Ledua v Colonial Life Fiji Ltd [2008] FJHC 363; HBC288.2004 (18 August 2008)

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Counsel: Mr. S. Valenitabua counsel for the Plaintiff/Respondent
Mr. J. Rabuku and later Ms V. Narayan counsel for the Defendants/Applicants

Date of Hearing: 1st March, 2007, and 29 and 31st July, 2008
Date of Decision: 18th August, 2008

DECISION
(Res-judicata – extended doctrine of res-judicata
– Rule in Hendersen v Hendersen)

[1] I have before me an application by the Defendant to strike-out the plaintiff’s action on the ground that it is frivolous, vexatious and/or an abuse of the process of the Court. It is supported by an affidavit of Mr Aiyaz Sayed Khaiyum sworn on the 10th and filed on 20th October, 2006. The application is filed pursuant to O. 18 rule 18(1) (b) and (d) of the High Court rules 1988 and Inherent Jurisdiction of this Honourable Court. The Plaintiff vigorously opposes the application.

[2] After hearing the application, I reserved the decision. Subsequently, I had to re-list the matter to clarify certain crucial issues pertaining to the earlier action already decided, which were not addressed by the Counsels. Ms Narayan and Mr Valenitabua appeared before me and made very helpful submissions.

[3] The application is based on the extended doctrine of res judicata attributed to the decision in Hendersen -v- Hendersen [1843] EngR 917; (1843) 3 Hare 100 (Hendersen). Mr. Rabuku submitted that the plaintiff is estopped from bringing this action as the within claim should and ought rightly to have been included and pursued in Kaifa Biu Ledua –v- the Colonial Mutual Life Insurance society Limited, Vikash Reddy and Fabian Corrie Suva High Court Action No.: HBC 286/1999. I will refer to this action at some length later in this decision.

[4] On the other hand, Mr. Valenitabua submitted that civil action No. 286/99 and this action are not related at all. This is a stand alone proceeding unaffected by the traditional as well as the constructive sense of the doctrine of estoppel. As such the rule in Hendersen is inapplicable.

[5] In order to fully appreciate the submissions of both the parties, it is crucial to lay down the foundation of this action at some length. But, before I do that it is important to discuss the applicable general principles of law.

[6] In essence, the application calls for the consideration of the principles of estoppel and res-judicata. These doctrines are founded on a wider public interest aptly described in the Latin maxim; “Nemo bebet big vexam pro una et eadem causa” (No one ought to be twice vexed for one and the same cause’) and “Interest rei publicae ut sit finis litium,” (it is for common good that there be an end to litigation). The primary function of a court from its inception is to resolve disputes of parties which cannot be resolved by the parties mutually. On the functions of the court, I refer to Niko John Wilson –v- Housing Authority & Ors Suva High Court Civil Action No. 412/2004, in which His Lordship Mr Justice Winter at page 3 of the judgment aptly said :-

“The rule of law requires the existence of courts for the determination of disputes and that litigants have a right to use the court for this purpose. Courts must also however, in my view, be alert to their processes being used in a way that results if oppression or injustice to any party. The court’s authority possessed of neither the purse nor the sword ultimately rests on a sustained public confidence in its moral sanction. Anything that attacks confidence in that moral sanction is accordingly an abuse of process of the court’s function. It is difficult for parties to maintain confidence in court rulings if those rulings are indirectly attacked in a court of concurrent jurisdiction”.

[7] The underlying principles of estoppel or res judicata at its nascent stage are traceable back to Duchess of Kingston case, ( 1776) 20 State Tr 355 at 358 where De Grey CJ said as follows:-

“From the variety of cases relative to judgments being given in evidence in Civil Suits, these two deductions seem to follow as generally true: first, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive, between the same parties, upon the same matter, directly in question in another court : secondly, that the judgment of a court of exclusive jurisdiction directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally into question in another court, for a different purpose.”

[8] Over a period as jurisprudence on the subject developed at least three inter-related but conceptually different forms of estoppel came to be recognised by the Courts. They are issue estoppel, res-judicata or cause of action estoppel and rule in Henderson, the extended version of res-judicata.

[9] Issue estoppel differs from other forms of estoppel in that it is limited to one or more particular issue(s) in an action. Lord Denning MR, in Fidelitas Shipping Co Ltd -v- V/O Exportchleb [1965] 2 ALLER 4 at 8 summed up this principle as follows:-

“...within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctively determined between the parties, then as a general rule neither party can be allowed to fight that issue all over again”.

[10] ”Res-judicata” is a Latin phrase meaning “a matter that has been finally adjudicated upon” (Hinde & Hinde, 1986 New Zealand Law Dictionary at page 328). A cause of action estoppel or res judicata or estoppel per rem judicatem arises where a party brings an action against a particular defendant in which a final judgment is delivered. In Latin this rule is expressed in the maxim “res judicata pro vertate accipitur”; Samba Sivan -v- Malay Federation Public Prosecution [1950] AC 458 at 479. There is a strict rule of law that the party can not bring another action based on the same cause(s) of action against the same party; Carl Zeiss Stiftung -v- Rayners & Keeler Ltd. [1967] 1 AC 502. A case on all fours is Chamberlain –v- Deputy Commissioner of Taxation [1988] HCA 21; [1988] 164 CLR 502. An action was brought by the Deputy Commissioner of Taxation for recovery of tax. A judgment was entered. However it was subsequently revealed that the judgment was entered for a lesser amount. Subsequently the Commissioner commenced fresh proceedings in Court to recover the shortfall. Chamberlain counteracted by seeking an order to strike out the latter action. On appeal to High Court Australia, their Lordships Dean, Toohey and Gurdon JJ 510 at 511 said:-

“The point of the present appeal is that the respondent brought an action against the appellant and recovered judgment against him. He obtained a judgment of the Court in which the cause of action upon which he relied merged, thereby destroying its independent existence so long as that judgment stood. And, so long as that judgment stands, it is not competent for the respondent to bring further proceedings in respect of the same cause of action. It is no answer to say that the Court might, if appropriate, stay the second action as an abuse of process. The impediment goes deeper than that; res judicata may sustain a plea of abuse of process but in that case the appropriate remedy is to strike out the later action: Greenhalgh v. Mallard 37”

Their Lordships further emphasised the effect of the principle on the operation of Act;-

“But more fundamentally, the respondent sued the appellant on a cause of action for which he received judgment, then, without seeking to have that judgment set aside or other wise to impugn it on the ground that it had been entered or obtained by mistake, sought to sue again in respect of the same cause of action. A statutory obligation to refund tax as a consequence of a successful appeal or reference by the taxpayer has nothing to do with the existence and character of the cause of action involved. Nor has it anything to do with the operation of res judicata.”

(c) Rule in Henderson v. Henderson – (Claims which ought to have been pursued)

[11] Mr. Rabuku submitted that the cause of action in this action was not only capable of but ought to have been brought in civil action: 286/1999. That is, an estoppel can successfully bar a new cause of action in a later action, although not the subject of an earlier suit, if the cause of action could have been pursued in the proceeding in which a conclusive judgment is already delivered. Beginning from Hendersen -v- Hendersen (supra) this principle is exhaustively considered in numerous cases, the leading ones are Port of Melbourne Authority –v- Anshun Proprietary Limited [1981]147 CLR 589, and Johnson –v- Gore Wood & Co [2002] AC 1.

[12] The locus classicus of this form of estoppel is found in the judgment of Wigram VC in Hendersen –v- Hendersen (1843) Hare 100 at pg. 115 follows:-

“In trying this question, I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

[13] In Barrow -v- Bankside Agency Ltd. [1996] 1 WLR 257, the Court of Appeal at page 260 in discussing the Rule in Henderson said :-

”The rule in Hendersen v Hendersen [1843] EngR 917; 3 Hare 100 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed.

[14] Since the express adoption of the rule in Hendersen in 1843, the House of Lords took the opportunity to comprehensively review the same in Johnson -v- Gore Wood & Co [2002] 2 AC 1. After discussing a plethora of decisions on the subject, Lord Bingham at page 31 of the judgment re-stated the rule in Hendersen in the following words:-

“But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice."

[15] The rule in Hendersen was considered at length and affirmed by the High Court of Australia in Port of Melbourne Authority –v- Anshun Proprietary Limited [1981] HCA 45; [1981] 147 CLR 589. In Australia, following the judgment of the High Court this extended form of res judicata is referred to as ’Anshun estoppel ‘.

[16] In Anshun a load of steel girders handled by a crane fell on a workman during and in the course of employment. The crane was hired from Port of Melbourne City by Anshun Pty Ltd. A hiring agreement duly executed between the parties had an indemnity clause, whereby Anshun Pty Ltd agreed to indemnify the Authority against all actions, proceedings and claims against the authority in relation to any injury or loss of life. The workman commenced a suit to recover damages for the injuries he sustained. A judgment was entered against both the defendants in the sum of $42,638-08, of which Anshun Pty Ltd was to pay ten percent and Authority ninety percent.

[17] After the judgment, Authority as the owner of the crane commenced a suit in the Supreme Court of Victoria seeking full indemnity from Anshun Pty Ltd under the indemnity agreement. In the Supreme Court, the action was stayed on the basis of the rule in Hendersen, that is, Authority should have pleaded the indemnity clause in the earlier litigation. On appeal to the High Court of Australia, in a joint judgment Gibbs CJ, Mason and Aickin JJ at 602 said; -

“In this situation we would prefer to say that ‘there will be no estoppel unless it appears that the matter relied upon as defence in the second action was so relevant to the subject matter of the first action that it was unreasonable not to rely upon rely on it’ , Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in one proceedings.”

[18] In Anshun the second action primarily failed because the relief sought in it was merged in the earlier judgment in which the court had already apportioned the award of damages. Further, if the court were to allow the relief sought in the second action, it would have conflicted with the earlier judgment.

[19] Clark LJ in Dexter Ltd -v- Vieland Boddy [2003] EWCA Civ 14 at para 49 comprehensively summarised the reformulated rule in Hendersen by the House of Lord’s in Johnson -v- Gore Wood (supra) as follows :-

(i) Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process.

(ii) A later action against B is much more likely to be held to be an abuse of process than a later action against C.

(iii) The burden of establishing abuse of process is on B or C or as the case may be.

(v) The question in every case is whether, applying a broad merits based approach, A’s conduct is in all the circumstances an abuse of process.

(vi) The court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C.”

[20] Further His Lordship at paragraph 50 stressed that “Proposition (ii) above seems to me to be of importance because it is one thing to say that A should bring all claims against B in one action, whereas it is quite another thing to say that he should bring all his claims against B and C (let alone against B, C, D, E, F and G) in one action.” In His Lordship’s statement of the rule, ‘the argument before me is centred between A and B only’.

[21] The principles of res judicata is considered in detail in the widely referred to book by Spencer, Bower, Turner and Handley; ‘The Doctrine of Res judicata, (3rd edtn) 1996, including the earlier editions. In Chapter 26 at pages 266 and 267 of the text, the authors citing from Hendersen -v- Hendersen (per, Wigram VC), Greenhalgh -v- Mallard [1974] 2 ALLER 255 (per Somervelle), Port of Melbourne Authority -v- Anshu Proprietary Limited (per Gibbs CJ, Mason and Aickin JJ) stated the following in respect of the rule in Hendersen :-

“In 1843 Wigram VC referred in Henderson to “points which properly belonged to the subject matter of litigation in earlier proceedings” Somervell LJ (“part of the subject matter of the litigation”) and the Full Court of Hong Kong (“necessary and proper”) echoed this approach in slightly different language. The test of reasonableness in Anshun attempted to work out the underlying principle. It can be seen to be derived from the requirement in Hendersen that the point should “properly belong” to the earlier litigation coupled with the concept of vexatious and unreasonable conduct central to the exercise of the court’s powers to prevent abuse of its process.

It is therefore suggested that the extended doctrine does not prevent a party bringing forward in later litigation a cause of action not previously adjudicated upon, provided it is not substantially the same as one that has been, unless success in the new proceedings would result in inconsistent judgments.”

I may note that in the text the decision of the House of Lords in Johnson -v- Gore Wood & Co is not considered as it was delivered after the publication of the book.

[22] In Fiji, the Court of Appeal considered this doctrine in Reserve Bank of Fiji –v- Gallagher Civil Appeal No. ABU 0030, ABU 0031, ABU 0032/2005 (14th July, 2006) (per Ward P and Baker JA and Henry JA). Without getting in to the details of the issues before the court, the test adopted by their Lordships was:-

“We find it unhelpful to them all since we are attracted by the non-dogmatic approach in Johnson -v- Gore Wood and reasonableness approach in Anshun“.

[23] In Johnson v Gore Wood & Co it was held that in applying the test the court is to evaluate the facts put before the court on a broad merit based judgment. In doing so the court is to see:-

‘...whether in all circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then if it is, whether the abuse is excused or justified by special circumstances’

[24] Similarly in Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. [1975] UKPC 6; (1975) AC 581 it was held that there is a need for ‘ a scrupulous examination of all the circumstances’ before the court may exercise a discretion to strike-out an action .

[25] In the application of the rule the court must give regard to what Lord Mansfied said in Moses –v- Maferlan [1760] EngR 713; 97 ER 676 at 678, that is, ’...It is most clear that the merits of a judgment can never be overhauled by an original suit, either at law or equity. So, unless judgment is set aside, reversed or varied it binds the party’.

So much for the discussion of the law, I will now turn to the application at hand.

[26] Whether the decision pronounced was a final decision of a Court of a competent
jurisdiction between parties? Civil Action No: 286/99 was heard in the High Court by His Lordship Mr. Justice Pathik. Indisputably, the judgment is of a Court of competent jurisdiction. There is no dispute either as to the parties. The plaintiff in this action and Civil Action No: 286/99 is the same person. There were other defendants in the earlier proceedings, but they were not the principal parties. In any event, the judgment of His Lordship Mr. Justice Pathik exclusively concerns the plaintiff and defendant in this action. So the answer to the first question must be answered to the affirmative.

[27] What are the basic facts pleaded in the both actions? In the earlier action the plaintiff was described as a Sales Representative of The Colonial Mutual Life Insurance Limited. He sued the Colonial Mutual Life Insurance Society Limited for wrongful termination of his employment for the alleged breach of the Sales Representative Agreement dated the 12th January, 1999. In the statement of claim the relief sought were:-

[28] The plaintiff’s is an experienced Insurance Agent having devoted 18 years in the Profession. He worked as an insurance sales representative for the defendant. Their working relationship was aptly described by His Lordship Mr. Justice Pathik at page 3 of the judgment as follows:

“Colonial sells its insurance products through its “sales representative” Representative acts as an agent of Colonial pursuant to a written contract. It is emphasised, that it is not disputed that they are not employees of Colonial. Under their contracts, they have the status of independent contractors. The Plaintiff and the defendant entered into such a contract on 12 January, 1999.

As agents, sales representative solicit customers on behalf of Colonial. Their contract contains various provisions governing their work as agents of Colonial”

[29] In paragraph 12 of the writ of summons the plaintiff claimed the following damages:-

“By reasons of the matters aforesaid the Plaintiff has his standing and character defamed and he has suffered loss and damages”

[30] The central issue in that action was pertaining to the circumstances surrounding the termination of the plaintiff’s employment contract. If any such breach on the part of the Colonial was to be established, what would be the appropriate damages? His Lordship identified the following issues for determination:-

(a) Whether the investigation by Colonial constituted an Arbitration hearing or a fact finding union? (see Page 16 of judgment)

(b) Whether Colonial could determine its contract with the plaintiff as its own discretion without any reason being given? (see page 17 of judgment)

(c) Whether the plaintiff wrongfully terminated the agreement? (see page 18 of Judgment)

[31] The facts leading to the institution of that action is contained in meticulous detail in the judgment. There was a specific complain against the plaintiff for ‘twisting’ when issuing an insurance policy. One Vikash Reddy, who was also a sales representative, complained that the plaintiff intervened and wrote a Keymans Proposal for the life of one Victor Dutta of Unique Motor Spares Limited. The insured was the complainant’s client. The complaint was treated by Colonial with seriousness prompting it to invoke the grievance procedure provided for in the agreement for a resolution.

[32] An arbitration hearing relating to the termination of the plaintiff was first held prior to the commencement of this action. The Arbitrator found against the plaintiff. Thereafter the plaintiff was given an opportunity to respond to the findings, which he did on 10th February, 1999 (see the details at page 6 of the judgment). After considering the said response the defendant proceeded to terminate the services of the plaintiff. Then the plaintiff sued the defendant inter-alia asserting a breach of the Sales Representative Agreement. His Lordship at page 31 of the Judgment held; “In the outcome, for the reasons on the facts as found by me the plaintiff has failed to establish his case and what has happened, namely termination, was not in breach of the Sales Representative Agreement as allegedly by the plaintiff”. Based on this finding of fact, the action was dismissed with costs. The judgment is contained in 31 pages. For an in-depth discussion of the matters considered by His Lordship, I refer to the Judgment itself.

[33] Turning to present action, it also relates to employment of the plaintiff with the Colonial Life Fiji Ltd. There is no dispute that Colonial Life Ltd was previously registered as ‘The Colonial Mutual Life Assurance Society Ltd’ (see paragraph 2 of the affidavit of Mr Khaiyum).

[34] In this action, the plaintiff’s first cause of action is for FNPF contribution payable to him by the defendant. He claims that a sum of $31,739.34 being the contributions for years 1994 to 1998 remains unpaid. The said sum was not remitted to FNPF. Ms. Narayan submitted that though there was no statutory obligation on the part of Colonial to pay FNPF, pursuant to the agreements preceding the 1999 agreement, Colonial was voluntarily paying FNPF. The statutory requirement to pay the provident fund became compulsory for earnings based on Commissions from 29th June 2005 with the coming in to effect of Fiji National Provident Fund (Amendment) Act 2005. Section 2 of the principal Fiji National Provident Fund Act was amended as follows-

(ii) in paragraph (a) after "learnership," by inserting "or engaged under a contract for services or as an agent remunerated wholly or partly by commission,";

(b) in the definition of "employer", in paragraph (a), after "learnership" by inserting "or engaged under a contract for services or as an agent remunerated wholly or partly by commission";

Apart from the aforesaid amendment, Ms Narayan referred me to a judgment of His Lordship Mr Justice Winter in Fiji National Provident Fund v Colonial Fiji Life Limited Suva High Court civil Action Number HBC 24/2003 (13th March, 2006), where it was held that as commission sellers, such as the insurance agents or sales representatives in the similar position to that of the plaintiff were not employees as such there was no statutory imposition for the payment of FNPF.

[35] The second head of claim is for a sum of $25,495-75 which is sought as interest accruing at a rate of 10% per annum on the non payment of the alleged FNPF contribution. The cumulative claim for the years 1994 and 1998 inclusive is as follows:-

Year	Amount Not Remitted	Period	Interest
*(a) 1994*	8,952-16	8 years	$10,237-57
*(b) 1995*	1,188-30	7 years	$ 1,127-33
*(c) 1996*	11,074-90	6 years	$ 8,544-93
*(d) 1997*	4,793-50	5 years	$ 2,926-46
*(e) 1998*	5,730-84	4 years	$ 2,659-49

[36] From 1999 onwards he is claiming a compounded interest at a rate of 10% per annum (see paragraph 13 of the statement of claim). I will pause here to briefly comment on the claim for compound interest. There is no agreement between the parties as to the form and quantum of interest to be awarded in cases of a disputed payment. Therefore, any claim for interest can only be maintained under the Law Reform (Miscellaneous Provisions) (Death and interest) Act (Cap 27). Unless there is any subsisting agreement for payment of interest, the court can only award simple interest under Act; see discussion in Nabulite Aluminum Ltd -v- Padarath Suva High Court Civil Action No. HBC 0228/88 (22/1/1995). S 3 of the Act provides:-

3. In any proceedings tried in the Supreme Court for the recovery of any debt or damages the court may, if it thinks fit, order that there shall be included in the sum for which judgment is given interest at such rate as it thinks fit on the whole or any part of the debt or damages for the whole or any part of the period between the date when the cause of action arose and the date of the judgment:

(b) shall apply in relation to any debt upon which interest is payable as of right, whether by virtue of any agreement or otherwise; or

(c) shall affect the damage recoverable for the dishonour of a bill of exchange.

[37] The third head of a claim is for underpayment of the Sales Representative commission. It is alleged that contrary to the rate stipulated in Clause 4; Schedule [1982] INSC 6; 1 Scale 1 of the Sales Representative Contract, the plaintiff’s commission was paid at a lower rate. The commission was payable at a rate of 67.5%. Only 65% was paid for year 1998. Accordingly, the alleged shortfall stands at $2,766.21 (see paragraph 16 of the statement of claim).

[38] Furthermore, the fourth head of claim is for the "Renewal Commission for ‘OD policies’ for the period extending over 1985 to 1998 (see para 19 of the statement of claim). That sum is $42,000 - 00. There are no particulars or breakdown of this sum is pleaded.

[39] A summary of the various causes of action or heads of claim is contained in paragraph 21 of the Statement of claim as follows:-

[40] The next question I then ask is ‘whether the two actions bear any similarities’? From the aforesaid discussion and reading through the Statement of Claim in both these actions, including the judgment of His Lordship, some crucial similarities do emerge. The principle parties are the same. At the helm of the claim is the Sales Representative Contract 1999 albeit for over the entire period of the claim. There may have been some preceding agreement(s) to that of the 1999 Agreement. None is though distinctively pleaded. As such, I am not overly concerned with the same. In both the actions, the damages sought emanates from the alleged breaches of Sales Representative Agreement. His Lordship Mr. Justice Pathik extensively dealt with the 1999 agreement. In order to deliberate on the issues raised in the pleading, the court inevitably was required to scrutinise the contract, any breaches thereof and consequential losses (if any). In short, there is basic commonality in both the actions. It is the alleged breaches or otherwise of the Sales Representative Agreement either the 1999 or any preceding one. Ms Narayan pointed out that there was an overlap of the claims in both the writs. She referred to paragraph12 of the Amended Statement of Claim in Civil Action 286/1998 and paragraphs 4, 5,6,7,8 and 10 of the within Statement of Claim. She rightly pointed out that there is an overlapping claim for the years 1996 to 1998.

[41] Amidst the similarities there are however some critical differences. Firstly, the notable distinction is that in Civil Action No: 286/1999 the larger portion of the claim was for loss of future income which the plaintiff could have possibly earned in commission and incidentals thereof, had it not been for the termination. In contrast, the present claim is exclusively for accrued losses. Second, significant difference is the consideration of the breaches of other clauses of the agreement which was not exclusively deliberated upon His Lordship Mr Justice Pathik. On this point, it is important to note, that the only reason His Lordship did not consider the claim for damages is because it was not necessitated. Mr Valenitabua submitted that during the trial evidence was lead in respect of the damages as well. It was not a split trial of liability and damages. In fact and of greater significance is that His Lordship found no liability on the part of Colonial for those years. Any subsequent litigation now to be decided in favour of the plaintiff will contradict with the judgment of His Lordship, Mr Justice Pathik. Where a later judgment is likely to conflict with the earlier judgment the later proceeding will be held to be an abuse of the process of the court. In Anshun on this ground the High Court Australia held that the latter action was an abuse of the process of the court. In any event are these differences so diverse that the respective causes of action could not have been dealt with in one action?

[42] Was it unreasonable not to include the causes of action in this action in civil action No. 286/1999? The earlier action was commenced in 1999. The judgment in that action was delivered on 27th September, 2004. This action was commenced on 27th July, 2004 prior to the delivery of the judgment but just after the completion of the trial. Initially, civil action No. 286/1999 was fixed for trial on 10th May, 2002 and continued on 17th and 18th July, 2002. Mr Valenitabua submitted that this action was filed two years after the trial in the earlier action. However, a demand notice pertaining to the current action was written to the defendant on 24th July, 2002, six days after the completion of the trial.

[43] In paragraph 1.4 of the written submissions Mr Valenitabua drew a distinction between the two actions as follows:-

"The Plaintiff filed an Affidavit in Opposition to summons to strike out on 17th November, 2006. Therein the plaintiff deposed that he filed 286/1999. This was an Action where the Plaintiff claimed wrongful termination of his employment and breach of his Sales Representative Contract with the Defendant after his Sales Representative Contract with the defendant was terminated by the defendant. The Plaintiff then claimed loss of income which he would have earned from the commission paid by the defendant. The Plaintiff Amended Statement of Claim, copy attached, and shows the pleading and the loss claimed. 286/99 claimed for future income if the court has ruled in favour of the Plaintiff. The Plaintiff adds that this current action is only for FNPF contributions already earned and payable to the FNPF to the termination of the Plaintiff’s Sale Representative Contract. The period of claim is from 1994 to 1998. Needless to, the FNPF contribution is a statutory obligation imposed on the Defendant to pay for its employees and contracted agents"

[44] Mr Khaiyum in paragraph 5 of the affidavit deposed that "when the plaintiff issued the proceeding in Civil Action No.286/1999, he (plaintiff) could have and ought to have made a claim for FNPF contribution which he neglected to do"...The deponent further elaborated the reason for this in paragraph 4 of the affidavit.

[45] This poses the question of what constitute a cause of action. Brennan J in Anshun after noting the imprecision in the definition of a ‘cause of action’ stated the following possible meanings:-

"if cause of action is taken to mean a right, the rule is stated in terms of the passing of the right into judgment, and the rule precludes a party bound by the judgment from maintaining against another party bound by any subsequent proceeding to recover a judgment a giving remedy to enforce or to compensate for an infringement of that right....

If cause of action is taken to mean the facts which supports a right to judgment, the rule of res judicata bars an action for relief founded upon the same fact as those upon which an earlier judgment was recovered, though the right sued upon in the second action is different from the right which passed into or was negated by the earlier judgment...

When the same facts support rights to different remedies against the same defendant, the plaintiff cannot recover a judgment giving a remedy in respect of more than one right..."

[46] In the present action, the primary cause of action is breach of the Sales Representative contract. Principal relief sought is damages based on the alleged breaches of the contract. The material facts particularly those relating to the damages are the same. Either it is for the past, present or future. The launching pad for the ascertainment of any damages is the past understanding or agreement between the parties as to the rate of commission and other incidentals thereto. On the liability, the primary factor is the Sales Representatives Agreement and any breach(es) thereof. That is, the cause of action is based upon the facts which support a right to judgment. Also the primary facts of the various causes of actions will give rise to different remedies, that is for the past, present and future loss. In both these instances Brennan J stated that a plaintiff cannot commence a second suit. This equally applies in this case.

[47] Applying the test in Anshun the question that needs to be determined is whether the causes of action in the second action are ‘so relevant to the subject matter of the first action that it was unreasonable not to rely upon it’. In the words of Somervelle LJ in Greenhlagh v Mallard, are the cause(s) of action in this latter action so ‘part of the subject matter of the litigation’ that it ought to have been included in the former proceeding. Are the matters raised in the second action ...’ so clearly part of the subject matter of’ of civil action 286/99, ’or...so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of, the alleged causes of action, to borrow the words of Wigram V.C in Hendersen v Hendersen. In Johnson v Gore Wood & Co the House of Lords said the mere fact of relying exceedingly on a similar action being decided alone, will be taking a too dogmatic approach. What is required is a ‘broad merit based judgment’. To achieve that result the preferred question to be asked is ‘...whether in all circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by social circumstances. Properly applied, and whatever the legitimacy of its descent the rule has in my view a valuable party to play in protecting the interest of Justice.’ However in Johnson -v- Gore Wood, it was considered that the case of abuse of process will be more likely to be made out where the second action is against the same party earlier sued. The Court of Appeal in Gallagher –v- Reserve Bank of Fiji adopted the reasonableness test state in Anshun, and the broad merit base judgment in Johnson –v- Gore Wood & Co.

[48] Certainly the causes of action pleaded herein were subsisting at the time when Civil Action No. 286/1999 was initiated or better still before the trial had commenced. Those causes of action had accrued to the plaintiff, some dating back to 1985. The Court in deciding the question of the termination of the Agreement certainly would have considered the fate of the alleged accrued benefits now claimed. There is force in the argument as the plaintiff was terminated by colonial in accordance with the grievance procedure mutually agreed between the parties by virtue of the then existing agreement. Thus prudence would have necessitated the bringing of one action for all conceivable causes of action and the ensuing remedies. ‘All’ refers to the total liability and damages for the past, present and future. This is because the effect of termination brought an end to the relationship between the plaintiff and Colonial. A potential outcome of the suit was the upholding of the termination. If that eventuated, it would have occurred to the plaintiff that a second shot at any remaining part of the claim may be extremely difficult, if not impossible. In my view the causes of action herein are ‘so part of the subject of the litigation’ or ‘so relevant to the subject matter of the first action, that ‘on a broad merit based judgment’ it was ‘unreasonable’ on the part of plaintiff ‘not to rely upon it’ By including the same in civil action 288/1999

[49] I say this because the plaintiff or has legal advisers ought to have realised that the sole remedy is the recovery of commission and any incidentals thereof. Seeking compensation for the future loss of the Commission is just a limb of the remedy. The other limb is the past losses. Needless to mention, that to asses the future losses the court inevitably would have had to revisit the past arrangements and payment of benefits between the parties. For instance, if the plaintiff were to succeed in the earlier action, naturally the court in assessing damages would have had to deal with the issue of FNPF. What was the agreement relating to the FNPF payment? Was there any arrangement at all? The judgment was delivered in 2004. The plaintiff was terminated on 26th February, 1999. I have already referred to a decision of His Lordship Mr Justice Winter where it was held that the Sales Representatives were not entitled to any FNPF until the amendment to the Act in 2005. Accordingly, it is arguable whether the plaintiff is entitled to claim FNPF on the force of the agreement itself. Even if it so, since this action was file in 2004 much of the claim is barred by Section 4(1) of the Limitation Act.

[50] According to Mr Valenitabua, FNPF contribution in the case of the plaintiff was a mandatory statutory liability. (This submission is devoid of any merits in light of the judgment of His Lordship Mr justice Winter). Be that as it may, as any other case of assessment of losses of personal income, FNPF contribution as a component is a necessary adjunct in the award. One of the reliefs sought in Civil Action No. 286/1999, was for the loss of future commissions. In assessing the damages in Civil Action No. 286/1999, no doubt the plaintiff would have called evidence or proffered submissions on the claim for any loss of FNPF. This is relevant to the second action because the primary claim is for past non-payment of accumulated employer’s contribution. It is argued that the employer did not pay the contribution to the Fund. Both claims are inclusive of the incidentals such FNPF, interest etc. The liability and basis for calculation of any damages are all based on the agreement between the parties. The long and short of the argument is that in one action all the issues with reasonable diligence could have been pursued.

[51] Another reason why the cause of this action ought to have been included in the earlier proceeding is that, when that action was commenced, the cause of action in respect of FNPF for years 1994 to 1998 had already accrued to the plaintiff. He was fully conversant with it. I say this because civil action no. 286/1999 was filed after the termination. Mr. Valenitabua submitted that the plaintiff was unaware of the non-payment of FNPF. However, there is no evidence to support the submission. To the contrary, Mr. Valenitabua on request of the Court, and with the consent of the defendant provided to the court a letter written by the Plaintiff to the Defendant dated on 24th July, 2002. In that letter the Plaintiff makes reference to the past practice of Colonial’s deferred payment to FNPF. What it shows is that the Plaintiff was either aware or ought to have had knowledge of this alleged occurrences when the earlier action was commenced. As such he was in a position to formulate and include the cause(s) of action in the earlier action. Accordingly, in seeking compensation, even if it was for breach of the contract, all accrued causes of action emanating from the said relationship was feasible and should rightly have been brought at once in the earlier action.

[52] Of course, if it requires different consideration if the cause of action vested to the plaintiff after the judgment or even if the trial had begun and it was impossible to amend or to discontinue the proceedings to start a fresh proceedings inclusive of all the causes of action. But in this instance the Plaintiff’s claim is for loss of past earnings and benefits. This claim accrued before the earlier action was commenced or even was conceived because then he was not terminated from employment.

[53] In paragraph 12 of the writ, the claim is for the loss of income and incidentals thereto relating back to 1996. The plaintiff’s contention that he was unaware of the non-payment of FNPF lacks any merit. The plaintiff in the letter of 24th July, 2002, addressed to the Managing Director of Colonial tabulated the non payment of FNPF for the 1994 to 1998 in meticulous detail. He adverts to the fact that this ‘practice has existed since 1994’. Of course, FNPF issues a six monthly Statement to its members. Any short fall since 1994 could easily have been detected with due diligence by at least when the civil action 286/99 was filed or better still during the period over which it was still pending awaiting for the trial. The reason as to why with due diligence the plaintiff would have been able to ascertain the causes of action, is because the earlier action was commenced after he was terminated. Therefore in seeking the reliefs which is sought, it was only incumbent upon him to include all that Colonial duly owed to him such as FNPF contribution and Sales Representatives commissions. Needless to mention that the claim for commission on OD policies dating back to 1985 will be caught by Limitation Act (Cap 35), which is a defence relied upon by Colonial.

[54] In my view the aforesaid discussion equally applies to the cause of action based on the payment of a reduced rate of commission. In a nutshell, the earlier and the present action involved a fundamental cause of action based on breach(es) of the contract between the parties. In both instances the principal remedy sought are damages, either it be for the past or future. One can agree no more with principle exposed by Wigram VC to its application in case of multiple breaches of a contract over a span of time. Indeed, where there is more than one isolated breaches of a contract (be it employment or otherwise), and the cause(s) of action had already accrued, they can all be and as general rule ought to be tried in one action. This case is no exception. To try the isolated breaches in a piecemeal basis will result in unnecessary expenditure and also over compensation.

[55] The onus of proof to satisfy the application of the rule in Hendersen rests on the party seeking to invoke it; G. Spences Bower and Sir A. K. Turner Res Judicata 2nd Edition 1969 see para 19. I am satisfied that the defendant has discharged the burden of proof that the causes of action in this action ought to have been included in Civil Action No. 286/1999. This is because the proceedings herein ‘properly belonged to the subject of litigation in civil action 286/1999’. In fact it is ‘unreasonable for the plaintiff not to include the same in the earlier action’. All it required was an exercise of due diligence when the first action was filed to incorporate the subject of this action "which is so clearly part of the subject matter of civil action no. 286/1999." In arriving at this conclusion I have not been dogmatic in the sense of merely considering the conduct of the filing of two actions. I have given weighty consideration to the conduct of the parties including a meticulous review of the facts in both the actions.

[56] In my opinion this action was capable of and ought to have been incorporated with the earlier action already decided. Once the court has formed a concluded opinion that the causes of action was capable of or should have been incorporated and pursued in the one action it must consider any special circumstance which may exclude the application of the rule in Hendersen. Wigram V-C in Hendersen -v- Hendesen at page 382 posed two pertinent questions which a court must ask are:-

"The question then is whether the special circumstances appearing upon the face of this bill are sufficient to take the case out of the operation of the general rule? What are the circumstances"?

[57] Apart from the consideration of the special circumstances, the court is limited to the exercise of it discretionary jurisdiction. In Stuart v Sanderson [2000] FCA 870 at para 29 the Federal Court Australia in discussing the discretionary power in the application of the rule in Hendersen said:-

"29 – Yet, although the doctrine of Anshun estoppel may be ultimately derived from the Court’s power to prevent an abuse of its process, that does not of itself demand that the principle be applied on an entirely open-ended, discretionary basis. It is to be noted that in Anshun, in the passage set out in para 26 above, the High Court explained the criteria for the prima facie application of the estoppel rule. Nevertheless, the terms of the particular rule articulated by Wigram VC, set out above, at para 16 and adopted, albeit with explanation, in Anshun, appear to suggest that the discretionary aspects of the Anshun rule are to be found in the "special circumstances" exception".

[58] No submission was advanced on behalf of the plaintiff to demonstrate any "special circumstances" to exclude the application of rule. Nor could I decipher any such extenuating circumstance to treat the case as a special one excepting it from the general rule.

[59] The action was instituted after the trial but before the judgment in civil action No. 286/1999. That is clear evidence of the fact that the plaintiff had or ought to have had requisite knowledge of the cause(s) of action. Mr Rabuku argued that the sole purpose of this action is to overcome the shortcomings encountered in the trial in Civil Action No. 286/1999. That submission does not seem to be far fetched. Whilst the filing of the action may not amount to be mala-fide but certainly the timing of the filing of this action does raise some eye brows. This belated action will undeniably incur duplicitous expenditure. The mere filing of an action arising out of the same or surrounding factual circumstances whilst an action is already pending in court is an abuse of the process of the Court. This was reiterated by Thomas J. in Vucic & Anor –v- Belosevic & Ors. [2003] SASC 296.

"Courts will stay proceedings as an abuse of process where the same remedies are sought in two separate actions. In McHenry v Lewis [1882] UKLawRpCh 260; (1882) 22 Ch. D. 397 at 400, Sir George Jessel MR expressed the principle in these terms:

In this country, where the two actions are by the same man in Courts governed by the same remedies, it is prima facie vexatious to bring two actions where one will do" At 402, he described the ground of vexation: The vexation, if any consists in bringing several proceedings to try the same question or series of question."

[60] In deliberating upon this application, I have borne in mind as to what was said by the Privy Council in Yat Tung Co. –v- Dao Heng Bank [1975] UKPC 6; [1975] AC 581. At page 581, Lord Kilbrandon said;

"The shutting out of a "subject of litigation" a power which no court should exercise but after a scrupulous examination of all the circumstances is limited to cases where reasonable diligence would have caused a matter to be earlier raised; moreover, although negligence, would have caused a matter to be earlier raised; moreover, although negligence, in advertence or even accident will not suffice to excuse, nevertheless "Special Circumstances" are reserved in case justice should be found to require the non-application of the rule."

[61] In considering this application I have weighed the two balancing considerations, that is the ‘shutting out’ of the claim and the ‘vexing’ of the defendant twice. Undoubtedly, with reasonable diligence the issues in this proceeding could have been successfully incorporated and pursued in the earlier proceeding. The exercise of discretion is limited to prevalence of any ‘special circumstances’ of which none was prevailed upon by the plaintiff. I uphold the submissions of the defendant and allow the application. By virtue of the extended doctrine of res judicata in Hendersen -v- Hendersen (Supra), all the causes of action in this action are merged in the judgment of Pathik J. The causes of action herein ought to have been pleaded in C/A 288/1999.

[62] For the foregoing reasons, this action is struck-out for abuse of the process of the court. The defendant is entitled to costs which I so order, and summarily assess at $500-00.

High Court of Fiji

Ledua v Colonial Life Fiji Ltd [2008] FJHC 363; HBC288.2004 (18 August 2008)