Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Naiduki v Gavoka [2009] FJHC 361; HBC250.2009 (30 September 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION HBC 250 OF 2009

BETWEEN:

SIMIONE NAIDUKI and TEVITA KANAILAGI
PLAINTIFFS

AND:

BILL GAVOKA and KENI DAKUIDREKETI
FIRST DEFENDANTS

AND:

RATU APENISA DERENALAGI and SIVA NAILAGO
SECOND DEFENDANTS

AND:

RATU JOPE SIGARUARUA and MANASA NAIDU
THIRD DEFENDANTS

Mr M A Khan for the Plaintiffs

RULING

This is an ex parte application brought by the Plaintiffs seeking an order restraining the second Defendants from playing the semi final match against Lautoka Rugby Union on 15 August 2009 until the final determination of the matter.

The application was dated 11 August 2009. In support of the application the Plaintiffs filed an affidavit sworn by Simione Naiduki on 11 August 2009.

The application came before me as a matter of urgency in the afternoon of 12 August 2009.

Having read the affidavit material and after hearing Counsel for the Plaintiff I indicated, with brief reasons, that the application for the injunction was refused. I also indicated that a written ruling would follow in due course.

The background may be stated briefly. The Nadi Rugby Union team (of which the Second Defendants are the President and Secretary respectively) was scheduled to play the Ovalau team (of which Union the Third Defendants are the President and Secretary respectively) at Nausau Park on Ovalau Island on 9 May 2009 in round 5 of the Digicel Cup Competition. Due to inclement weather the match was postponed to a later date by the Match Commissioner appointed by the Fiji Rugby Union (of which the First Defendants were the Chairman and the Acting Chief Executive Officer/Secretary respectively) on the advice of the First and Second Defendants.

At the conclusion of the final week of competition the Nadi and Ovalau teams were required to play their postponed game from round 5.

It should be noted that although there were 12 teams in the competition, only the top four teams played in the finals for the Digicel Cup. At the completion of the weekly competition the fourth position on the table was occupied by the Uprising Northland Rugby Union (of which the Plaintiffs were the Chairman and Secretary respectively) with 34 points and Nadi held fifth position with 32 points. Ovalau held eighth position with 18 points. It is clear that if Nadi defeated Ovalau in the postponed game it would secure fourth place with at least 36 points and thereby replace the Northland team which would slip to fifth place and miss the finals.

It would appear that the Second and Third Defendants reached an agreement that the postponed game would be played at Nadi on 1 August 2009 with the Ovalau Rugby Union having its expenses paid by the Nadi Union in addition to receiving the gate takings.

The Plaintiffs became aware of the arrangement as a result of a newspaper article on 28 July 2009. On the same day the Plaintiffs wrote to the First Defendants expressing the opposition of the Northland Union to the proposed fixture being played in Nadi. Shortly afterwards there was further correspondence. The basis of the Plaintiffs’ opposition was that the home ground advantage would benefit the Nadi Union. The Plaintiffs claimed that the game should be played at a neutral venue if it couldn’t be played at Nausau Park. The First Defendants declined to intervene.

The game went ahead on 1 August 2009 at Prince Charles Park in Nadi. Nadi defeated Ovalau 28 to 6 and jumped into the top four thereby securing a place in the semi finals. Given the result and their relative positions on the table there is no reason for assuming that the result would have been any different if the game had been played elsewhere.

The first semi final was played on 8 August and the second semi final involving the Nadi Union was scheduled for 15 August 2009.

The legal principles to be applied in an application such as the present are well established. The first test is whether the Plaintiffs claim gives rise to a serious question to be tried. The Court should satisfy itself that the claim is not frivolous or vexatious.

The Plaintiffs have commenced proceedings by way of Originating Summons dated 11 August 2009 seeking declarations concerning the arrangements for the game played on 1 August 2009 and the arrangements proposed for the second semi final game to be played on 15 August 2009.

I am satisfied that there is a serious question to be tried and that the Plaintiffs claim is not frivolous or vexatious. However I am not satisfied that the Plaintiffs will suffer irreparable harm in the event that the injunction is not granted. I am satisfied that damages would be an adequate remedy for the Plaintiffs.

However, if I am not correct in that conclusion, I am clearly of the view that the balance of convenience favours the Defendants. At this late stage with only three days to the scheduled semi final, all the necessary arrangements for such an event would be in place.

Furthermore, in view of the affidavit material I am not satisfied that the Plaintiffs undertaking as to damages is sufficient in the circumstances of this application.

For all of the above reasons the application is dismissed. Costs are costs in the cause.

W D Calanchini
JUDGE

30 September 2009
At Suva