Fiji Sugar and General Workers Union v Coral Sun Ltd - ruling on stay application 1 [2004] FJHC 367; HBC0019.2004L (11 February 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0019 OF 2004L

BETWEEN:

FIJI SUGAR AND GENERAL WORKERS UNION
Plaintiff

AND:

CORAL SUN LIMITED
a limited liability company having its registered office at 3 Industrial Road, Nadi
Defendant

Counsel for the Plaintiff: Mr. Kitione Vuataki
Counsel for the Defendant: Mr G.P. Shankar

Date of Hearing & Judgment: 11 February 2004

EXTEMPORE RULING ON APPLICATION FOR STAY

In this matter upon a judgment being delivered with respect to a summons to set aside orders made on a Notice of Motion, Counsel for the defendant sought a stay of Orders (2) and (3), that is, the Injunctive Orders made by the Court.

In making the application Counsel for the defendant relied upon Tuck v. Seven Counties Deposit Bank (1989) 42 Chancery Division pp. 471 – 478 for the principle let the application should if possible be made to the Court below at the time it gives judgment.

In considering an application for stay, it is necessary to consider the likelihood or otherwise of the matter proceeding to appeal. The Orders made by the Court in this matter are interlocutory in nature and according leave to appeal will be required.

Clearly then it is relevant to consider would leave be granted in the circumstances of this matter.

I refer to the decision of the Fiji Court of Appeal No. ABU0043 of 2001S in the matter of Mohammed Yakub Khan son of Rahemat Ali Khan, Mohammed Nasir Khan, Mohammed Iqbal Khan, Mohammed Muktar Khan and Mohammed Azad Khan all sons of Mohammed Yakub Khan v. Ambaram Narsey Properties Limited and Lautoka City Counsel the decision of Mr. Justice Pathik, sitting as Justices of Appeal and when considering whether to grant leave or not from Interlocutory Order, His Lordship quoted from the Fiji Public Service Commission v. Manuvavalagi which was FCA 107 and 108 of 1989 of page 5 and he said and I quote –

“I am dealing with an application for leave to appeal and not with the merits of an appeal. It will therefore not be appropriate for me to delve into the merits of the case by looking at the correctness or otherwise of the Order intended to be appealed against. However if prima facie the intended appeal is patently unmeritorious or there are clearly no arguable points requiring decision then it would be proper for me to take these matters into consideration before deciding whether to grant leave or not.”

And later His Lordship again relevantly to the issue and I quote from page 16 of the judgment –

“The following statement of principle by Sir Moti Tikaram, the then President Fiji Court of Appeal in Totis Incorporated Spor (Fiji) Limited, Richard Evanson v John Leonard Clark & John Lockwood Sellers in Civil Appeal No. ABU0035 of 1996S page 15 is apt to bear in mind:

It has long been settled law and practice that interlocutory orders and decisions will seldom be amenable to appeal. Courts have repeatedly emphasized that appeals against interlocutory orders and decisions will only rarely succeed. The Fiji Court of Appeal has consistently observed the above principle by granting leave only in the most exceptional circumstances.”

His Lordship then went on and I quote –

“In the matter of grant of leave to appeal against interlocutory orders the Appeal Court (Thompson J sitting as single Judge in K.R. Latchan Brothers Limited v Transport Control Board and Tui Davuilevu Buses Limited Civil Appeal No. ABU0012 of 1994) summed up the criteria, and this is apt:

The granting of leave to appeal against interlocutory orders is not appropriate except in very clear cases of incorrect application of the law. It is certainly not appropriate when the issue is whether discretion was exercised correctly unless it was exercised either for improper motives or as result of a particular misconception of the law. The learned judge has given full reasons for the order he has made. There is no suggestion of impropriety in the appellant’s affidavit. There is an allegation of misconception of the law, but if there was a misconception of the law, it is not a clear case of that. That matter can be made a ground of appeal in any appeal against the final judgment of the High Court, if the appellant is unsuccessful in the proceedings there.”

In the light of what has been said by the former President of the Fiji Court of Appeal, I am of the view that the granting of leave is unlikely and accordingly inappropriate to grant a stay in circumstances where I am of the view that leave would not be granted.

I decline the application.

JOHN CONNORS
JUDGE

AT LAUTOKA
11 FEBRUARY 2004