SC2252

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 149 OF 2021

BETWEEN:
LARRY ANDAGALI
AND OTHERS
Appellants

AND
RICHARD PUARA
AND OTHERS
Respondents

Waigani: Logan J
2022: 14th March

PRACTICE AND PROCEDURE – stay of proceeding pending determination of appeal – where appellants instituted appeal against the grant of interim injunctions by the National Court – where appellants alleged various prolix grounds of appeal which were not compelling – where trial of National Court proceeding imminent – application for stay dismissed

Facts:

The appellants sought to appeal orders of the National Court issuing an interim injunction restraining the alteration or cancelation of a survey plan pending final determination the proceeding in the National Court (or further earlier order). In conjunction with institution the appeal, the appellants also sought orders staying the operation of the injunction issued by the National Court. 

The grounds of appeal relied upon by the appellants alleged that the learned primary judge did not given reasons for his decision and agitated matters of factual evaluation. At the time that the appellants’ application for stay was heard, the National Court proceeding was set down for hearing in two weeks’ time. 

Held:

1.	In circumstances where the grounds of appeal do not disclose a compelling case on appeal, the proximity of the trial in the National Court results in the balance of convenience favouring preserving the interim injunction ordered. 

Cases Cited:

Puara v Andagali [2021] PGNC 446; N9210

Counsel:

Mr. G Lau, for the Appellants 
Mr. N Yalo, for the Respondents

Oral decision delivered on
14th March 2022

1.	LOGAN J: There is presently pending in the National Court proceeding WS number 1402 of 2019 as between Mr Richard Puara as plaintiff, Mr Larry Andagali as first defendant, Trans Wonderland Limited (TWL) as second defendant, Mr Nounou, as third defendant and first cross-claimant and Kaevaga Incorporated Land Group as fourth defendant and second cross-claimant and the Land Titles Commission of Papua New Guinea as second cross-defendant and the State as third cross-defendant.
2.	On 1 October 2021, for reasons given in writing that day, the learned primary judge made orders which materially granted interim injunctions pending the determination of the proceeding or further earlier order of the court: 
(a)	Restraining the first, second, third and fourth defendants from taking any further steps whatsoever to alter or cancel survey plan, catalogue number 49/3739 registered by the Office of the Surveyor General; and 
(b)	Restraining the Surveyor General from taking steps or further steps to alter or cancel the said survey plan, catalogue number 49/3739.  
3.	By separate orders, his Honour dismissed an application by the third and fourth defendants to have leave to amend the defence and cross-claim.  His Honour additionally made case management directions which envisaged that, on 8 November 2021, directions would be made to the end of bringing the proceeding to trial.  Case management directions have now been made.  The trial is listed to proceed in the National Court on 24 March 2022, a little under a fortnight hence.  
4.	In the meantime, by a notice of appeal filed on 8 November 2021, Mr Andagali as first appellant and TWL as second appellant had commenced proceedings in this Court’s appellate jurisdiction appealing against the injunctive orders mentioned.  Only Mr Puara is named as respondent to that appeal.  That may or may not occasion difficulties in relation to the substantive hearing of the appeal if that ever comes to pass.  Whether it does is not for determination today.  What is for today is an application by Mr Andagali and TWL to stay the operation of those injunctive orders and further, in effect, to postpone the trial of the proceeding.  
5.	In order to grant such a stay, I would have to be satisfied that Mr Andagali and TWL had an arguable case and further that the balance of convenience favoured the granting of the stay.  There is evidence that the granting of the interlocutory injunctions has occasioned prejudice to Mr Andagali and TWL.  But then the events which have transpired are controversial and have occasioned prejudice to many, including Mr Andagali and TWL and also Mr Puara.  
6.	His Honour’s orders preserve a status quo pending the hearing and determination of the issues on the pleadings.  His Honour’s reasons for judgment in respect of the grant of the interlocutory injunctions are, with respect, meticulous.  To do justice to the primary judge, I incorporate by reference, without reproducing, his Honour’s reasons as they appear in paragraphs [2] through to and including [34] of his reasons for judgment: see Puara v Andagali [2021] PGNC 446; N9210.  Suffice to say his Honour has in those reasons addressed the relevant principles which are applicable to deciding whether or not to grant an interlocutory injunction.  
7.	The grounds of appeal as expressed in the notice of appeal are, to say the least, prolix.  It is not for me today to do other than make a preliminary assessment of those grounds.  Impressionistically, a ground such as his Honour erred in law and fact by not giving reasons for his judgment, subject of this appeal looks to be an uncritical copying of grounds from other cases which are not pertinent in light of the reasons for judgment delivered by his Honour.  Beyond that, the grounds of appeal, as a matter of impression, seem to me seek to agitate matters of factual evaluation which were for the learned primary judge and which he so obviously weighed, up having regard to his reasons for judgment, in deciding whether or not to grant interlocutory injunctive relief.  So, as a matter of impression, the grounds expressed in the notice of appeal do not strike me as particularly compelling.      
8.	The balance of convenience was addressed by the learned primary judge.  His Honour concluded that it favoured a preservation of the status quo.  To stay the order would, in effect, undo that preservation.  Overwhelmingly, in my view, the balance of convenience remains preservation of the status quo; equally overwhelming there is a need for the resolution of the issues between the parties on the pleadings in relation to the subject land at trial.  
9.	This appeal, in my view, having regard to that need, is truly and with respect, nothing more than a side wind.  The appeal itself would be overtaken in terms of its utility by any judgment given at trial.  Of course then it may be that a disappointed party would exercise a right of appeal in respect of whatever judgment the learned primary judge comes to give.  But any such appeal would address in turn issues which go to the heart of this matter rather than issues which merely seek to upset an order which preserves a status quo. 
10.	Of course, the interlocutory injunction occasioned inconvenience to Mr Andagali and TWL.  But it also occasioned a degree of inconvenience to Mr Puara.  Both Mr Andagali, TWL and Mr Puara and for that matter the other parties to the National Court proceedings have an overwhelming need to have their differences resolved by an exercise of judicial power, given that a consensual resolution is apparently just not possible.  
11.	In circumstances where the trial is so imminent and the prospects of success in respect of a challenge to an interlocutory injunction are not particularly compelling and any appeal has nothing to say in terms of its disposal about the issues on the pleadings, it would in my view be an inappropriate exercise of a judicial discretion to grant a stay of the interlocutory injunctions and otherwise make orders which would derail a trial.  This is a proceeding which was commenced in 2019.  It has had all of the intrusion which, through no fault of any party, has been occasioned by, amongst other things, the impact of the COVID-19 pandemic in terms of ready disposal of cases.  It needs a trial.  
12.	The orders then are that the application for a stay filed on 10 February 2022 in respect of injunctive orders made in the National Court on 1 October 2022 be dismissed.  The second order is that the appellants (applicants in respect to the stay application) pay the respondents’ costs of and incidental to that application to be taxed, if not agreed.
Orders

1.)	The application for a stay filed on 10 February 2022 in respect of injunctive orders made in the National Court on 1 October 2022 be dismissed. 
2.)	The appellants (applicants in respect to the stay application) pay the respondents’ costs of and incidental to that application to be taxed, if not agreed.
__________________________________________________________________
Niuage Lawyers: Lawyers for the Applicants	
Nemo Yalo Lawyers: Lawyers for the Respondents