IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. 59 OF 1998
IN THE MTHE MATTER
of the RECIPROCAL ENFORCEMENT OF JUDGMENTS ACT, Cap. 39.
AND
IN THE MATTER
of a Judgment of the Family Court of Australia obtained in
Action No. SY 10523/95 by KIM RANIGA (Applicant) and
DINESH RANIGA (Respondent) dated 5th August 1997.
Mr eef for the AppliApplicant
Dr. S. Sahu Khan for the Respondent
JUDGMENT
By a summons DINESH RANIGA JAMNADASS (the 'respondent') seeks an order rder that the Registration of judgment of the Family Court of Australia at Sydney in New South Wales (the "judgment") dated 5 August 1997 and registered as a judgment in the High Court of Fiji on 30 January 1998 be set aside.
In support of the summons the respondent has filed an affidavit sworn by him on 27 February 1998. After numerous adjournments the
matter came before me for hearing on 8 March 1999.
Background Facts
Under the Reciprocal Enforcement of Judgments Act Cap 39 ("Cap. 39"), KIM RANIGA (the 'applicant') had by ex-parte Originating Summons dated 27 January 1998 applied to this Court for the registration of the said judgment under
which it was adjudicated, inter alia, that the respondent pay the applicant the sum of A$300,000 and costs (vide Annexure "A" to affidavit of applicant's solicitor sworn 27 January 1998).
It is stated in the said affidavit, inter alia, that by way of part satisfaction of the judgment the respondent had already paid the
applicant the sum of A$35,240.01 and that the judgment is still unsatisfied to the extent of A$264,759.99. The applicant believes that the respondent is presently in Suva, Fiji and resides at 44 Knolly Street.
On 30 January 1998 on the said application ex parte it was ordered by this Court that the judgment be registered under Cap. 39 and
as required thereunder "Notice of Registration of Judgment" was ordered to be served on the respondent giving him 21 days from the date of service upon him of the Order to apply to this
Court to set aside the registration.
Accordingly, the respondent makes the present application for my consideration.
Apart from oral submissions from both counsel, I have before me:
(a) the said affidavit of Mr Shazran Lateef (counsel for the applicant) sworn 27 January 1998 in support of ex parte originating summons
for the registration of the judgment under Cap. 39,
(b) the said affidavit of the respondent sworn 25 February 1998 in support of the present application to set aside,
(c) Mr Lateef's affidavit in Reply sworn 5 August 1998,
(d) an application of the respondent sworn 11 August 1998, (e) Affidavit in Reply by Mr S Lateef sworn 14 August 1998 and (f) a further
affidavit of the respondent sworn 30 September 1998.
Grounds of setting aside
The grounds upon which the application is made are as stated in item 4 of respondent's said affidavit of 25 February and which are as follows:
(a) The Family Court in Australia is not a Court to which the Reciprocal Enforcement of Judgment Act applies.
(b) The Family Court of Australia acted without jurisdiction.
(c) The respondent neither carries on business in Australia nor ordinarily resides within the jurisdiction of the Family Court of
Australia and did not voluntarily appear or otherwise submit or agree to submit to the jurisdiction of that Court.
(d) That the Judgment was in respect of a cause of action which for reason of public policy and other reasons following should not
have been entertained by this Honourable Court.
Some of the matters to which I should advert to and which were raised in the respondent's affidavit are: his denial of having paid
the applicant the said sum of A$35,240.01; the respondent was divorced in Fiji in 1995 and he remarried in 1996; he was born in Fiji
and still lives here except for intermittent absences in 1987 and 1988; in 1995 the applicant commenced proceedings in the Family
Court of Australia and this involved Fiji properties situated in Vatuwaqa and Knolly Street in Suva which she did not claim in the
divorce action in Fiji against the respondent; and that the valuation of the properties and the bank account are not only over stated
but are also false.
Applicant counsel's submission
The applicant counsel's affidavit of 27 January 1998 refers to payment of A$35,240.01. Mr Lateef says that the Family Court of Australia (the 'FCA') is a Court of unlimited jurisdiction and therefore a superior Court and a judgment of that Court is registrable in Fiji pursuant to Cap. 39. He says that FCA has jurisdiction to adjudicate upon all
matters relating to matrimonial issues and property distribution pertaining to breakdown of marriage.
He goes on to say that the respondent voluntarily submitted to the jurisdiction of the FCA and instructed solicitors to appear on
his behalf.
Respondent counsel's submission
In reply to Mr Lateef the respondent in his affidavit sworn 11 August 1998 stated, inter alia, that the judgment is not registrable
under the Act. He further says that an application was on 22 July 1998 made on his behalf in FCA to have the judgment subject to the application set aside. At the time of the hearing this application Mr Lateef said that the solicitors
for the applicant have not been served with the application referred to hereabove to which the respondent replied that his application
has been adjourned for mention on 20 November 1998.
Dr Sahu Khan submitted that it is in breach of the provisions of Or. 41 r9 (2) of the High Court Rules for Mr Shazran Lateef to have sworn the affidavits herein on behalf of the applicant (vide Ba Town Council v Fiji Broadcasting Commission & Others 22 F.L.R. 91). He said that this rule is mandatory.
Determination of the issue
Factual situation:
The salient facts pertaining to the case are that the parties were divorced in Fiji by the Ba Magistrate's Court (Action No. 95/95)
in late November when on 19 October 1995 Decree Nisi was pronounced and an order was made that there be Decree Absolute in 28 days
and no order as to costs.
In the divorce proceedings in Fiji there was no order for property settlement nor was there any claim for it. All the respondent's
properties are in Fiji but he disputes the values attached to them by the applicant. He says that all the other items such as furniture
and jewellery etc. were sent to the applicant when she left him.
The respondent wishes to point out that he was born in Fiji and in his own words 'always resided in Fiji except for a period of about 18 months in 1987 and 1988 and since 1989 I have continuously resided in Fiji
and have no ties or connection as such with Australia and in particular since 1989 not resided in Australia at all and/or carried
on business in Australia'.
In his affidavit sworn 11 August 1998 the respondent states that the judgment entered against him is being set aside in Australia.
Application was filed on 22 July 1998. At the time of the hearing herein before me the outcome was not known to the respondent. However,
on 17 September 1999 by consent an Order herein made in the Family Court of Australia dated 29 March 1999 was filed by the applicant into this Court but there were no further
submissions before me. The Orders read as follows:-
1. That the husband's Form 7 s. 79A Application filed on 22 July 1998 as amended by his Amended s. 79A Application filed on 19 October
1998 is struck out.
2. That the wife's costs are reserved.
3. That a sealed copy of these orders be served as soon as possible by express overseas pre-paid post to the husband care of PO Box
661 Suva, Fiji.
4. That all applications are removed from the Pending Cases List.
According to the said orders it appears that the respondent's application to set aside was struck out. The position therefore is that
there is still this present application before me for my determination.
Applicability of Cap. 39
This application by way of summons has to be considered in the light of the provisions of the Reciprocal Enforcement of Judgments Act Cap. 39 (hereafter referred to as "Cap. 39") and the Foreign Judgments (Reciprocal Enforcement) Act Cap. 40 (hereafter referred to as "Cap. 40").
Dr. Sahu Khan's objection that the affidavit in support of the application is defective because it has not been sworn by the applicant
herself is rejected as devoid of merits. However, if leave of Court is necessary under Or 41 r9(2) it is hereby granted.
Section 6 of Cap. 40 sets out the 'cases' in which registered judgments must or may be set aside and some of these grounds have been stated
hereabove by the respondent.
There is one very valid and pertinent point which Dr. Sahu Khan makes and which arises out of the applicant's "Application Initiating Proceedings" (Form 7) in the FCA.
The point that he makes is that in items 3.4 and 3.5 of Form 7 which call for answers the applicant has stated 'N/A' (meaning not applicable). In 3.4 it states "The marriage was dissolved by the Court at on " and 3.5 states "The marriage
still subsists". This form is Annexure 'B' to affidavit of respondent sworn 25 February 1998.
The said answer 'N/A', I agree with Dr. Sahu Khan, cannot be correct in the light of the fact that the parties had already been divorced
in Fiji. As Dr. Sahu Khan maintains it was on the basis of that alleged incorrect answer that the applicant sought orders referred
to on page 3 of the said Form No. 7. Then again on page 5 under item 7 'other Proceedings' the answer given in 7.1(a) with reference to 'Operative Orders' is 'NIL' thereby not divulging that the parties are divorced.
There is one other point that Dr. Sahu Khan makes and it is this that there is no response from the applicants to items 8, 9 and 10 to annexure 'c' being affidavit of the respondent in regard to settlement of property:
As submitted by Dr. Sahu Khan there is no reply to the abovementioned points made by him. The applicant has certainly given wrong
information or omitted to give true information regarding her marriage. On the basis of the said information or omission the applicant
obtained an Order in the Family Court of Australia which on an ex parte application she registered in Fiji and which is now being
applied to be set aside by the respondent .
As far as the first two grounds (supra) of the application are concerned I hold that the FCA had jurisdiction to entertain the application
from the applicant and that Cap. 39 is applicable to FCA.
The argument has been put forward by Dr. Sahu Khan that FCA is not a "Superior Court of Record" for Cap. 39 to be applicable to it. Mr. Lateef refutes this.
The laws governing the enforcement of foreign judgments are contained in the Foreign Judgments (Reciprocal Enforcement) Act Cap. 40 Laws of Fiji Vol 3 (under which the judgment was registered).
The application of Cap. 39 and Cap. 40 had been dealt with at length by me on 9 December 1994 in Civil. Action No. 57/93 between DAVID HOUSTON STEWART AND KEVIN RAYMOND MIEKLE particularly in relation to what is a 'superior court'.
Under the Family Court Act of Australia 1977 it is stated in Part IV of the Act in section 21 under the caption "Creation of Court" that "Court is a superior court of record".
For ease of reference I give below what I said in Stewart (supra) in respect of the applicability of Cap. 39 and Cap. 40 and the meaning of "superior court".
Under Cap. 40 there is provision for enforcement of foreign judgments. The Preamble states:
"An Act to make provision for the enforcement in Fiji of judgments given in foreign countries which accord reciprocal treatment
to judgments given in Fiji, for facilitating the enforcement in foreign countries of judgments given in Fiji and for other purposes
in connection with the matters aforesaid."
Whereas Preamble to CAP 39 states:
"An Act to facilitate the reciprocal enforcement of judgments and awards in the United Kingdom and Fiji".
It is pertinent to note that there is no subsidiary legislation under Cap. 40 except in one respect, namely, that it sets out the
application of Part II of the Act (which refers to registration of foreign judgment) to various countries and the Courts to which
it applies. Whereas there are rules governing CAP. 39.
To complete the picture of the law and the rules applicable it is important that I state here Order 71 of our HIGH COURT RULES which is particularly applicable to the application before the Court and which is as follows:
"1 The Reciprocal Enforcement of Judgments Rules made under the Reciprocal Enforcement of Judgments Act (Cap. 39) shall apply with necessary modifications, to proceedings, under the Foreign Judgments (Reciprocal Enforcement) Act (CAP. 40)".
In CAP. 40, pursuant to the provisions of s9(1) which provides as follows, in PART 11 under the caption "Registration of Foreign Judgments" there is power to extend Part 11 to foreign countries giving reciprocal treatment:
"9. - (1) the Governor-General may by proclamation direct that this Part shall apply to any country or territory of the Commonwealth
outside Fiji and to judgments obtained in the courts of such countries or territories as it applies to foreign countries and judgments
obtained in the courts of foreign countries, and, in the event of the Governor-General so directing, this Act shall have effect accordingly
and the Reciprocal Enforcement of Judgments Act shall cease to have effect except in relation to those parts of such countries and territories to which it extends at the date of
the proclamation."
Although the judgment is registered under Cap. 40 and New South Wales is not listed at all under Part 11 of Cap. 40, nevertheless, in my view, since the provisions of section 7(1) of Cap. 39 which is as follows, can be applied and New
South Wales is listed therein as a country to which Cap. 39 extends, a judgment of the Superior Court of that country could be registered:
"7. - (1) Where the Governor-General is satisfied that reciprocal provisions have been made by the legislature of any other country
or territory of the Commonwealth outside the United Kingdom for the enforcement within such country or territory of judgments obtained
in the Supreme Court of Fiji the Governor-General may by order declare that this Act shall extend to judgments obtained in a superior
court in that country or territory in like manner as it extends to judgments obtained in a superior court in the United Kingdom and
on any such order being made this Act shall extend accordingly."
(underlining mine for emphasis)
Section 6 of Cap. 40 contains provisions relating to cases in which registered judgments must or may set aside. As far as the respondent
is concerned it is now s.6(1)(a)(ii) & (v) that he is applying which is (c) and (d) of grounds referred to hereabove. The said
section 6 in so far as it is relevant is as follows:
"6(1) On an application in that behalf duly made by any party against whom a registered judgment may be enforced, the registration
of the judgment -
(a) shall be set aside if the registering court is satisfied -
(i) .....
(ii) that the courts of the country of the original court had no jurisdiction in the circumstances of the case; or
(iii) .....
(iv) .....
(v) that the enforcement of the judgment would be contrary to public policy in the country of the registering court; or
(vi) .....
(vii) .....
To be registrable under Cap. 40 the judgment has to be one of a "superior court" for it is provided in section 3 of Cap. 40 that:
"3. - (1) the Governor-General, if he is satisfied that, in the event of the benefits conferred by this Part being extended to
judgments given in the superior courts of any foreign country, substantial reciprocity of treatment will be assured as respects the
enforcement in that foreign country of judgments given in the Supreme Court, may by proclamation direct -
(a) that this Part shall extend to that foreign country; and
(b) that such courts of that foreign country as are specified in the proclamation shall be deemed superior courts of that country
for the purposes of this Part."
Applicability of law to facts of this case
Dr. Sahu Khan submits that the judgment cannot be registered because it is against "public policy" and he relies in this
regard on section 3(2)(f) of Cap. 39 which provides that "No judgment shall be ordered to be registered with this section if ... (f) the judgment was in respect of a cause of action
which for reasons of public policy or for some other similar reason could not have been entertained by the registering Court". Dr. Sahu Khan submits that the applicant could not have brought the action for property settlement as the parties were already divorced
in 1995 and this fact was not disclosed in Form No. 7. Hence when the applicant had applied for property settlement in Australia
she had already been divorced.
Dr. Sahu Khan further argues that there is no reply to the said items 8, 9 and 10 of respondent's affidavit sworn 15 September 1995
(annexure 'c' to affidavit of respondent sworn 25 February 1990). These items read as follows:
8. THAT when the Respondent had deserted me she had asked for a Matrimonial Settlement and I paid her the sum of $27,500 [TWENTY SEVEN THOUSAND AND FIVE HUNDRED DOLLARS]
9. THAT on payment of the said sum she had undertaken and/or agreed that she would finalise these proceedings herein prior to leaving the
country.
10. THAT in breach of the agreement and/or understanding the Respondent, I verily believe left Fiji and I am not aware of her exact address.
The question of estoppel arises in such a situation as this. There is a conflict between a foreign judgment and the earlier judgment
of this forum (Fiji) on the same matter, namely, divorce between the same parties. This forum naturally will prefer to uphold its
own judgment or order (Vervacke v Smith [1983] 1 A.C. 145).
On the above principle namely res judicata the applicant (wife) is estopped from raising again in the Family Court of Australia, a
course of action regarding matrimonial property settlement which had been earlier obtained at the Ba Magistrates Court in Fiji. 'Forum
shopping' to overturn an earlier decision cannot be permitted (vide E.D. & F. Man (Sugar) Ltd v Yani Haryanto (No. 2) [1991] 1 Lloyd's Rep. 429).
Therefore the applicant who is seeking enforcement of the foreign judgment is estopped from relying on it.
On the question of FCA's jurisdiction on the respondent on the facts before me I find that the Court had jurisdiction. He was properly
served with papers in Australia which he admitted in his affidavit. The respondent did voluntarily submit to the jurisdiction through
his legal representative in Australia.
Conclusion
To sum up, since the parties had been divorced in Fiji and decree absolute had been made, that brings to an end to divorce proceedings.
No further action can be brought on these proceedings either by the applicant or the respondent. In this regard section 81 of the
Matrimonial Causes Act Cap. 58 is pertinent which provides:
"81. For the purposes of this Part, where a decree nisi has been made in any proceedings, the proceedings shall not be taken to have been finally disposed of until the decree nisi has become absolute." (emphasis mine)
Not only that, no action pertaining to property settlement can be made as borne out by section 55(3)(b) of Cap. 58 which provides:
"(3) Proceedings of a kind referred to in paragraph (c) of the definition of "matrimonial cause" in subsection (1)
of section 2 that are in relation to proceedings under this Act for a decree or declaration of a kind referred to in paragraph (a)
or (b) of that definition-
(a) may be instituted by the same petition as that by which the proceedings for that decree or declaration are instituted; and
(b) except as permitted by the rules or by leave of the court, shall not be instituted in any other manner. (Amended by Act 6 of 1982,
s.26)."
The applicant could not possibly have instituted proceedings in the Family Court of Australia but she did. This action on her part
is nothing short of attempting to have a second bite at the cherry in another jurisdiction and this is contrary to law. There was
some form of property settlement at the initiative of the respondent but the applicant maintained complete silence in this regard
and goes ahead and misleads the Family Court of Australia by holding back relevant information when answering the said questions
3.4, 3.5 and 7.1(a) in Form 7. When the decree nisi was not challenged it became absolute and which rendered such decree or judgment
final and conclusive (vide s6(1)(b) of Cap. 40). For this reason the FCA judgment should be set aside.
For these reasons the application to set aside the judgment registered under Cap. 40 on 30 January 1999 is granted with costs in the
sum of $400.00.
D. Pathik
JUDGE
At Suva
19 November 1999
Hbc0059d.98s
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