IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 45 of 2014

BETWEEN:

JULIAN HENNINGS of Lot 1, Beach Road, Korotogo, Sigatoka
1st PLAINTIFF

DAVID CHARLES MILLER of Lot 3, Uduya Point, Lami
2nd PLAINTIFF

MAUI BAY LIMITED a limited liability company having its registered office c/- Taveuni Development. Level 8, Pacific House, Butt Street, Suva
3rd PLAINTIFF

AND:

CRAIG DE LA MARE of Hotel Site Lot 114, Maui Bay Estate, Korolevu, Baravi, Fiji
DEFENDANT

Mr. Devanash Prakash Sharma for the Plaintiffs
The Defendant appearing in person

Date of Hearing: - 08th May 2015 
Date of Ruling : - 30th September 2015 

RULING

(A)	INTRODUCTION
(1)	The matter before me stems from the Defendant's Summons dated 11th March 2015, made pursuant to Order 18, Rule 18 (1) (a) and (2) of the High Court Rules, and the inherent jurisdiction of the Court seeking the grant of the following orders;

(1)	That the Plaintiffs Writ and Statement of Claim be struck out and his action dismissed on the grounds that it:

(a)	DISCLOSES no reasonable cause of action against the Defendant 

(2)	That the Plaintiffs pay costs of this application on an indemnity basis.

(3)	That if the application is successful the Plaintiffs pay costs on an indemnity basis for the entire proceedings to date.

(4)	Such further or other orders as the Honourable Court deems fit, just and expedient under the circumstances.

(2)	The application is strongly opposed by the Plaintiffs.

(3)	The Plaintiffs and the Defendant were heard on the Summons. They made oral submissions to Court. In addition to oral submissions, they filed a careful and comprehensive written submission for which I am most grateful.

(B)	THE LAW

Before turning to the relevant facts and the substantive submissions, it is convenient to indicate something of the relevant law.

(1)	Provisions relating to striking out are contained in Order 18, rule 18 of the High Court Rules. Order 18, rule 18 of the High Court Rule reads;

18. – (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that –

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the court;

And may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

(2)	No evidence shall be admissible on an application under paragraph (1) (a).

 Footnote 18/19/3 of the 1988 Supreme Court Practice reads;

"It is only plain and obvious cases that recourse should be had to the summary process under this rule, per Lindley MR. in Hubbuck v Wilkinson(1899) 1 Q.B. 86, p91 Mayor, etc., of the City of London v Homer (1914) 111 L.T, 512, CA). See also Kemsley v Foot and Qrs (1952) 2KB. 34; (1951) 1 ALL ER, 331, CA. affirmed (195), AC. 345, H.L .The summary procedure under this rule can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable " (Att – Gen of Duchy of Lancaster v L. & N.W. Ry Co (1892)3 Ch 274, CA). The summary remedy under this rule is only to be applied in plain and obvious cases when the action is one which cannot succeed or is in some way an abuse of the process or the case unarguable (see per Danckwerts and Salmon L.JJ in Nagle v Feliden(1966) 2. Q.B 633, pp 648, 651, applied in Drummond Jackson v British Medical Association(1970)1 WLR 688 (1970) 1 ALL ER 1094, (CA) .

Footnote 18/19/4 of the 1988 Supreme Court Practice reads;
 "On an application to strike out the statement of claim and to dismiss the action, it is not permissible to try the action on affidavits when the facts and issues are in dispute (Wenlock v Moloney) [1965] 1. WLR 1238; [1965] 2 ALL ER 87, CA).
 
 It has been said that the Court will not permit a plaintiff to be "driven from the judgment seat" except where the cause of action is obviously bad and almost incontestably bad (per Fletcher Moulton L.J. in Dyson v Att. – Gen [1911] 1 KB 410
 p. 419)."

(3) In the case of Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641, it was held;

"The jurisdiction to strike out a pleading for failure to disclose a cause of action is to be sparingly exercised and only in a clear case where the Court is satisfied that it has all the requisite material to reach a definite and certain conclusion; the Plaintiff's case must be so clearly untenable that it could not possibly success and the Court would approach the application, assuming that all the allegations in the statement of claim were factually correct"

(4)	In the case of National MBF Finance (Fiji) Ltd v Buli [2000] FJCA 28; ABU0057U.98S (6 JULY 2000), it was held;

"The law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be proved. If a legal issue can be raised on the facts as pleaded then the courts will not strike out a pleading and will certainly not do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention. It follows that an application of this kind must be determined on the pleadings as they appear before the Court"

(5)	In Tawake v Barton Ltd [2010] FJHC 14; HBC 231 of 2008 (28 January 2010), Master Tuilevuka (as he was then) summarised the law in this area as follows;

"The jurisdiction to strike out proceedings under Order 18 Rule 18 is guardedly exercised in exceptional cases only where, on the pleaded facts, the plaintiff could not succeed as a matter of law. It is not exercised where legal questions of importance are raised and where the cause of action must be so clearly untenable that they cannot possibly succeed (see Attorney General –v- Shiu Prasad Halka 18 FLR 210 at 215, as per Justice Gould VP; see also New Zealand Court of Appeal decision in Attorney –v- Prince Gardner [1998] 1 NZLR 262 at 267."

(6)	His Lordship Mr Justice Kirby in Len Lindon –v- The Commonwealth of Australia (No. 2) S. 96/005 summarised the applicable principles as follows:-

a)	It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.

b)	To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action … or is advancing a claim that is clearly frivolous or vexatious…

c)	An opinion of the Court that a case appears weak and such that is unlikely to succeed is not, alone, sufficient to warrant summary termination… even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and arguments and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.

d)	Summary relief of the kind provided for by O.26 r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer…. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.

e)	If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleading.

f)	The guiding principle is, as stated in O 26 r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

(7) In Paulo Malo Radrodro vs Sione Hatu Tiakia & others, HBS 204 of 2005, the Court stated that:

"The principles applicable to applications of this type have been considered by the Court on many occasions. Those principles include:

a)	A reasonable cause of action means a cause of action with some chance of success when only the allegations and pleadings are considered – Lord Pearson in Drummond Jackson v British Medical Association [1970] WLR 688.

b)	Frivolous and vexation is said to mean cases which are obviously frivolous or vexations or obviously unsustainable – Lindley Li in Attorney General of Duchy of Lancaster v L.N.W Ry[1892] 3 Ch 274 at 277.

c)	It is only in plain and obvious cases that recourse would be had to the summary process under this rule – Lindley MR in Hubbuck v Wilkinson [1899] Q.B 86.

d)	The purpose of the Courts jurisdiction to strike out pleading is twofold. Firstly is to protect its own processes and scarce resources from being abused by hopeless cases. Second and equally importantly, it is to ensure that it is a matter of justice; defendants are permitted to defend the claim fairly and not subjected to the expense inconvenience in defending an unclear or hopeless case.

e)	"The first object of pleadings is to define and clarify with position the issues and questions which are in dispute between the parties and for determination by the Court. Fair and proper notice of the case an opponent is required to meet must be properly stated in the pleadings so that the opposing parties can bring evidence on the issues disclosed – ESSO Petroleum Company Limited v Southport Corporation [1956] A.C at 238" – James M Ah Koy v Native Land Trust Board & Others – Civil Action No. HBC 0546 of 2004.

f)	A dismissal of proceedings "often be required by the very essence of justice to be done"……. – Lord Blackburn in Metropolitan – Pooley [1885] 10 OPP Case 210 at 221- so as to prevent parties being harassed and put to expense by frivolous, vexations or hopeless allegation – Lorton LJ in Riches v Director of Public Prosecutions (1973) 1 WLR 1019 at 1027" 

(8)	In Halsbury's Laws of England Vol 37 page 322the phrase "abuse of process" is described as follows:

"An abuse of process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the process is misused. In such a case, even if the pleading or endorsement does not offend any of the other specified grounds for striking out, the facts may show it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or endorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of an abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court."

(9)	The phrase "abuse of process" is summarized in Walton v Gardiner (1993) 177 CLR 378 as follows:

 "Abuse of process includes instituting or maintaining proceedings that will clearly fail proceedings unjustifiably oppressive or vexatious in relation to the defendant, and generally any process that gives rise to unfairness"

(10)	 In Stephenson –v- Garret [1898] 1 Q.B. 677 it was held:

"It is an abuse of process of law for a suitor to litigate again over an identical question which has already been decided against him even though the matter is not strictly res judicata.

 Domer –v- Gulg Oil (Great Britain) (1975) 119 S.J 392

"Where proceedings which were viable when instituted have by reason of subsequent events become inescapably doomed to failure, they may be dismissed as being an abuse of the process of the court"

Steamship Mutual Association Ltd –v- Trollope and Colls (city) Ltd (1986) 33 Build L.R 77, C.A
 "The issue of a writ making a claim which is groundless and unfounded in the sense that the plaintiff does not know of any facts to support it is an abuse of process of the Court and will be struck out"

(C)	THE FACTUAL BACKGROUND 

(1)	The action was instituted on 27th March 2014

(2)	The Plaintiffs alleged that the Defendant has made slanderous statements against them and thereby defamed them.

(3)	The Pre-Trial Minutes were filed in Court on 19th February 2015.

(4)	The status of the proceedings is for the Plaintiffs to file copy pleadings and Order 34 Summons

(5)	What are the facts here? It is necessary to approach the case through its pleadings, bearing all those legal principles in my mind.

(6)	With that short introduction, let me set out the relevant facts. The Plaintiffs in their Statement of Claim plead inter alia;

Para (1) THAT the first Plaintiff was at all material times an Employee and Manager of Maui Bay Estate a subdivision situated at Korolevu, Baravi, Fiji.

 (2) THAT the second Plaintiff is a shareholder of Maui Bay Limited, a company that is the Developer of the Maui Bay Estate Subdivision.

 (3) THAT the third Plaintiff:

(a)	Is a company created under the provisions of the Companies Act Cap 247;

(b)	It is registered and operates in Fiji;

(c)	Is the Company that carried out the Subdivision of land that is now known as Maui Bay Estate situated at Korolevu, Baravi, Fiji (hereinafter referred to as "Maui Bay").

(4)	THAT the Defendant is a party to a case filed in the Sigatoka Magistrates Court details of which are as follows:-

Action No.: Sigatoka Miscellaneous Action No. 1/13

Plaintiffs : Craig De La Mare and Evette De La Mare of Hotel Site 114 Maui Bay, Korolevu, Baravi, Fiji

1st Defendant: Gerolf Wind of Lot 126 Maui Bay Estate, Korolevu, Baravi, Fiji 

2nd Defendant: Kimberly Wind of Lot 126 Maui Bay Estate, Korolevu, Baravi, Fiji

3rd Defendant: Francis Colin Kumar of Lot 126 Maui Bay Estate, Korolevu, Baravi, Fiji

4th Defendant: Kate Kumar of Lot 126 Maui Bay Estate, Korolevu, Baravi, Fiji

(5)	THAT on 20th February 2013 Resident Magistrate Siromi Dokonivalu Turaga gave a Ruling in Sigatoka Miscellaneous Action No. 1/13. 

(6)	THAT at paragraph 9 and 10 of the Ruling the Court recorded certain statements made by the 1st Defendant in Court. 

(7)	THAT the statements attributed to Defendant were as follows:-

We cannot have a fair hearing with a Police in Sigatoka in respect to the complaints pertaining To residents of Maui Bay Resort. 

Mr Julian Hennings who manages the Resort on behalf of its owner David Miller is the nephew of the Commissioner of Police Mr Nailavuarua and

I have a letter from the Director of Public Prosecution that no crime will be investigated in Maui Bay unless the Commissioner of Police authorizes it. 

That Sigatoka Station Officer – Aliposo and Mr Hennings are colleague from Marist Brothers and that Mr Hennings used Police to challenge any complaint made by any residents of Maui Bay and that every time that deploys the same officer named Beni to attend to our report and said "We cannot get a fair hearing with the Police – we are entitle to make private prosecution.

(8)	THAT the Plaintiffs rely on the natural and ordinary meaning of the words which are prima facie defamatory and slanderous.

(9)	THAT the said words in their natural and ordinary meaning were meant and understood to mean:

•	That the Plaintiffs were dishonest, deceitful and persons
•	who lacked personal integrity
•	and who were engaged in using corrupt practices
•	and undue influence
•	to prevent criminal complaints being filed and investigated by the Sigatoka Police Station.

(10)	THAT the defamatory statements go far beyond fair comment and are malicious and designed specifically to impugn the 1st and 2nd Plaintiff's personal characters and reputations.

(11)	THAT the Defendant's statements clearly refer to the Plaintiffs.

(12)	THAT the Plaintiffs aver that the defamatory words have brought them intro hatred, ridicule and contempt and they have suffered damages as a result.

(13)	THAT the Plaintiffs have lost investors who had been interested in investing in Maui Bay Estate but have decided not to invest as a result of the image painted by the Defendant against the Plaintiffs.

(14)	THAT the Plaintiffs categorically deny that they have in any way influenced or obstructed the Defendant's ability to lodge complaints to the Sigatoka Police. Whether the Sigatoka Police wish to prosecute anyone based on the Defendant's complaints is a matter entirely for Sigatoka Police.

(15)	THAT a number of persons who read the judgment thought that these statements uttered by the Defendant were findings of fact made by the Court against the Plaintiffs.

(16)	THAT the Defendant has refused to retract or withdraw his statements.

(17)	THAT the Defendant has refused to apologise for his conduct despite the Plaintiffs request for the same.

(18)	THAT the Plaintiffs plead that the Defendant has acted with malice and in a high handed manner in making the defamatory statements in a Court of Law, entitling the Plaintiffs to punitive and aggravated damages.

(19)	THAT the Plaintiffs therefore claim the relief set out herein.

(7)	In the Statement of Claim, the Plaintiffs seek the following reliefs;

(1)	General damages for utterances of the false and defamatory statements;

(2)	Aggravated and Punitive Damages;

(3)	Pre judgment Interest on Damages;

(4)	Post judgment Interest;

(5)	Costs on a substantial indemnity basis;

(6)	Such further and other relief as this Honourable Court deems just and expedient.

(D)	ANALYSIS

(1)	Before I pass to consideration of the substantive submissions, let me record that the Plaintiffs and the Defendant in their written submissions have done a fairly exhaustive study of judicial decisions and other authorities which they considered to be applicable.

 I interpose to mention that I have given my mind to the oral submissions made by the parties as well as to the written submissions and the judicial authorities referred to therein.

(2)	If, as I apprehend, now comes a most material and the crucial fact.

I ask myself, what is the question in these proceedings?

At the outset, I must confess that there are five (05) problems that concern me.

First, what is the conduct of the Defendant that is in question?

Secondly, what is the gist and the essence of the Plaintiffs complaint?

Thirdly, does the law recognize an action for the remark alleged in the Statement of Claim?

To be more precise, whether the Statement of Claim reveals a reasonable cause of action and constitutes triable issues?

 Fourthly, if so, are the Plaintiffs debarred from succeeding in such an action because of the doctrine of "Absolute Privilege" of the occasion?

 Fifthly, whether the Defendant is entitled to immunity from civil suit under the Common Law?

AND

 Are there any restrictions upon the immunity conferred by the Common Law in respect of Legal Proceedings as to the administration of Law? To be more precise, is it an absolute immunity?

(3)	Addressing myself to the first question "What is the conduct of the Defendant that is in question", to give the whole picture of the action, I can do no better than reiterate hereunder the main averments/assertions of the Plaintiffs Statement of Claim.

The Plaintiffs in their Statement of Claim plead inter alia that;

Para (1) THAT the first Plaintiff was at all material times an Employee and Manager of Maui Bay Estate a subdivision situated at Korolevu, Baravi, Fiji.

 (2) THAT the second Plaintiff is a shareholder of Maui Bay Limited, a company that is the Developer of the Maui Bay Estate Subdivision.

 (3) THAT the third Plaintiff:

(a)	Is a company created under the provisions of the Companies Act Cap 247;

(b)	It is registered and operates in Fiji;

(c)	Is the Company that carried out the Subdivision of land that is now known as Maui Bay Estate situated at Korolevu, Baravi, Fiji (hereinafter referred to as "Maui Bay").

(4)	THAT the Defendant is a party to a case filed in the Sigatoka Magistrates Court details of which are as follows:-

Action No.: Sigatoka Miscellaneous Action No. 1/13

Plaintiffs : Craig De La Mare and Evette De La Mare of Hotel Site 114 Maui Bay, Korolevu, Baravi, Fiji

1st Defendant: Gerolf Wind of Lot 126 Maui Bay Estate, Korolevu, Baravi, Fiji 

2nd Defendant: Kimberly Wind of Lot 126 Maui Bay Estate, Korolevu, Baravi, Fiji

3rd Defendant: Francis Colin Kumar of Lot 126 Maui Bay Estate, Korolevu, Baravi, Fiji

4th Defendant: Kate Kumar of Lot 126 Maui Bay Estate, Korolevu, Baravi, Fiji

(5)	THAT on 20th February 2013 Resident Magistrate Siromi Dokonivalu Turaga gave a Ruling in Sigatoka Miscellaneous Action No. 1/13. 

(6)	THAT at paragraph 9 and 10 of the Ruling the Court recorded certain statements made by the 1st Defendant in Court. 

(7)	THAT the statements attributed to Defendant were as follows:-

We cannot have a fair hearing with a Police
in Sigatoka in respect to the complaints pertaining
To residents of Maui Bay Resort. 

Mr Julian Hennings who manages the Resort on behalf of its owner David Miller is the nephew of the Commissioner of Police Mr Nailavuarua and
I have a letter from the Director of Public Prosecution that no crime will be investigated in Maui Bay unless the Commissioner of Police authorizes it. 

That Sigatoka Station Officer – Aliposo and Mr Hennings are colleague from Marist Brothers and that Mr Hennings used Police to challenge any complaint made by any residents of Maui Bay and that every time that deploys the same officer named Beni to attend to our report and said "We cannot get a fair hearing with the Police – we are entitle to make private prosecution.

(4)	I turn next to consider the second question posed at paragraph two (02).

If, as I apprehend, the gist and the essence of the Plaintiffs Claim is that the remark alleged in the Statement of Claim is defamatory and go far beyond fair comment and is malicious and designed specifically to impugn the first and the second Plaintiffs personal character and the reputation.

(5)	I propose to consider the third and fourth questions posed at paragraph two (02) jointly.

It is worth remarking that the Defendant admits that he uttered the words alleged in the Statement of Claim. He simplistically submits that he placed reliance on a letter issued by the Director of Public Prosecutions.

Moreover, he contends;
[Defendant in his submissions writes…]

a)	The Defendant disputes that the claim against him for defamation is actionable based on the facts that the Statement attributed to him were made in a court of law during Judicial Proceeding and then reported by the Magistrate in a Court Ruling.

b)	The defendant claims the right to the defence of Absolute Privileges for defamation, for the words spoken and then reported in a ruling during legal proceedings. Therefore no matter what was said by him could be actionable either criminally or civilly in a Court of Law.

It is incumbent upon the Court to follow the, Authoritative cases, the statutory provisions. Common Law and Public policy, and strike out the Plaintiffs entire Statement of Claim as it discloses no reasonable cause of action against the Defendant and is doomed to fail.

 (Emphasis Added)

 In adverso, the Counsel for the Plaintiff's eloquently submits;
 [Counsel in his submission writes………..]

 Para [26] The law on defamation in Fiji is covered under the Defamation Act, cap 34 [Tab A]. In this Act there is only one provision that extends to Absolute Privilege and that is Section 13. Section 13 only extends absolute privilege to a fair and accurate report in a newspaper about proceedings publicly heard before any court or other judicial proceedings if the report is produced contemporaneously with the Court proceedings.

[28] In fact the Fijian Act only provides absolute privilege to the statements covered under Part 1 of the Schedule to the Act but it can be noticed that such privilege only extends to accurate newspaper statements and reporting.

The aforesaid submissions require some examination of the law regarding defamation in Fiji. 

The law on defamation in Fiji is covered under the Defamation Act, Cap 34.

I should quote Section 13 of the Defamation Act which provides;

 Absolute privilege of newspaper report of proceedings in court

 13. A fair and accurate report in any newspaper or broadcast of  proceedings publicly heard before any court or other judicial proceeding shall, if published contemporaneously with such proceedings, be absolutely privileged:

 Provided that nothing in this section shall authorize the publication of any blasphemous or indecent matter.

Provided that nothing in this section shall authorize the publication of any blasphemous or indecent matter.

A cursory glance at the Defamation Act reveals that, there is only one provision that extends to "Absolute privilege" and that is Section 13. Section 13 only extends absolute privilege to a fair and accurate report in a news paper about proceedings publicly heard before any court or other judicial proceedings if the report is produced contemporaneously with the Court proceedings.

In the result, I venture to say beyond per-adventure that the doctrine of Absolute privilege has no application even by any stretch of imagination to the instant case. Thus, I am constrained to answer the third and fourth questions posed at paragraph two in affirmative and negatively respectively.

At this point I cannot resist in saying that the proposition advanced by the Defendant is a far cry from the obvious and natural limitation to the doctrine of Absolute Privilege in Fiji and it flies on the face of Section 13 of the Defamation Act in Fiji.

I interpose to mention that I certainly agree with the sentiments which are expressed inferentially in the Plaintiffs submissions.

(6)	I now proceed to examine the fifth question posed at paragraph two (02).

Before turning to the fifth question posed at paragraph two (02), it is convenient to indicate something of the relevant law in relation to the immunity rule of the Common Law, which is founded upon public policy.

 There exists a fundamental rule of law that:

"no action lies against parties or witnesses for anything said or done, although falsely and maliciously and without any reasonable or probable cause, in the ordinary course of any proceeding in a court of justice."

per Kelly C.B. in Dawkins v Lord Rokeby [1873] L.R. 8Q.B. 255. As Sellers LJ put it in Marrinan v Vibart [1963] 1 Q.B. 528 at 535:

"Whatever form of action is sought to be derived from what was said or done in the course of judicial proceedings must suffer the same fate of being barred by the rule which protects witnesses in their evidence before the court and in the preparation of the evidence which is to be so given."

 I shall call this the immunity rule.

The public policy purposes underlying the immunity rule are essentially two fold. First, per Fry LJ in Munster v Lamb (1883) 11 Q.B.D. 588:

"… to protect persons acting bona fide, who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions."

 Second, as Lord Wilberforce said in Roy v Prior [1971] A.C. 470 at 480:

"… to avoid a multiplicity of actions in which the value or truth of their evidence would be tried over again".

 What is the scope and width of the immunity rule?

It is of course an elementary principle of law that the immunity conferred by the Common Law in respect of statements made in the course of an inquiry or trial as to the administration of law, is not absolute.

To my mind, it is illogical to argue that the protection of privilege ought to exist for a person who deliberately and maliciously slanders another person. I interpose to state that the immunities conferred by the Common Law founded upon public policy in respect of legal proceedings need always to be checked against a broad view of the public interest.

In the context of the present case, I cannot help but recall the rule of law enunciated in the following judicial decisions. 

The immunity rule should extend only so far as is strictly necessary in order to protect those who are to participate in the proceedings from a flank attack. (per Delvin LJ in Lincoln v Daniels (1962) 1 Q.B. 237).

The immunity conferred by the Common Law exists only so long as the words complained of are not scandalous, false and malicious. [Henderson v Broomhead, 28 L.J. (Ex) 360, Revis v Smith 18 C.B. 126].

The privilege exists only if the words complained of are relevant. [Higginson v O'Flaherty, 4 Ir. Law Rep 120]

The words complained of are must be pertinent to the issue before the court.
[Hodgson v Scarlett, 01 B. S Ald 232).

I have no difficulty in accepting the rule of law enunciated in the aforementioned judgments.

Lastly, I confess that I am inclined to lean in favour of the judicial thinking reflected in the dictum of Lord Mansfield in Rex v Skinner, Lufft 55. Hon. Lord Mansfield says;
 
 "neither party, witness, counsel, jury, or judge can be put to answer, civilly or criminally, for words spoken in office. If the words spoken are opprobrious or irrelevant to the case, the Court may take notice of them as a contempt and examine on information. If anything of mala mens is found upon such inquiry, it will be punished suitably."

 (Emphasis Added)

At this point, I cannot resist in saying that the aforementioned authorities are clear, uniform and conclusive that the immunity conferred by the Common Law in respect of legal proceedings as to the administration of the law is not intended to protect malicious and untruthful persons, but it is intended to protect persons acting bona fide, who under a different rule would be liable, not perhaps to verdicts and judgments against them, but to the vexation of defending actions.

For the reason which I have endeavored to explain, I venture to say beyond a per-adventure that the immunity conferred by the Common Law in respect of legal proceedings which is founded upon public policy is not absolute.

(8)	It seems to me perfectly plain that the question whether the Defendant is entitled to immunity from civil suit under the Common Law, raises the following very difficult questions which can properly be resolved by a trial, at which the parties and all relevant witnesses give evidence and the facility exists for that evidence to be tested.

•	How did the Defendant say the words complained of?
•	Did the Defendant say the words complained of whilst giving evidence?
•	Did the Defendant say the words complained in some form of pleadings?
•	In what context did the defendant say the words complained of?
•	Are these words relevant to the subject before the Court in the strictest sense?
•	Whether the words spoken are opprobrious or irrelevant to the case?
•	Whether the Defendant spoken with malice or with falsehood?
•	Whether the Defendant spoken with good faith?

(9)	If, as I apprehend, the Statement of Claim raises debatable questions of law and facts. As earlier mentioned in paragraph eight (08), the case involves very difficult questions. These are to be determined. The rights of the parties depend on the questions raised in paragraph eight (08). Therefore, it is not competent for this Court to dismiss the action on the ground that it discloses no reasonable cause of action against the Defendant.

A case must be very clear indeed to justify summary intervention of the Court. It is a jurisdiction which ought to be very sparingly exercised and only in very exceptional circumstances.

I venture to say beyond per-adventure that this is not case for the exercise of any summary power.
Fundamentally, courts are required to determine cases on merits rather than dismissing them summarily on procedural grounds.

It is a fundamental principle of any civilized legal system that all parties in a case are entitled to the opportunity to have their case dealt with at a hearing at which they or their representative are present and heard.

In the context of the present case, I have no hesitation in leaning in favour of the more liberal judicial thinking reflected in the dictum of O'Conner J in Burton v Shire of Bairnsdale (1908) 7 C.L.R. 76. Hon Judge said;

"Prima facie every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of this case to the ordinary tribunals and the inherent jurisdiction of the court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexations will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed."

At this juncture, I bear in mind the "caution approach" that the court is required to exercise when considering an application of this type.

I remind myself of the principles stated clearly in the following decisions.

In Dev. v. Victorian Railways Commissioners[1949] HCA 1; (1949) 78CLR 62, 91 Dixon J said:

 "A case must be very clear indeed to justify the summary intervention of the court … once it appears that there is areal question to be determined whether of fact or of law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."

In Agar v. Hyde (2000) 201 CLR 552 at 575 the High Court of Australia observed that:

 "It is of course well accepted that a court … should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way and after taking advantage of the usual interlocutory processes."

(E)	CONCLUSION

Having had the benefit of written submissions for which I am most grateful and after having perused the pleadings, doing the best that I can on the material that is available to me, I venture to say beyond a per-adventure that the Statement of Claim discloses a reasonable cause of action and constitutes triable issues.

At this point I cannot resist in saying that the proposition advanced by the Defendant is a far cry from the obvious and natural limitations to the doctrine of Absolute Privilege in Fiji and it flies on the face of Section 13 of the Defamation Act in Fiji.

Accordingly, there is no alternate but to dismiss the Summons.

I cannot see any other just way to finish the matter than to follow the law.

(F)	FINAL ORDERS

•	The Defendant's amended Summons dated 11th March 2015 is dismissed.

•	The Defendant is ordered to pay costs of $1000.00 (summarily assessed) to the Plaintiffs which is to be paid within 14 days from the date hereof.

Jude Nanayakkara
Acting Master of the High Court

At Lautoka
30th September 2015