Federated Airlines Staff Association v. Air Terminal Services (Fiji) Limited

• Jurisdiction: Fiji
• Court: High Court (Fiji)
• Judge: Mr. Mohamed Mackie
• Judgment Date: 18 April 2018
• Docket Number: HBM NO. 41 OF 2017 HBC 236 OF 2017
• Date: 18 April 2018
• Counsel: Mr. K. Tunidau for the Plaintiff,Ms. M. Rakai for the Defendant o/i M/s Sherani & Co.

IN THE HIGH COURT OF FIJI

WESTERN DIVISION AT LAUTOKA

CIVIL JURISDICTION

HBM NO. 41 OF 2017

HBC 236 OF 2017

Between:

Federated Airlines Staff Association

Plaintiff

v.

Air Terminal Services (Fiji) Limited

Defendant

Ruling by:

Justice Mr. Mohamed Mackie

Written Submissions by: Both parties on 16^th March, 2018

Date of Hearing: 16^th March, 2018

Date of Ruling: 18^th April, 2018

Counsel:

Mr. K. Tunidau for the Plaintiff

Ms. M. Rakai for the Defendant o/i M/s Sherani & Co.

RULING

A. Introduction

The Summons (Application)

1. This ruling is in relation to the Summons (Application) filed by the Defendant/Applicant (hereinafter sometimes referred to as “the Defendant”) on 12^th December, 2017 and supported on 21^st December, 2017 before a Brother Judge of this Court during my annual vacation.

2. This application is supported by an affidavit of Mr. Richard Donaldson, the Manager Human Resources of the Defendant Company, sworn on 12^th December, 2017 and filed with the annexures marked from “A” to “J”.

3. At the hearing held before me on 16^th March, 2018 both the learned Counsel made their oral submissions and filed respective written submissions as well. I thank both the Counsel for the oral and written submissions, by which I was immensely assisted in arriving at my decision.

4. By this Application the Defendant seeks following orders, under Order 18, Rules 18 (1) (a) and (d) of the High Court Rules 1988 (‘the HCR’).

• 1. That the claim against the Defendant be wholly struck out;

• 2. The filing of the Defendant's defence be stayed until 7 days after the hearing and determination of this application;

• 3. The Plaintiff pays the cost of this application to the Defendant; On the ground that:

  • i. The writ of summons and Statement of claim discloses no reasonable cause of action;

  • ii. Is otherwise an abuse of the process of the Court.

5. Chronology of the main events:

• a. On 03^rd November, 2017 an Ex-parte Notice of Motion was filed by the Plaintiff seeking an injunctive relief against the Defendant, supported by the affidavit of Mr. Vilikesa Naulumatua, the National Secretary.

• b. On 6^th November, 2017 an Ex-parte interim injunction was issued restraining the Defendant from evicting the Plaintiff from its office premises by changing the Door-lock thereto.

• c. On 13^th November, 2017 the writ of Summons and the Statement of Claim filed.

• d. On 12^th December, 2017 Defendant filed the Striking out Application supported by the affidavit of Mr. Richard Donaldson dated 12^th Dec, 2017. (the application at hand)

• e. On 12^th December, 2017 Defendant also filed Notice of Motion to set aside the Ex-parte Interim injunction dated 6^th November, 2017, supported by the affidavit of Mr. Richard Donaldson.

• f. On 05^th January, 2018 the Plaintiff/Respondent (hereinafter sometimes may be referred to as “the Plaintiff”) filed an affidavit in opposition to the Defendant's Setting aside application, sworn by Mr. Vilikesa Naulumatua the National Secretary of the Plaintiff Union, together with documents marked “VN-1” & “VN-2”.

• g. On 16^th January, 2018 the Plaintiff filed the application for leave to issue Committal proceedings against the Acting Chief Executive Officer of the Defendant Company and on 18^th January, 2018 this Court granted leave for same.

• h. On 19^th January, 2018 an affidavit in reply was filed by Mr. Richard Donaldson to the Affidavit of Mr. Vilikesa Naulumatua filed in opposition to the Striking out and Setting aside applications of the Defendant.

• i. On 15^th March, 2018 the Defendant filed Summons for stay of Committal proceedings supported by the Affidavit of Mr. Hare Mani, the Acting Chief Executive Officer of the Defendant Company and same awaits the hearing after the response from the Plaintiff.

• j. On 16^th March, 2018 the hearing in to the Defendant's Striking out Application was taken up, on which this ruling is hereby made.

• k. A notable event that took place on 16^th March, 2018, apart from the lengthy hearing into the Striking out application, was the granting of consent by the Plaintiff for the setting aside application filed by the Defendant and accordingly, the Court allowed the same, which resulted in the vacation of the Ex-parte interim injunction issued against the Defendant on 6^th of November, 2017.

• l. Even though, the interim injunction order was vacated, since the plaintiff was strong-minded to proceed with the Committal proceedings the Court, having heard both the Counsel, decided to go into it subsequent to this ruling on the Striking out application.

B. Background Facts:

Brief background facts relevant to this case are as follows:

6. The Plaintiff, which is the in – house Trade Union of the Defendant Company, has been, admittedly, in occupation and using as its office a part of the space in the Defendant's Administration and facilities building since 1981, for which the Plaintiff is said to have paid a nominal monthly lease rental of F$ 150.00 from the year 1998 till the issue of formalization of the lease and enhancement of lease rental came up in the year 2013 as evidenced by the letter dated 10^th September,2013 sent by the Defendant Company to the Plaintiff Union. (Letter marked as “VN-2”)

7. The Defendant by the said letter proposed new monthly rental at the rate of $ 1,525.00 with additional payment of $ 475.20 for the monthly Electricity consumption and $ 217.00 for the cleaning services, to be effective from 1^st October, 2017. The Plaintiff by its response letter dated 25^th September 2017, while expressing its displeasure over the proposed rate of rental and other charges, indicated that it should be decided after discussion between both the parties. Though, the Defendant had, subsequently, on two occasions, sent two draft lease agreement (VN-5 & VN-6) for signature, the Plaintiff did not sign the same citing the reason that the matter should be discussed.

8. Though, the Defendant sent the letter dated 26^th February, 2014 with an alternative proposal on the new amounts to be levied and subsequently sent a final reminder dated 31^st March, 2014 there was no positive response from the Plaintiff. Accordingly, the Defendant sent the eviction notice dated 30^th April, 2014.

9. Thereafter, several extensions were given, for the Plaintiff to pay the arrears and vacate, but the Plaintiff failed to vacate citing the same reasons, particularly, about its long stay in the premises and the relationship both parties have had during its period of stay. Since nothing materialized even after sending few more letters extending the time to vacate, finally the Defendant sent the letter dated 1^st November, 2017 (VN-17”) advising the Plaintiff to vacate, stating that the Company intends to change the Door Lock of the premises in order to commence the renovations on 6^th November, 2017.

10. It is after the receipt of the above letter dated 1^st November, 2017; the Plaintiff rushed to this Court, filed the Ex-parte Notice of Motion on 3^rd November 2017, which was allotted with case number HBM 41 of 2017 and supported the same before me on 6th November 2017 praying for the following injunctive reliefs.

• i. An order restraining the Defendant whether by itself and/or through its servants, agents or otherwise whosoever from interfering with the peaceful occupation by the Plaintiff of FASA Office situated at ATS facilities Building, Cruikshank Road, Nadi Airport in any manner whatsoever until further Order of this Court.

• ii. An Order restraining the Defendant whether by itself and/or through its servants, agents or otherwise whosoever from changing the Door Locks of the Plaintiff's Office situated at ATS facilities Building Cruikshank Road, Nadi Airport.

• iii. An Order restraining the Defendant from evicting the plaintiff from the Plaintiff's Office situated at ATS facilities Building, Cruikshank Road, Nadi Airport.

• iv. An Order restraining the Defendant from any interference of the Plaintiff's executive and Union Members in accessing the Plaintiff's Office at ATS facilities Building, Cruikshank Road, Nadi Airport in any manner whatsoever.

11. The Court, after hearing the learned Counsel for the Plaintiff and foreseeing the imminent eviction of the plaintiff by the Defendant according to the contents of the said letter marked “VN-17” and considering the other surrounding circumstances, issued the interim injunction as prayed for in order to maintain the status-quo.

12. However, when granting the injunction as above, the Court specifically ordered, among other things, that the Plaintiff should file its writ of summons and the statement of claim, including its substantial relief, within 7 days.

13. Accordingly, on 13^th November, 2017 the Plaintiff filed its writ of summons and the, purported, statement of claim moving for the following reliefs, which was assigned with case No:- HBC 236 of 2017.

• (a) That the restraining orders against the Defendant to continue until further Orders of this Honorable Court;

• (b) General damages;

• (c) Cost;

• (d) Interest;

• (e) Post judgment interest;

• (f) Such further or other orders as the Court deems just;

C. Issues for Determination

14. Following are the issues which require determination by this Court;-

• (a) Whether the Plaintiff's Writ of Summons and the Statement of Claim discloses any reasonable cause of action?

• (b) Whether the Plaintiff's Writ of Summons and Statement of Claim is an abuse of the process of the Court?

D. The Law & Principles:

15. The law on striking out pleadings and endorsements is stipulated under 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...