Lowing v Howell [2015] FJHC 693; HBC154.2015 (11 September 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action HBC: 154 of 2015

BETWEEN:

PETER ALLAN LOWING of Unit 6.2, Fairfax Apartments, Hunter Street, Port Moresby, Papua New Guinea, Legal Practitioner.
PLAINTIFF/APPLICANT

AND:

PETER HOWELL of 30A Lynwood Avenue, Killara, New South Wales, Australia.
DEFENDANT/RESPONDENT

Counsel : Mr S Nandan with Ms S Tabuadua Seru for Plaintiff
Date of Hearing: 11 September 2015
Date of Ruling : 11 September 2015

RULING

1. Before me there are two ex parte summonses filed by the plaintiff. One seeks leave to issue proceedings and serve the same outside the jurisdiction of the court, another anti-suit injunction against the defendant. I will firstly deal with the summons seeking leave for service out of jurisdiction.
   

(1) Ex parte summons for leave to serve writ out of the jurisdiction

2. This is an ex-parte summons filed 10/9/15 seeking an order for service of the writ outside the jurisdiction ('the application').
   
3. The application seeks the following orders:
   
   1. The plaintiff be given leave to issue the Writ of Summons in the action herein against the Defendant;
      
   2. The plaintiff be given leave to serve the Defendant out of the jurisdiction at Shop 6, 43-49 Blaxland Road, Ryde, New South Wales 2112, Australia;
      
   100. The time for acknowledging service of the Writ of Summons by the Defendant be set at 42 days after the service of the Writ of Summons on the Defendant;
        
   4. Any other or further order that the court deems just and appropriate.
      
4. The application is supported by an affidavit sworn by Suzee Cheer ('SC') of Lowing Associates. That affidavit consists of scanned copy of Mr Peter Lowing's affidavit. An undertaking is given in the affidavit (SC's affidavit) that Mr Peter Lowing's original affidavit will be filed later on.
   
5. The application is made under Order 6, rules 6 &11 (1) & (2) of the High Court Rules 1988, as amended ('the HCR') and inherent jurisdiction of the court.
   
6. The HCR O.6, r.6 prohibits writ to be issued for service out of the jurisdiction without the leave of the court. However, this rule (O.6, r.6) will not apply if a claim made by a writ is one which by virtue of an enactment the High Court has power to hear and determine despite the defendant is not within the jurisdiction of the court or if the wrongful act, neglect or default giving rise to the claim did not take place within its jurisdiction.
   
7. As per the writ of summons, the wrongful act that giving rise to the claim did take place within the jurisdiction of this court. The plaintiff may apply for the leave of the court to serve the writ of summons out of the jurisdiction under O.6, r.6.
   
8. An application for leave to serve the writ of summons out of the jurisdiction must be made as required by the HCR O.11, r.2which provides that:
   

'Application for, and grant of, leave to serve writ out of jurisdiction (O.11, r.2)

i>2>2.-(1) An application for the grant of leave under rule 1(1) must be supported by an affidavit stating-

(a) the grounds on which the aaplication is made,

(b) that in the deponent'ief thef the plaintiff has a good cause of action,

(c) in what place or counte defe defendant is, obablybe found, andd

(d) where the application is made under rule 1(1e 1(1) (c), the grounds for the deponent'sef that there is between the plaintiff and the person on whon whom a writ has been served a real issue which the plaintiff may reasonask the Court to try.

(2) No such leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this Order.

(3) An order granting under rule 1 leave to serve a writ out of the jurisdiction must limit a time within which the defendant to be served must enter an appearance.'

Principles relating to service out of jurisdiction

9. Farwell LJ in The Hagen (1908-10) All ER 21, p.26 (HL) referred to the principles relevant to service out of jurisdiction as follows:
   

"The first principle was whether or not a foreigner who owes no allegiance to these courts, should be brought to this country to contest his rights, should be considered a very serious issue. The second principle was that if there was any doubt about the appropriate jurisdiction, that doubt ought to be resolved in favour of the foreigner. The third principle was that since an ex parte application was normally made for service out ofsdiction, the, the fullest disclosure was necessary, and failure to make a full disclosure would justify a discharge of the order."

10. Madam Justice Shameem cited the above case in Patel v Patel [1999] FJHC 171; HBC312.1999 (30 November 1999).
    

Consideration of Application

11. The supporting affidavit states the grounds on which the application is made. The plaintiff states in his affidavit that, the defendant is ordinarily resident in New South Wales, Australia and is residing at 30A Lynwood Avenue, Killara, New South Wales, Australia with his current wife. He also states that, the defendant owns and operates a law firm named Osborn Howell Pty Ltd, Lawyers and Conveyancers whose physical address is at Shop 6, 43-49 Blaxland Road (Cnr of Argyle Avenue), Ryde, NSW 2112, Australia.
    
12. With regard to the cause of action the plaintiff states in his affidavit that, in April 2014 the defendant executed an employment contract with him ('the Employment Contract) and in September 2014 the defendant terminated the Employment Contract. The Employment Contract appears to have been executed in Fiji. A dispute has arisen between the parties in relation to the Employment Contract. As such I am satisfied that there is between the plaintiff and defendant a real issue to be tried.
    
13. The alleged Employment Contract states under clause 14 that, 'this agreement is governed by the laws of Fiji. Each party irrevocably submits to the exclusive jurisdiction of the Courts of Fiji.'
    
14. Having perused the writ of summons, the supporting affidavit and documents annexed to that affidavit and submission advanced in court by counsel appearing for the plaintiff, I am satisfied that the defendant is the proper person for the purpose of this litigation and I am also satisfied that the plaintiff has proper cause of action against the defendant who is currently resident in Australia.
    
15. I therefore grant leave to issue proceedings and serve the writ of summons out of the jurisdiction by personal service. I so order as sought in the prayer (a), (b) &(c) of the application.
    

(2) Ex parte summons seeking anti-suit injunction

Introduction

16. This is an ex-parte summons filed 10 September 2015 seeking an anti-suit injunction against the defendant (the application).
    
17. By the application the plaintiff seek an anti-suit injunction restraining the defendant from continuing the foreign proceedings. The defendant has already taken out proceedings in Australia against the plaintiff for breach of the Employment Contract.
    
18. The application is supported by an affidavit sworn by Suzee Cheer of Lowing Associates. That affidavit consists of scanned copy of Mr Peter Lowing's (plaintiff's) affidavit. An undertaking is given in the affidavit of Suzee Sheer that Mr Peter Lowing's original affidavit will be filed later on.
    

Background

19. The statement of claim states:Plaintiff, Peter Allan Lowing is a legal practitioner in Papua New Guinea and Fiji. He is citizen of Fiji as well as Australia. He ordinarily resident in PNG. He is operating a law firm under the name and style of Lowing and Associates (the Firm). Peter Howell, the defendant is also a legal practitioner in Sydney, Australia and a barrister and solicitor admitted to the High Court of Fiji. He is a citizen of Australia and ordinarily resident in Australia. In March 2014 the plaintiff entered into a written contract with the defendant (the Employment Contract). The Employment Contract provided, inter alia, that the defendant would practise as barrister and solicitor and manage the Firm for a period of three years from the date of the defendant's arrival in Fiji (the Term). The defendant arrived in April 2014 to commence employment with the plaintiff at the Firm. Clause 14 of the Employment Contract states that, 'this agreement is governed by the laws of Fiji. Each party irrevocably submits to the exclusive jurisdiction of the Courts of Fiji.' In September 2014 the defendant terminated the Employment Contract, gave notice to the plaintiff that the defendant intended suing the plaintiff for damages for breach of the Employment Contract.
    

The Foreign Proceedings

20. In April 2015 the defendant issued proceedings being case number 2015/00113044 in the Local Court in New South Wales at Ryde (the Local Court) claiming breaches of the Employment Contract (the Foreign Proceedings).
    

Plaintiff's argument

21. At hearing, counsel appearing for the plaintiff argued that the Foreign Proceedings are not the correct forum for determining the dispute and that the choice of law and forum in the Employment Contract precludes the defendant from proceeding in New South Wales, Australia. He cited some case authorities namely: 1) Airbus Industrie G.I.E v Patel & Others ......, 2) CSR Limited v Cigna Insurance Australia Limited &Ors [1998] SydLawRw 8; (1998) 20 (1) Sydney Law Review 169; 3)Mount Kasi Ltd v Range Resources Ltd [1999] FJHC 83; Hbc01166j.99s (11 August 1999) & 4) Atkinson v Namale West Inc. [2010] FJHC 10; HBC166.2008 (22 January 2010).
    

Consideration of Application

22. The applicant applies for an anti-suit injunction to restrain the respondent from continuing to pursue the foreign proceedings which the respondent commenced in NSW claiming damages of $43,582.11 against the applicant.
    
23. The application is made as an urgent application pursuant to Order 29, rule 1 (2) of the High Court Rules 1988 as amended ('the HCR'). According to rule 1 (2), where the applicant is the plaintiff and the case is one of urgency and the delay caused by proceeding in the ordinary way would entail irreparable or serious mischief such application may be made ex parte.
    
24. In this case, the applicant is the plaintiff. So he is entitled to make an ex parte application for injunction if there is urgency and delay would defeat the action.
    
25. The basis of the application is that the respondent agreed to the exclusive jurisdiction of Fiji Court in the event thatdisputes arise in respect of the employment contract entered into between the applicant and the respondent.
    
26. I have carefully perused the employment contract and found out that that contract is unsigned and undated by the parties.
    

Forum Convenience:

27. The applicant is not resident in NSW. He is ordinarily resident in either Fiji or PNG. The respondent is ordinarily resident in NSW. In the circumstances, counsel for the applicant submitted that, the courts of Fiji is the Natural and appropriate forum for resolution of the disputes.
    
28. House of Lords in Airbus Industrie's case (supra) stated the principles which underlie of the English court's power to grant an anti-suit injunction as follows:
    

'In common law world, the situation is precisely the opposite. There is, so to speak, a jungle of separate, broadly based, jurisdictions all over the world. In England, for example, jurisdiction is founded on the presence of defendant within the jurisdiction, and in certain specified (but widely drawn) circumstances on a power to serve the defendant with process outside the jurisdiction. But the potential excesses of common law jurisdictions are generally curtailed by the adoption of the principle of forum non conveniens- - a self-denying ordinance under which the court will stay (or dismiss) proceedings in favour of another clearly more appropriate forum. This principle, which has no application as between states which are parties to the Brussels Convention, appears to have originated in Scotland (partly, perhaps, because of exorbitant Scottish jurisdiction founded upon arrestment of the defendant's goods in Scotland: see The Atlantic Star (1974) A.C. 436, 475F-G, per Lord Kibrandon), and to have been developed primarily in the United States; but, at least since the acceptance of the principle in England by your Lordship's House in Spiliada Maritime Corporation v. Cansulex Ltd. [1986] UKHL 10; (1987) A.C 460, it has become widely accepted throughout the common law world- -notably in New Zealand (see Club Maditteranee N.Z v. Wendell [1989] 1 N.Z.L.R. 216); in Australia, though in a modified form (see Voth v. Manildra Flour Mills Pty. Ltd. [1990] HCA 55; (1990) 65 A.L.J.R. 83); in Canada (see Amchem Products Inc. et al. v. Workers' Compensation Board et al. (1993) 102 D.L.R. (4th) 96); and in India, as is exemplified by the litigation in the present case. It is of interest that it also appears to have been adopted in Japan, a country whose system has been much influenced by German Law: see the article by Ellen Hayes in (1992) 26 U.B.C. Law Rew. 41,112. The principle is directed against cases being brought in inappropriate jurisdiction and so tends to ensure that, as between common law jurisdictions, cases will only be brought in a jurisdiction which is appropriate for their resolution. The purpose of the principle is therefore different from that which underlies the Brussels Convention. It cannot, and does not aim to, avoid all clashes between jurisdictions; indeed parallel proceedings in different jurisdictions are not of themselves regarded as unacceptable. In that sense the principle may be regarded as an imperfect weapon; but it is both flexible and practical and, where it is effective, it produces a result which is conducive to practical justice. It is however dependent on the voluntary adoption of the principle by the state in question; and, as the present case shows, if one state does not adopt the principle, the delicate balance which the universal adoption of the principle could achieve will to that extent break down.

It is at this point that, in the present context, the jurisdiction to grant anti-suit injunction becomes relevant. This jurisdiction has a long history, finding its origin in the grant of common injunctions by the English court of Chancery to restrain the pursuit of proceedings in the English courts of common law, thereby establishing the superiority of equity over the common law. In the course of the 19th century we can see the remedy of injunction being employed to restrain the pursuit of proceedings in other jurisdiction within the United Kingdom, and even other jurisdictions overseas. The principles upon which the jurisdiction may be exercise have recently been examined and restated by the Privy Council in Aerospatiale [1987] A.C.871, and it is therefore unnecessary for me to restate in this judgment. I wish to record however that the principles there stated have found broad acceptance in the Supreme Court of Canada (see the Amchem Products case (1993) 102 D.L.R. (4th) 96, in which the judgment of the court was delivered by Sopinka, J.) and High Court of Australia (see the judgment of the majority of the Court in CSR Ltd. v. Cigna Insurance Australia Ltd. and others (1997) 146 A.L.R. 402); and a similar jurisdiction is exercised by the Indian High courts, as the present litigation shows. The broad principle underlying the jurisdiction is that it is to be exercised when the ends of justice require it. Generally speaking, this may occur when the foreign proceedings are vexatious and oppressive. Historically, these terms have different meanings (see Aerospatiale at pp. 893B-E and 893H-894G); but in the Amchem Products case at p. 119 Sopinka, J expressed a preference for a formulation of the principle based simply on the ends of justice, without reference to vexation or oppression. But, as was stressed in Aerospatiale (see, in particular, p.895D-H), in exercising the jurisdiction regard must be had to comity, and so the jurisdiction is one which must be exercised with caution: (see P. 892E-F). This aspect of the jurisdiction has been stressed both by the Supreme Court of Canada (see the Amchem Products case (1993) 102 D.L.R (4th) 96, pp.120-121, per Sopinka J.) and by the High Court of Australia (see the CSR Ltd. case (1997) 146 A.L.R.402, 436), and it is, in my opinion, of particular relevance in the present case.

I must stress again that, as between common law jurisdictions, there is no system as such, comparable to that enshrined in the Brussels Convention. The basic principle is that each jurisdiction is independent. There is therefore, as I have said, no embargo on concurrent proceedings in the same matter in more than one jurisdiction. There are simply these two weapons, a stay (or dismissal) of proceedings and anti-suit injunction. Moreover, each of these has its limitations. The former depends on its voluntary adoption by the state in question, and the latter is inhibited by respect for comity. It follows that, although the availability of these two weapons should ensure that practical justice is achieved in most cases, this may not always be possible.'

29. Byrne, J., applying the above principles in Mount Kasi Ltdcase (supra) granted an anti-suit injunction against the defendant restraining from continuing foreign proceedings initiated in the Supreme Court of Western Australia against the plaintiff. Byrne, J found in that case Fiji Court was the natural forum for the resolution of the dispute, for the plaintiff was the registered company in Fiji; that its business also was in Fiji; that the decision of this court approving the scheme of arrangement had not been appealed by the defendant and the defendant had not served on the plaintiff either an intention to defend or defence.
    
30. Turning back to the matter at hand, the plaintiff seeks an anti-suit injunction against the defendant to restrain him from continuing the foreign proceedings he has commenced in NSW, Australia against the plaintiff. The plaintiff's application is primarily based on the employment contract entered between the plaintiff and the defendant. The plaintiff relies on Clause 14 which under heading 'GOVENING LAW AND JURISDICTION'states that, 'This agreement is governed by the laws of Fiji. Each party irrevocably submits to the exclusive jurisdiction of the Court of Fiji.'
    
31. On the other hand, the defendant has commenced foreign proceedings on the basis that he entered into a written agreement with the plaintiff on 30 March 2014 in Sydney. The plaintiff has filed a notice of motion in the foreign proceedings seeking an order for permanent stay.
    
32. It is of interest that the defendant (plaintiff in the foreign proceedings) under para 8 of his amended statement of claim filed in the foreign proceedings states that, on 12 September 2014 at a meeting between the plaintiff and the defendant, the defendant (plaintiff here) agreed and warranted to the plaintiff to pay all and any amounts and entitlements owing to the plaintiff in Sydney and the plaintiff accepted this oral representation as either a novation or collateral oral warranty in addition and in variation to the Employment Contract.
    
33. In seeking the ex parte injunction, the plaintiff relies on an undated and unsigned Employment Contract. The court cannot issue any ex-parte injunction relaying on the unexecuted document. In the absence of legally executed document the plaintiff cannot say the defendant agreed to the exclusive jurisdiction of Fiji Court.
    
34. The plaintiff in this case fails to establish that the foreign proceedings commenced by the defendant in Sydney are vexatious or oppressive. The plaintiff only states that the foreign proceedings will cost him more.
    
35. The defendant instituted the foreign proceedings on 26 June 2015.On 24 July 2015 through his solicitor the plaintiff has made an application for an order for permanent stay. The application for anti-suit injunction in this court is made on 10 September 2015.I cannot see any urgency in this matter to grant ex parte anti-suit injunction against the defendant.
    

Conclusion

36. The court may grant anti-suit injunction to meet ends of justice. The jurisdiction to grant such injunction must be exercised cautiously in appropriate cases, especially when the foreign proceedings are vexatious and oppressive.The defendant had commenced foreign proceedings against the plaintiff on the basis of the Employment Contract entered into between the parties on 30 March 2014 plus subsequent promise given on 12 September 2014 to the defendant by the plaintiff to pay all and any amounts and entitlement owing to the defendant in Sydney. The plaintiff just relying on the undated and unsigned document to obtain anti-suit injunction against the defendant. The plaintiff has made an application in the foreign court through his solicitor for an order for permanent stay of the proceedings. The plaintiff is currently resident in PNG. He is citizen of Fiji and Australia. The defendant is resident in Australia. The plaintiff fails to satisfy me that the foreign proceedings are vexatious and oppressive. Moreover, the plaintiff also fails to satisfy that there is urgency for him to apply forex parte injunction. In the circumstances, I refuse to issue anti-suit injunction against the defendant to restrain him from continuing to pursue the foreign proceedings being case number 2015/0011344 in the local court of Ryde in NSW, Australia.
    

Final outcome
Ex parte application filed by the plaintiff seeking anti-suit injunction is refused.

M H Mohamed Ajmeer
JUDGE

At Lautoka
11.9.2015