Vateitei v Fiji Ports Corporation Ltd [2012] FJHC 1031; HBC65.2009 (20 April 2012)

THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 65 of 2009

BETWEEN:

JIUTA VATEITEI
[Plaintiff]

AND:

FIJI PORTS CORPORATION LIMITED
[1st Defendant]

AND:

FIJI NATIONAL PROVIDENT FUND
[2nd Defendant]

Counsel: Mr. I. Fa for the Plaintiff.
Mr. S. Lateef for the 1st Defendant.

Date of Decision: 20th April, 2012

DECISION

[1]. The first defendant, Fiji Ports Corporation Ltd., filed a Notice of Motion seeking an order that the execution of the final order granted in this matter on 03.02.2011, be stayed pending the determination of the Appeal No. ABU 0007 of 2007, on the grounds urged in the affidavit of Waisake Vueti.

[2]. In the judgment, court declared as follows:

1. That payments under voluntary redundancy packages offered to employees of the 1st defendant constitute a payment of wages for the purposes of the Fiji National Provident Fund Act for which the 1st defendant is liable to contribute to the fund established under section 7 of the Act and administered by the second defendant; and,
   
2. That each of the employees of the 1st defendant who accepted redundancy packages pursuant to the Port Industry reform Voluntary Severance of Employment Scheme in June 2005 are entitled to have their FNPF contributions totalling $ 271,530.98 paid by the first defendant into the said fund.
   

[3]. Having been aggrieved by the said decision, the 1st defendant-Fiji Ports Corporation Ltd filed an appeal. Subsequently, a Notice of Motion was also filed seeking to stay the execution of the judgment.

[4]. In support of the application for stay order, an affidavit was filed by the Personal Officer of the 1st defendant.

[5]. In the affidavit, it is stated that the order obtained by the plaintiff in this case was declaratory in nature and as such is not an order for the 1st defendant to pay the 2nd defendant per se.

[6]. It is further stated that in the event the plaintiff is allowed to enforce the order now and the 1st defendant is successful in its appeal later, the utility of this appeal would have been overtaken by events and the appeal would be rendered nugatory.

[7]. Furthermore, it is stated that the 1st defendant has strong grounds of appeal, the appeal has a high likelihood of success and the 1st defendant company is a wholly government owned company and also it has substantial assets and therefore, it has the ability to pay any award and/or damages if ordered against it by court.

[8]. Opposing the 1st defendant application for stay, an affidavit was filed by the plaintiff.

[9]. In the affidavit, it is deposed that the orders made by the court on 03.02.2011 made it clear that the payments made under the voluntary redundancy packages offered to the employees of the 1st defendant constitute a payment of wages for the purposes of the FNPF and as such all employees of the 1st defendant who accepted redundancy packages pursuant Port Industry Reform Voluntary Severance of Employment Scheme totalling $ 271,530.00 were entitled to the same.

[10]. It is further deposed that the appeal by the 1st defendant is merely designed to postpone the need to pay out as long as legally possible and the grounds of appeal are also unmeritorious.

Legal principles

[11]. Monk v.Bartram [1891] 1 Q.B.346.

The court does not make a practice of depriving a successful litigant of the fruits of his litigation, and locking up funds to which prima facie he is entitled, pending an appeal.

[12]. Wilson v. Church (No.2) (1879) 12 Ch.D.454, pp.458, 459, C.A.

When a party is appealing, exercising his undoubted right of appeal, this court ought to see that the appeal, if successful, is not nugatory.

[13]. Atkings v. G.W. Ry (1886) 2 T.L.R. 400.

As a general rule the only ground for a stay of execution is an affidavit showing that if the damages and costs were paid there is no reasonable probability of getting them back if the appeal succeeds.

[14]. In Metropolitan Real And General Property Trust Ltd v. Slaters And Bodega Ltd [1941] 1 A.E.R.310, the judgment was given against the defendant for the recovery of a sum of money and leave was given to the plaintiff to proceed to execution. The defendant thereupon obtained leave to appeal against the latter order, but no stay of execution was directed.

It was held; in such a case, a stay of execution ought to be granted automatically, since, if the debtor is compelled to pay the sum recovered, the basis of the appeal is destroyed.

[15]. In the above case Sir Wilfrid Greene, M.R stated as follows:

1. The fact that payment has been made destroys the whole basis of this appeal, and the result is that the appeal must be dismissed with the usual consequences. Generally, I would say with regard to applications under the Courts (Emergency Powers) Act, 1939, that, in the case of a judgment for money-I say nothing about other cases-where leave to appeal is given to the debtor, it should follow as a matter of course, and it should expressly stated in the order, that there should be a stay of execution pending the appeal. If that course is not taken, the debtor is under a compulsion to pay. As soon as he pays, the judgment is satisfied, and the substratum of the case is irretrievably destroyed. Therefore, it follows that, where leave to appeal is given to a debtor, the debtor should have a stay of execution in order that his appeal may be determined.
   

[16]. In this matter the judgment of the High Court was mainly founded on the interpretation of relevant provisions in FNPF Act and Voluntary Severance of Employment Scheme (VSES).

[17]. As can be seen from the defendant's grounds of appeal it mainly challenged the interpretation of above-mentioned provisions, and hence, the outcome of the appeal will mainly depend on the Court of Appeal's interpretation on the said provisions.

[18]. In a case dependent on the evidence of parties, of course, court can, to a certain extent, evaluate whether the grounds of appeal advanced are meritorious or not, but in an action of this nature it is difficult if not impossible to make such a prediction since, it is a matter of interpretation which decides the outcome of the case, and, therefore, in my opinion court should use a different yardstick to decide the merits of the present application for stay the execution.

[19]. It is undisputed that the plaintiff is the authorised representative of the members of the Port Terminal Ltd & Marine & Ports Authority of Fiji who were made redundant in June 2005 as part of the Ports Reform.

[20]. If the judgment of the High Court is executed the sum of $ 271,530.00 and the interest thereon which is the substratum of the case would be divided among the plaintiff and the other employees.

[21]. In other words the basis of the appeal is destroyed. It is true that the plaintiff should be allowed to enjoy the fruit of his case but at the same time court has to consider the degree of prejudice that can cause to the defendant if the Court of Appeal reverses the original decision subsequent to the execution of the judgment.

[22]. As stated in Duncan v. Osborne Building Ltd (1992) 6 PRNZ 85 (CA), at page 87 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'.

[23]. In the present case if the appeal is decided in favour of the plaintiff, he can always be compensated with cost and interest thereon hence the plaintiff will not be irreparably affected by granting a stay, whereas if the amount in dispute is disbursed among the plaintiff and other workers whom he represented, it would be a difficult if not an infeasible task to recover the money in case the defendant is successful in the appeal.

[24]. The plaintiff laid great stress on Attorney General v. Dre [2011]FJCA, but the facts and circumstances of that case can easily be distinguished from the instant case. In A.G.v.Dre, the plaintiff was awarded damages for a personal injury caused by the negligence of the defendant and the plaintiff had very strong evidence in his favour, whereas in the instant case the defendant challenges the manner of interpretation of certain clauses in the Voluntary Severance of Employment Scheme and FNPF Act, hence, the final outcome will mostly depends on how the Court of Appeal is going to interpret the aforesaid provisions. Further, when the importance of the issues involved in the appeal is considered it also favours a granting of a stay.

[25]. More importantly, in the present case court has to be mindful of the subject matter of the appeal and its preservation pending the appeal. As I stated earlier, if the High Court order is executed it would amount to a disposal of the appeal and therefore, the defendant's appeal would be rendered nugatory.

[26]. Furthermore, granting a stay would in my view not only preserve the subject matter of the case but also prevent causing any inconvenience to both parties given the nature of the case.

[27]. Since most of the aforesaid factors relate to the overall balance of convenience and the status quo, it is my considered view that this is a fit and proper case, which warrants a stay order.

[28]. Accordingly, I stay the execution of the High Court order until the appeal is concluded.

[29]. Costs shall be in the cause.

Pradeep Hettiarachchi
JUDGE

At Suva
20th April, 2012