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Bolatini v Fiji Forest Industries Ltd [1991] FJHC 54; Hbc0416d.89s (9 September 1991)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 416 OF 1989

BETWEEN:

KELERA BOLATINI
Plaintiff

AND

FIJI FOREST INDUSTRIES LIMITED
Defendant

Mr. A. R. Matebalavu: For the Plaintiff
Mr. V. Maharaj: For the Defendant

Date of Hearing: 29th May 1991
Date of Ruling: 9th September 1991

RULING

I regret the delay in giving this Ruling, due to my unfortunate failure to recall that I was presently seized of this matter.

The Statement of Claim endorsed on the Writ herein which was issued on the 14th November 1989 claims the sum on behalf of the Plaintiff of $55,909.75 being the alleged loss and damage suffered by the Plaintiff as a result of illegal logging carried out over a Native Lease owned by the Defendant or its agents particulars of which are said to have been given to the Defendant and which are detailed in the Statement of Claim. I observe that as it stands the Statement of Claim offends one of the basic rules of pleading in that it does not state any date or dates in which the Plaintiff's loss and damage is said to have been sustained but this may of course be remedied later.

The Statement of Defence which was delivered on the 15th of December 1989, is a general denial of the Plaintiff's claim both as to her ownership of the Native Lease and as to any damage alleged by the Plaintiff. There is a further allegation that the Plaintiff is guilty of laches.

Presently before me is a Notice of Motion issued on the 25th of September 1990 by the Solicitor for the Defendant seeking an order that the venue of the hearing of this action be changed from Suva to Labasa on the grounds contained in the Affidavit of Abdul Hafiz who is the Accountant for the Defendant. Mr. Hafiz requests that the matter be transferred to Labasa because:

(i) The Defendant Company is resident in Labasa and carries on business there;

(ii) Although the Plaintiff is said to reside in Suva the land which is the subject matter of the claim is situate in Cakaudrove on the Island of Vanua Levu;

(iii) That any witnesses which the Plaintiff may have to call include the Forestry Officer at Labasa who are all resident at Labasa;

(iv) That the Defendant intends to call several witnesses all of whom live at Labasa;

(v) That the Defendant's Counsel also is based and practises at Labasa;

(vi) That the cause of Action arises on the Island of Vanua Levu and not in Viti Levu;

(vii) That there are High Court sittings held regularly in Labasa and it is:-

(a) More expedient to hold the trial in Labasa;

(b) Less expensive to hold the trial in Labasa;

(c) More convenient for witnesses to attend the Labasa Court and;

(d) Easier to obtain an early hearing date.

In reply to the Affidavit of Mr. Hafiz the Plaintiff states that she is the Lessee of the relevant land; that for the purposes of prosecuting her claim she proposes to adduce both oral and documentary evidence also by Officers employed in the Ministry of Forestry and who are based in the Central Division at Nausori and Suva. She now resides with her family in Lami and is employed in the Ministry of Health at Navua in the Central Division. She will also require her husband, Ropate Bolatini, who resides with her and is employed in the Central Division at Navua, to give evidence. Finally she says that it is convenient for her as a Plaintiff, for the Witnesses that she is to call and for her Counsel that this Action be heard in the High Court in Suva.

The application is made under Order 33, rule 4 of the Rules of this Court and now Order 33 is silent as to the guidelines governing the most appropriate place of trial. However the former rule 10 provided some guide about the place of trial and laid it down that the Court should "have regard to the convenience of the parties and their witnesses and the date at which the trial can take place." This is still a useful indication. In my own experience the practice of the Courts in Australia and Papua New Guinea has always been that, all other things being equal the Plaintiff normally has the right to choose the place of trial, except in actions involving the recovery of land. As I said recently in Action No. 167 of 1991, Plantation Village Limited v. Stampede Company Limited in a Ruling delivered on the 19th July 1991, it is well established law that generally, unless there are special considerations to the contrary, the most appropriate place for such actions is in the Court for the District in which the land is situate. This is not such a case.

In my view both the Plaintiff and the Defendant have witnesses residing in the area of the High Court in Suva and Labasa but on the present material I can see no reason why, in accordance with the practice I have known, the Plaintiff should not be allowed to choose the place of trial.

As to the claim on behalf of the Defendant that it would be easier to obtain an early hearing date in Labasa rather than Suva, first, there is no evidence before me of this and secondly, my inquiries from the Chief Registrar here suggest that this is not true and that the case is just as likely to be heard comparatively early in Suva as in Labasa where I understand no definite dates for Civil sittings for the rest of the year have been decided.

I therefore reject the application and order that this case remain for hearing in Suva. I should point out to the parties the concluding phrase in Order 33 rule 4(1). If there should be any material change in the location of the parties so that most of the witnesses eventually are in Labasa then further application can be made to the Court for directions.

John E. Byrne
J U D G E

HBC0416D.89S