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Fiji Peacekeeping and Action Trustee Association v Minister for Home Affairs [2017] FJHC 767; HBC96.2016 (11 October 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION


Civil Action No. HBC 96 of 2016


BETWEEN: FIJI PEACEKEEPING AND ACTION TRUSTEE ASSOCIATION an organization that is registered under the Charitable Trust Act, Cap 67 of the Laws of Fiji to look after the welfare of former peace-keepers and their immediate families.


PLAINTIFF


AND: MINISTER FOR HOME AFFAIRS or MINISTER OF DEFENCE AND SECURITY of 1st Floor New Wing, Government Buildings, Victoria Parade, Suva.


1ST DEFENDANT


AND: MINISTER FOR FINANCE of 7th Floor, Ro Lalabalavu House, Victoria Parade, Suva.


2ND DEFENDANT


AND: THE COMMANDER REPUBLIC OF FIJI MILITARY FORCES of Queen Elizabeth Barracks, Maddocks Road, Nabua, Suva.


3RD DEFENDANT


AND: THE ATTORNEY GENERAL OF FIJI of 7th Floor, Suvavou House, Victoria Parade, Suva.


4TH DEFENDANT


BEFORE: Master Vishwa Datt Sharma


COUNSELS: Mr. Bukarau - for the Plaintiff

Ms. Baravilala.T - for the Defendant


HEARING: 29th June, 2017
RULING: 11th October, 2017


RULING
[Application by the Defendant seeking an order to strike out the Plaintiff’s Statement of Claim against all the Defendant’s pursuant to Order 18 Rule 18 (1) (b and (d) ) of the High Court Rules, 1988 and the Jurisdiction of the Honourable Court]

APPLICATION

  1. This is the Defendant’s Summons to Strike Out and seeks the following orders:
On the Grounds:
  1. Counsels for the Defendants relied on the Affidavit in Support deposed by Ajay Singh.
  2. The application is made pursuant to Order 18 Rule 18 (1) (b) and (d) of the High Court Rules 1988 and under the inherent jurisdiction of the High Court.
  3. The Plaintiff opposed the Defendant’s Striking out application.
  4. The application was heard in terms of the oral and written submissions made in this proceeding by the Plaintiff and the Defendants.

THE LAW and PRACTICE

  1. The law on striking out pleadings and endorsements is stipulated at Order 18 Rule 18 of the High Court Rules 1988 which states as follows-
  2. His Lordship Mr Justice Kirby in Len Lindon –v- The Commonwealth of Australia (No. 2) S. 96/005 summarised the applicable principles as follows:-
    1. 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.
    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 ... or is advancing a claim that is clearly frivolous or vexatious...
    1. 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.
    1. 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.
    2. 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.
    3. 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.
PLAINTIFF’S CASE
  1. The background of the case as articulated in the ruling of the Master in Fiji Peacekeeping & Action Trustee Association v Minister of Home Affairs, Commander RFMF & Attorney General Civil Action HBC 101 of 2014 given on 08th February, 2016 is an accurate account of the geneses of this case.
  2. That even when before the Court struck this matter pursuant to Order 25 Rule 9 of the High Court Rules, 1988 on 25th August, 2010, the proceedings were at a stage when the pleadings was complete and parties were stage when the inspection of documents before PTC. This same Court, in its wisdom, did not consider these proceedings to be repugnant or inconsistent with the Order 18 of the High Court Rules, 1988 at the time.
  3. Following the Master’s ruling in HBC 101 of 2014, the Plaintiff re-filed the current proceedings expunging the grounds of the claim in the Pleadings that was grounded in Contract and refiled.
  4. In terms of the current action, the Fiji Government committed troops to United Nations Interim Force in Lebanon (UNIFIL) over the period from June 1978 to March 2002 and the Defendants herein carried out government’s decision to join UNIFIL force to assist the UN Security Council’s plan restore peace and normalcy back to South Lebanon.
  1. The troops that were committed were utilised to fulfil Fiji’s obligations to world peace. These same troops are now members of the Plaintiff entity seeking redress through Courts for prevalent injustices committed at their expense by the Defendants.
  2. Pursuant to government’s commitment, Fijian troops from 3rd Defendant took part on active military and peacekeeping operations over the period June 1978 to March 2002 with UNIFIL resulting in the loss of 32 lives with numerous others injured as a result.
  3. The Plaintiff instituted these proceedings against the Defendants claiming that they have either individually or collectively misdirected, being negligent and/or unjustly enriched themselves and/or defrauded the Plaintiff and former peacekeepers of UNIFIL of their pay and allowances.
  4. The Plaintiff claims that over the period June 1978 to March 2002 the UN via Fiji Permanent Mission in New York (PMNY) office has been remitting funds to the 2nd Defendant for and on behalf of the Fiji Government for pay and allowances for peacekeepers dues for Fiji troops partaking as part of the UNIFIL in Lebanon.
  5. The Plaintiff therefore seeks Declarations and various Orders, Interest and Costs in terms of paragraph 54 (a) – (i) inclusive of their claim.
DEFENDANTS’ CASE
  1. The predecessor of these proceedings are:
  2. The legal issues currently before this court are:
  3. At the outset, the Defendants contention is that this proceedings is statute barred in accordance with Section 4 of the Limitation Act 1971 (Act) and that this has been decided in the 2014 Matter. Accordingly, the principle of res judicata is applicable in this matter and estops any matter arising out of the same cause of action stipulated in the Act within the same period. Thereby, resulting in any proceedings being instituted, arising out of cause of actions within the same period, being frivolous or vexatious and an abuse of the process of the court.
ANALYSIS and DETERMINATION
  1. It is well established that jurisdiction to strike out claim or pleadings should be used very sparingly and only in exceptional cases: Timber Resource Management Limited v. Minister for Information and Others [2001] FJHC 219; HBC 212/2000 (25 July 2001).
  2. In National MBF Finance (Fiji) Ltd v. Buli Civil Appeal No. 57 of 1998 (6 July 2000) the Court 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....”

Scandalous?

  1. Reference is made to the Supreme Court Practice 1993 (White Book) Vol. 1 at paragraph 18/19/14 states as follows-

"The Court has a general jurisdiction to expunge scandalous matter in any record or proceedings (even in bills of costs, Re Miller (1884) 54 L.J.Ch. 205). As to scandal in affidavits, see O.41, r.6.’

Further, the White Book Volume 1, 1987 Edition states as follows-

Allegations of dishonesty and outrageous conduct, etc., are not scandalous, if relevant to the issue (Everett v. Prythergch (1841) 12 Sim. 363; Rubery v. Grant (1872) L.R. 13 Eq.443).

"The mere fact that these paragraphs state a scandalous fact does not make them scandalous" (per Brett L.J. in Millington v. Loring (1881) 6 Q.B.D. 190, p.196). But if degrading charges be made which are irrelevant, or if, though the charge be relevant, unnecessary details are given, the pleading becomes scandalous (Blake v. Albion Assurance Society (1876) 45 L.J.C.P. 663)."

  1. The current application before Court for determination may be interlocutory in its nature. However, the factual basis on the allegations contained in the Plaintiff’s Pleadings in terms of the “Cause of Action” allegedly took place over the periods June 1978 and March 2002 is the same as was in HBC 104 of 2014. The Court decided therein in HBC 104 of 2014 that the Plaintiff’s “Cause of Action” was Statute Barred.
  2. Therefore, bearing in mind the nature of the Plaintiff’s Pleadings including the Cause of Action that has been raised by the Plaintiff will not be able to prove or succeed otherwise.
  3. Therefore, I find that the Plaintiff’s Claim is now “Scandalous” in its nature.

Frivolous or vexatious?

  1. Frivolous or vexation is said to mean cases which are obviously frivolous or obviously unsustainable. The court will strike out a pleading on this ground if the claim, if known in law, is factually weak, worthless or futile. Reference is made to the Supreme Court Practice 1993, Vol. 1 (White Book) at paragraph 18/19/15 which states -

"By these words are meant cases which are obviously frivolous or vexatious or obviously unsustainable per Lindley LJ in Attorney General of Duchy of Lancaster v. L. & N.W.Ry [1892] UKLawRpCh 134; [1892] 3 Ch. 274, 277; The Pleading must be "so clearly frivolous that to put it forward would be an abuse of the Court" (per Juene P. in Young v. Halloway [1894] UKLawRpPro 42; [1895] P 87, p.90; ...."

  1. In Devi v. Lal [2014] FJHC 75; HBC 120.2008 (7th February, 2014) - It was held as follows-

“The Oxford Advanced Learners Dictionary of Current English 7th Edition defines the words "frivolous" and "vexatious" as:-

Frivolous: "having no useful or serious purpose"
Vexatious: "upsetting" or "annoying"

‘Therefore, for a claim to be frivolous or vexatious, the Appellants must establish that the claim lacks merit (i.e. has no useful purpose) and is only to upset or annoy the Applicants’.

  1. The Plaintiff claims at paragraph 15 of its Statement of Claim against the Defendants that they have either individually or collectively misdirected, being negligent and /or unjustly enriched themselves and/or defrauded the Plaintiff and former peacekeepers of UNIFIL of their pay and allowances as referred in paragraph 14 of the claim. Further, the Plaintiff claims that over the period June 1978 to March 2002, the UN via Fiji Permanent Mission in New York office has been remitting funds to the 2nd Defendant for and on behalf of the Fiji Government for pay and allowances for peacekeepers dues for Fiji troops partaking as part of the UNIFIL in Lebanon.
  2. Above causes of action and the Basis of the Plaintiff’s Claim was determined by this Court in the previous Civil Action No. HBC 104 of 2014 and this Court notes that yet again the Plaintiff refiles the present Action in terms of the same Cause of Action which allegedly took place over the period June 1978 to March 2002.
  3. I therefore find that the Plaintiff’s Claim is frivolous and vexatious in its nature as explained hereinabove accordingly.

(b) Whether the Plaintiff’s claim is statute barred?

Section 4 of the Limitation Act, Cap 35


  1. Section 4 of the Limitations Act (Cap 35) states as follows:

4. (1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-

(a) Actions founded on simple contract or on tort;
(b) Actions to enforce a recognizance;
(c) Actions to enforce an award, where the submission is not by an instrument under seal;

Provided that-

(i) in the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under any Act or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for the reference to six years there were substituted a reference to three years; and

(ii) Nothing in this subsection shall be taken to refer to any action to which section 6 applies.

(7) This section shall not apply to any claim for specific performance of a contract or for any injunction or for other equitable relief, except in so far as any provision thereof may be applied by the court by analogy in like manner as has, prior to the commencement of this Act, been applied. (As submitted by Plaintiff’s Counsel)....

  1. The Defendants submitted as follows-
  2. The Plaintiff submitted the following-
  3. This Court had already decided in Civil Action HBC No. 101 of 2014 that the “Cause of Action” was Statute Barred. The Plaintiff sought not to challenge the said decision of this Court at the appropriate venue of which he is very aware of. The Question whether the Cause of Action was Statute Barred, has already been decided in HBC N0. 101 of 2014 accordingly.

Therefore, the decision on the Question that the Cause of Action was Statute Barred by legislation now operates as Res-Judicata to the present action.

(c) Whether the principle of Res Judicata or cause of action estoppel applies?
  1. The Defendants referred Court to paragraph 28 of the Ruling delivered in HBC 101 of 2014 in terms of the six (6) elements that must be established according to Spencer-Bower & Turner. The Doctrine of Res Judicata, 2nd Edition, 1969,pp. 18,19-refers-

(vi) That the parties to the judicial decision, or their privies, were the same persons as the parties to the proceeding in which the estoppels is raised, or their privies, or that the decision as conclusive in rem"

  1. According to the Defendants, the first 3 elements as set out there are undisputed between the parties.
  2. With regards to the 4th element, the Ruling in HBC 101 of 2014 is a final decision and paragraph 38(B) of the Ruling states that “the Plaintiff’s Claim is Statute Barred in terms of the limitations Act, Cap 35.”
  3. In respect of 5th element, the legal issues raised herein were also raised in HBC 101 of 2014 and made reference to her written submissions at paragraph 3.1.
  4. With regards to 6th element, the parties or their privies in the 2014 matter are involved in this proceeding. Notwithstanding the addition of the Minister for Finance as a party in this proceedings, the Defendant’s submission is that the parties are the same pursuant to section 12(3) of the State Proceedings Act 1951 (“Civil proceedings against the State shall be instituted against the Attorney-General.”), as the Attorney- General is a party in both matters.
  5. Res Judicata is within the ambits of Order 18 Rule 18: Reference made to case of Richies v DPP [1973] 2 All ER 935.
  6. On the other hand, the Plaintiff’s contention is that the principle of Res Judicata does not apply but still the Defendants are laboring on Res Judicata.
  7. In support of above, the Defendant referred Court to paragraph 33 of the Ruling in HBC 104 of 2014 on the subject of Res Judicata.
  8. The underlying principle in Res Judicata is that “a party cannot be penalized more than once for the same mistake. The Plaintiff will not be entitled to have a second bite of the same cherry.”
  9. This Court had earlier decided that the “Cause of Action” filed in HBC 101 of 2014 after a lapse of 12 years was Statute Barred in 2014.
  10. The basis of claim as referred in paragraph 15 and 16 of the Plaintiff’s Statement of Claim does not have the effect of extending the period within which the action should have been brought.
  11. Therefore, even if this Court takes into account and presumes that there is/are some variation(s) in terms of the “Cause of Action” of the Plaintiff’s action in the current case HBC 96 of 2016, still the Plaintiff cannot file and commence the current proceedings.
  12. The reason being that this very Court has already decided that the Plaintiff’s Claim was Statute Barred in HBC 101 of 2014 and I reiterate that in the within circumstances the Plaintiff’s Claim will now operate as Res Judicata.
  13. It is well settled that this Court has inherent jurisdiction to strike out the claim or pleadings for abuse of Court process and reference is made to paragraph 18/19/18 of the Supreme Court Practice 1993 Vol. 1.-

At paragraphs 18/19/17 and 18/19/18 of Supreme Court Practice 1993 (White Book) Vol 1 it is stated as follows:-

"Abuse of Process of the Court"- Para. (1) (d) confers upon the Court in express terms powers which the Court has hitherto exercised under its inherent jurisdiction where there appeared to be "an abuse of the process of the Court." This term connotes that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent the improper use of its machinery, and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation (see Castro v. Murray (1875) 10 P. 59, per Bowen L.J. p.63). See also "Inherent jurisdiction," para.18/19/18."

"It is an abuse of the process of the Court and contrary to justice and public policy for a party to re-litigate the issue of fraud after the self-same issue has been tried and decided by the Irish Court (House of Spring Gardens Ltd. v. Waite {1990} 2 E.R. 990 C.A)."

"Inherent Jurisdiction - Apart from all rules and Orders and notwithstanding the addition of para. (1) (d) the Court has an inherent jurisdiction to stay all proceedings before it which are obviously frivolous or vexatious or an abuse of its process (see Reichel v. Magrath [1889] UKLawRpAC 20; (1889) 14 App.Cas. 665). (para 18/19/18). (Underline is mine for emphasis)

  1. 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"

  1. The Plaintiff is well aware of the fact that it had previously filed and commenced proceedings as set out hereunder in this very Court on the same Cause of Action which allegedly arose between June 1978 and March 2002 and determined as follows;-
  2. However, the Plaintiff knew very well and was fully aware of the fact that the Court has already decided in HBC 101 of 2014 that the Plaintiff’s Action was statute Barred.
  3. Notwithstanding the earlier Court’s decision, the Plaintiff yet again decided to refile a new Action HBC No. 96 of 2016 on the same Cause of Action which arose between June 1978 and March 2002.
  4. The Plaintiff himself has admitted in paragraph 7 of their affidavit in reply filed on 1 August 2016 that “this present matter deals with events between the periods June 1978 to March 2002”.
  5. Therefore, in light of above rational, I find that the Plaintiff’s action before this Court without any doubt is an abuse of the process of the Court.
  6. In terms of Costs issue, this application seeking striking out of the Plaintiff’s Writ and the Statement of Claim was filed by the Defendants. Both parties filed written submissions and made appearances. Both have obviously incurred costs. Since the Defendant’s striking out application succeeds against the Plaintiff, the Defendants are entitled in the circumstances to costs summarily assessed at One Thousand Five Hundred Dollars ($1,500).
  7. In Conclusion, I make the following orders accordingly.

FINAL ORDERS


(i) That the Defendant’s Summons seeking the Striking Out of the Plaintiff’s Writ of Summons and the Statement of Claim hereby succeeds.
(ii) That the Plaintiff’s Claim was already determined by Court to be Statute Barred in the earlier Civil Action HBC 101 of 2014 on 08th February, 2016 and therefore the Plaintiff’s Action now operates as Res Judicata to the present Civil Action HBC 96 of 2016.
(iii) That the Plaintiff’s Writ of Summons and the Statement of Claim is hereby struck out and dismissed accordingly.
(iv) The Plaintiffs to pay to the Defendants summarily assessed cost of $1,500 within 14 days.
(v) Orders accordingly.

DATED AT SUVA THIS 11TH DAY OF OCTOBER, 2017

.................................................................

MR VISHWA DATT SHARMA

cc: Muskits Law, Suva
Office of the Solicitor-General, Suva

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