to.

Determination of the issues

I have given due consideration to written submissions from both counsel. This is an application to strike out the defence or alternatively to grant summary judgment under Order 14.

On the affidavit evidence before me I find that there are triable issues. These could only be decided upon the trial of the action. In other words, the defendants have an arguable defence. The plaintiff relies heavily on the fact that he was acquitted of the charge for dangerous driving and hence there cannot be any defence to the action.

Counsel ought to be aware that the fact of acquittal is no bar to the defendant denying liability in a civil action. Negligence has to be proved by the plaintiff. Certificate of acquittal from the lower Court is not conclusive to prove guilt or otherwise of the defendants in so far as it concerns claim for damages in a civil action. Nothing short of the trial of the action in this case will establish in whom the negligence and/or contributory negligence lies.

The issue for the Court’s determination is whether on the pleadings the plaintiff ought to be granted the Orders sought.

As far as the law is concerned it is quite in order to apply under Order 14 even though Statement of Defence has been filed in this action and despite the delay in making the application. On ‘delay’ I refer to the following remarks of Jacob J. in Brinks Ltd v. Abu-Saleh and Others (No.1)(1995) 4 All E.R.65 which I consider pertinent:

"What then is the rule as regards delay and Ord. 14? It is said that the Plaintiffs have delayed so much and the case is so close to trial, that I should regard the application as an abuse of process. Now it is true that normally Plaintiffs used Ord. 14 shortly after they commence proceedings, normally, but not always, before a defence is filed. But there is nothing in the rules precluding an application at a later stage in the proceedings. I do not see why delay, of itself, should be a relevant matter. If there is no ‘defence to the claim’ or the Defendant cannot show that there is an ‘issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim’ then delay can make a difference."

In this case Statement of Defence has been filed, but it has been held that in a proper case, a summons for summary judgment under Ord.14 may be issued after the issue of summons for directions following the close of pleadings (Bath Press Ltd. v. Rose, The Times, July 13 1987. C.A.).

In opposing the application the defendants have, in my view and to my satisfaction shown cause through their Defence that the orders should not be made. There are triable issues and in these circumstances judgment cannot be entered against the defendants. In this context the following passages from the judgment in Powszechny Bank Ziwakowy W. Polsce v. Paros (1932) 2 K.B. 353 are worth noting:

Greer L.J. at p.359 said:

"It has long been the rule that in proceedings under Order XIV, what the Court, whether this Court or the King’s Bench division, has to ascertain is whether there is a triable issue. If there is, no matter how strongly the Court may anticipate that it will be decided in the plaintiff’s favour, it must order a trial."

He goes on to say that:

"All the defendant need say is that he requires the plaintiff to prove his case, and the law puts upon the plaintiff the onus of proving it. When the defendant says he does not admit the claim he need not carry the case any further than to say: ‘There is a triable issue and I want to have it tried’."

In the light of the above I am of the view that the defendants meet the threshold requirements as enunciated by Greer L.J. and hence there ought to be a trial of the issues. For further discussion on the application of Ord. 14, see my judgment in Westpac Banking Corporation and Pritam Singh s/o Ujagar Singh (Labasa Civ. Action No. 9 of 1995 - Judgment 16 Jan., 1998).

In the exercise of my discretion, on the evidence before me, for the above reasons and bearing in mind the purpose of Ord. 14 as stated in the following passage from the judgment of Parker L.J. in Home and Overseas Insurance Co. Ltd. v.
Mentor Insurance Co. (UK) Ltd. (in Liq.) (1989) 3 All E.R. 74, I refuse the orders sought by the plaintiff:

"The purpose of Ord. 14 is to enable a plaintiff to obtain a quick judgment where there is plainly no defence to the claim. If the defendant’s only suggested defence is a point of law and the court can see at once that the point is misconceived the plaintiff is entitled to judgment. If at first sight the point appears to be arguable but with relatively short argument can be shown to be plainly unsustainable the plaintiff is also entitled to judgment. But Ord. 14 proceedings should not be in my view be allowed to become a means for obtaining, in effect, an immediate trial of an action, which will be the case if the court lends itself to determining on Ord. 14 applications point of law which may take hours or even days and the citation of many authorities before the court is in a position to arrive at a final decision.

I award costs against the plaintiff in the sum of $150 (one hundred fifty dollars).

D. Pathik
Judge

At Suva
18 July 2001