Viti Investors Ltd v Carpenters Fiji Ltd [1994] FJHC 98; Hbc0549d.91s (19 August 1994)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 549 OF 1991

Between:

VITI INVESTORS LIMITED
(trading as Banabhai & Co.)
Plaintiff

- and -

1. CARPENTERS FIJI LIMITED
Defendant
2. LONG BEACH HOLDINGS LIMITED
Third Party

Mr. H.M. Patel for Plaintiff
Mr. J. Howard for Defendant
Mr. A. Rana for Third Party

RULING

There are presently before the court 2 interlocutory applications as follows:

(1) An application filed on the 17th of May '93 to strike out a Third Party Notice issued against Long Beach Holdings Limited ('Long Beach'); and

(2) An application by the defendant company dated the 18th of April 1994 seeking a permanent stay of the Plaintiff's action.

Although the applications are separate and distinct and argument was heard only in respect of (2) above it is fairly common ground, depending on the outcome, that the determination of the second application may render the first unnecessary or otiose.

The defendant company's application is based primarily on the rule or principle most commonly referred to by its French name, 'Forum Non Conveniens'.

In Crane Accessories Ltd. v. Swee Hee [1988] NZHC 520; (1989) 1 N.Z.L.R. 221 Smellie J. referred to a summary of principles by Wallace J. in the Oilseed Products case in which the learned judge set out the burden of proof in a claim of 'Forum Non Conveniens' in the following passage set out at p.230 (and which I would respectfully adopt):

"(c) The burden resting on the defendant is not just to show that the country in which the proceedings have been issued is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate."

The present proceedings has a somewhat long and chequered history and has been the subject matter of seemingly related proceedings in both the High Court and New Zealand Court of Appeal (hereafter referred to as 'the N.Z. proceedings') referred to in the affidavit filed on behalf of the defendant company and in which the Third Party and Plaintiff company (amongst others) are the protagonists.

In so far as it may be relevant to a proper understanding of the present application it is necessary to refer only very briefly to 'the N.Z. proceedings'. The High Court proceedings instituted in Christchurch, N.Z. in 1990 by the Third Party (Long Beach Holdings Limited) is an action claiming damages for breach of contract against several named defendant companies including the present plaintiff company (named as 'Third Defendant'). In particular Long Beach claims damages for breach of 'warranty of quality' and 'late delivery' and for various consequential losses arising therefrom.

The essential nature of the business arrangements between the parties to 'the N.Z. Proceedings' is described by Fraser J. (in the High Court) as being:

"... the manufacture of clothing in Fiji by a Fijian company under C & F contracts for a N.Z. purchaser which paid in Fiji dollars ..."

In 'the N.Z. proceedings' which were served in Fiji without leave of the High Court of N.Z. the defendants successfully raised a plea of 'Forum Non Conveniens' in the High Court but this was subsequently rejected in the judgment of the N.Z. Court of Appeal delivered on the 6th of December 1993.

In its judgment the Court of Appeal discussed the relevant principles of 'Forum Non Conveniens' in the following passage at pp. 12/13 where it said:

"Even where jurisdiction can be invoked (under the relevant rules) the Court has an inherent jurisdiction to decline jurisdiction ... The relevant principles in the exercise of the discretion may be found in the speech of Lord Goff of Chieveley in the Spiliada [1986] UKHL 10; (1986) 3 ALL E.R. 843, 854-856 ... The Court must be satisfied that there is another available forum for the trial of the case that is the more appropriate forum in that the case may be tried there more suitably for the interests of the parties and the ends of justice ... Relevant considerations will be convenience and expense, the places where the parties respectively reside or carry on business, the law governing the transaction, what is the 'natural forum' i.e. that with which the action has the most real and established connection and whether (the chosen forum) offers the plaintiff a 'legitimate personal or juridical advantage'."

Then at p.15 in rejecting a submission that the defendants in the N.Z. proceedings wished to join the shippers, the Court of Appeal said:

"We cannot see the relevance of that, in view of the nature of the C & F contract under which Banabhai's responsibilities were discharged on delivery to the shipper."

The Court had earlier referred in its judgment at p.10 to Long Beach's claim based on 'delay in delivery' when it said in relation to a C & F contract:

"... under such a contract property in the goods passes with the transfer of the shipping documents. The seller is under no obligation as to their safe arrival at their destination."

So much then for the 'history' of the transactions and 'the N.Z. proceedings'.

In the present action the plaintiff company which is a manufacturer and exporter of garments claims damages against the defendant company which handled the carriage of the plaintiff's goods under various enumerated invoices and Air Way Bills between January and March 1990 and which goods were ultimately destined for Long Beach in Christchurch, New Zealand albeit that the 'consignee' was described in the AWBs as, 'Westpac Banking Corporation, Christchurch'.

In particular the plaintiff company claims damages for the wrongful release of its goods in N.Z. by the defendant company's N.Z. agent namely, Ansett N.Z. Air Freight Limited to Long Beach (the Third Party) without proper authority and documentation.

The defendant company on the other hand denies any negligence on its part or on the part of its N.Z. agent (if any) and counter-claims from the plaintiff company monies due and owing for unpaid freight charges. It has also issued a Third Party Notice against a N.Z. registered company Ansett N.Z. Air Freight Limited to which it claims it air-freighted the plaintiff company's goods and which latter company's own agent in Christchurch, N.Z. improperly released the plaintiff company's goods to Long Beach.

Learned counsel for the defendant company in seeking a permanent stay on the ground of 'Forum Non Conveniens' referred to various features of the case and submitted that the High Court in Christchurch, N.Z. was the "other more appropriate forum" in which the present action might be tried.

In particular counsel referred in his written submissions to the following "N.Z. features" of the case:

"(a) The action is founded on an allegedly wrongful act (i.e. the delivery of the goods to Long Beach) which took place in N.Z.;

(b) The witnesses relevant to this action are in N.Z.;

(c) Long Beach which is the Third Party in this action is resident in N.Z.;

(d) The plaintiff company is already a party to pre-existing proceedings in N.Z., in respect of which it has already been adjudged that N.Z. is the forum conveniens."

Further there is 'a commonality of subject matter' between the 2 actions in so far as the garments referred to in 'the N.Z. proceedings' and the present proceedings are substantially the same and are at present located in N.Z. and finally, the present proceedings are said to be "in effect if not in form, duplicitous".

Learned counsel for the plaintiff company on the other hand submits that 'the N.Z. proceedings' and the present action are quite distinct in nature albeit that there are some common parties.

In particular, counsel described 'the N.Z. proceedings' as being an action between a supplier and purchaser of garments and the contract between them whereas the present case deals with a contract of affreightment of goods between the plaintiff and defendant companies. In this latter context it is said the joinder of Long Beach in the present proceedings is not only improper but also a "red-herring". In this latter regard I note that there is a pending application by Long Beach for the discharge of the Third Party Notice served on it in these proceedings.

Having carefully considered the opposing affidavits and submissions in this case I am firmly of the view that the present proceedings have been properly instituted in this Court which is the "natural forum" for the trial of this action.

The action concerns a contract wholly made in Fiji between 2 Fiji-based and registered companies and although partly performed in N.Z., it is at present unclear how much of that performance the defendant company is or was responsible for.

In this latter regard the submissions of learned counsel for the defendant company appears to have over-looked an existing Third Party Notice lodged in this Court by the former solicitors of the defendant company in which it claims an indemnity against Ansett N.Z. Air Freight Ltd. on the grounds "... that you released goods of the plaintiff illegally and without proper authority and documentation." Needless to say such a 'Notice' is quite inconsistent with any acceptance of a N.Z. agency by the defendant company.

Furthermore having regard to the nature of the contract between the plaintiff company and Long Beach to which the defendant company is not privy, and the observations of the N.Z. Court of Appeal as to the claim for 'delay in delivery', (op.cit) I am not at all certain that defence counsel's suggestion that the defendant company might be joined in "the N.Z. proceedings" is either proper or indeed possible. I note that no application has been made in that regard by the defendant company. Certainly none has been brought to the Court's attention nor is there any obvious reason why it should wish to do so.

It might have been different if the defendant company was itself sued as a party in 'the N.Z. proceedings' or had independently issued proceedings in Fiji against a N.Z. company, but as matters stand in this present proceedings I cannot accept that there is anything 'duplicitous' in the action being allowed to continue.

Indeed I would go so far as to say that Long Beach's claim in 'the N.Z. proceedings' is wholly unrelated in any material way to the plaintiff company's claim or the defendant company's defence and counter-claim in the present proceedings. If I may say so 'delay in delivery' is quite a different question from 'wrongful delivery'. The former requires an examination of the supplier's duty whereas the latter refers to the carrier's duties.

In any event the 'wrongfulness' of the release of the plaintiff company's goods in Christchurch, N.Z. does not depend so much on evidence of the release of the goods (which fact does not appear to be seriously contested) but rather on the written terms and conditions of the 'contract of affreightment' entered into by the parties in Fiji and as evidenced by Air Way Bills issued in Fiji.

Needless to say I remain unconvinced that the various 'N.Z. features' enumerated by learned counsel for the defendant company are either persuasive or indeed determinative in the exercise of the Court's discretion in the matter.

The application for a permanent stay is accordingly refused with costs to the plaintiff company.

(D.V. Fatiaki)
JUDGE

At Suva,
19th August, 1994.

HBC0549D.91S