S, An Infant v Moti [1999] VUSC 38; Civil Case 132 of 1998 (30 September 1999)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

CIVIL CASE No. 132 OF 1998

BETWEEN:

S, AN INFANT
of Port Vila, Child, by her guardian.
Plaintiff

AND:

ALIGN="CENTER">JULIAN MOTI
of Port Vila, Soli Solicitor.
Defendant

REASONS FOR JUDGMENT

I. INTRODUCTION.

1. Application & Nature of relief sought.

I have before me two applications. The first application is a Summons by the Defendant dant of 4 May 1999, seeking for an order that the Plaintiff’s Writ of Summons/Statement of claim be struck out under Order 27, rule 4; Order 21, rule 29 and Order 17, rule 11 of the High Court (Civil Procedure) Rules 1964 and/or under the inherent jurisdiction of the Court on the ground as set out in the Summons. It is also sought that the Plaintiff’s action against the Defendant be stayed or dismissed and costs of this action and occasioned by this application to be taxed (as between solicitor and own client) and paid either by John Caldwell Malcolm of Messrs. Geoffrey Gee & Partners, solicitor for the Plaintiff herein personally or by the Plaintiff.

The second application is a cross-motion by the Plaintiff of 11^th May 1999, seeking for, among other things, orders dismissing the Motion of the Defendant dated 4^th May 1999 and costs on the same to the Plaintiff and various direction order leading to the hearing of the Plaintiff’s Writ of Summons dated 2^nd December 1998.

p>2. Parties.<

The Plaintiff, S is an infant. The Defendant, Julian Moti, is Barrister and Solicitor of Port Vila, Vanuatu.

II. THUES.

(a) In the absence of any rules of Court made regulating theedure of the Court in relation to discontinuing or withdrawing a civil claim made made pursuant to Section 213 of the Criminal Procedure Code Act [CAP. 136], can a Plaintiff by Counsel withdraw a civil claim filed under the said Section 213 of CPC [CAP. 136]?

(b) Considerations of scandalous, frivolous or vexatious …, or an abuse of the process of the Court.

III. BRIEF FAEF FACTS.

In early 1998, the Defendant, Julian Moti, was provisionally charged on two Counts (x 2) of Unlawful Sexuaercourse, contrary to Section 97 (2) and 1 Count of Indecendecent Assault, contrary to Section 98 (2) of the Penal Code Act [CAP. 135].

By letter dated 29^th April 1998, the Plaintiff’s counsel wrote to the Registrar of the Supreme Court of Vanuatu stating that a civil claim has been filed against Mr. Moti by S pursuant to Section 213 and Section 214 of the Criminal Procedure Code Act and no civil proceedings are currently instituted in respect of the matter. That civil claim filed under s. 213 of the C.P.C. was ascribed as "Criminal Case No. 12 of 1998" and the claim is for damages.

By letter of 13^th November 1998, the Plaintiff’s counsel, Mr. Malcolm, again wrote to the Registrar of the Supreme Court of Vanuatu, and withdraw the civil claim filed under s.213 of the C.P.C. [CAP. 136] i.e. "Criminal Case No. 12 of 1998" and include a Writ and Statement of Claim which were sealed and filed as Civil Case No. 132 of 1998 on 2^nd December, 1998, and served on the Defendant on 8^th April 1999.

The Defendant by Summons seeks to rely on the following affidavits evidence:

(a) Affidavit of Julian Moti sworn 26^th August 1999 to which is exhibited a copy of:

(i) the decision of the Magistrate’s Court finding that there is no prima facie case made out against the Defendant.

(b) An Affidavit of Julian Moti sworn 29^th April 1999 to which is exhibited:

(i) a copy of Geoffrey Gee & Partners letter of 29^th April 1998.

(ii) a copy of statement of claim in criminal case No. 12 of 1998.

In reply, the Plaintiff by Counsel has filed a sworn affidavit of Geoffrey Robert Gee of 10^th May 1999 to which is exhibited copies of:

(a) An Affidavit for entry as guardian including the written consent of Nicole Puaita Morgan to act as guardian ad litem in this action.

(b) A copy of a Geoffrey Gee & Partners letter of 13^th November 1998 withdrawing the civil claim from the criminal proceedings.

THE LAW.

I set out below the relevant part of the Constitutional and Legislative provisions and rules of Court considered in this case.

1. The itution: The relevant constconstitutional provisions.

Article 47(1) provides:

"The administration of justice is vested in the judiciary who one subjecubject only to the Constitution and the law. The function of the judiciary is to resolve dispute according to law. If there is no rule of law applicable to a matter before it, a Court shall determine the matter according to substantial justice and whenever possible in conformity with custom."

Article 95 (2) provides:

"Until otherwise provided by Parliament, the British and French laws in force or applied in Vanuatu immediately before the Day of Independence shall on and after that day continue to apply to the extent that they are not expressly revoked or incompatible with the independent status of Vanuatu and wherever possible taking due account of custom."

2. The legislatislations: Relevant legislative provisions.

(a) The Courts Act [CAP. 122].

Sectiosays:

(1) Subject to the Constituttitution, any written and the limits of its jurisdiction a court shall have such inherent powers as shall be necessary for it to carry out its functions.

(2) For the purpose of facilitating the application of any written law or custom any provision may be construed or used with such alterations and adaptations as may be necessary required in order properly to apply such written law or custom.

Section 30 provides:

(1) The Judicial Committee may make Rules of Court regulating the practice and procedure of Magistrate’s Court, the Supreme Court, and the Court of Appeal, prescribing the fees to be paid to be paid in respect of any proceedings and generally for making provision for the proper and effectual exercise of the criminal and civil jurisdiction of such Courts, including the procedure for the making and hearing of appeals to the Supreme Court and to the Court of Appeal:

Provided that Rules prescribing or affecting the amount of any fees or the recovery thereof shall not come into operation unless approved, either before or after being made, by the Minister.

(2) The Judicial Committee means a Committee consisting of the Chief Justice as chairman, the Attorney General and a legal practitioner appointed by the Minister responsible for Justice, as members.

(b) Part XII of I of the Criminal Procedure Code Act [CAP. 136]. Civil Claims in Criminal Proceedings.

Section 213:

(1) A Court may heay hear and give judgment of a civil claim within its jurisdiction against a person charged before it with a criminal offence.

(2) A civil claim heard pursuant to subsection (1) shall directly arise from the alleged act or giving rise to the charge of an offence against the accused person.

Section 214:

(1) A civil claim made pursuant to Section 213 shall be in writing.

(2) The Court may hear the claimant and any witnesses he may call concerning his claim and permit him to cross-examine any witnesses for the prosecution and defence.

(3) The court may likewise hear the accused person and any witnesses he may call in defence of the civil claim and permit him to cross-examine the witnesses of the claimant.

Section 215:

A person who has instituted proceedings in the civil court shall not bring proceedings in respect of the same matter under Section 213(1).

Section 216:

Either the civil claimant or defendant may appeal against a decision of the court in accordance with the Courts Act, Cap. 122.

Section 217:

The procedure to be adopted in Civil claims before the criminal court shall be provided for in accordance with section 30 of the Courts Act, Cap. 122.

3. Rulesour Court: Relevant provisions of the High Court (Civil Procedure) Rules 1964.

Order 17

Ru: No cause or matter shall be defeated by reason of the the misjoinder or non-joinder of parties, and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The Court may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added. No person shall be added as a plaintiff under any disability, without his own consent in writing thereto. Every party whose name is so added as defendant shall be served with a writ of summons or notice in manner hereinafter mentioned, or in such manner as may be prescribed by any special order, and the proceedings as against such party shall be deemed to have begun only on the service of such writ or notice.

Rule 14: Infants may sue as plaintiffs by their next friends and may, in like manner, defend by their guardians appointed for that purpose.

Rule 19: Before the name of any person shall be used in any action as next friend of any infant, or other party, or as relator, or such person shall sign a written authority to the advocate for that purpose, and the authority shall be filed with the Registrar of the Court in which the cause or matter is proceeding.

Order 21

Rule 29: The Court may at any stage of the proceedings order to be struck out or amended any matter in any indorsement or pleading which may be unnecessary or scandalous or which may tend to prejudice, if they or he shall think fit, order the costs of the application to be paid as between advocate and client.

Order 28

Rule 1. The Plaintiff may, at any time before receipt of the defendants defence, or after the receipt thereof before taking any other proceeding in the action (save any interlocutory application), by notice in writing, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant’s costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn. Such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action. Save as in this Rule otherwise provided, it shall be competent for the plaintiff to withdraw the record or discontinue the action without leave of the Court, but the Court may, before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise as may be just, order the action to be continued, or any part of the alleged cause of complaint to be struck out. The Court may, in like manner, and with the like discretion as to terms, upon the application of a defendant, order the whole or any part of his alleged grounds of defence or counterclaim to be withdrawn or struck out, but it shall not be competent to a defendant to withdraw his defence, or any part thereof, without such leave.

Order 69.

Rule 1. Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court shall think fit.

THE ARGUMERGUMENTS/SUBMISSIONS AND CONSIDERATIONS.

It is argued in substance, on behalf of the Defendant the Plaintiff cannot withdraw the civil claim No. 12 of 1998 from the criminal proceedineedings. Accordingly Section 213 (1) civil claim was on foot until 23^rd August 1999 upon the date the civil claim "died" as a consequence of the learned Magistrate’s finding a "no prima facie case". There was nothing upon which the civil claim could "directly arise from". The claim No. 12 of 1998, is fundamentally the same claim as claim No. 132 of 1998. This constitutes an abuse of the process to allow the action remain on foot as the civil claim in the criminal case "died" as self executing in law when the Magistrate made this order. Thus, the Writ of Summons and the Statement of Claim should be struck out and stayed or dismissed.

In support of this argument, it is submitted for the Defendant that –

There have been no procedure provided under Section 30 of the Courts Act [CAP. 122], in accordance with S. 217 of the CPC. Section 30 of the Courts Act [CAP. 122], makes provision for the Judicial committee to make rules of court regulating the procedure of the Supreme Court and generally for making provision for the proper and effectual exercise of the criminal and civil jurisdictions of the Supreme Court. There have been no rules of Court made regulating the procedure of the Supreme Court in relation to discontinuing or withdrawing a civil claim made pursuant to Section 213 of the Criminal Procedure Code.

The Defendant relied on two English cases of Moore and another –v- Assignment Courier Ltd. (1977) 2 All ER 842 and Felix –v- Shiva (1982) 3 All ER 263.

In Moores’s case, there was a claim for an interim payment by a landlord. No rule of Court existed which expressly authorised the making of that order. The Master and a Judge dismissed the landlord’s claim. The landlord appealed to the Court of Appeal. It was then held that in the absence of any express provision in the rules of Court, the Court had no general or inherent jurisdiction to make interim orders even if it was fair to do so.

In Felix’s case, there was an action for possession of land and the landlord applied for an interim payment on account of rent or mesure profits to be made to him. There was no express power to do so. Before the first instance Court, it was argued that whilst there was no express provision in the County Court, Section 103 of the County Court Act applied. Section 103 applied the general principles of practice of the High Court to County Court proceedings where there was no express provision in the County Court Act or Rules. That argument was initially accepted so here the tenant appealed to the Court of Appeal.

The Court of Appeal held that since Section 20 of the County Court Act 1969 specifically empowered the County Court Rules Committee to make rules enabling the Court to order interim payments then that was the only method by which the County Court could be invested with jurisdiction to make such orders and the fact that the Rule Committee had not made the appropriate rules did not mean that there was a lacuna in the County Court’s jurisdiction which could be filled by relying on the power contained in Section 103 of the Act.

It is then submitted that Section 217 is the source of this Court’s jurisdiction to make procedures for discontinuing civil claims. The fact that the Judicial Committee has not made any such rules does not make it permissible to have recourse to some other general empowering rule to legitimate any such procedure as adopted by the Plaintiff in the purported "withdrawal" in this case.

The Plaintiff by Counsel made submissions to the contrary. It is submitted for the Plaintiff that it is not true that as soon as the criminal case is dismissed, then the civil claim dies with it. It is said that, the civil claim for damages for sexual assault, is a separate claim. The decision made by the Magistrate’s Court on 23^rd August, 1999 is a different matter. The Civil Case No. 132 of 1998 has been instituted before the Court 8 months ago. It was not placed before the Criminal Court (Magistrate’s Court) on 23^rd August 1999. It was conceded by counsel on behalf of he Plaintiff that if the civil claim for damages, Civil Case No. 132 of 1998 was placed before the criminal Court on 24^th August, 1999, then it would be fair to say that that claim died with the Magistrate’s finding of no prima facie case in favour of the Defendant. Further, it was put for the Plaintiff that Civil Case No. 132 of 1998 is subject to civil jurisdiction. It was never litigated before the Magistrate’s Court. It is difficult to appreciate this claim forming part of the Magistrate’s Court jurisdiction.

In my Judgment, I do accept the Plaintiff’s submission and reject the defendant’s submission that the Plaintiff’s claim for damages dies with the Magistrate’s finding of no prima facie.

In this case, the Affidavit evidence show that the Plaintiff’s civil claim No. 12 of 1998 in Re. Public Prosecutor v. Julian Moti – Criminal Case No. 12 of 1998 has been withdrawn by Notice sent to the Registrar of the Supreme Court and a new Writ of Summons was filed before the Supreme Court in Civil Case No. 132 of 1998.

Although there is no procedure under S. 217 of the CPC civil claims before the criminal Court in accordance with Section 30 of the Courts Act [CAP. 122], I am of the view that as per Order 28 of the High Court (Civil Procedure) Rules 1964,

"The Plaintiff may at any time before receipt of the defendant’s defence, … by notice in writing … withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant’s costs of the action, or … the costs occasioned by the matter so withdrawn."

It is on that basis that the Plaintiff is allowed to institute proceedings in the civil Court in respect of the same matter under Section 213 (1) (as per Section 215 of the CPC [CAP. 136]). Such civil claim pursuant to Section 213 (1) of the CPC Act [CAP. 136], shall directly arise from the alleged act or give rise to the charge of an offence against the accused person (Section 213 (2)).

In this case, I have been referred to some cases which were quoted to me by Counsel as aids to support the Defendant’s submissions that since claim No. 12 of 1998 is fundamentally the same claim as claim No. 132 of 1998, it is an abuse of process to allow the action remain on foot as the civil claim in the criminal proceedings "died" as self-executing in law when the magistrate found that there is no prima facie case against the Defendant.

One of the cases is the English case of Hunter v. Chief Constable of the West Midlands Police & others (H.L.) [1981] UKHL 13; (1982) AC 529. That case is the authority for the proposition that where a final decision has been made by a criminal court of competent jurisdiction, it is a general rule of public policy that a civil action cannot be used to initiate a collateral attack on that decision and, if it does, it is an abuse of the process of the civil Court. In that case, the reasoning of the House of Lords was that the civil proceedings were a ‘collateral attack’ upon the criminal conviction, with the dominant purpose of the civil action being not to recover damages, but to challenge the foundation of their conviction at a time when it was likely that the principal witnesses called for the prosecution at trial were either not available or their memories have faded and witnesses other than the convicted members themselves, may be difficult to trace, that the confessions on the evidence on which they were convicted were included by police violence, with a view to putting pressure on the Home Secretary to release them from the life sentences that they are otherwise likely to continue to serve for many years to come.

In the present case, the position seems to be different. In my view, the fact that the Magistrate finds that there is no prima facie case does not constitute a bar for the Plaintiff to institute civil proceedings for damages, as does the Plaintiff here. Equally, claim for damages may be instituted notwithstanding that no prosecution for a criminal offence is in contemplation. In both cases, the Court must consider for itself the relevant factual circumstances and reach the required level of satisfaction before awarding damages.

In this case, the Plaintiff (infant) wishes merely to claim damages against the Defendant for the alleged sexual assault, which claim was, moreover, instituted prior to the finding of no prima facie case by the Magistrate’s Court. It has not been shown that there is any purpose connected with the civil claim for damages as would constitute an abuse of process.

By paraphrasing Lord Diplock in the case of Hunt v. Chief Constable of Police, it is to be observed that:

"A decision in a criminal case upon a particular question in favour of a defendant, whether by way of acquittal or a ruling on a voir dire or finding of no prima facie case (as in the present case), is not inconsistent with the fact that the decision would have been against him if all that were required were the civil standard of proof on the balance of probabilities. This is why acquittals were not made admissible in evidence in civil actions by the Civil Evidence Act 1968 (which is applied by the Vanuatu Courts). In contrast to this, a decision on a particular question against a defendant in a criminal case, is reached upon the higher criminal standard of proof beyond all reasonable doubt and is wholly inconsistent with any possibility that the decision would not have been against him if the same question had fallen to be decided in civil proceedings instead of criminal. That is why convictions were made admissible in evidence in civil proceedings by the Act of 1968." (at p. 543).

Accordingly, the two English cases (Moores & Felix) referred to above must be distinguished from the present case, on the basis that in both cases, the Courts in England issued orders granting interim payments which constitute interim remedies. Whereas in this case, no court orders were made in respect to any such interim relief (interim payments). But the Plaintiff, exercising her right, issued civil claims against the Defendant under Section 213 (1) of the Criminal Procedure Code Act [CAP. 136] in the criminal proceedings, she then withdrew that claim from the criminal proceedings and instituted the claim in the civil jurisdiction as per Section 215 of the C. P. C. [CAP. 136].

The Defendant relying also on Article 47(1) of the Constitution, says that the administration of justice is vested in the judiciary subject to the Constitution and the law. It is only when there is no rule of law applicable that the Court has recourse to the principles of either "substantial justice" or "customary law". Here, the Defendant says there is a rule of law namely that declared in Moore’s case and Felix’s case. The Defendant relies further on Article 95(2) of the Constitution which makes it clear that British law in force on applied immediately before the day of Independence, 30 July 1980 continues to apply to the extent that such laws are not expressly revoked or incompatible with the independent status of Vanuatu and wherever possible taking due account of custom. It is, then, said that there has been no express revocation of the above referred to "rule of law" nor could there be mounted any argument of incompatibility. Accordingly the ratio of Moore’s case and Felix’s case applies pari passu.

In my judgment, I find the Defendant’s submission attractive but not convincing. I therefore reject it. The Supreme Court of Vanuatu being established by the Constitution of 1980 with unlimited jurisdiction to hear and determine any civil or criminal proceedings, and such other jurisdiction and powers as may conferred on it by the Constitution or by law (Article 49), and as a Court of competent jurisdiction (Interpretation Act, [CAP. 132]), shall have such inherent powers as shall be necessary for it to carry out its functions (s. 29 of the Courts Act [CAP. 122]).

Article 95(2) of the Constitution says:

"Until otherwise provided by Parliament, the British and French laws in force or applied in Vanuatu immediately before the Day of Independence shall on and after that day continue to apply to the extent that they are not expressly revoked or incompatible with the independent status of Vanuatu and wherever possible taking due account of custom." (emphasis added).

By perusing the language of Article 95(2), I am of the view that the British and French laws referred to, are those applied to, or made for, the Condominium of the New Hebrides prior to 1980, to the extent that they are not expressly revoked or incompatible with the independent status of Vanuatu and wherever possible taking due account of custom.

Therefore, apart from the French laws which are not relevant to this case, it is my judgment that the British laws referred to under Article 95(2) of the Constitution, shall include English laws of general application in force in England on 1 January 1961 and those in force in England on 1 January 1976 and the principles of the English common law and doctrines of equity modified to meet local circumstances (of Vanuatu) – [see Western Pacific (Courts) Order in Council 1961 (U.K.) (s. 15) reconfirmed by the New Hebrides Order 1975 No. 1514 (s. 11) which was latter reconfirmed by the New Hebrides Regulation 1976 (Q.R. No. 2 of 1976) (s. 3)].

So quite clearly, the onus is on the party who asserts that a British law is applicable in Vanuatu to prove to the satisfaction of the Court that the British law concerned is a British law in force or applied in the New Hebrides immediately before the 30^th July 1980 (the day of Independence of Vanuatu) and Vanuatu Parliament does not provide otherwise. Equally, the onus is also on the party who asserts that the ratio of an English case constitutes the "rule of law" in Vanuatu to prove it to the satisfaction of the Court that the statute upon which that English case was decided is an English statute in force or applied in the New Hebrides before 30^th July 1980, otherwise, that English case, will remain a persuasive authority only for this Court, like decisions of the Commonwealth and other jurisdictions.

The English cases of Moore and Felix referred to above, do not constitute law in Vanuatu and as such are not binding on this Court. They are both rejected since they are not constituting the "rule of law" in Vanuatu on the point of the issues as discussed above before this Court and I so rule.

The second argument on behalf of the Defendant is that civil case No. 132 of 1998, is in law a nullity as it has not been correctly instituted in accordance with Order 17 Rules 14 and 19 of the High Court (Civil Procedure) Rules 1964. It is then submitted that the proceedings can be stayed and the Plaintiff’s solicitor will pay personally the defendant’s costs of this application.

Order 17 sets out the procedure to be adopted when an infant is a party in a suit. Order 17 rule 14 provides that Infants may sue as plaintiff by their next friend.

The affidavit evidence establish that a certain Nicole Puaita Morgan file a consent on 1^st December 1998, to act as guardian of the Plaintiff/Infant. It is also established by affidavit evidence that the Plaintiff by Counsel has been notified by the Defendant of the error in the pleadings which commenced the civil claim of the Plaintiff/Infant by her guardian instead of her next friend. The Plaintiff’s counsel, however, does not correct the error notified to him in the pleadings, which is a fundamental defect in the pleadings. However, in the particular circumstances of this case, I am of the view that the best approach to be taken on this point, is not to strike out the proceedings but to permit the error to be corrected and to order the Plaintiff’s solicitor, Mr. John Malcolm, to pay personally the defendant’s costs related to this application and I so rule.

The third argument for the Defendant is that the Defendant is prejudiced by the pleadings and the actions has costs him a considerable sum of money. It is, therefore, submitted for the Defendant that the Plaintiff by pleading "no meaningful sexual relations", attempted to add a new category of "meaningful sexual relations", unknown to the common law and which is frivolous, vexatious and an abuse of the process because, in effect, it is impossible for the defendant (and the Court) to make any sense of such an expression.

I have been provided with extracts from "the Pleadings Principles and Practice" Sweet & Maxwell, 1990, by the Plaintiff’s Counsel.

At page 226, the term "abuse of process" has been described as often used unchangeably with the terms "frivolous" or "vexatious" either separately or more usually in conjunction. Further at page 227 it reads:

"The terms "abuse of the process of the Court" is a term of great significance. It connotes that the process of the court must be carried out properly, honestly and in good faith; and it means that the court will not allow its function as a court of law to be misused but will in a proper case, prevent its machinery from being used as a means of vexation or oppression in the process of litigation. It follows that where an abuse of process has taken place, the court will intervene to stay or even dismissal of proceedings, "although it should not be lightly done, yet it may often be required by the very essence of justice to be done."

In my view, paragraph 3 of the Plaintiff’s statement of claim stating to this effect: "Prior to May 1997 the claimant had had no meaningful sexual relations" does not amount to an abuse of the process of the Court. The statement in paragraph 3 of the statement of claim, does form part of the claim for damages and as such the action is not pretenceless or absolutely groundless. If it is so, then, the Court has the power to stop it summarily so as to prevent time of the public and the Court from being wasted. That is not the situation in the present case.

Does paragraph 3 of the Plaintiff’s statement of claim, referred to above, constitute a frivolous or vexatious pleadings?

A pleading is frivolous when it is without substance or unarguable. Further a pleading is vexatious when it lacks bona fides and is hopeless or oppressive and tends to cause the opposite party unnecessary anxiety, trouble and expense. In this case, as I see it, paragraph 3 of the statement of claim, is not obviously frivolous or vexatious, nor obviously unsustainable.

As such, it is my view that this Court should not exercise its jurisdiction to strike out a pleading, like paragraph 3 of the statement of claim, merely because it was drafted in a way, unknown to the common law and, therefore, improbable, or it is difficult to believe that they could be proved.

Does paragraph 3 of the Plaintiff’s statement of claim, tend to prejudice, embarrass or delay the fair trial in this action?

I accept and adopt the principle that has been stated by Bowen L. J. in Knowles v. Roberts [1888] UKLawRpCh 42; (1888) 38 Ch.D. 263 at 270, as follows:

"It seems to me that the rule that the Court is not to dictate to parties how they should frame their case, is one that ought always to be preserved sacred. But that rule is, of course, subject to this modification and limitation, that the parties must not offend against the rules of pleading which have been laid down by the law; and if a party introduces a pleading which is unnecessary, and it tends to prejudice, embarrass, and delay the trial of the action, it then becomes a pleading which is beyond his right."

Applying to this case, a pleading such as the one contained in paragraph 3 of the statement of claim, stated or alleged points of laws which may then turn out to be bad. The question whether a pleading is embarrassing or prejudicial is one for the Court to decide in view of the particular facts and circumstances of the case. Accordingly, unless the pleading as it stands is really and seriously embarrassing, it is often wiser to leave it unamended or to apply for further and better particulars. This is particularly so when the application for striking out is made before any defence is filed as is the case here.

Finally, it is argued for the Defendant that this litigation is mounted, framed and pleaded to embarrass the Defendant and as such are scandalous. Further it is submitted that the statement of claim is clearly within the meaning of scandalous for the additional reasons as set out at pages 15 to 20 of the Defendant’s submissions.

At page 221 of the Book on Pleadings, Principles and Practice, referred to earlier, it is said:

"the allegations in a pleading are scandalous if they state matter which are indecent or offensive or are made for the mere purpose of abusing or prejudicing the opposite party. Moreover, any unnecessary or immaterial allegations will be struck out as being scandalous if they contain any imputation on the opposite party or make any charge of misconduct or bad faith against him or anyone else. Again, if degrading charges are made which are irrelevant, or if, though the charge be relevant, unnecessary details are given, the pleadings becomes scandalous."

In this case, I have read the pleadings as contained in the statement of claim they contain charges of dishonesty, immorality or outrageous conduct against the Defendant but they are relevant to the issues in the action and thus, cannot be struck out.

As Lord Selborne in Christie v. Christie said:

"The sole question … is whether the matter alleged to be scandalous … would be admissible in evidence to show the truth of any allegation in the (pleading) that is material with the reference to the relief that is prayed."

Therefore, in the present case, however grave the imputations they involve, whether of immorality or otherwise, since they are material to the issues, that is, they will affect the result of the action if proved to be true, they are not scandalous within the meaning of the rule.

It is on the basis of the above considerations, that this Court issue orders on 13^th of September, 1999 as reproduced below:

ORDER

1. That the Defendant Summons of 4^th May 1999 be dismissed under the following conditions:

(a) That the Plaintiff by Counsel amend the Writ by initiating the proceedings of the infant/Plaintiff by her next friend within 2 days as from today 13^th September, 1999 by 4 o’clock p.m.

(b) That the Plaintiff’s solicitor paid personally the costs of the Defendant related to this application, to be taxed failing agreement.

2. That the Defendant file and serve a Defence within 14 days.

3. That the parties file and serve affidavits of documents within 14 days of Defence.

4. That the parties are at liberty to inspect within 14 days of Order 3 hereto.

5. That the parties filed interrogatories if any and served 14 days thereafter.

6. That the answers to interrogatories be filed (if any) 14 days thereafter.

7. That the matter is set for trial on application in writing by either or both parties hereto.

8. Full written reason will be provided to both parties at the end of this week.

Dated at Port Vila, this 30^th day of September, 1999.

Vincent LUNABEK
Acting Chief Justice