IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 212 of 2000

BETWEEN:

TIMBER RESOURCE MANAGEMENT LIMITED
Plaintiff

AND:

THE MINISTER FOR INFORMATION
THE MINISTER FOR AGRICULTURE, FISHERIES & FORESTS
THE ATTONERY GENERAL OF FIJI
STAN RITOVA
TONY SINGH AND SANDEEP PATEL T/A "THE FIJI SUN"
Defendants

Counsel: Mr. I. Fa for the Plaintiff.
 Mr. A. Pratap for the 1st, 2nd & 3rd Defendants. 
 Patel Sharma & Associates for the 5th Defendant. 

Date of Judgment: 22nd November, 2011

RULING

[1]	The 1st, 2nd and 3rd defendants in this action filed summons to strike out the plaintiff's claim against them on the basis that it is scandalous, vexatious or frivolous, or it is otherwise an abuse of the process of the Court.

[2]	The 5th defendant also filed summons to strike out the plaintiff's statement of claim on the same basis.

[3]	In support of the summons, an affidavit was filed by Ajay Singh, the Assistant Secretary (Litigation) in the Office of the Solicitor General.

Background to the case

[4]	The plaintiff instituted this action against the 1st to 6th defendants by way of writ of summons for libel against the defendants, claiming that the plaintiff company, Timber Resources Management Ltd has been defamed in its credit and reputation due to an article published in the Fiji Sun on 4th of April 2000, headed "The real facts about the Mahogany Deal".

[5]	The plaintiff claims that the words and statements complained of in their natural and ordinary sense bore defamatory meaning of the plaintiff, which adversely affected its reputation. 

[6]	On 26.05.20000, summons to strike out was filed by the defendants on the basis that the plaintiff's statement of claim discloses no cause of action. On 25.07.2001, Justice Burns delivered his ruling dismissing the summons to strike out.

[7]	On 07.08.2001, summons for security for costs was filed by the defendants and court ordered the plaintiff to pay $ 2000.00 as security for costs.

[8]	On 19.06.2002, the 1st 2nd and 3rd defendants again filed summons to strike out the plaintiff's claim against them on the basis that it is scandalous, vexatious or frivolous or it is otherwise an abuse of the process of the Court. The 5th defendant also filed summons to strike out the plaintiff's statement of claim on the same basis.

[9]	In support of the summons, an affidavit was filed by Ajay Singh, the Assistant Secretary (Litigation) in the Office of the Solicitor General. Bhavna, a legal executive of the 5th defendant's solicitors, also filed an affidavit in support of the 5th defendant's summons to strike out.

[10]	The 5th defendant's affidavit, when perused shows that it is based mainly on the fact that the plaintiff company failed to pay the security for costs ordered by the court and it has a superficial existence and had not commenced with its business operations and to date exists in name only.

[11]	It is further stated that since the filing of the writ and its statement of claim the plaintiff company has failed to take any further steps in expediting or prosecuting its claim.

[12]	In the affidavit in support, the deponent Ajay Singh, states that the plaintiff company was formally called Titian Investment Limited which was incorporated under the Companies Act Cap 247 as a limited liability company. The name of the company was changed as Timber Resources Management (Fiji) Ltd on 26.03.1999.

[13]	It is further stated that no company by the name of Timber Resource Management (Fiji) Ltd has been registered in Fiji under the Companies Act. Also, it is stated that there is no business name TRM registered in Fiji under the Registration of Business Names Act. A copy of a Memorandum dated 18.05.2000 from the Registrar of Companies confirming the above marked as AJ 7 is annexed to the affidavit.

[14]	Furthermore, it is stated that the plaintiff company did not comply with the order for security for costs. 

[15]	Opposing the defendants' summons, Viliame Bale one of the directors of the plaintiff company filed an affidavit. In that affidavit, it is admitted the change of the name of the company. It is further deposed that the law firm who sold the company, had not filed the necessary documents to reflect the changes, its new solicitors had been advised to attend to these matters and the shares in the name of Maria Sloan and Nina Seru do not belong to them personally but held in trust for the land owners.

[16]	It is further stated that the plaintiff was not named in the documents referred to in the affidavit of the defendants because it was not formed then, and the plaintiff company was to be the local and operational arm of TRM LLC.

[17]	Furthermore, it is stated that TRM (Fiji) Limited and the plaintiff are one and the same and this was to be effected by a name change at the appropriate time.

Relevant legal principles

[18]	Striking out pleadings and indorsements are provided in Orde18 Rule 18 as follows:

i.	18 (1). The Court may at any stage of the proceedings order to be struck out or amended any pleading or indorsement of any writ in the action, or anything in any pleading or in the indorsement, 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 or delay the fair trial of the action; or

(d)	It is otherwise an abuse of the process of the court;

(e)	and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

[19]	The caution that should be exercised when, considering applications of this nature was highlighted in following authorities.

[20]	'Only in plain and obvious cases that recourse should be had to the summary process under O. 18 R.18(1)' Hubbuck v. Wilkinson [1889]1 QB 86.

[21]	This rule can only be invoked when the claim is on the face of it 'obviously unsustainable.' Attorney General of Duchy of Lancaster v. L.N.W.Ry Co [1892] 3 Ch 274.

[22]	The Fiji Court of Appeal in National NBF Finance (Fiji) Ltd v. NemaniBuli Civil Appeal No 57 0f 1998 expressed the principles as follows:

 'The law with regard to striking out pleading is not in dispute. Apart from truly exceptional cases the approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be provided if a legal issue can be raised on the facts as pleaded then the Court will not strike out a pleading and will certainly not do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention...'

[23]	As Lindely L.J correctly pointed out in Att. Gen. of Duchy of Lancaster v. L. & N. W. Ry [1892] 3 Ch 274 at 277, frivolous and vexatious mean cases, which are obviously frivolous and vexatious or obviously unsustainable.

[24]	However, in the instant case, when the plaintiff's claim against the 3rd defendant is considered it does not seem obviously frivolous and vexatious. It has some very important issues that cannot be disposed summarily.

[25]	In Burton v. Shire of Bairnsdale (1908) 7 C.L.R 76 at 92 O'Conner J discussed the above issue as follows:

"Prima facie every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals and the inherent jurisdiction of the court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed."

[26]	The jurisdiction to strike out proceedings under Order 18 should be very cautiously exercised. Following authorities would also throw light as to how the court should approach in exercising its jurisdiction, under the aforesaid provision.

[27]	In Kampta Prasad v. Home Finance Company Ltd & Rajendra Singh [2003] HBC 116D/02S Jitoko J stated as follows:

'Where court finds strictly on the pleadings there is no reasonable cause of action, it does not deem it necessary to proceed to consider the merits or otherwise of whether the action is scandalous, frivolous or vexatious, or whether it is otherwise an abuse of the process of the court.'

[28]	Care Zeiss Stoffung v Rayner & Keder Ltd (No 3) [1970] Ch. 506.

The power given to Court to strike out any pleading or any part of a pleading under this rule is not mandatory but permissive, and confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending plea.

[29]	Steamship Mutual Association Ltd v. Trollope and Colls (city) Ltd (1986) 33 Build. L.R.77 C.A 

"The issue of a writ making a claim which is groundless and unfounded in the sense that the plaintiff does not know of any facts to support it an abuse of process of the court and will be struck out.

[30]	It is to be noted that the defendants' earlier application to strike out the plaintiff's claim, dismissed by Justice Burn had been filed on the basis that it disclosed no cause of action. In his Ruling dated 25.07.2001, Justice Burn very clearly stated as follows:

"It is also alleged that although the plaintiff claims the statement was published maliciously there is no material in the statement of claim to support an allegation that the defendant did not really entertain the opinions expressed in the comments or knew that they were unjust so as to amount malice."

As to this submission it must be observed that the application is made under Order 18 rule 18(1) (a) and that under rule 2 no evidence shall be admissible of an application which alleges a statement of claim discloses no reasonable cause of action. In my judgment the defendants' submission goes perilously close to infringing Order 18. The question whether or not the words constitute fair comment cannot be decided at this preliminary stage but only after the court has heard all the evidence. Thus, in Control Risks Limited v. New English Library Limited (1989) 3 All.E.R.577, Lord Justice Nicholls stated:

"Whether the words complained of in the present case included a fair comment, recognizable as such on a matter of public interest is a question to be decided by the jury at trial" 

[31]	In conclusion, justice Burn held:

"To summarise, I am of the opinion that the words complained of discloses a prima facie case for the plaintiff and there is no justification for striking out the statement of claim at this stage. The application is therefore, dismissed, pleadings are to take their normal course, and costs will be in the cause."

[32]	In considering the Ruling given by Justice Burn, it is apparent that he satisfied that there was a prima facie case for the plaintiff. In the present case, since it was decided that there was a prima facie case for the plaintiff, it cannot be argued that the plaintiff's action is frivolous or vexatious. 

[33]	Hence, it is difficult to understand how the present summons can be considered to be of any merit. What the defendants have attempted to do is to re-litigate the matters which were decided by Justice Burn on an earlier occasion. Had the defendants been aggrieved by the Ruling of Justice Burn they could have appealed the said Ruling. 

[34]	Therefore, the procedure adopted by the defendants, in my view is a clear instance of abuse of process, which should not be encouraged at all. When the defendants failed to appeal the ruling delivered by Justice Burn they cannot bring another application similar to the former.

[35]	The term 'abuse of process' is encapsulated in the following extract from Walton v. Gardiner (1993) 177 CLR 378 as follows:

'Abuse of process includes instituting or maintaining proceedings that will clearly fail, proceedings unjustifiably oppressive or vexatious in relation to the defendant, and generally any process that gives rise to unfairness.'

[36]	The term 'abuse of the process of the court' is also explained in White Book as follows:

This term connotes that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent the improper use of its machinery, and will, in a proper case, summarily prevents its machinery from being used as a means of vexation and oppression in the process of litigation. (Castro v. Murray (1875) 10 Ex.213; Dawkins v. Prince Edward of Saxe Weimar; Willis v. Earl Beauchamp (1886) 11 P. 59, PER Brawn L.J. p. 63)

[37]	The defendants further submitted that the plaintiff's reputation has not been defamed and therefore the action is unsustainable on the basis that the plaintiff was not affected in its trading reputation. It was further submitted that the defendants disputed the fact that the plaintiff company had been identified by the disputed article in Fiji Sun.

[38]	However, it must be emphasised that the facts that whether the plaintiff's reputation has been damaged, whether the plaintiff was clearly identified by the particular article published in the news paper or whether the essential elements for the offence of defamation were proved shall not be determined by the summary procedure.

[39]	Merely because it appears that the plaintiff's action against the defendants is weak that does not permit the court to strike out the same unless it is plain and obvious that the said action is frivolous or vexatious and therefore, is unsustainable.

[40]	So long as the statement of claim or the particulars disclose some cause of action, or raise some question fit to be decided by a judge or a jury the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out. See Davey v. Bentinck [1893] 1 QB 185. 

[41]	In this matter, court does not possess all the requisite material to reach a definite and certain conclusion since the evidence is untested. Therefore, to determine the said issues, examining the witnesses is of a paramount requirement. Hence, considering the nature of the plaintiff's action, this is not the most appropriate stage to determine the success of its claim. 
[42]	Upon consideration of the above facts, I dismiss the defendants' summons to strike out. 

[43]	Costs shall be in the cause.

Pradeep Hettiarachchi
JUDGE

At Suva
22nd November, 2011.