Meridian Services Agencies Ltd v Qalilawa [2012] FJHC 1353; HBC237.2011 (3 October 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 237 of 2011

BETWEEN:

MERIDIAN SERVICES AGENCIES LIMITED
a limited liability company having its registered office at 16 Belo Street, Samabula, Suva in the Republic of the Fiji Islands.
PLAINTIFF

AND:

SEFANAIA QALILAWA
of 16 Belo Street, Samabula, Suva in the Republic of the Fiji Islands, Businessman.
1st DEFENDANT

AND:

BANK OF THE SOUTH PACIFIC
a banking organization.
2nd DEFENDANT

BEFORE : Master Deepthi Amaratunga
COUNSEL : Mr. Vakaloloma A. V. for the Plaintiff
Mr. Vulaono A. S. for the 1st Defendant
Ms. Saumatua S. for the 2nd Defendant

Date of Hearing : 8th March, 2012
Date of Ruling : 3rd October, 2012

RULING

1. INTRODUCTION
   

1. The Plaintiff filed this action against the two defendants claiming damages. The 1st Defendant was an employee of the 2nd Defendant financial institution's predecessor Colonial National Bank. The claim is regarding damage due to the loans granted to the recruits of the Plaintiff to go abroad. The Plaintiff is alleging fraudulent action of the 1st Defendant and also the breach of fiduciary duty of the financial institution in the said grant of unsecured grants to the recruits. The 1st Defendant seeks to strike out for non disclosure of reasonable cause of action against 1st Defendant and also on abuse of process.
   

2. ANALYSIS AND LAW
   

2. The 1st Defendant has filed this summons seeking strike out of the 1st Defendant on the grounds that there is no reasonable cause of action disclosed and also in the case of Good Way Rubber Company Pty Limited v Gurbachan Singh & Anr Civil action No. HBC of 425 of 2004.
   
3. The Court in dealing with a strike out application referred to the Len Lindon v The Commonwealth of Australia (No. 2) S 96/005 quoted as follows:
   

"(1) It is 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 O26 r18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112CLR 125 at 128f; Dyson v Attorney – General [1910] UKLawRpKQB 203; (1911) 1 KB 410 at 418.

(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; Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 68 ALJR 169 at 171f per Dawson J; [1994] HCA 65; 118 ALR 385 at 388, for is advancing a claim that is clearly frivolous or vexatious; Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.

(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. Coe v The Commonwealth [1979] HCA 68; (1979) 53 ALJR 403; 24 ALR 118; Wickstead v Browne (1992) 30 NSWLR 1 at 5 – 7. 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 O26 r18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurr; Coe v The Commissioner [1979] HCA 68; (1979) 53 ALJR 403 at 409; [1979] HCA 68; 24 ALR 118 at 132. 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 amore 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 Church of Scientology v Woodward [1982] HCA 78; (1980) 154 CLR 25 at 79. A question has arisen as to whether O26 r 18 applies to part only of a pleading Northern Land Council v The Commonwealth [1986] HCA 18; (1986) 161 CLR 1 at 8 and

(6) The guiding principle is, as stated in O 26 r 18 (2), doing what is just. If it 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, the 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.

4. The Plaintiff in his statement of claim at paragraph 15 stated as follows
   

'15. That upon various follows ups. the 1st Defendant has then wrote us a letter to confirm that the purported security being used and relied upon by the 2nd Defendant was made fraudulently as a way of safeguard their employment.'

This indicate a positive involvement of the 1st Defendant in the alleged incident
and this is further explained in paragraph 16 where it stated as follows

'16. That the 1st Defendant has also assured that his motive behind issuance of such unsecured loans were the excitement by the prospects of topping the list of "Best Employee of the Year" which carries a lucrative bonus.'

5. The Plaintiff has alleged a cause of action against 1st Defendant and I cannot consider to the merits of the said claim in this summons. The alleged claim is not entirely based on the seizure of personal savings of the Plaintiff, which he allege was done under the directions of the 2nd Defendant. The alleged claim against the 1st Defendant is based on his involvement and action done in pursuant to personal interest alleged in paragraphs 15 and 16 of the statement of claim.
   
6. 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 W.L.R. 688 (1970) 1 All ER 1094, CA). (emphasis is added)

100. CONCLUSION
     

7. The Plaintiff in his statement of claim has alleged 1st Defendant's involvement in the incident that resulted its personal savings being seized by the 2nd Defendant. The claim against the 1st Defendant is not entirely based on the seizure but what had happened prior to the said seizure and the reason for the said seizure is explained in the statement of claim and the involvement of the 1st Defendant and a cause of action is based on his breach of duty. The summons for strike out is dismissed and the cost of this application will be cost in the cause.
   

4. FINAL ORDERS
   

1. The summons for strike out is dismissed.
2. Cost of this action will be cost in the cause.
   

Dated at Suva this 3rd day of October, 2012.

.................................................
Master Deepthi Amaratunga
High Court, Suva