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Thomas v Murti [2005] FJHC 644; HBC0053.1995L (4 May 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0053 OF 1995L

BETWEEN:

ALFRED THOMAS a.k.a ALIVERETI SAUVUNILAKEBA
Plaintiff

AND:

KRISHNA MURTI
1st Defendant

AND:

FIJI DEVELOPMENT BANK
2nd Defendant

No Appearance for the Plaintiff
Counsel for the Defendant: Mr. K. Kumar
No Appearance for the 2nd Defendant

Date of Hearing & Ruling: 4 May 2005

EXTEMPORE RULING

Before the court in the above matter is a Summons filed on the 13^th March 1995 by the 1^st defendant. That Summons seeks an order that the Writ of Summons against the 1^st defendant be wholly struck out on the grounds that it does not disclose a reasonable cause of action against the 1^st defendant or alternatively that the action is frivolous or vexatious or an abuse of the process of the court.

For reasons that matter little, it is taken 10 years for this application to be dealt with by the court. The matter was on the 22^nd April 2005 set down for hearing today. I understand when the matter was called before Finnigan J. today, Counsel for the Plaintiff sought that the matter be adjourned, that application was refused and the matter came for hearing before me.

An application pursuant to Order 18 Rule 18 of the High Court Rules requires a consideration of the issues without recourse to evidence, it requires a consideration of the pleading itself. In this matter, the statement of claim pleads in paragraph 5:

“That on or about December 1985 the First Defendant fraudulently represented that he had the machine for sale and at the time of making the said representations the First Defendant intended and well knew or ought to have known that the Plaintiff would rely on the said representation and would be induced thereby to enter into business arrangements or contract.”

Whilst the pleading raises some 5 causes of action against the 2^nd defendant, it doesn’t do so against the 1^st defendant and the only cause of action is said to arise in or about December 1985.

The Writ of Summons is dated 23^rd February 1995 and was filed with the court on that same day.

The cause of action arose a little over 9 years prior to the Writ of Summons being filed with the court. The cause of action is clearly in breach of the statute limitations and is statute barred.

Counsel for the 1^st Defendant has referred the court to Riches v Director of Public Prosecutions [1973] 2 All E.R. 935 at 939, Davies LJ said:

“In the light of those more recent authorities, I think, as I say, that perhaps the observations of this court in Dismore v Milton went too far. I do not want to state definitely that, in a case where it is merely alleged that the statement of claim discloses no cause of action, the limitation objection should or could prevail. In principle, I cannot see why not. If there is any room for an escape from the statute, well and good; it can be shown. But in the absence of that, it is difficult to see why a defendant should be called on to pay large sums of money and a plaintiff be permitted to waste large sums of his own or somebody else’s money in an attempt to pursue a cause of action which has already been barred by the statute of limitations and must fail.”

The New Zealand Court of Appeal in Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 at 9 said:

“The justification for the extreme step of staying a prosecution or striking out a statement of claim is that the Court is obliged to do so in order to prevent the abuse of its processes.”

Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] A.C. 529 characterized the exercise of the power in appropriate cases as a duty rather than a discretion.

Whilst the words of the Court of Appeal of New Zealand in Reid v New Zealand Trotting Conference, the words of Lindley MR in Hubbuck v Wilkinson [1898] UKLawRpKQB 176; [1899] 1 Q.B. 86 must be considered by the court “it is only in plain and obvious cases that a recourse should be had to the summary process under this rule”. The Master of the Roles was there considering a rule in the English Rules analogues to Order 18 Rule 18 of the High Court Rules of this court.

Megarry V.C. in Gleeson v J. Wippell & Co. Ltd [1977] 1 W.L.R. 510 & 518 said:

“First, there is the well-settled requirement that the jurisdiction to strike out an endorsement or pleading, whether under the rules or under the inherent jurisdiction, should be exercised with great caution, and only in plain and obvious cases that are clear beyond doubt. Second, Zeiss No. 3 [1970] Ch. 506 established that, as had previously been assumed, the jurisdiction under the rules is discretionary.”

Taking account of the authorities to which I have referred and to the statement of claim and in particular to the fact that it is on its face clearly a statute barred claim and exercising the extreme caution that the authorities require the court to take.

This is in my opinion such a plain and obvious case that warrants the court making an order in accordance with the provisions of Order 18 Rule 18 and accordingly, the Order of the Court will be:

1. That the Writ of Summons against the 1^st defendant be wholly struck out.

2. I order that the plaintiff to pay the 1^st defendant’s costs of the application which I assess in the sum of Five Hundred Dollars ($500.00).
   

JOHN CONNORS

JUDGE

At Lautoka

4 May 2005