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Fiji Sugar Corporation Ltd v Fiji Sugar & General Workers Union [1998] FJHC 203; Hba0001d.1994s (7 October 1998)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL NO. 1 OF 1994

Between:

THE FIJI SUGAR CORPORATION LIMITED
Appellant

and

FIJI SUGAR & GENERAL WORKERS' UNION
Respondent

Mr. B. N. Sweetman for the Appellant
Mr. H. Nagin for the Respondent

DECISION
(stay application pending Appeal)

This is the Fiji Sugar Corporation Limited's (the "appellant") motion for an order that all further proceedings to enforce the judgment (on Appeal) entered herein on 10 December 1997 might be stayed pending the hearing and determination of this Appeal to Court of Appeal. The Notice of Appeal which was filed on 22 January 1998 sets out the Grounds of Appeal.

Background facts

On an appeal to this Court by the appellant from the decision of the Sugar Industry Tribunal dated 15 February 1994, I upheld the decision in respect of Interpretation No. 6 of 1993 and dismissed the appeal with costs on 10 December 1997.

The Notice of Appeal seeks an Order that my said Judgment be set aside on the grounds set out therein.

Appellant's submission

It is the appellant's submission that the tribunal's decision is only 'declaratory' in nature and not coercive. Mr. Sweetman submits that the application of the Order to an "Industry which works 24 hours a day seven days a week with a clear distinction between the conditions of work and working hours in the crushing season and those in the slack season, was clearly never envisaged by the framers of the legislation, simply because the Sugar Industry has its own Collective Agreements spelling out the applicable terms and conditions of employment". These matters form part of the grounds of Appeal. Be that as it may, he submits there is no reasonable probability of the appellant recouping these moneys (by way of wages) paid out if its Appeal succeeds.

Mr. Sweetman submits that there is nothing to stay, but because the Respondent has threatened criminal prosecution by its letter dated 21 January 1998 if the Wages Regulation (Manufacturing Industry) Order 1993 (the "Order") is not implemented, it had decided to make the present application for stay of proceedings under Rule 34 of the Court of Appeal Rules which provides:

Rule 34(1) - Except so far as the Court below or the Court of Appeal may otherwise direct -

(a) an appeal shall not operate as a stay of execution or of proceedings under the decision of the Court below;

(b) ....." (emphasis added)

Mr. Sweetman further submits that because of the difficulty which would be encountered in recovering the amount, if paid, the Appeal if successful would be rendered nugatory.

He says that the appellant has pursued its Appeal in a timely and diligent manner.

It is submitted that if the Court considers that this is a coercive judgment which can be executed by the Respondent, then execution must be stayed, otherwise the Appeal is rendered nugatory.

Mr. Sweetman argues that just as under s. 123(4) of the Sugar Industry Act the Court or the Tribunal is enabled to make an order that the operation of the whole or part of the Award appealed against be stayed pending the determination of the Appeal or until further order of the Tribunal or the Court, similarly, the same power exists in relation to an Appeal from High Court to Court of Appeal.

For these reasons the appellant is seeking either an order that there is no need for order for stay of execution or that it order that no further proceedings be taken to enforce the decision of the Tribunal pending the Appeal herein.

Respondent's submission

The learned Counsel for the Respondent submits that the said Order is the written law, as held by this Court, and hence the appellant should comply with its provisions. He says that because the Court's order is merely a "declaratory" order there cannot be any stay hence the application ought to be refused (P W Young's book "Declaratory Orders"; The Registration Officer for the Suva City Fijian Urban Constituency v James Michael Ah Koy Civ. App. No. 23/92 F.C.A.8, Sir Moti Tikaram P).

Mr. Nagin further stresses the point that the issue has always been whether the Order applies to the Respondent's workers and not the validity of the Order itself. He concludes by saying that the alleged difficulty in implementing the Order "makes no sense" and says that the benefit of the 'social legislation' should not be denied the Respondent's members 'when all other workers in the industry are enjoying the benefits'.

Consideration of the issue

The issue for the Court's determination is whether 'a stay of execution or of proceedings' should be granted to the appellant.

I have considered the written and oral submissions made by both Counsel and have given due consideration to the matters raised by them.

There is no doubt that the Tribunal's order, which has been upheld by this Court on Appeal, is declaratory. The effect of this is, in so far as it is applicable for our purposes, is as stated by Young (supra) at p.216 when he said:

"The effect of the court's order is not to create rights but merely to indicate what they have always been.... Because of this, if an appeal is lodged against a declaratory order, conceptually there can be no stay of proceedings."

And at p.3, on the definition of the word 'declaratory' he said:

.....the word "declaratory" is used in apposition to the words "executory", executory orders being court orders which are enforceable by execution."

I wish to state here that the Appeal decision has not changed the 'declaratory' nature of the Tribunal's Order.

Hence in these circumstances there is nothing to be stayed. But because Rule 34(1) allows for stay of 'proceedings' I would give this aspect of the matter my due consideration.

The appellant has a right of appeal and this is what it is now doing. It has proceeded with the Appeal with due expedition having paid security for costs. It has raised a number of grounds in its appeal which give rise to a determination of point of law. In other words issues of fact and of law are to be addressed as it was before this Court. I am of the view that the appellant has an arguable Appeal and because of the nature of the case a decision by the appellate Court will be in the interest of both parties. In expressing this view I am not unmindful of the fact that it has taken so long to finalize this matter for one reason or another and it is likely to take a little while longer because of the Appeal to come to some finality. It is better to allow the application instead of having to refund hundreds of thousands of dollars being arrears of wages if the Appeal is successful despite the further delay that will be caused to the Respondent in finalizing the issue before the Court.

It is my view that the principles governing stay of 'proceedings' are the same as in stay of 'execution'. These principles are fully set out in the notes to Or.59 r.13/1 (The Supreme Court Practice 1979 p.909). It states, inter alia, that the Court does not "make a practice of depriving a successful litigant of the fruits of his litigation, and locking up funds to which prima facie he is entitled", pending an appeal. (THE ANNOT LYLE (1886) 11 P.D. at p.116, C.A.; (MONK v BARTRAM [1891] UKLawRpKQB 15; (1891) 1 Q.B. 346). The White Book states that "this applies not merely to execution but to the prosecution of proceedings under the judgment or order appealed from...." However, it also has to be considered that "when a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the appeal, if successful, is not nugatory". (WILSON v CHURCH (No. 2) (1879), 12 Ch.D. at pp 458, 459 C.A.). Here there is a risk that the appeal will prove abortive if it is successful and a stay is not granted, in that case the Court will normally exercise its discretion in favour of granting a stay [SCARBOROUGH v LEW'S JUNCTION STORES PTY., LTD [1963] VicRp 20; (1963) VR 129 at 130]. Therefore, where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay (WILSON v CHURCH (NO. 2) [1879] UKLawRpCh 233; (1879) 12 Ch.D. 454).

The grant or refusal of a stay is a discretionary matter for the Court [AG v EMBERSON (1889), 24 Q.B.D., pp 58, 59]. It will be granted where the special circumstances of the case so require. In exercising its discretion the Court will weigh considerations such as balance of convenience and the competing rights of the parties before it [EMBERSON (supra)]. Also where there is a risk that if a stay is granted and the assets of the applicant will be disposed of, the Court may, in the exercise of its discretion refuse the application. There is no danger of that happening in this case.

Furthermore, it was stated in ATKINS v G.W. Ry (1886), 2 T.L.R. 400 that "as a general rule the only ground for a stay of execution is an affidavit showing that if the damages and the costs were paid there is no reasonable probability of getting them back if the appeal succeeds."

That exactly is the position in this case as stated by Mr. Sweetman. In this regard there is a statement in the White Book (ibid) that "if, under an order of a Court, money is to be paid out of a fund and distributed among a large number of persons resident abroad, an injunction may even be granted, restraining dealings with the fund pending an appeal" [WILSON v CHURCH (NO.1)(1879) [1879] UKLawRpCh 169; 11 Ch.D. 576 C.A; POLINI v GRAY [1879] UKLawRpCh 259; (1879) 12 Ch.D. 438 C.A.]. In this case it will be a Herculean task to recover moneys paid out if the appeal succeeds. This in itself is sufficient enough reason coupled with the grounds of Appeal to allow the application. In fact Mr. Nagin has omitted to deal with this aspect (viz. refund) in his submission and hence I do not have the benefit of his argument in this regard.

In the outcome, for these reasons, in the exercise of the Court's discretion and having considered all the factors that are necessary to meet the ends of justice and the interest of the parties, I find that the scale tips in favour of the appellant, and its interest needs greater protection than that of the Respondent as it would suffer greater prejudice if stay of proceedings was refused.

The application is therefore granted staying all further proceedings until the hearing and determination of the Appeal herein. Costs are to be in the cause.

D. Pathik
Judge

At Suva
7 October 1998

HBA0001D.94S