Raibosa v Air Pacific Ltd [2001] FJHC 115; Hbc0507d.1999s (6 July 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION HBC 507 OF 1999S

Between:

FILIMONE RAIBOSA
Plaintiff

and

AIR PACIFIC LTD
Defendant

G. O’Driscoll for the Plaintiff
R.K. Naidu for the Defendant

DECISION

The facts sufficiently appear from the bundle of pleadings including a pre-trial conference and need not now be repeated.

This is an application brought under the provisions of RHC O 33 for the trial of a preliminary issue namely the exclusionary effect of the Warsaw Convention on the carriage of goods on the carriage by Air Pacific of a container of dalo to Australia.

It is said that the relevant facts are agreed and that therefore there is a pure question of law to decide which would be determinative of the dispute between the parties.

I do not agree.

Exclusion clauses may or may not be upheld depending on whether any attempt was made to bring them to the attention of the Plaintiff.

At present that matter has not been investigated and I am not willing to presume that the facts on that issue would go in favour of the Defendant.

Furthermore, the Fair Trading Decree, Section 55 is on the face of it arguably applicable.

There is also the factual issue of the Defendant’s wilful negligence which has been specifically pleaded.

In these circumstances I am satisfied that the trial of the preliminary legal issues would be appropriate.

The Application accordingly fails and is dismissed.

M.D. Scott
Judge

6 July 2001