Sharma v Attorney-General [1993] FJHC 5; Hbc0728d.84s (11 November 1993)

Fiji Islands - Sharma v Attorney-General - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

ACTION NO. HBC0728 OF 1984

BETWEEN:

PAUL PRAVEEN SHARMA
(son of Daya Nand Sharma)
by his next friend DAYA NAND SHARMA
(son of Ram Nand Sharma)
Plaintiff

AND:

1. ATTORNEY-GENERAL OF FIJI

2. DR. HUBERT ELLIOT
Defendants

A.H. Gates the Plaintiff
D. SinghSingh: For the Defendants

Date of Hearing: 11th November 1993
Date of Ruling: 11th November 1993

RULING

On the 27th of August 1993 I gave judgment for the Plaintiff against the Defendants in the sum of A$369,800.00 together with costs to be taxed if not agreed.

I have before me today an application for a stay of all further proceedings pending an appeal by the Defendants to the Fiji Court of Appeal.

The application for stay is based on Section 20(3) of the Crown Proceedings Act, Cap.24 which reads:

"If the order provides for the payment of any money by way of damages or otherwise, or of any costs, the certificate shall state the amount so payable, and the Chief Accountant shall, subject as hereinafter provided, pay to the person entitled or to his barrister and solicitor the amount appearing by the certificate to be due to him together with the interest, if any, lawfully due thereon:

Provided that the court by which any such order as aforesaid is made or any court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the whole of any amount so payable, or any part thereof shall be suspended, and if the certificate has not been issued may order any such directions to be inserted therein."

Normally the only ground for a stay of execution is an affidavit by the Appellant (Applicant) showing that if the damages and costs awarded were paid there is no reasonable probability of getting them back if the appeal succeeds (Atkin v. Great Western Rly Co. (1886) 2 TLR 400).

In the present case the Appellants first argued that here there is no reasonable possibility of them getting back any damages and costs they may be ordered to pay.

In my judgment there is insufficient evidence led by the Appellants to justify me making such a finding in this case and I reject this submission.

However the Appellants argued under Section 20(3) of the Crown Proceedings Act that there has been no appropriation made by Parliament to satisfy any further interim payment let alone the full amount of my judgment.

In addition the Appellants cite the decision of Staughton L.J. in Linotype-Hell Finance Ltd. v. Baker (1992) 4 All E.R. 887 in which it was held that it is a legitimate ground for granting an application for stay of execution pending an appeal to the Court of Appeal if an unsuccessful 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. I can deal with this argument immediately. In my view the facts of Linotype-Hell Finance Ltd. v. Baker are altogether different from those in the present case, in that it could not be seriously suggested that without a stay of execution in this case the Defendants, meaning the State, will be ruined. The argument simply does not bear examination.

Next, Mr. Singh for the Appellants argues that as there has been no appropriation by Parliament there can be no further interim payments to the Plaintiff. I do not accept this submission. In my view Section 20(3) of the Crown Proceedings Act which is similar to the United Kingdom Crown Proceedings Act does not require any appropriation by Parliament where the requirement of Sub-section (3) has been satisfied.

In this case the Court has issued a certificate under Section 20 that the sum of $71,041.00 having already been paid by the Defendants a further payment be made by the Defendants to the Solicitors for the Plaintiff on behalf of the Plaintiff of the sum of A$126,150.00 within fourteen days of the 11th of November 1993.

In my judgment the issuing of that certificate is sufficient authority and direction to the Chief Accountant to pay the Plaintiff the interim payment I have ordered.

In my judgment it would be quite wrong for the Defendants to refuse to make an interim payment simply because no appropriation had been made by Parliament for this purpose. In my view to so hold would be to ignore the clear terms of Section 20(3) of the Crown Proceedings Act which are mandatory and I therefore hold that no appropriation by Parliament is necessary and that the Defendants are liable to make the Plaintiff a further interim payment of A$126,150.00 which I now order.

JOHN E. BYRNE
JUDGE

Hbc0728d.84s