Maharaj v Foneology [2012] FJHC 1238; HBC29.2012 (26 July 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 29 of 2012

BETWEEN:

RAVINESH RITESH MAHARAJ a Sales Clerk of Waituri, Nausori.
PLAINTIFF

AND:

FONEOLOGY a duly incorporated Company, having its registered office at Shop 5, Post Office Building, Suva.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Plaintiff In person
Mr. Pillay P. for the Defendant

Date of Hearing: 3RD July, 2012
Date of Decision: 26TH July, 2012

Decision

A. INTRODUCTION

1. The Plaintiff worked as a customer service officer in the business carried out by the name and style 'Foneology' an unincorporated entity. The employer has terminated his services and the issue of unfair termination was dealt by a mediator and a certificate of mediation was executed. The Plaintiff consented not to pursue the issue of unfair termination as per the terms of the mediation certificate, but seeks to claim damages for said unfair termination in this action. He also claims that since the employer published a paper advertisement to the effect that Plaintiff was no longer employed by the employer and absolving from any dealing thereafter. The defence seeks to strike out the Plaintiff's statement of claim in terms of Order 18 rule 18 (1) (a), (b) and (c) of High Court Rules.
   

B. FACTS

2. The Plaintiff was employed in the business trading as FONEOLOGY as a Customer Service Officer from 24th August, 2009 till his services were terminated on 18th June, 2011. According to the Plaintiff the termination was effective from 17th June, 2011.
   
3. The Plaintiff was served with a final warning on 14th June, 2011 and before that another warning was served on 6th July, 2010 regarding unsatisfactory performance and carelessness at work place.
   
4. The letter of termination was issued in terms of the clause 15(e) of the employment contract and on 16th July, 2011 and 23rd July, 2011 two Public Notices were published in daily newspapers informing the public that the Plaintiff was no longer an employee of Foneology and they will not be liable or accountable for any dealings that he does thereafter.
   
5. The Form ER2 'Notice to Attend Mediation' dated 08/08/2011 stated inter alia
   

'The matter that will be mediated on is an employment grievance. The issues that will be mediated on include:

Mr. Maharaj claims that he has been unfairly terminated and seeks compensation for the unfair dismissal.' (emphasis mine)

6. The settlement agreement dated 6th September 2011 stated inter alia
   

'(iii) The Griever shall not have any further claims against Foneology regarding unfair termination.'

And the even dated 'Certificate of Mediation' stated inter alia as follows

'This is to certify that Ravinesh Maharaj and Foneology attend the Mediation Service on 29/08/11 & 06/09/11 to resolve an employment grievance regarding alleged unfair termination of Mr. Maharaj.' (emphasis is mine)

C. LAW AND ANALYSIS

7. Order 18 Rule 18(1) states as follows
   

'(1) The Court may at any stage of the proceedings order to be struck out or amend any pleading or the 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;

(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; may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.'

8. The plaintiff's statement of claim comprised five sentences and all of them relate to alleged unfair dismissal which has already been settled and fully resolved by a mediator. A certificate of mediation is executed and the Defendant admit that fact of mediation. A final settlement was reached between the employer and employee and mediation is binding on them, and this cannot be reopened again in this action.
   
9. Footnote 18/19/3 of the 1988 Supreme Court Practice where the following is stated in respect of applications such as the present:-
   

"It is only plain and obvious cases that recourse should be had to the summary process under this rule, per Lindley MR. in Hubbuck v. Wilkinson [1898] UKLawRpKQB 176; (1899) 1 Q.B. 86, p91(Mayor, etc., of the City of London v. Homer (1914) 111 L.T. 512, CA). See also Kemsley v. Foot and Qrs. (1951) 2KB. 34; (1951) 1 All ER. 331, CA. affirmed (1952) AC. 345, H.L. The summary procedure under this rule can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable' (Att-Gen. of Duchy of Lancaster v. L. & N.W. Ry. Co. [1892] UKLawRpCh 134; (1892) 3 Ch. 274, CA). The summary remedy under this rule is only to be applied in plain and obvious cases when the action is one which cannot succeed or is in some way an abuse of the process or the case unarguable (see per Danckwerts and Salmon L.JJ. in Nagle V. Feliden (1966) 2 Q.B. 633, pp. 648, 651, applied in Drummond Jackson v. British Medical Association [1970] 1 WLR. 688 [1970] 1 All ER 1094, CA).

Footnote 18/19/4 of the 1988 Supreme Court Practice where the following is stated in relatin to striking out applications:-

"On an application to strike out the statement of claim and to dismiss the action, it is not permissible to try the action on affidavits when the facts and issues are in dispute (Wenlock v. Moloney [1965] 1 WLR 1238; [1965] 2 All ER 871, CA).

It has been said that the Court will not permit a plaintiff to be 'driven from the judgment seat' except where the cause of action is obviously bad and almost incontestably bad (per Fletcher Moulton L.J. in Dyson v. Att.-Gen. [1910] UKLawRpKQB 203; [1911] 1 KB 410 p. 419)."

10. The Defendant named in the writ is not a legal person, but that should not be a reason for the dismissal of the action as it can be amended. The statement of claim contains facts of the alleged 'unfair dismissal' which has already been dealt in mediation and a certificate of mediation is filed concluding the mediation and the parties are bound by what they already agreed and are estopped from deviating from their respective positions. It is plain and obvious that alleged unfair dismissal cannot be litigated in this action. The cause of action based on the alleged unfair dismissal is obviously bad and almost incontestably bad' per Fletcher Moulton L.J. in Dyson v. Att.-Gen. [1910] UKLawRpKQB 203; [1911] 1 KB 410 p. 419).
    
11. In the case of Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641, where the headnote at kube 50 states as follows:-
    

"Held: 1 The jurisdiction to strike out a pleading for failure to disclose a cause of action is to be sparingly exercised and only in a clear case where the Court is satisfied that it has all the requisite material to reach a definite and certain conclusion; the plaintiff's case must be so clearly untenable that it could not possibly success and the Court would approach the application, assuming that all the allegations in the statement of claim were factually correct (see p 645 line 25)."

It is certain that the cause of action based on unfair dismissal cannot be litigated in this matter as it has been settled in the mediation.

12. The Fiji Court of Appeal has applied similar principles in National MBF Finance (Fiji) Ltd v Buli, Fiji Court of Appeal Civil Appeal No. ABU 0057 of 1998S (6 July 2000) at page 2 of 4, second paragraph, where it stated as follows:-
    

"The law with regard to striking out pleadings 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 proved. If a legal issue can be raised on the facts as pleaded then the courts 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. It follows that an application of this kind must be determined on the pleadings as they appear before the court. In this case the Judge's task was made more difficult because a considerable amount of factual material was placed before him. We wish to point out that this is inappropriate and undesirable. The Judge's task was also made more difficult by the wording of both statements of claim and defence which do not raise the questions at issue with clarify."

13. There are no disputed facts that cannot be considered at this stage, the contention of the employer is that by virtue of the mediation the cause of action for alleged 'unfair dismissal' is unsustainable. I accept that contention.
    
14. 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)

15. 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)

16. 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 parties to action as well as to the court in proper administration of justice. The Plaintiff's statement of claim contains only five sentences and there are equal number of prayers which clearly indicate incoherence and even all the matters that pleaded were not included in the factual statements in the statement of claim.
    
17. In Supreme Court Practice (1999) at page 314 under the heading 'Need for compliance' of Order 18 where 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 WLR 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 WLR 172 at 180, [1980]1 All ER 166 at 173)'. (emphasis is added)

18. 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 in the proper form that it requires for further proceedings in the action. The pleadings in the present manner cannot be accepted as it has re-litigated the issue of unfair dismissal which the parties have reached a settlement where a certificate of mediation being issued indicating that
    

'This is to certify that Ravinesh Maharaj and Foneology attended the Mediation Services on 29/8/11 & 6/09/11 to resolve an employment grievance regarding alleged termination of Mr. Maharaj.'

19. 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 QB 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)'

20. 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).

21. The Plaintiff cannot claim for unfair termination as the issue has already been mediated between the parties and cannot be reopened in this action, but if the Plaintiff is seeking to claim against any action that had not been settled he can do so, but his statement of claim must contain the relevant facts clearly. It is not my duty to guide the Plaintiff, in the drafting of his pleadings. The issue regarding the unfair termination cannot be reopened and should be struck off from the statement of claim.
    
22. The Plaintiff's statement of claim which comprise five sentences and they all relate to the alleged 'unfair dismissal' and no other claim is stated in the five sentences in the statement of claim and in the circumstances I cannot help, but to strike out the statement of claim of the Plaintiff.
    
23. In the prayer as well as in the submission filed by the Plaintiff state that he cannot find a suitable employment due to the news paper advertisement of the employer. This issue has not been properly pleaded in the statement of claim, and not a part of the facts alleged in the statement of claim, but the said two advertisements were published soon after the termination on the following month and this kind of notices are common occurrence to safeguard the business of employer. The two notices were produced by the Plaintiff in his affidavit in opposition and in both notices the Plaintiff as well as other such third parties appear and no special reference was made to Plaintiff and, the intension of the employer was clear as he wanted to be absolved from all the dealings of the Plaintiff. The purpose of such advertisement is to inform the public that the employee was no longer employed with the employer. This can be due to dismissal or voluntary resignation by termination of the contract of employment, the notice does not specify the reason for termination or whether it was a voluntary termination or was terminated by the employer. The words in the said 'Public Notice' is clear and it only informs the public that the employer would not be accountable for any dealings by the persons named. Both notices were published before the mediation and if the Plaintiff had an issue on that he should have informed about that in the mediation.
    

D. CONCLUSION

24. The Plaintiff's statement of claim is based on the alleged unfair dismissal and the court cannot reopen that and it should be struck off. There is no reasonable cause of action and the statement of claim as pleaded, is frivolous and vexations considering that both the Plaintiff and the employer had settled the issue of unfair dismissal before a mediator and cannot be a basis of a claim. The cause of action based on the alleged unfair dismissal is obviously bad and almost incontestably bad. The pleading itself is bad and inconsistent with the prayers as all the issues in the prayers have not been included in the body of the statement of claim. The name of the Defendant can be corrected by an amendment, but the pleadings in the present form does not disclose a reasonable cause of action and from the statements in the claim I cannot foresee a reasonable cause of action. In the circumstances I order the statement of claim filed by the Plaintiff be struck off. The Plaintiff has abused the process of the court and hence I am inclined to grant a cost but the Defendant has not sought cost in their summons filed on 14th March, 2012 hence I will refrain from making any order for cost.
    

E. FINAL ORDERS

1. The Plaintiff's claim against the Defendant is struck out.
   
2. No order for cost.
   

Dated at Suva this 26th day of July, 2012.

Master Deepthi Amaratunga
High Court, Suva