FORUM NON CONVENIENS/ FORUM CONVIENS
Forum conveniens- writ issued outside jurisdiction where breach of contract occurred within jurisdiction
Banner-Smith (the applicant) sought damages for breach of contract. The contract relied upon was between the applicant and his employer API. API was duly incorporated in Australia and the contract was made in Australia. API had chartered a vessel from the vessel owner. The vessel was sub chartered to a Solomon Islands Company and the applicant was employed by API to be Master of the vessel. The breaches of the contract occurred after the vessel had left Australia and was in the jurisdiction of the Solomon Island Courts.
DECISION: Writ of summons amended and refilled for issue.
HELD: The breach of the contract occurred within the jurisdiction. The writ should have been issued against API as defendant and not the owner of the vessel, as the contract of employment which is relied upon was between the applicant and API.
Translink Shipping Ltd v Compagnie Wallisienne de Navigation SARL [1991] FJHC 76; [1991] 37 FLR 46 (4 June 1991)
Forum conveniens- Court decides “natural forum” on balance of convenience
Proceedings were commenced in Fiji to recover damages allegedly sustained following an incident which occurred in the Wallis Islands. The plaintiff had been granted a Mareva injunction against the 1st defendant restraining it from moving its vessel from the jurisdiction. The defendant and been served and the injunction granted when the vessel visited Fiji on its regular trading route. The plaintiff was a shipping company registered in Vanuatu, and charterer of a Danish registered vessel. The 1st defendant was a shipping company registered in Wallis Island and owner of a French registered vessel. The 2nd defendant was the Master of the vessel. An application was made to stay the proceedings and discharge the interim injunction.
DECISION: Proceedings stayed and injunction dissolved.
HELD: A majority of the witnesses to the incident on Wallis Island are local inhabitants, the 1st defendant and his vessel are registered in Wallis Island, the law to be applied is French law and the expense and inconvenience to be incurred if this action were to be tried in Fiji convinced the court that the proper forum for the litigation would be Wallis Island and not Fiji.