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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 78 of 2015
BETWEEN:
ASERI WAISEILOLO TOKALAULEVU trading as A ONE ACCESS TECHNOLOGY having its principal place of business at Lot 60, Kaunivula Road, Delainavesi, Suva.
PLAINTIFF
AND:
DANTZLER INC a Company duly registered having its registered office at 7975 NW 154 St, Suite 240, Miami Lakes, Florid, United States of America.
DEFENDANT
Mr. Kalisito Maisamoa for the Plaintiff
Mr. Ashnil Kumar Narayan for the Defendant
Date of Hearing: - 20th August 2015
Date of Ruling : - 06th November 2015
RULING
(A) INTRODUCTION
(1) The matter before me stems from the Summons filed by the Defendant pursuant to Order 18, Rule 18 (1) (a), of the High Court Rules and the inherent jurisdiction of the Court seeking the grant of the following Orders;
- (1) The Plaintiff's action and claim against the Defendant be struck and dismissed on the ground that it discloses no reasonable cause of action
AND
(2) The Plaintiff do pay the costs of this application on a full Solicitor/Client indemnity basis.
(2) The application is strongly resisted by the Plaintiff. The Plaintiff and the Defendant were heard on the Summons. They made oral submissions to Court.
(B) BACKGROUND
(1) What are the circumstances that give rise to the present application?
(2) To give the whole picture of the action, I can do not better than set out hereunder the main assertion of the pleadings.
(3) The Plaintiff in his Statement of claim pleads inter alia;
Para (1) The Plaintiff resides at Lot 60, Kaunivula Road, Delainavesi, Suva, and he is a businessman
(3) The Plaintiff operates business as A One Access Technology, which involves in the sale of computer & Accessories & Trading of timber, shopping supplies and copra, construction and general export.
(4) The Plaintiff was the Defendant in an earlier action number 81 of 2014.
(5) The Defendant was the Plaintiff in the action number 81 of 2014.
(6) In the action number 81 of 2014 the Defendant/Plaintiff sued the Plaintiff/Defendant for the alleged breached of the verbal contract between the parties.
(7) In that action number 81 of 2014 the Plaintiff served the Defendant with the Writ of Summon together with the Statement of Claim.
(8) The Plaintiff/Defendant filed an Acknowledgement of Service in which he sated that he intended to contest the proceedings and will file Statement of Defence.
(9) The Plaintiff/Defendant also stated in his Acknowledgement of Service that he intends to apply for a stay of execution against any judgment entered by the Defendant/Plaintiff.
(10) The Plaintiff instructed his former Counsel as per the Acknowledgment in that he must defended the case until the determination of the matter.
(11) The Plaintiff/Defendant filed its defence on 7th July 2014 and served their city agent on the 8th August 2014, which was accepted by their city agent on behalf of the counsel in carriage of the file.
(12) The Plaintiff was surprised and shocked to learn from his former Counsel that he has consented to the Defendant/Plaintiff claim.
(13) The Plaintiff has stated that his former Counsel has not consulted him nor advised him through letter or phone called that he was going to consent to the claim by the Defendant/Plaintiff.
(14) The Plaintiff maintain that the failure of his former Counsel to consulting him on the direction that he was going to take with the Defendant/Plaintiff in terms of the consent amount to lack of consent.
Particulars of Lack of consent from the Plaintiff
(15) The Plaintiff felt that since the consent was not properly obtained from him it felt that the consent order is irregular.
(15) The Plaintiff further stated that he finds out that the Defendant/Plaintiff Counsel have known each other and attended school together in the Law School at South Hampton, England, and he failed to tell the Plaintiff about it.
(16) The Plaintiff assert that without disclosing to him the relationship between his former Counsel and the Defendant/Plaintiff would definitely has an impact on the consent rendered taking into consideration that the Plaintiff has good defence against the Defendant/Plaintiff.
(17) The Plaintiff further stated that he would raise the issues of Foreign Investment Act together with the requirements of Fiji Reserve Bank Act and the Partnership Act in the Statement of defence once the matter in civil action of 81 of 2014 is put back in the cause list.
(4) The Plaintiff claims the followings;
Para (a) An order that the consent order entered against the Plaintiff/Defendant filed on 23rd September 2014 be wholly set aside unconditionally.
(b) An order that the execution of the consent order entered against the Plaintiff/Defendant be stayed pending the determination of this Writ.
(c) An order that the action number 81 of 2014 be listed back in the cause list.
(d) An order that the Plaintiff/Defendant to amend further his Statement of Defence.
(e) Costs to be in the cause.
(f) Any other orders the court deem just and equitable
(C) THE STATUS OF THE SUBSTANTIVE MATTER
(1) The action was instituted by the Plaintiff on 25th May 2015 by way of Writ of Summons and Statement of Claim.
(2) The Defendant filed the Acknowledgement of Service on 02nd June 2015.
(3) On 03rd June 2015, the Defendant filed Summons to strike out the action and claim against the Defendant.
(D) THE LAW
(1) Against this factual background, it is necessary to turn to the applicable law and the judicial thinking in relation to the principles governing the striking out an action.
(2) Rather than refer in detail to the various authorities, I propose to set out important citations, which I take to be the principles of the play.
(3) Provisions relating to striking out are contained in Order 18, rule 18 of the High Court Rules. Order 18, rule 18 of the High Court Rule reads;
18. – (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, 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;
And may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.
(4) No evidence shall be admissible on an application under paragraph (1) (a).
Footnote 18/19/3 of the 1988 Supreme Court Practice reads;
"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 (1952) 2KB. 34; (1951) 1 ALL ER, 331, CA. affirmed (195), 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)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 reads;
"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 87, 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)."
(5) In the case of Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641, it was held;
"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"
(6) In the case of National MBF Finance (Fiji) Ltd v Buli [2000] FJCA 28; ABU0057U.98S (6 JULY 2000), it was held;
"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"
(7) In Tawake v Barton Ltd [2010] FJHC 14; HBC 231 of 2008 (28 January 2010), Master Tuilevuka (as he was then) summarised the law in this area as follows;
"The jurisdiction to strike out proceedings under Order 18 Rule 18 is guardedly exercised in exceptional cases only where, on the pleaded facts, the plaintiff could not succeed as a matter of law. It is not exercised where legal questions of importance are raised and where the cause of action must be so clearly untenable that they cannot possibly succeed (see Attorney General –v- Shiu Prasad Halka 18 FLR 210 at 215, as per Justice Gould VP; see also New Zealand Court of Appeal decision in Attorney –v- Prince Gardner [1998] 1 NZLR 262 at 267."
(8) His Lordship Mr Justice Kirby in Len Lindon –v- The Commonwealth of Australia (No. 2) S. 96/005 summarised the applicable principles as follows:-
- It is a 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 O 26 r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.
- 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 ... or is advancing a claim that is clearly frivolous or vexatious...
- An opinion of the Court that a case appears weak and such that is unlikely to succeed is not, alone, sufficient to warrant summary termination... even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and arguments and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
- Summary relief of the kind provided for by O.26 r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer.... 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 in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
- 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.
- The guiding principle is, as stated in O 26 r 18(2), doing what is just. If it is 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, to 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.
(9) In Paulo Malo Radrodro vs Sione Hatu Tiakia & Others, HBS 204 of 2005, the Court stated that:
"The principles applicable to applications of this type have been considered by the Court on many occasions. Those principles include:
(10) In Halsbury's Laws of England Vol 37 page 322 the phrase "abuse of process" is described as follows:
"An abuse of process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the process is misused. In such a case, even if the pleading or endorsement does not offend any of the other specified grounds for striking out, the facts may show it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or endorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of an abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court."
(11) The phrase "abuse of process" is summarized in 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"
(12) In Stephenson –v- Garret [1898] UKLawRpKQB 22; [1898] 1 Q.B. 677 it was held:
"It is an abuse of process of law for a suitor to litigate again over an identical question which has already been decided against him even though the matter is not strictly res judicata.
Domer –v- Gulg Oil (Great Britain) (1975) 119 S.J 392
"Where proceedings which were viable when instituted have by reason of subsequent events become inescapably doomed to failure, they may be dismissed as being an abuse of the process of the court"
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 is an abuse of process of the Court and will be struck out"
(E) ANALYSIS
(1) Let me now proceed to examine the substance of the Defendant's application to strike out the Plaintiff's action and the claim
bearing all those legal principles in my mind.
I have given due consideration to the submissions made by both Counsel.
(2) The Plaintiff in the instant case was the Defendant in Lautoka High Court case No: 81 of 2014. The Defendant in the instant case was the Plaintiff in the Lautoka High Court Case No. 81 of 2014.
In the said case, on 15th September 2014, a consent order was entered by the Court, pursuant to a settlement agreement reached between the two Counsel on behalf of their clients.
For the sake of completeness, the consent judgment is reproduced in full below;
DISTRICT REGISTRY
HBC No. 81 of 214
BETWEEN : DANTZLER INC a company duly registered having its registered office at 7975 NW 154 St, Suite 240, Miami Lakes, Florida, United States of America
PLAINTIFF
AND : ASERI WASEILOLO TOKALAULEVU trading as A ONE ACCESS TECHNOLOGY having its principal place of business at Lot 60, Kaunivula Road, Delainavesi, Suva.
DEFENDANT
ORDER
BEFORE THE MASTER OF THE HIGH COURT, MR HARRY ROBNSON
IN COURT ON MONDAY 15th SEPTEMBER, 2014
UPON HEARING MR. ASHNIL KUMAR NARAYAN of A.K. Lawyers as Counsel for the Plaintiff.
AND UPON HEARING MR. INIASI VODO TUBERI of Vakaloloma & Associates as Counsel for the Defendant.
IT IS HEREBY ORDERED BY CONSENT AS FOLLOWS:
SEALED this 23rd day of September, 2014.
BY THE COURT
(Signed)
DEPUTY REGISTRAR
I apprehend that the Plaintiff in the instant case does not refute that the said consent order was entered. He says that he never instructed his Counsel to settle the case as such.
He argues that the consent order should be set aside. Accordingly, he instituted the instant case to set aside the said consent order.
Therefore, as I apprehend, the Plaintiff's complaint essentially is against his former Counsel on the following grounds, inter alia that;
Reference is made to paragraph (13) of the Statement of Claim;
(3) At this stage, I ask myself, what is the legal force of the consent order entered in Action No. 81 of 2014, on 15th September 2014?
Now let me consider what authority there is on this point.
In "E.T. v Attorney General", (2012) EKLR, the High Court of Kenya, expoused the legal force of Consent order as follows;
"A compromise agreement is a contract whereby the parties make reciprocal concession in order to resolve their differences and this avoid litigation or to put an end to one already commenced. When it complies with the requisites and principles of contracts, it becomes a valid agreement which has the force of law between the parties.
When a compromise agreement is given judicial approval, it becomes more than a contract binding upon the parties. Having been sanctioned by the Court it is a determination of the controversy and has the force and effect of a judgment and is covered by the doctrine of res judicata."
(Emphasis Added)
Therefore, the law in relation to the legal force of the consent order entered in Action No. 81 of 2014, as I understand it, is this; "the consent order was an Order whose terms were settled and agreed to by the Counsel for the Plaintiff and the Defendant and having being sanctioned by the Court, the consent order has the effect of 'res judicata" in respect of the matters dealt. To be more precise, the settlement reached in case No. 81 of 2014 with judicial sanction has the effect/force of a judicial Order so as to involve the principle of 'res judicata."
Having said that, I wish to emphasise that, the law itself is fully conscious of the evil of protracted litigation.
The law recognises that the process can go no indefinitely. There is a fundamental principle of English law generally expressed by a Latin maxim which can be translated, "It is in the interest of society that, there should be some end to litigation." (see, Cokes "Commentary on Litigation, p 330).
"The rationale behind the doctrine of "res judicata" and issue of estoppels is that if the controversy in issue is finally settled or determined or decided by the Court, it cannot be re-opened. The rule of 'res-judicata" is based on two principles; there must be an end to litigation and the party should not be vexed twice over the same cause"; E.T. v Attorney General, (supra).
In the context of the present case, I cannot help but recall the rule of law expoused by Lord Wilbeforce in "Ampthill Peerage" (1976) w WLR 777:
"English law ... place (s) high in the category of essential principles that which required that limits be placed upon the right of
citizens to open or to reopen disputes. [It] ... is the same principle as that which requires judgments in the courts to be binding, and that which prohibits litigation after the
expiry of limitation periods. Any determination of disputable fact may, the law recognises, be imperfect; the law aims at providing
the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring
justice to truth. That may be so; these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth (I do not say that this is such a case),
and these are cases where the law insists on finality. For a policy of closure to be compatible with justice, it must be attended with safeguards; so the law allows appeals; so the law,
exceptionally, allows appeals out of time, so the law still more exceptionally allows judgments to be attacked on the ground of fraud;
so limitation periods may, exceptionally, be extended. But these are exceptions to a general rule of high public importance, and
as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved."
(Emphasis added)
(4) Next, I ask myself what are the legal principles governing setting aside consent orders?
I remind myself of the dicta of Lord Denning in "Siebe Gorman Ltd v Pneupac Ltd (1982) 1 WLR:
".... by consent" may evidence a real contract between the parties. In such a case the court will only interfere with such Order on the same grounds as it would with any other contract ...."
"Halsbury's Laws of England Volume 3, 4th edition, paragraph 521, states that:
.... a consent order or compromise may be set aside on a ground which would invalidate any other agreement between the parties including mistake, illegality, duress or misrepresentation.
Hammett PJ in Mohammed Rasul v Hazra Singh 8 FLR 140 at p.144 said as follows:
"In my opinion, once the parties to a dispute have joined issue in litigation and have later compromised their action and filed in court the terms upon which the action has been settled and the plaintiff has discontinued the action as was done in this case, the same issue cannot be made the subject of a fresh action until the compromise in the previous action has been set aside in an action brought for that express purpose based upon grounds of some considerable merit. To hold otherwise would, in my view, be to deprive the parties to a compromise of that sense of finality upon which both the parties to any compromise are entitled to rely and base their future conduct."
On setting aside of consent orders, in Halsbury, Laws of England, fourth Edition, Vol. 26, at p. 286, 287, it is clearly stated;
"In Purcell vs FC Trigal Ltd (1970) 3 All ER 671, Winn LJ said at 676: "It seems to me that if a consent order is to be set aside, it can really only be set aside on grounds which would justify the setting aside of a contract entered into with knowledge of the material matters by legally competent persons, and I see no suggestion here that any matter that occurred would justify the setting aside or rectification of this order looked at as a contract."
The Law on setting aside consent orders, as I understand it from the judicial decisions and legal texts cited above is this;
❖ The consent orders are essentially based on an agreement between the parties;
❖ Therefore a consent order may be set aside on the same grounds as the court would normally set aside any contract or agreement.
❖ In the result, a consent order can only be set aside in limited circumstances. They are; non disclosure; fraud misrepresentation and undue influence.
(5) As I have said earlier, the Plaintiff's complaint essentially is against his former Counsel in Lautoka High Court case No. 81 of 2014. The Plaintiff says that his Counsel acted without his instructions to settle the matter out of Court and a consent order was entered upon that compromise.
The Plaintiff forcefully submits that the consent order be set aside on account of the fact that it all happened without his instructions.
I must confess that the argument has some initial attraction of a rather formal kind, but I do not think that it is correct.
In this case before me, it is pertinent to note that there is no shred of evidence tending to establish fraud, undue influence or misrepresentation.
The court has judicially sanctioned the terms of settlement reached between the parties. Thus the settlement binds them the same way as a contract binds.
As I have said earlier, the settlement is a contract and like all contracts it is voidable on specific grounds; e.g. undue influence, misrepresentation, fraud or mistake.
In this case before me, the Plaintiff has failed to establish the aforesaid limited grounds. The fact that the Plaintiff had given no authority to his Counsel to settle the matter nor had he ever been asked to consent to any terms of settlement, is totally irrelevant in the context of setting aside consent orders. Because this state of things raise the question of the relationship between Counsel and his client, which is sometimes expressed as if it were that of agent and principal.
Now let me consider what authority there is on this point.
In Mathew v Munster [1887] UKLawRpKQB 189; (1888) 20 QBD 141, the House of Lords held that a Counsel who settled a claim on behalf of his client, in the absence of, and without the instructions of, his client, had the apparent general authority to do so. Accordingly, any consent judgement entered upon that compromise could not be set aside. The headnote to the case reads:
"On the trial of an action for malicious prosecution the defendant's counsel, in the absence of the defendant and without his express authority, assented to a verdict for the Plaintiff for 3501 with costs upon the understanding that all imputations against the Plaintiff were withdrawn:-
Held, that this settlement was a matter which was within the apparent general authority of Counsel and was binding on the Defendant."
Lord Esher MR in Mathews said:
"In the course of the case and while the defendant was not present in Court, his Counsel, desirous to do what in his judgment was best for his client, submitted to a verdict for the Plaintiffs for a particular amount, and that certain imputations on the Plaintiff's conduct should be withdrawn, that is, he submitted to a verdict on terms. The defendant now seeks to set aside this verdict and to have a new trial on the ground that counsel in agreeing to it did that which they had no authority to do.
This state of things raises the question of the relationship between counsel and his client, which is sometimes expressed as it if were that of agent and principal. For myself I do not adopt and never have adopted that phraseology, which seems to me to be misleading. No Counsel can be advocate for any person against the will of such person and as he cannot put himself in that position so he cannot continue in it after his authority is withdrawn. But when the client has requested counsel to act as his advocate he has done something more, for he thereby represents to the other side that counsel is to act for him in the usual course, and he must be bound by that representation so long as it continues, so that a secret withdrawal of authority unknown to the other side would not affect the apparent authority of counsel. The request does not mean that counsel is to act in any other character than that of advocate or to do any other act than such as an advocate usually does. The duty of counsel is to advise his client out of court and to act for him in court and until his authority is withdrawn he has, with regard to all matters that properly relate to the conduct of the case, unlimited power to do that which is best for his client.
I apprehend that it is not contended that this power cannot be controlled by the Court. It is clear that it can be, for the power is exercised in matters which are before the Court, and carried on under its supervision. If, therefore, counsel were to conduct a cause in such a manner that an unjust advantage would be given to the other side, or to act under a mistake in such a way as to produce some injustice, the Court has authority to overrule the action of the advocate.
I have said that the relation of an advocate to his client can be put an end to at any moment, but that the withdrawing of the authority must be made known to the other side, and his shews that the client cannot give directions to his counsel to limit his authority over the conduct of the cause and oblige him to carry them out, all he can do is to withdraw his authority altogether, and in such a way that it may be known he has done so.
Now let me consider what authority there is on this point. In Swinfen v. Lord Chelmsford (1), Pollock, C.B. in delivering the judgment of the Court said (2),
"We are of opinion, that although a counsel has complete authority over the suit, the mode of conducting it, and all that is incident to it – such as withdrawing the record, withdrawing a juror, calling no witnesses, or selecting such as, in his discretion, he thinks ought to be called, and other matters which properly belong to the suit and the management and conduct of the trial – we think he has not, by virtue of his retainer in the suit, any power over matters that are collateral to it".
The instances that are given shew that one of the things that Counsel may do, so long as the request of the client to him to act as advocate is in force, it to assent to verdict for a particular amount and upon certain conditions and terms; and the consent of the advocate to a verdict against his client and the withdrawing of imputations is a matter within the expression "conduct of the cause and all that is incidental to it", If the client is in Court and desires that the case should go on and Counsel refuses, if after that he does not withdraw his authority to counsel to act for him, and acquaint the other side with this, he must be taken to have agreed to the course proposed, This case is a still stronger one for the client was present, and it is not pretended that he ever withdrew his authority to counsel, but he now comes forward and asks that because he does not like what has been done it should be set aside as between himself and his opponent. This the Court will not do, and this appeal must be dismissed."
(Emphasis Added)
Bowen L.J. said:
"The case was called on the second day, and the defendant, instead of coming into court where he might have exercised his influence on the course the case might take, was absent. During this absence he left his counsel with complete command and with authority to do whatever he thought best. Counsel agreed to a verdict for the plaintiffs, which the Court below refused to set aside.
It seems to me that within certain limits the retainer shews that counsel has authority to bind his client. What those limits are seems to me to be laid down by Pollock C.B. in the passage that has been read. Counsel is clothed buy his retailer with complete authority over the suit, the mode of conducting it, and all that is incident to it and this is understood by the opposite party. It has been frequently discussed, as far back as the times of Best, C.J., if not further, whether counsel can be called the agent of his client, but on this it is sufficient to say that even if he called an agent he is not one in the ordinary sense, but has a particular authority, the origin of the limit of which it is not necessary to examine. What is to be done if the client is in Court? Is it the duty of counsel to consult him? I should day – yes, with regard to important matters in which the client has an interest. It does not follow that counsel will submit to carry out the view of the client if it appears that it would be injurious to the client's interest. He has the alternative of returning his brief. I should be sorry to say that counsel ought not to consult his client on such a matter as compromise of the action, but that is a point we have not go to consider, for in the present case the client was not present and cannot complain if his counsel, who was in command and had authority to do the best for his client, compromised the suit within the reasonable limits of his authority t compromise. In this particular case, it was clear what was done as within the reasonable scope of the advocate's authority within the rule laid down by Pollock."
(Emphasis added)
The High Court of Malaysia in Yap Chee Meng v Ajinomoto (1978) 2 MLJ 249, said on this aspect that,
"As a general rule, it is against public policy to allow settlements concluded between solicitors on behalf of their respective clients in accident cases to be challenged with impunity. To do so would open the flood-gates of endless litigation initiated by parties who become wise after the event. It will also discourage the practice of out of court settlements. That would be a great pity. But a settlement is a contract and like all contracts it is voidable on specific grounds e.g. undue influence, misrepresentation, fraud or mistake. If this can be shown it is then the duty of the court to interfere so that justice is done. In this case, prima facie there is a valid settlement, conducted between advocates and solicitors 5 of this court."
(6) At this point, I cannot resist in saying that the above authorities are clear, uniform and conclusive that any consent judgment entered upon a compromise/agreement reached between the Solicitors on behalf of their respective clients, in the absence of and without the instructions of the client, cannot be set aside.
The Plaintiff has a right of action against his Counsel in respect of his conduct. The Plaintiff has to pursue a separate claim against his Counsel.
For the reasons which I have endeavoured to explain, I venture to say beyond a per adventure that the Plaintiff's Statement of Claim does not raise debatable questions of law and facts. Therefore, it is competent for the Court to dismiss the action on the ground that it discloses no reasonable cause of action against the Defendant.
Fundamentally, courts are required to determine cases on merits rather than dismissing them summarily on procedural grounds.
It is a fundamental principle of any civilized legal system that all parties in a case are entitled to the opportunity to have their case dealt with at a hearing at which they or their representative are present and heard.
At this juncture, I bear in mind the "caution approach" that the court is required to exercise when considering an application of this type.
I remind myself of the principles stated clearly in the following decisions.
In Dev. v. Victorian Railways Commissioners[1949] HCA 1; (1949) 78CLR 62, 91 Dixon J said:
"A case must be very clear indeed to justify the summary intervention of the court ... once it appears that there is areal question to be determined whether of fact or of law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."
In Agar v. Hyde [2001] HCA 41; (2000) 201 CLR 552 at 575 the High Court of Australia observed that:
"It is of course well accepted that a court ... should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way and after taking advantage of the usual interlocutory processes."
I am of course mindful that a case must be very clear indeed to justify summary intervention of the Court. It is a jurisdiction which ought to be very sparingly exercised and only in very exceptional circumstances.
I have no doubt personally and I am clearly of the opinion that this is a case for the summary intervention of the Court. This action must be dismissed.
In the circumstances, I certainly agree with the sentiments which are expressed inferentially in the Defendant's submissions. I must confess that I am not in the least impressed by the proposition advanced by the Plaintiff.
(7) To sum up, in view of the foregoing analysis, I venture to say beyond a per adventure that the Plaintiff has failed to disclose a reasonable cause of action against the Defendant and in the result the Plaintiff's case is clearly untenable.
I could see nothing to change my opinion even on the basis of exhaustive work contained in "Commentary on Litigation" by "Cokes", and "A practical approach to Civil Procedure", by "Stuart Sime", Thirteenth Edition.
Accordingly, there is no alternate but to dismiss the Plaintiff's action and the Statement of Claim to protect the Defendant from being further troubled, to 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 merits.
I cannot see any other just way to finish the matter than to follow the law.
(8) Let me now address the issue of "Indemnity Costs."
The Defendant seeks "indemnity costs" without advancing any argument or ground in support by way of an Affidavit.
Leave that all aside; the submissions require some examination of the law regarding "indemnity costs".
Order 62, rule 37 of the High Court Rules empower courts to award indemnity costs at its discretion.
For the sake of completeness, Order 62, rule 37 is reproduced below.
Amount of Indemnity costs (O.62, r.37)
37.- (1) The amount of costs to be allowed shall (subject to rule 18 and to any order of the Court) be in the discretion of the taxing officer.
Now let me consider what authority there is on this point.
The principles by which Courts are guided when considering whether or not to award indemnity costs are discussed by Hon. Madam Justice Scutt in "Prasad v Divisional Engineer Northern (No. 02)" (2008) FJHC 234.
As to the "General Principles", Hon. Madam Justice Scutt said this;
➢ "A court has 'absolute and unfettered' discretion vis-à-vis the award of costs but discretion 'must be exercised judicially'. Trade Practices Commission v. Nicholas Enterprises (1979) 28 ALR 201, at 207
➢ The question is always 'whether the facts and circumstances of the case in question warrant making an order for payment of costs other than by reference to party and party'; Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225, at 234, per Sheppard, J.
➢ A party against whom indemnity costs are sought 'is entitled to notice of the order sought': Huntsman Chemical Company Australia Limited v. International Cools Australia Ltd (1995) NSWLR 242
➢ That such notice is required is 'a principle of elementary justice' applying to both civil and criminal cases: Sayed Mukhtar Shah v. Elizabeth Rice &Ors (Crim Appeal No. AAU0007 of 1997S, High Court Crim Action No. HAA002 of 1997, 12 November 1999), at 5, per Sir MotiTikaram, P.Casey and Barker, JJA
➢ '. . . neither considerations of hardship to the successful party nor the over-optimism of an unsuccessful opponent would by themselves justify an award beyond party and party costs. But additional costs may be called for if there has been reprehensible conduct by the party liable': State v. The Police Service Commission; Ex parte Beniamino Naviveli (Judicial Review 29/94; CA Appeal No. 52/95, 19 August 1996), at 6
➢ Usually, party/party costs are awarded, with indemnity costs awarded only 'where there are exceptional reasons for doing so': Colgate-Palmolive Co v. Cussons Pty Ltd at 232-34; Bowen Jones v. Bowen Jones [1986] 3 All ER 163; Re Malley SM; Ex parte Gardner [2001] WASCA 83; SDS Corporation Ltd v. Pasonnay Pty Ltd &Anor [2004] WASC 26 (S2) (23 July 2004), at 16, per Roberts-Smith, J.
➢ Costs are generally ordered on a party/party basis, but solicitor/client costs can be awarded where 'there is some special or unusual feature of the case to justify' a court's 'exercising its discretion in that way': Preston v Preston [1982] 1 All ER 41, at 58
➢ Indemnity costs can be ordered as and when the justice of the case so requires: Lee v. Mavaddat [2005] WASC 68 (25 April 2005), per Roberts-Smith, J.
➢ For indemnity costs to be awarded there must be 'some form of delinquency in the conduct of the proceedings': Harrison v. Schipp [2001] NSWCA 13, at paras [1], [153]
➢ Circumstances in which indemnity costs are ordered must be such as to 'take a case out of the "ordinary" or "usual" category. . . ": MGICA 91992) Ltd v. Kenny & Good Pty Ltd (No.2) [1996] FCA 862; (1996) 140 ALR 707, at 711, per Lindgren J.
➢ '. . . it has been suggested that the order of costs on a solicitor and client basis should be reserved to a case where the conduct of a party or its representatives is so unsatisfactory as to call out for a special order. Thus, if it represents an abuse of process of the Court the conduct may attract such an order': Dillon and Ors v. Baltic Shipping Co ('The Mikhail Lermontov') (1991) 2 Lloyds Rep 155, at 176, per Kirby, P.
Solicitor/client or indemnity costs can be considered appropriately 'whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known . . . he had no chance of success': Fountain Selected Meats (Sales) Pty Ltd v. International Produce Merchants Ltd &Ors (1998) 81 ALR 397, at 401, per Woodward, J."
In "Public Service Commission v Beniamino Naiveli", Civil Appeal No. 52 of 1995, the Court of Appeal considered the exceptional nature of 'indemnity costs' and said (at pp. 6/7):
".... neither considerations of hardship to the successful party nor the over optimism of an unsuccessful opponent would by themselves justify an award beyond party and party costs. But additional costs may be called for if there has been reprehensible conduct by the party liable – see the examples discussed in Thomson v Swan Hunter and Wigham Richardson Ltd. (1954) 2 All E.R. 859 and Bowen-Jones v Bowen-Jones [1986] EWCA Crim 2; (1986) 3 All E.R. 1"
Returning to the present case, in my judgement, the factual background is clear and unambiguous. It clearly shows the indefatigable initiative and endless effort on the part of the Plaintiff who is so insistent in bringing litigation with no regard to any merits whatsoever.
It seems to me perfectly plain that the action has been commenced and continued in circumstances where the Plaintiff and his Counsel should have known that they have no chance of success. Therefore, the action must be presumed to have been commenced and continued for some ulterior motive or because of some wilful disregard of the known facts or the clearly established law.
The inherent jurisdiction of the Court to regulate its procedures by preventing abuse of its process is well recognised.
While the Court is generally reluctant except in exceptional cases, to award costs on an indemnity basis, a clear abuse might well justify an award of full indemnity costs.
In all the circumstances, I am satisfied that the Plaintiff's conduct on this matter is vexatious, oppressive and reprehensible.
In light of the above, I have no hesitation in holding that an award of indemnity costs is warranted.
(9) Before I take leave of the matter, I ought to make a comment.
The Plaintiff in the case before me, waited nearly for 08 months to institute the instant action to set aside the consent judgment.
I am at a substantial loss to understand why the Plaintiff waited for 08 months to set aside the consent judgment, if he had given no authority to his counsel to settle the matter nor had he ever been asked to consent to any terms of settlement.
The Plaintiff could have immediately instituted an action to set aside the consent judgment.
The Plaintiff took no step until garnishee proceedings forced him to initiate an action to set aside the consent judgement.
The Plaintiff's failure to comply with the Court Order and satisfy the consent judgment borders on contempt.
In the context of the present case, I am inclined to lean in favour of the more liberal judicial thinking reflected in the dictum of "Romer" L.J. in Hadkinson v Hadkinson (1952) (2) A.E.R at 567 "Romer L.J." said;
"It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. A party who knows of an order whether null and void, regular or irregular, cannot be permitted to disobey it...It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void – whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed."
(Emphasis Added)
(F) CONCLUSION
After considering the facts of this case, the submissions made to Court and in light of the authorities, notwithstanding the "caution approach" that the Court is required to take, I am satisfied that the pleading against the Defendant discloses no reasonable cause of action, which in itself leads to the pleading being scandalous, frivolous and vexatious.
(G) FINAL ORDERS
(1) The Plaintiff's Writ of Summons and the Statement of Claim against the Defendant is struck out.
(2) The Defendant is directed to file and serve its detailed costs for the assessment of the indemnity costs within 14 days from the date hereof.
Jude Nanayakkara
Acting Master of the High Court
At Lautoka
06th November 2015
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