Chand v Deo [2005] FJHC 569; HBC0318.2004L (12 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0318 OF 2004L

BETWEEN:

ARVIND CHAND
f/n Muni Chand
Plaintiff

AND:

RATTAN DEO
f/n Bal Kissun
1st Defendant

AND:

MAHEND INVESTMENT LIMITED
2nd Defendant

Counsel: Mr.S. Maharaj for the plaintiff
Ms. M. Muir for the defendants

Date of Hearing: 12 August 2005
Date of Ruling: 12 August 2005

EX TEMPORE RULING

This matter comes before the court by way of a Summons dated the 9^th March 2005 filed on behalf of the defendants wherein the defendants seek that the plaintiff’s Writ of Summons be struck out pursuant to Order 18 Rule 18, in particular, the defendants seek that the plaintiff’s Writ of Summons be struck out as it is frivolous and/or vexatious and that it is an abuse of the processes of the court.

The background to the claim appears to be that the plaintiff was employed by Shop N Save Supermarket when he was injured on the 10^th August 2002 whilst using a meat slicing machine.

It is submitted on behalf of the 1^st defendant that the 2^nd defendant had purchased the business trading as Shop N Save Supermarket at some earlier point in time and that accordingly the claim against the 1^st defendant must fail.

The plaintiff has discontinued the proceedings against the 1^st defendant and did so after the defendants filed the statement of defence acknowledging that the 2^nd defendant was in fact the employer of the plaintiff at all relevant times. It is argued on behalf of the 1^st defendant that the plaintiff did not act in a timely manner in discontinuing the proceedings and that necessitated the summons now before the court being filed.

There has in the past developed a culture, in this court in particular, of seeking to take preliminary points such as this rather than waiting for the matter to come to trial and being argued on the merits of the pleadings as they then exist and the evidence that might be placed before the court. Be that as it may, the basis upon which actions can be struck out pursuant to Order 18 Rule 18 are indeed limited and the times at which it is appropriate to exercise the rights under that order are indeed limited.

It is submitted as I have said, that the claim is frivolous and vexatious. In Attorney General of Duchy of Lancaster v L & N W Railways Co. [192] 3 Ch. 274 at 277 Lindley LJ said:

“That it 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.

Lindley MR in Hubbuck v Wilkinson [1889] 1 Q.B. 86 at 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.”

The caution that should be exercised by the court when considering applications 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:

“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.

I am not satisfied that this is such an exceptional case.

Whilst it is submitted on behalf of the defendants that the plaintiff pleading in the alternate under the Workmen’s Compensation Act is statute barred and should be struck out, I note that the Summons does not seek to strike out any particular part of the Writ of Summons but seeks to strike out the Writ of Summons in its entirety. In the circumstances therefore, the Summons dated the 9^th March 2005 is dismissed.

So far as the question of costs is concerned, I am of the opinion that the plaintiff is entitled to his costs with respect to the Summons. As to whether the 1^st defendant is entitled to costs by virtue of the proceedings being discontinued against that defendant after the Summons was filed, I have some doubt. One matter that concerns me is to whether the 1^st defendant is still in fact registered as the owner of the business name Shop N Save Supermarket as that would materially impact upon any orders I might make with respect to costs. I propose to adjourn the issue of cost and to enable the parties to file such further material as they may wish on that issue.

The plaintiff to file any affidavit as to costs within 7 days. The defendant to file within 14 days. Matter is now adjourned to 9 September for hearing as to costs and the action is referred to Deputy Registrar for mediation.

JOHN CONNORS
JUDGE

At Lautoka
12 August 2005