N5953

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1252 of 2010

BETWEEN:

INDEPENDENT PUBLIC BUSINESS CORPORATION
OF PAPUA NEW GUINEA
Plaintiff

AND:

MOTOR VEHICLES INSURANCE LIMITED
First Defendant/Second Cross Claimant

AND:

NOMINEES NIUGINI LIMITED
Second Defendant/First Cross Defendant to Second Cross Claim

AND:

NATIONAL SUPERANNUATION FUND LIMITED
Third Defendant

AND:

BENJAMIN TERENCE O'DWYER. TERENCE JAMES O'DWYER and BACKWELL LOMBARD CAPITAL PTY LTD
Second Cross Defendants to Second Cross Claim

AND:

DR JOHN MUA
Third Cross Defendant to Second Cross Claim

AND:

BERNARD FONG
Fourth Cross Defendant to Second Cross Claim

Waigani: Hartshorn J
2015: 13th, 17th June

 Application pursuant to Order 12 Rule 1 National Court Rules – Stay of proceeding

Cases cited: 

McHardy v. Prosec Security and Communication Ltd [2000] PNGLR 279 Aina Mond & Ors v. John Kumara & Anor (2007) N4639
Peter Yama v. Bank South Pacific (2008) SC921
Peter Makeng v. Timbers (PNG) Ltd (2008) N3317 
Ombudsman Commission v. Gabriel Yer & Ors (2009) SC1041
Workers Mutual Insurance (PNG) Ltd (in Liq) v. Sathasivam Sivakumaran (2012) N4646
Pastor Stephen Bagari & Ors v. Hon James Marape & Ors (2014) unreported, 28/2/14, Waigani

Counsel:

Mr. K. Imako, for the Plaintiff
Mr. E. G. Andersen, for the First Defendant/Second Cross Claimant
Mr. P. A. Lowing and Mr. G. Geroro, for the Second Defendant/First Cross Defendant to Second Cross Claim 
Mr. J. Brooks, for the Third Defendant

17th June, 2015

1. HARTSHORN J: This is a decision on an application for a stay of a proceeding.

2. Nominees Niugini Ltd (NNL) the second defendant and first cross defendant to the second cross-claim, applies for a stay of this proceeding pending the determination of a Supreme Court appeal. The application is opposed by the Independent Public Business Corporation (IPBC) the plaintiff, and Motor Vehicles Insurance Ltd (MVIL) the first defendant second cross claimant. The National Superannuation Fund Ltd, the third defendant does not take a position on the application.

3. NNL applies pursuant to Order 12 Rule 1 National Court Rules and s. 155 (4) Constitution. No issue was taken by MVIL with NNL's reliance upon Order 12 Rule 1 apart from it being a general Rule. MVIL does take issue with the reliance upon s. 155 (4) Constitution as that section is not the source of new rights. If an existing remedy exists it is submitted, then s. 155 (4) Constitution is not available. MVIL is correct in its submission. There are many cases on this point and I cite as an example Peter Makeng v. Timbers (PNG) Ltd (2008) N3317, a decision of Injia DCJ (as he then was). Given however, that Order 12 Rule 1 permits this application, I proceed to consider it.

Background

4. This proceeding concerns an Equity Monetisation Contract (EMC) between MVIL and NNL. IPBC seeks amongst others to set aside the EMC as it is claimed that it was entered into in breach of certain statutory requirements.

This application

5. NNL seeks a stay of this proceeding as it submits amongst others that:

a) the National Court in a related proceeding WS 1300/13 between NNL and MVIL determined the validity of the EMC when it granted default judgment against MVIL;

b) the doctrine of res judicata or the principle of issue estoppel prevent IPBC and MVIL from raising issues in this proceeding as to the legality of the EMC;

c) MVIL does not come to court with clean hands;

d) the proposed applications of IPBC and MVIL for a variation of an interim injunction and to preserve BSP share dividends that will be payable to NNL, pre-empt or pre-judge the decision of the Supreme Court in SCA 44/14, which is an appeal by MVIL against the default judgment granted in WS 1300/13, on the issue of the reasons for MVIL and IPBC not challenging the validity of the EMC in WS 1300/13.

6. MVIL and IPBC oppose the stay application as they submit amongst others that:

a) although the matters in this proceeding and SCA 44/14 are related, the progress or outcome of this proceeding is not duplicitous with or dependent on the outcome of SCA 44/14;

b) WS 1300/13 and SCA 44/14 do not concern, and the default judgment has not determined, the validity of the EMC;

c) the proposed applications of IPBC and MVIL in this proceeding will not pre-empt or pre-judge issues in SCA 44/14 and res judicata and issue estoppel do not apply;

d) there has been delay in bringing this stay application. 

7. I mention at this juncture that I am a member of the Supreme Court that heard and reserved SCA 44/14. No application has been made for me to be disqualified from hearing this application. Counsel for NNL informed the court that he was not instructed to make any formal application for me to recuse, he left the matter to the court's discretion and that he raised the issue merely as an officer of the court. As to this issue, as no application has been made for my disqualification and in accordance with the procedure outlined in para 32 of the Supreme Court decision in Peter Yama v. Bank South Pacific (2008) SC921, this court has not been properly requested to exercise its discretion in this regard.

Law

8. Counsel for NNL referred to the Supreme Court decision of McHardy v. Prosec Security and Communication Ltd [2000] PNGLR 279 as the authority that details the principles to be considered upon an application for a stay. Counsel for IPBC referred to my decision of Pastor Stephen Bagari & Ors v. Hon James Marape & Ors (2014) unreported, 28/2/14, Waigani, which is presently the subject of an appeal.
 
9. I also refer to my decisions of Aina Mond & Ors v. John Kumara & Anor (2007) N4639 and Workers Mutual Insurance (PNG) Ltd (in Liq) v. Sathasivam Sivakumaran (2012) N4646 and the decision of Injia CJ in Ombudsman Commission v. Gabriel Yer & Ors (2009) SC1041, as to the principles to be considered.

Preliminary

10. The first consideration in my view, is whether it is appropriate for this court to entertain a stay application that is sought on the ground that the hearing of certain interlocutory applications in this proceeding will pre-empt or pre-judge issues in a Supreme Court appeal that has been heard and its decision reserved.

11. It is usually the case that in an application for a stay where there are related proceedings, the proceeding not sought to be stayed requires determination first as it may affect the outcome of the proceeding sought to be stayed. Here however, the concern of NNL is that the decision sought to be stayed may pre-empt or pre-judge issues in an appeal that has already been heard in a higher court.

12. In my view, the question of whether an issue to be argued in the National Court will pre-empt or pre-judge an issue in a Supreme Court appeal that has been heard and reserved and not delivered, should more properly be determined by the Supreme Court. Consequently this application should be refused. Given this it is not necessary to consider the other submissions of counsel.

Orders

13. The Orders of the Court are:

a) The relief sought in paragraph 3 of the notice of motion of Nominees Niugini Ltd filed 10th June 2015 is refused;

b) The costs of and incidental to the hearing of paragraph 3 of the said notice of motion are reserved;

c) time is abridged.

____________________________________________________________
Allens Lawyers: Lawyers for the Plaintiff 
Gadens Lawyers: Lawyers for the First Defendant 
Leahy Lewin Lowing Sullivan Lawyers: Lawyers for the Second Defendant 
Ashurst Lawyers: Lawyers for the Third Defendant