Rotomould (Pacific) Ltd v Singh [2023] TOSC 28; CV 1 of 2023 (3 May 2023)

IN THE SUPREME COURT OF TONGA

CIVIL JURISDICTION

NUKU’ALOFA REGISTRY

CV 1 of 2023

BETWEEN:

ROTOMOULD (PACIFIC) LTD

Plaintiff

-and-

ASNEET SINGH

Defendant

ORDER STAYING THE PROCEEDING

BEFORE: LORD CHIEF JUSTICE WHITTEN KC

Appearances: Mrs F. Faanunu for the Plaintiff

No appearance by the Defendant

Date: 3 May 2023

1. The Plaintiff company is registered in Tonga. It is part of the Rotomould Group of Companies which is based in Fiji.
2. On 21 December 2022, Mrs Faanunu, counsel for the Plaintiff, filed the Writ and Statement of Claim herein. In essence, the Plaintiff claims the sum of TOP$8,814.54 from the Defendant, a former employee, being the balance owing under a loan agreement initially entered into on 19 July 2019 in Tonga (arising from damage caused by the Defendant to the Plaintiff’s motor vehicle in Tonga) and then replaced with a new agreement in Fiji dated 12 December 2022.
3. By his defence filed on 18 April 2023, the Defendant does not appear to deny the claim as pleaded. However, he alleges, relevantly and in summary, that:
   • (a) on 8 February 2020, he was "systematically removed" from Tonga to return to work for the Plaintiff in Fiji, where he continued to make repayments on the loan agreement;
   • (b) on 31 March 2020, after Covid lockdowns had commenced, he was ordered by the Plaintiff to take leave without pay; and
   • (c) on 18 August 2020, the Plaintiff gave him notice that he had been made redundant, without providing any compensation or redundancy payment commensurate with his years of service, thereby leaving him without income by which to continue repaying the loan.
4. On 21 April 2023, I directed that a notice of listing be issued for the first directions hearing of the matter to be held on 3 May 2023 and for the Plaintiff to serve the notice of listing on the Defendant in Fiji, with permission for him to appear by AVL. A certificate of service has since been filed evidencing that the notice of listing was served on the Defendant on 26 April 2023.
5. When the matter was called today for its first directions hearing, two officers of the Plaintiff company appeared by AVL from Fiji. The Defendant did not appear. Instead, a man by the name of Rohid Pillay, who described himself as a friend of the Defendant, stated that he had been asked by the Defendant to appear on his behalf. No other explanation was given for the Defendant’s failure to appear.
6. I then raised two issues with Mrs Faanunu.
7. The first was why the claim had been issued in the Supreme Court when the quantum of it was less than the $10,000 civil jurisdictional limit of the Magistrates Court. Mrs Faanunu submitted that:
   • (a) Section 4 of the Supreme Court Act provides, relevantly, that the Supreme Court shall have jurisdiction to hear any proceedings, other than proceedings which (a) are excluded from the jurisdiction of the Supreme Court by the Act of Constitution of Tonga; or (b) by law, are within the exclusive jurisdiction of another court or tribunal. That did not provide an answer to the question of whether the Supreme Court was the appropriate forum for the claim.
   • (b) Any Magistrates Court Proceedings and decision would be in the Tonga language which would make registration of any judgment in Fiji difficult. In my view, translation of any such Order would not materially prejudice the Plaintiff’s intended course.
   • (c) In relation to the Plaintiff wanting to have any Tongan court order registered in Fiji, Mrs Faanunu was not able to identify whether or not an order of the Tongan Magistrates Court could be registered in Fiji. Sections 3 and 9 of the Fijian Foreign Judgments (Reciprocal Enforcement) Act operate to effect that only judgments of the Supreme Court of Tonga may be registered.
8. The second issue was whether, in the relevant circumstances, Tonga is an appropriate forum in which to pursue the claim.
9. Relevantly, and as confirmed by the Plaintiffs’ representatives, the Defendant is resident in Fiji; the directors of the Plaintiff are based in Fiji; the second loan agreement upon which the claim is brought was entered into in Fiji; and the alleged breach of the loan repayment obligations, giving rise to the cause of action, occurred in Fiji.
10. Mrs Faanunu explained that the Plaintiff had received legal advice in Fiji that because the motor vehicle accident occurred in Tonga, a Fijian court would not have jurisdiction in respect of the claim. However, and with respect, that advice overlooks the fact that the Plaintiff does not sue for damages for the motor vehicle, rather on the loan agreement. As such, any cause of action associated with the motor vehicle merged in the loan agreement.
11. Otherwise, there was no suggestion that, in the circumstances, the Fiji courts would not have jurisdiction to hear and determine the Plaintiff’s contract claim or that there might be any material or prejudicial difference in the applicable law or rules of procedure compared to Tonga given that both jurisdictions are based on the English common-law.
12. Further, the purported counterclaim articulated by the Defendant in his defence, which appears to amount to a form of unfair dismissal claim, may well be subject to the relevant employment laws of Fiji.
13. Having regard to the principles of forum non conveniens as discussed recently in H&M Imports v Dateline Transam Ltd [2022] TOSC 53,^[1] the features of the action and the parties to it as described above lead to the irresistible conclusion that the dispute has its closest connection to Fiji and that the courts of Fiji are a clearly and distinctly more appropriate forum than the Supreme Court of Tonga.
14. Accordingly, I order that the proceeding be stayed.
15. The file will now be closed.
    

NUKU’ALOFA	M. H. Whitten KC
3 May 2023	LORD CHIEF JUSTICE

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^[1] Applying Spiliada Maritime Corp. v Cansulex Ltd [1986] UKHL 10, [1987] AC 460; Voth v Manildra Flour Mills [1990] HCA 55; (1990) 171 CLR 538; Wolf v Strauss [2011] TOCA 4; Brownlie v FS Cairo (Nile Plaza) LLC [2022] 2 All ER (Comm) 1, [2021] UKSC 45.