Air Pacific Ltd (trading as Fiji Airways) v Sharma [2022] FJHC 574; HBC122.2017 (9 September 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

HBC 122 of 2017

BETWEEN:

AIR PACIFIC LIMITED trading as FIJI AIRWAYS a limited liability company having its registered office

at Nasoso Road, Nadi.

INTENDED APPELLANT /

[ORIGINAL DEFENDANT]

A N D:

SUDESH SHARMA of Lomawai, Sigatoka, Businessman and Farmer

INTENDED RESPONDENT /

[ORIGINAL PLAINTIFF]

Appearances: Mr. Prasad for the Intended Appellant/Original Defendant

Ms. Vikash for the Intended Respondent/Original Plaintiff

Date of Hearing: 23 June 2022

Date of Ruling: 09 September 2022

R U L I N G

INTRODUCTION

1. Air Pacific Limited (“Air Pacific”), the Intended Appellant, filed an application on 24 December 2021 seeking the following:
   
   • (a) that leave be granted to appeal and file grounds of appeal against the Ruling.
   • (b) that costs of this application be in the cause; and
   • (c) any other orders that this Court deems just and expedient.
     
2. The decision in question was handed down by the Master U. L. Mohammed Azhar on 14 December 2021. By the said decision, the Learned Master had dismissed an application filed by Air Pacific to strike out the Intended Respondent’s (“Sharma”) writ of summons and statement of claim.
   
3. Air Pacific has filed and served extensive written submissions. Sharma has chosen not to file any submissions.
   
4. At the hearing, Mr. Prasad of counsel for the applicant went to great lengths to argue the appeal proper.
   
5. The proposed grounds of appeal are set out further below. See paragraph 38 below.
   

BACKGROUND

6. Sharma, I gather, is originally from Fiji. The intituling describes Sharma’s residential address as “Lomawai, Sigatoka”. However, it appears that he now resides in Australia.
   
7. In 2015, Sharma and his daughter came to Fiji for a holiday. They were booked to return to Australia on 09 July 2015. He was due to appear in a Local Court in Australia on 10 July 2015 for a criminal case.
   
8. On 09 July 2015, at the terminal at Nadi International Airport, Sharma noted that the departure time on his ticket was 7.15 a.m. He saw that the departure time on the daughter’s ticket was 7.00 a.m. Concerned, Sharma then approached an officer who was servicing the counter – desk to see if he and his daughter could be placed on the same flight. The officer told Sharma that this was not possible.
   
9. Sharma then approached another officer. This other officer advised Sharma that there was only one Nadi to Sydney flight scheduled on that day and that Sharma and his daughter were in fact booked on that same flight. Sharma then went back to the counter desk clerk. He told her that she should have known of this and that she should give accurate information to customers.
   
10. The counter desk clerk apparently took issue with Sharma’s approach. He (or she) immediately lodged a complaint with the Police. The complaint was that Sharma had used foul and abusive language when he returned to speak to the counter-desk staff.
    
11. The police then came to question Sharma. However, they released him a short-while later. Sharma then proceeded to board the flight to Sydney. However, he was told that he could not take the flight unless he was cleared by the Police. Sharma then returned home to wait for the Police to take the necessary steps.
    
12. Two weeks later the Police called Sharma to clear him. No charges were laid against him. He eventually flew out to Sydney on 27 July 2015.
    
13. In Australia, the next day (28 July 2015) – Sharma surrendered himself to the Australian Police. Apparently, a bench warrant was issued against him on account of his failure to attend his criminal case on 10 July 2015. He was placed in custody and was released on bail with strict conditions two days later. A travel ban was issued on him. His passport was seized. He was also required to report to Ryde Police Station three times a week.
    
14. All the above is based on the facts as pleaded in the statement of claim.
    

THE SUIT

15. Sharma sues Air Pacific based on his claim that its counter-desk clerk falsely and maliciously reported him to police and caused him to suffer damages.
    
16. According to Sharma - the two officers he spoke to were both staff members of Air Pacific.
    
17. Air Pacific however had argued that the two officers involved were both employed by Airports Fiji Limited (“AFL”). AFL was contracted to, inter alia, man the counter desks.
    
18. Sharma however is adamant that it was a staff of the Air Pacific with whom he spoke and who had lodged a false and malicious compliant to the Police. The Master correctly opined that this is a triable issue of fact. In any event, in a striking out application, it is assumed that the facts as pleaded in the claim are all proven and true.
    
19. As one would expect, Sharma and Air Pacific differ as to the tone in which Sharma spoke to the counter desk officer.
    
20. Sharma pleads that the counter desk clerk falsely and maliciously reported to police that Sharma used foul and or abusive language when he returned to him. Clearly, this means two things: firstly, it means that according to Air Pacific, Sharma had used foul and abusive language at that time secondly, it means that Sharma refutes the allegation that he used foul and abusive language. Again, it is assumed that the facts as pleaded in the claim are all proven and true.
    
21. The main question then is, assuming that Sharma did not use any foul and abusive language at all material times, whether (i) the counter desk staff acted falsely and maliciously and (ii) whether there is an immunity.
    

POWER TO STRIKE OUT – DISCRETIONARY

22. The power to strike out a pleading under Order 18 Rule 18 of the High Court Rules 1988 is a discretionary power as the Master correctly observed in his ruling. The Master is also correct in his observation that an application under Order 18 Rule 18(1)(a) to strike out a pleading on the ground that it (pleading) discloses no reasonable cause of action – requires no evidence because such an application is decided on the presumption that the facts as pleaded on the claim are proven.
    
23. Generally, the general principle that an order for striking out should only be made where it is plain and obvious that the claim or defence cannot succeed (as per Lord Pearson in Drummond-Jackson v British Medical Association [1970] 1 All ER 1094; Marsack J.A. in Attorney General v Halka [1972] 18 FLR 210; Salmon LJ in Nagle v Feilden [1966] ɪ All ER 689 at 697. Courts should not strike out an action merely because it appears weak, or, the plaintiff or the defendant is unlikely to succeed in his or her claim or defence.
    
24. Air Pacific’s summons before the Master was based on three grounds. These were (i) that the claim does not disclose reasonable cause of action (ii) that the action is scandalous, frivolous and vexatious, and (iii) that, it is otherwise abuse of the process.
    
25. I have reviewed the Master’s reasoning in his decision and I am of the view that the Master did not err in his reasoning when he concluded that (i) the facts as pleaded did not disclose a case for defamation and (ii) however, the ‘alleged false report’ may fall under the ‘actionable malicious falsehood’ and (iii) whether or not it does is a question of fact which is a triable issue.
    
26. The Master noted inter alia that Air Pacific’s counsel had argued that Sharma does not allege that the ‘false report’ was made in connection with his goods or business. Rather, the alleged “false report” are about Sharma’s own conduct at the Airport on the day in question.
    
27. The Master dealt with this point by referring to section 11 of the Defamation Act 1971 (Cap 34) which I set out below:
    

Slander of title, etc.

11.-(1) In an action for slander of title, slander of goods or other malicious falsehood, it shall not be necessary to allege or prove special damage-

(a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form; or

(b) if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication.

28. The Master then said that it is not necessary to allege or prove special damages in case of slander of title or slander of goods or other malicious falsehood:
    

It is the duty of the trial judge to determine whether those words in that ‘alleged false report’ fall under the above exceptions ..... [under section 11(1)(a) or (b)] ....or not, and or whether the plaintiff is relieved from alleging or proving his special damages as provided by the above provisions. This court, which only considers the mere allegations in the pleadings to determine existence of reasonable cause of action, cannot go to the merits of the matter and decide the link between the damages and the alleged report, as the counsel for the defendant company argued, when the statute clearly set out the circumstances which relieve the plaintiff from alleging or proving damages. As a result, I decide that, the pleadings disclose a reasonable cause of action for malicious falsehood and they cannot be struck out, exercising the jurisdiction which is sparingly used only when the pleadings are obviously unsustainable.

29. Accordingly, he did not feel compelled to strike out the plaintiff’s action on the basis that, the plaintiff’s pleadings do not disclose reasonable cause of action.
    
30. Having said that, the Master then went on to deal with the other grounds of striking out, namely the frivolous and vexatious ground and the abuse of process ground. He then concluded that:
    

There is nothing in this case which can suggest that, the plaintiff sued the defendant company in order to annoy or harass it. Nor it seems that, this action is for collateral purpose or aimed at serving extortion or oppression or exerting pressure so as to achieve an improper end. There cannot be any such reason for an individual to sue an established air carrier unless such person has some kind of grievance against it. It cannot be said for sure, at this moment, that the plaintiff will be able to prove his case against the defendant company so as to get remedy for his alleged grievance. It depends on how he fulfills the necessary requirements for a cause of action for malicious falsehood. However, it cannot be said now that his action is frivolous or vexatious or abuse of the process of the court. (emphasis added)

31. In the end, he dismissed the striking out application and ordered the defendant to pay the plaintiff costs in the sum of $1,000.
    

PRINCIPLES FOR GRANTING LEAVE TO APPEAL

32. The application seeking leave to appeal the said decision is filed pursuant to Order 59, Rule 11 of the High Court Rules 1988. It is supported by an affidavit of Gordon Penfold sworn and filed on 24 December 2021. I agree that the order made by the learned Master in response to the striking out was an interlocutory order. Order 59 Rule 8(2) of the High Court Rules states as follows:

(2) No appeal shall lie from an interlocutory order or judgment of the Master to a single judge of the High Court without the leave of a single judge of the High Court which may be granted or refused upon the papers filed’

33. Order 59 Rules 9 provides:
    
    9. An appeal from an order or judgment of the Master shall be filed and served within the following period –
       

(a) 21 days from the date of the delivery of an order or judgment; or

(b) In the case of an interlocutory order or judgment, within 7 days from the date of the granting of leave to appeal.

34. Order 59 Rule 10 provides:
    

10. (1) An application to enlarge the time period for filing and serving a notice of appeal or cross-appeal may be made to the Master before the expiration of that period and to a single judge after the expiration of that period.

(2) An application under paragraph (1) shall be made by way of an inter-parte summons supported by an affidavit.”

35. Order 59 Rule 11 provides:
    
    11. Any application for leave to appeal an interlocutory order or judgment shall be made by summons with a supporting affidavit, filed and served within 14 days of the delivery of the order or judgment.
36. The learned Master delivered his Ruling on 14 December 2021. The intended appellant filed and served its application for leave to appeal on 24 December 2021. This is within the fourteen days stipulated under Order 59 Rule 11 of the High Court Rules 1988.
    
37. Generally, leave to appeal is refused for interlocutory decisions. This is mainly done in order to discourage abuse of process. If leave was readily granted, the result would be a plethora of leave to appeal applications relating to trivial interlocutory determinations. Pathik, J in Bank of Hawaii v Reynolds [1998] FJHC 226. His Lordship cited the following passage from Ex Parte Bucknell [1936] HCA 67; [1936] 56 CLR 221 at pages 225 and 226 which supports this position.
    

.... the prima facie presumption is against appeals from interlocutory orders, and therefore, an application for Leave to Appeal ... should not be granted as of course without consideration of the nature and its circumstances of the particular case. It would be unwise to attempt on an exhaustive statement of the considerations which should be regarded as a justification for granting Leave to Appeal in the case of an interlocutory order, but it is desirable that, without doing this, an indication should be given of the matters which the Court regards as relevant upon an application for leave to appeal from an interlocutory judgment.

(see also the Fiji Court of Appeal in Kelton Investments Ltd v Civil Aviation Authority of Fiji [1995] FJCA 15; ABU0034D.95S (18 July 1995); Ashmore v Corp of Lloyd's [1992] 2 All ER 486; Murphy J in Niemann v Electronic Industries Ltd [1978] VicRp 44; (1978) VR 431 at 441-2; Decor Corp v. Dart Industries [1991] FCA 655 104 ALR 62 at 623 lines 29-31; Ex-parte Bucknell [1936] HCA 67; (1936) 56 CLR 221 at 224); Darrel Lea v. Union Assurance (169) VR 401 at 409 the Full Court of the Supreme Court of Victoria).

INTENDED APPELLANT’S PROPOSED GROUNDS OF APPEAL

38. The intended appellant’s proposed ground of appeal are as follows:-
    
    • (i) In dealing with the application under Order 18 , Rule 18 (1) (a) of the High Court Rules that the statement of claim does not disclose any reasonable cause of action:
      • (a) The Learned Master correctly cited the elements of cause of action for ‘malicious/injurious falsehood” in paragraph 11 of the Ruling, however, erred in law and in fact in failing to find that the statement of claim patently lacks sufficient facts and/or particulars to satisfy those elements and therefore cannot be maintained, and
      • (b) The Learned Master erred in law in failing to address that reporting a possible crime to police (which the Appellant denies doing) orally or in writing as a matter of public interest is absolutely privileged from a civil action in the manner pursued by the Respondent.
      • (c) The Learned Master erred in law and in fact that paragraph 12 of the statement of claim sufficiently pleaded the elements of ‘falsity’ and ‘malice’ when no such pleadings and/or particulars is present in that paragraph or statement of claim as a whole; and
      • (d) The Learned Master took into consideration matters not before the Court and therefore erred in fact in finding at paragraph 19 that the Appellant ‘admitted existence of [the] ‘alleged false report’ about the [Respondent] when, save as to the fact a possible crime was reported by an ATS employee to the police, no such admission was made by the Appellant.
        
    • (ii) In dealing with the application under Order 18, Rule 18 (1) (b) and (d) of the High Court Rules that it is scandalous, frivolous or vexatious and that it is an abuse of process of the Court respectively:
      • (a) The Learned Master erred in fact and law in paragraph 27 when he failed to recognize that the statement of claim in the present form as pleaded against the Appellant cannot be maintained and therefore frivolous and an abuse of Court process.
      • (b) The Learned Master erred in fact and in law in leaving the Respondent to “fulfill the necessary requirements for a cause of action for malicious falsehood” when the statement of claim in its present form does not effectively plead and/or provide particulars of such a cause of action in the first place.
        
    • (iii) The Appellant upon preparing the record seeks to make such further or other grounds of appeal as may be apparent to him upon provision of the Record and reserves the right to argue based on such amended grounds.
      

COMMENTS

39. To succeed, the intended appellant must show that the Master’s exercise of discretion in refusing its application under Order 18 Rule 18 (1) to strike out the claim was plainly wrong, and/or, that there are exceptional circumstances in the case which warrant the granting of leave. In this regard, the Court may consider whether applicant will suffer substantial injustice if leave is not granted.
    
40. I have reviewed the Master’s Ruling. I have no reason to fault the Master’s reasoning in his exercise of discretion in refusing to strike out the claim on the three grounds stated above.
    
41. However, it appears that the Learned Master did not deal with the other issue raised as to whether the defence of absolute privilege applies to malicious falsehood actions based on an alleged false and malicious complaint to the Police? Mr. Prasad submits that the point was raised before the Master. I observe that the Master did not consider this point in his Ruling.
    
42. In his submissions, Mr. Prasad accentuates the fact that there is a public interest involved in relation to such complaints and, accordingly, the common law extends to such cases a defence of absolute privilege. He further submits that the reporting of a possible crime to Police - whether orally or in writing - is covered by the defence of absolute privilege which insulates the maker of the report from a civil action. It is argued that the alleged oral complaint was published to the Police in their capacity as investigators of crime. The intention was that the Police should make a record of the complaint to be used as the point of reference in their investigations.
    
43. I consider the following two questions in my deliberation on whether or not to grant leave. In my view, they are relevant to the question as to whether or not there are exceptional circumstances in this case which warrant the granting of leave to appeal the interlocutory decision of the Learned Master:
    
    • (a) whether the defence of absolute privilege applies to malicious falsehood claims and, if so
    • (b) whether the availability of the defence of absolute privilege can justify the striking out of a claim

DOES THE DEFENCE OF ABSOLUTE PRIVILGE APPLY TO MALICIOUS FALSEHOOD CLAIMS?

44. I have reviewed the following cases submitted by Mr. Prasad which support the principle that a defence of absolute privilege is available to, and may be pleaded by, a party who faces a civil suit based on information given by the said party to the police which tends to implicate another who has filed the suit.
    

(see Evans v London Hospital Medical College [1981] 1 WLR 184; Daniel v Griffiths [1997] EWCA Civ 2836; [1998] E.M.L.R 488; Taylor v Serious Fraud Office [1998] UKHL 39; [1999] 2 A. C 177; Westcott v Westcott [2008] EWCA Civ 818 (15 July 2008); BHX v. GRX and Anor. [2021] EWHC 770 (QB) (29 March 2021)

WHETHER THE AVAILABILITY OF THE DEFENCE OF ABSOLUTE PRIVILEGE CAN JUSTIFY THE STRIKING OUT OF A CLAIM?

45. The underlying question here is – whether there are triable issues involved in the question as to whether or not the defence is available?
    
46. In other words, is the defence available to anyone who acted maliciously in uttering a statement to the Police knowing the statement to be false? Is malice a triable issue?
    
47. In Westcott v Westcott [2008] EWCA Civ 818 (15 July 2008) a doctor by the name of Sarah Westcott alleged in her complaint to the Police that her father in law, Richard Westcott, who was a Justice of the Peace – had assaulted her. At the time, Sarah’s marriage to Edward (Richard’s son) was breaking down.
    
48. Sarah and Edward had a young baby. The alleged assault happened when Sarah was delivering the baby to Edward at Richard’s house, where Edward was staying, and as per their contact arrangement. At Richard’s house, a heated argument broke out between Sarah, Edward and Richard. Sarah’s statement to the police was that she was holding the baby when Richard lashed out at her. He struck the baby.
    
49. Although no prosecution ensued from Sarah’s complaint, word of her complaint got around. According to Richard, his position as a JP and member of the Family Panel of the Family Proceedings Court was seriously compromised as a result of Sarah’s allegations. Apparently, Social Services, without any investigation of the allegations, regarded Richard as someone from whom his grandchild should be protected. This particularly upset Richard. He then sued Sarah for libel and slander.
    
50. The High Court held that Sarah’s oral complaint to the police was protected by absolute privilege and immunity from suits. Richard’s action was therefore stuck out.
    
51. On appeal, the preliminary issue for the Court of Appeal was whether Sarah’s complaint was protected by absolute privilege or only qualified privilege.
52. Notably, Richard’s case was premised on the argument that Sarah had acted maliciously as she had made the allegations knowing them to be false.
    
53. Lord Justice Ward at paragraph 32 summarized the competing interests as follows:
    

... the justification for absolute immunity from suit will depend upon the necessity for the due administration of criminal justice that complaints of alleged criminal conduct should always be capable of being made to the police free from fear that the person accused will subsequently involve the complainant in costly litigation. There is a countervailing public interest in play which is that no-one should have his or her reputation traduced, certainly not without affording him or her a remedy to redress the wrong. A balance has to be struck between these competing demands: is it necessary to clothe the occasion with absolute privilege in which event even the malicious complainant will escape being held to account, or is it enough to allow only the genuine complainant a defence? Put it another way, is it necessary to protect from vexatious litigation those persons making compliant of criminal activity even at the cost of sometimes granting that impunity to malicious and untruthful informants? It is not an easy balance to strike. We must be slow to extend the ambit of immunity.

54. In dismissing the appeal, Ward LJ concluded that the need for individuals to report crimes without fear of suit was overriding factor. His Lordship echoed the following at paragraph 34:-
    

....immunity for out of Court statements is not confined to persons who are subsequently called as witnesses. The policy being to be enable people to speak freely, without inhibition and without fear of being sued, the person in question must know at the time he speaks whether or not the immunity will attach. Because society expects that criminal activity will be reported and when reported investigated and when appropriate, prosecuted, all those who participate in a criminal investigation are entitled to the benefit of absolute privilege in respect of the statements which they make. That applies whether they are informants, investigators, or prosecutors (emphasis is added).

55. The Court contended as follows at paragraph 36:
    

The police cannot investigate a possible crime without the alleged criminal activity coming to their notice. Making an oral complaint is the first step in that process of investigation. In order to have confidence that protection will be afforded, the potential complainant must know in advance of making an approach to the police that her complaint will be immune from a direct or a flank attack. There is no logic in conferring immunity at the end of the process but not from the very beginning of the process. Mr. Craig’s [Richard barristers] distinction between instigation and investigation is flawed accordingly. In my judgment, any inhibition on the freedom to complain will seriously erode the rigors of the criminal justice system and will be contrary to the public interest. In my judgment immunity must be given from the earliest moment that the criminal justice system becomes involved. It follows that the occasion of the making of both the oral complaint and the subsequent written complaint must be absolutely privileged.

56. In Evans v London Hospital Medical College [1981] 1 WLR 184, a deceased child was found to be contaminated with morphine following a postmortem. A statement was made to the police based on the analyst report. Based on these, criminal proceedings were instituted against the mother. The veracity of the analysis was later in doubt. Consequently, no evidence was presented at trial.
    
57. The mother sued the hospital and the analysts claiming negligence in permitting the organs to become contaminated and in not retracting their reports subsequently. It was held that common law immunity is available to potential witnesses in criminal proceedings who divulge evidence when proceedings are in contemplation but have not yet been commenced.
    
58. The Master struck out the claim on the ground that the defendants were at all times acting in the course of preparing evidence for a possible prosecution and were- accordingly – immune from a civil suit. Drake J said:
    

The protection exists only where the statement or conduct is such that it can fairly be said to be part of the process of investigating a crime or possible crime with a view to a prosecution or possible prosecution in respect of the matter being investigated.

The written statement was part of the process of investigating the possible crime which the prior oral complaint disclosed and fell within the immunity from suit.

See also Lord Hope of Craighead’s and Lord Mackay of Crashfern’s separate comments in the House of Lords case of Darker v Chief Constable of the West Midlands Police [2001] 1 A.C.435 for an insightful review of relevant authorities on the subject.

59. In Daniel v Griffiths [1997] EWCA Civ 2836; [1998] E.M.L.R 488, the plaintiff sued for damages for slander based on information given to the police by the defendant. The action was struck out as being an abuse of process. It was held to be vexatious. Sir Brian Neill in his judgment said:
    

It is clear...that...the defendant made a statement to the police to the effect that she was being harassed by the plaintiff and that a witness statement was taken from her. The contents of that witness statement and the details of any previous discussions leading to the taking of the witness statement would appear to be covered by the rule as to immunity.

60. In Taylor v Serious Fraud Office [1998] UKHL 39; [1999] 2 A. C 177, Lord Hoffmann struck out a claim for defamation based on the contents of a letter and file note prepared by the defendants during the investigation of the matter and said as follows:
    

.....I find it impossible to identify any rationale principle which would confine the immunity for out of Court statements to persons who are subsequently called as witnesses. The policy of the immunity is to enable people to speak freely without fear of being sued, whether successfully or not. If this object is to be achieved, the person in question must know at the time he speaks whether or not immunity will attach. At the time of the investigation, it is often unclear whether any crime has been committed at all. Persons assisting the police with their inquiries may not be able give any admissible evidence; for sample, their information may be hearsay, but nonetheless valuable for the purposes of the investigation. But the proper administration of justice requires that such people should have the same inducement to speak freely as those whose information subsequently forms the basis of evidence at a trial.

61. In Buckley v Dalziel [2007] EWHC 1025; [2007] 1 WLR 2933, the defendants made complaints to the police that their neighbor had caused damage to their trees and hedges. The neighbor was later arrested. However, no criminal charges were brought against him. The neighbor later brought a slander claim against the defendants firstly in relation to three initial telephone calls to the police and a claim in libel against in respect of the witness statement he provided to a police officer. The defendant applied for summary judgment on the basis that the alleged libel was published on an occasion of absolute privilege.
    
62. It was held that the defendant’s communication to the police officer in his witness statement was protected by absolute privilege and immunity from suit. The public policy considerations which applied to the immunity afforded to mere witnesses applied with equal validity to initial complainants.
    

(see also BHX v. GRX and Anor. [2021] EWHC 770 (QB) (29 March 2021); Badrul Huda v. Lorraine Wells & Ors. [2017] EWHC 2552 (QB) (16 October 2017);

CONCLUSION

63. Based on the above authorities, and in the peculiar circumstances of this case based on the facts as pleaded in the claim, there is an extremely strong argument that absolute immunity applies to the complaint lodged by the counter-desk staff to the Police in this case. Flowing from that, there is ample room for argument that the action is vexatious and is an abuse of process and should be struck out summarily.
    
64. Leave to appeal granted. Parties to bear their own costs.
    

Anare Tuilevuka

JUDGE

Lautoka

09 September 2022