SC1113

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCM NO 11 0F 2011

ESTHER KOPALYE
Appellant

V

1ST MUTUAL LIMITED
First Respondent

YAKINYIWA KOPALYE
Second Respondent

Waigani: Davani J, Cannings J, Kariko J
2011: 13, 15 July

PRACTICE AND PROCEDURE – application for stay of orders of National Court pending determination of application for leave to appeal against those orders – application under Supreme Court Act, Section 10(2) – stay of proceedings: Supreme Court Act, Section 19.

The applicant applied under Section 19 of the Supreme Court Act for a stay of orders of the National Court pending determination of an application for leave to appeal against those orders. The application for leave was made under Section 10(2) of the Supreme Court Act, following refusal of a similar application by a single Judge of the Supreme Court.

Held:

(1)	The power to grant a stay of proceedings exists under Section 19 of the Supreme Court Act and the Court is not constrained by the Act as to the matters that it can take into account in deciding whether to exercise that power and grant a stay. The person applying for a stay does not have to establish special or exceptional circumstances. It is a matter of discretion, the exercise of which depends on the particular facts and circumstances of the case (Gary McHardy v Prosec Security and Communications Ltd, trading as Protect Security [2000] PNGLR 279 applied).

(2)	In the present case, the proposed grounds of appeal appear to raise significant questions of law, the appellant has acted quickly to apply for a stay; the appellant and her family would be greatly prejudiced if the stay is not granted; the orders sought to be stayed are not supported by a written judgment despite an indication by the trial judge that a written judgment would be published in a timely manner after an oral summary of reasons was given; the interests of justice and the balance of convenience require that a stay be granted; and the nature of the application for leave to appeal is such that it should be able to be prepared for hearing and determined quickly.

(3)	The Court exercised its discretion by granting the application for a stay.

Cases cited

The following cases are cited in the judgment:

Felix Bakani v Rodney Daipo (2002) SC699
Gary McHardy v Prosec Security and Communications Ltd, trading as Protect Security [2000] PNGLR 279
The State v John Tuap (2004) SC765

APPLICATION

This was an application under Section 19 of the Supreme Court Act for a stay of orders of the National Court.

Counsel

M Kokiva, for the appellant
K Frank, for the first respondent

15 July, 2011

1. BY THE COURT: This is a ruling on an application for a stay of orders of the National Court, made by Justice Sakora, on 1 April 2011, pending hearing and determination of an application for leave to appeal against those orders. The orders were in the nature of an injunction requiring the applicant, Esther Kopalye, to vacate a residential property at Korobosea, NCD, within seven days, and give possession of it to the first respondent, 1st Mutual Ltd, which had purchased it from the second respondent, Yakinyiwa Kopalye.

2. The application for leave to appeal was filed on 12 July 2011 by notice of motion, framed as an application pursuant to Section 10(2) of the Supreme Court Act and Order 11, Rules 26 and 27 of the Supreme Court Rules. Section 10(2) allows a person who has had an application for leave to appeal refused by a single Judge of the Supreme Court to apply to the full court of the Supreme Court to have the matter determined by that court. Such an application is not an appeal against or review of the single Judge's decision, and should not be framed as an application to set aside or reinstate the application that has been refused. It is a fresh application (The State v John Tuap (2004) SC765). Section 10(2) is relevant here as on 11 July 2011, Injia CJ, sitting as a single Judge of the Supreme Court, refused an application for leave to appeal against the orders of the National Court of 1 April 2011.

SECTION 19, SUPREME COURT ACT

3. The Supreme Court has power under Section 19 of the Supreme Court Act to grant a stay of proceedings (including orders and other processes) of the National Court. It is settled law, following the leading case of Gary McHardy v Prosec Security and Communications Ltd, trading as Protect Security [2000] PNGLR 279 that the Court is not constrained by the Act as to the matters that it can take into account in deciding whether to exercise that power and grant a stay. The person applying for a stay does not have to establish special or exceptional circumstances. It is a matter of discretion, the exercise of which depends on the particular facts and circumstances of the case. The same approach applies irrespective of whether the application for stay is made pending the determination of an application for leave to appeal or the determination of a substantive appeal.

4. In McHardy the Supreme Court (Amet CJ, Jalina J and Kirriwom J), while emphasising that the considerations to be taken into account in the exercise of discretion are neither prescriptive nor exhaustive, gave examples of the factors that might be relevant in a particular case, including:

•	whether leave to appeal is required and whether it has been obtained;

•	whether there has been any delay in making the application;

•	possible hardship, inconvenience or prejudice to either party;

•	the nature of the judgment sought to be stayed;

•	the financial ability of the applicant;

•	preliminary assessment about whether the applicant has an arguable case on the proposed appeal;

•	whether on the face of the record of the judgment there may be indicated apparent errors of law or procedure;

•	the overall interests of justice;

•	the balance of convenience;

•	whether damages would be a sufficient remedy.

THIS CASE

5. We have considered that list of factors and the circumstances of this case. There are some factors that support the refusal of a stay. First, it is arguable that the application for leave to appeal, filed on 12 July 2011, is incompetent, for various reasons advanced by Mr Frank, for the first respondent, in that it has been brought by notice of motion, contrary to the Supreme Court Rules and it appears not to have been framed as a fresh application but as an application for review of the refusal of leave by Injia CJ and it has been filed outside the 40-day time limit prescribed by Section 17 of the Supreme Court Act (Felix Bakani v Rodney Daipo (2002) SC699). Secondly, it is relevant that the orders of 1 April 2011 followed a contested trial, in which the principal parties to the present proceedings were legally represented and there is a general presumption that a successful party should be entitled to the fruits of a judgment in its favour. Thirdly, it is arguable that the first respondent is a bona fide purchaser which purchased the property that is at the centre of the proceedings in good faith, without notice of the equitable interest that the applicant, Ms Kopalye, has been trying to enforce.

6. On the other hand, there are considerations that weigh in favour of granting a stay. As to the question of whether the notice of motion filed on 12 July 2011 is incompetent, we are not in a position to rule on that issue at this stage. Mr Frank gave no written notice of his intention to challenge the competency of the notice of motion, so the question of competency is more appropriately left to the hearing of the application for leave. As to the orders emanating from a contested trial, the significance of this is reduced somewhat by the trial judge not producing a written judgment (despite indications by his Honour, appearing from the transcript of delivery of the oral judgment, that a written judgment would be forthcoming soon after 1 April 2011) and confusion about which proceedings the judgment actually related to. Both Ms Kokiva and Mr Frank informed us that there were two proceedings tried jointly: OS No 302 of 2008 and WS No 614 of 2008. But the orders made by his Honour were only in relation to OS No 302 of 2008.

7. Other factors also work in favour of granting a stay, particularly:

•	the proposed grounds of appeal appear to raise significant questions of law concerning the doctrine of constructive trust and its application to the parties to a marriage and the law of property in Papua New Guinea;

•	the appellant has acted quickly to apply for a stay;

•	the appellant and her family would be greatly prejudiced if the stay is not granted;

•	the interests of justice and the balance of convenience, in our view, require that a stay be granted; and

•	the nature of the application for leave to appeal is such that it should be able to be prepared for hearing and determined quickly, thus minimising the risk of further prejudice to the first respondent.

8. We will therefore exercise the discretion of the Supreme Court in favour of the applicant and grant a stay of the National Court proceedings. This will cover not only the orders of 1 April 2011 but also the writ for possession of property which was subsequently issued and other aspects of the National Court proceedings.

ORDER

(1)	All proceedings of the National Court in OS No 302 of 2008, including the orders of 1 April 2011 and the writ of execution issued on 14 June 2011, are stayed pending determination of the notice of motion in SCM No 11 of 2011 filed on 12 July 2011 or until further order of the Supreme Court.

(2)	Costs are in the cause.

Judgment accordingly.

_____________________
Martha & Associates Lawyers: Lawyers for the applicant
Young & Williams Lawyers: Lawyers for the 1st respondent