SC1661
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 12 of 2017

BETWEEN:
JACOB KURAP 
First Appellant/First Applicant

AND:
                                             JOE KAIYO 
in his capacity as the Chairman of 
the Elections Steering Committee
Second Appellant/Second Applicant

AND:
DAVID WAKIAS
First Respondent

AND:
PATILIAS GAMATO, 
as PNG Electoral Commissioner
Second Defendant

AND:
THE INDEPENDENT STATE 
OF PAPUA NEW GUINEA
Third Defendant

Waigani: Hartshorn J
            2017: April 5th and 6th  

Application for a stay of a National Court decision and for restraining orders

Cases:

Behrouz Boochani v. Independent State of Papua New Guinea (2017) SC1566
Gary McHardy v Prosec Security [2000] PNGLR 279 
Kapo v. Maipakai (2010) SC1067
Waipo v. Simbatab (2016) SC1490 

Counsel:

Mr. M. Nale, for the First and Second Appellants 
Mr. K. Kawat, for the First Respondent
Messrs R. Awalua and A. Kimbu, for the Second Respondent 

ORAL DECISION DELIVERED ON
6th April, 2017

1.	HARTSHORN J:  This is a decision on a contested application for a stay of a National Court Order and for restraining orders. The Electoral Commissioner, the second respondent, did not take any position as to the orders sought. 

Background

2. 	The first respondent, David Wakias was successful in his judicial review proceeding against the Electoral Commissioner in the National Court. The National Court quashed the Electoral Commissioner’s decision to revoke the appointment of David Wakias as Election Manager of the Southern Highlands Province and ordered that he be reinstated as Election Manager of the Southern Highlands Province (National Court Decision). 

3. 	The First Appellant herein, Jacob Kurap, was not a party to the National Court proceeding. Neither was the second appellant Joe Kaiyo. They both claim however, to be directly affected by the National Court Decision and appeal by virtue of, and with reliance upon, the cases of Kitogara Holdings Limited v. NCDIC [1988-89] PNGLR 346 and Malipu Balikau v. Paul Torato [1982] PNGLR 242. Jacob Kurap claims that he is directly affected as he replaced David Wakias as Acting Election Manager. The decision appointing him has never been declared null and void. Joe Kaiyo claims to be directly affected by virtue of being Chairman of the Southern Highlands Provincial Elections Committee. 

4. 	The respondents did not take issue with whether the appellants are properly entitled to appeal and so I do not make any comment upon or consider their entitlement if any, to appeal.

5. 	The appellants submit that a stay and the restraining orders sought should be granted as amongst others:

a)	They have serious questions to be tried as:

i)	Judicial review is not available in respect of internal discretionary 	administrative decisions, which this decision of the Electoral Commission clearly is;

ii)The trial judge erred in its consideration of the ground of unreasonableness;

iii)The application for judicial review should not have been entertained at the same time as an appeal by David Wakias to the Public Service Commission.

b)	The balance of convenience favours a stay being granted. This is because the appellants have been working with the Electoral Commission in preparing for the General Elections. These preparations will be disrupted if David Wakias is permitted to return;

c)	Damages are not an appropriate consideration, and the appellants have provided undertakings as to damages;

d)	The relevant requirements of McHardy’s case favour a stay being granted. 

6. 	David Wakias submits that a stay and the restraining orders sought should not be granted as amongst others:

a)	There has been thirteen days delay since the application for stay was filed;

b)	The appeal will not serve any purpose as he has been reinstated;

c)	Jacob Kurap will not suffer any prejudice or hardship as he will resume his normal duties;

d)	As the substantive office holder he should be entitled to enjoy the terms of 	his office;

e)	The appeal is unlikely to succeed;

f)	The balance of convenience and interests of justice favor the orders sought being refused. 

Law

7. 	In regard to the application for stay, s. 19 Supreme Court Act provides that, unless otherwise ordered by the Supreme Court or a Judge, an appeal, or an application for leave to appeal, to the Supreme Court does not operate as a stay of proceedings. 

8. 	In Gary McHardy v Prosec Security [2000] PNGLR 279 the Supreme Court found that it had unlimited jurisdiction to do justice and should exercise its discretionary power depending on the factors and circumstances of the particular case. Factors to consider when deciding whether to stay a decision of the National Court includes:

a)	Whether leave to appeal is required and whether it has been obtained;
b)	Whether there has been a 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)	A 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 an apparent error of law or procedure;
h)	The overall interests of justice;
i)	The balance convenience;
j)	Whether damages would be a sufficient remedy. 

9. 	In regard to the application for restraining orders, the Supreme Court in Behrouz Boochani v. Independent State of Papua New Guinea (2017) SC1566 recently reaffirmed and stated that:

“30. The principles upon which the court can grant an interlocutory injunction are well settled. The leading authority is a decision of the House of Lords in American Cyanamid Company v. Ethicon Limited (1975) AC 396. This case has been followed on many occasions in this jurisdiction and cited with approval by the Supreme Court in Craftworks Nuigini Pty Ltd v. Allan Mott (1997) SC 525. These principles have been reaffirmed by the Supreme Court in Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853.

31. In Chief Collector of Taxes v. Bougainville Copper Limited [2007] SC 853, the Supreme Court said at 31:
“In our jurisdiction the principles relevant to injunctive reliefs (sic) are well settled.  In Golobadana No. 35 v. Bank of South Pacific, Kandakasi J. … concluded as follows:

“A reading of these authorities shows consistency or agreement in all of the authorities that the grant of an injunctive relief is an equitable remedy and it is a discretionary matter.  The authorities also agree that before there can be a grant of such a relief, the Court must be satisfied that there is a serious question to be determined on the substantive proceedings.  This is to ensure that such a relief is granted only in cases where the Court is satisfied that there is a serious question of law or fact raised in the substantive claim.  The authorities also agree that the balance of convenience must favour a grant or continuity of such a relief to maintain the status quo.  Further, the authorities agree that, if damages could adequately compensate the applicant then an injunctive order should not be granted”.”
Consideration

10. 	In considering the principles in the McHardy’s case (supra), leave to appeal is not required in this instance and I am not satisfied that there has been delay of any moment in making this application.

11. 	As to possible hardship, inconvenience or prejudice, I am not satisfied that the first appellant will suffer any. He will not be terminated from his employment and will return to the position he occupied before he was appointed to be Acting Election Manager. In regard to the submission that the orders sought are required otherwise harm will be caused to the people of the Southern Highlands and the running of free and fair elections. It is the responsibility of the Electoral Commissioner to provide for the proper running of free and fair elections. The Electoral Commissioner has not taken a position on this application and has not made a submission that the orders are required for the proper running of free and fair elections in the Southern Highlands.

12. 	Further, I am not satisfied on the evidence that it has been shown that the forthcoming running of the General Elections in the Southern Highlands Province will be adversely affected if either Jacob Kurap or David Wakias is in the position of Election Manager. It should not make any difference.
13. 	As to any hardship, inconvenience or prejudice to Joe Kaiyo, if the orders sought are not granted, no submissions were made by him, and I am not satisfied that he would suffer any inconvenience, prejudice and hardship.

14. 	As to the nature of the judgment sought to be stayed, the applicants submit that amongst others, it directly interferes with the exercise of the powers of the Electoral Commissioner. The Electoral Commission as mentioned, has not taken a position on this application. It is also submitted that the decision will affect the running of free and fair elections in the Southern Highlands. As referred to, I am not satisfied that this is the case and the evidence does not support such a submission.

15. 	As to the financial ability of the applicants, I am not satisfied that this consideration is relevant in this matter.

16.	 As to a preliminary assessment of whether the applicants have an arguable case on the proposed appeal, there are concerns in my view as to whether they are sufficiently affected to warrant them being able to appeal. If however, the appellants are allowed to appeal, to my mind there appears to be merit in the argument that the Court should not interfere in what appears to be a purely administrative decision where no one has had their employment terminated. The Electoral Commissioner should be able to make administrative decisions that are within his purview, without fetter.

17.	 In this instance, as I have referred to, the Electoral Commissioner has not taken a position on the application and has not supported the orders sought on the basis for instance that they are necessary for the efficient running of the subject elections.

18.	 As to any public interest consideration as referred to by Injia CJ in Kapo v. Maipakai  (2010) SC1067 and Higgins J in Waipo v. Simbatab (2016) SC1490, the persons who should be bringing this aspect to the courts attention are the Electoral Commissioner or the State, it being their responsibility. They have not. In any event as stated, I am not satisfied that the evidence shows that the elections will be adversely affected if either Jacob Kurap or David Wakias holds the subject position.

19. 	In my view, given that no prejudice will be suffered by the appellants if a stay is not granted, that the Electoral Commissioner has not taken a position, notwithstanding that it is he who is primarily concerned with the running of the elections, and it is his decision under consideration, and given that a victor is entitled to the fruits of his judgment, I am satisfied that the balance of convenience and the interests of justice are best satisfied by the stay sought being refused. For the same reasons the restraining orders sought are also refused. Notwithstanding, that the appellants may have serious questions to be tried, the balance of convenience does not favour the orders sought being granted.

Orders

20.    The formal Orders of the Court are:

a)	The application of the appellants filed 22nd March 2017 is dismissed;
b)	The appellants shall pay the first respondent’s costs of and incidental to the application. 
_________________________________________________________________
Jema Lawyers		: Lawyers for the Appellants
Kawat Lawyers		: Lawyers for the First Respondent
Kimbu & Associates	: Lawyers for the Second Respondent