IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 496 OF 1992

Between:

ATTORNEY-GENERAL OF FIJI

and

FIJI TRADE AND INVESTMENT BOARD
Applicants/Original Defendants

and

PACOIL FIJI LIMITED
Respondent/Original Plaintiff

Mr R Naidu for the Applicants
Mr G P Shankar for the Respondent

DECISION

This is a motion dated 5 July 1999 on behalf of the applicants/defendants The Attorney-General of Fiji and Fiji Trade and Investment Board for an order granting leave to appeal my decision on the stay of execution delivered on 18 June 1999 ordering payment into court by the applicants the sum of $2,265,066.00 within 28 days of this decision and which said sum the Chief Registrar is directed to place on interest bearing term deposit for a short term pending the hearing and determination of the appeal along with $12,000.00 solicitor's costs and costs to the respondent fixed at $300.00. The applicants also seek such further orders as the Court deems just.

The Motion came before me on 14 July but after some discussion with counsel on both sides I decided to hear it the next day with Mr G P Shankar present.

I have before me for my consideration the affidavits of Mr Daniel Singh, a State Solicitor in the Attorney-General's Chambers sworn 5 July and Solomone Kotobalavu, Acting Permanent Secretary for Finance sworn 2 July 1999. There was no affidavit in reply from the Respondent.

Both counsel made oral submissions on the motion and I have given due consideration to their arguments.

Determination of the issue

As required under section 12 (2)(f) of the Court of Appeal Act Cap 12 the applicants are seeking leave of this Court to appeal against the said interlocutory order of 18 June 1999.

As complained by Mr Shankar, the said affidavits do not set out the grounds on which the application is made. All that Mr Singh says is that 'there is ample grounds for the leave to appeal the stay of execution judgment to succeed on appeal' without stating what those grounds are. The affidavits say, in short, how difficult it is to get the sum involved within such a short time. They say that the availability of finance is dependant upon Cabinet and/or Parliamentary approval and that takes time. This fact was not brought to the Court's notice at all when Mr Singh appeared before me on a previous stay application. He merely asked for 28 days to pay any sum ordered.

Mr Naidu agreed that there was this omission of the grounds in the affidavits. He sought leave to amend the motion and file supporting affidavit but it was refused for the reasons I had already given. It was a most unsatisfactory state of affairs when counsel in the Attorney-General's Chambers had so much time between 5th July and 14th July and nothing was done to rectify the situation. Mr Naidu cannot be blamed for the shortcomings for he only came on record as solicitor two days ago. I cannot see any justification for such slackness when the matter is of such great importance and magnitude involving millions of dollars. What can the Court do in such a situation? 

Not only was the Motion without any grounds, there was no application for a stay of my order for payment into Court of $2.3 million approximately.

The Motion not only seeks the Court's leave to appeal but it also prays for 'such further orders as the Court deems just'.

Under Order 34 (1)(a) of the Court of Appeal Rules, an appeal shall not operate as a stay of execution or of proceedings under the decision appealed from, except so far as Court may otherwise direct.

The decision on this Motion will rest mainly on submissions in law and fact which both counsel have so ably made.

Mr Naidu submits that in view of the provisions in the Crown Proceedings Act Cap 24, he will argue in the Appeal Court, if leave to appeal is granted, that the order for payment into Court of the said sum of money should not have been made as the order could not be executed against the State. He said that in the previous hearing the Court was not assisted in regard to the provisions under this Act by either counsel.

But, he says, since the order has been made it would be "embarrassing" if it is not complied with. Hence he is asking for an order that the applicants be not required to comply with that portion of the order until the hearing of the appeal for which leave is being sought. Mr Naidu feels that there is prospect of success in the appeal.

Very briefly, I might point out at this stage how the conditional order came to be made. It was the State Counsel's willingness to deposit into Court the sums of money which are not appealed against in the Grounds of Appeal. He wanted 28 days within which to do so as Ministry of Finance had to approve same. If the State was not able to deposit into Court then Counsel was duty bound to say so instead of now 'backing out' on his stand in the matter and giving instruction now to Mr Naidu to the contrary to put before this Court. Counsel should never mislead the court and if he does, he does so at his peril.

Mr Naidu further says that there is no difference between the money lying in the 'Consolidated Reserve Fund' of the Government being paid into Court as ordered and lying with the Chief Registrar, as any sum ordered to be paid cannot be paid out to anyone without a Court order. Hence he says there was no need for deposit into Court.

Mr Naidu further argues that in view of the 'obiter' in the Fiji Court of Appeal judgment herein where it said at page 4 "... the judgment is only interlocutory and there will later be an appeal as of right on all issues from any final judgment on an appeal against the assessment of damages ...", if the appeal to Supreme Court eventually succeeds then there may not be any need to deposit any money into Court.

Mr Shankar while opposing the application submits that Mr Naidu has not satisfied the Court that the Court acted on wrong principle or was wrong in law in making the conditional order. He says that the respondent will be "ruined" if the application is granted. He submitted that it was the State Counsel who 'consented' to an order being made for payment into Court after working out the items together which was not disputed as gleaned from the Grounds of Appeal.

In all the circumstances of this case and the facts surrounding it, I consider that leave to appeal ought to be granted to the applicants. They have the right to appeal but because leave is required in interlocutory matters under the said s. 12 (2)(f) they have made this application. In arriving at this decision I have to look at the practicality of the situation. Here I find that until the hearing and determination of the proposed appeal the respondent will not suffer any adverse effect on it if the sum ordered is not paid into Court. It will not suffer any real prejudice or injustice if the application is granted for in any case no payment out will be made until the determination of the appeal on the assessment of damages. Mr Kotobalavu also admits in item 3 (iii) (ii) of his said affidavit that 'the State will have to meet all payments when this action is finally concluded'.

Therefore in considering the leave application I have to consider the factors which ought to be taken into account. The grant or refusal of leave has to be considered in the light of the facts and circumstances surrounding this case. That is what I have done.

The fact that there is no specific prayer in so many words for a 'stay' of the condition attached to my said order, is not something which can be brushed aside in considering the Motion although it is most desirable that whatever order is sought is clearly stated in the motion. The matter of stay I would say has become interwoven in the Motion itself by the affidavits supporting it and by the submissions made by Mr Naidu and replied to by Mr Shankar. The indication in Mr Naidu's submission about intending to appeal to Supreme Court on the question of liability which has long been determined in a separate exercise from the assessment both by this court and the Fiji Court of Appeal, does not concern me in the motion and is of no relevance in determining the issue before me.

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 applicants 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.

This is not a case, for the purposes of this application where anybody will be "ruined" as alleged, in the limited period in question namely until the hearing and determination of the proposed appeal, and I have borne the following passage in Linotype-Hell Finance Ltd v Baker (1992) 4 All E.R. 887 in mind:

"Where an unsuccessful defendant seeks a stay of execution pending an appeal to the Court of Appeal, it is a legitimate ground for granting the application that the defendant is able to satisfy the court that without a stay of execution he will be ruined and that he has an appeal which has some prospect of success."

The Court has an absolute and unfettered discretion as to the granting or refusing of a stay. Lord Esher, M.R. in The Attorney-General v Emerson and others 1890 24 QBD C.A. p.56 at 58 said:

"... the Court has a discretion in each case. ..... I feel certain that this Court has over and over again refused to say there was any established practice, but has said that it would exercise its discretion in each case."

Similarly Lindley, L.J (ibid p.59) said:

"It is not competent for any Court or judge to lay down a rule which shall limit the exercise of that discretion."

In all the circumstances of the case in exercising its discretion the Court has done a balancing exercise. On the one hand there is the respondent which has a decision in its favour and on the other there are the unsuccessful defendants who are in difficulties trying to find the 'money' all through an error of judgment on the part of State Counsel Mr Singh who did not think there was any difficulty in having the release of funds and asked for 28 days to pay.

I find that in the exercise of the Court's discretion the scale tips in favour of the applicants and their interests need greater protection than those of the respondent as they would suffer greater prejudice if stay was refused.

In the outcome, in the exercise of the Court's discretion having considered the interest of both the plaintiff and the defendants, the balance of convenience demands that I grant leave to appeal as well as a stay of that part of my said order which requires the defendants to deposit the said sum of $2.3 million approximately into Court until the hearing and determination of the proposed appeal. I therefore so order. It is further ordered that the defendants take all reasonable steps to expedite the appeal and the further order is that they give that undertaking and one of the first steps they should take is to within 7 days file Notice of Appeal with the Court of Appeal. Liberty is reserved to the parties to apply generally. The defendants are ordered to pay costs of this hearing which I fix at $700.00 (seven hundred dollars) within 7 days. Should the defendants fail to comply with these orders my said decision for payment into Court will remain intact.

D Pathik
JUDGE

At Suva
16 July 1999
HBC0496D.92