| Fiji Islands - Fiji Bus Operators Association v Kelton Investments Limited No. 1- Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. 0024 OF 1999
:
FIJI BUS OPERATORS ASSOCIATION
Plaintiff
AND:
KELTON INVESTMENTS LIMITED
Defendant
Mr H. Lateef for the Defendant
DECISION
By Motion dated 1 Jun9 the defendant is applying for an order that execution of the decision delivered on 6 May May 1999 herein be
stayed pending the hearing and determination of appeal to Court of Appeal upon the grounds set out in the affidavit in support.
The Court granted an injunction in the terms sought, namely, that:
"the defendant be restrained by itself and/or through its servants and/or agents and/or howsoever be restrained from permitting
or allowing the operation of Minibuses from its property comprised in Certificate of Title Nos. 51/5044, 5969 and 6247 and situate
at Rodwell Road, Suva and interfering in any manner whatsoever with the said property until further order of this Honourable Court
with costs in the cause".
The issue before me is whether to grant the application or not.
At the outset it should be noted that apart from 'damages' the only claim by the plaintiff in the Writ of Summons filed herein is
an injunction which I granted in the terms stated hereabove. And as I said the decision should actually dispose of the subject-matter
of the action. But because there is the injunction the 'stay' application has come before the Court in the guise of an application
for its dissolution.
Be that as it may, the defendant intends to appeal against the interlocutory injunction and has sought its stay.
There is a very short affidavit by Michael Ah Koy in support of the application and the main reasons given are as contained in items 4 & 5 which state:
4. That the complaint by the Plaintiff is the operation of illegal mini-buses from opposite the bus-stand which is still being used
by mini bus operators.
5. That by continuing to give space to the mini bus operators has definitely created less congestion on Rodwell Road.
The defendant is in short saying that by allocating 'space' to minibus operators on its property it is alleviating the problem of
congestion on Rodwell Road. And in its appeal grounds it is in actual fact saying that the Court erred in law and fact in granting
injunction and restraining the defendant from allowing mini-bus operators to park on its land for a fee.
In the written submission of Mr Lateef for the defendant, the only complaint as I understand it, is that this decision has led to
congestion again and driveways to the supermarkets are again being 'blocked by mini-bus operators' and that complaint in this regard
has been made to the Commissioner of Police.
This Court was, in the decision which it gave, mainly concerned with the legality of the defendant allowing the use of its land to
unlicensed mini-bus operators for a fee and not with the alleged 'congestion'.
A very useful account of the principles governing 'stay' is to be found in the judgment of the Court in Alexander v. Cambridge Credit Corp. Ltd. 1985 2 NSWLR 685 (C.A.).
The Court does not "make a practice of depriving a successful litigant of the fruits of his litigation, and locking up funds to which he is prima
facie entitled" pending an appeal [The Annot Lyle (1886) 11 P.D. at 116 C.A, Monk Bartram [1891] UKLawRpKQB 15; (1891) 1 QB 346] Also "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. pp 458, 459 (C.A)].
It has also been held in a number of cases that the appellant has to show "special" or "exceptional" circumstances
which warrant the granting of a stay (The Annot Lyle (supra)) and followed in Australian cases (Scarborough v. Lew's Junction Stores Pty. Limited [1963] VicRp 20; [1963] V.R. 129 Supreme Court of Victoria). Courts in Australia are now tending to approach the issue of stay without reference to "special"
or "exceptional" circumstances.
The test in this case is which party will suffer greater harm from the grant or refusal of a stay pending the hearing and determination
of the appeal.
This is how it is stated in Alexander (supra): Thus in Waller v Todorovic (Court of Appeal, N.S.W. 21.12.79 unreported (at 3) the court merely pointed to the need for the party seeking a stay to establish
a reason therefor. To like effect is the judgment of Mahoney JA (with whom Moffitt P and Glass JA agreed) in Re Middle Harbour Investments Ltd (In Liq) (Court of Appeal, 15 December 1976, unreported). In that case, Mahoney JA said this (at 2):
"Where an application is made for a stay of proceedings, it is necessary that the applicant demonstrate an appropriate case.
Prima facie, a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption
that the judgment is correct. These are not matters of rigid principle and a court asked to grant a stay will consider each case
upon its merits, but where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state
of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party."
It has been suggested (in Alexander) that "it is sufficient that the application for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion
in his favour".
I do not see anything wrong with this approach in addition to the other approach referred to hereabove. The onus is of course on the
applicant to show a proper basis for a stay that will be fair to the parties.
It is a discretionary matter for the Court whether or not to grant a stay. In the exercise of that discretion the Court will weigh
considerations such as the balance of convenience and the competing rights of the parties before it. (Attorney-General v Emerson [1889] UKLawRpKQB 190; 1889 24 QBD 56).
In this case the defendant will not suffer any harm if stay is refused except that it would have lost some income which does not seem
to be much at all and it can be compensated for in damages should such a situation arise. In expressing that view one cannot overlook
the fact that the defendant in wanting to accommodate the mini-bus operators may be bordering on offending certain provisions of
the Traffic Act and that the Court cannot be seen to be encouraging likely breaches of the law. On the other hand the licensed bus
operators (the plaintiff) will suffer far more damage than the defendant if stay was granted.
I might mention at this stage that whilst Mr Lateef is asking me to take "judicial acknowledge", meaning I think 'judicial
notice', that the complaint has been made to the Commissioner of Police regarding the blocking of access, it is well-known that moves
are afoot by Government to legalise mini-bus operation very shortly and this fact is known to everyone and therefore perhaps the
defendant ought to await the outcome. However, this is not a fact which should concern me in this application and therefore it does
not form the basis of my decision.
I am of the view that the balance of convenience demands that stay be refused and that appeal if successful will not be rendered nugatory
if a stay is not granted. No special circumstances have been shown for the grant of a stay. In this regard the following passage
from Wilson (supra) is apt and I have borne it in mind in coming to the conclusion to which I have come:
"Where an unsuccessful party is exercising an unrestricted right of appeal, it is the duty of the court in ordinary cases to
make such orders for staying proceedings under a judgment appealed from, as would prevent the appeal, if successful, from being nugatory.
But the court will not interfere if the appeal appears not to be bona fide, or there are other sufficient exceptional circumstances."
In the outcome, for these reasons the application for stay is refused with costs which I fix at $150.00.
D Pathik
JUDGE
At Suva
7 July 1999
Hbc0024d.99
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