SC1286
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 30 OF 2013

BETWEEN

TZEN PACIFIC LIMITED
First Appellant

AND

SUMBA ALAM (PNG) LIMITED
Second Appellant

AND

VINCENT DAVU, JAMES ROBIN, GERALD TULE, CHRIS MANGAEA & STEVEN PANDI for themselves and on behalf of other landowners of the Taveleaipu Clan
Respondents

Waigani: Kassman, J
2013: 1st and 11th July

SUPREME COURT – practice and procedure – application for stay – principles applicable for grant of application for stay – consideration of – application does not meet criteria for grant of stay order – application refused

Counsel:

Mr Francis Griffin, for the Appellants
Mr George Kaore, for the Respondents

Legislations cited:

Section 14(3)(b)(ii) of the Supreme Court Act c.37
Order 7 Rule 17 of the Supreme Court Rules 2012
Order 1 Rule 7 of the Supreme Court Rules 2012
Sections 5(1)(b) and 19 of the Supreme Court Act

Cases cited:

McHardy v. Prosec Security and Communications Ltd [2000] PNGLR 279 SC646

DECISION
(Application for Stay)

11th July, 2013

1.	KASSMAN J: Tzen Pacific Ltd and Sumba Alam (PNG) Limited, the Appellants, appeal a decision of the National Court made on 7 March 2013 in WS No. 99 of 2011 Vincent Davu and Others v Enos Dukduk and Tzen 	Pacific Ltd and Sumber Alam (PNG) Ltd.

2.	The decision on appeal is in the following terms:

i.	The interim – order of 13th March 2013 is uplifted.

ii.	All parties are restrained from interfering with each other's interests and position in whatever manner or form.

iii.	Ownership must be resolved in open forum with every member of the landowning group presence.

iv.	Cost be in the course

v.	Matter returns substantively on 18th April 2013.

3.	The date in the first paragraph of the order should be 13 February 2013 and 	not 13 March 2013. This is obviously a typographical error.

4.	It is agreed the decision on appeal is not a final decision as it does not determine the issues in dispute. It is an interlocutory decision of the National Court. 

5.	Section 14(3)(b) of the Supreme Court Act Chapter 37 provides that "No appeal lies to the Supreme Court without leave of the Supreme Court from an interlocutory judgment made or given by the National Court except – 

i.	where the liberty of the subject or custody of infants is concerned; or
ii.	in cases of granting or refusing an injunction or appointing a receiver; or
iii.	in such cases provided by the Rules of Court as are in the nature of final decisions; …" (underlining mine) 

6.	The Respondents, Vincent Davu and others, filed Notice of Objection to Competency on 2 May 2013 and argue the Appellants need leave to appeal as some grounds of appeal concern questions of fact and the Decision of 7 March 2013 is an interlocutory Decision which does not fall within the exceptions under Section 14(3)(b) of the Supreme Court Act c.37 .

7.	The Appellants argue the first part of the order of 7 March 2013 which uplifted Restraining Orders of 13 February 2013 falls within Section 14(3)(b)(ii) and, as such, leave to appeal is not required.

Background

8.	In the National Court, the Respondents claim the Appellants' tug boat and pontoon went aground on a reef owned by the Respondents. The Respondents claim the grounding was caused by the negligence of the crew of the tugboat and the grounding and resulting fuel or oil spill caused destruction to the reef. The Respondents claim damages from the Appellants for the destruction to the reef. 

9.	The Appellants filed a defence to the claim disputing the existence of the reef and the Respondents claim to ownership of the reef. The Appellants also dispute the claim that the crew of the tug boat were negligent in the operation of the tug boat. 

10.	On 18 May 2011, the National Court ordered the Appellants remove the pontoon exercising due care not to cause substantial damage to the coral marine environment. The National Court also ordered that, if they are unable to establish by agreement the extent of damage, "they shall jointly engage the services of an independent marine biologist/scientist to investigate and report the extent of damage with possible amount of compensation."

11.	The National Court has on five further occasions repeated its orders for removal of the pontoon and that was on 14 June 2011, 10 August 2011, 14 September 2011, 22 September 2011 and 19 October 2011. 

12.	The Respondents claim the Appellants have failed to comply with the orders of the National Court of 18 May 2011 and the five subsequent orders. The Respondents have filed contempt proceedings. 

13.	The Appellants then filed an application in the National Court to dismiss those proceedings claiming the Respondents lacked standing to institute those proceedings. 

14.	Both the contempt application and application to dismiss have yet to be heard and determined.

15.	The Respondents say they engaged a marine biologist who has conducted an assessment of the reef and the damage caused and the report is to be filed soon.

16.	On 11 February 2013, the Respondents sought the urgent listing of a motion they had filed seeking orders to restrain officers of the Appellant companies from, in effect, entering into discussions with clans or clan members represented by the Respondents and offering or giving money or goods of any kind and inducing disharmony among the respondent clansmen. 

17.	The Respondents' request to move the application urgently and in the absence of, or without notice to, the Appellants was refused by Justice Kariko who issued a direction in chamber that the Respondents first serve the Appellants and the matter must then return on 15 February 2013. 

18.	Instead of waiting and returning on 15 February 2013 and without serving the Appellants, the Respondents had their application brought before Justice Kandakasi on 13 February 2013 and his Honor issued the restraining orders sought by the Respondents. The orders of the court were:

1.	The requirements for service of this Notice of Motion is dispensed forthwith. 

2.	The Second and Third Defendants and their managing director, MR PETER LING or KOH WOO LING is restrained forthwith from disturbing and interfering with the Plaintiffs court proceeding herein and from making any offer in the form of money or goods of any kind in any manner or form, that may amount to an inducement to destabilize the Plaintiffs and landowners of Taveleaipu Clan including JOE DEMI and MARK GAWARI, until determination of this proceeding.

3.	The Defendants and their managing direction, MR PETER LING or KOH WOO LING is restrained forthwith from discussing, negotiating and or making any payment for damages in this matter to persons known as JOE DEMI and MARK GAWARI or their agents or servants or whosever otherwise, until determination of this matter.

4.	JOE DEMI and MARK GAWARI and their servants, agents and whosever otherwise are restrained forthwith from conducting and holding any meeting for purposes of negotiating any payment for damages for this court proceeding herein with the Second and Third Defendants and PETER LING, until determination of this proceeding.

5.	JOE DEMI and MARK GAWARI and their servants, agents and whosever otherwise are restrained forthwith from disturbing and interfering with the Plaintiffs court proceeding herein and conducting and holding any meeting with the Plaintiffs and Tavelleaipu landowners concerning this matter until determination of this proceeding.

6.	JOE DEMI and MARK GAWARI and their servants, agents and whosever otherwise are permanently restrained forthwith from holding themselves as the purported executives of Tavelleaipu Incorporated Land Group (ILG) for purposes of receiving any payment for damages arising from this matter and or for any other purposes related to the Plaintiffs court proceeding herein. 

7.	All parties to this proceeding and in particular the defendants against whom the foregoing orders are made are at liberty to enter into settlement discussions with and through plaintiffs' lawyer Waviha Lawyers including settlement through mediation failing any direct negotiation.

8.	Time is abridged to the time of settlement with the Registrar, which shall take place forthwith.

9.	The matter shall return before the court on 7th March 2013".

19.	The Appellants claim the Respondents' lawyer failed on 13 February 2013, when moving their application, to inform Justice Kandakasi of the directions of Justice Kariko of 11 February 2013. 

20.	On 7 March 2013, Justice Kandakasi heard the Respondents and the Appellants and issued orders set out above by uplifting the restraining orders of 13 February 2013 and issuing the further orders. Of relevance are the first and second orders:

i.	"The interim – order of 13th March 2013 is uplifted." (as stated earlier the correct date was 13 February 2013) 

ii.	All parties are restrained from interfering with each other's interests and position in whatever manner or form."

21.	This Appeal is from all the Orders of 7 March 2013. It is certainly arguable the first order in uplifting the restraining orders of 13 February 2013 and the second order restraining the parties from interfering with each other's interests and position are "cases of granting or refusing an injunction" within the meaning of section 14(3)(b)(ii). As such, it is arguable the Appellants do not require leave to appeal the orders of 7 March 2013.

22.	To rule on such argument would effectively decide the objection to competency filed by the Respondent on 2 May 2013. That is not a power I have sitting as a single judge of the Supreme Court. The hearing and determination of an objection to competency of an appeal is a matter that falls within the jurisdiction of the Supreme Court. 

23.	Order 7 Rule 17 of the Supreme Court Rules provides "An objection of which notice has been given shall be determined by the court …" and the "Court" is defined in Order 1 Rule 7 as "the full court of the Supreme Court of Justice".

Application for stay – principles applicable 

24.	The application for stay is made pursuant to Sections 5 and 19 of the Supreme Court Act. Section 19 provides "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 of proceedings."

25.	Section 5(1)(b) provides "an interim order to prevent prejudice to the claims of the parties may be made by a judge." Order 1 Rule 7 of the Supreme Court Rules 2012 states "Judge" "means a judge of the Supreme Court of Justice".

26.	The leading judgment of the Supreme Court in McHardy v. Prosec Security and Communications Ltd [2000] PNGLR 279 SC646 sets out the considerations to be applied in the Court's exercise of discretion on an application for stay. I will now apply the criteria to the facts and circumstances of this matter.

a.	Start with the principle premise that the judgment creditor is entitled to the benefits of the judgment - Apart from arguing there were strong grounds of appeal, there was no suggestion that this principle should not apply.

b.	Whether leave to appeal is required and whether it has been obtained – As stated and discussed above, the Appellants argue leave is not required. This was disputed by the Respondents who have filed an objection to the competency of the appeal. I have ruled that, as I am sitting as a single judge of the Supreme Court, I do not have the authority to hear and determine the issue as to the competency of the appeal where the Appellants have not sought leave to appeal. 

c.	Whether there has been any delay in making the application – The Decision appealed was made on 7 March 2013. Notice of Appeal was filed on 16 April 2013. This application for stay was filed on 30 May 2013. The relevant period is calculated from the date of the decision appealed to the date of filing of the application for stay. In this matter, that period was 84 days or just under three months. That is a long delay in the circumstances. If there was genuine disappointment and grievance with the Order of 7 March 2013, swift action to appeal and seek a stay would have been expected of the Appellants. Instead they have sat and pondered on their position for three months. This is inordinate and unexplained delay in the circumstances. Discussion below on the issue of prejudice and the prospects of the appeal carry greater weight in the final analysis. It also appears the application for stay was brought on with an eye on moves by the Respondents to expedite their application for contempt in the National Court.

d.	Possible hardship, inconvenience or prejudice to either party – The Respondents are entitled to the fruits of the order obtained three and a half months ago. As it stands, and subject to the assessment of the prospects of the appeal, the Appellants will not suffer any distinct hardship and inconvenience as a consequence of the orders appealed being allowed to stand pending determination of the appeal. 

e.	The nature of the judgment sought to be stayed – It is agreed the judgment of the Court was not a final judgment. It is certainly an interlocutory ruling of the National Court. 

f.	The financial ability of the applicant – Although there was no evidence from the Appellants that can be considered in assessing the financial ability of the Appellants, the Appellants submit there is no question as to the financial ability of the Appellants. The Respondents have not refuted this. 

g.	Preliminary assessment about whether the applicant has an arguable case on the proposed appeal – The orders appealed have not determined any matter in issue between the parties. It is clear the National Court recognized there was evidence of some interference in the prosecution of the Respondents' claims in the National Court and that may have come from the Appellants of their agents and the National Court saw fit to intervene and put a stop to such disruptive influence. There is nothing more that those orders achieve. The Appellants' defence to the claims in the National Court have not been prejudiced as their right to defend and argue their position is not affected by the orders of the National Court of 7 March 2013. In effect, those orders are clear and were fairly issued directions to ensure there is orderly conduct to be observed by both the Appellants and the Respondents in the prosecution and defence of their respective positions. The directions apply equally to the Appellants as well as the Respondents. I am not satisfied that the grounds of appeal raise any serious matter or issue that would warrant the Orders of 7 March 2013 being set aside or quashed. It is my view the Appellants have no arguable case on the proposed appeal.

h.	Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure – I am not satisfied that there is apparent error of law or procedure in the Order of the National Court of 7 March 2013. Further, there is no serious argument challenging Justice Kandakasi's power and exercise of discretion in making the orders whether or not His Honor was advised of the earlier chamber direction of Justice Kariko. 

i.	The overall interest of justice – Following my preliminary assessment about whether the Applicant has an arguable case on the proposed appeal, I cannot say the interests of justice are best served by a stay of the judgment of the National Court. 

j.	Balance of convenience - Following my preliminary assessment whether the Applicant has an arguable case on the appeal, I cannot say the balance of convenience is best served by a stay of the judgment of the National Court.

k.	Whether damages would be sufficient remedy – I agree with the Appellants that this is not a relevant and applicable consideration in the circumstances. 

27.	On the basis of my assessment made above, I refuse the application to stay.

28.	The formal Orders of the Court are:

(i)	The Appellants' application for stay is refused.

(ii)	The Appellants shall pay the Respondents' costs of this application on a party and party basis, to be taxed if not agreed.

Judgment accordingly:

___________________________________________________
Young & Williams: Lawyers for the Appellants
Waviha Lawyers: Lawyers for the Respondents