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Fiji Law Reports |
HIGH COURT OF FIJI ISLANDS
MOUNT KASI LIMITED
v
RANGE RESOURCES LIMITED
[HIGH COURT, 1999 (Byrne J) 11 August]
Civil Jurisdiction
Conflict of laws- anti suit injunction- principles governing.
The High Court of Fiji sanctioned a scheme of compromise between the Plaintiff and its unsecured creditors, one of whom was the Defendant.
The Court rejected the Defendant’s claim that it was entitled to a charge. Subsequently the Defendant renewed its claim for
a charge in the Supreme Court of Western Australia. The Plaintiff sought an order preventing the Defendant from furthering its claim.
The High Court explained the law and practice of anti-suit injunctions. It HELD: that in the circumstances of the case the High Court
of Fiji was the natural forum for the resolution of the dispute and accordingly an injunction would be granted.
Cases cited:
Carr>Carron Iron Co. v. Maclaren (1855) 5 HLC
CSR >CSR Ltd. v. Cigna Insurance Australia Limited CSCSR Ltd. v. New Zealand Insurance Company Limitedd (1994) 36R 138.
E>Ellerman Lines Ltd. v. Read ef="http:/paclii.org.vu/cgiu/cgi-bin/LawCite?cit=%5b1928%5d28%5d%202%20KB%20144" title="View LawCite Record">[1928] 2 KB 144
&
Iocutory applicatiication in the High Court.
R.A. Smit for tfor the Plae Plaintiff
No Appearance for the Defendant
Byrne J:
e before me a Notice ofce of Motion by the Plaintiff for leave to enter judgment st thendant and for anor an injunction restraining
the Defendantndant by itself, its servants or agents from continuing Civil Action No. 2063 of 1998 in the Supreme Court of Western
Australia against the Plaintiff and an order for costs of this application.
The aation which appearppears to be the first of its kind in Fiji seeks what is now called an “anti-suit injunction” and
derstand the present proceedings it is necessary to refer first to the history of this liti litigation.
The Writ of Summn this this action was issued on the 9th of April 1999 and was served on the Defendant on the 12th of April in Perth.
The Statemf Claim alleges that the Plaintiff is a Company duly incorporated under the laws of Fiji anji and having its registered
office in Suva. It carries on the business of gold mining and exploration and has a mine on the island of Vanua Levu.
The Defends a Company iany incorporated in the Commonwealth of Australia and is an unsecured creditor of the Plaintiff.
As a t of cial difficulficulties the Plaintiff proposed a scheme of compromise with its unsecureecured creditors pursuant to Section
208 o Companies Act Cap0;Cap. 240.
;
On 1>On 14th October 1998 this Court ordered a meeting of the Plaintiff’s unsecured creditors to be held on the 29th of October
1998 for the purpose nsidering, and if thought fit, approving the scheme. The Dehe Defendant was invited to the meeting and was represented
at it but refrained from taking part in the voting.
The remainingcured cred creditors at the meeting unanimously approved the scheme.
On 10th November 19e Plhe Plaintiff petitioned the High Court for sanction of this scheme. The Defendant oppose petition by Summons
seekiseeking
On 23rd December 1998 I delivered an oral judgment and found that there was no obligation upon the Plaintiff to execute a charge in
favour of the Defendant. I dismissed the Defendant’s application and sanctione scheme.
On 11On 11th Fey 1999 t999 the Defendant lodged a proof of debt with the Scheme Administrators pursuant to the scheme without prejudice
to any rights it might have.
Thendant has continued nued the Western Australia proceedings against the Plaintiff seeking orders to the effect inter alia>that the the Plaintiff execute a charge in favour of the dant.
The Stat Statement of Claim then alleges that the Defendant intends, unless restrained from doing so to continue tstern Australia
proceedingsdings against the Plaintiff.
In thcumstances the Plae Plaintiff alleges that the Defendant’s actions are an interference with the jurisdiction of the High
Court of Fiji and/or are frivolous and vexatious.
Thintifrefore claims anms an s an injunction restraining the Defendant from continuing the Western Australia proceedings against the
Plff and costs of the action.
There has been no appeal by the Defendant against my judgmendgment of 23rd December 1998.
From oregoing it is cles clear first that the Plaintiff hasf has a registered office in Fiji; secondly that it has a goldmine in Fiji,
thirdly that the Defendant attended the meeting of creditors and fourthly that a proof of debt has been submitted under protest.
I do not propose to riner in any detail to the reasons given in my judgment of the 23rd of December 1998 but I discussed the submissions
that had been made to me and my reasons for accepting and rejecting them. Ho two of my findings are rele relevant to the present
application. The first was that in the circumstances there was no obligation upon the Plaintiff to execute a charge and that, accordingly,
specific performance could not be ordered against the Plaintiff. I also found that Range Resources had taken no legal steps to enforce
its alleged right for 8 years, during which the Plaintiff continued to trade, became insolvent and proposed a scheme of compromise
to its unsecured creditors which scheme had been unanimously approved. In the circumstances, I found Range Resources guilty oflaches.
In making my findon then the law I express my thanks to counsel for the Plaintiff for his very helpful submis and references to two
Law Journals one of which, the Aust Australian Law Journal, is available in the High Court Library but the other, International Litigation
News is not. These two Journals contain a helpful summary of the history and case law on this subject. In particular the July 1998
issue of International Litigation News refers to a recent decision of the High Court of Australia - CSR v. Cigna Insurance Australia Limited reported in7) 71 ALJR 1143,1143, the judgment of the Court being delivered on the 5th of August 1997. The International Litigation
News refers both to this decision and a very recent decision of the HousLords in Airbus Inds Industri v. E v. Patel in which on td of April 199l 1998 the House of Lords overturned the decision of the Court of Appeal and discharged an injunction
granted by that Court restraining proceedings brought in Texas arising out o crash of an Indian Airlinerlines jet in India. I shall
refer to both these cases shortly but here state that the Plaintiff brings its present application under Order 13(6), Order 19(7)
and Order 65(9) of the High Court Rules, the application of which it contends relieves the Plaintiff from complying with Order 32(3)
of the rules. I set out these rules hereunder:
Order 13(6tes:
 
“(1)e a writ writ is indorsed with a claim of a description not mentioned in rules 1 to 4 then,ny defendant fails to give notice of intention to defend, the plaintiff may, after the pres prescribed time and, if that defendant has not acknowledged service, upon filing an affidavit proving service of the writ on him and, where the statement of claim was not indorsed on or served with the writ, upon serving a statement of claim on him, proceed with the action as if that defendant had given notice of intention to defend.
(2) ; Where a writ issued againagainst a defendant is endorsed as aforesaid, but by reason of the defendant’s satisfying the claim or complying with the demands thereof or any other like reat hasme unnecessary fory for ther the plaintiff to proceed with the action, then, if the defendant fails to give notice of intention to defend, the plaintiff may, after the prescribed time, enter judgment with the leave of the Court against that defendant for costs.
(3) & An application for leave eave to enter judgment under paragraph (2) shall be by summons which must, unless the Court otherwise
orders, and notwithstanding anything in Order 65, rule 9, be served on the defendant against whom it is sought to enter judgment.”
Rules 1-4 of Order 1er efer to claims for a liquidated demand, unliquidated damages, detention of goods and possession of land.
Order 19(7) so far as r as relevant:
“(1) ; 160; Where taintiffntiff miff makes against a defendant or defendants a claim of a description not mentioned in rules
2 to 5, thenthe dant o the defendants (where there is more than onan one) fails or fail to serve a defence once on then the plaintiff,
the plaintiff may, after the expiration of the period fixed by or under these Rules for service of the defence, apply to the Court
for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his
statement of claim.”
Andrule 3 reads:
&;An application unon under paragraph (1) must be by summons or motion.”
Order 65(9in these term terms:
“There doubtdoubt as toas to the power of the Court of Chancery ttrain persons within its juts jurisdiction from instituting
or prosecuting suits in foreign courts, wherever the circumstances of the make such an interpositionition necessary or expedient.
The Court acts in personam, and will not suffer anyone within its reach to do what is contrary to its notions of equity, merely because
the act to be done may be, in point of locality, beyond its jurisdiction.”
An injunctiongranted toed to restrain the enforcement of the judgment not merely in England but anywhere in the world. Atkin L.J.
said:
“If the English Court finds that a person subject to its jurisdiction has committed a breach of covenant, or has acted in breach
of some fiduciary duty or has in any way violated the principles of equity andcience, and that it would buld be inequitable on his
part to seek to enforce a judgment obtained in breach of such obligations, it will restrain him, not by issuing an edict to the foreign
Court, but by saying that he is in conscience bound not to enforce that judgment or commence or maintain proceedings.”
The Courts have eschewed attempts to categorise the cases or circumstances in which anti-suit injunctions may be granted - Aerospatiale [1987] UKPC 12; [1987] AC 871 at 892 but thisions show thow that suit f has been granted (a) in equity’s exclusivlusive jure jurisdiction or (b) in its auxiliary
jurisdiction.
In additas wahasised byed by the High Court of Australia in
In order to wt the gran grant of an anti-suit injunction in the exclusive jurisdiction it will be generally necessary to demonstrate
that the institution or maintenance of the foreign suit was or is vexatir oppressive.
;
The ccement of prof proceedings in a forum having little or no connection with the subject matter of the dispute is generally regarded
as an indication of vexatiousness or oppression whether subjectively intended or as a necessary consequence of such proceeding -
Aerospatiale at 894.
The rule of comity in the grant of anti-suit injunction
The reported decisionthof the English, Canadian, US Circuit Courts and the Australian Courts leave no doubt thaturt asked to grant
anti-suit injunctive relief should be sebe sensitive to the foreign court because of the possible perception of interference in that
Court’s processes but reading the various authorities it seems that considerations of comity are relevant but are no more than
a matter to be weighed by a trial judge in the overall exercise of his or her discretion.
Referes made in bothth CSR v. Ciu> andd Airbus tious Canadian and US authoauthorities among them the decision of the Supreme Court of Canada in A Products Inc. v. WorkeWorkers Coms Compensation Board (1993CR 897 ich i held prio prior rior to thto the loce local court entertaining an application for anti-suit relief it was “preferable”
as being “nant with the principles of comity” that the Applicanlicant for such relief should first have sought a stay
or termination of the foreign proceedings from the foreign court but this decision has been criticised in an article “The Anti-suit
Injunction” in 71 ALJR in December 1997 by Dr. Andrew S. Bell and Mr. Justin Gleeson who appeared as junior counsel for the
Respondents in CSR Ltd. v. Cignurance Ance Australia Ltd. The authors argue that the “preferable course” stated in Amchem was based uponjor and untesuntested assumption, namely that the foreign court would be insulted if proceedings pending before it
are restrained. They say that this assumption has been and should be questioned, especially in circumstances where the court issuing
the injunction makes plain the reasons for its decision, focusing as they must on the Defendant’s unconscionable conduct, and
the basis for the grant of the relief entails no criticism of the foreign court. In this proposition they cite two American cases
and one New South Wales case CS. v. New Zealand InsurInsurance Company Limited (1994) 36 NS38. They also also argue that
The High in CSCSR v. Cigna didadopt the Amchemmchemroachroach. The majority judgment declined to adopt theAmchem approach as a general rule and indicateportain my in the present case, that Amchem has0;has no application where the foreigoreign proceedings clearly constitute condntitling the Applicant to equitable relief or where
the inje injunction is sought to protect the integrity of the local proceedings or theesses of the local court.
The majority judgment recognised that where the anti-suit injunction is sought to protect the proceedings or processes of the local
court no question arises whether that court is an appropriate forum for the resolutiothe issue: it is the only cnly court with any
interest in the matter. The majority also confirmed that an anti-suit injunction should be used sparingly having regard to considerations
of international comity, but was nevertheless part of the court’s equitable jurisdiction to prevent injustice and to protect
the proper exercise of jurisdiction of Australian courts.
Geny speaking this was was the approach adopted by the House of Lords in the Airbus den of 2nd of April 1998 ju98 judgment stated as a general rule that before an anti-suit injunction can properly be gran granted
by an English Court to restrain aon frrsuing proceedings in a foreign jurisdiction, com, comity rity required that the English forum
should have a sufficient interest in or connection with, the matter in question to justify the indirect interference with the foreign
court which an anti-suit injunction entails. In an alternative forum case this will involve consideration of whether the English
Court is the natural forum for the resolution of the dispute.
Applying these princ toes to the facts of the instant case I am satisfied that this court is the natural forum for the resolution
of the dispute based on the facts I have enumerated above namely the fact that thentiff is a registered compacompany in Fiji; that
its business also is based in Fiji; that the decision of this court approving the scheme of arrangement has not been appealed by
the Defendant and lastly that the Defendant has not served on the Plaintiff either an intention to defend the Writ of Summons or
any defence to the Statement of Claim. For these reasons I grant the orders sought in the Notice of Motion as follows:
(1) & dgment is e is entered ered for the Plaintiff against the Defendant for an injunction restraining the Defendant by itself, its servants, agents or otherwise howsoever from continuingl Acto. 20 1998 i998 in then the Supr Supreme Court of Western Australia against the Plaintiff;
(2) The Defe danto s t the Plae Plaintiff’s costs of this application to be taxed in default of agreement.
i>(Application allowed; injunction granted.)
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