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Tongayu v Securities Commission of Papua New Guinea [2021] PGSC 112; SC2208 (21 April 2021)

SC2208

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 30 OF 2021(IECMS)

BETWEEN:
MR ALEX TONGAYU
First Appellant

AND:
SECURITIES COMMISSION OF
PAPUA NEW GUINEA
Second Appellant

AND:
OIL SEARCH LIMITED
First Respondent

AND:
MR CHRISTOPHER TAYLOR HNANGUIE
Second Respondent

AND:
PNGX MARKETS LIMITED
Third Respondent

Waigani: Hartshorn J,
2021:19^th, 21^st April

Application for interim orders pursuant to s. 5(1)(b) Supreme Court Act

Cases Cited:
Joel Luma v. Francis Awesa (2013) SC1259
Kawari Fortune Resources Ltd v. Louis Limbo Apurel (2015) SC1614
Peter O’Neill v. Cosmos Bidar (2019) SC1899

Counsel:

Mr. N. Kopunye, for the Appellants
Ms. D. Doiwa, for the First Respondent
Mr. B. Lai, for the Second Respondent
Mr. J. Mesa, for the Third Respondent

Oral decision delivered on
21^st April 2021

1. HARTSHORN J: This is a decision on a contested application for a restraining and other orders sought pursuant to s. 5(1)(b) Supreme Court Act by the appellants, Mr. Alex Tongayu and the Securities Commission of Papua New Guinea (Secom).

Background

2. Following a trial, the National Court found for the first respondent Oil Search Limited and:

a) declared amongst others that certain approvals and exemptions granted by Secom to Oil Search Limited are valid;

b) ordered a permanent injunction amongst others, against Mr. Alex Tongayu restraining him from asserting that the certain approvals and exemptions are not valid;

c) ordered a permanent injunction amongst others, that PNGX Markets Limited continue to operate its market in respect of Oil Search Limited.

3. The appellants filed a notice of appeal on 31^st March 2021.

This application

4. In addition to seeking orders pursuant to s. 5(1)(b) Supreme Court Act, the application filed 15^th April 2021 also seeks a stay pursuant to s. 19 Supreme Court Act but that is not sought at this juncture.

5. Oil Search Limited submits that both appellants, particularly Mr. Tongayu, does not have the requisite standing to make this application. This submission is supported by the second respondent Mr. Christopher Taylor Hnangujes (CTH). I will consider this application on its merits without determining the standing of the appellants. This is not to be interpreted to mean in any way that I am of the view that the appellants have the requisite standing to make this application.

Section 5(1)(b) Supreme Court Act

6. In regard to an application made pursuant to s. 5(1)(b) Supreme Court Act, I reproduce the following passage from Kawari Fortune Resources Ltd v. Louis Limbo Apurel (2015) SC1614 at [24] - [26] with which, I respectfully agree:

" 24. An interim order made under s 5(1)(b) of the Supreme Court Act can, like a stay order under s 19 of that Act, have the effect of preserving the status quo pending the hearing and determination of an appeal or application for leave to appeal but these two types of relief are conceptually different. An interim order is typically an injunction addressed to an opposing party so as to protect an interest of the party seeking the interim order whereas a stay is not so addressed but rather suspends the operation of the judgement or decision under challenge: Peter Makeng v Timbers (PNG) Limited (2008) N3317 (Injia DCJ, as the Chief Justice then was). ......

25. As is apparent from the text of s 5(1)(b) of the Supreme Court Act, the purpose of an interim order is "to prevent prejudice to the claims of the parties", pending the hearing and determination of an appeal to the Supreme Court. Necessarily, that requires attention to be focussed on these questions when deciding whether or not to make an interim order: what are the claims of the parties, what is the alleged prejudice and what is necessary, pending the hearing and determination of the appeal to prevent that prejudice? There is nothing in the text of the provision which requires an applicant for such an order to demonstrate special or exceptional circumstances. It would be an impermissible gloss on that text to introduce any such requirement.

26. Identifying the claims of the parties does not entail reaching any final conclusion on the merits of the claim advanced by the applicant for the interim order, only that the applicant has an arguable case. The claims are to be found in the grounds specified in the notice of appeal or, as the case may be, application for leave to appeal and in the bases upon which those grounds are contested. Where the claim of the applicant appears to strongly arguable, even comparatively minor prejudice might warrant the making of an interim order (and the converse may also warrant the making of an interim order in the circumstances of a particular case). What is involved is the exercise of a judicial discretion in which the two considerations, strength of the applicant's claim and nature and extent of prejudice interplay, according to the circumstances of a particular case."

The claims of the appellants

7. As stated in Kawari Fortune (supra), Joel Luma v. Francis Awesa (2013) SC1259 and Peter O’Neill v. Cosmos Bidar (2019) SC1899 at [8], the claims of the appellants are found in the grounds of appeal. Here, those claims are that the primary judge amongst others, fell into error in failing to dismiss the National Court proceeding as sought by the appellants and fell into error in finding that Mr. Tongayu was not validly in office as Acting Chairman of the Secom.

Consideration

8. The interim orders now sought by the appellants, that Mr. Hnanguie be restrained from interfering with amongst others, the powers of the appellants and that any requests and directions of anyone, “the 2^nd respondent (or others)”, for restrictions on the bank accounts of the appellants be lifted immediately, may be granted by this Court pursuant to s. 5(1)(b) Supreme Court Act if they are necessary to prevent prejudice to the appellant’ claims that the primary judge should have dismissed the National Court proceeding and should not have found that Mr. Tongayu was not validly in office as Acting Chairman of Secom.

9. In the grounds set out in the appellants application for interim relief, there are no grounds to the effect that the interim orders now sought are necessary to prevent prejudice to the claims of the appellants. Further, in the evidence relied upon in support of the interim relief sought (the affidavits of Messrs Tongayu, Minak and Rema), there is no evidence to the effect that the interim relief sought is necessary to prevent prejudice to the claims of the appellants.

10. Consequently, I am not satisfied that the appellants have enlivened s. 5(1)(b) Supreme Court Act under which the orders sought are made. The appellants have not successfully made out that they are entitled to the orders sought. Given this it is not necessary to consider the other submissions of counsel.

Orders

11. It is ordered that:

a) The relief sought in paragraphs 1(B) and 1(C) of the application of the appellants’ filed 15^th April 2021 is refused;

b) The costs of and incidental to the said relief sought shall be paid by the appellants to the first and second respondents.

__________________________________________________________________
Kopunye Lawyers: Lawyers for the Appellants
Allens: Lawyers for the First Respondent
B. S. Lai Lawyers: Lawyers for the Second Respondent
Corrs Chambers Westgarth: Lawyers for the Third Respondent