SC2475

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 27 OF 2023 (IECMS)

BETWEEN:
ELIZABETH GENIA, Acting Governor, Bank of Papua New Guinea
First Appellant

AND
TAU VINI, Company Secretary, Bank of Papua New Guinea
Second Appellant

AND
DAVID TOUA, Chairman, Board of Directors of Bank of Papua New Guinea
Third Appellant

AND
ULATO AVEI, RICHARD KUNA & JAMES GORE, Members of the Board of Directors of the Bank of Papua New Guinea
Fourth Appellants

V

BENNY POPOITAI
First Respondent

AND
THE OBUDSMAN COMMISSION OF PAPUA NEW GUINEA
Second Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Anis J
2023: 12th & 18th October

STAY APPLICATION – Order 13 Rule 14(7) – Supreme Court Rules – consideration of various requirements – whether meritorious grounds of appeal – whether stay should be granted – exercise of discretion

Cases Cited:
Gary McHardy v Prosec Security & Communications Limited trading as Protect Security [2000] PNGLR 279
Ombudsman Commission v. Gabriel Yer and Ors (2009) SC1041
Kalinoe v Paraka (2010) SC1024

Counsel:
D Kaima, for the Appellants
N Kopunye, for the First Respondent
M Kik, for the Second Respondent
K Kipongi, for the Third Respondent

18th October 2023

1.	ANIS J:  I heard the appellants’ stay application (filed 29 September 2023 – Stay Application) on 12 October 2023.  The application was contested by the first and second respondents.

2.	Parties have been notified so I will now rule on the matter.

BACKGROUND

3.	The first respondent was the plaintiff in the National Court in proceeding OS (JR) No. 77 of 2023 (JR 77).  He filed the said proceeding to challenge decisions that were made by the first, second, third and fourth appellants on 15 and 30 June 2023, where they had compulsorily retired him from his employment and position as the Director of the Financial and Supervisory Unit (FASU) with the Central Bank of Papua New Guinea (CBPNG).  

4.	On 12 September 2023, the judicial review Court granted the relief sought by the first respondent.  The Court made the following orders (Decision):

“1.	The Substantive Notice of Motion of the Applicant for Judicial Review is upheld.

2.	It is ordered that Certiorari lies against the decision of the 1st to 4th Defendants made on the 15th June 2023 in compulsorily retiring the Plaintiff and that decision and any other relating matter emanating devolving therefrom is hereby quashed forthwith.

3.	Mandamus lies directed the 1st Defendant and all other Defendants pursuant to withdraw the letter dated 30th June 2023 of the Notice of Compulsory Retirement to the Plaintiff and the Office of the Director of FASU forthwith.
……”

5.	The appellants were aggrieved by the Decision and filed this appeal (on 29 September 2023), that is, by way of Notice of Motion (NoM/Appeal) under Order 10 of the Supreme Court Rules 2012 amended to date (SCR).  They state 10 grounds of appeal in their NoM.  In summary, they allege that the trial judge erred in law and mixed fact and law, when he nullified the appellants’ decision to compulsorily retire the first respondent from his employment with the CBPNG.

STAY APPLICATION

6.	I refer to the Stay Application.  The main relief sought therein are relief 1.2 and 1.3.  I set them out herein as follows:

“1.2	An order pursuant to Section 19 of the Supreme Court Act 1975 Ch 37 and/or section 155(4) of the Constitution, and Order 13 Rule 14(9) of the Rules, that the decision of the National Court on 12 September 2023 in OS (JR) 77 of 2023; Benny Popoitai v Elizabeth Genia, David Toua & Ors be stayed pending the determination of this appeal proceedings (“Decision”).

1.3	An order pursuant to Order 13 Rule 14(9) of the Rulesa and/or section 155(4) of the Constitution, that the First Respondent be restrained from occupying the Office of the Director of the Financial Analysis and Supervision Unit, and from entering the premises where the Office is located, pending the completion of this appeal proceedings.
……”

PRELIMINARY MATTER

7.	I note that the first respondent has raised as a preliminary matter, that is, the issue of whether Mr Maima, counsel for the appellants, has sought and has obtained the permission or approval from the Attorney General pursuant to ss.7(i) and 7B of the Attorney General Act 1989 as amended, to act for them.

8.	That said, I note that the issue is also raised in a pending Objection to Competency application (Objection application) that is filed by the first respondent.  As I had indicated to the parties which will now be confirmed herein, I decline to deal with the issue in this Stay Application.  The issue has been formally raised in the Objection application thus should be left to the Court that will hear the application at an appropriate date and time.

LAW

9.	Granting of a stay application is discretionary.

10.	The case law is also settled on the types of criteria to apply when the Court is considering a stay application. Case: Gary McHardy v Prosec Security & Communications Limited trading as Protect Security (2000) PNGLR 279.  The criteria stated in Gary McHardy are as follows:

(a)	Whether leave to appeal is required and whether it has been obtained;
(b)	Whether there has been any delay in making the application;
(c)	Possible hardship, inconvenience or prejudice to either party;
(d)	the nature of the judgment sought to be stayed;
(e)	The financial ability of the applicant;
(f)	Preliminary assessment about whether the applicant has an arguable case on the proposed appeal;
(g)	Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure;
(h)	The overall interest of justice;
(i)	Balance of convenience;
(j)	Whether damages would be sufficient remedy.

11.	Injia J, as he then was, in Ombudsman Commission v. Gabriel Yer and Ors (2009) SC1041, also stated, which I adopt herein, the following at para 9 of his decision:

9. In McHardy the Court said the starting point is the basic premise that the judgment creditor is entitled to enjoy the fruit of the judgment. There are ten (10) other considerations which are enumerated in that case which may be considered. The Court said the list is not exhaustive. In my view, it is not intended that the discretion should be exercised on all or selected consideration(s). The circumstances of a particular case may warrant greater or less or even no weight to all to be given to a particular consideration(s). It is open to the Supreme Court to expound on those considerations or introduce new considerations as necessitated by the circumstances of the case before it. In a case where a number of considerations are relevant, the Court must take into account the totality of those considerations in order to dispense substantive justice in the circumstances of the case before it. The onus is on the applicant to persuade the Court to exercise its discretion in his or her favor.

[Underlining is mine]

12.	The principal premise for requiring a stay order in pending appeal hearing is that the party in whose favour judgment has been obtained in the trial court is entitled to the benefit of that judgment.  The onus therefore rests with an applicant to demonstrate why the appeal court should intervene and stall enforcement, implementation or the operation of the judgment of a trial court.

13.	I also refer to the Supreme Court Kalinoe v Paraka (2010) SC1024 which said, "the discretion available to the Judge or the Court when deciding whether to grant the interim orders or a stay of proceedings, is very broad.  The Supreme Court also held therein that an undertaking as to damages is not an essential prerequisite in an application for stay.

CONSIDERATION

14.	In consideration, I first refer to and note the submissions of the parties.

15.	I refer to the McHardy principles or criteria.  In regard to criteria (a), I note that the first respondent has indicated that he takes issue with some of the grounds of appeal that is contained in the NoM.  Counsel submits they are captured in the Objection application.  Because only some and not all the grounds may be challenged on the question of whether leave is required, I consider the first criteria to favour the appellants.  Assuming that the first respondent succeeds and some of the grounds were to be dismissed as incompetent, that may not necessarily mean that the entire Appeal will also be dismissed; the grounds of appeal that raise questions of law or mixed fact and law will remain for determination.  The second reason is this.  At this juncture, the Appeal is filed on the premise as of right.  Therefore, until such time the position is proven otherwise, it should remain so, thus I am minded to follow this approach.

16.	I do not find any issue in regard to criteria (b) and (e), thus these favour the appellants.

17.	I will consider criteria (c), (d), (f), (g), (h), (i) and (j) together. 

18.	I begin with what appear as undisputed facts.  The first respondent’s substantive position with the CBPNG at the material time, and which he still holds as per the Decision which is now the subject of this appeal, is as the Director of FASU (substantive position).  I note that whilst he held this substantive position, he was appointed Acting Governor for the CBPNG on various occasions.  His last appointment as Acting Governor was for 3 months from November of 2022 to 22 January 2023.  The first respondent’s term as Acting Governor of the CBPNG ended there.  He was never re-appointed or appointed as Acting Governor for the CBPNG after 22 January 2023.  The first respondent retained his substantive position immediately after 22 January 2023.  It is not disputed that the first respondent turned 65 years old on 11 January 2023.  The first respondent’s substantive position is premised on a written employment contract that he has with the CBPNG.  A copy of the employment contract is marked as Annexure EG2 (employment contract) to the first appellant’s affidavit in support filed 29 September 2023.  Clause 1.1(g) states that the employment contract includes the Bank of Papua New Guinea Handbook (Handbook).  

19.	A copy of the Hand Book is included at Tab 7 of the NoM.  Clause 11 deals with the age of retirement of employees of the CBPNG.  And under Clause 11C, it states that the compulsory retirement of a bank employee occurs when the employee attains the age of 65.  Clause 12 of the Handbook deals with the methods of retirement.  The 2 situations where a Governor may exercise his or her discretion or power to retire an employee after the employee attains the age of 60 but before he or she reaches the age of 65, are those described under grounds B and D.  The Governor may, at his or her discretion, decide to retire the employee after he or she attains the age of 60.  Secondly, in a case where an employee has medical condition(s) after the age of 60, the Governor would have the discretion to retire the employee before the employee reaches the age of 65 years.

20.	Apart from these, I observe that clauses 11 and 12 appear explicit in that once an employee attains the age of 65, he or she shall retire having reached the compulsory or mandatory retirement age.

21.	I turn to the decision of the trial Judge.  A copy of the same is attached to the NoM.  Of relevant are paras 16 to 19.  I note that the decision appears to be missing its final 2 or 3 pages.  This was pointed out to the Court by counsel for the first respondent when the Court was about to adjourn to deliberate on the matter.  However, I note the submissions of the parties and the findings of the trial Judge therein.  In summary, His Honour found that although the first respondent had reached the compulsory retirement age of 65 years, that his employment contract continued to exist and was covered or bound by s.65 of the Anti-Money Laundering and Terrorist Financing Act 2015 (Anti-MLTA).  Section 65 deals with dismissal of a director.  His Honour found that the process for dismissal under s. 65 was not complied with or observed by the appellants at the material time.  The said finding by the trial Judge had formed the material basis for granting the judicial review proceeding in favour of the first respondent.

22.	When I consider the grounds of appeal in the NoM, I note that ground 2.2(a) directly addresses or challenges the above findings by the trial Judge.  Thus, I note that the said finding by the trial Judge is being challenged in the Appeal.

23.	Upon brief consideration of the facts as highlighted above, as well as taking into account the decision of the trial Court, my preliminary assessment of the Appeal is that, on the face of the record of the judgment there may be indicated apparent error of law or procedure.  The first respondent did not hold the position of the Governor, Deputy Governor or Acting Governor of the CBPNG at the time he was notified that he was to compulsorily retire having attained the age of 65.  He appeared, by operation of his employment contract, to be an employee of the bank at the material time.  Further, the first respondent, as the evidence suggests, was not dismissed or terminated from his employment as the director of FASU under s.65 of the Anti-MLTA.  Evidence that were before the National Court states that the first respondent was compulsorily retired, and it was not an issue that the first respondent had attained 65 years of age on 11 January 2023.  I recall that I had asked counsel for the first respondent this question; that what law, after the first respondent had attained the compulsory retirement age, would permit him to continue to be employed or remain as an employee of the CBPNG?  The response by counsel was premised on the application of s.65 of the Anti-MLTA.  Even if I am to accept the first respondent response (which I am not), I ask myself whether a Court can or has the power make an order and reinstate an employee beyond the employee’s compulsory retirement age that is prescribed by rules or statute.

24.	In summary, and when I weigh all the above, I find that this appeal has merit. 

25.	Given my assessments, I do not consider that it would therefore be prudent for the first respondent to continue to occupy his position as director of FASU.  He has not denied that he attained the age of 65 in January of 2023.  Thus, and at present, he appears to be occupying the position Director of FASU beyond his compulsory retirement age.  This may compromise the actions, duties and responsibilities of the CBPNG and those that govern them including the appellants.  I find the concerns as raised by the appellants in their evidence in support to be genuine and valid.

26.	Further, let me also make this remark or query.  If the decision of the first appellant is found to have breached one or more of the internal process for compulsory retirement by the Supreme Court, can the Court ever grant or uphold the relief for reinstatement given the fact that the first respondent has already reached his compulsory retirement age?  

27.	In summary and for these reasons, I find that the appellants have established criteria (c), (d), (f), (g), (h), (i) and (j) to my satisfaction.  In so doing, I reject the submissions of the first and second respondents made in regard to these criteria.

SUMMARY

28.	I am minded to grant the relief sought in the Stay Application.

COST

29.	An order for cost is discretionary.  I note that the third respondent supported the Stay Application.  As such, I will order cost of the application against the first and second respondents only, that is, to be paid on a party/party basis to be taxed if not agreed.

ORDERS OF THE COURT

30.	I make the following orders:

1.	An order pursuant to Section 19 of the Supreme Court Act 1975 Ch 37 and section 155(4) of the Constitution, and Order 13 Rule 14(9) of the Supreme Court Rules, that the decision of the National Court on 12 September 2023 in OS (JR) 77 of 2023; Benny Popoitai v Elizabeth Genia, David Toua & Ors is stayed pending the determination of this appeal proceedings (“Decision”).

2.	An order pursuant to Order 13 Rule 14(9) of the Supreme Court Rules and section 155(4) of the Constitution, that the First Respondent is restrained from occupying the Office of the Director of the Financial Analysis and Supervision Unit, and from entering the premises where the Office is located, pending the completion of this appeal proceedings.

3.	The first and second respondents shall pay the appellants’ costs of the application on a party/party basis to be taxed if not agreed.

4.	Time is abridged.
________________________________________________________________
StratServe Legal: Lawyers for the Appellants
Kopunye Lawyers: Lawyers for the First Respondent
In-House Counsel: Ombudsman Commission of PNG
Solicitor General: Lawyers for the Third Respondent