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Marea Land Group Incorporated v Tkatchenko [2022] PGNC 475; N9994 (5 October 2022)

N9994

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 925 OF 2018


MAREA LAND GROUP INCORPORATED
Plaintiff


V
HONOURABLE JUSTIN TKATCHENKO IN HIS CAPACITY AS THE MINISTER FOR LANDS & PHYSICAL PLANNING, URBANIZATION AND APEC 2018
First Defendant


AND
IRUNA ROGAKILA IN HIS CAPACITY AS THE REGISTRAR OF INCORPORATED LAND GROUPS
Second Defendant


AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


AND
NEW BRITAIN PALM OIL LIMITED
Fourth Defendant


AND
PHILIP VITOLO
Fifth Defendant


AND
KENNY SONNY
Sixth Defendant


AND
HERMAN PASI
Seventh Defendant


AND
VINCENT TOVILI
Eighth Defendant


Waigani: Miviri J
2022: 4th & 5thOctober


PRACTICE & PROCEDURE – Judicial Review & Appeals – Notice of Motion – Order 1 Rules 7 & 15 Order 04 Rule 38 (3) & 49 (5) (d) NCR – Stay Pending Supreme Court Decision Competency – Law On Stay – Facts & Circumstances Warranting – Balance Discharged – Motion Granted – Cost in the Cause.


Cases Cited:
McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279
Ombudsman Commission v Yer [2009] PGSC 45; SC1041
Duma v Puk [2019] PGSC 1; SC1754
Barrick Niugini Ltd v Nekitel [2021] PGNC 60; N8791


Counsel:
H. Leahy, for Plaintiff
W. Mininga, for Fourth Defendant
E. Isaac, for Fifth Defendant


RULING

05th October, 2022

  1. MIVIRI, J: This is the ruling on the Notice of Motion of the fifth defendant filed pursuant to Order 1 Rule 7 and 15, Order 4 Rule 38 (3) and Rule 49 (5) (d) of the National Court Rules.
  2. In it he also seeks pursuant to section 155 (4) of the Constitution, Order 12 Rule 1, and Order 16 Rule 13 (13) (1) of the National Court Rules, that in the exercise of the inherent jurisdiction of the Court for the control of the proceedings and Stay Pending the conclusion of the Supreme Court proceedings SCA No. 162 of the 2021.
  3. And further costs in the cause and any other orders as discretionary upon the Court as it sees appropriate. And that the entry of the orders be abridged.
  4. In simple the fifth defendant seeks a stay of the proceedings current pending the decision of the Supreme Court in the determination of the objection to competency of the appeal.
  5. And in support of the motion, he relies on the evidence of:

(i) Affidavit of Philip Vitolo filed of the 17thDecember 2021;

(ii) Affidavit of Charlie Pingi filed of the 21st June 2022;

(iii) Affidavit of Philip Vitolo filed of the 21st June 2022;

(iv) Affidavit of Emmanuel Isaac filed of the 21st June 2022;

(v) Affidavit of Ricky Roy filed of the 30th September 2022;

(vi) Affidavit of Ricky Roy filed of the 03rd October 2022.


  1. Relevantly this establish that on the 03rd December 2021 I heard and made orders in favour of the application filed by the plaintiff of the 1st October 2021. Which were taken out on the 08th December 2021 document 106 in the records on file. Part of the orders made were that Philip Vitolo’s affidavit of the 18th August 2021 was struck out. Secondly confirmation and certification of the review book. And thirdly order was made for costs on indemnity basis against the fifth defendant to be paid within 7 days which was to have expired on the 15th December 2021.
  2. Plaintiff has raised that costs have not been paid as ordered as of the 15th December 2021. No material has been filed of this fact. But counsel has merely placed at the outset before the hearing of the application for Stay by the fifth defendant today. In a way he is contending that further agitation of this matter will not arise until the costs is paid by the fifth defendant. And he relies on the fact that the order was to have been complied by the fifth defendant on the 15th December 2021. And in support he has referred to the orders made then which are self-explained. But there is no affidavit material to show the failure on the part of the fifth defendant in respect of the compliance of that order. It is therefore without the necessary evidence in that regard. And to hold in favour of the plaintiff will be without that evidence. Hence no orders will flow from it in favour of the plaintiff.
  3. On the converse, the strength of the evidence that the fifth defendant has filed in support of his application for seeking a stay of this proceedings establishes that on the 07th December 2021, an application for leave to appeal was filed in the Supreme Court against the orders particulars set out above by this Court of the 03rd December 2021. Which is referenced as SCA No. 162 of 2021, part of which was the order as to Costs on an indemnity basis. The fifth to Eight Defendants were aggrieved and applied for rehearing of the application by the full Supreme Court invoking section 10 (2) of the Supreme Court Act to appeal the decision of the single Judge to the full Court. This is the decision that was made by Justice Hartshorn on the 13th December 2021. In it he found error but nevertheless refused leave against the fifth to the eight defendants because they had recourse to this Court on the grounds appealed.
  4. Further facts which are illuminated by the evidence set out above are that on the 17th December 2021 the fifth to the eight defendants filed a notice of motion to clarify the costs order as to whether the order for costs was for the whole of the proceedings or for the application filed on the 1st October 2021. And whilst that was pending the plaintiff had its cost taxed on the 07th June 2022. It was for the entire proceedings from the 10th December 2018 to the 03rd December 2021. To which the applicant here exercised his rights under the rules of the Court to apply for review. Which application was filed on the 21st June 2022. And to which the plaintiff responded with an application to dismiss the application to review on the 04th July 2022.
  5. Further material facts are contained in the affidavit of Ricky Roy sworn of the 29th September 2022 filed 30th September 2022. There he deposes there that he is the clerk with Emmanuel Lawyers. That he has knowledge of the facts. That an appeal was filed annexure “A”. And that on the 27th September 2022 the full Supreme Court heard the objections hearing and reserved its decision. And they were the objections that were filed by the Plaintiff here. And annexure “B” is the amended objection to competency. It basically challenges the jurisdictional basis of the appeal that the applicant has lodged. And asks its dismissal because the facts relied do not bring the jurisdictional basis for the appeal by the applicant.
  6. These facts have not been refuted by the plaintiff and in fact have been conceded. But has argued that a similar application has been filed for Stay in the Supreme Court. That is not anchored further by material that indeed it has been filed and is on the record of the Supreme Court. Even if it were so filed any decision in respect of the objection raised by the plaintiff pending determination by the Supreme Court will have immediate effect and bearing on the matter as it is. Rather than complicate with entry of Judgment on the costs argued by the Plaintiff, it would be safe to allow the Supreme Court to determine the matters which are raised by the objection pending before it. What has been raised is part and parcel of the present facts and circumstances and it would be conducive to allow that process to help settle the issues that have been raised by far outstanding.
  7. This is not a remote issue but is from material that is before the court now raised to the Supreme Court in appeal and against which objection has been raised by the plaintiff. It is proper that that process is seen out to settle the issue before the matter proceeds any further in the National Court. There is no prejudice to either side to see out the ruling of the Supreme Court. Because it is the plaintiff who has raised the objection to the appeal before the Supreme Court against the applicant here on his appeal lodged. Both have an interest in its outcome which will have a bearing on the current proceedings as that is a determination by the Supreme Court. It will no doubt have an impact in the way the matter is proceeded after here in the National Court. These are basis where both sides of the dispute will have a stand in the way the matter proceeds after. It will not be detrimental to either side in the application for Stay, or as submitted by the applicant, an adjournment to allow the ruling from the Supreme Court. And in this regard a stay is viable given.
  8. The law on Stay is often set out and referred to in the case of McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279 and in my view applicable here given the facts. Particularly considering that there is a decision that is pending in the Supreme Court on objection that the plaintiff has raised against the appeal that the applicant has instituted. There it was an application that was made pursuant to section 19 of the Supreme Court Act for order to stay the execution of injunctive orders that were issued by the National Court made against the applicant pending the hearing of his application for leave to appeal. The respondents, after filing an application in the National Court to enforce a restraint of trade clause against the applicant, obtained an interim order restraining him from continuing employment in similar business activities until the determination of the proceedings. The Supreme Court refused the application for Stay.
  9. Here the applicant with the plaintiff are waiting on the objection to the competency of the appeal of the applicant for the Supreme Court to give its ruling on the matter. Given that fact the case of McHardy is relevant and applicable here. And I apply it in the determination of the matter here. There is no hard and fast rules as to what is appropriate for a Stay. Each case is determined on its own facts as to what is appropriate for Stay. But guidelines that come out here in the consideration of a Stay are; Whether leave to appeal is required and whether it has been obtained? Whether there is any delay in the application that is made. And whether there are possible hardship, inconvenience, or prejudice to either party. Here obviously there is non as observed and as set out above. Both would be interested in the outcome of the ruling that is pending before the Supreme Court. And therefore the nature of the Judgment sought would be in their favour and stay would simply be estopping the proceedings in the National Court to await that determination which may or may not benefit one or the other in the proceedings currently. It will have the effect of expediting the matter now stalled because of that fact. And further litigation in the way that the plaintiff has submitted, judgment for it in the sum taxed will not alleviate the matter but create a conflict with the ruling it has filed by the objection against the appeal.
  10. In this regard it would be saving costs unnecessarily because the proceedings has not come to the root cause of the matter. What is argued over are preliminary to the cause of action and therefore to allow the stay will be beneficial to both sides as costs will be cut down. And the trim by the ruling will benefit the proceedings as a whole from the ruling by the Supreme Court currently pending. In this regard financially it is beneficial to both sides of the dispute. And on the basis of which a stay is viable given. Arguably the preliminary assessment on this basis is more for the Stay then otherwise. Because the challenge by the plaintiff on the basis of the objection will steer out whether or not the appeal by the applicant is competent or not. If it is leave is granted for the appeal and it is heard. Whatever decision is made will affect the present proceedings and therefore a stay is viable given. Jurisdiction is an important consideration that will draw down to the current proceedings. Which means that the overall interest of justice given is for stay given. And the balance of convenience is for that because damages is not viable considering that this ruling is a stepping stone as to whether the appeal stands or falls. If there is no leave to appeal matter will revert back here in the national Court. But if leave is granted than the appeal goes through to be argued. That is an important process for the current proceedings. Its determination and decision will have immediate effect on the way this proceedings are further litigated for and against by both parties to seek justice in their individual cases.
  11. A stay is viable and apparent given considering that the overall weight of all favours a stay. This is not likened to Ombudsman Commission v Yer [2009] PGSC 45; SC1041 (3 August 2009) where stay was refused. But it will fall similar in principles to Duma v Puk [2019] PGSC 1; SC1754 (7 January 2019) where stay was granted pending the determination of the review that was sought out in the supreme Court there. This is not a case as was in Barrick Niugini Ltd v Nekitel [2021] PGNC 60; N8791 (14 April 2021) where there is an issue of the application of law privity of contract that sets the parties apart. Here the issue pending determination is beneficial to the parties on either side. And the aggregate of the matter is for a grant of the application made for a Stay whilst the issues raised in the Supreme Court are settled. The discretion invoked is granted a stay is hereby granted of this proceedings until the determination of objections to competency raised is determined by the Supreme Court which ever way it is made. If it is for grant of leave the appeal is processed. If it is against grant of leave the appeal does not go ahead the matter reverts back here by that fact to the National Court to continue the path it has begun up to now.
  12. Given it is not necessary to make any further determinations in this matter on the issues raised and outstanding here. All will be reverted to after SCA No. 162 of 2021 is concluded.
  13. Accordingly, the formal orders of the Court are:

Orders Accordingly.


__________________________________________________________________
Pacific Legal Group lawyers: Lawyer for the Plaintiff/Applicant
Office of the Solicitor Generals: Lawyer for State Defendants
Emmanuel Lawyers: Lawyer for the Fifth Defendant

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