IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 320 of 2001S

Between:

FLORA SEU FONG HUONG-LEE
Plaintiff

and

AIR FIJI LIMITED
Defendant

Rt. Joni Madraiwiwi for the Plaintiff
R. Smith for the Defendant

DECISION

This is an application by the Plaintiff dated 26 August 2003 for the trial of a point of law as a preliminary issue brought pursuant to RHC O 33 rr 3 and 4 (2).

In July 2001 the Plaintiff, as the widow of Michael Anthony Huong-Lee commenced proceedings pursuant to the Compensation to Relatives Act (Cap. 29) following the death of her husband who perished on 24 July 1999 in the crash of Defendant’s flight PC 121.

It is common ground that the Defendant’s liability in damages is subject to the provisions of the Carriage by Air (Overseas Territories) Order 1967 (Cap 174 – S 189 – the 1967 Order). 

Under Article 22 (1) of Chapter III of the First Annex to Schedule I of the 1967 Order the liability of a defendant is limited to 250,000 francs. By Article 22 (5) a franc:

“shall be deemed to refer to a currency unit consisting of sixty five and a half milligrams of gold of millesimal fineness nine hundred. These sums may be converted into national currencies in round figures. Conversion of the sums into national currencies other than gold shall, in the case of judicial proceedings be made according to the gold value of such currencies at the date of judgment.”

The only exception to the limit imposed by Article 22 (1) is Article 25. This Article provides that the 250,000 francs limit of liability shall not apply:

“If it is proved that the damage resulted from an act or omission of the carrier, his servants or agents done with the intention of causing damage or recklessly with knowledge that damage would probably result …..”.

Where Article 25 is found to apply then damages are at large.

There is a further complication. Under Section 4 (4) of Article 4 of Schedule 1 to the 1967 Order:

“The Governor of an Overseas Territory may, in such manner as he may think fit, from time to time, specify the respective amounts which for the purposes of Article 22 and in particular paragraph (5) of that Article, are to be taken as equivalent to the sums expressed in francs which are mentioned in that Article.”

On 24 July 1969 the Governor of Fiji Sir Robert Foster made the Carriage by Air (Fiji Currency Equivalents) Order – LN 105/1969 (the 1969 Order). The Fiji currency equivalent of 250,000 francs was specified to be $13,819.80. The Fiji currency equivalent of 875,000 francs was specified to be $48,369.28.

In paragraph 53 of the amended Statement of Defence filed on 29 August 2002 the Defendant appears to admit liability to the Plaintiff but claims that the liability is limited to $48,369.28. Why this amount rather than $13,819.80 was conceded is not clear. The admission of limited liability was also contained in a letter dated 17 February 2000 sent by the Defendant’s New Zealand solicitors to the Plaintiff’s former solicitors in Fiji and exhibited as FHL 3 to the Plaintiff’s first affidavit filed in support of this application on 22 August 2003.

The Defendant advances two grounds for suggesting that the Plaintiff’s claim must be limited to $48,369.28. The first is that it denies that Article 25 avails the Plaintiff. The second relies on the 1969 Order.

The applicability or otherwise of Article 25 is not now before the Court. The only question now before me is whether the 1969 Order is still valid and whether that question should be tried as a preliminary issue.

The centrality of this issue to the action derives from the unstated but understood acceptance of the fact that since 1969 the value of gold has very much increased. 250,000 currency units of 65.5 milligrams of gold of millesimal fineness 900 are now worth very much more than the $13,819.20 or even the $48,369.20 specified in the 1969 Order.

The consequences for the Plaintiff’s claim of this increase in the value of gold are two fold. If the 1969 Order still applies then the claim is limited at most to the $48,369.20 conceded by the Defendant. In an effort to avoid the limitation imposed by Article 22 the Plaintiff would therefore attempt to invoke Article 25. On the other hand, if the 1969 Order no longer applies then under Article 22 alone the Plaintiff stands to recover a sum much greater then that admitted by the Defendant. It is for this reason that Ratu Joni told me that if the 1969 Order is ruled to be no longer applicable then the Plaintiff will not proceed with her attempt to invoke Article 25. Since the attempt to invoke Article 25 would require a lengthy and difficult trial there was, it was submitted, much to be gained from establishing the status of the 1969 Order before any trial took place.

Mr. Smith opposed the application. He relied on dicta of Romer LJ in Everett v. Ribbands [1952] 1 All ER 823, 827 and of Dankwerts LJ in Waters v Sunday Pictorial [1961] 2 All ER 758, 763 and in Nissan v. Attorney-General [1967] 2 All ER 1238, 1245. He submitted that since resolution of the status of the 1969 Order in favour of the Defendant would not dispose of the entire action it should not be decided as a preliminary issue.

In Hampshire CC v. Shonleigh Nominees Ltd [1970] 2 All ER 144, 150 Plowman J pointed out that the decision to order trial of a preliminary issue is essentially discretionary. One factor which he took into account and which is not mentioned in the cases cited by Mr. Smith was the considerable saving of costs which could flow from a preliminary hearing.

By RHC O 1 r 7:

“Where no express provision is made by these Rules with respect to the practice or procedure in any circumstances arising in any cause or matter then the jurisdiction of the High Court shall be exercised in conformity with the practice and procedure being adopted in the like circumstances by Her Majesty’s High Court of Justice in England.”

Rule 1.1 of the 1999 English Civil Procedure Rules sets out the overriding objective of the Court:

“(1)	These Rules are a new procedural code with the overriding objective of enabling the Court to deal with cases justly.
(2)	Dealing with the case justly includes, so far as practicable – 
(a)	ensuring that the parties are on an equal footing
(b)	saving expense
(c)	dealing with the case in ways which are proportionate –
(i)	to the amount of money involved;
(ii)	to the importance of the case;
(iii)	the complexity of the issues; and
(iv)	the financial position of each party.
(d)	ensuring that it is dealt with expeditiously and fairly; and
(e)	allotting to it an appropriate share of the Courts resources while 
taking into account the need to allot resources to other cases.

Although these considerations have yet to be formally incorporated into our own Rules I am firmly of the view that the modern approach to case management requires that they be borne in mind. In my opinion application of these considerations to the circumstances of this case overwhelmingly favours the Plaintiff.

In this case a widow whose husband perished in an air crash asks the Court to allot enough time to decide a preliminary point of law which could, I estimate, be decided by the Court in perhaps three hours of its time. If decided in favour of the Plaintiff then an eight day complex trial involving the bringing of experts from overseas to Fiji at very considerable expense will be avoided. Mr. Smith on behalf of the Defendant airline opposes this course because there is a possibility that the trial may have to proceed in any event, that the outcome of the trial of the preliminary issue might not be entirely decisive of the whole case.

With respect, if the time devoted to the present procedural argument had instead been given to the determination of the legal status of the 1969 Order then there is at least a possibility that I might have been able to dispose of the whole case rather then merely rule in favour of the Plaintiff on the present application.

M.D. Scott
Judge

14 November 2003