Burnett v Attorney General of Fiji [2009] FJHC 238; HBC87.1995L (27 October 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 87 of 1995L

BETWEEN:

GRAHAM BURNETT
of Nananu i Ra, Businessman, Trading as RA DIVERS
Plaintiff

AND:

ATTORNEY GENERAL OF FIJI,
for the Commissioner of Police, Government Buildings, Suva
1st Defendant

AND:

MISA LESUMA
of Waiyevo, Taveuni, Businessman, Trading as
SPORTS FISHING TAVEUNI
2nd Defendant

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr. V. Mishra for the Plaintiff
Mr. R. Green for the 1st Defendant

Solicitors: Mishra Prakash & Associates for the Plaintiff
Attorney General’s Chambers for the 1st Defendant

Date of Hearing: 6 October 2009
Date of Judgment: 27 October 2009

INTRODUCTION

[1] This is an application for stay of execution of a Judgment in favour of the Plaintiff ("Burnett") for $100,000 and costs by Finnigan J pending appeal. The Judgment was delivered on 10 December 2008 and the Order sealed on 23 December 2008.

[2] The Attorney General ("AG") applied in the Court of Appeal on 11 March 2009 for enlargement of time to appeal and stay of execution. In a Ruling dated 24 July 2009 Byrne JA granted leave to the AG to appeal out of time but did not make any mention of the stay of execution application because apparently the application was not pursued before His Lordship. It was not abandoned just not pursued.

THE APPLICATIONS

[3] The AG also filed in this Court a Motion for stay of execution and affidavit in support on 8 June 2009 returnable on 12 June 2009. At this time, Byrne J had not delivered the Court of Appeal’s decision on the application of 11 March 2009 for the same order in that Court. I set the time table for filing of affidavits and submissions and set the application down for hearing on 18 September 2009. Burnett filed his affidavit in reply on 6 July 2009. When the matter was called on 18 September 2009. Mr Mishra, rightly, opposed the application on the grounds that it would be embarrassing if this Court were to hear and determine an application which Byrne JA might have already determined. Byrne JA delivered his Ruling on 24 July 2009 but a copy of it had not reached this Court from the Court of Appeal. I directed that the Registry inquire whether His Lordship determined the stay application. On 30 September 2009 the Registry here was advised that His Lordship did not so that removed the possibility of embarrassment and I called the matter on 6 October 2009. Counsel were given time to file submissions which they have done and I now deliver my Judgment on notice.

JURISDICTION

[4] It is clear that this application should be first heard in this Court because of Rule 26(3) of the Court of Appeal Rules provides that if an application could be brought in the Court of Appeal or in this Court, then it should be made in this Court first. It is implicit in Rule 34(1) of the Rules that an appellant has the right to make an application for stay in either Court.

THE LAW ON STAY

[5] The leading case is considered to be: Natural Waters of Viti Ltd v Crystal Clear Mineral Water (Fiji) Ltd [2005] FJCA 13; ABU0011.2004S (18 March 2005). At paragraph [7] the Court sets out the principles on stay applications:

"Principles on a stay application

[7] The principles to be applied on an application for stay pending appeal are conveniently summarised in the New Zealand text, McGechan on Procedure (2005):

"On a stay application the Court’s task is "carefully to weigh all of the factors in the balance between the right of a successful litigant to have the fruits of a judgment and the need to preserve the position in case the appeal is successful": Duncan v Osborne Building Ltd (1992) 6 PRNZ 85 (CA), at p 87.

The following non-comprehensive list of factors conventionally taken into account by a Court in considering a stay emerge from Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48, at p 50 and Area One Consortium Ltd v Treaty of Waitangi Fisheries Commission (1993) 7 PRNZ 200:

(a) Whether, if no stay is granted, the applicant’s right of appeal will be rendered nugatory (this is not determinative). See Philip Morris (NZ) Ltd v Liggett & Myers Tobacco Co (NZ) Ltd [1977] 2 NZLR 41 (CA).

(b) Whether the successful party will be injuriously affected by the stay.

(c) The bona fides of the applicants as to the prosecution of the appeal.

(d) The effect on third parties.

(e) The novelty and importance of questions involved.

(f) The public interest in the proceeding.

(g) The overall balance of convenience and the status quo."

[6] Yesterday, I delivered a Judgment on this topic and I reproduce what I there said because I, respectfully, think it puts the above analysis in perspective. In Reddy's Enterprises Ltd v Governor of the Reserve Bank of Fiji [1991] FJCA 4; Abu0067d.90s (9 August 1991), Sir Moti Tikaram JA said this:

In requiring the Applicant to establish special circumstances in this case I am not to be taken to hold that in all applications for a stay it shall be incumbent on the Applicant to show special circumstances in the traditional sense. I subscribe to the view that adherence to an inflexible rigid test to all types of stay or injunction cases without considering their nature is not to be favoured. The strict test rule can negate the wide discretion vested in Courts and could even lead to denial of justice in particular cases. (my emphasis)

Balance of convenience

The test here is a determination of which of the two parties will suffer greater harm from granting or refusal of an interim stay pending a determination of the appeal on merits. A balancing of conflicting considerations is required, between the underlying principle that a litigant is entitled to the fruits of his judgment forthwith and the obvious injustice in refusing a stay where such a refusal will render the appeal nugatory or substantially nugatory.

APPLICATION TO THE FACTS

[7] I think the special circumstances here are these. Firstly, any judgment against the AG or the State can only be executed under the provisions of the Crown Proceedings Act: See Wati v Western Division Drainage Board [2009] FJHC 165; HBC332.2001L (18 August 2009) and Lal v Land Transport Authority [2009] FJHC 157; HBC213.1994 (31 July 2009). A Certificate of Judgment against the State was filed on 27 February 2009, supposedly issued pursuant to s 20(1) of the Crown Proceedings Act. I will say more about this Certificate later in my Judgment. That would be as far as Burnett can go: present his Certificate and await payment by the "chief accountant": s 20(3) of the Act. However, the proviso to s 20(3) says that the Court may direct that payment shall be suspended pending an appeal. Section 20(4) prohibits execution in any other way. It would therefore be mischievous of me if I were to order the State to pay $100,000 into Court when it is not open for me to do so under the Act or any other law.

[8] Secondly, Burnett gave his residence as Melbourne, Australia. He has said nothing in his affidavit about his willingness or ability to repay the Judgment sum if the AG wins on appeal. In fact, he says that he needs the money. He has suffered because it has taken 13 years to have his claim tried, and he can take most of the blame for that since he is the Plaintiff and, as a lawyer, he should not have allowed it to drag on, he is ill and had just undergone an expensive hip replacement and his wife has also been ill which has depleted "a great deal" of his funds. These factors do not augur well as a person willing or able to repay a $100,000 sum. On the other hand the Consolidated Revenue Fund is, I think, sufficient and secure for the moment to meet the Judgment sum.

[9] Thirdly, Byrne JA has given leave to appeal so in a way His Lordship considers that the AG has some prospect of success.

[10] Fourthly, any further delay in payment because of the appeal is compensable in interest under Rule 34(2) of the Court of Appeal Rules if Burnett succeeds on appeal.

[11] I think the interests of justice and the balance of convenience lies in favour of a stay being granted pending appeal.

THE CERTIFICATE

[12] There is a glaring mistake in the Certificate in that it certifies that "the total costs payable to the Plaintiff...amounts to $100,000" which is not. That is the amount of the Judgment. The Judgment is for $100,000 and costs. Costs were to be taxed if not agreed. Neither has happened so the Certificate as it reads has been prematurely issued: see s 20(1) of the Crown Proceedings Act. It should be cancelled, and because of the outcome of this application, no new Certificate should be issued until after determination of the appeal.

[13] I understand from the Deputy Registrar that the practice is that no formal application is made for the Certificate despite s 20(1) of the Act which says that "the proper officer of the court shall, on an application in that behalf made by or on behalf of that person". The proviso to s 20(1), which allows a separate Certificate to be issued for costs, suggests that the application has to be made to the Court. No application was made in this case. All that appears to have happened was Burnett’s solicitors filed the original Certificate with copies in Court, the then Deputy Registrar signed them, kept the original and issued the copies. Section 20(1) sets time and other constraints for the issue of the Certificate. They have not been met in this case so may I suggest that the Chief Registrar look into the practice and adopt a better practice if required.

COSTS

[14] I leave the costs of this application to be part of the costs of the appeal.

ORDERS

[15] The Orders are therefore as follows:

1. The Certificate issued out of this Court on 27 February 2009 is cancelled and no new certificate is to issue until after determination of the appeal.

2. Execution of the Judgment of 10 December 2008 is stayed pending determination of the appeal.

3. The costs of this application will be part of the costs of the appeal.

Sosefo Inoke
Judge