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Deo v Patel [1993] FJHC 16; Hbc0282d.92s (19 February 1993)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 282 OF 1992

Between:

BENAI DEO
s/o Bissun Deo
Plaintiff

- and -

VINOD SHANKAR BHAI PATEL
s/o Shankar Bhai Patel
Defendant

Mr. V. Parmanandam for the Plaintiff
Mr. V. Maharaj for the Defendant

RULING

This is an 'opposed' application by the defendant pursuant to Order 12 r.7 of the High Court Rules for the transfer of the above action to the Lautoka High Court on the grounds inter alia that the defendant is resident in Ba, the cause of action (if any) arose in Ba and "... it would be inconvenient and expensive for the defendant, his counsel and witnesses to travel to Suva ..."

The plaintiff through his counsel seeks to oppose this application but no affidavit has been filed on his behalf which might assist the Court.

For instance nothing is known about what inconvenience or prejudice (if any) will be caused to the plaintiff by a transfer of his action nor of the nature of the evidence he may seek to lead or the location of the witnesse(s) (if any) that he may wish to call.

Indeed learned counsel for the plaintiff sought to 'explain' the plaintiff's reason for filing the action in Suva on the basis that there was no Rule or 'practice' preventing it and in any event the plaintiff now resides in Suva.

With respect I cannot accept that mere 'residency' is an adequate or sufficient criterion upon which this Court ought to exercise its discretion in the matter.

In my considered view the principles that guide the Court in the exercise of its discretion to transfer cases are conveniently set out in Halsbury's Laws of England (4th edition) Vol.37 at para.63 which reads:

"The Court's power to transfer proceedings from one Court to another is a useful corrective to ensure that proceedings, wherever begun or whatever forum the plaintiff has initially chosen, should be dealt with or heard or determined by the Court most appropriate or suitable for those proceedings ... the Court will have regard to the nature and character of the proceedings, the nature of the relief or remedy sought, the interests of the litigants and the more convenient administration of justice. It is a discretionary power which will be exercised having regard to all the circumstances of the case."

The plaintiff's claim may be shortly described as being one for arrears of salary and wages shortpaid over a 6 year period during which time he was employed as a 'Grant-in-Aid Clerical Assistant' (whatever that may entail) at A.D. Patel Memorial School in Ba.

Needless to say a cursory examination of the plaintiff's Statement of Claim would reveal that the plaintiff's 'cause of action' (if any) arose in Ba during his employment at a school situated in Ba and whilst he resided there.

The defendant for his part denies the plaintiff's claim and complains (with some justification) about its lack of 'particulars' and the absence of a 'cause of action'. He also denies that he is properly sued on behalf of the school and raises the Limitation Act (Cap.35) and 'laches' in his defence. These however are matters for the trial Court to consider.

Suffice it to say that in my view the defendant has established a prima facie case for the transfer of this action and in the exercise of the Court's discretion I hereby order that this action be forthwith transferred to the High Court, at Lautoka for continuation.

(D.V. Fatiaki)
JUDGE

At Suva
19th February, 1993.

HBC0282D.92S