Naiveli v Disciplined Services Commission [2002] FJHC 323; HBJ0012.1999 (13 November 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBJ 0012 OF 1999

BETWEEN:

BENIAMINO NAIVELI
APPLICANT

AND:

THE DISCIPLINED SERVICES COMMISSION

AND:

THE STATE
RESPONDENTS

Mr. R. Prakash-Counsel for the Applicant
Mr. J. Udit-Counsel for the Respondents

DECISION ON STAY OF PROCEEDINGS

On 14th day of March 2002 Justice Fatiaki the present Chief Justice inter alia made an order that the applicant be paid compensation and costs to be agreed between the parties. No agreement was reached as to compensation so a hearing date was fixed for assessment of compensation. The state applied for stay of proceedings pending its appeal against the decision of Justice Fatiaki.

LAW APPLICABLE

The application before the court is a bit unusual because it attempts to prevent the court from assessing damages at this point in time. The principles of stay pending appeal are well established. A court does not make a practice of depriving a successful litigant of the fruits of judgment pending appeal – the Annot Lyle [1886] UKLawRpPro 31; (1886) 11 P.D. 114.

An application for stay is not granted as of course. In order to grant a stay the court must be satisfied that there are special circumstances that justify a departure from the general principle stated above.

The granting or refusing of stay is in the absolute and unfettered discretion of the court and the court will only grant stay if there are special circumstances – HALSBURY 4th edition Volume 17 page 272 paragraph 455.

FACTORS THAT CONSTITUTE SPECIAL CIRCUMSTANCES

In Carpenters Fiji Limited v. Virendra Karan Civil Action 247 of 1995 unreported judgment Justice Pathik at page 2 stated:

"Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory. See Wilson v. Church [1879] UKLawRpCh 233; 1879 12 Ch. D 454 at 458; Kimber Knitting Mills Pty Ltd. v. L’Union Fire Accident and General Insurance Co. Ltd. [1937] VicLawRp 12; [1937] VLR 142. Generally that will occur when, because of the respondent’s financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment of first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed. See McBride v. Sandland [No. 2] [1918] HCA 59; (1918) 25 C.L.R. 369 at 375."

The special circumstances deposed in affidavit in support of application are that the appeal raised important matters of law and secondly that if by virtue of assessment any orders for payment are made, the respondent would not be able to refund the money so the appeal would be rendered nugatory.

Mr. J. Udit, counsel for the respondents/applicants has outlined a chronology of events in respect of the applicant in pages 4 to 8 of his submission. It shows a rather chequered history of litigation in respect of the applicant. In the present case, a case had been stated to the Court of Appeal which then gave its decision. Justice Fatiaki’s orders in the Judicial Review proceedings were based upon the interpretation of the Court of Appeal of the Disciplined Services Regulations. It is unlikely therefore that even a differently constituted Court of Appeal would differ from that earlier interpretation. So the chances of appeal succeeding are not as strong as the respondents/applicant submits.

Secondly, execution is not an issue now. The issue of execution would only arise once the court assesses the damages. The balance of convenience lies heavily in favour of this court assessing damages now. The respondents/applicants have appealed against liability. If the Court of Appeal rules against them, then they might again appeal against quantum of the award. Hence if the assessment is done now, both liability and quantum could be heard together on appeal saving court’s time and resources rather than matters being dealt on piecemeal basis. Secondly, from the affidavits I note that the applicant Beniamino Naiveli is a sickly person and great prejudice would be caused to him should his health deteriorate further. Vital evidence could be lost.

CONCLUSION

The court therefore considers that the balance of convenience requires that the stay be refused and assessment of damages be done expeditiously. The application is therefore dismissed. Costs to be in cause.

Jiten Singh
JUDGE

At Suva
13th November 2002