Tawake v Barton Ltd [2010] FJHC 14; HBC231.2008 (28 January 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 231/2008

Between:

ANA TAWAKE
of Navakai, Nadi, Housekeeper.
Plaintiff

And:

THE BARTON LIMITED
a limited liability company having its registered office at the PWC Office, Lautoka
and manages and operates the WESTIN RESORTS & SPA for and on behalf of the
Starwood Hotels and Resorts Limited of Singapore.
First Defendant

And:

MR. TANIELA LEVULA
of Nadi, Duty Manager of Westin Resort & Spa.
Second Defendant

And:

PC 3019 OPETI LOLO
of Nadi, Police Officer.
Third Defendant

And:

THE COMMISSIONER OF POLICE
Fourth Defendant

And:

THE ATTORNEY-GENERAL OF FIJI
Fifth Defendant

Before : Master Anare Tuilevuka

Plaintiff: Law Solutions
Defendant: Office of the Attorney-

Date of Hearing: 21st October, 2009
Date of Decision: 28th January, 2010

RULING
(Striking Out)

Introduction

[1] The 3rd, 4th and 5th defendants wish to strike out the plaintiffs writ and claim on the grounds that the statement of claim:-

a) discloses no reasonable cause of action.

b) is scandalous, frivolous or vexatious.

[2] In such applications, all that the Court is required to do is to look at the facts as pleaded.

Facts as pleaded

[3] The plaintiff was employed as Duty Manager by the first defendant, Barton Limited which is a company duly incorporated in Fiji and which operates and manages Westin Resorts & Spa ("Resort") for and on behalf of Starwood Hotels and Resorts Limited of Singapore.

[4] On the 6th of July 2008, one Annalize Marie Armstrong and her husband checked into the Resort for a holiday. They were allocated room 2109. Shortly after checking in, the Armstrongs left their room. They returned later that night at about 10.00 p.m.

[5] At their room, Ms Armstrong thought that someone had been to their room and stolen some money. She complained to a Levula who was duty manager at the Resort (the second defendant) that $1,000 worth of New Zealand Travellers Cheques and 10 x AUD4$100 bills had been stolen from her room.

[6] Levula and one Lazarus Vinod investigated the matter. They analysed the door lock reading for Room 219 and were able to ascertain that Room 219 was last opened at 2109 hours using Ving Card Key W14 and that the person who had entered Room 219 had exited at 2121 hours using the same Ving Card Key W13.

[7] They also found out that Ving Card Key W14 was allocated to the Plaintiff. She had been assigned as Housekeeper for that particular wing of the Resort where Room 2109 was located. The Plaintiff had entered Room 2109 at 2120 hours and had exited at 2121 hours after turning down the bed.

[8] Levula also searched Room 2109 but found nothing. He then alerted police. The hotel security detained the Plaintiff until the Police arrived at the Resort.

[9] The 3rd Defendant, PC3109 Opeti Lolo, arrived at the Resort with four other male police officers. They again searched Room 2109 and the Housekeeping Office but did not find the money.

[10] The Police Officers then went through the Plaintiff’s handbag, her uniform and other belongings at the Resort. They found nothing on the Plaintiff. The Police Officers then took the Plaintiff to Nadi Police Station where she was further interrogated by PC Opeti. The Plaintiff however denied all allegations levelled at her.

[11] At the station, the Plaintiff was strip searched by a female officer. Nothing was found on her. She was told to wait. The Plaintiff in fact waited all night at the police station. The interrogation resumed the next morning at about 8.00 a.m. During the interrogation, the Plaintiff kept pleading with PC Opeti to call Westin, Spa & Resort to see if there was any new development. It appears from the Statement of Claim that PC Opeti did not oblige at first. Later, he relented and tried to phone Westin but could not get through.

[12] PC Opeti then tried to contact Ms Armstrong and was able to get through to her at about 12.00 noon. It was then that Ms Armstrong told PC Opeti that she had managed to locate the missing items in one of her luggage. Upon being told that, PC Opeti immediately released the Plaintiff. That was at around 12.000 p.m. midday on 7th July 2008.

[13] The missing items were found shortly after the Police took the Plaintiff away on the evening before (06th of July 2008) (my emphasis, as pleaded in paragraph 4).

Defendant’s Submissions

[14] Mr .Green argues that the 3rd Defendant police officer owes no duty of care to the Plaintiff. He refers to a judgement of Millett J in Lonrho PLC v Fayed (No. 2) (1992) 1 W.L.R that the Court’s function in a striking out application must be limited to a scrutiny of the Statement of Claim.

[15] He also cites the judgement of Lord Browne-Wilkinson in Lonrho v Tebbitt (1991) 4 ALL ER 973 at 979, that, where a claim to strike out depends upon the decision of one or more difficult points of law, the judge should normally refuse to entertain such a claim to strike out. But if in a particular case, the judge is satisfied that the decision of the point of law as at that stage will either avoid the necessity for trial altogether, the court can properly determine such difficult point of law on the striking out application.

[16] Mr. Green then discusses the development of the law of negligence. From the early case of Heaven v Pender [1883] 11 QB503, 509 to Donoghue –v- Stevenson [1932] AC 562 to Home Office –v- Dorset Yacht Co. Ltd [1970] 2 ALL ER 294 to Anns –v- Merton London Borough Council [1977] UKHL 4; [1977] 2 ALL ER 492 to Murphy –v- Brentwood District Council [1990] 2 ALL ER 908 to Caparo Industries –v- Dickman [1990] UKHL 2; [1990] ALL ER 568.

[17] Mr. Green then highlights that in order for there to be a duty of care, three criteria must be satisfied namely foreseeability of damage, proximity of relationship between the plaintiff and the defendant and reasonableness of otherwise of imposing a duty.

[18] Mr. Green then refers to the case of Hill –v- Chief Constable of West Yorkshire [1988] 1 All ER 238 and quotes the following passage of Lord Keith of Kinkel’s judgement:

• "The question of law which is opened by the case is whether the individual member of the police force, in the course of carrying out their functions of controlling and keeping down incidence of crime, owe a duty of care to the members of the public who suffer injury to person or property through activities of criminal such as to result in liability in damages on ground of negligence to anyone who suffers injury by reason of breach of that duty"
  
• "By common law, police officers owe to the general public duty to enforce the criminal law....a Chief Officer has very wide discretion as to the manner in which the duty is to be discharged. It is for him to decide how available resources should be deployed, whether particular line of inquiry should or should not be followed and even whether or not certain crimes should be prosecuted. It is only if his decision on such matters is such that no reasonable chief of police would arrive at that someone with a n interest to do so may be in a position to have recourse to judicial review"
  

[19] Mr. Green also cites various other authorities (Clough v Bussan [1990] 1 ALL ER 431; Alexandrou –v- Oxford [1993] 4 ALL ER 328; Osamn –v- Fergusson [1992] EWCA Civ 8; [1993] 4 ALL ER 344; Ancell –v- McDermott [1993] EWCA Civ 20; [1993] 4 ALL ER 355).

[20] He then sums up that although:

"...common law lays down the obligation of enforcing the law, it does not specify the manner in which the duty is to be discharged. Hence, it follows since the Commissioner of Police has been given wide powers to investigate and prosecute, the failure to perform his responsibilities does not give rise to a private cause of action. It is less likely that a common law duty of care will be discovered".

[21] Mr. Green submits that if the Court were to impose liability, it will lead to the defensive and less effective approach to policing.

[22] I note that all the authorities that Mr. Green discusses involve a Plaintiff who has suffered a crime as a result of what is alleged to be a failure on the part of the police to investigate after receiving certain information. In those cases, public policy immunity was applied to absolve police from holding a duty of care to the Plaintiff.

[23] In the case before me, the Plaintiff has not suffered a crime as a result of alleged failure on the part of police to investigate.

[24] Rather, the Plaintiff is the person whom the police had arrested and held up for some 12 hours or so. When the police took the plaintiff in for questioning, the items which she was suspected of having stolen had already been located. The Plaintiff argues that had the police inquired with the hotel, they would have been told immediately that the items had been located.

[25] Mr. Green also discusses the principle that sections 27 and 28 of the Constitution provides the right to police to arrest, detain and search any person reasonably suspected of committing an offence. This protection is also contained in sections 19 and 21(a) of the CPC.

[26] Paragraph 33 of the Statement of Claim makes an allegation of false imprisonment under the heading "Particulars of Pain and Suffering".

PLAINTIFF’S SUBMISSIONS

[27] Counsels for the Plaintiff first discussed the law applicable citing Marsack J in Attorney-General –v- Shiu Prasad Halka (1972) 18 FLR 210. They submit that the Plaintiff has a reasonable cause of action on the pleaded facts. The 1st and 2nd Defendants are employers of the Plaintiff and were negligent in the way they had arrested and her treatment afterwards. The 3rd and 4th Defendants are negligent in their failure to properly investigate the matter thereby causing the plaintiff "untold agony when she was arrested and imprisoned for a number of hours".

[28] Counsels for the Plaintiff then state the following in paragraph 38 of their submissions:

"it is the duty of a police officer to investigate, question and possibly arrest a suspect, it is also incumbent upon them to ensure that such investigation is carried out thoroughly.

Here, it is submitted that the failure of the police office to carry out his statutory function led to the unwarranted arrest and detention of the plaintiff for a number of hours"

[29] Counsels also submitted that the Defendants have not shown any reason to support its contention that the claim is scandalous, frivolous or vexatious.

Do the Pleaded Facts Raise Issues?

[30] In so far as the Plaintiff has pleaded that the police had "failed to properly investigate the matter", I wholeheartedly agree with the authorities cited by Mr. Green that there are strong policy reasons against imposing liability against the police. However, the facts as pleaded also contain allegations of false imprisonment against all defendants – although in my view, there is a stronger case for false imprisonment against the 1st and 2nd Defendant than there probably would be against the Police. Again, this inkling on my part is not sufficient enough reason to strike out the claim as disclosing no reasonable cause of action.

[31] To reiterate, the missing items were located shortly after the Police took the Plaintiff away on the evening of 6th July 2008. Yet the Plaintiff was detained at the Police Station until 12.00 p.m. of 17th July 2008. The issues I see are as follows:

(i) the Plaintiff was first detained briefly by the hotel security whilst awaiting the arrival of the police. Was that brief period of detention lawful? If not, who should be held liable for it?

(ii) more than several hours would have passed between the time the complainant found her missing items on the evening of 6th July 2008 to the time the Plaintiff was released the next day at 12.00 p.m. Was that period of detention unlawful? Was the hotel management aware on 06th July 2008 that the items had been found? If so, was that period of unlawful detention the result of the failure by the hotel management to inform the police immediately upon their being told so that the items had been found? Did the complainant tell the hotel management that the missing items had been found? If so – when and if so – why did management not inform the police immediately?

(iii) on the same note, it was the second defendant who gave information to the police at the outset. Presumably, the police acted according to their own judgment. Can an informer such as the second defendant incur any responsibility in the tort of false imprisonment in the circumstances of the facts pleaded? In Nirmala Wati v. A. Hussain & Co. Ltd & Asim Hussain [Supreme Court 26 September 1986], Rooney J said as follows:

"The authorities I have cited above lead me to conclude that where an offence has been committed, a person who complains to the police and indicates the person or persons against whom he may have reasonable and probable cause of suspicion, need have no fear that he may thereafter be held liable in tort at the suit of any person who is arrested or detained in consequences. But, where there is no offence, there is no duty to complain to the police and thus set the law in motion. If a baseless complaint leads to the arrest and detention of another, the maker of that complaint must accept full responsibility for the actions taken on his behalf by the police".

[iv] whether the above is still good law in Fiji and if so, to what extent is it applicable in this case against the second and ultimately the first defendant? Can the above ration be restated as follows?

"where a Police informer subsequently comes upon knowledge that the Plaintiff has committed no offence, does she owe a duty to inform the police immediately? If so, should the informer incur responsibility for any detention of the Plaintiff in the hands of police subsequent to the informer acquiring knowledge that the Plaintiff has committed no offence?

[v] the police may or may not have reason to treat the Plaintiff as a suspect. They kept the Plaintiff overnight at the station. Was it necessary at all to have kept her overnight at the station after the strip search - and considering that all searches up till then had been to no avail and that the Plaintiff had denied the allegations all along? In Commissioner of Police, Fiji Police Force v Mother and her Child [2008] FJHC 183; HBA08.2008 (27 August 2008), Hickie J endorsed the view that just because the Police were entitled under section 27 (3) of the 1997 Constitution to detain a person up to 48 hours does not give police carte blanche for 48 hours to do as they will. Rather, according to Hickie J, 48 hours is the extreme time limit within which there are certain inherent safeguards on delay.

"...They have 48 hours. But it doesn’t empower the Defendants to take their time, if they can help it. The delay in release must be genuine. It goes to accountability."

[32] The above are the issues which I believe are raised by the facts as pleaded.

The Law

[33] The jurisdiction to strike out proceedings under Order 18 Rule 18 is guardedly exercised in exceptional cases only where, on the pleaded facts, the plaintiff could not succeed as a matter of law. It is not exercised where legal questions of importance are raised and where the cause of action must be so clearly untenable that they can not possibly succeed (see Attorney General –v- Shiu Prasad Halka 18 FLR 210 at 215, as per Justice Gould VP; see also New Zealand Court of Appeal decision in Attorney -v- Prince Gardner [1998] 1 NZLR 262 at 267.

[34] His Lordship Mr Justice Kirby in Len Lindon -v- The Commonwealth of Australia (No. 2) S. 96/005 summarised the applicable principles as follows:-

1. it is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided.

2. to secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action ....or is advancing a claim that is clearly frivolous or vexatious...

3. an opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination......Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.

4. summary relief of the kind provided for by O 26 r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer....... If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.

5. if, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading ......A question has arisen as to whether O 26 r 18 applies to part only of a pleading

6. The guiding principle is, as stated in O 26 r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

Conclusion

[35] I am of the view that the facts as pleaded discloses a reasonable cause of action and I therefore dismiss the application to strike out the claim.

[36] Costs in the cause. Case is adjourned to Friday 05th of February 2010 for mention. Matter to take normal course.

Tuilevuka Anare
Master

At Lautoka
26th January, 2010