IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0259 OF 2005

BETWEEN:

WESTERN PACIFIC FISHERIES CORPORATION
Plaintiff

AND:

BP (SOUTH WEST PACIFIC) LIMITED
1st Defendant

ISIRELI TUIFUA FA
2nd Defendant

Counsel: Mr. Savou – for Plaintiff
Mr. Fa – for Defendant

Date of Hearing: 4th July, 2005
Date of Judgment: 19th July, 2005

JUDGMENT

Background

The plaintiff ship owner alleges that the first defendant Chemical Company (“BP”) unlawfully detained its ship under a FIFA Writ executed by the sheriff at Suva.

The same parties settled a related action (Suva HBC0356.2004) which resulted in the release of the subject vessel. The plaintiffs are of the view that this settlement did not preclude them pursuing damages flowing from the unlawful execution of that writ.

The two counsel appearing on that earlier matter appeared before me on the subject motion. The added difference being that counsel for BP was now a second defendant in these proceedings. It is his summons that is the subject of this judgment. He applies to have himself removed as a party to the proceeding and for the claim against him to be struck out.

Decision

This matter was argued before me last Friday afternoon and adjourned part-heard at a point where I indicated a firm view that the 2nd defendant should be removed as the pleadings contained no real cause of action against him and did not engage him in any meaningful way.

Further the second defendant advised the court that he would be raising on behalf of his client BP a defence of satisfaction and accord. It being alleged that the two counsel involved had compromised their clients case by settlement of the earlier action (0356.2004) upon the basis that there would be no further claims for the arrest or detention of the subject vessel.

If that were the case then it is quite clear that original counsel in those earlier proceedings could not act in any subsequent damages claim as they would be required by their respective clients to be witnesses in their cause. 

The matter resumed on Monday morning. However, counsel for the plaintiff could not obtain instructions from his client to effect a settlement removing the 2nd defendant from the proceedings and required this ruling.

The case against the 2nd defendant is contained in paragraphs 5, 6 and 7 of the Statement of Claim. Those pleadings read:

5.	On 22nd October 2004 the second defendant acting for the first defendant filed a Writ of Fieri Facias against the vessel whereupon the Sheriff of the High Court at Suva levied execution processes on the vessel which was then berthed in the Port of Suva.

6.	On 4th November 2004 the plaintiff notified the second defendant that the vessel belonged to the plaintiff and that it is a Panamanian registered and flagged vessel.

7.	Despite being notified of the status of the vessel the first and second defendants refused to withdraw their Writ of Fieri Facias which refusal caused the Sheriff to notify the Port Master by letter dated 10th November 2004 not to permit the vessel to leave Fiji waters.

I have repeated these paragraphs in my judgment to demonstrate that the pleadings do not engage the 2nd defendant in any meaningful way at all. When pressed about this matter counsel for the plaintiff was unable to indicate any real amendment he could make to the proceedings that could plead a proper cause of action against the 2nd defendant. That is not meant as a criticism of this counsel. It is merely a reflection of the true factual matrix which in this case would make it virtually impossible for such a cause of action to be sustained against the solicitor 2nd defendant.

It must be remembered that the 2nd defendant acted on his clients instructions and pursued a debt against a ship by the issuing of a FI FA. For various reasons explained in the earlier case he believed that he could not proceed against the ship by admiralty proceedings in REM. The plaintiff if it wishes to pursue the 2nd defendant can only do so upon the basis of some economic tort properly pleaded. However, the facts of the case clearly do not afford the plaintiff the benefit of such a pleading.

Accordingly, there being no cause of action properly pleaded the 2nd defendant’s application must succeed and I order that the writ of summons and statement of claim filed by the plaintiff in this matter on the 2nd of June 2005 against the 2nd defendant be struck out.

The summons seeks an additional remedy that I order the 2nd defendant as being improperly joined as a party to this proceeding. As I have struck out the claim against the 2nd defendant there is no need for me to make such an order. 

The second defendant has been put to the expense of bringing a summons. It is successful. He is entitled to costs which I fix at the global sum of $500.00 to cover both fees and disbursements.

I also note that as I was the Judge for the related action (Suva Case HBC0356.2004) that settled it would be inappropriate for me to hear this substantive case particularly if satisfaction and accorded is pleaded. Accordingly I direct the Registry to reassign this file to a new judge for hearing.

Gerard Winter
JUDGE

At Suva
19th July, 2005