Kumar v Minister for Works, Transport and Public Utilities [Water & Energy] [2014] FJHC 20; HBC141.2013 (31 January 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 141 of 2013

BETWEEN:

JASWANT KUMAR t/a KUMAR'S HARDWARE SUPPLIES of Waituri Road, Nausori, Businessman.
PLAINTIFF

AND:

MINISTER FOR WORKS, TRANSPORT AND PUBLIC UTILITIES [WATER & ENERGY] of 87 Ratu Mara Road, Nasilivata House, Samabula, Suva.
FIRST DEFENDANT

AND:

ATTORNEY GENERAL OF FIJI sued pursuant to the Crown Proceedings Act [Cap 24] of Suvavou House Building, Suva.
SECOND DEFENDANT

BEFORE : Acting Master Thushara Rajasinghe

COUNSEL : Mr. Niubalavu P. K. for the Plaintiff
Ms. Mani R. with Ms Chand S. for the Defendants

Date of Hearing : 9th December, 2013
Date of Ruling : 31st January, 2014

RULING

1. INTRODUCTION
   

1. The second defendant filed this summons for stay proceedings seeking following orders inter alia,
   
   1. That there be a stay of these proceedings for six months and a review thereafter pending the outcome of criminal investigations by the Fiji Independent Commissions Against Corruption into allegation of collusion and corruption between the employees of the first Defendant and the Plaintiff,
      
   2. Any other orders deemed just and necessary by this Honourable court.
      
2. The Plaintiff, upon being served with this Summons for Stay Proceedings, filed his affidavit in response. Subsequently, this Summons was set down for hearing on 9th of December 2013 where learned counsel for the Defendant and the Plaintiff made their oral arguments and submissions. At the conclusion of the hearing, both counsel were invited to file their respective written submissions which they filed accordingly.
   
3. Having considered the respective affidavits, oral and written submissions of the parties, I now proceed to pronounce my ruling on this Summons as follows.
   

2. BACKGROUND.
   

4. The factual background of this Summons is founded in the Affidavit of Manasa Lesuma where he deposed that the first Defendant was informed by the Fiji Independent Commission Against Corruption (FICAC) that there is a pending investigation into allegations of collusion and corruption between the employees of the first Defendant and the Plaintiff. He further deposed that eight employees of the first Defendant have already been suspended pending this investigation and all documents pertaining to the first Defendant dealing with the Plaintiff have been handed over to the FICAC to facilitate the said investigation. Mr. Manasa stated that this investigation into the allegation of collusion and corruption has a direct bearing on the course and outcome of the present case.
   
5. The Plaintiff contended that the first Defendant has no basis for this application of stay proceedings. He further submitted that if the order sought in this Summons granted, it will prejudice the Plaintiff. He further contended that he has not been charged for any offence in respect of the subject matter in this proceedings.
   

100. THE LAW,
     

6. Megaw LJ in Jefferson Ltd v Bhetcha (1970) 2 All E.R. 1108 discussed the law pertaining to the issue of stay of proceedings in Civil litigation where His lordship held that
   

"I should be prepared to accept that the court which is competent to control the proceedings in the civil action, whether it be a master, a judge, or this court, would have a discretion, under s 41 of the Supreme Court of Judicature (Consolidation) Act 1925, to stay the proceedings, if it appeared to the court that justice (the balancing of justice between the parties) so required, having regard to the concurrent criminal proceedings, and taking into account the principle, which applies in the criminal proceeding itself, of what is sometimes referred to as the 'right of silence' and the reason why that right, under the law as it stands, is a right of a defendant in criminal proceedings. But in the civil court it would be a matter of discretion, and not of right. There is, I say again, in my judgment, no principle of law that a plaintiff in a civil action is to be debarred from pursuing that action in accordance with the normal rules for the conduct of civil actions merely because so to do would, or might, result in the defendant, if he wished to defend the action, having to disclose, by an affidavit under Ord 14, or in the pleading of his defence, or by way of discovery or otherwise, what his defence is or may be, in whole or in part, with the result that he might be giving an indication of what his defence was likely to be in the contemporaneous criminal proceedings. The protection which is at present given to one facing a criminal charge (the so-called 'right of silence') does not extend to give the defendant as a matter of right the same protection in contemporaneous civil proceedings".

7. The judicial dictum of Megaw LJ in Jefferson Ltd (supra) is mainly focused on the issue of "right of silent" of the accused person in a criminal proceedings. This principle has no direct relevance to this instance application as the Plaintiff who is being subjected to this ongoing criminal investigation is objecting for this stay application. However, the principles enunciated in His Lordship's observation in respect of the scope of the stay proceedings undoubtedly have a supportive bearing in this instance application before me. Accordingly, I find that the court has discretion of controlling the civil proceedings. Wherefore, the accused person could not seek an order for stay of civil proceedings as of a right merely on the ground that he is charged in a contemporaneous criminal proceeding.
   
8. The burden is on the Defendant in the civil action to satisfy the court that it is just and convenient to stay proceedings and interfere with the plaintiff's right of proceed with his claim uninterruptedly. (Jefferson Ltd (supra).
   
9. Megaw LJ having discussed the legal principle on the application in this nature, further outlined the factors to be considered in stay proceedings, where his lordship held that
   

"Of course, one factor to be taken into account, and it may well be a very important factor, is whether there is a real danger of the causing of injustice in the criminal proceedings. There may be cases (no doubt there are) where that discretion should be exercised. In my view it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors. By way of example, a relevant factor telling in favour of a defendant might well be the fact that the civil action, or some step in it, would be likely to obtain such publicity as might sensibly be expected to reach, and to influence, persons who would or might be jurors in criminal proceedings. It may be that, if the criminal proceedings were likely to be heard in a very short time (such as was the fact in the Wonder Heat case in the Victoria Supreme Court) it would be fair and sensible to postpone the hearing of the civil action. It might be that it could be shown, or inferred, that there was some real, not merely notional, danger that the disclosure of the defence in the civil action would, or might, lead to a potential miscarriage of justice in the criminal proceedings, by, for example, enabling prosecution witnesses to prepare a fabrication of evidence or by leading to interference with witnesses or in some other way.

10. In summation, I find that it is the court's discretionary power to grant an order of staying of civil proceedings. This discretion need to be exercised in order to determine whether there is a real danger of causing of injustice in the Criminal Proceedings.
    

4. ANALYSIS
   

11. Bearing in mind the relevant laws on the issue of stay of proceedings and the respective affidavits and submissions of the parties, I now turn to analyses the submissions of the respective parties with these relevant applicable laws in order to reach my conclusion.
    
12. The main factor to be considered in this instance case is whether there is a real danger of causing of injustice in the possible criminal proceedings or in this ongoing criminal investigation. The plaintiff is vehemently opposing for this application on the ground that this is a premature application as FICAC is still conducting their investigation and no proper charges have been pressed against the Plaintiff.
    
13. The Defendant merely stated that there is a pending investigation into allegations of collusion and corruption between the employees of the first Defendant and the Plaintiff. The deponent failed to provide the statues and the progress of the said investigation. There is no any evidence or information before the court, whether the FICAC is considering to charge the Plaintiff.
    
14. The Learned counsel of the Defendant submitted in her oral argument that if the order of stay proceedings was not granted, it would prejudice the investigation and possible criminal proceedings. However, she failed to elaborate any reasons or grounds for such a contention. She further alleges that granting of this order prevent the abuse of court process and save the time of the court and the parties. Again I must state that the learned counsel failed to elaborate her contention with sufficient facts and grounds.
    
15. A mere contention of abuse of process and prejudice to the pending investigation does not necessarily warrant an order of stay proceedings. The defendant is required to satisfy the court the existence of real but not merely notional danger of injustice in order to interfere with the Plaintiff's entitlement to have his action tried in the ordinary course of the procedure and business of the court.
    

5. CONCLUSION.
   

16. Having considered the reasons set out above, I have come to the conclusion that the Defendant failed to satisfy the court that there is a real danger of the causing of injustice in this ongoing criminal investigation and possible criminal proceedings if the court allowed the Plaintiff to proceed this claim in the ordinary cause of the procedure and business of the court. I therefore, refuse to grant orders in terms of the Summons and dismissed the same accordingly. The Plaintiff is granted a cost of $ 350 assessed summarily
    

Dated at Suva this 31st day of January, 2014.

R.D.R Thushara Rajasinghe
Acting Master of High Court, Suva