Khan v Begum [2004] FJHC 430; HBC0153.2003L (30 June 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0153 of 2003L

BETWEEN:

MOHAMMED NASEER KHAN
f/n Mohammed Aziz Tayaib Khan
Plaintiff

AND:

ZABEENARA CHAND BEGUM
f/n Jan Mohammed
Defendant

Counsel for the Plaintiff: Dr. Sahu Khan
Counsel for the Defendant: Mr. S. Maharaj

Date of Hearing & Ruling: 30 June 2004

EXTEMPORE RULING

This matter comes before the court by way of an Inter-partes Summons filed on 26^th of May 2004 on behalf of the defendant. That Summons seeks that the plaintiff’s action be struck out on the grounds that it is: -

(i) Scandalous, frivolous and vexatious, or
(ii) An abuse of the process of this Honourable Court, or
(iii) Embarrassing and will prejudice and delay fair determination of application by the defendant in the Nadi Magistrate’s Court Divorce Action No. 8 of 2001.
(iv) Does not disclose any reasonable cause of action.

In addition, a stay was sought and costs were sought in the sum of Five Thousand Dollars ($5,000.00).

The application is made pursuant to Order 18 Rule 18 of the High Court Rules and also pursuant to the inherent jurisdiction of the court.

Background

The history of the matter appears from the affidavit filed on behalf of the defendant being sworn on 23^rd of May 2003 and also an affidavit before the court filed on behalf of the plaintiff and sworn by the plaintiff on the 17^th of July 2003.

Whilst the background is fully set out in those documents, it might perhaps be convenient to summarize it as follows.

The applicant and the respondent were both born in Fiji, married in Fiji and went to Australia. They had two children of the marriage. They acquired property in Fiji and property in Australia. The children were born on the 17^th of November 1986 and the 1^st of December 1990. The marriage broke down, following which, the husband commenced proceedings in the Nadi Magistrates Court by way of Divorce Petition. The wife at that time was a resident of Australia.

An order for substituted service was obtained and it appears the wife was not served with the application. Orders were made by the Nadi Magistrate’s Court dissolving the marriage and with respect to the children.

The wife subsequently commenced proceeding in the Sydney Registry of the Family Court of Australia seeking settlement of property and orders with respect to the children.

The proceedings in the Family Court of Australia was contested by the husband and judgment was delivered by Lawrie J. on 21^st November 2002. Counsel informed the court that no appeal has been lodged with respect to the orders made consequent upon that judgment.

The applicant’s wife subsequently made application in Nadi Magistrates Court to vary or modify the orders previously made with respect to access to the children. Those orders were modified on an interim basis in March 2003. Counsel informed the court that further orders were made in June 2003. Counsel further informed the court that the children, are by arrangement, now residing as to the eldest child with the mother and the younger child with the father. I note that the elder child will turn 18 in November of this year and the younger child 14.

This Application

It would appear that whilst the proceedings were pending before the Nadi Magistrates Court to vary or modify the access arrangement with respect to the children that the husband commenced these proceedings before this court, that is, these proceedings were commenced on the 5^th of May 2003.

The relief sought in these proceedings might be summarized as a declaration that the orders of the Family Court of Australia are null and void and unenforceable against the husband. Further a declaration that the orders of the Family Court of Australia cannot be enforced against the husband in Fiji and further a declaration that the Magistrates Court at Nadi has no power or jurisdiction to make orders therein or modifying orders it previously made with respect to the custody and access of children. An order is sought restraining the defendant from bringing any further action or proceedings with respect to the divorce action or the children of the marriage.

As I indicated earlier, the application is made under Order 18 Rule 18 of the High Court Rules and under the inherent jurisdiction of the court. Order 18 Rule 18 provides and I quote:

“(1) The court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that –

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

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

(c) it may prejudice embarrass of the late affair 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 they case may be.”

Quite apart from the jurisdiction conferred by the Rules to strike out frivolous and vexatious pleadings and action where the cause of action is not revealed, the court also has a separate inherent jurisdiction, which is, relied on to control proceedings and to prevent an abuse of its process. Under the inherent jurisdiction, the court can, as it can under the provisions of the Rules, stay or dismissed proceedings which are an abuse of process as being frivolous or vexatious or which fail to show a reasonable cause of action.

It is said that the fact the court has this inherent jurisdiction is one of the characteristics which distinguishes the court from the other institutions of the government. It is a jurisdiction, to be exercised summarily and as I have said, is in addition to the jurisdiction conferred by the Rules.

It is not in issue that if a party relies solely upon Order 18 Rule 18 then no evidence may be considered by the court in making its determination but that limitation does not apply where the applicant relies upon the inherent jurisdiction of the court.

The issues for consideration by the court are the same whether pursuant to the Rules or in reliance of the inherent jurisdiction. They might be summarized as to whether there is a reasonable cause of action. A reasonable cause of action has been held to be a cause of action with some chance of success when only the allegations on the pleadings are considered - Drummond-Jackson v British Medical Association [1970] WLR 688.

Both the rules and the inherent jurisdiction rely upon the pleadings or the action being the frivolous and vexatious. Frivolous and vexatious was considered by Lindley LJ in Attorney General of Duchy of Lancaster v L & N W Railways Co. [1892] UKLawRpCh 134; [1892] 3 Ch 274 at 277 as being obviously unsustainable and an abuse of process: -

“Connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent improper used 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 - Castro v Murray [1854] EngR 673; [1875] 10 Ex. 213.

The law governing the considerations whether it be pursuant to Order 18 or the inherent jurisdiction is well settled. Lindley MR in Hubbuck v Wilkinson [1889] 1 Q.B. 86 at page 91 said: -

“It is only in plain and obvious cases that recourse should be had to the summary process under Order 18 Rule 18(1) of the Rules of the High Court. This was affirmed in Kemsley v Foot & Ors [1952] AC 345.”

The caution that should be exercised by the court when considering application of this type, was again highlighted by Mr. Justice Pathik in Hemant Kumar v Suresh Kumar & Ors [2003] Civil Action No. 33 of 2003 where His Lordship in applying Attorney General v Shiu Prasad Halka [1972] 18 FLR 210 at 215 said and I quote: -

“I think it is definitely established the jurisdiction to strike out proceedings under Order 18 should be very sparingly exercised, and only in exceptional cases. It should not be exercised where legal questions of importance and difficulty are raised.”

The issues have also been considered by the High Court of Australia from time to time and in Dey v Victorian Railways Commissioners 78 CLR 62 at 84 Latham CJ said: -

“But it is argued that if a case involves any question of difficulty the summary procedure of dismissing an action of vexatious should not be applied. In the present case there is nothing frivolous about the action, bit if a court is of opinion that the plaintiff cannot succeed there is every reason for protecting a defendant from vexation by the continuance of proceedings which must be useless and futile. The contention of the appellant really is the procedure under Order XIVA or Order XXV., rule 4, or under the inherent jurisdiction of the court for dismissing an action of any early stage, should be used only in easy cases. I do not agree with this view where there is opportunity for full argument and full consideration of the question raised. In the present case the argument before the learned judge was evidently a thorough argument. It is true that it has often been held that the power of the court created by the Rules mentioned or existing under the inherent jurisdiction of the court should not be exercised except in clear cases...

It was said in Hubbuck’s case that this method was appropriate to cases requiring argument and careful consideration, and that the summary procedure under Order XXV., rule 4, was appropriate only to cases which were plain and obvious, so that any master or judge could say at once that the statement of claim was insufficient, even if proved, to entitle the plaintiff for what he asked...

If, as a result of argument, the court reaches a clear decision which could not be altered by any evidence which could be adduced at the trial, then it is proper in the interests of both parties to dismiss the action instead of allowing the parties to incur completely useless expense.”

Conclusion

The pleadings are contained in 22-numbered paragraphs and it might well be argued that pleadings do not apply with the Rules of the Court. They are, in many instances, an attempt to put evidence before the court rather than pleading the case.

Paragraphs 14 and 15, which relate to the Family Court of Australia Orders and for which, a declaration is sought that they are null and void and unenforceable, are statements of contention rather than pleadings.

Similarly, paragraphs 16 and 17, which relate to the Nadi Magistrates Court’s proceedings, to which also a declaration is sought and that court has no jurisdiction to make those orders, are again statements of contention in mind.

It was submitted by counsel that the basis upon which the declaration was sought, with respect to the Nadi Magistrate’s Court proceedings, was that the magistrate had no capacity to make an order varying or modifying an order for access previously made. When asked for authority for the proposition counsel could not assist. It would appear that section 87 of the Matrimonial Causes Act gives the court the very power to that which it was submitted, it doesn’t have and the very power that makes it impossible for the court to grant the declaration sought.

The Orders sought with respect to the restraining of the defendant from bringing any further proceedings with respect to the divorce and/or the children of the marriage is clearly an order that would not be made as it is against public policy.

Notwithstanding the very high standard and precautionary test that the authorities imposed on application such as this and in applying those authorities to the facts and submissions in this matter, I am of the opinion that the application should be granted.

I am of the opinion that the proceedings are vexatious and are an abuse of process. No right of appeal has been exercised with respect to the proceedings commenced in the Family Court of Australia and now it is thought that this court can make an order declaring the orders made by that court to be null and void is beyond comprehension.

As I have said earlier, these proceedings were commenced prior to the conclusion of the proceedings in the Nadi Magistrates Court. Counsel advises today that an appeal has been lodged with respect to the final orders made in those proceedings. That appeal would appear to be the proper cause for a resolution of the issues as between the parties.

Whilst I have not dealt with every clause of the statement of claim, I have dealt with those that appear to be the dominant clauses with respect to the relief sought by way of the declarations and orders. Accordingly, the Orders of the Court will be:

1. Statement of Claim is struck out.

2. The plaintiff to pay the defendant’s costs assessed in the sum of Three Thousand Dollars ($3,000.00).
   

JOHN CONNORS

JUDGE

AT LAUTOKA

30 JUNE 2004