SC1767

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 80 OF 2018

BETWEEN:
INDEPENDENT STATE OF PAPUA NEW GUINEA
First Appellant

AND:
TONY WAGAMBIE, THE POLICE COMMISSIONER
Second Appellant

AND:
MISO AIKA
Respondent

Waigani:  Dingake J
2018: 11, 18 & 25 July, 22 August & 5 September

Counsel:

Mr Mileng, for the Appellant
Ms E Wurr, for the Respondent

Cases Cited:

Mc Hardy v Prosec Security and Communications Ltd (2002) PNG Law Rp 279
Yii Ann Hii v Depty Commissioner of Taxation Australia (2017) PGSC 29

28 September, 2018

1. 	DINGAKE J:	 This is an application to stay the Orders of National Court in proceedings WS (HR) No. 17 of 2012 – Miso Aika v The State & 7 Others and generally to stay the entire proceedings. 
2. 	The Orders sought to be stayed were issued on the 4th of May, 2018.
3. 	The material facts underpinning this application for stay are that the respondent in this appeal successfully sued the appellant for unlawful detention and other breaches of Constitutional rights as alleged in his statement of claim.
4. 	Following a trial on liability the Court found the appellants liable for breaches of his rights as pleaded in his statement of claim under Sections 32, 37 (1) and 42 of the Constitution. All other claims in the statement of claim were dismissed.
5. 	The aforesaid Order bears quoting in full:  
“The Court makes the following Orders;

1)	Plaintiff has established liability against the 5th and 8th Defendant for breaches of his human rights as pleaded in the Statement of Claim under Section 32 of the Constitution generally, Section 37 (1) and 42 of the Constitution.
2)	All other claims in the Statement of Claim are dismissed.
3)	Costs are in the cause.
4)	Matters shall proceed to trial or directions hearing on the 20th January, 2017.”
6. 	In order to appreciate the appellant’s grievance in this matter, it is important to quote paragraph 20 of the plaintiff (respondent) statement of claim. In paragraph 20, the plaintiff sought:
(a) 	General Damages for suffering caused through negligence.
(b) 	General Damages under Section 57 and 58 of the Constitution for breaches of Constitution Sections 32, 36, 37 and 42;
(c) 	General Damages for breaches of statutory duty under Sections 32, 36 37, 42 and 197 (1) of the Constitution.
(d) 	General Damages for emotional and mental abuse sustained as a result of the defendant’s negligence.
(e) 	Exemplary Damages.
(f) 	Special Damages.
(g) 	Interests on Damages under the Judicial Proceedings (Interests on Debts and Damages) Act Chapter 52.
(h) 	Costs.
7. 	The part dealing with exemplary damages appears at paragraph 20 (e). The relevance of singling out paragraph 20 (e) shall become apparent in due course.
8. 	Having issued the Order reflected in paragraph 5 of this judgment, in essence finding the defendants liable, the trial on assessment of damages ensued. The Court after hearing submissions from both parties awarded a sum of K2,000.00 for breach of the respondent’s rights under Section 32, a sum of K3,000.00 for breach of Section 37(1) and a sum of K1,750.00 for breach of Section 42 of the Constitution. The Court also awarded a sum of K3,000.00 for exemplary damages after the respondent made submissions for an award of exemplary damages.
9. 	The applicants/appellants believing it was an error or inappropriate to include exemplary damages because such relief was dismissed, and would therefore not be included in the final tally, objected, unsuccessfully, hence this appeal.
10. 	The Order appealed against is final and an appeal lies to the Supreme Court as of right.
11. 	The leading case of Mc Hardy v Prosec Security and Communications Ltd (2002) PG Law Report 279 outlines ten (10) requirements to be considered when dealing with a stay application. These are: 
•	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.
12. 	I have already indicated that leave is not required. The applicants have not delayed in filing the appeal. The decision appealed against was made on the 4th of May, 2018, the notice of appeal was filed on 8th of June, 2018 and the stay application was filed on the 26th June, 2018.
13. 	There is no evidence to suggest that the plaintiff would suffer any prejudice if the entire judgment appealed against is stayed.
14. 	On the question of possible hardship, inconvenience or prejudice to either party, it seems to me that the remarks of my brother Kassman J, in the case Yii Ann Hii v Deputy Commissioner of Taxation Australia (2017) PGSC 29 are imperative, when he said:
	“In determining whether there will be possible hardship, inconvenience and prejudice to the parties, the Supreme Court has said it is relevant to emphasize that the right to appeal is a statutory right and that is fundamental to ensure an appellant has the full protection of the law. The execution of the judgment and the relevant orders before the appeal is heard and determined would render the appellant’s right to appeal futile and nugatory. Where it has been the case that not granting a stay rendered the right to appeal “futile, nugatory and hypothetical”, the Courts consider it the proper exercise of the discretion to grant a stay in order to upload an appellant’s fundamental right to appeal, and have their case properly heard Wartoto v State [2013] PGSC 59; SC1298.”
15. 	It seems to me that if the appellants/applicants are to enjoy their statutory right of appeal, they should not be frustrated in doing so by the unnecessary refusal to stay the judgment appealed against.
16. 	The nature of the judgment is final and the appellant is the State. It follows that both the nature of the judgment sought to be stayed and the financial ability of the applicant favours the granting of this application.
17. 	The balance of convenience is also linked to the right to enjoy the statutory right of appeal. In my view it favours the applicant.
18. 	The applicant in my view has an arguable case given that the Court in its Order found the defendants liable for breaches under Sections 32, 37 (1) and 42 of the Constitution and dismissed the balance of the claims.
19. 	In all the circumstances of this case, I am satisfied that the applicant has made out a case for the stay of the Order of the National Court issued on the 4th of May, 2018.
20. 	In the result the Court Orders as follows:
20.1	The Orders of 4th May, 2018 in the National Court proceedings in WS (HR) No. 17 of 2012, Miso Aika v The Independent State of Papua New Guinea & Ors be stayed pending the determination of this appeal pursuant to Section 19 of the Supreme Court Act 1975;
20.2	Cost be in the cause.
___________________________________________________________
Office of the Solicitor General: Lawyers for the Appellant	
Office of the Public Solicitor: Lawyers for the Respondent