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Atkinson v Namale West Inc [2010] FJHC 10; HBC166.2008 (22 January 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION


Civil Action No. HBC 166/2008


Between:


BARRY ATKINSON
Plaintiff


And:


NAMALE WEST INC.
Defendant


Before : Master Anare Tuilevuka
Counsel: Mr. S.Nandan, Messrs Lowing Nandan & Associates for the Plaintiff
: Mr. Nilesh Prasad, Messrs Mitchell Keil Solicitors for the Defendant


Date of Hearing: 28th October, 2009
Date of Decision: 22nd January, 2010


RULING


INTRODUCTION


[1] The delay in this Ruling is regretted. Before me is an application by Namale West Inc. pursuant to Orders 18, 32 and 59 of the High Court Rules and under the inherent jurisdiction of this Court for an Order that Atkinson’s claim be struck out on the following grounds:

[2] Namale relies on the Affidavits of Brian G Wolf, Daryl Tarte and Fauoro Raki Veu in support of its application.

[3] Wolf is a partner at Lavely & Singer, a US law firm based at suite 2400, 2049 Century Park East, Los Angles, California 90067-2906. Lavely & Singer has represented one Anthony Robbins and Robbins’ companies for over a decade. Namale is one of Robbins’ companies. Wolf has been involved in the Namale case.

[4] Tarte is a well known local personality based in Suva. He is Namale’s resident officer with authority to accept service on behalf of Namale. Tarte’s Affidavit exhibits copies of Namale’s documents extracted from the Registrar of Companies Office in Suva.

[5] Veu is a law clerk employed in the law firm of Mitchell Keil, Namale’s Fiji Solicitors. His Affidavit exhibits copies of Atkinson’s reconciliation of salary during the period of his employment at Namale which also accounts for the severance payment to Atkinson by Namale (see further discussion below).
  1. UNDISPUTED FACTS
[1] Namale operates a hotel resort known as Namale Resort & Spa located in Savusavu, Fiji. It is a foreign company incorporated in San Diego in California and registered in Fiji as a foreign company. All of Namale’s Principal Officers are based in San Diego, California.

[2] On or about 1st October 2007, Namale wrote to Atkinson offering him the position of General Manager at the Resort. Namale’s letter of offer states as follows:

“Namale has implemented a policy requiring binding arbitration between it and its employees. This requires that any dispute arising from or related to your employment at Namale shall be submitted to arbitration, and not by a lawsuit or resort to court process. Upon commencement of your employment, you will be required to execute Namale’s Arbitration Agreement which sets forth the complete nature of the binding arbitration process, and which terms are incorporated herein as though fully set forth. It is mutually agreed that both you and Namale are giving up the constitutional right to have any disputes decided in court of law before a jury, and instead are accepting the use of arbitration. If you have any questions about this issue, please do not hesitate to contact the undersigned.”


......... This offer if contingent upon your execution of Namale’s Arbitration Agreement; and your execution of Namale’s Unfair Competition, Non solicitation And Confidential Information Agreement, and the Addendum thereto (if applicable), copies of which be provided to you by Namale.”


......... If you accept this offer, this letter and the written agreements referenced in this letter shall constitute the complete agreement between you and Namale with respect to the terms and conditions of your employment. Any representatives, oral or written, not contained herein, that may have been made to you are expressly cancelled and superseded by this offer.”


......... “To accept this offer and its contingencies, please sign this letter in the space provided and return it to me.”


[3] Sometime in September 2007, before Namale wrote the offer, and whilst Atkinson was living in Sydney, a friend advised Atkinson to contact a Recruitment Specialist by the name of Veronica McCoy. Atkinson did so. And after a first meeting, McCoy advised Atkinson that she would arrange a telephone conference with a Mr. Sam Georges and a Ms. Lynette Gholizadeth, Namale’s CEO and Chief Financial Officer respectively.

[4] That telephone conference happened on 23rd September 2007 between Atkinson, Georges and Gholizadeth. The conference was a success. Two days later, on 25th September 2007, Atkinson found himself travelling to Savusavu to meet Namale’s employees.

[5] He arrived in Savusavu on the same day. Later that evening, he met Tony Robbins who interviewed him further at his residence. Atkinson apparently spent a few days in Savusavu and on 29th September 2007, he travelled to Nadi to await the outcome of the interview at Denarau.

[6] At Denarau, Atkinson met Veronica McCoy who informed him that the interview with Robbins was a success. She would be getting him the employment contract in due course.

[7] Namale, as stated above, wrote the offer to Atkinson on 1st October 2007. On 4th October 2007, Atkinson signed the Employment Agreement and Agreement to Arbitrate Disputes and related documents (“Agreement”). A copy of the Agreement is annexed both Wolf’s in Atkinson’s Affidavit.

[8] Amongst the documents Atkinson signed was an Acknowledgment which is worded as follows:

“I accept and agree to the above-referenced offer on the terms and conditions outlined in this letter.”


[9] Before Atkinson executed the Agreement, he asked McCoy about the arbitration agreement. McCoy advised him that the arbitration agreement was a prerequisite of the contract of employment and that there would be no employment contract without the arbitration agreement. According to Atkinson, he then:

“.....protested about the validity of the Arbitration Agreement and was left with no choice but to sign it in order to be able to be employed at Namale West Inc”.


  1. THE AGREEMENT
[10] The employment agreement provides as follows:

“This Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to principles of conflict of laws. Suit or equitable relief may be brought in connection with this Agreement in the federal and state courts, as applicable, located in the County of Los Angeles. Employee hereby consents to jurisdiction and venue in such courts.”


[11] The Agreement, at Clause 9, provides as follows:

“...Employee and Company agree that any claims, dispute or controversy arising out of, relating to, or in connection with Employee’s employment or this Agreement including the interpretation, validity, construction, performance, breach, or termination thereof shall be settled by binding arbitration, and to the extent permitted by law, shall be held in San Diego County, California... The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. All costs to the Arbitration process shall be paid by the Company...”


[12] Clause 13 of the Agreement provides:

“This Agreement is intended by the parties to be complete, exclusive and final expression of the Company’s and the Employee’s agreement with respect to the subject matters hereof and supersedes, and may not be contradicted by, or modified or supplemented by, evidence of any prior or contemporaneous agreement as to the subject matter hereof, and no extrinsic evidence whatsoever may be introduced to vary the terms of this Agreement.”.


[13] The Agreement to Arbitrate Disputes provides:

“The arbitrator shall have the authority to award any remedy or relief that a court of California could order or grant...”


[14] The Agreement records that parties enter into it voluntarily and without pressure:

“Employee and Namale hereby acknowledge and agree that he/she/it is voluntarily and knowingly waiving any rights to have any arbitrate claims or disputes heard or adjudicated in any other types of forum, including without limitation, each party’s right to a trial in a court of competent jurisdiction. Examples of such disputes or claims which must be resolved through arbitration, rather than a court proceeding, include without limitation wage, hour, and benefit claims, contract claims, personal injury claims, tort claims for wrongful termination, defamation, discrimination, harassment and retaliation, or any other employment – related claim of any kind.


..... Employee and Namale have read the foregoing arbitration agreement and understand its terms include the parties’ waiver of their right to trial in a Court of Law.”


[15] Immediately after the execution of the documents, Atkinson returned to the resort to be introduced to the staff. He says that:

“....because the Contract was a three year employment Contract, I had sold all my chattels and belongings in Sydney, Australia to start afresh in Namale West Inc. as its General Manager”.


[16] Atkinson actually commenced employment at Namale on 15th October 2007 and left the Resort on 15th March 2008.

C. THE MEETING OF 14th MARCH 2008


[17] On 14th March 2008, the day before he left the Resort, Atkinson was called to a meeting with Tony Robbins. Also attending were Sage Robbins and Liz Turner.

[18] There is a slight difference in their accounts of what transpired at the meeting.

[19] According to Wolf’s Affidavit, Atkinson did verbally agree at the meeting to resign from his employment with Namale in consideration of two months severance to be paid into his account. One wonders why Wolf, who was not even present at the meeting, had to swear about what transpired at the meeting! His depositions as to what happened at the meeting border on hearsay as he does not care to explain how he happened upon all that information. Perhaps that is an issue for the substantive matter in this case.

[20] Atkinson deposes that at the meeting, he was told that both Tony and Sage Robbins wanted Atkinson to resign. The reason was because the Robbins preferred a different management style. Atkinson deposes that the Robbins had said that Atkinson had done nothing wrong. No further explanation was given to him. Atkinson said he was stunned by the news but did not hand over his resignation as requested. He said that Tony Robbins also said the following at the that meeting:

“it was better that you resign because its then easier to be re-employed somewhere else in Fiji.” or words to like effect furthermore, they were happy to be direct personal referees for me for future employment elsewhere”.


[21] Clearly, the differing accounts carry different legal implications. Undoubtedly, this will have to be a credibility issue at the substantive hearing of this case. It has little relevance on the interlocutory applications before me now.

[22] In any event, Namale did pay Atkinson two month’s salary sometime after that meeting. As to why that payment was made (was it a severance pay? if so, was it made upon Atkinson’s verbal agreement to resign? OR was the payment made to “cultivate” a cause for termination and to forestall a potential retaliatory claim?) is undoubtedly an issue for the substantive trial.

[23] On 26th March 2008, Atkinson wrote a letter to Robbins requesting that he be reinstated. That letter was to trigger a sequence of exchange of letters and emails between Atkinson’s and Namale’s lawyers.

D SEQUENCE OF EXCHANGE BETWEEN THE LAWYERS


[24] On 8th April 2008, Wolf replied to Atkinson’s letter. His reply is reproduced in part below:

“(a) Mr. Atkinson’s employment was terminated pursuant to his verbal resignation and pursuant to the terms and conditions of the Employment Agreement.


(b) Mr. Atkinson was given to resign (which he elected to do) as opposed to having his employment terminated for cause.


(c) Mr. Atkinson was paid 60 days severance pay based on his resignation as opposed to 30 days in lieu of notice of termination required under the agreement.


(d) Mr. Atkinson accepted his resignation with the payment of 60 days pay”


(e) Mr. Atkinson was advised of the Arbitration provision in the Agreement.


[25] Atkinson’s solicitor responded to Wolf’s letter and on 14th April 2008, Wolf replied as follows:

“Namale’s termination of Atkinson’s employment and the fact that the written Employment Agreement is governed by and construed in accordance with the laws of the State of California and further that Atkinson consented to jurisdiction and venue in the State of California”.


[26] Immediately thereafter, Wolf instituted arbitration proceedings before the American Arbitration Association (“AAA) in California. A copy of the Demand for Arbitration (“Demand”) which Wolf filed, which I gather was the originating process, was sent to Atkinson’s solicitor together with a cover letter dated 16th April 2008.

[27] The Demand was filed pursuant to the terms of the parties’ Employment Agreement. On 17th April 2008, Atkinson’s Solicitors emailed Wolf acknowledging Wolf’s 16th April letter.

[28] On 8th May 2008, the AAA served a “Notice of Administration” (“AAA’s Notice”) dated 8th May 2008 on both counsels.

[29] On 12th May 2008, Atkinson’s solicitor responded to AAAs Notice stating that:

“So there is no misunderstanding, my client will not be engaging in this charade.”


[30] On the same day, Wolf emailed Atkinson’s solicitor to confirm if the latter was indeed refusing to participate in the administrative telephone conference with the AAA. Atkinson’s solicitor responded: ‘Your assumption is correct”.

[31] Then, by letter dated 19th May 2008 to the AAA, Wolf summarised the dispute with Atkinson and confirmed that the matter would be decided by a neutral arbitrator. A copy of that letter was sent to Atkinson’s lawyer.

[32] Then on 22nd August 2008, the AAA wrote a letter informing both counsels that it had appointed Judith Finch Campbell to be the Arbitrator. The AAA then advised both counsels and also Atkinson personally by email dated 3rd September 2008 that the “telephonic hearing” of the arbitration action would be held on 9th September 2008.

[33] On 9th September 2008, the telephonic hearing proceeded without any participation from Atkinson or his solicitors. In due course, the AAA made an Award.

E. THE AAA AWARD


[34] A certified true copy of the Award is annexed to a Supplementary Affidavit filed by Wolf. The dispute that Namale referred to the AAA was worded as follows:

“Claimant (Namale West, Inc.) terminated Respondent’s (Barry John Atkinson) employment agreement according to its terms and paid Respondent sixty days’ severance pay. Respondent claims Claimant breached employment agreement by improper termination.”


[35] The Award reads as follows:-

“The Section of the employment agreement entitled “Duration and Termination of Employment includes the provision that “... should either party wish to terminate this employment for whatever reason, it is agreed that one month’s notice will be given.” In March, Respondent Mr. Atkinson was reprimanded for mismanagement and mistreatment of other employees. He was told he would be dismissed for cause and subjected to the summary dismissal procedures under the Employment Act of Fiji. He was given the alternative of resigning and accepting a sixty day severance. He resigned and accepted the severance in lieu of discipline. There is no monetary amount due to him under California law following this settlement.” (my emphasis).


[36] The relevant findings of the Arbitrator were as follows:-

(b) Atkinson agreed to the venue and choice of law provisions, as well as the agreement to arbitrate under AAAs Employment Arbitration Rules;


(c) Atkinson agreed arbitration would be the sole forum for any dispute arising from his employment, including wrongful termination.


(i) the employment agreement provides for notice to terminate;

(ii) there is no monetary amount due to Atkinson from Namale following his termination of employment; and

(iii) the award was in full settlement of all claims submitted to this Arbitration.

[37] Wolf also provides in his Supplementary Affidavit an interpretation of the California Code of Civil Procedure which follows:

F. ISSUES


[38] Namale’s lawyers application is based on arguments on want of jurisdiction and res judicata. Atkinson’s lawyers have responded with submissions arguing forum conveniens /forum incoveniens, ouster of Fiji Courts jurisdiction, and public policy.

G. WANT OF JURISDICTION


[39] Mr. Prasad submits that this Court lacks jurisdiction because Atkinson and Namale had both submitted to the arbitration law of California and to the exclusive jurisdiction of the Arbitrator. Atkinson’s claim is therefore frivolous, vexatious and an abuse of process. Atkinson was informed and understood that the arbitration provision was a pre-requisite of the Employment Agreement and had made a conscious and informed decision to submit to the arbitration provision. Mr. Prasad cited Mr. Justice Inoke’s decision in the Lautoka High Court case of Quadrant Developments Fiji Limited v. Bruce William Davis and Ors. Civil Action No. 138 of 2009 to argue that the principle of non-est factum should not apply to Atkinson.

[40] Mr. Nandan acknowledges the authority of Quadrant Developments Fiji Limited v. Bruce. He submits that his client is not arguing non-est factum.

[41] Mr. Prasad argues that Atkinson cannot choose the provisions of the agreement that favours his case and disregard other provisions that do not. And because he had signed the Agreement without protest, rather than exercise his right not to, the whole Agreement in its totality must then bind Atkinson.

Conclusion on Want of Jurisdiction


[42] Fiji Courts have a solemn obligation to uphold a litigant’s right to invoke their jurisdiction in a case properly within their jurisdiction. The dispute between Atkinson and Namale is such a case. The Court’s jurisdiction is subject only to the doctrine of forum conveniens.

H. RES JUDICATA


[43] The underlying principle of the doctrine of res judicata is that there should be finality in litigation and that a person should not be vexed twice over in respect of the same matter. Mr. Justice Byrnes in Bidesi –v-Public Trustee of Fiji quoted the following passage of Millet J. in Crown Estate Commissioners v. Dorset County Council (1990) 1 ALL E.R., 19 at page 23:

"Res judicata is a special form of estoppel. It gives effect to the policy of the law that the parties to a judicial decision should not afterwards be allowed to relitigate the same question, even though the decision may be wrong. If it is wrong, it must be challenged by way of appeal or not at all. As between themselves, the parties are bound by the decision, and may neither relitigate the same cause of action nor reopen any issue which was an essential part of the decision." (my emphasis).


[44] Neither counsels had directed their minds as to whether the principles of res judicata can be applied by a local court vis a vis a foreign court decision on the same issues between the same parties.

[45] Mr. Prasad quotes various authorities (Trevor Robert Gallagher v. Allan Charles Newham and Anor (unreported Civil Action HBC No. 163 of 2004L); Yat Tung Investment Co. Ltd v. Dao Heng Bank Ltd. & Anr [1975] UKPC 6; [1975] A.C. 581 (an appeal from the Full Court of the Supreme Court of Hong Kong; House of Lords in Johnson v. Gore Wood & Co. [2001] 1 All E.R. 481; the High Court of Australia in Port of Melbourne Authority v. Anshun Pty Ltd [1981] HCA 45; [1981] 147 C.L.R 589; Halsbury’s Law of England Vol. 16 4th Ed. Para 1527). He submits that because the same issues[1] between the same parties have been resolved in Case No. 50 160 T 00164 08, and because Atkinson had not objected to or challenged the Arbitration Award within the appropriate time, the principle of res judicata must apply. Atkinson’s claim must therefore be struck out as being frivolous and vexatious and an abuse of process.

[46] I have not found any case authority squarely on the point.

[47] I believe though that it would be correct in principle to say that res judicata does not arise in respect of a judicial decision of another country. If a judicial decision of another country has determined certain issues between certain parties, a local Court faced with a pending action on the same issues between the same parties still has to consider whether the other court was indeed the more convenient forum. If it so considers, then the Court will simply refuse to invoke jurisdiction on that basis. Otherwise, the Court will have to exercise jurisdiction.

[48] I am of the view that the principles of res judicata is totally irrelevant in such proceedings. If it were otherwise, then it would totally preclude the Court from any inquiry as to which of the two is the more convenient forum.

[49] I must caution though that this is not to say that the principle of comity is irrelevant (see paragraphs 70(iii) and 73 below). It is relevant! It is though a totally different consideration from res judicata.

Conclusion on Res Judicata


[50] I conclude that if I were to apply res judicata now, it would unduly stifle my inquiry into the real issue in this case which, in my view, relates to forum conveniens.

I. FORUM CONVENIENS


[51] Until the middle of the 19th century, the law of the place where the contract was made decided whether a contract was valid. Then gradually, there was a shift towards applying the law of the place where the contract was performed. Eventually, a change in public policy towards laissez faire saw yet another shift towards freedom of contract. Out of this, was to emerge the principle that parties should be free to agree on the law/forum to govern their contract. Courts have since held that parties are bound by the law/forum they choose to govern their contract. Hence, an employer and his or her employee can execute in Fiji a contract of employment-in-Fiji and yet agree that New Zealand law shall apply in the interpretation of their contract (see for example Bramwell v. The Pacific Lumber Co Ltd [1986] NZHC 226; 1 PRNZ 307].


[52] However, Courts can still question any clause that stipulates such agreement and may still exercise jurisdiction in a case even if the parties have stipulated a foreign law/forum.


[53] Logically, the onus should rest on the party who seeks to derogate from the contract. However, this is not the case. The New Zealand High Court in Good Way Inc v Wassa International Co. Ltd and Anor HC AK CIV 2007-404-000634 [2008] NZHC 463 (8 April 2008) [recently applied by Mr. Justice Inoke in Quadrant Developments Fiji Limited v Bruce William Davis & Burrowes – Lautoka High Court Civil Action HBC 138 of 2009L], said as follows:


“In general, the burden of proof rests on the defendant to persuade the Court to exercise its discretion to grant a stay. 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” (my emphasis).


[54] Applying the above, Namale bears the burden[2] of persuading the Court that Fiji is not the natural or appropriate forum for the trial and also that the AAA in California was clearly or distinctly the more appropriate forum and that there is a strong connection with California.


[55] If the Court is satisfied that the country which is the more convenient forum is the one other than that named in the exclusive jurisdiction clause, then the Court will disregard the latter. In other words, the Court always prioritises the “convenience” factor over the exclusive jurisdiction clause (see Trendtex Trading Corp v. Credit Suisse [1982] AC 679 cited in Bramwell v. The Pacific Lumber Co Ltd [1986] NZHC 226; 1 PRNZ 307).


[56] In considering where convenience should lie, the Courts will balance the interests of the parties on the one hand and the ends of justice on the other. The parties respective expenses and where they reside or carry on business are factors relevant in this regard (see Viti Investors Ltd v Carpenters Fiji Ltd [1994] FJHC 98; HBC 0549D.91S (19 August 1994).


[57] Mr. Prasad for Namale argues it is too late in the day for Atkinson to be raising forum conveniens. He submits Atkinson should have raised the issue telephonically during the AAA proceedings or even in writing. Because Atkinson did nothing of the sort, he has “knowingly waived forum conveniens”.


[58] Prasad submits too that Namale’s principal place of business is in California. Also, most of its employees and representatives “who know of this matter” are based in California. He reasons that Atkinson knew of the telephonic conference facility in the AAA proceedings but did not utilise it. Atkinson did not have to travel to California. The ensuing AAA Award is, accordingly “final and incontestable”.


[59] In his Affidavit, Atkinson explained why he did not attend arbitration in California as follows:


(a) “it was too expensive for him to fly to California and pay for legal fees and accommodation fees for his solicitor, witnesses and himself.

(b) it would not have done him any justice to have my matter heard through Arbitration in California as the place of his employment was in Fiji and not California.

(c) he did not have a Visa to fly to California and it would be too expensive for him to apply for one on the sole basis of attending the Arbitration.

(d) it should be more convenient to have the matter heard in Fiji as this matter arose in Fiji, and parties that were present and most witnesses also resided in Fiji.

(e) he was advised by his solicitor that having the issue heard through Arbitration in California oustered the jurisdiction of the Fiji Courts. Its effect was to undermine the jurisdiction of the Courts of Fiji to handle such employment issues as his that arise within their jurisdiction.

(f) his Solicitor had also advised him that his employment contract and matters arising are subject to the laws of Fiji, not the State of California”.

[60] Atkinson submits that Arbitration in California “is” not the convenient forum. A Fiji Court, applying Fiji law, is more convenient because Namale is registered in Fiji under Fiji law and also because the employment contract was executed in Fiji. He emphasises that every alleged breach of contract happened in Fiji (i.e. the alleged repudiation by Namale and Namale’s allegations against him) all. Above all, the material witnesses are mostly (if not all) in Fiji.


[61] Atkinson adds that if Namale is successful in the Fiji Courts, it could still recover expenses. In contrast, if the case was litigated in the United States, Namale may still have to pay witnesses to come over from Fiji.


[62] Atkinson argues further that the only basis for the dispute being litigated in United States is the arbitration clause in the contract. Otherwise, all the factors favour Fiji and Fiji law as the more convenient forum.


Conclusion on forum conveniens


[63] The evidence suggests that Atkinson was advised by his lawyer not to participate in the “administrative telephonic conference” at the outset of the AAA proceedings.


[64] Does that then preclude Atkinson from raising forum conveniens now in Fiji as argued by Mr. Prasad?


[65] Mr. Prasad’s submission that Atkinson is so precluded conveniently overlooks the fact that the onus is on Namale not Atkinson to show forum conveniens/inconveniens (see paragraphs 53 and 54 above). Casting that burden on Namale is consistent in principle with the fundamental position that Fiji Courts have a solemn obligation to uphold a litigant’s right to invoke their jurisdiction in a case properly within their jurisdiction.


“The rule of law depends upon the existence and availability of courts and tribunals to which citizens may resort for the determination of differences between them which they cannot otherwise resolve” (as per Lord Bingham of Cornhill - Johnson (A.P.) v. Gore Wood & Co. (A Firm) – House of Lords 14 December 2000 as accessed through www.parliament.uk).


[66] The dispute between Atkinson and Namale is a case that is prima facie properly within the jurisdiction of the Fiji Courts. Namale must first convince this Court to not exercise jurisdiction even though the case is otherwise properly within its jurisdiction (rather than casting the burden on Atkinson to convince the Court to exercise jurisdiction notwithstanding the stipulated law/forum and the AAA Award already made). Namale must persuade this Court that the ouster and the exclusive jurisdiction clauses in the agreement favouring Californian law and the AAA proceedings in that State, and the fact that an award has already been made by the AAA – are strong enough reasons for any Court in Fiji to refuse to invoke its jurisdiction.


[67] It is a serious matter to deprive a person of access to the courts of law. After all, it is there that the rule of law is upheld. Hence, the burden is heavy on Namale. And at the end of the day, this Court is obliged to re-balance the interests of the parties on the one hand and the ends of justice on the other.


[68] And the fact that the AAA had made an award does not entangle this Court in the principles of res judicata as discussed above (see paragraphs 44 to 50 above).


[69] The authorities suggest that the balancing exercise must account for the following factors:


(i) which of the two Courts is the natural forum for the resolution of the dispute?

(ii) whether proceedings in the other forum was vexatious and/or oppressive[3]? Related to this is the concern against forum shopping, or picking a court merely to gain an advantage in the proceeding.

(iii) a consideration of comity and sensitivity to the foreign court to avoid a perception of interference in its processes.

(see Byrne J’s ruling in Mount Kasi Limited v. Range Resources Limited [1999] 45 FLR 161 where he succinctly discusses the relevant principles in the context of anti-suit injunctions).


[70] On paragraph 69(i) above, Wolf’s affidavit contains nothing that suggests that Fiji is not the natural forum. On the other hand, the reasons Atkinson gives[4] convince me that Fiji is the natural forum for the resolution of the dispute.


[71] On paragraph 69(ii), it is vexatious or oppressive for a party to seek to enforce a liability in a foreign court where that is not the natural forum for determining the issue in question (as per Brennan CJ (dissenting) in High Court of Australia in CSR v. Cigna Insurance Australia Limited (1997) 71 ALJR 1143.


[72] Therefore, having found in paragraph 70 above that Fiji is the natural forum, I am therefore naturally inclined towards the view that the proceedings in the AAA in California were vexatious or oppressive. Wolf’s Affidavit has done nothing to convince me otherwise. All he suggests is that that Atkinson could have participated in the telephonic conference and did not have to attend in person. Even so, his participation would have been relatively rather marginal compared to Namale’s whose representatives based in California attended the proceedings in person. To say the least, how was the AAA to assess the demeanour and credibility of a party who was not physically present before it?


[73] On paragraph 69 (iii), the House of Lords in Airbus Industries GIE v. Patel on the 2nd of April 1998 stated as a general rule that before an anti-suit injunction can properly be granted by an English Court to restrain a person from pursuing proceedings in a foreign jurisdiction, comity required that the English forum should have a sufficient interest in or connection with the matter in question to justify the indirect interference with the foreign court which an anti-suit injunction entails. In an alternative forum case this will involve consideration of whether the English Court is the natural forum for the resolution of the dispute (my emphasis - see also Byrne J’s discussion of this case in Mount Kasi Limited (supra). I have already stated above my reasons for holding that Fiji is the natural forum for determining the dispute in this case. To reiterate, my reasons are as follows: (i) Namale is a registered company in Fiji (ii) its business also is based in Fiji (iii) all the alleged breaches of contract by either party occurred in Fiji (iv) essentially, the allegations against Atkinson were on his different style of management and treatment of staff working under him who presumably were mostly (if not all) locals (v) these staff members would therefore be likely to be material witnesses as their account of the treatment they received under Atkinson would be crucial (vi) these witnesses would have to be subject to cross-examination to assess their credibility so the forum which is convenient for their physical attendance is to be preferred.


J. OUSTER OF COURTS JURISDICTION


[74] To reiterate, Fiji Courts have a solemn obligation to uphold a litigant’s right to invoke their jurisdiction in a case properly within their jurisdiction. At common law, it is also settled that a contract which ousters the jurisdiction of a court is contrary to public policy. The leading case on this statement is Scott v. Avery [1856] EngR 810; (1855) 5 HLC 811 where Baron Martin discussing public policy at page 830 said:


"The true ground I believe to be, that a prospective agreement not to have recourse to the courts of law or equity of the country in respect of future causes of action to arise, is against the liberty of the law, which secures to every one the right of submitting to the courts any matters in respect of which he claims redress".


[75] Coleridge J in the same case at page 841 said:


"[parties] cannot make it a binding term, that in such event no action shall be maintainable, but that the only remedy shall be by reference to arbitration..... The courts will not enforce or sanction an agreement which deprives the subject of that recourse to their jurisdiction, which has been considered a right inalienable even by the concurrent will of the parties. But nothing prevents parties from ascertaining and constituting as they please the cause of action which is to become the subject-matter of decision by the courts".


[76] Importantly, in Dobbs v. The National Bank of Australasia Limited [1935] HCA 49; [1935] 53 CLR 643, Rich, Dixon, Evatt and McTiernan JJ at pages 652-653 said:


"What no contract can do is to take from a party to whom a right actually accrues, whether ex contractu or otherwise, his power of invoking the jurisdiction of the Courts to enforce it."


[77] Their Honours also said, at page 652:


"No contractual provision which attempts to disable a party from resorting to the Courts of law was ever recognized as valid. It is not possible for a contract to create rights and at the same time to deny to the other party in whom they vest the right to invoke the jurisdiction of the Courts to enforce them".


[78] Moreover in Hi-Fert Pty Ltd & Anor v. Kuikiang Maritime Carriers Inc & Anor [1997] FCA 575 (30 June 1997) Tamberlin J said:


"The common law doctrine that the jurisdiction of the court should not be ousted is based on public policy that the access of citizens to the courts should be preserved. This public policy as applied by the courts overrides the intentions of the contracting parties who insist on such a provision in their contract".


[79] In The Fehmarn [1958] 1 All ER 333, a bill of lading that provided that disputes be adjudicated in the USSR. The trial Judge refused to stay English proceedings despite the exclusive jurisdiction clause in favour of the USSR Courts. The Court of Appeal upheld the trial judge. Denning LJ said at page 1662:


"One of the rules they apply is that a stipulation that all disputes shall be judged by the tribunals of a particular country is not absolutely binding. It is a matter to which the Courts of this country will pay much regard and to which they will normally give effect but it is subject to the overriding principle that no one by his private stipulation, can oust these Courts of their jurisdiction in a matter that properly belongs to them" (my emphasis)


[80] His Lordship also said:


I do not regard the choice of law in a contract as decisive. I prefer to look to see with what country the dispute is most closely concerned.....


[81] Having reviewed the principles in the above cases and the conclusions on forum conveniens (see above), I reject Mr. Prasad’s submissions that the arbitration clause in the employment contract favouring the United States validly ousters the jurisdiction of the Fijian Courts.


[82] I apply Denning LJ’s approach in The Fehmarn and hold that the mere fact that California law is the stipulated forum in Atkinson’s and Namale’s agreement is not decisive per se. The validity or otherwise of the stipulated forum is still subject to the Court’s scrutiny. I have scrutinised the stipulated forum[5]. And I have concluded that Fiji is the natural forum and is more closely concerned with the dispute at hand. That being so, the arbitration clause in so far as it stipulates an alternative forum is therefore contrary to public policy and illegal in its effect in ousting the jurisdiction of the Fiji Courts. I concur with Atkinson’s submission that the clause denies him his "inalienable right" which is protected under the rule of law. Its effect, in the circumstances of this case, is to stifle Atkinson and deprive him of a fair hearing.


K. SUMMARY DISMISSAL


[83] Atkinson submits that Namale had failed to follow the summary dismissal procedures as required by the Employment Act and as provided under the employment contract.


[84] That Atkinson was never given any prior notice from Namale before terminating his employment contract. He refers to various provisions on notice in the employment Contract and alleges that Namale had breached these.


[85] He also refers to section 28 of the Employment Act and also section 33 of the Employment Relations Promulgation 2007. I will not comment on these as these must form a major part of the substantive matter to be determined at trial.


L. CONCLUSION


[86] For the foregoing reasons, I decline the orders sought by the Defendant and order that it pays the Plaintiff $350-00 (three hundred and fifty dollars) costs within 14 days.


[87] The case is adjourned to 21st of February 2010 for mention before me.


.............................................................
Anare Tuilevuka
Master


22nd January 2010.

[1] See paragraph 32 above.

[2] Notably, in this case, it is Atkinson who has pleaded forum conveniens. That in my view does not necessarily shift the burden to him.

[3] “The reported decisions of the English, Canadian, US Circuit Courts and the Australian Courts leave no doubt that a court asked to grant anti-suit injunctive relief should be sensitive to the foreign court because of the possible perception of interference in that Court’s processes but reading the various authorities it seems that considerations of comity are relevant but are no more than a matter to be weighed by a trial judge in the overall exercise of his or her discretion”: as per Byrne J in Mount Kasi Limited v. Range Resources Limited [1999] 45 FLR 161.


[4] See paragraph 59 above.

[5] see paragraphs 63 to 73 above.

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