SC743

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

BETWEEN:

BUKA HUINJ
First Appellant

AND:

HAMI YAWARI, GOVERNOR OF SOUTHERN HIGHLANDS PROVINCE
Second Appellant

AND:

THE ACTING ADMINISTRATOR, SOUTHERN HIGHLANDS PROVINCE
Third Appellant

AND:

SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT
Fourth Appellant

AND:

KUNDAPEN TILA
First Respondent

AND:

LAI VALLEY LOCAL-LEVEL GOVERNMENT COUNCIL
Second Respondent

BETWEEN:

BRIAN PEBO THE ACTING ADMINISTRATOR
SOUTHERN HIGHLANDS PROVINCE
First Appellant

AND:

HAMI YAWARI, THE GOVERNOR
SOUTHERN HIGHLANDS PROVINCE
Second Appellant

AND:

NAKON IPE
First Respondent

AND:

POROMA RURAL LEVEL
GOVERNMENT COUNCIL
Second Respondent

BETWEEN:

DICKSON MAPU
Appellant

AND:

NAKON IPE
First Respondent

AND:

POROMA RURAL LEVEL
GOVERNMENT COUNCIL
Second Respondent

Mt. Hagen: Hinchliffe J.
2004: April 8

Brief Reasons for Decision

8 April 2004

Hinchliffe J:	These three matters were heard together in Waigani and subsequently adjourned for decision today in Mt. Hagen.

In S.C. Appeal No. 135 of 2003 the appellants have moved the Court, inter alia, for the following Order,

"1.	That the order of His Honour Justice Kandakasi made on the 13th November, 2003 at the Waigani National Court in O.S. No. 358 of 2003 be stayed pending the hearing of the Notice of Appeal."

The said Order of the 13th November, 2003, in essence is that Kundapen Tila the first plaintiff in O.S 358/03 and the first respondent in this Appeal be sworn in as a member of the Southern Highlands Provincial Assembly within seven (7) days from the date of the Order.

In S.C. Appeal No. 136 of 2003 the appellants have, inter alia, moved the Court for the following Order,

"1.	That the order of His Honour Justice Kandakasi made on the 13th November, 2003 at the Waigani National Court in O.S. No 301 of 2003 be stayed pending the hearing of the Notice of Appeal."

The said Order of the 13th November, 2003 was that the plaintiff, Nakon Ipe (the first respondent in this Appeal) was to be sworn in as the member of the Southern Highlands Provincial Government Assembly within seven (7) days from the date of the order.

And thirdly in S.C. Appeal No. 138 of 2003 the Application reads, inter alia, as follows:

"1.	Compliance with all the Orders made on the 13 November, 2003 by the Honourable Justice Kandakasi in O.S. No. 301 of 2003 be stayed pending determination of this Appeal."

The filing of these Notices of Motion and the Application are necessary because when parties lodge Appeals to the Supreme Court, that does not stay the Orders of the National Court.

Section 19 of the Supreme Court Act provides as follows:

"19.	Stay of proceedings on Appeal.

Unless otherwise ordered by the Supreme Court or a Judge, an appeal, or an application for leave to appeal, to the Supreme Court does not operate as a stay or proceedings."

The leading case on this topic is Gary McHardy v Prosec Security and Communication Ltd. trading as Protect Security SC646.

That is a decision of the Supreme Court, delivered on the 30th June, 2000. (Amet CJ, Jalina & Kirriwom JJ.). It is an important case because it did away with the accepted test for a successful application for a stay order. At page 8 the Court said the following:

"To conclude that the test for a successful application for stay should be whether there are "special" or "exceptional circumstances" or that there is a "good reason" or that it is an "appropriate case" is restrictive. We think what is important to articulate are the factors and circumstances that may be relevant or appropriate in differing cases from time to time.

We distil from these precedent cases the kinds of factors and circumstances that the Court will consider, amongst others, in the exercise of the discretion whether or not to grant a stay order. We start with the principal premise that the judgment creditor is entitled to the benefits of the judgment. The other factors include the following:

•	Whether leave to appeal is required and whether it has been obtained;

•	Whether there has been any delay in making the application.

•	Possible hardship, inconvenience or prejudice to either party.

•	The nature of the judgment sought to be stayed.

•	The financial ability of the applicant.

•	Preliminary assessment about whether the Applicant has an arguable case on the proposed appeal.

•	Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure.

•	The overall interest of justice.

•	Balance of convenience.

•	Whether damages would be sufficient remedy."

McHardy (supra) overturned several of our earlier Supreme Court decisions which had confirmed the "exceptional circumstances" test. In all of those past cases the Bench was comprised of three Judges. It would seem to me that the time will come when five Judges will need to finally decide the point because at the moment it is not entirely satisfactory. We have a situation where several three Judge benches have disagreed with each other, and only five Judges can cure that, sometime in the future. There is no doubt though that McHardy (supra) is the latest Supreme Court decision on the appropriate test.

I do not propose to go through all the affidavits and annexures that have been filed but only to say that even though there is a considerable amount of reading in them, including Counsels’ submissions, I have read and considered all of them and I am indebted to Counsel for their thorough research.

To my mind the said Notices of Motion and Application should succeed because in particular I refer to McHardy (supra) at page 9 where the Court said on factor to consider is, "whether on the face of the record of the judgment there may be indicated apparent error of law or procedure." It seems to me that, on the face of it, there was a denial of natural justice and also His Honour may well have fallen into error when directing the said seven (7) day period relating to the swearing in of the two (2) men. That could have clashed with a sitting of the National Parliament. They are just several points that go through my mind. But it does seem to me that an appeal (s) will be successful and possibly the matters will be returned to the National Court for a full trial.

In the meantime, however, the people in the relevant areas are suffering and I am therefore going to recommend that the Appeals are heard as soon as possible.

I order that:

1.	The Orders of Justice Kandakasi on the 13th November, 2003 be stayed until further Order.
2.	The Appeals be given some priority and be heard as soon as possible.
3.	Costs in the cause.

Orders accordingly.
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