IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0438 OF 2003L

BETWEEN:

RAPCHAN HOLDINGS LIMITED
Plaintiff

AND:

NATIVE LAND TRUST BOARD
Defendant

Mr. F. Koya for the plaintiff
Mr. K. Qoro for the defendant

Date of Hearing: 8 September 2005
Date of Ruling: 8 September 2005

EX TEMPORE RULING

The defendant by a Notice of Motion filed on the 4th July 2005 seeks that the order of this court of the 13th May 2005 be stayed pending appeal and that the costs of this application abide the appeal.

In support of that application, the defendant relies upon the affidavits of Soloveni Masi sworn on the 30th June 2005 and the affidavit of Anare Cagi sworn on the 28th June 2005. Both parties have filed written submissions and addressed those submissions.

The Fiji Court of Appeal in March of this year in Natural Waters of Viti Limited v Crystal Clear Mineral Water (Fiji) Limited – Civil Appeal No. ABU0011 of 2004S considered the principles to be applied on an application for stay pending appeal and in doing so, at page 3 of that judgment, adopted the summary as set forth in the New Zealand text, McGechan on Procedure (2005). I repeat that test as set out by the Fiji Court of Appeal:

“On 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 (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 “

In considering these principles, it is necessary to look at the judgment, the subject of the appeal and the reason why it was entered in the manner that it was.

In an extempore ruling on the 22nd April 2005, I set forth a chronology of events with respect to the carriage of this matter by the defendant. That ruling preceded the hearing of the assessment of damages on that same day and don’t repeat the chronology, suffice to say, this matter from the defendant’s point of view, has an appalling history. It might be described as a matter that has been atrociously mismanaged and any attempt to justify that mismanagement has being completely inadequate. It is even suggested in the affidavit relied upon in support of this application that the delays and mismanagement were justifiable as officers resigned from the employ of the defendant and that:

“It’s Manager, Legal, was defending a few related charge for which he was subsequently convicted.”

I fail to see the relevance in these matters to the preparation and conduct of these proceedings by the defendant. They certainly are not matters that should impact on the plaintiff.

Notwithstanding what I have said when looking at the principles, it is clear from the submissions and the limited evidence before the court that there will be an effect on third parties if a stay not to be granted. That there is by virtue of the nature of the defendant, a public interest in the proceeding. It is not however anything to support a proposition that the appeal would be rendered nugatory be stayed be not granted, nor on the other hand, is there anything to suggest, apart from the obvious that the successful party would be injuriously affected by a stay. I say apart from the obvious because quite obviously the plaintiff deprived of the fruits of its judgment will be financially effected.

The principles require the court to ultimately look at the overall balance of convenience in the status quo. The amount of the judgment is indeed a large sum of money, $1,643,190.50. The fact that directors of the plaintiff company may be resident outside Fiji is immaterial. The authorities in this country have held that to be so in the past.

Whilst I regrettably have no confidence in the defendant conducting the appeal in a timely manner, I am of the view that on balance a stay should be granted. I therefore propose to grant a stay but to do so conditionally. Should there be any failure on the part of the defendant to comply with the terms of the conditions then I would expect the plaintiff to immediately exercise its rights.

The Orders of the Court will therefore be:

1.	The Orders of the Court of the 13th May 2005 are stayed pending appeal subject to the following conditions:

(a)	Defendant to comply with all Rules, timetables and directions of the Fiji Court of Appeal to ensure that the appeal is dealt with without delay.

(b)	The failure of the defendant to adhere to condition (a) shall cause the stay to lapse forthwith.

JOHN CONNORS
JUDGE

At Lautoka
8 September 2005