IN THE HIGH COURT OF FIJI AT LAUTOKA
CIVIL JURISDICTION

Civil Action HBC 30 of 2013

BETWEEN:

FRANCIS COLIN KUMAR AND KATHRYN JANE KUMAR of Lot 95, Maui Bay, West Road, Maui Bay Estates, Korolevu, Baravi, both company directors.
1stAND 2nd PLAINTIFFS

AND:

CRAIG AND EVETT DE LA MARE lot 114, Maui Bay East Road, Maui Bay Estates, Korolevu, Baravi, both company directors respectfully
1ST AND 2nd DEFENDANTS

Counsel : Mr A Sudhakar for plaintiff
Defendants in persons
Date of Ruling: 26 October 2015

RULING

Introduction 
[1] This ruling concerns with a striking out application.

[2] By summons to strike out the action filed 27 May 2013 in conjunction with a joint affidavit sworn by the defendants ('original application'), the defendants seek the following orders:

1.	That the Writ of Summons issued against the Defendants on the 28th February 2013, be struck out for failing to follow the Honourable Court's orders and time-table.

Order 28 rule 11.1

11. If the plaintiff in a cause or matter begun by originating summons makes default in complying with any other or direction of the Court as to the conduct of the proceedings, or if the court is satisfied that the plaintiff in a cause or matter so begun is not prosecuting the proceedings with due dispatch, the Court may order the cause or matter to be dismissed or may make such other order as may be just.

2. That the court awards costs on an indemnity basis, on the highest scale, for abuse of process and failure to prosecute their own Writ of Summons.

3. That the court awards on an indemnity basis, on the highest scale, for abuse of process and failure to prosecute with regards to the Interlocutory Ex-Parte Motion granted on the 1st March 2013, and Vacated on the 5th June 2013, for failing to follow court orders.

[3] The original application seems to be filed pursuant to O.28 r. 11 (1) of the High Court Rules 1988 ('HCR').

[4] Subsequently, the defendants changed their mind and on 25 July 2013 filed amended summons to strike out the action ('amended application') accompanied by a joint affidavit sworn by the defendants and ask for the following orders:

1.	If the Plaintiff in a cause or matter begun by originating summons makes default in complying with any order or direction of the Court as to the conduct of the proceedings, or if the Court is satisfied that the plaintiff in a cause or matter so begun is not prosecuting the proceedings with due despatch, the Court may order the cause or matter to be dismissed or may make such other order as my be just.

2.	That the court awards costs on an indemnity basis, on the Highest scale for abuse of process and failure to prosecute their own Write of Summons.

4	That this application is made because the Plaintiffs failed to comply with, Order 18 rule 3, Service of reply and defence to counterclaim (O.18, r.3) and the Inherent Jurisdiction of the Court.

5	The defendants have legitimate expectation that the Court will honour their directions, given to the Plaintiffs, and Strike the matter out for failing to prosecute with due diligence.

6	That Cost be paid on an Indemnity basis for wasted time and failure of the Plaintiffs to move their case forward without a reasonable or acceptable excuse.

7	That the Defendants intend to rely on the Affidavit in support of Craig and Evette de la Mare and the Affidavit of Craig and Evette de la Mare in response to strike out application.

[5] On 22 October 2013 the defendants filed another summons to strike out together with affidavit sworn by the defendants in support. That followed the defendants' supplementary affidavit sworn on 5 November 2013.

[6] Eventually, on 5 November 2013 the defendants filed amended summons to strike out action ('the striking out application'). That was the application which was argued before me. That application seeks to strike out action on the following grounds:

1.	a. Scandalous, frivolous or vexatious;

b. May prejudice, embarrass or delay the fair trial of the action; or

c. Is otherwise an abuse of the process of the Court.

2. Plaintiffs be held for contempt of court.

3. Plaintiffs pay punitive damages.

[7] The Defendants have made this application under Order 18 Rule 18 of the HCR and under the Inherent Jurisdiction of this court.

[8] The plaintiffs filed their affidavit in reply to the striking out application. The defendants filed their affidavit in response to the plaintiffs' affidavit in reply.

[9] At hearing, the matter was orally argued by both parties and they also tendered their respective written submissions.

Background

[10]Francis Colin Kumar and Kathryn Kumar (husband and wife), plaintiffs initiated proceedings against Craig De La Mare and Evette De La Mare (husband and wife), defendants seeking: declaration that the defendants are not entitled to enter/remain on the plaintiffs' land, declaration that the defendants are not entitled to enter and in anyway whatsoever interfere with the plaintiffs' quiet enjoyment of the land, injunctive orders to restrain the defendants from so doing, general damages and costs. The action was initiated by a writ of summons filed on 28 February 2013. On the same day an ex parte notice of motion for an interlocutory injunction was also filed. On 1 March 2013 the court considering the ex parte notice of motion granted interim injunction against the defendants which was later vacated by the court on the application made by the defendants.

The Law

[11] The application to strike out has been filed under the HCR O.18, r.18 which provides as follows: 

1.	The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, 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).

3.This rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, as the case may be, were a pleading. (Emphasis added).

Issue
[12] The issue that has to be decided by the court is that whether the statement of claim filed by the plaintiffs should be struck out on the ground that (a) it is scandalous, frivolous or vexatious; or (b) it may prejudice, embarrass or delay the fair trial of the action; or (c) it is otherwise an abuse of the process of the Court.

Discussion
[13] The court is empowered under O.18, r.18 to order to strike out or amend any pleading or the indorsement of any writ in the action on any ground stated therein ((a), (b), (c) or (d)). This power may be exercised not only on the ground that it fails to disclose any reasonable cause of action or defence but on a variety of other grounds. These include cases where the pleading or indorsement is scandalous, frivolous or vexatious (ground (b), or may prejudice, embarrass or delay the fair trial of the action (ground (c) or it is otherwise an abuse of the process of the court (ground (d).

[14] The powers to striking out pleadings and actions are both salutary and necessary not only to enforce the basic rules of pleadings but also to dispose of pleadings which are hopeless, baseless or without foundation in law or equity or otherwise an abuse of the process of the court. It is a powerful and effective method of disposing of proceedings without a plenary trial.

[15] It is to be noted that the defendants do not seek to strike out the action on the ground that it fails to disclose a reasonable cause of action (ground (a)). But they rely on other specified grounds in rule 18 (1).

[16] Where an application is made to strike out pleadings on the ground that it discloses no reasonable cause of action or defence, the court will examine only the pleading itself, the court is required to assume the facts pleaded are true and undisputed. No evidence, evidence including affidavit evidence is admissible on an application on this ground, see r.18 (2) & see also Wenlock v Moloney [1965] 2 All ER 871, [1965] 1 WLR 1238, CA. However, evidence is admissible on an application to strike out on any other grounds ((b), (c) or (d)).

Scandalous, frivolous or vexatious
[17] The defendants apply for an order to strike out the statement of claim (action) on the ground that it is scandalous, frivolous or vexatious (ground (b)). When I consider striking out on this ground I will consider affidavit evidence adduced by the parties as evidence is admissible on that ground.

[18] The defendants submit that, this action has been brought about without regard to its merits, solely to harass and subdue the defendants.

[19] On the other hand, the plaintiffs contend that there is a reasonable cause of action. It follows that the court will not be pre-emptive to determine to strike out the claim upon the defendants' application.

[20] The words 'frivolous or vexatious' are defined as follows-

'By these words are meant cases which are obviously frivolous or vexatious, or obviously unsustainable, per Lindley LJ in Att.-Gen. of Duchy of Lancaster v L & NW Ry [1892] 3 Ch. 274; Day v William Hill (Park Lane) Ltd [1949] 1 KB 632; Law v Deamley [1950] 1 All ER 124, CA (Emphasis added).'

Legal standing

[21] The defendants challenge the plaintiffs' legal standing to bring this action. They submit that because of lack of standing and obvious falsity of the claims, the claims have to be struck out entirely.

[22] At paragraph 3 of the statement of claim the plaintiffs claim that at all material times the legal occupants in possession of the following pieces of land: Lot 14, lot 25, lot 95 and lot 175. The defendants deny that the plaintiffs were the legal occupants in possession of these lots.

[23] It will be noted that the plaintiffs do not say that they were owners of those lot at all material times.

[24] In their affidavit the defendants state that,Nicholos Clayton owns lot 14, Clayton Properties Limited owns lot 25 (official title lot 6), Marguerite Clayton owns lot 1 (also known as lot 95) and Kenneth Ludbrook, Suzanne Clark Ludbrook and Charles Reginald Barraclough Collectively the Shan Trust own lot 19 (also known as lot 175). These facts are not denied by the plaintiff.

[25] The defendants advanced argument that there is no legal authority before the court that allows the plaintiffs or Krishna & Co (plaintiffs' solicitors) to act on behalf of the owners of the properties. All the properties belong to the abovementioned Company, Trust and Individual owners. The owners of the properties are not parties to this action either.

[26] The defendants also submit that, the most important principle of a claim is that the person making the claim must have legal standing to do so. They rely on O.5, r.6 of the HCR which provides as follows:

'6.-(1) Subject to paragraph (2) and to Order 80, rule 2, any person (whether or not he sues as a trustee or personal representative or in any other representative capacity) may begin and carry on proceedings in the High Court by a barrister and solicitor or in person.

(2) Except as expressly provided by or under any enactment, a body corporate may not begin or carry on any such proceedings otherwise than by a barrister and solicitor (Emphasis added).'

[27] To show they were legal occupants in possession of the properties, the plaintiffs produced some letters dated 28 January 2014 ('FCK1'-'FCK4') from the legal owners of the properties. These letters purportedly authorize the plaintiffs to take all steps including court proceedings to protect the subject properties. Each letter in identical terms states that, 'Francis and Kathryn Kumar were always authorised at all times to take all steps including court proceedings to protect the subject property'. It is also to be noted that each one of the letters states that, 'I have no dealings with Craig and Evett De La Mare nor have I ever given permission in any shape or form to enter my property'.

[28] The action is based on two acts of trespass and one act of harassment. The first alleged trespass occurred on 16 October 2012and the second alleged trespass occurred on 25 November 2012. The plaintiffs allege that on both days the defendants by themselves wrongfully entered and remained on the plaintiffs' property. The alleged harassment occurred on 18 July 2012. 

[29] The purported letters of authority to take all steps including court proceedings had been given to the plaintiffs by the respective legal owners of the properties after the alleged trespass incidents had occurred and after filing the action against the defendants. Writ of summons was filed on 28 February 2013. One cannot grant a power of attorney or an authority to act retrospectively ratifying the past actions. Obviously, the plaintiffs had no such authority to act on behalf of the legal owners of the properties (lot 14, lot 25, lot 95 & lot 175) at the time when they file the writ of summons. If they had such authority, they had every opportunity to state it in their statement of claim or in their affidavits filed in support of their application for interim injunction. There has been no mention of such authority given by the owners of the properties either in the statement of summons or in the supporting affidavit for interim injunction. It is therefore clear that the plaintiffs had no legal authority to bring legal proceedings in respect of the occupying properties (lot 14, lot 25, lot 95 & lot 175).

[30] If the plaintiffs had brought this action in their representative character they ought to have stated so in the statement of claims. The statement of claims does not indicate so. Therefore it is clear that the plaintiffs did not bring this action on behalf of the legal owners in respect of the occupying properties. I would therefore conclude that the plaintiffs did not have standing to initiate proceedings with regard to the occupying properties.

Ex Parte Interim Injunction

[31] Along with the writ of summons the plaintiffs also filed their ex parte notice of motion for interlocutory injunction with supporting affidavit sworn by Francis Kumar, the 1st named plaintiff to restrain the defendants whether by themselves or by their servants or agents or otherwise howsoever from approaching and/or remaining within a distance of 20 meters of the plaintiffs' person. The court initially on 1 March 2013 granted the interlocutory injunction sought after hearing the ex parte application. Subsequently, the court on 6 May 2013 vacated the ex parte injunction granted on 1 March 2013 upon application made by the defendants.

Ex parte judgment against the plaintiffs

[32] Since the dissolution of the injunction the plaintiffs lost interest in the matter. They failed to file reply to statement of defence and defence to counterclaim within the prescribed time limit. Hence the defendants obtained ex parte judgment on their counterclaim against the plaintiffs. The court later vacated the default judgment entered against the plaintiffs with an order to pay costs to the defendants. This was by agreement to move the matter forward. Still, the plaintiffs failed to move the matter forward with due diligence.

Particularity of Statement of Claim

[33] Let me deal with the particularity of statement of claim. The defendants submit that the statement of claim paragraph 5 is not compliant with particulars of pleadings (O.18, r.11). The defendants further submit that the relevant material facts are not pleaded and the facts that are pleaded are false, which make it impossible for the defendants to answer. The defendants cited the case of Gavidi v Native Land TrustBoard [2008] FJHC 24; HBC222.2007 (29 February 2008). In that case the High Court said that:

'A statement of claim is supposed to set out relevant material facts concisely: Order 18 Rule 11.

A certain amount of details is necessary to make a claim intelligible and to be expressed with clarity so that the opposing party knows the case he/she has to answer. The Rules themselves do not specify the degree of particularity required so they do admit some measure of flexibility and individuality. But pleadings cannot be prolix or embarrassing or confusing.'

[34] The defendants submits that, the plaintiffs entire statement of claim falls short of Order 18, Rule 11 and is impossible to answer as the pleadings are unclear, embarrassing and false contradicting the affidavit evidence tendered.

[35] The plaintiffs own lots 1 and 2. Lot 1 at the time was a construction site and lot 2 was a vacant lot. Both are governed by Foreshore Public Access Easements and Public Road Access Easement which allow access to anyone at any time.

[36] I note that the statement of claim fails to provide with details of where on the lot or lots defendants trespassed. It also fails to correctly state the date and the time of the alleged acts of trespass. These are material facts necessary to make a claim intelligible so that the opposing party knows the case he/she has to answer.

[37] The plaintiffs in reply, in their affidavit filed on 31 January 2014 at paragraph 6, state that:

'a) Those are issues which can properly be resolved at the trial with oral evidence.'

[38] The plaintiffs rely on the sworn affidavit of Neel Shivam filed on 10 July 2013 where he states:

'the dates that Defendants entered the plaintiffs property is wrongly stated and necessary amendments will be filed.'

[39] The plaintiffs now admit that the dates stated in the statement of claim as the date that the defendants entered the plaintiffs' property is wrongly stated. Interestingly, in their sworn affidavit filed in support of ex parte interim injunction the plaintiffs had affirmed the dates that the defendants entered on their (plaintiffs) properties as true. This is now a fait accompli. Although the plaintiffs admit that the dates are wrongly stated, they would not be in a position to make necessary amendments as fait accompli has arisen. As the plaintiffs have verified the facts stated in the statement of claim including the dates that the defendants entered the properties, they would be sued for falsity if they amend their statement of claim.

[40] Furthermore, the plaintiffs reply to the defendants affidavit in opposition (in respect to setting aside application) filed on 22 August 2013 in para 3. (i) states:

'Subsequently when Ms Shoma Devan took conduct of the within matter, the plaintiffs in this action then brought to the attention that the statement of claim contained minor errors which needed to be rectified.'

Inconsistent statement

[41] The plaintiffs in para 5 of their statement of claim allege that:

'On or about 16 October, 2012 at about 2.50pm the 1st and 2nd defendants by themselves wrongfully entered the plaintiff's property and walked up and down thereon taking various photographs and measurements, the reasons for which are unknown to the plaintiffs, and, though repeatedly requested by the 1st and 2nd plaintiffs to depart, wrongfully refused to do and remained on the said land acting as aforesaid for a period of about quarter of an hour'(Emphasis added).

[42] It would be of interest to note what the 1st plaintiff states in his sworn police statement attached to the plaintiffs affidavit in support filed on the 28 February 2013 (annexure C) regarding the alleged trespass on 16th October 2012. The 1st plaintiff in his sworn police statement states:

'... on 16/10/12 at about 4pm I received a phone call from one Marconi and she stated that early on that day around 2.50pm she had seen both Craig and his wife Evette enter my construction site. Marconi also stated that she took their pictures and also that Craig and Evette were taking some measurements with what she believes was measuring tape...'

[43] It is important to note that the 1st plaintiff had made inconsistent statement in respect of the same alleged trespass incident. In the statement of claim the plaintiffs state that the 1st plaintiff saw the 16 October act of trespass by himself and requested the defendants to leave but they refused to do so. But when he makes a police complaint about the same incident, he states that he was informed of it by a Marconi.

Claim 3-harassment 

[45]The statement of claim also states that the defendants harassed and intimidated the 2nd plaintiff. About the incident of harassment the plaintiffs under para.8 of the statement of claim state:

' ON or about 18th July, 2012, in an unjustified and sustained half an hour campaign of subtle behavioural tactics to harass and intimidate the 2nd Plaintiff the 1st and 2nd Defendants:

i.	Followed the 2nd Plaintiff in MH Supermarket with their shopping trolley, being hysterical and speaking Afrikaans and intending their said behaviour to be heard/noticed by the 2nd Plaintiff;

ii.	Used their shopping trolley in MH Supermarket to deliberately hit the 2nd Plaintiffs shopping trolley and thereafter staring at the 2nd Plaintiff and which the 2nd Plaintiff understood to mean "What are you going to do about it" or the 1st and 2nd Defendants expected a response from the 2nd Plaintiff to their act of provocation;

iii.	Walked closely behind the 2nd Plaintiff speaking Afrikaans in a loud audible manner intending the same to be heard by the 2nd Plaintiff;

iv.	Stared at the end Plaintiff with hands on their hips which the 2ndPlaintiff understood to mean "We have had enough of you" or "We are fed up of you";

v.	Unnecessarily and without reason followed the 2nd Plaintiff despite the 2nd Plaintiff's attempts to divert her route hesitantly to ensure she was not followed.' (Emphasis provided).

[46] The plaintiffs clearly state that the defendants were speaking Afrikaans. The plaintiffs do not speak Afrikaans. Then how can the plaintiffs say the defendants harassed and intimidated in MH Supermarket on 18 July 2012 when they cannot even understand the language spoken by the defendants. The plaintiffs had given their own meaning for what the defendants spoke in MH Supermarket on that day. Speaking Afrikaans in a supermarket is not an offence. The plaintiffs, in my opinion, will be unable to establish their claim that two trolleys bumping in a supermarket is a deliberate act. There must be a course of conducts in order to succeed a claim in harassment. The law governing the acts of harassment was discussed in the case of Dowson v Chief Constable of Northumbria Police[2010] EWHC 2612 (QB), [2010] All ER (D) 191 (Oct). Simon J in that case set out the following summary of the law:

'[142] I turn then to a summary of what must be proved as a matter of law in order for the claim in harassment to succeed.

(1)    There must be conduct which occurs on at least two occasions,

(2)     which is targeted at the claimant,

(3)     which is calculated in an objective sense to cause alarm or distress, and

(4)     which is objectively judged to be oppressive and unacceptable.

(5)     What is oppressive and unacceptable may depend on the social or working context in which the conduct occurs.

(6)     A line is to be drawn between conduct which is unattractive and unreasonable, and conduct which has been described in various ways: "torment" of the victim, "of an order which would sustain criminal liability".'

[47] The alleged single incident of harassment and intimidation which lasted for half an hour occurred on 18 July 2012. Naturally, if someone was harassed and intimidated for half an hour, he would have definitely complained to police. The plaintiff did not do so. They have used the alleged incident that happened on 18 July 2012 to obtain an injunction against the defendants on 1 March 2012, nearly 8 months after the incident. It appears to me that the claim in harassment and intimidation is brought with a view to obtaining an injunction against the defendants.

Abuse of process

[48] The court has power under O.18, r.18 (d) to strike out a claim on the ground of abuse of process. For this purpose I have considered the affidavit evidence adduced by the parties.

[49]The plaintiffs have made different statement at different places in respect of the same incident of trespass. The plaintiff also brought action without authority in respect of the properties of which they are not the owners or occupants.

[50] In McDonald's Corporation v Steel [1995] 3 All ER 615 it was said that striking out on this basis [abuse of process] will be fairly unusual, as there are a few cases which are sufficiently clearly and obviously hopeless that they deserve draconian step of being struck out. It is an abuse of process where the statement of case is incurably incapable of proof. 

[51] In my view the plaintiffs' statement of claim is incurably incapable of proof. The plaintiff would not be in a position to amend their statement of claim because theyhave verified the facts stated in their statement of claim as true in the sworn affidavit filed in injunction proceedings.

[52] As stated earlier in the absence of any amendment, which the plaintiff cannot possibly do, the statement of claim would be incapable of proof. The plaintiff has brought an action against the defendant which they cannot establish at trial. 

[53] An abuse of the process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexatious or oppression or for inferior purposes, or, more simply, where the process is misused, see Sheetal Investment Ltd v Australia and New Zealand Banking Group Ltd [2011] FJHC; HBC 227.2010 (13 May 2011) &Janov v Morris [1981] 3 All ER 780.

[54] The plaintiffs filed the statement of claim and obtained an interim injunction ex parte against the defendants and loss interest in the matter. The court later dissolved the injunction on the application made by the defendants. It seems to me that the plaintiffs brought the action with the ulterior purpose of oppressing the defendants and thus they had misused the process of the court. Their claim is therefore liable to be struck out on the grounds of abuse of process. 

Contempt

[55] In their application the defendant also move to punish the plaintiffs for contempt of court for knowingly filing a false statement of claim, which was also used in their ex parte application to obtain an interlocutory injunction. If the plaintiff had committed any acts of contempt in the proceedings the defendants must initiate committal proceedings under Order 52 of the HCR with leave of the court. 

Costs

[56] The defendants are entitled to costs as winning party. They claim costs on indemnity basis. The plaintiffs obtain interim injunction ex parte against the defendants. The defendants made the application to court to vacate that injunction. They filed quite comprehensive affidavit with documents. The application to vacate the injunction was heard inter parte and in these proceedings also the defendants filed affidavit together with the documents and made oral and written submissions. The defendants had to travel from Sigatoka to attend their case. This might have caused them considerable costs in defending this action. I therefore taking all into account I summarily assess the costs to be $2,500.00. The plaintiffs will pay the costs to the defendants within 28 days.

Conclusion
[57] For the reasons stated above, I would strike out the entire claim of the plaintiffs on the ground that it is an abuse of the process of the court with the costs of $2,500.00 which is summarily assessed.

[58] I heard this matter when sitting as Master and deliver this ruling as such.

Final Order

1.	Plaintiffs' entire action is struck out on the ground of abuse of the process of the court.

2.	Plaintiffs pay summarily assessed costs of $2,500.00 to the defendants in 28 days from the date of this ruling.

M.H. Mohamed Ajmeer
JUDGE
[Sitting as Master]

At Lautoka
26.10.2015