Naidu v Hickie [2009] FJSC 13; SC CBV0001.2009S (11 February 2009)

IN THE SUPREME COURT OF THE FIJI ISLANDS,
AT SUVA

CIVIL APPEAL NO. CBV0001 OF 2009S
(Fiji Court of Appeal No. AAU0027 of 2008S)

IN THE MATTER of a Judgment dated 28 May 2008 from the First Respondent herein in the Fiji Court of Appeal. Civil Appeal No. 27 of 2008 between Angenette Melania Heffernan v. Edward John Byrne and Others

BETWEEN:

DOR SAMI NAIDU
Petitioner

AND:

THOMAS V. HICKIE
First Respondent

AND:

DEVENDRA PATHIK
Second Respondent

AND:

JOHN EDWARD BYRNE
Third Respondent

Coram: The Hon Justice, Kenneth Handley, Judge of the Supreme Court
The Hon Justice David Ipp, Judge of the Supreme Court
The Hon Justice Ronald Sackville, Judge of the Supreme Court

Hearing: Wednesday, 11^th February 2009, Suva

Counsel: Ms Tupou Draunidalo	]
Mr Dor Sami Naidu	] for the Petitioner
	]
Mr Christopher Pride	]
Mr Sarvada Nand Sharma	] for the Respondents

Date of Judgment: Wednesday, 11^th February 2009, Suva

JUDGMENT OF THE COURT

[1] This ex-parte application by Mr Naidu for a stay of execution on the orders of the Court of Appeal on 29 May 2008 is refused for four principal reasons:

(1) This Court sat in Suva in July and October 2008 without any application being made to this Court.

(2) The application has been made ex-parte on the last sitting day of the February session of this Court.

(3) There has been no satisfactory explanation for this delay on the part of a Senior Legal Practitioner.

(4) An applicant for urgent interlocutory relief must establish that there is substantial question to be tried. The foundation for the order that Mr Naidu pay costs personally is that he commenced proceedings in the Court of Appeal on behalf of Ms Heffernan without her authority. There is no material before this Court that establishes or tends to establish that he had her authority.

[2] The Court is disturbed by the procedures adopted by the Judge of the Court of Appeal prior to the hearing of this case on 23 May 2008 and we cannot possibly endorse such procedures. The Court is also disturbed by the intemperate and unnecessary language in the reasons for judgment of the Judge of the Court of Appeal of 29 May. This was a simple costs case and the Judge should have confined himself to the real issues and disposed of the matter in a few pages.

[3] The ex-parte motion is refused.

HON JUSTICE KENNETH HANDLEY
JUDGE OF THE SUPREME COURT

HON JUSTICE DAVID IPP
JUDGE OF THE SUPREME COURT

HON JUSTICE RONALD SACKVILLE
JUDGE OF THE SUPREME COURT

Solicitors:
Messrs Pillai Naidu and Associates, Nadi for the Petitioner
Office of the Attorney General Chambers, Suva for the Respondents