IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 227 of 2015

BETWEEN:		SAKIUSA KOTOIVALENITABUA KOTOBALAVU of Lot 26 Rokosawa Road, Cunningham, Project Officer.

PLAINTIFF

AND:		HOME FINANCE COMPANY LIMITED CENTER of 371 Victoria Parade, Suva.

DEFENDANT

BEFORE:		Master Vishwa Datt Sharma

COUNSELS:		In Person         - (Present)
Mr. P. Kumar    - for the Defendant

RULING:	    29th September, 2017

RULING
[Application by the Defendant seeking an order to strike out the Plaintiff’s Statement of Claim pursuant to Order 18 Rule 18 (1) (b),(c) and (d) and Order 5 Rule 2 (c)  of the High Court Rules, 1988 and the Inherent Jurisdiction of this Honourable Court]

APPLICATION
1.	This is the Defendant’s Summons to Strike Out the Plaintiff’s Writ and the Statement of Claim on the following grounds:
(a)	 That the Plaintiff’s Action is filed om misstated facts and wrong named parties; 
(b)	 That the Action is statute barred and it is otherwise an abuse of the process of the Court;
(c)	It is statute barred and the Plaintiff is guilty of laches; and
(d)	It is prejudicial to the Defendant.
(e)	That any such further or other orders as the Court may deem fit to make in the circumstances. 

2.	The application is made pursuant to Order 18 Rule 18 (1) (b), (c), (d) and Order 5 Rule 2 (c) of the High Court Rules, 1988 and the Inherent Jurisdiction of this Honourable Court of the High Court Rules 1988 and under the inherent jurisdiction of the High Court.
3.	The Plaintiff opposed the Defendant’s Striking out application.
4.	The application was heard in terms of the oral and written submissions made in this proceeding by the Plaintiff and the Defendant.
THE LAW 
 
5.	The law on striking out pleadings and endorsements is stipulated at Order 18 Rule 18 of the High Court Rules 1988 which states as follows-
18.-(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).
6.	Order 5 Rule 2 (c) of the High Court Rules, 1988 deals with the proceedings which must be begun by writ in which a claim is made by the plaintiff for damages for breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under an Act or independently of any contract or any such provision).

BACKGROUND TO THIS CASE

7.	The Plaintiff submitted with his home loan application an approved house plan for construction of a house. The loan was approved by the Defendant “Home Finance Company Limited” and a letter of offer and Memorandum as to advances was signed on 06th March, 2001. The Plaintiff commenced construction works on self-built basis and on 30th January, 2002 engaged the services of “Fast Build Construction Services Limited’ to complete the building. The Defendant says that it was the Plaintiff’s responsibility to ensure that the builder carries out the work according to the plans and specifications as approved and that the quality of workmanship is to his satisfaction, nothing to do with the Defendant but upon Plaintiff’s confirmation of work done the Defendant would pay the Contractor on stage by stage basis for a total of 6 stages as per the Memorandum as to advance. On 25th October, 2005, the Defendant received an Engineers Certificate of the building which indicated that dwelling approved for two storey but ground floor only being completed and occupied. On 03rd March, 2005 the Plaintiff wrote to the Defendant requesting for extra loan to complete the house satisfactorily to the Engineers standard.  According to the Defendant, if the Plaintiff had any issues with the building then he should have raised with the Contractor and not with the Defendant. The Defendant states that there is no merit in the Plaintiff’s case and pleads that the Plaintiff’s claim is statute barred under the Limitations Act, Cap 35. Further, the Defendant states that the Plaintiff should have issued this Writ against the Contractor and not the Defendant Home Finance Company Limited. 

Plaintiff’s case
8.	The Plaintiff’s affidavit in support deposed by Admond James Chandra in his capacity as the General Manager credit may be summarised as follows-
‘GROUND 1 – False Assumption of Magistrate Court Action being action No. 104 of 2013
•	‘That the Plaintiff instituted legal action against the Defendant in the Magistrate Court being action No. 104 of 2013 in the Magistrate Court which was struck out by the learned Magistrate for want of Jurisdiction. 
•	That the Plaintiff has wrongfully advised Court in the Writ that the matter was transferred to the High Court when the record will clearly show that the matter was struck out for want of jurisdiction as the Plaintiff had failed to limit the amount claimed to $50,000.00 as per the Magistrate Court Rules.
GROUND 2 – Wrong named parties
•	That the Plaintiff’s Writ of Summons states that the Defendant was negligent in not providing building inspectors to supervise the works. The Defendant Company had granted to the Plaintiff a Housing Loan and under Section 6 of Memorandum as to advances, at all material time, the responsibility for the workmanship and its quality was with the Plaintiff.
•	That the Defendant Company at the primary time had a panel of contractors from whom the Plaintiff chose one to construct their home and the finance was released upon confirmation by the Plaintiff.
•	That the correct party to seek damages if any would be the Contractors as the Defendant had not specifically assigned the Plaintiff to a particular contractor. The contractors in the Defendant’s panel can vary depending on their company size, the type of building they construct and most importantly the budget of the clients hence it is no way depended on the Defendant to determine this for the Plaintiff. 
•	That the Plaintiff had agreed with the Contractor and the terms and how the house is to be constructed are issues to be discussed between the contractor and the client and not with the Defendant.
•	That the correct party to seek for damages would be from the Contractors who constructed the building and not the Defendant as the Defendant is a money lending organization and does not specialize in construction and further no obligation at that time to provide a supervisor to supervise the work.
GROUND 3 – Action is statute barred:
•	That the action which the Plaintiff intends to seek damages  from March 2001 when the Defendant offered the Plaintiff a Home loan to construct a house on the land situated at Lot 26, DP SO1669, Stage 4 Cunningham, Suva.
•	That the Plaintiff is seeking for damages after a lapse of more than 6 years and thus has surpassed the statute period to bring this action against the Defendant.
•	That I advised and verily believe that any action filed out of the limitation period is statute barred and is an abuse of Court’s process.
•	That I further aver that the Plaintiff’s present action against the Defendant is an abuse of Court’s process as the Plaintiff’s action is filed against the wrong party, and filed out of the limitation period.
GROUND 4 – Prejudice and Costs’
•	The Plaintiff’s present action is putting the Bank to unnecessary hassle and legal costs whereby similar action was struck out in the Magistrates Court.
•	That the Plaintiff has after filing of the Writ in High Court on numerous occasions filed wrong application in the Court putting us in peril. On 7th October, 2015 the Plaintiff filed Ex-Parte Notice of Motion when the pleading had closed, in fact he was to file Summons for Direction for Discovery. The Motion was set for hearing after my Solicitors filed Affidavit in Response and on the Hearing date the Plaintiff withdrew the Motion where we were already ready with our Legal Submission.
•	That further the Plaintiff filed Affidavit Verifying Plaintiff’s List of Documents on 28th November 2016. Upon perusal of the said document by my Solicitors I have been advised that the above document and in particular schedule one includes documents such as Writ of Summons that was filed on 2nd July 2015, Affidavit in Support and other documents that ought to form part of Copy Pleadings.
•	That I further understand that the Court has given the Plaintiff opportunity to instruct a legal counsel and to go to Legal Aid however the Plaintiff insists on acting in person which greatly is causing prejudice to the Bank.
•	That for the foregoing reasons I verily believe that the Plaintiff’s action be struck out and dismissed.
•	That I therefore pray to this Honourable Court that this action be struck out with costs on an indemnity basis.’

9.	The Defendant filed a Response and the same can be summarised as follows-
‘GROUND 1 – Right action in Court No.104 of 2013
•	‘That the Plaintiff in reply have no intention at all to deviate from our complain merit, we only concern for the negligence of the Defendant during the construction of our resident building that was built by FAST BUILD that now still have so many defects to be eliminated, the Plaintiff do not have the knowledge that the amount submitted is beyond the Magistrate Jurisdiction, and again the Defendant have been paid for the Court cost.
•	That the Plaintiff’s reply to the Defendant’s statement, the Plaintiff advised the High Court on the ground based what the Defendant said during the last Magistrate Court Hearing on 12th March 2015 which he asked the Judge to transfer the case to the High Court because the claim is against the Magistrate Jurisdiction and again asked for the cost and he was paid accordingly.
GROUND 2 – Right named parties
•	That the Plaintiff in reply says that the Writ of Summons states that the Defendant was negligent in not providing building inspectors to supervise the works. In Paragraph No. 06, Sub Para – C briefly states that the Building Inspectors have to inspect the works that should be in accordance to the company requirements prior to the release of payments. The Plaintiff was given a Housing Loan for the intention agreed as a Self-Built but unfortunately the agreement was terminated and they brought FAST BUILD to take over with no agreement signed between the new contractor and the Plaintiff and witnessed by the Defendant. The Plaintiff Self- Built Contract was terminated, therefore the main party which is the Defendant is responsible for the rest of the works.
•	That the Plaintiff in reply, again say that the Self- Built Contract was terminated and the Defendant brought FAST BUILD to takeover with no Contract Agreement signed between the new contractor Fast Build and the Plaintiff, and it should be witnessed by the Defendant for BOND. The selection of the contractor from the panel of contractors does not matter, the Contract Agreement matters in case of reference, if there is any issues arises in between parties. Therefore, the main party which is the Defendant again is responsible for the rest of the works.
•	That the Plaintiff in reply say since there was no Contract Agreement signed the Defendant clearly is responsible for the rest of the works. In regards to the budget, the Plaintiff signed for a Self-Built Contract from the initial stage to save the budget loaned, unfortunately the Defendant terminated the contract and again the Defendant is responsible for the rest of the works.
•	That the Plaintiff again in reply say that this is where the Agreement Signed should come to surfaced for justice in between parties, since the Plaintiff Contractor was terminated the Defendant which is the main party has to prepare a Contract Document signed by the Plaintiff and the Contractor FAST- BUILD and witnessed by him as a Terms of Reference.
•	That the Plaintiff again in reply say the Defendant is the main party to this construction works, since they neglect to prepare a document to be signed is now at fault. The Defendant admits that he is a money lending organization only. During that time of construction there were 2 Building Inspectors employed with him, which they have the Technical experience and knowledge to supervise the works. The Plaintiff solely relied on them because it is their Prime Roles with 2 in numbers, either one of them can be present on site during the placing of the concrete to the suspension floor roof.
GROUND 3 – Action is Rightfully Addressed
•	That the Plaintiff in reply do agree received a Home loan from the Defendant to construct a house on the land situated at Lot 26, DP SO1669, Stage 4 Cunningham, Suva.
•	That the Plaintiff in reply say that this is where the Contract Agreement Document is so vital to be signed between the Plaintiff and the Builder FAST- BUILT and witnessed by the main party the Defendant, in the provision to alarm the engaged parties if there is any breached to the Agreement. In regards to the issue brought up by the Defendant the Plaintiff reply and say, since there was no Contract Signed, the lapse of more than 6 years term was Null and Void and cannot be used as reference.
•	That the Plaintiff in reply say that the Defendant is at fault and he should face the consequence of his negligence.
•	That the Plaintiff again reply and say that since the Plaintiff Self- Built Contract was terminated in all his responsibilities and again the Defendant is responsible, therefore the action taken by the Plaintiff is surely right.
GROUND 4 – The Costs’
•	That the Plaintiff in reply say that the Defendant through negligence is at fault. Termination of the Plaintiff Self Built Contract prior to the start of the new successor which is the FAST BUILD the main party which is the Defendant should prepare a Contract Agreement Documents for Bond to cover for any discrepancies may arise in between parties. The agreement should serve the satisfaction of both parties, the Plaintiff and the Defendant.
•	That the Plaintiff in reply say that the filing of the Writ in the High Court is rightfully and reasonable addressed in relation to all the numerous of defects that are still on site for evidence since after the construction works in 2002. In reply to Ex Parte Notice, the Motion has been closed and the Court Cost have been paid according to the Court Order.
•	That the Plaintiff in reply filed Affidavit Verifying Plaintiff’s List of Document on 28th November 2016 say that the Plaintiff will refer to these documents for references because they are our concrete evidence to the issues we have already submitted to the High Court through Writ. The Plaintiff complained solely rely to the leakage of our concrete roof slab which was built by FAST -BUILD without a contract signed for BOND. Therefore the Plaintiff will not deviate from this submission.
•	That the Plaintiff in reply and say that I seek advised from the Legal Aid Commission just for guide to the sequence of the Court /hearing. The Plaintiff then prepare the documents based on the documents that were presented in Court. There is no way we prejudice the Bank because all the submission just base from the real facts with evidence are provided before Court for justification.
•	That the Plaintiff in reply and say that since the main party the Defendant is found at fault for not providing a Contract Agreement Document to FAST- BUILD and the Plaintiff to sign and witnessed by him for BOND, they have to reimburse all the monies paid to them by the Plaintiff since the Breach of Contract on the 8th March 2002. In the provision to shelter the whole Plaintiff’s Residential Building and again eliminate all the prolong leakages within.
•	That the Plaintiff in reply again say that since the Agreement between the Plaintiff and the main party the Defendant was Breached, the Defendant has to return all the monies he has received for payments from the Plaintiff since after the placing of concrete  to the suspension roof slab that contain leakage within. ‘
ISSUE for DETERMINATION
10.	The following are the issues which requires Court’s determination;-
(a)	Whether the Defendant has been wrongly named?
(b)	Whether the Plaintiff’s Substantive Statement of Claim is scandalous, frivolous or vexatious ?; or
(c)	Whether it may prejudice, embarrass or delay the fair trial of the action ?; and
(d)	Whether it is otherwise an abuse of the process of the court?
(e)	Whether the claim is statute barred?

ANALYSIS and DETERMINATION
(a)	Whether the Defendant has been wrongly named?
11.	It is obvious and common knowledge that I also take the Judicial Notice of that the “Defendant’ is a financial institution and operates under the registered name of “Home Finance Company Limited.”
12.	Order 2 Rule 1 of the High Court Rules, 1988 provides as follows-
1.-(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.
13.      Therefore, I invoke the above rule and allow the Plaintiff to regularise this irregularity in the Defendant’s name to read “Home Finance Company Limited.”
(b) Whether the Plaintiff’s Writ of Summons & the Statement of Claim is Scandalous, Frivolous or Vexatious & Abuse of Process of the Court?
13.	It is well established that jurisdiction to strike out claim or pleadings should be used very sparingly and only in exceptional cases: Timber Resource Management Limited v. Minister for Information and Others [2001] FJHC 219; HBC 212/2000 (25 July 2001).
14.	 In National MBF Finance (Fiji) Ltd v. Buli Civil Appeal No. 57 of 1998 (6 July 2000) the Court stated as follows:-
“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....”
15.	Whether the claim is Scandalous? Reference is made to the Supreme Court Practice 1993 (White Book) Vol. 1 at paragraph 18/19/14 states as follows-
"The Court has a general jurisdiction to expunge scandalous matter in any record or proceedings (even in bills of costs, Re Miller (1884) 54 L.J.Ch. 205). As to scandal in affidavits, see O.41, r.6.’
Allegations of dishonesty and outrageous conduct, etc., are not scandalous, if relevant to the issue (Everett v. Prythergch (1841) 12 Sim. 363; Rubery v. Grant (1872) L.R. 13 Eq.443).
"The mere fact that these paragraphs state a scandalous fact does not make them scandalous" (per Brett L.J. in Millington v. Loring (1881) 6 Q.B.D. 190, p.196). But if degrading charges be made which are irrelevant, or if, though the charge be relevant, unnecessary details are given, the pleading becomes scandalous   (Blake v. Albion Assurance Society (1876) 45 L.J.C.P. 663)."
16.	It can be ascertained from the Plaintiff’s Statement of Claim that he has at least two (2) Causes of Action. First is the Tort of Negligence and the Second being the Breach of Contract so to say.  The Plaintiff seems to be mixing up with these two Causes of Action. The Defendant’s contention is that the Plaintiff does not disclose any cause of action and should not be sustained.
It should be borne in mind by the Defendant’s Counsel that he has not raised any ground and issue that the Plaintiff does not have any cause of action although he had submitted the same in his oral and written submissions. However, this Court can still determine whether there exists any cause of action or not. I reiterate that there are at least two causes of action as stated hereinabove.
Upon a thorough examination of the contents of the details within the Plaintiff’s Statement of Claim, I find that it does not tantamount to unnecessary details and therefore are not scandalous in nature. 
17.	The issue of whether the Plaintiff’s Claim is frivolous or vexatious? Reference is made to paragraph 18/19/15 of the Supreme Court Practice 1993, Vol. 1 (White Book) which reads as follows:-
"By these words are meant cases which are obviously frivolous or vexatious or obviously unsustainable per Lindley LJ in Attorney General of Duchy of Lancaster v. L. & N.W.Ry [1892] 3 Ch. 274, 277; The Pleading must be "so clearly frivolous that to put it forward would be an abuse of the Court" (per Juene P. in Young v. Halloway [1895] P 87, p.90; ...." 
18.	In Devi v. Lal [2014] FJHC 75; HBC 120.2008 (7th February, 2014) - It was held as follows-
“The Oxford Advanced Learners Dictionary of Current English 7th Edition defines the words "frivolous" and "vexatious" as:-
Frivolous: "having no useful or serious purpose"
Vexatious: "upsetting" or "annoying"
‘Therefore, for a claim to be frivolous or vexatious, the Appellants must establish that the claim lacks merit (i.e. has no useful purpose) and is only to upset or annoy the Applicants’.
19.	According to the Plaintiff, he has merits in his case as per his Statement of Claim filed herein whereas, the Defendant submitted that the Plaintiffs Statement of Claim does not have merits to take this matter further. 
20.	One issue at this stage of the proceedings that comes to mind is whether the Plaintiff had hired and engaged the Fast Build Contractor after the termination of the Self-Built Contract or was it hired and engaged by the Defendant? 
21.	Taking into consideration above matters and affidavit evidence together with the written/oral submissions with arguments raised in Court by the Defendant and the Plaintiff, I find that there is some merit in the Plaintiff’s Claim.
(b)	Whether it may prejudice, embarrass or delay the fair trial of the action
22.	 The Defendant submitted that the Plaintiff’s action has put them to unnecessary hassle and costs and the Court to take note of the documents that the Plaintiff has filed in the Affidavit in Support and he has failed to engage any Legal Representations. The Plaintiff did not assist this Court in anyway with this issue.
23.	As far as this Court is concerned, the Plaintiff as well as the Defendant will be present to deliberate their respective cases with documentary evidence and witnesses and therefore a fair trial is inevitable without any delay. The matter was commenced in 2015, two (2) years ago and therefore the Question of prejudice does not set in. 
(f)	Whether the claim is otherwise an abuse of the process of the Court?
24.	It is well settled that this Court has inherent jurisdiction to strike out the claim or pleadings for abuse of Court process and reference is made to paragraph 18/19/18 of the Supreme Court Practice 1993 Vol. 1.-
At paragraphs 18/19/17 and 18/19/18 of Supreme Court Practice 1993 (White Book)    Vol 1 it is stated as follows:-
"Abuse of Process of the Court"- Para. (1) (d) confers upon the Court in express terms powers which the Court has hitherto exercised under its inherent jurisdiction where there appeared to be "an abuse of the process of the Court." This term connotes that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent the improper use of its machinery, and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation (see Castro v. Murray (1875) 10 P. 59, per Bowen L.J. p.63). See also "Inherent jurisdiction," para.18/19/18." 
"It is an abuse of the process of the Court and contrary to justice and public policy for a party to re-litigate the issue of fraud after the self-same issue has been tried and decided by the Irish Court (House of Spring Gardens Ltd. v. Waite{1990} 2 E.R. 990 C.A)."
"Inherent Jurisdiction - Apart from all rules and Orders and notwithstanding the addition of para.(1)(d) the Court has an inherent jurisdiction to stay all proceedings before it which are obviously frivolous or vexatious or an abuse of its process (see Reichel v. Magrath (1889) 14 App.Cas. 665). (para 18/19/18).
25.	In Halsbury's Laws of England Vol 37 page 322 the 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."
26.	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"
27.	The Plaintiff commenced an earlier proceedings in the Magistrate’s Court which according to the evidence before this Court was struck out for want of Jurisdiction. Further, the Liquidated Claim sought for in the Magistrate’s Court Jurisdiction was more than $50,000 and the Plaintiff commenced proceedings exceeding the amount of $50,000.
The Magistrate’s Court case was not struck out after a hearing on merits rather on Jurisdictional issue. The Plaintiff has filed and commenced a fresh action and it cannot be said and submitted that the Plaintiff’s current action before this Court is an abuse of the Court process.
28.	 Therefore, I find that the Plaintiff has used the Court process, in good faith and for proper purposes, rather than having misused the Court machinery accordingly.
29.	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."
(g)	Whether the claim is statute barred?
        Section 4 of the Limitation Act, Cap 35

30.	The Defendant submitted that the Plaintiff’s action was now statute barred. The action was filed after the expiration of six (6) years period of lapse claiming Breach of Contract and three (3) years period of lapse claiming Negligence. He submitted that the Plaintiff’s action is statute barred and should be struck out.
 
31.	Section 4 of the Limitations Act (Cap 35) states as follows:
4.     (1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-
(a)    Actions founded on simple contract or on tort;
(b)    Actions to enforce a recognizance;
(c)    Actions to enforce an award, where the submission is not by an instrument under seal;
(d)   Actions to recover any sum recoverable by virtue of any Act, other than a penalty or forfeiture or sum by way of penalty or forfeiture:   (underline mine for emphasis)
Provided that-
(i)    in the case of actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under any Act or independently of any contract or any such provision) where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to any person, this subsection shall have effect as if for the reference to six years there were substituted a reference to three years; and
(ii) Nothing in this subsection shall be taken to refer to any action to which section 6 applies.
(2)   An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action.
(3) An action upon a specialty shall not be brought after the expiration of twelve years from the date on which the cause of action accrued:

Provided that this subsection shall not affect any action for which a shorter period of limitation is prescribed by any other provision of this Act.
(4) An action shall not be brought upon any judgment after the expiration of twelve years from the date on which the judgment became enforceable, and no arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.
(5) An action to recover any penalty or forfeiture, or sum by way of penalty or forfeiture, recoverable by virtue of any Act or imperial enactment shall not be brought after the expiration of two years from the date on which the cause of action accrued:

Provided that for the purposes of this subsection the expression "penalty" shall not include a fine to which any person is liable on conviction of a criminal offence.
(6) Subsection (1) shall apply to an action to recover seamen's wages, but save as aforesaid this section shall not apply to any cause of action within the Admiralty jurisdiction of the Supreme Court which is enforceable in rem.
(7) This section shall not apply to any claim for specific performance of a contract or for any injunction or for other equitable relief, except in so far as any provision thereof may be applied by the court by analogy in like manner as has, prior to the commencement of this Act, been applied.
30.	Reference is made to the English Court of Appeal case of Riches v. Director of Public Prosecutions [1973] 2 All ER 935 applies on its fours in this matter.  In that case the Court held that:

When the statement of claim discloses that the cause of action arose outside the current period of limitation and it is clear that the defendant intends to rely on the limitation act and there is nothing before that Court to suggest that the plaintiff could escape from that defense, the claim will be struck out as being frivolous, vexation and an abuse of the process of the court.”

“I do not want to state definitely that, in a case where it is merely alleged that the statement of claim discloses no cause of action, the limitation objection should or could prevail.  In principle I cannot see why not.  If there is any room for an escape from the statute, well and good, if it can be shown.  But in the absence of that, it is difficult to see why a defendant should be called on to pay large sums of money and a plaintiff be permitted to waste large sums of his own or somebody else’s money in an attempt to pursue a cause of action which has already been barred by the statute of limitation and must fail …”

The object of RSC Ord 18, r 19 (which is equivalent to our O.18, r 18) is to ensure that defendants shall not be troubled by claims against them which are bound to fail having regard to the uncontested facts.  One of the uncontested set of facts which arises from time to time is when on the statement of claim it is clear that the cause of action is state barred and the defendant tells the court that he proposes to plead the statute and, on the uncontested facts, that is no reason to think that the plaintiff can bring himself within the exceptions set out in the Limitation Act 1939.  In those circumstances it is pointless for the case to go on so that the defendant can deliver a defense.  The delivery of the defense occupies time and wastes money; and even more useless and time-consuming from the point of view of the proper administration of justice is that there should then have to be a summons for direction and an order for an issue to be tried and, for that issue to be tried before the inevitable result is attained.”

31.	In the current case before this Court, the Cause of Action arose in March 2001.

32.	The Writ of Summons together with the Statement of Claim was filed on 02nd July, 2015; almost fourteen (14) years after the cause of action arose. 

33.	The Action is brought on the ‘Tort of Negligence” and as well as “Breach of Contract” so to say. 

34.	The Plaintiff should have filed and commenced this action if he had a case on ‘Tort of Negligence” within three (3) years’ time frame and on “Breach of Contract” within a time frame of six (6) years. This is the Law in terms of Section 4 of the Limitation Act Cap 35.

35.	Having perused and analyzed the issues raised by the Defendant and the Plaintiff couple with the principles dealing with the present application to Strike out the Plaintiff’s Writ of Summons and the Statement of Claim, this court does not have the jurisdiction to determine this case in terms of section 4 of the Limitation Act Cap 35 since it has been filed outside the Limitation period.

36.	 Therefore, I find that the Plaintiff’s claim is statute barred in law.

37.	In terms of Costs issue, this application seeking striking out of the Plaintiff’s Writ and the Statement of Claim was filed by the Defendant.  Both parties filed written submissions and made appearances. Both have obviously incurred costs. Since the Plaintiff’s action is struck out the Defendant in this circumstances is entitled to costs of Six Hundred and Fifty Dollars ($650).    

38.	In Conclusion , I make the following orders accordingly-

(i)	    That the Defendant’s Summons seeking the Striking Out of the Plaintiff’s Writ of Summons and the Statement of Claim hereby succeeds.
(ii)	    That the Plaintiffs Writ of Summons and the Statement of Claim is hereby struck out and dismissed accordingly.
(iii)	The Plaintiffs to pay to the Defendant summarily assessed cost of $650 within 14 days.
(iv)	    Orders accordingly.

Dated at Suva this   29th   day of SEPTEMBER, 2017

	…………………………………….………………….
								MR VISHWA DATT SHARMA
				        		Master of High Court, Suva

cc:	Sakiusa Kotoivalenibula Kotobalavu., Suva
          Nand Lawyers, Suva.

LAW and PRACTICE
32.	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.
g.	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" 
33.	 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. 

34.	Before I dwell onto to deliberate on the Issues as hereinabove mentioned, it is important that I summarise the Plaintiff’s Statement of Claim coupled with the Defendant’s Statement of Defence:

Whether the Plaintiff’s Writ of Summons and Statement of Claim discloses any reasonable cause of action?
35.	The following notes to Order 17 r19 of the Supreme Court Practice (UK) 1979    Vol. 1 or 18/19/11 on what is meant by the term 'a reasonable cause of action' sufficiently provides the answer to the applications.
"......A reasonable cause of action means a cause with some chance of success when only the allegations in the pleadings are considered (per Lord Pearson in Drummond Jackson v British Medical Association [1970] 1 WLR, 688; [1970] 1 All ER 1094 CA). So long as the statement of claim or the particulars (Davey v Bentinck [1893] 1 QB  185) disclose some cause of action, or raise some question fit to be decided by a Judge or a jury, the mere fact that the case is weak, and not likely to succeed is no ground for striking out (Moore v Lawson (1915)  31  TLR 418, CA.; Wenlock v Moloney [1965] 1 WLR 1238 1 W.L.R. 1238 [1965] 2 All ER 871, CA)...."
36.	Reference is also made to Lindley M.R. in Hubbuck & Sons, Ltd v Wilkinson, Heywood & Clark Limited [1899] 1QB 86 at page 91 said:
".....summary procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks. The use of the expression "reasonable cause of action" in rule 4 shows that the summary procedure there introduced is only intended to be had recourse to in plain and obvious cases".
37.	In this instant case, the Plaintiff’s Statement of Claim can be summarized as follows-
•	That the 1st Defendant is a local body corporate duly constituted under the Local Government Act (Chapter 125) and the 2nd Defendant is duly constituted under the Land Transport Act of 1998;
•	That through a paid advertisement of the 1st Defendant, the Plaintiff applied for a tender of motor vehicle Registration No. DC 653. The Plaintiff was awarded the tender;
•	That the 1st Defendant gave a copy of the transfer form to the 2nd Defendant for processing, which was signed by the 1st Defendant’s Works Manager;
•	The 2nd Defendant did not affect the transfer of the vehicle due to some outstanding arrears owed by the 1st Defendant to the 2nd Defendant;
•	That the 1st Defendant did not disclose to the Plaintiff that the motor vehicle DC653 has a recurring debt with the 2nd Defendant, whilst advertising the said vehicle for sale of tender;
•	That the 2nd Defendant has acted negligently towards the Plaintiff in not transferring the motor vehicle;
•	That the two Defendants have put the blame on each other regarding the said debt;
•	That because the vehicle cannot be transferred, the Plaintiff has sustained loss of business which the purchase of the motor vehicle would have served;
•	Therefore the Plaintiff now claims the loss of business and costs.    
38.	The Plaintiff and the 2nd Defendant’s Counsel appeared in Court and made oral submissions in support of their respective cases defending the 2nd Defendant’s striking out application. 
39.	It is for the Plaintiff to establish that he has a Cause of Action in this case against the 2nd Defendant in terms of the facts and the Pleadings filed herein. 
40.	On the other hand, the 2nd Defendant must establish that the Plaintiff does not have a Cause of Action in this case. 
41.	The Striking out application of the 2nd Defendant is a summary proceeding and is only appropriate to cases which are plain and obvious. 
42.	Bearing in mind the facts of this case and the nature of the pleadings filed by the parties to the proceedings, this case cannot be classed as ‘plain and obvious’ in nature.
43.	It can be ascertained from the pleadings filed herein that the two Defendants are putting the blame on each other regarding the outstanding arrears with the 2nd Defendant. Further, the Plaintiff is alleging that the 1st Defendant did not disclose to the Plaintiff that the motor vehicle DC653 had a recurring debt with the 2nd Defendant, whilst advertising the said vehicle for sale of tender and therefore the 2nd Defendant has acted negligently towards the Plaintiff in not transferring the motor vehicle.
44.	Obviously, there are tribal issues; some that I thought was obvious have been listed hereunder that ought to be determined at a full hearing- 
(a)	Advertisement of the Tender called for the sale of vehicle No DC653;
(b)	 Who was the current owner and did any transfers took place after the award of the Tender to the 1st Defendant?;
(c)	 If so, to who was this vehicle transferred to. 
(d)	What were the role and the duties of the 2nd Defendant herein, if any? 
(e)	The reasons why the vehicle was not transferred to the rightful person by the 2nd Defendant if that was the case herein; and 
(f)	Various other questions that this Court needs to be satisfied with in order to arrive at a just and fair decision.
45.	This is only possible by testing out the evidence of the parties to the proceedings that will enable the Court to deliberate its decision in a just and fair manner. 
46.	Having perused and analyzed the issues raised by both the 2nd Defendant and the Plaintiff couple with the principles dealing with the present application to Strike out the Plaintiff’s Statement of Claim, this court does possess all the requisite material and evidence to reach a definite and certain conclusion.
47.	I find as a fact that the Plaintiff has shown a reasonable cause of action within his claim against the 2nd Defendant. Therefore, the 2nd Defendant must continue to remain a party to the proceedings until the matter is heard and determined for once and for all.
48.	Accordingly, I make the following orders-
ORDERS
(i)	That the 2nd Defendant’s Summons seeking the Striking Out of the Plaintiff’s Statement of Claim is hereby Dismissed.
(ii)	That the Matter stands adjourned to 11th July, 2017 at 9 am for further directions.
(iii)	The 2nd Defendant to pay the Plaintiff summarily assessed cost of $750 within 14 days.
(iv)	 Orders accordingly.

Dated at Suva this   28th   day of June, 2017

	…………………………………….………………….
								MR VISHWA DATT SHARMA
				        		Master of High Court, Suva

cc:	Maisamoa & Associates, RakiRaki
Reddy & Nandan Lawyers, Suva