Taveuni Management Service Ltd v Kawakawadawa Fiji Ltd [2012] FJHC 1426; HBC142.2012 (19 October 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 142 of 2012

BETWEEN:

TAVEUNI MANAGEMENT SERVICES LIMITED
PLAINTIFF

AND:

KAWAKAWADAWA (FIJI) LIMITED
DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSEL : Mr. P. I. Knight for the Plaintiff

Mr. V. Prasad for the Defendant

Date of Hearing : 5th October, 2012

Date of Ruling : 19th October, 2012

RULING

1. The Plaintiff filed this action against the Defendant, while the same cause of action is before this court in Case HBC 287 of 2007 and both parties admit this. The present application is by the Defendant seeking strike out of this action for abuse of process. One would wonder why such a patent abuse of the process is committed, the reason being that said case HBC 287 of 2007 was stayed in pursuant to a decision of His lordship Justice Calanchini in HBC 543 of 2004. In order to circumvent the said decision of Justice Calanchini staying the proceedings in HBC 287 of 2007, without seeking variation of the said order or obtaining permission of the court to withdraw the action HBC 287 of 2007, this action was filed for the same cause of action. The correct procedure for a prudent person would have been first to seek a variation of the said order in HBC 543 of 2004 as regard to the staying the proceedings in HBC 287 of 2007 and once the order is varied and the stay is lifted a request to discontinue the said action could have been made. This could be done simultaneously as the application to vary the order has to be made in HBC 543 of 2004 and the application to withdraw has to be made in HBC 287 of 2007. Instead of this Plaintiff filed summons to discontinue the action HBC 287 of 2007 while the stay of the said action was in operation, and I observed this and referred the summons to a judge since I could not deal with an action where a judge has ordered to stay. Now the said application for withdrawal is struck off on the basis of abuse of process as well! This is the clearest form of abuse of the process and this action should not have been filed without a determination as to the application to withdraw HBC 287 of 2007 as the cause of action is materially the same. This action should be struck off as an abuse of process subject to indemnity cost.
   
2. At the hearing the counsel for the Plaintiff admitted that the cause of action in HBC 287 of 2007 and this action is the same, but stated that he would be in a conundrum if this action is struck off and the his application for the discontinuation of HBC 287 of 2007 is also allowed! Though seemed plausible argument it holds no water. Plaintiff sought to stay this action till a determination of the summons for discontinuance of the action HBC 287 of 2007. Now it has been determined and the decision delivered on 28th September, 2011 it was held "To my mind, this constitute an abuse of process of court. An action cannot be discontinued, when an order has been made for the stay of that action." So, there is no need of staying this action till a determination of the summons to discontinue, as it had been refused and also held that it was an abuse of process.
   

1. FINAL ORDER
   

1. The action is struck off.
2. The Defendant is granted cost on indemnity basis.
   

Dated at Suva this 19th day of October, 2012.

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