SC1043

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 50 of 2009

Between:

GIRE GIRE ESTATES LTD
Appellant

And:

BARAVA LTD
First Respondent

RAGA KAVANA AS THE REGISTRAR OF TITLES
Second Respondent

HON. DR PUKA TEMU AS THE MINISTER FOR LANDS &
PHYSICAL PLANNING
Third Respondent

Waigani: Injia, CJ
2009: 16th July

SUPREME COURT – practice and procedure - application for stay of National Court judgment striking out judicial review proceedings commenced by appellant – principles on grant of stay discussed - onus on applicant to persuade Court to exercise discretion in its favour – possible hardship, inconvenience or prejudice favours first respondent – balance of convenience favours first respondent – overall interest of justice favours first respondent – damages maybe more appropriate to the appellant – application refused 

Cases Cited:

Gary McHardy v Prosec Security and Communication Ltd [2000] PNGLR 27

Counsel:

J Saroa, for the Appellant/Applicant
E Paisa, for the First Respondent

16th July, 2009

1. INJIA, CJ: The appellant applies for stay of the judgment of the National Court given on 17th April 2009 at Kokopo in which the Court struck out the judicial review proceedings commenced by the appellant. If the judgment is stayed, the application for judicial review together with the interim orders may be restored, the trial may proceed and judgment may be given whilst the appeal is pending determination. The application is contested by the respondent. 

2. Both parties relied on a number of affidavits. Submissions were made at Waigani on 7th July and later completed at Kavieng on 13th July. I reserved my ruling to today which I now deliver. 

3. The principles on grant of stay are set out in Gary McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279 (McHardy case). The grant or refusal of stay is discretionary and it is exercised on proper principles and on proper grounds. The Court must start from the basic premise that the judgment creditor is entitled to enjoy the benefit of the judgment. There are ten (10) other considerations which are enumerated in that case which may be considered. The circumstances of a particular case may warrant greater or less or even no weight to be given to a particular relevant factor(s) and then again, that is a matter of discretion. The onus is on the applicant to persuade the Court to exercise its discretion in its favor.

4. These considerations are often determined by a quick perusal of the grounds of appeal, the trial Judge's decision and the material placed before the Court. The parties in this case have provided those material including the transcript of proceedings. For purpose of determining this application, after considering the submissions put before me by both counsel, I am able to illicit the following basic facts:

(1) The land the subject of these proceedings is described as Portions 101, 102 and 307 Milinch Kokopo. In 2004 the first respondent was granted Agricultural Leases under the Land Act and later issued with registered title over the land under the Land Registration Act. A plantation is situated on this land.

(2) In May or June 2008, the appellant commenced judicial review proceedings under O 16 of the National Court Rules seeking leave to review the grant of Agricultural Leases over Portions 101, 102 and 307 Milinch Kokopo to the first respondent in 2004. The appellant claimed that it was entitled to be granted the State Leases because, inter alia, it paid the purchase price. 

(3)	On 24th June 2008, the Court granted leave for judicial review and also granted interim restraining orders. A Notice of Motion seeking substantive relief was filed and pending hearing. 

(4)	In a separate proceeding commenced by the first respondent in MP No. 52 of 2008, the first respondent appealed from the decision of the Registrar of Companies to reinstate the appellant in the register of companies after it was previously deregistered. The parties in those proceedings were the Registrar of Companies and the first respondent. The appellant was not a party in those proceedings. On 13th March 2009, the National Court entered a consent order deregistering the appellant. 

(5)	On 14th April 2009, the first respondent filed a Motion seeking dismissal of the judicial review proceedings on the basis that pursuant to the consent order entered in MP 52 of 2008, the appellant lacked standing to maintain the judicial review proceedings. The Judge granted the application on this basis and struck out the proceedings. 

(6)	 Subsequently, the appellant applied to set aside the consent order in MP 52 of 2008. On 11th May, the Court constituted by a different judge, set aside the consent order. I am told by counsel for the appellant that the Registrar of Companies or the first respondent has not appealed that decision. 

5. I apply the considerations set out in McHardy which are relevant to the circumstances of this case in the following manner.

6. The judgment appealed from favors the first respondent. 

7. Leave to appeal is not required because the decision is final. This consideration favors the appellant. 

8. The issue of delay is contested. Mr Paisa submits the appellant delayed filing the appeal and the application for stay until the last day for filing an appeal, that is, on the 40th day. The appellant then delayed making this application by more than 2 months. In this period the first respondent has carried out or is in the process of carrying out survey work and improvements on the land. The appellant's counsel conceded that there is some work being carried out on the land. The appellant has no response to the delay in making this application.

9. Time is of critical importance in disputed land matters because the position of parties can quickly change in terms of developments on the land. In the circumstances of the present case where the position of the parties was preserved by interim orders but that was removed as a result of the judgment. The delay by more than two months in actually making this application has allowed the first respondent to carry out work on the land as it is entitled to do as the registered leaseholder of the land. In the circumstances I consider the delay to be unreasonable. This consideration favors the first respondent.

10. The nature of the judgment is that the Court struck out the judicial review proceedings in which the first respondent's registered title over the subject land was under challenge. The proceedings have not been dismissed on the merits and the appellant could reinstitute proceedings seeking the same relief by way of Writ of Summons seeking declaratory orders. The judgment does not dispose of the appellant's right to contest the manner in which the registered title was granted to the first respondent. Any action by Writ of Summons is not statute barred. This consideration favors the first respondent.

11. As to whether an arguable case on appeal is demonstrated, this consideration may be determined together with the consideration on demonstration of error in the judgment. These considerations are to be determined by a quick perusal of the grounds of appeal and the material placed before me.

12. In the grounds of appeal the appellant challenges the trial judge's decision on several basis to do with the Court's alleged failure to consider and make appropriate findings as to the irregular manner in which the consent order was entered into between the Registrar of Companies and the first respondent particularly when the appellant was not a party in those proceedings. However, no reference is made in the grounds of appeal as to the setting aside of the consent order.

13. On the face of the grounds of appeal, I accept Mr Saroa's submission that the grounds of appeal are arguable. Arguable issues are raised as to the procedure employed by the first respondent seeking to dismiss the proceedings as an abuse of process and the court determining the application for judicial review in a summary manner when issues of locus standi of an applicant for judicial review are normally determined at the leave stage in judicial review proceedings. When leave has been granted, the substantive application should ordinarily proceed to a merit hearing. It is open for a party to raise the issue of standing as a competency issue at the hearing and a proper determination should be made in the context of the trial or hearing. A summary determination of an application for judicial review should be avoided unless there are clear grounds which render the maintenance of the application completely lacking in merit or fruitless. This consideration favors the appellant.

14. In terms of possible hardship, inconvenience or prejudice to either party, the first respondent stands to suffer the most. I agree with Mr Paisa that the first respondent as the registered leaseholder of the subject land has indefeasible title. Its legal interest in the land is superior to persons claiming an inferior interest over the same land. It is entitled to enjoy the benefit of possession and use of the land. The first respondent will be kept out of developing the plantation land and the benefits of possession and use. It will also be made to stop the work in progress. The wait to finalize the various court proceedings now underway or which may recommence if the appeal were successful may be long and protracted and in the process economically costly to the first respondent. It will no doubt create anxiety, frustration, distress and create other related social problems in the landowning village people in the area if the development of the plantation is halted and remains so for a long time. This is an important consideration which favors the first respondent. 

15. In terms of the financial ability of the applicant, there is no question as to the appellant's financial ability. The same applies to the first respondent. This consideration favors both parties.

16. The balance of convenience favors the first respondent, for reasons already given above. Further, the gist of the appellant's action in the judicial review proceedings I am told by Mr Saroa is challenge to the title of the first respondent and not one of damages. I am also told the appellant is not seeking any declaration that the appellant be granted the registered title. The Statement in Support filed under O 16 r 3 is not before me to see what other orders or consequential orders the appellant is seeking. Whatever relief the appellant is seeking in those proceedings, it cannot be a grant of the lease to the first respondent because the grant of the lease has to be processed through the normal process for grant of lease and registration of title in compliance with the statutory requirements contained in the Land Act and the Land Registration Act respectively. Whether the appellant will succeed in this appeal and whether it will succeed in the judicial review proceedings in the National Court is very much speculative. But even if the appellant were to be successful in the appeal and the judicial review proceedings before the National Court, at the most he would get the Court to quash the decision to grant a lease and issue title but it would still leave a vacuum as to the ownership of this plantation for a long time. The land and the plantation will be left to disuse and deteriorate. The balance of convenience favors the first respondent in terms of placing the land in the hands of its registered owner and allow it to conduct improvements it is currently conducting. This is an important consideration which favors the first respondent. 

17. As to damages, for reasons given above, I consider damages may be a more appropriate remedy for the appellant if it were successful in the appeal and also successful in the proceedings in the National Court. It is open for the appellant to seek leave to amend the Statement in Support to plead damages as an alternative remedy if it were not successful in obtaining the quashing of title. This option is open under O16 r 6 of the National Court Rules. Alternatively it is open to the appellant to file fresh proceedings by Writ of Summons seeking appropriate relief, inter alia, damages. This is an important consideration which favors the first respondent.

18. In terms of the overall interest of justice, for reasons I have given in the preceding paragraphs, I consider that the overall interest of justice favors the first respondent.

19. In summary notwithstanding the small number of considerations which favor the Appellant, I consider that the majority of considerations which happen to be the important considerations in this application favor the first respondent. 

20. For these reason, I refuse the application with costs to the first respondent. 

____________________________________________
Nelson Lawyers: Lawyer for the Appellants
Motuwe Lawyers: Lawyer for the Respondent