Chaudhry v Chief Registrar [2012] FJCA 82; ABU63.2012 (5 November 2012)

IN THE COURT OF APPEAL

CIVIL APPEAL NO. ABU 63 of 2012
(Independent Legal Services Commission
No.4 of 2012)

BETWEEN:

RAJENDRA CHAUDHRY
Applicant/Appellant

AND:

CHIEF REGISTRAR
Respondent

Coram : Calanchini AP

Counsel : Appellant in person.
Ms L Vateitei for the Respondent.

Date of Hearing : 24 October 2012
Date of Ruling : 5 November 2012

RULING

[1]. On 11 October 2012 the Independent Legal Services Commission made the following ex parte orders:

"1. That the Respondents (Ronald Rajesh Gordon and Rajendra Pal Chaudhry trading as Gordon and Chaudhry Lawyers at 19 Rewa Street) and/or their servants and/or agents be restrained from operating/continuing to operate the law firm under the style of Gordon and Chaudhry Lawyers situated at 19 Rewa Street Suva and any branches of the same until further and/or other orders of this Honourable Commission.

2. The Respondents not being the holders of valid practising certificates be ordered to submit a list of pending files of the law firm Gordon and Chaudhry Lawyers to the Legal Practitioners Unit together with a list for the contacts of the clients on the files, such as carried out in the presence of an officer of the Applicant (the Chief Registrar).

3. Members of the Fiji Police to assist the Applicant in the execution and enforcement of this Order."

[2]. On 15 October the Appellant filed Notice and Grounds of Appeal. On the same day the Appellant also filed a summons seeking an order from the Court of Appeal that the orders made by the Commission be stayed pending the determination of the appeal. An affidavit sworn by the Appellant on 15 October 2012 was filed in support of the application.

[3]. In the Court of Appeal, the position in respect of stay of execution pending appeal is set out in Rule 34 (1) of the Court of Appeal Rules which states:

"(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) no intermediate act or proceeding shall be invalidated by an appeal."

[4]. So the filing of a notice and grounds of appeal does not stay execution of the orders made by the Court below unless and until either the Court below or the Court of Appeal grants a stay.

[5]. That, however, is not the end of the matter. Rule 26 (3) of the Court of Appeal Rules provides that:

"(3) Wherever under these Rules an application may be made either to the Court below or to the Court of Appeal it shall be made in the first instance to the Court below."

[6]. An application for a stay of execution must be made to the Court below first. If the application is refused by the Court below then a further application may be made to the Court of Appeal. Under section 20 of the Court of Appeal Act Cap 12 a single judge of the Court of Appeal has jurisdiction to hear and determine such an application.

[7]. As the Appellant has not yet made an application for stay of execution to the Court below, this Court has no jurisdiction to hear the application at this stage. As a result the Appellant's application for stay of execution is dismissed.

.........................................................................
Hon. Justice W. D. Calanchini
Acting President