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Fenech v Khan [2004] FJHC 408; HBC0215.2001L (21 April 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0215 of 2001L

BETWEEN:

MICHAEL FENECH
Plaintiff

AND:

IFTAKHAR IQBAL AHMED KHAN
Defendant

Counsel for the Plaintiff: Mr. J. Sharma
Counsel for the Defendant: Mr. A.K. Singh

Date of Hearing & Ruling: 21 April 2004

EXTEMPORE RULING

This matter comes before the court by way of Notice of Motion wherein the applicant seeks leave to appeal to the Fiji Court of Appeal against the decision delivered by this court on the 19^th of April 2004 and further seeks that there be a stay of execution until the determination of the application and lastly that the time for service of the motion be abridged.

Upon the matter coming before the court, the respondent took objection to the manner in which the proceedings were commenced and drew to the court’s attention the requirement that the application be made by way of a Summons.

In response the applicant drew the court’s attention to the provisions of Order 2 Rule 1 of the High Court Rules and as a result I am of the opinion that little would be achieved to cause the proceedings to be recommenced in the form of a Summons and accordingly I make orders appropriate pursuant to Order 2 Rule 1 to facilitate the matter proceedings in its current form.

The court drew to the applicant’s attention, the question as to whether leave was in fact required to appeal in the circumstances of this matter. Those circumstances being that the judgment and orders of the court of 16^th April 2004 were in response to a Summons filed by the plaintiff dated 19^th September 2001 which Summons sought a final judgment against the defendant in the sum of $33,334.00.

The order of the court therefore that is sought to be challenged is indeed a final order.

Counsel for the applicant there upon withdrew the prayer seeking leave and sought to proceed only with the stay application.

Counsel for the respondent sought time in which to respond to the application time to file any necessary affidavit and time to prepare the matter for hearing. He having only been served with the Notice of Motion yesterday afternoon.

The court at that time made appropriate orders for the filing of affidavits by the respondent and by the applicant in set the matter for hearing as to the stay application on the 29^th April 2004 at 2.15pm. Counsel for the applicant then sought that a stay be granted pending the hearing of the stay application on the 29^th April 2004.

To consider the applicant’s application requires a consideration of the law applicable to the granting of a stay in the circumstances such as now exist, that is, where a judgment has been granted in favour of the respondent and the applicant has indicated an intention to appeal to the Fiji Court of Appeal. Much has been written about the granting of leave in circumstances similar to this. Perhaps the most forthright statement of principle is that expressed by the High Court of Australia in McBride v Sandland [1918] HCA 59; [1918] 25 C.L.R. 369 where at page 374 Barton J. said and I quote: -

“The ordinary principle is that a successful party is entitled to the fruits of his judgment. That being so, there must be sound reasons sufficient to justify the court in suspending his right. It is not a sufficient ground to say that he, being a rich man, cannot be prejudiced by having his right temporarily denied to him.”

The position has been considered by this court on prior occasions and Mr. Justice Gates in Chandrika Prasad v The Republic of Fiji & Anor. HBC 0217/00L at page 9 of his judgment set out the principles for stay and I quote from His Lordship’s judgment:-

“It is well known that the litigant once successful should not lightly be deprived of the fruits of his successful litigation: The Annot Lyle [1886] UKLawRpPro 31; [1886] 11 P.D. 114 at 116 C.A: Monk v Bartram [1891] UKLawRpKQB 15; [1891] 1 Q.B. 346. The power of the court to grant a stay is discretionary: The Attorney General v Emerson & Others [1889] UKLawRpKQB 190; [1890] 24 Q.B.D. 56 and it is an unfettered discretion Winchester Cigarette Machinery Ltd. v Payne and Anor. (No.2) [1993] T.L.R. 647 at 648.

If a stay was not granted by the court at the time of making the order now appealed against, the applicant must show that special circumstances exist as to why a stay should now be imposed, and the successful litigant in effect held back from his remedy: Tuck v Southern Counties Deposit Bank [1889] UKLawRpCh 149; [1889] 42 Ch. D 471 at 478 per Kay J.; Atkins v G.W. Railway [1886] 2 T.L.R. 400; Barker v Lavery [1885] UKLawRpKQB 32; [1885] 14 Q.B.D. 769. In the Winchester Cigarette case (supra) at 648 Lord Justice Hobhouse put it “the appellant had to show some special circumstances which took the case out of the ordinary.”

His Lordship also considered the principles of stay in Jokapeci Koroi, Mahendra Pal Chaudhary, Dr. Ganesh Chand and The Fiji Labour Party v The Commissioner of Inland Revenue & Anor. HBC 179/01L of 31^st August 2001, he there said at page 3 of his judgment and I quote:-

“I have next to consider the stay itself. The principles for stay are well established. I refer to the Court of Appeal’s decision in Krishna Murti v Atul Kumar Ambalal Patel (unreported) Court of Appeal Fiji Civil Appeal No. ABU0014 of 2000 p. 2-3 and my own decision in the same case (unreported) Lautoka High Court Civil Action No. HBC00225.1999L 9 March 2000. Both of which dealt with the principles. The appellant has to show some special circumstances. In the Winchester Cigarette Machinery case (p. 648) which I cited in Peter Elsworth & Anor. v Yanuca Island Ltd. (unreported) Lautoka High Court Civil Action No. HBC0157.1997L 5 June 2001, at p. 9: Lord Justice Ralph Gibson had said: -

....in recent cases, it had been said that the practice of the court had moved on from the principle that the only ground for a stay was the reasonable probability that damages and costs paid would not be repaid if the appeal succeeded.

Those cases held that the approach of the court now was a matter of common sense and a balance of advantage.

But in holding any such balance of advantage, full and proper weight had to be given by the court to the starting principle that there had to be a good reason for depriving a plaintiff from obtaining the fruits of a judgment.”

The issue was further considered by the High Court of Australia in Jennings Construction Limited v Burgundy Royale Investments Proprietary Limited [1986] HCA 84; [1986] 161 C.L.R. 681 where Mr. Justice Brennan said at p. 684 and I quote:-

“A stay to preserve the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. If an order for a stay is made, the respondent is kept out of the benefit of the order of the court in which the matter is pending until the hearing of the application for special leave to appeal.”

This matter came before the court today on the application of the applicant, accordingly, it’s the applicant that seeks that the court make the orders based upon the evidence and submissions that have been placed before it.

The only evidence before the court that might go in anyway to satisfy the authorities to which I have referred is paragraph 9 of the affidavit of the applicant which says and I quote: -

“That if I am unsuccessful in my appeal then I would loose everything as the respondent would execute his judgment against me.”

The remainder of the evidence deals with the grounds of appeal and other matters.

There is no evidence before me to suggest that should the appeal be successful that the monies would not be recoverable from the respondent. In the circumstances of the authorities to which I have referred and the evidence that is before the court I see no basis to grant a stay.

Having reached that conclusion there seems little point in the matter being re-argued on 29^th of April 2004 and accordingly I vacate the Orders made by me earlier today and the Orders of the Court therefore will be: -

1. Application for stay is refused;
   
2. The applicant is to pay the respondent’s costs of the application.
   

JOHN CONNORS
JUDGE

AT LAUTOKA
21 APRIL 2004