Young v Fijian Teachers Association Executives [2005] FJHC 511; HBC0016d.2005s (7 September 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0016 OF 2005

Between:

TED YOUNG, TOKASA VEITAYAKI, RUPENI TAMANI,
VASITI RARATABU, JESE PARETI, MEREWAIRITA
NAWAMEA, DAIANA TAGIVETAUA, LEPANI BATABA,
MICHAEL KOROI in their capacities as Board members of the FTA Welfare Society and trading and operating as the FTA WELFARE SOCIETY
Plaintiffs

and

FIJIAN TEACHERS ASSOCIATION EXECUTIVES
Defendant

Mr. G.O’Driscoll for the Plaintiffs
Mr. G. Leung for the Defendant

Date of Decision: 7.9.05

DECISION

This is the defendant’s (Fijian Teachers Association Executive’s) application by summons dated 13 April 2005 for the following Orders:

1. That the whole of the Plaintiffs’ Statement of Claim be struck out on the ground that it is frivolous or vexatious or in the alternative it is otherwise an abuse of the process of the court.
   
2. That the Plaintiffs pay the Defendant’s costs of this application.
   
3. Such other orders that this Honourable Court deems just.
   

The application is made pursuant to Order 18 R18 (1)(b) and (d) of The High Court Rules 1988 and pursuant to the inherent jurisdiction of this Court.

On 19 May 2005 hearing was set down for 9 June 2005. The plaintiffs’ counsel failed to appear to argue the matter. The hearing proceeded in his absence.

Apart from oral submissions Mr. G. Leung for the applicant/defendant handed in his written submissions.

The plaintiffs have brought this action as Board Members of FTA Welfare Society and trading as and operating as the FTA Welfare Society (the ‘Society’) against the defendant (the ‘FTA’).

Background

The plaintiffs commenced this action by way of Writ of Summons dated 14 January 2005 against the defendant.

They sought relief such as injunction and declaration that the defendant had no power to sack them.

The locus of the plaintiffs is clearly stated in the affidavit of Tevita Koroi, the President of FTA sworn 13 April 2005.

Mr. Leung made his submissions on the application based on the contents of the said affidavit. Mr. O’Driscoll for reasons best known to him has failed to appear to present his case.

The situation based on the evidence in the submission is as follows (as stated in Mr. Leung’s submission at p2-3):

The Affidavit of Tevita Koroi at paragraph (4) clearly explains how the Fijian Teachers Association Welfare Society (FTAWS) constitution provides for alternately electing members of the Board of FTAWS. In paragraph (5) it is clearly stated that there is no official record of any elections, as prescribed, conducted in 2004 and the proceedings of the 2004 AGM have not been passed or approved as the 2005 AGM has not been conducted.

Consequently, the appointments of all the named Plaintiff Board Members expired on the 7^th January 2005. Effectively this means that the named Plaintiffs did and do not have any standing to file this action.

The Statement of Claim is also frivolous and vexatious as the named Plaintiffs have no authority and standing in a representative action for an unincorporated body.

The Affidavit of Tevita Koroi annexes a letter from one of the Plaintiffs, Ms. Merewairita Nawamea (See annexure marked “TK3”). She has disassociated herself from any actions taken against the Defendant. She has also confirmed that she is not party to the Statement of Claim instituted by the former Board and does not support it. Furthermore, according to Ms. Merewairita Nawamea, another Plaintiff, Ms. Tokasa Veitayaki told her that she was not consulted about the present law suit; therefore, her permission was not obtained in advance before the proceedings were filed.

Another name which appears as a party to the claims made is Ms. Vasiti Raratabu. She is not a financial member of the FTA, and withdrew in 2003. Also exhibited and marked as annexure “TK4” is proof that Mr. Ted Young has resigned from his position as executive member of the Fijian Teachers Welfare Society (FTAWS).

Paragraph (10) of the Affidavit of Tevita Koroi points out that FTAWS unlike the FTA, is not a legal entity as recognized under the Trade Unions Act nor is it a body corporate, and as such cannot be a proper Plaintiff.

Consideration of the application

The Court is empowered to strike out an action which is scandalous, frivolous or vexatious or, inter alia, which is otherwise an abuse of the process of the court.

The powers are discretionary and should be exercised only in plain and obvious cases.

The status of FTA Welfare Society is shaky and does not appear to have the locus to bring and continue the action. One of the members Vasiti Raratabu is no longer a financial member and withdrew in 2003. One other member Ted Young has resigned as executive member. Even the appointment of Board members expired on 7 January 2005.

In these circumstances the plaintiffs should think twice before proceeding with this action.

In view of the present status of the society, it would be an abuse of the process of the Court for them to proceed any further.

On abuse of process the following passage from Halsbury’s Laws of England 4^th Ed. Vol. 37 para 435 is apt showing the circumstances in which the abuse of the process arises:

“An abuse of the process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or more simply, where the process is misused. In such a case, even if the pleading or indorsement does not offend any of the other specified grounds of striking out, the facts may show that it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or indorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court.”

The facts of this case are such that it would definitely be an abuse of the process of the Court for the plaintiffs to proceed with the action.

By ‘frivolous or vexatious’ are meant ‘cases which are obviously frivolous or vexatious or obviously unsustainable’ (per Lindley L.J. on Attorney General of Duchy of Lancaster v L. & N.W. Ry [1892] UKLawRpCh 134; [1892] 3 Ch 274, p.277).

On the facts as outlined this clearly would be a case which is ‘frivolous and vexatious’.

For these reasons the defendant’s application to strike out the writ of summons is allowed with costs in the sum of $300.00 to be paid within 14 days.

D. Pathik
Judge

At Suva
7 September 2005