IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

JUDICIAL REVIEW NO. 0021 OF 1993

R.

v.

MINISTER FOR LABOUR AND INDUSTRIAL
RELATIONS

ex-parte SHORE BUSES LIMITED & ORS.

Mr. V. Kapadia for the Applicants
Mr. S. Banuve for the Respondent

RULING

On the 17th of August 1995 this Court dismissed the plaintiff company's application for judicial review and although no specific order was made regarding a 'stay order' that had been granted earlier in the proceedings, the parties accept that it effectively lapsed with the dismissal of the application. The order dismissing the action was sealed on the 6th of September 1995 and on 19th September 1995 the applicants lodged an appeal against the dismissal.

On the 22nd September 1995 a bare motion was filed seeking:

"AN ORDER that the (above-mentioned) ruling and all proceedings thereunder including the Wages Regulation (Road Transport) Order, 1993 be stayed until the hearing and determination of the Appeal to the Fiji Court of Appeal."

At the outset I note that the particular 'stay order' sought in this application is much wider than that earlier sought and granted by Byrne J. when the application for judicial review was originally filed.

I also note with some concern having regard to the rather protracted history of this case that the motion seeking the stay was not supported by an affidavit at the outset, and although this 'lacuna' was drawn to the attention of counsel on the 28th of September 1995, the supporting affidavit was not filed until the 15th January 1995 (i.e. almost 4 months after the motion was filed).

In Tuck v. Southern Counties Deposit Bank (1889) 42 Ch.D. 471 Kay J. in refusing an oral application for a stay of execution of his judgment in the case brought 9 days after judgment was delivered said:

"An application to stay execution under the judgment in an action should, unless it is made the moment after the judgment has been pronounced, be supported by an affidavit showing the special circumstances on which the application relies."

In this latter regard the supporting affidavit deposes to the applicant's belief that the appeal has a good chance of succeeding, and also that the 'balance of convenience' lies in maintaining the status quo (whatever that may mean).

Be that as it may it is common ground that the present application is brought pursuant to Rule 25 of the Court of Appeal Rules which provides: 

"25(1)	Except so far as the Court below or the Court of Appeal may otherwise direct - 

(a)	an appeal shall not operate as a stay of execution or of proceedings under the decision of the Court below."

At the hearing of the application however learned counsel for the respondent raised a preliminary question as to the applicability of the above 'Rule' to the circumstances of the case. In particular, counsel argued that having regard to the particular decision sought to be stayed there was firstly, nothing in the decision that required to be 'executed' and secondly, there are no longer any 'proceedings' in existence upon which a 'stay order' could attach.

Learned counsel for the applicants whilst accepting that the court's decision did not require the parties to do anything, nevertheless, submits that it had the positive 'effect' of removing the 'stay order' earlier granted by Byrne J. and as a result the applicants became bound to comply with the Wages Regulation (Road Transport) Order 1992.

Having carefully considered the opposing submissions I am inclined to agree with the respondent's submissions.

That 'Rule 25' has application to an order which requires some positive steps to be taken is clear from the decision of the Fiji Court of Appeal in K.R. Latchan Bros. Ltd. v. Sunbeam Transport & 2 Others Civil Appeal Nos. 45, 51, 57 & 61 of 1983 (unreported) where it said at p.8:

"Rule 25 is in identical terms to Order 59 rule 13 of the Supreme Court Rules in England ... All the cases annotated under Or. 59/13 and indeed the wording of the two Rules contemplates delaying some action which would have flowed from the decision ... In the absence of a stay, money may be paid over ... accounts may be taken ... all these are positive steps which are encompassed by the words 'execution or proceeding' flowing as a consequence of a judgment.

But quashing of a permit, which should not have been granted, does not set in train any such consequences. Its effect is that a benefit which a party obtained in earlier proceedings was improperly obtained and should not have been brought into being."

In the present case it is common ground that no 'positive steps' were ordered or required to be taken by either party in the court's dismissal of the application for judicial review nor in my view has any 'consequence' necessarily flowed from the Court's decision.

In this latter regard and despite counsel's submissions to the contrary, the dismissal of the application for judicial review did not have the 'effect' of bringing into force the Wages Regulations (Road Transport) Order 1992 ('Wages Order') which by Ministerial direction came into force on the 15th of September 1993. Nor did the dismissal either directly or indirectly require the enforcement of the 'Wages Order'. It may have indirectly cleared the way to its enforcement but the decision to enforce the 'Wages Order' (upon which there is not a shred of evidence) if taken, would be an administrative decision by the responsible Ministry.

That being the court's understanding of the position it is difficult to accept how a non-coercive, non-executory order such as a bare dismissal of an action can be the subject-matter of a stay. In my view such an order is akin to a declaratory judgment which by its nature does not involve any 'execution' which can be stayed (per Scott J. in The State v. The Registration Officer Tailevu Fijian Provincial Constituency ex parte Samuela Matawalu Judicial Review HBJ. 18 of 1995 ruling delivered on 14th November 1995).

Indeed in my view granting a stay in this case would tantamount to granting an injunction against the Ministry responsible for the enforcement of the Wages Regulations (Road Transport) Order and this the Court cannot and ought not to do (See: Section 15 Crown Proceedings Act Cap. 24 and the judgment of Pathik J. in Epeli Lagiloa v. P.S.C. and Anor. Judicial Review HBJ 0016 of 1994).

Counsel for the applicants submits however that granting the 'stay order' sought in the application would merely revive the position prior to the dismissal of the action including resurrecting the earlier 'stay order' granted by Byrne J. as if there had been no ruling given at all. I cannot agree that that would be the effect of granting the application nor do I accept that such an order would be within the competence of this Court to grant. If I may say so such a 'stay order' would be a meaningless non-sequitur.

Counsel for the applicants relied very heavily on the decision of the Resident Justice of Appeal in Reddy's Enterprises's Limited v. The Governor of the Reserve Bank of Fiji Civil Appeal No. 67 of 1990 ruling delivered on 9th August 1991 in which Byrne J. dismissed an application for judicial review and a conditional 'stay order' was granted pending appeal. That case however was concerned with a positive order of the Governor of the Reserve Bank directing the applicant to repatriate to Fiji funds held in London and in the absence of a 'stay order' the learned Justice of Appeal said: "I am satisfied that a refusal to grant a stay will render a successful appeal substantially if not wholly nugatory."

In this case no such 'positive order' exists nor has it been clearly demonstrated to the Court that the present application is a "... proceeding under the decision of the Court ..." within the terms of Rule 25(a) of the Court of Appeal Rules.

As was said by Lord Oliver in delivering the judgment of the Privy Council in Minister of Foreign Affairs v. Vehicles & Supplies Ltd. (1991) 1 W.L.R. 550 (not referred to in the Reddy Enterprises ruling) at p.556.

"A stay of proceedings is an order which puts a stop to the further conduct of proceedings in court or before a tribunal at the stage which they have reached, the object being to avoid the hearing or trial taking place. It is not an order enforceable by proceedings for contempt because it is not, in its nature, capable of being 'breached' by a party to the proceedings or anyone else."

In the context of the present case the proceedings in this Court have been finally determined by the court's dismissal of the application for judicial review and accordingly nothing more remains of the proceedings in this Court to put a stop to by way of a 'stay order'. Furthermore the order having being sealed I am of the view that this Court is 'functus officio' in the matter.

His lordship then sets out the terms of a Civil Procedure Rule in almost identical terms to Order 53 r.3(8)(a) of our High Court Rules and says:

"This makes perfectly good sense in the context of proceedings before an inferior court or tribunal, but it can have no possible application to an executive decision which has already been made. In the context of an allocation which had already been decided and was in the course of being implemented ... it (the stay order) was simply meaningless."

In this case as counsel frankly admitted the purpose of the stay application is to prevent the enforcement of the 'Wages Order' but if that is what is being sought then the appropriate procedure would be to seek an injunction. As was said by Lord Oliver (ibid at p.557): "... an injunction cannot be granted, as it were, by a sidewind ... As it was there were no 'proceedings' in being upon which the 'stay' could take effect."

In the result the application is refused with costs to the respondent.

(D.V. Fatiaki)
JUDGE

At Suva,
28th February, 1996.
HBJ0021D.93S