National Insurance Company of Fiji Ltd v MBf National Insurance (Fiji) Ltd [1995] FJHC 67; Hbc0492d.94s (6 April 1995)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 0492 OF 1994

Between:

THE NATIONAL INSURANCE COMPANY
OF FIJI, LIMITED
Plaintiff

- and -

NATIONAL MBf INSURANCE (FIJI)
LIMITED
Defendant

Mr. I. Thain and F.G. Keil for Plaintiff
Mr. A. Khan for Defendant

RULING

On the 2nd of March 1995 this Court granted the plaintiff company an interlocutory injunction restraining the defendant company from using the word "National" in the conduct of its business as an insurance company "until further order".

On the 21st of March 1995 the defendant company filed a Notice of Motion seeking an order that the interlocutory injunction:

"... be set aside and for execution thereof be stayed pending the determination of an Appeal by the defendant against the said order."

In support of its application the defendant company by its assistant manager deposed to the following matters:

"3. THAT ... substantial matters of public importance arise in this matter ..."

4. THAT ... the Fiji Court of Appeal will not be able to hear the appeal in the present March session ..."
   
5. THAT ... the defendant will suffer undue hardship and will be put to unnecessary unwarranted, and great inconvenience and costs in compliance with the order ..."
   
6. THAT ... it will be difficult and cause great hardship to the Defendant to make such changes immediately ..."
   
7. THAT ... it will cause a lot of inconvenience to the public and to the present and potential customers of the Defendant ..."
   

and

8. THAT ... the operation of the Defendant Company in the business world will be very greatly and adversely affected."
   

In considering the defendant's affidavit which consistently uses the word 'will' I make the general observation that no attempt has been made to provide particulars or details as to any of the matters deposed therein. More particularly, as to para.3 - the 'substantial matters of public importance' only became clearer upon counsel's oral submissions at the hearing of the application which was to the effect that this was perhaps the first case in which the provisions of the Fair Trading Decree 1992 fell to be interpreted by the Courts.

As to this submission, I need only repeat the final paragraph of the Courts judgment granting the injunction, which reads:

"In view of the above it is not necessary for me to deal with the plaintiff's further claim under the Fair Trading Decree No. 25 of 1992."

Clearly, the Fair Trading Decree played no part in the Court's decision in granting the injunction and as such it is difficult to see how it could fall to be considered by the Court of Appeal other than perhaps in a very general way. Certainly none of the defendant company's 'grounds of appeal' raises the provisions of the Fair Trading Decree either directly or indirectly.

As to para.4: whilst the likely delay in hearing an appeal is a factor to be considered by the Court, some delay is inevitable in any appeal given that the Court of Appeal does not sit continuously and given that the preparation of the appeal record may take some time. In this particular case however I have no reason to believe that any such delay would be abnormally prejudicial or that this appeal will not be heard in the 'May sittings' of the Fiji Court of Appeal provided the defendant acts with promptitude.

As to paras 5, 6, 7 & 8 I would observe that in the absence of any details or particulars, the so-called 'hardship', 'inconvenience' and 'expense' that the defendant company 'will' suffer or incur, cannot be considered as other than what would, in the normal course of events, fall upon an unsuccessful party where a prohibitive injunction is granted. In any event these were all 'factors' necessarily weighed by the Court in determining where the 'balance of convenience' lay in the case when granting the original injunction.

I accept at once that in appealing to the Fiji Court of Appeal against the injunction granted against it, the defendant company is undoubtedly exercising its unrestricted right of appeal under Sections 12(1)(a) and 12(2)(f)(ii) of the Court of Appeal Act (Cap.12) and as was held in Wilson v. Church (No.2) [1879] UKLawRpCh 233; (1879) 12 Ch.D. 454:

"Where an unsuccessful party is exercising an unrestricted right of appeal, it is the duty of the Court in ordinary cases to make such order for staying proceedings under the judgment appealed from as will prevent the appeal, if successful from being nugatory."

In this regard I fail to see how the mere postponement of a company's ability to use its newly registered name pending an appeal can be said to render the success of the appeal in any way 'nugatory'.

Be that as it may it is trite that the mere lodgement of a Notice of Appeal does not automatically operate as a stay of execution or a stay of proceedings. (See: Rules 25 and 34 of the Court of Appeal Rules)

In this latter regard the full Fiji Court of Appeal said in an unreported decision in K.R. Latchan Bros. Ltd. v. Sunbeam Transport and 2 Others Civil Appeal Nos. 45, 51, 57 and 61 of 1983 at p.8:

"Rule 25 is in identical terms to Order 59 rule 13 of the Supreme Court Rules in England. Extensive notes in the White Book (1967) Vol. 1 at 770 illustrate the wide variety of cases where a stay may be granted.

All the cases annotated under Order 59/13 and indeed the wording of the two Rules contemplates delaying some action which would have flowed from the decision. Stay of such action may be granted pending an appeal so that, if successful, the result shall not be rendered nugatory. In the absence of a stay, money may be paid over, which given a reversal on appeal might be irrecoverable ... accounts might be taken which need not be revealed, ... all these are positive steps which are encompassed by the words 'execution or proceedings' flowing as a consequence of a judgment.

But a quashing of a permit, which should not have been granted, does not set in train any such consequences. Its effect is that a benefit which a party obtained in earlier proceedings was improperly obtained and should not have been brought into being."

Then after examining the New Zealand Court of Appeal decision in In re O'Driscoll's Application ex parte Frethey 22 N.Z.L.R. 517, the judgment of the Fiji Court of Appeal continues at p. 11:

"We think that the observations as to the power to stay in the circumstances where a quashing order has already been entered must be treated as obiter dicta. The point being now directly in issue we hold that there is no such power."

Similarly in the present case no 'positive steps' are ordered or required to be taken by the defendant company as would be the case had a 'mandatory injunction' been granted against it. The absence of any such steps in the Court's order led to a good deal of discussion as to the appropriateness of the order sought by the defendant company in its application for a 'stay of execution'.

I am content however to hold that this Court has the necessary jurisdiction and power to suspend the operation of a prohibitory interlocutory injunction and any proceedings consequent thereupon pending the determination of an appeal.

I am fortified in this view by the decision of Sir W. Page-Wood L.J. in Walford v. Walford [1868] UKLawRpCh 100; (1868) 3 L.R. Ch. App. 812 where the Court suspended the operation of an injunction pending appeal. In doing so his lordship said at p. 814:

"The usual course is to stay proceedings pending an appeal only when proceedings would cause irreparable injury to the Appellant. Mere inconvenience and annoyance is not enough to induce the Court to take away from the successful party the benefit of his decree."

Furthermore in Polini v. Gray [1879] UKLawRpCh 259; (1876) 12 Ch.D. 438, Cotton L.J. in recognising the existence of the Court's jurisdiction observed at p.446:

"This jurisdiction ('to suspend the right of the party, who so far as the litigation has gone, has established his rights') ought, no doubt, to be very carefully exercised, and so as not to encourage any one to present an appeal for the mere purpose of delay."

Finally and perhaps more closely allied to the circumstances of the present case is the decision of the New Zealand Court of Appeal in Phillip Morris (N.Z.) Ltd. v. Liggett & Myers Tobacco Co. (N.Z.) Ltd. and Anor. (1977) 2 N.Z.L.R. 41 where the Court was concerned with an application for a stay of execution of an interim injunction restraining the defendant companies from making use of the registered trade mark of the plaintiff company.

Richmond P. in rejecting the application and in recognising the jurisdiction of the Court to deal with the matter said at p.42:

"In my view we can only exercise the discretion conferred by the rule in a manner which, on the balance of all the factors involved, best meets the overall justice of the present case."

Woodhouse and Cooke JJ. on the other hand in agreeing with Richmond P's judgment referred to the confusion that could arise from any 'joint-user' of the trade mark, and observed at p.42 (per Woodhouse J.):

"In my view no greater confusion could arise than to permit the marketing of two products, different in themselves but each using a trade mark not merely similar to the other, but identical ..., that surely must be against the public interest. In the circumstances of this case a stay of execution obviously would be equivalent in any practical sense to hearing an actual appeal against the granting of the interim injunction and allowing it";

and at p.43 (per Cooke J.):

"I think that the balance of convenience is clearly in favour of refusing a stay ..., it is undesirable that two different commercial organisations should be marketing their competing products under an identical mark ... A stay of the interim injunction would tend in some degree to exacerbate a confusing situation."

(See also: the abrupt dismissal of a similar application for a stay of an injunction in a 'passing-off' action by Swinfen Eady J. in Coleman Co. Ltd. v. Steven Smith & Co. Ltd. (1911) 2 Ch.D. 572 at 580, where the consequence of the injunction was described by Counsel as: '(involving) an entire alteration of our get-up'.)

In the present case bearing in mind the plaintiff company's written undertaking as to damages and the absence of any 'exceptional circumstance' or, any 'irreparable harm' to the defendant company. I am satisfied that the 'balance of convenience' and the justice of the case is best served by the continuation of the injunction.

Accordingly, in the exercise of the Court's discretion in the matter, the defendant company's application is refused with costs.

(D.V. Fatiaki)
JUDGE

At Suva,
6th April, 1995.

HBC0492D.94S