Prakash v Australia and New Zealand Banking Corporation Ltd [2012] FJHC 1114; HBC242.2010 (18 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 242 of 2010

BETWEEN:

AMRIT PRAKASH of Rarawai, Ba, School Teacher.
1ST PLAINTIFF

AND :

ANIL PRAKASH of Rarawai, Ba, Labourer.
2nd PLAINTIFF

AND:

AUSTRALIA & NEW ZEALAND BANKING CORPORATION LIMITED having its head office at Victoria Parade, Suva.
DEFENDANT

BEFORE : Master Deepthi Amaratunga
COUNSEL : Mr. Daveta of Nacolawa & Daveta Lawyers for the Plaintiff
Ms. B. Narayan of Lateef & Lateef Lawyers for the Defendant

Date of Hearing : 14th July, 2011
Date of Ruling : 18th May, 2012

RULING

1. INTRODUCTION
   

1. The Defendant has filed the summons made in pursuant to the Order 18 rule 6(1) and Order 18 rule 18(1) (a), (b), (c), (d) for strike out of the Plaintiff's amended statement of claim as it is vague and incomprehensible. The affidavit in support of the Asset Management Officer states that the amended statement of claim filed by the Plaintiff is 'poorly pleaded as to make it impossible to understand the nature of the Plaintiff's claim against the Defendant Bank.' I cannot less agree with on that issue, to state the least. The Plaintiff initially filed a statement of claim comprising 130 paragraphs, but then upon an application of the Defendant and subsequent ruling reduced it to 82 paragraphs, but the total sum claimed is increased to $122,282.29 from the initial sum claimed and this is apart from the general and exemplary damages claimed. The causes of actions are described as 'NEGLIGENCE, LAXITY, DELAY, PROFESSIONAL MISCONDUCT & MISTAKES.' The claim cannot be understood and it is vague and incomprehensible. The Defendant is a bank and there are various kinds of claims including a claim for the alleged damage to a property by construction of drain, that was used as a security and clearly the Bank cannot held responsible for such acts and the claim of the Plaintiff cannot be understood by reading the statement of claim and in the circumstances it cannot be answered properly by the Defendant and it is ambiguous and embarrassing to the Defendant. In Farrell v Secretary of State (Viscount Dilhorns) [1980] 1 All E.R 166 at 173 Lord Edmund –Davies stated ' That purpose is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it.' The amended statement of claim has not fulfilled this requirement and struck off.
   

2. FACTS AND ANALYSIS
   

2. The Plaintiff filed the action against the Defendant bank on 11th August, 2010 by way of writ of summons and the statement of claim contained 130 paragraphs and claim was for a judgment of $79,036.86 as special damages or loss and, further claim for and for general, exemplary and punitive damages.
   
3. The Defendant without filing a defence sought to strike out certain paragraphs, principally the said request for striking out is based on the fact that the alleged incidents being clearly statute barred, from the statement of claim and this was allowed and the ruling on the said strike out was delivered 25th February, 2011 and subsequent to this the Plaintiff filed the amended statement of claim comprising 82 paragraphs and increasing the quantified loss or damage to $122,282.29.
   
4. The amended statement of claim which comprised of 82 paragraphs, but the claim which increased to $122,282.29 describe the claims as 'NEGLIGENCE, LAXITY, DELAY, PROFESSIONAL MISCONDUCT & MISTAKES', but the statement of claim contains events and facts not related to the Defendant and it cannot be understood easily as it is ambiguous.
   
5. The amended statement of claim which was filed on 25th March, 2011 contains facts and materials not relevant hence the alleged cause of actions are merged and confused and no reasonable person could either reply or understand it clearly, in order to answer it properly as required in law.
   
6. Order 18 rule 6 deals with Facts, not evidence, to be pleaded
   

'6(1) Subject to the provisions of this rule, and rules 9, 10, and 11, every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defences, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.' (emphasis is added)

7. In Supreme Court Practice (1988) at page 269 it was stated under the "Material facts, not evidence" 18/7/3 state as follows
   

'Material facts, not evidence'- Every pleading must contain only a statement of the material facts on which the party pleading relies, and not the evidence by which they are to be proved (per Farwell L. J in N. W. Salt Co Ltd v Electrolytic Alkali C Ltd [1913] 3K.B. 422,425). "The distinction is taken in the very rule itself between the facts on which the party relies, and the evidence to prove those facts (per Brett L.J. in Philipps v Philipps (1878) 4 Q. B. D. 133). All facts which tend to prove the fact in issue will be relevant at the trial, but they are not "material facts" for pleading purposes. "It is an elementary rule in pleading that, when a statement of facts is relied on, it is enough to allege it simply without setting the allegation" (per Lord Denman C.J. in Williams v Wilcox [1838] EngR 305; (1838) 8 A& E 314, p 331; and see Stuart v Gladstone (1879) 10 Ch. D. 644).....' (emphasis is added)

8. The facts that can be averred in a statement of claim cannot be strictly defined, but when one examines the pleadings one can see very clearly if it does not conform to the requirements contained in Order 18. The Pleadings are very important as it is what the other party has to answer and if that is not properly understood it cannot be answered adequately or formulate the defence properly and the process is abused causing unnecessary delay and inconvenience to all.
   
9. In Supreme Court Practice (1999) at page 314 under the heading 'Need for compliance' it was stated as follows
   

'Need for compliance- These requirements should be strictly observed (per May L. J. in Lipkin Gorman v Karpnale Ltd [1989] 1 W.L.R 1340 at 1352). Pleadings play an essential part in civil actions, and their primary purpose is to define the issues and thereby to inform the parties in advance of the case which they have to meet, enabling them to take steps to deal within it, and such primary purpose remains and can still prove of vital importance, and therefore it is bad law and bad practice to shrug off a criticism as a "mere pleading point" (see per Lord Edmund Davis in Farrell v Secretary of state for Defence [1980] 1 W.L.R 172 at 180, [1980]1 All E.R. 166 at 173)'. (emphasis is added)

10. The primary purpose of the pleading is to comply with the provisions set out in Order 18 and if not the pleadings will not be easily comprehensible and the classic example is the pleadings in the case before me, where the causes of actions are mixed and one cannot understand it to make a proper reply. This is clearly an abuse of process and the Defendant in unnecessarily inconvenienced because of the non compliance of the Plaintiff. The Plaintiff was granted an opportunity to prepare the pleadings when an earlier application was made to strike out the some paragraphs on the basis of they being statute barred in terms of the Limitation Act, but the Plaintiff has again failed to adhered to the provisions contained in the High Court Rules in the preparation of the amended statement of claim.
    
11. In the Supreme Court Practice (1999) at page 315 under the heading 'Facts must be material' it was stated as follows
    

'Facts must be material- The words "contain only" emphasize that only facts which are material should be stated in a pleading. Accordingly, statement of immaterial and unnecessary facts may be struck out (Davy v Garrett [1878] UKLawRpCh 8; (1878) 7 Ch.D. 473; Rossom v Budge [1893] UKLawRpKQB 56; [1893] 1 Q. B. 571; Murray v Epsom local Board [1896] UKLawRpCh 177; [1897] 1 Ch. 35; and see also r 19). Unless, however, statements are ambiguous or otherwise embarrassing, the Court as a rule will not inquire very closely into their materiality (Knowlers v Roberts [1888] UKLawRpCh 42; (1888) 38 Ch.D. 263 at 271; Tomkinson v S.E. Ry. C (No2)(1887) 57 L.T 358)'

12. In Farrell v Secretary of State (Viscount Dilhorns) [1980] 1 All E.R 166 at 173 Lord Edmund –Davies held
    

'It has become fashionable in these days to attach decreasing importance to pleadings, and it is beyond doubt that there have been times when an insistence on complete compliance with their technicalities put justice at risk, and, indeed, may on occasion have led to its being defeated. But pleadings continue to play an essential part in civil actions, and although there has been since the Civil Procedure Act 1833 a wide power to permit amendments, circumstances may arise when the grant of permission would work in justice or, at least, necessitate an adjournment which may prove particularly unfortunate in trials with a jury. To shrug off a criticism as 'a mere pleading point' is therefore bad law and bad practice. The purpose is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take step to deal with it.'(emphasis is added).

13. The perusal of the statement of claim in this case shows that it is ambiguous and embarrassing to the defendant to answer to the statements averred in the amended statement of claim. The entire amended statement of claim is not presented to the court in a comprehensible manner and I have granted the Plaintiff an earlier opportunity to amend the statement but the plaintiff has not made use of that opportunity. In the circumstances I will struck off the amended statement of claim as it is ambiguous and embarrassing and has not complied with the requirements contained in Order 18 of the High Court Rules of 1988. The amended statement of claim contains plethora of immaterial facts, which resulted in any reasonable person not being able to understand it in order to answer to it properly.
    

100. FINAL ORDERS
     

14. The amended statement of claim filed on 25th March 2011 is struck off.
15. No cost.
    

Dated at Suva this 18th day of May, 2012.

Master Deepthi Amaratunga
High Court, Suva