Unreported Supreme Court Decisions
SC555
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCR NO 98 OF 1997
VIVISO SERAVO & ELECTORAL COMMISSION
V
JOHN GIHENO
Waigani
Amet CJ Kapi DCJ Salika J
21 January 1998
JUDICIAL REVIEW - s. 155 (2) (b) of Constitution - Inherent power of the Supreme Court to stay proceedings pending review - the test is whether stay is necessary to do justice in the circumstances of a particular case.
Counsel
GJ Sheppard for the Applicant
P Young for the Electoral Commission
C Coady for the Respondent
21 January 1998
AMET CJ KAPI DCJ SALIKA J: This is an application to stay the trial of an election petition which has been listed for hearing before the National Court on 26th January 1998, pending the determination of the judicial review under s. 155 (2) (b) of the Constitution.
This application was initially brought before the Deputy Chief Justice as a single judge of the Supreme Court.  His Honour ruled that there is no power in a single judge of the Supreme Court to hear the application (see Unreported Judgement of Kapi DCJ dated 15th January 1998, SC539).
This Court has been convened to hear the application.  We considered the matter and after a short adjournment ruled that the trial listed before the National Court for 26th to 28th January 1998 be stayed until the judicial review in this matter is determined by the Supreme Court.  We indicated that we would publish our reasons for decision at a later date.  This we now do.
Jurisdiction to hear an application for stay pending the determination of a judicial review comes within the inherent jurisdiction of the Supreme Court under s. 155 (2) (b) of the Constitution (see Dick Mune v Paul Poto, Unreported Judgement of the Supreme Court dated 23rd April 1996, SC499).
The issue before us relate to the manner in which we should exercise our discretion in the circumstances of this particular case.  This raises the question of the proper test we should apply in exercising our discretion.
Where an application to stay is made pending the determination of an appeal, s. 19 of the Supreme Court Act regulates the exercise of discretion.  As the law presently stands, an applicant is required to satisfy the Court that “special” or “exceptional circumstances” exist before stay may be granted (see PNG v Gulf Provincial Government [1994] PNGLR 34). Whether or not this is the proper test in such applications has been raised as an issue to be clarified in Independent State of Papua New Guinea & CIS v Daniel Mollen (Unreported Judgement of the Supreme Court dated 19th November 1996, SC513).  That involves the interpretation and application of s. 19 of the Supreme Court Act.
In the present case we are not concerned with s. 19.  That question must remain to be dealt with in an appropriate case.  The two procedures (appeal and judicial review under s. 155 (2) (b)) are quite distinct and separate under our law.
The test to be applied in the present case (judicial review) must be developed from the inherent powers of the Court given under s 155 (2) (b). .In Dick Mune v Paul Poto (supra) the Court exercised its power in accordance with the terms of s. 155 (2) (b) and s. 155 (4) of the Constitution.  The relevant part of s. 155 (4) are the words “make such other orders as are necessary to do justice in the circumstances of a particular case”.  These words were adopted to provide the test for the exercise of discretion to stay.  In our view this is the appropriate test for exercising the discretion to stay pending a judicial review.  We would adopt the following as the proper principles for stay.  An applicant has the onus of showing why the discretion should be exercised in his favour.  Whether a stay should be granted is within the absolute discretion of the Court.  We do not consider that the requirement of “special” or “exceptional circumstances” should be introduced here.  No such requirement is expressed or is implied by the terms of s. 155 (2) (b).  To introduce such a requirement would be tantamount to limiting the exercise of discretion of the Court to particular circumstances only.  We are quite content to adopt the relevant words of s. 155 (4) set out earlier.  It would be sufficient for an applicant to show or demonstrate that a stay is necessary to do justice in the circumstances of a particular case.  What is justice cannot be defined.  That is to be determined in the circumstances of a particular case.  In exercising its discretion the Court should consider and balance the competing rights of each of the parties.
In the present case, counsel for the applicant submitted that the Supreme Court may decide the judicial review in his favour and the whole of the petition may be dismissed.  He submitted that if the trial is allowed to proceed, this may result in unnecessary costs to the parties, waste of time and effort by the parties as well as the Court if the review is successful and the petition is wholly dismissed.  Therefore, he submitted that the trial of the petition in the National Court would render the judicial review nugatory.  He further submitted that no prejudice is suffered by any party by staying the trial in the National Court.
Counsel for the Electoral Commission simply adopted the submissions of counsel for the applicant.
Counsel for the respondent submitted that there has been a delay in filing the judicial review and in making the application to stay the trial.  He submitted that we should not grant stay in view of the fact that the date has been set with the knowledge of all parties and that other pre-trial procedures have been conducted by the parties in this matter.
We are satisfied that the applicant has demonstrated that a stay is necessary to do justice in the circumstances of this case.  The trial of the petition in the National Court would render the judicial review nugatory.  We do not consider that there is undue delay in the circumstances of the present case.  We are also satisfied that no prejudice is caused to any of the parties by the stay.  For these reasons we granted the stay.  The costs of this application will be costs in the review.
Lawyers for the Applicant:  Maladinas
Lawyers for  Electoral Commission:  Allens Arthur & Robinson
Lawyers for the Respondent:  Henaos