Ratumaiyale v Native Land Trust Board [2000] FJLawRp 66; [2000] 1 FLR 284 (17 November 2000)

[2000] 1 FLR 284

IN THE HIGH COURT OF FIJI

NAPOLIONI KURUCAKE RATUMAIYALE

v

NATIVE LAND TRUST BOARD

AND

PACIFIC OCTOPUS LIMITED

High Court Civil Jurisdiction
Prakash, J
17 November, 2000
HBC0174/00L

Striking Out - statement of claim against 2nd defendant - no cause of action - applicable principles of striking out - NLTB's statutory duties and the consequence of its breach - leave to file counterclaim against plaintiff and another- whether relief is related to or connected with the subject matter of original claim - High Court Rules O.15 rr.3(1), 4, O.18 r. 18; Native Land Trust Act s8, 9, Land Transfer Act (Cap. 131) ss5(c), 39, 40; Supreme Court Practice 1987 Edition p191

Held - (1) Principles applicable to a striking out application: relief is rarely and sparingly used; party seeking relief must show opponent lacks a reasonable cause of action; a weak case is not prima facie sufficient to warrant summary termination; summary relief is not a substitute for proceeding by way of demurrer/trial; whether pleadings can be reframed if it appears a party may have a reasonable cause of action; what is just in each case.

(2) Second defendant's title was indefeasible and it was not required to enquire whether the NLTB had fulfilled its obligations under Native Land Trust Act s9 or any other statutory obligations, thus there is no cause of action against it.

(3) Leave to file a counter claim by the second defendant against the plaintiff need not be same nature as the original action, but an independent action.

Action struck out as against the second defendant. Leave to second defendant to file a counter claim against the plaintiff and another granted.

Cases referred to in Ruling
foll Attorney-General v Shiu Prasad Halka [1972] 18 FLR 210
foll Bavadra v Attorney-General (1987) 3 PLR 95
foll Lindon v Commonwealth [No. 2] [1996] HCA 14; 70 ALJR 541
foll Ratu Epeli Kanakana and 10 Ors v Attorney-General and Native Land Trust Board HBC 0116/99S
foll Neumi Naqura v Native Land Trust Board, Native Lands Commission and Lakomai Island Resort Ltd HBC 375/91
Cons Meli Kaliavu & Others v Native Land Trust Board HBC 107/54
Cons Waisake Ratu No. 2 & Anor v Native Land Development Corporation and NLTB [1987] SC (Cullinan J) 27 February, 1987
Cons Beddall v Maitland (1881) 17 Ch. D.174
Cons Moon and Ors v Atherton [1972] 3 All ER 145
Cons Stooke v Taylor [1880] UKLawRpKQB 65; (1880) 5 Q.B.D. 569

17 November, 2000.

RULING

Prakash, J

By summons dated 8/06/00 the 2nd Defendant is seeking the following:

(i) An Order to strike out the Statement of Claim against the 2nd Defendant on the basis that there is no cause of action against the 2nd Defendant.

(ii) An order that leave be granted to the 2nd Defendant to file a counter-claim against Napolioni Kurucake Ratumaiyale and Atunaisa Naulunivonu both of Waya Island and members of the Mataqali Vunabuevu.

An affidavit in support has been filed in relation to the second order sought.

Striking Out (O. 18 r. 18)

It is clear from the authorities that the Court's jurisdiction to strike out on the grounds of no reasonable cause of action is to be used sparingly and only where a cause of action is obviously unsustainable. It was not enough to argue that a case is weak and unlikely to succeed, it must be shown that no cause of action exists (A-G v Shiu Prasad Halka [1972] 18 FLR 210; Bavadra v Attorney-General [1987] 3 PLR 95. The principles applicable were succinctly dealt by Justice Kirby in London v Commonwealth [No 2] [1996] HCA 14; 70 ALJR 541 at 544 - 545. These are worth repeating in full:

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 (General Street Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128f; Dyson v Attorney-General [1910] UKLawRpKQB 203; [1911] 1 KB 410 at 418).

2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action (Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 68 ALJR 169 at 171f, per Dawson J.) or is advancing a claim that is clearly frivolous or vexatious; (Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 at 91).

3. An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not alone, sufficient to warrant summary termination. (Coe v The Commonwealth [1979] HCA 68; (1979) 53 ALJR 403; (1992) 30 NSWLR 1 at 5-7). Even a weak case is entitled to the time of a court. Experience reaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.

4. Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. (Coe v The Commonwealth [1979] HCA 68; (1979) 53 ALJR 403 at 409). If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.

5. If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleadings. (Church of Scientology v Woodward [1982] HCA 78; (1980) 154 CLR 25 at 79). A question has arisen as to whether O 26 r 18 applies only part of a pleading. (Northern Land Council v The Commonwealth [1986] HCA 18; (1986) 161 CLR 1 at 8). However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr. Lindon's statement of claim; and

6. 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.

The above was cited with approval by my brother Justice Byrne in Ratu Epeli Kanakana and 10 Ors v The Attorney General and NLTB (Civil Action HBC0116 of 1995).

It is clear from the Plaintiff's statement of claim that the substance of its argument revolves around Section 9 of the NLT Act. It claims that "... the first Defendant is prohibited under Section 9 of the Native Land Trust Act from leasing out the land if the members of the Mataqali are in beneficial occupation of the land and if the land is required by the Mataqali or its members during the currency of the proposed lease" (para 4). The plaintiff further claims that in breach of its said duty the 1st Defendant leased the said land to the 2nd Defendant (para 6). The substantive relief it is seeking is that Native Lease 24527 issued by NLTB to European Octopus Limited and transferred to the 2nd Defendant was issued contrary to Section 9 of the NLT Act and is null and void and be quashed forthwith.

If the Court were to find that the NLTB issued the subject lease contrary to Section 9, what would be the effect on the 2nd Defendant? Under Section 5(c) of the Land Transfer Act (Cap 131) all leases of native land granted pursuant to the provisions of the Native Land Trust Act are subject to it. As the Counsel for the 2nd Defendant has argued the Plaintiffs are not alleging fraud against the 2nd Defendant. As such under Sections 39 and 40 of the Land Transfer Act the 2nd Defendant's title is indefeasible. It was not required to enquire whether the NLTB fulfilled its obligations under Section 9 or any other of its statutory obligations.

If the NLTB breached its duty under Section 9, then the Plaintiff could sue the Board for breach of its statutory duties and claim damages. (see Meli Kaliavu & Others v NLTB Civil Action 107 of 1954; Neumi Naqura v NLTB, Native Lands Commission and Lakomai Island Resort Ltd. Civil Action 375 of 1991); and Waisake Ratu & another v Native Land Development Corporation and NLTB [Supreme Court 1987 (Cullinan J) 27 February].

In Neumi Naqura's case, Judge Fatiaki had stated that there was no legal duty on the NLTB to consult native owners in the exercise of its powers under Sections 8 and 9 of the Native Lands Trust Act. While the case concerned the de-reservations of native land the issue remains the NLTB's statutory duties and the consequence of its breach. More to the point Judge Fatiaki had stated:

"It might be that the Plaintiffs' Mataqali as the registered native owners of the subject land could maintain an action against the NLTB for breach of its statutory duty or of its trusteeship in de-reserving their native reserves but that is a separate issue which does not in my view entitle the mataqali to also challenge the validity of any lease of such dereserved land which the NLTB has consented to or granted in terms of its exclusive powers under the Native Land Trust Act" (p 7).

Plaintiff's counsel argues that if the NLTB acted outside its statute, it is ultra vires and the lease could be declared null and void. This does not appear likely given the provisions of the Land Transfer Act and the NLT Act. Even if Plaintiff's counsels argument was valid then both the Plaintiff and the 2nd Defendant would have actions against the 1st Defendant, the NLTB. The 2nd Defendant cannot be liable to the Plaintiff if NLTB has breached its statutory duties. In my view the Plaintiffs have no reasonable cause of action against the 2nd Defendant.

Leave to file Counterclaim against Plaintiff and another (O 15 r 4)

The 2nd Defendant is also seeking leave for an order to file a counter-claim against the Plaintiff Napolioni Kurucake Ratumaiyale and one Atunaisa Naulunivonu. Both are from Waya Island and members of the Mataqali Vunabuevu. An affidavit has been filed in support.

O 15 r 3(1) states: "Where a defendant to an action who makes a counterclaim against the plaintiff alleges that any other person (whether or not a party to the action) is liable to him along with the plaintiff in respect of the subject matter of the counterclaim, or claims against such other person any relief relating to or connected with the original subject matter of the action, then subject to rule 5(2), he may join that other person as a party against whom the counterclaim is made".

According to Moon and Others v Atherton [1972] 3 All ER 145, Napolioni Kurucake Ratumaiyale is a full party to the action. The original subject matter is the basis of the 2nd Defendant's counterclaim. According to the Supreme Court Practice (1997 edition) p. 191 "The defendant's counterclaim need not be an action of the same nature as the original action" (per Fry J in Beddall v Maitland (1881) 17 Ch D.174 p 181) or even analogous thereto. A "claim founded on tort may be opposed to one found on contract, or vice versa" (per Cockburn C.J. in Stooke v Taylor [1880] UKLawRpKQB 65; (1880 5 Q.B.D. 569 p 579). But if a third person is added as a co-defendant to the counterclaim against the plaintiff the relief must relate to or be connected with the subject-matter of the original action". It is clear from the affidavit filed and the proposed counterclaim that the relief is related to or connected with the subject matter of the Plaintiff's claim.

The Court has already ruled that the Plaintiff does not have a cause of action against the 2nd Defendant. However, the 2nd Defendant can still maintain a counterclaim against the Plaintiff and another. As the Supreme Court Practice states:-

To what extent a counterclaim is an independent action - A counterclaim is substantially a cross-action, not merely a defence to the plaintiff's claim. It must be of such a nature that the Court would have jurisdiction to entertainment it as a separate action (Bow Maclachlan & Co v The Camosun [1909] UKLawRpAC 40; [1909] A.C. 597; Williams v Agius [1914] A.C. 522), "A counterclaim is to be treated, for all purposes for which justice requires it to be so treated, as an independent action" (per Bowen L.J., in Amon v Bobbitt [1889] UKLawRpKQB 35; 22 Q.B.D. 543, p.548). If after the defendant has pleaded counterclaim, the action of the plaintiff is for any reason stayed, discontinued or dismissed, the counterclaim may nevertheless be proceeded with (para. (3)). Thus, where the plaintiff's claim was held to be frivolous, the Court still granted the defendant the relief prayed for by his counterclaim (Adams v Adams [1890] UKLawRpCh 114; (1892) 45 Ch. D. 426; [1892] 1 Ch. 369).

It is clear from a consideration of the rules that the 2nd Defendant can file a counter-claim against Napolioni Kurucake Ratumaiyale and Atunaisa Naulunivonu. The end result is that the Court grants both the Orders sought in the 2nd Defendant's summons dated 08/06/2000. Costs are in the cause.

Application of second defendant granted.

Marie Chan