Kaneta Foods Company Ltd v Tosa Bussan (Fiji) Ltd [2014] FJHC 80; Civil Action 86.2007 (20 February 2014)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action no. 86 of 2007

Between:

Kaneta Foods Company Limited
Plaintiff

And:

Tosa Bussan (Fiji) Limited
First Defendant

And:

Tosa Bussan Incorporation
Second Defendant

And:

Hiroshi Tokuhosha
Third Defendant

Appearances: Mr Shelvin Singh for the plaintiff
Mr H. Nagin for the defendant

Date of hearing: 19th August,2013

JUDGMENT

1. By summons dated 7 February,2013, the defendants seek leave to appeal from a decision of the Master delivered on 1st February,2011.The Master had dismissed an application filed by the defendant to strike out the plaintiff's writ of summons.
   
2. In an affidavit in support of the summons, the defendant states that the Master erred in holding that Fiji is a proper forum for the determination of the plaintiff's case, when the claim should have been filed in Japan. The notice and grounds of appeal are attached to the affidavit. The grounds of appeal read:
   
   1. The Learned Master erred in Law and in fact is not striking out or staying the Respondent's Claim for want of Jurisdiction when the transaction in question was done in Japan and was subject to Japanese Law.
      
   2. The Learned Master erred in law and in fact in not taking the Appellant's evidence and Submissions into consideration when the evidence and
      

Submissions made it clear that Respondent's Claim arose from the transactions which took place in Japan and all the dealings were done in Japanese Yen.

3. The Learned Master erred in Law and in fact in not taking into consideration that Fiji is not a proper forum for the Respondent's Claim. He further failed to properly take into account that there will be difficulties in getting witness from Japan which will be a costly and timely affair to have the Respondent's Claim tried in Fiji Courts.
   
4. The Learned Master erred in Law and in fact in not striking out the Claims against the Appellants for Want of Jurisdiction when the Respondent's Statement of Claim clearly stipulates that the contract between the Second Appellant and the Respondent and all the transactions took place in Japan.
   
5. The Learned Master erred in Law and in fact in making the following erroneous findings:-
   
   1. that the Third Appellant was based in Fiji when it was clear from the evidence that he was resident in Japan.
      
   2. that the Third Appellant made contradictory statements relating to payment of fish.
      
6. The Learned Master erred in Law and in fact in not finding that the contract for supply of fish was between the Respondent and the Second Appellant.
   
7. The Learned Master erred in Law and in fact in applying the case of Furuuchi Suisan Company Limited v Tokuhisa (2009) FJHC 194; Civil Action 95 of 2009 when the facts and matters in that case were entirely different and the application before the Court was different.
   
8. The Learned Master erred in Law and in fact in generalizing that Fiji Court have delivered on many case involving Japanese Litigants, witnesses and interpreters and failed to correctly apply the principles and law relating to forum conveniences.
   
3. The determination
   

3.1. The plaintiff commenced this action against the defendants by writ of summons on 2nd March,2007, claiming a sum of US$121,934.52.

3.2. On 12 April,2007, the defendants filed their statement of defence.

3.3. On 13 April,2007,the defendants filed summons for security for costs. On 23 July,2007, the plaintiff, by consent agreed to deposit a sum of $ 1500.

3.4. The defendants by notice of motion dated 8th October,2008, moved to strike out and/or permanently stay the plaintiff's claim on the ground that the claim should have been filed in Japan. The affidavit in support of the summons states that the contract was entered into between the plaintiff and the second defendant in Japan, not with the first defendant; all payments were made by the plaintiff to the first defendant in Japanese yen; the first defendant had a contract with the second defendant to supply fish.

3.5. At the hearing before me, Mr Nagin, counsel for the defendants, supported the application for leave to appeal. Mr Nagin urged his grounds of appeal. He argued that the transactions took place in Japan and were subject to Japanese law. The contract was between the plaintiff and the second defendant, not the first. The third defendant was resident in Japan.

3.6. The plaintiff's claim is for breach of contract against the first and second defendants for failure to supply fish to the plaintiff in Japan and for reimbursement of monies paid. The amended statement of claim avers that the first defendant,(a company incorporated in Fiji) was an agent of the second,(a company incorporated in Japan). Payments were paid to the bank accounts of the first and second defendants. It is further alleged that the third defendant,(the managing director and majority shareholder of the first and second defendant companies) authorized the first defendant's employees in Fiji to issue false invoices and shipping documents to deceive the plaintiff.

3.7. The first defendant, in its statement of defence contends that the first defendant did not enter into any direct arrangement with plaintiff to supply fish nor did it receive orders directly from plaintiff, but only from the second defendant. The third defendant, in its statement of defence while denying the claim states that the first defendant sold products on behalf of the first defendant.

3.8. In my view, the allegations in the statement of claim that (a)payments were made to the first defendant's account, (b) the first defendant was an agent of the second and (c) as to the third defendant's involvements, makes the Fiji Courts an appropriate forum.

3.9. In my view, the Master has correctly reasoned that the action may be tried in Fiji, since the first and third defendants are resident here.

3.10. The other matter that troubled the defendants, as set out in their third ground of appeal was the costs of bringing over the plaintiff's witnesses from Japan. The defendant has not established that all the plaintiff's witnesses are in Japan. The plaintiff in its submissions before the Master, states that only one witness would be required from Japan.

3.11. In this regard, I would refer to the judgment of Lord Diplock in MacShannon v Rockware Glass Ltd., (1978) AC 796 regarded as the locus classicus on the doctrine of forum conveniens, as referred to in the submissions filed on behalf of the defendants before the Master. In that case, the claim for damages for personal injuries sustained in the course of employment in a factory in Scotland. The plaintiffs lived in Scotland and so did all the witnesses, including the doctors who treated the injuries. In those circumstances, the defendants were held to have established that the only natural and appropriate forum was Scotland and not England, as chosen by the plaintiff. The In my judgment, the defendants in the present case have not established that the forum conveniens for the action is Japan.

3.12. I will not address the fifth and sixth grounds of appeal as they take issue with the Master making as well as not making findings of fact, neither of which he did or ought to do.

3.13. I do agree with Mr Nagin that the case of Furuuchi Suisan Company Limited v Tokuhisa, (2009) FJHC 194 as relied on by the Master does not apply. That case dealt with an application for security for costs. But that does not affect the Master's order.

3.14. In refusing this application for leave to appeal, I have considered the principles to be considered in an application for grant of leave to appeal against interlocutory orders, as set out in the following oft quoted passage from the judgment of Murphy J Niemann v Electronic Industries Ltd[1978] VicRp 44; , (1978) VR 431, at page 441:

(1) whether the issue raised is one of general importance or whether it simply depends upon the facts of the particular case;

(2) whether there are involved in the case difficult questions of law, upon which different views have been expressed from time to time or as to which he has been " sorely troubled";

(3) whether the order made has the effect of altering substantive rights of the parties or either of them; and

(4) that as a general rule there is a strong presumption against granting leave to appeal from interlocutory orders or judgments which do not either directly or by their practical effect finally determine any substantive rights of either party." (emphasis added)

3.15. In my judgment, the proposed grounds of appeal do not give rise to arguable legal issues of general importance nor "difficult questions of law, upon which different views have been expressed from time to time". Murphy J further stated that leave will not normally be granted, unless "it effect(s)a substantial injustice by its operation". Moreover, the substantive rights of the defendants have not been determined.

3.16. It is trite law to say that only in "the most exceptional circumstances", will leave be granted to appeal, from an interlocutory order. Sir Moti Tikaram, President, FCA in Totis Inc Spor (Fiji) Limited v John Leonard Clark,(Civil Appeal ABU0035 of 1996 S). I find there are no exceptional circumstances based on which leave to appeal can be granted.

3.17. At the hearing before me, Mr Shelvin Sing contended that the defendants have submitted to the jurisdiction of this court when they filed their statement of defence. He relied on Or 12, r 7. This provision requires a defendant who disputes jurisdiction to apply to court to set aside the writ or seek any of the orders mentioned therein;failing which, he is deemed to have submitted to the jurisdiction of the court. In my judgment the defendants have submitted to the jurisdiction.

3.18. Mr Nagin, in response, argued that this is a new matter and hence cannot be taken up in appeal. I disagree. Lord Watson, said in Connecticut Fire Insurance Co. v. Kavanagh ([1892] UKLawRpAC 39; 1892) AC 473 at pg 480:

When a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice, to entertain the plea.

3.19. In all the circumstances, I decline the application for leave.

4. Orders
   
   • (a) The application for leave to appeal is declined.
   • (b) The defendants shall pay the plaintiff cost summarily assessed in a sum of $ 2000.
     

20th February, 2014

A.L.B.Brito-Mutunayagam
Judge