IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 569 OF 2005

Between:

TAURUS SHIPPING COMPANY LIMITED
Plaintiff

- and –

VISTA FISHERIES LIMITED
1st Defendant

Counsel: Mr. V. Kapadia for Plaintiff
Mr. S.F. Koya for 1st Defendant
2nd and 3rd Defendants not present, but aware of application

Date of Hearing: 27th January, 2006
Date of Ruling: 30th January, 2006

RULING ON APPLICATION TO VACATE TRIAL DATES

On the 26th of January the first defendants, Vista Fisheries Limited (Vista) filed application for “an order that trial date set on 1st, 2nd and 3rd February 2006 pursuant to the order made on 2nd December 2005 for the substantial matter be vacated and a new trial date be assigned”. And the cost of this application be cost in the cause.

The application was supported by the affidavit of Mesake Cokanauto also filed on 26th January.

This action, 0569 of 2005 has been consolidated with action 0501 of 2005. Both actions concern the fishing vessel the M.V. Rosalina and several previous rulings have been made in this case.

Counsel for Visa advanced a number of reason why he said a trial date should be vacated. First he stated that he had only been instructed on behalf of Vista Fisheries on the 19th of January. This was a complex matter and the time allowed was simply too short to prepare the case. He cited article 27/3 of the Constitution “Civil Actions must be decided within a reasonable time” (check). He stated reasonable their not only means without too much delay but also with sufficient time to prepare the case.

Counsel for Vista also stated that the defence on behalf of the third defendant, Fiji Island Maritime and Safety Administration (FIMSA) had only been served on 25th of January. This was outside the time set in the timetable order for filing of this defence. Further, he stated that Vista had every intention of filing third party proceedings against FIMSA, particularly given the nature of their defence. FIMSA in their defence had accepted a company Trustinvest (Fiji) Limited (check) had erroneously been entered on the shipping register as the owners of the M.V. Rosalina. It appears to be common ground amongst all parties that the ownership of the vessel was purportedly transferred from Trustinvest to Vista and thence to Fishinvest (Fiji) Limited (Fishinvest). Mr. Koya stated that Vista were ready to defend the action against Taurus Shipping Company Limited (Taurus) but not ready for their third party action against FIMSA. He then said they were ready against Taurus but not 100%.

Mr. Koya argued that cases in the past, trial dates in the past have been vacated as a result of the change of solicitors and that was important in this case. Initially in argument he said further time required was some one or two months, but later in argument stated that he would probably be only require three to four weeks.

The application was opposed by Taurus. Counsel, Mr. Kapadia, stated that Vista were served on the 28th of November and the trial dates were set on the 2nd of December. The two directors and the only two shareholders in Vista and Fishinvest are the same two people. The consolidated action commenced in 5th of October (check) with Fishinvest bringing proceedings against Taurus. He says that the action of Fishinvest and the consolidated action of Taurus are identical in their subject matter. The issues have already been canvassed in that case.

Further, he states that it was the same lawyer who acted for Fishinvest and Vista from the very start of the proceedings up until the 19th of January. Given the fact it was same lawyer, the same directors and the same shareholders there can have been little surprises in this matter. He further pointed out that it was at the main instigation of Fishinvest that an early trial date was set, the usual procedures truncated or dispensed with and an early trial date set. He said it was the constant refrain of affidavits of Fishinvest that money was being lost while the vessel was tied up awaiting the resolution of this dispute.

Further, Mr. Kapadia added that given the circumstances it did raise real questions as to what the motives were when counsel on behalf of Fishinvest, Mr. Savou stated before this application that Fishinvest had no objection to the application of Vista to vacate the trial dates. He pointed out that this runs completely contrary to their stance up to this point.

Mr. Kapadia added that Vista was served on the 28th of November, the timetable order was set on the 2nd of December and it was not until a month and half later that it was decided that by the directors of Vista that they should have separate representation for that company.

Counsel for Taurus further argued that there witnesses had just arrived in the country from Russia. They had been working to ensure they were ready for the 1st of February. That Vista had known of these proceedings since 28th of November and their counsel from then until the 19th of January had been ceased of all the relevant issues and material since October when the Fishinvest action was commenced. Further, he argued that whether or not FIMSA’s defence was late given what was disclosed in all their affidavits upto the 28th of November, particularly the signed memorandum of FIMSA accepting their mistake which was already on the affidavits, that a third party action by Vista against FIMSA must always have been in contemplation. This would be so whether or not FIMSA formerly admitted its error or not.

Mr. Kapadia also argued that the only relief that Vista would be seeking against FIMSA would be one of damages, that could be sought as a later part of the action after the trial of the 1st of February without any detriment to Vista. There is therefore no need on this and all the other arguments for this trial date of the 1st of February to be vacated.

I have reviewed the arguments of both parties in this case immediately after those arguments and gave my decision orally on 27th of January. That decision was that the trial date would not be vacated. I then stated that written reasons would be given on the 30th of January and these are those written reasons.

This course was taken so that all parties would know before the weekend whether or not the action was going ahead and necessarily what they should be doing over the weekend.

This case has come to trial along with action 0501/05 in a very short time. In the case of 0501 within four months of filing and 0569 in two months. I do not find this is inordinately fast or unreasonable given the nature of the issues in dispute, the witnesses and documents required for a new trial. Further, it must be emphasised that it was Fishinvest that persistently requested a trial as quickly as possible.

Fishinvest and Vista have been represented by the same lawyer until the 19th of January. This is highly important in deciding this application. The issues and facts are coextensive for both companies, the witnesses and material is the same. It is pertinent to mention that all the directors and shareholders of Vista and Fishinvest are the same people.

From the time of service to the time of trial is some two months. That is not an unreasonably short period of time given the issues in this case and the material and witnesses required for the trial. 

Further, any third party action which Vista might have against FIMSA in my judgment is put at no disadvantage by being heard after the principle action on the 1st of February. Whilst not prejudging the claim it would appear that it will be only one for damages and that FIMSA is not a body that is going to vanish or go into liquidation over night.

For these reasons this application is dismissed. I award the costs of this application to Taurus for a sum to be assessed having heard the parties.

(R.J. Coventry)
JUDGE