SC1703   
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 42 of 2018

BETWEEN:
SECRETARY, DEPARTMENT OF MINERAL POLICY AND GEOHAZARD MANAGEMENT
First Appellant/Applicant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Appellant/Applicant

AND:
MANTON GROUP LIMITED
First Respondent

AND:
SIAM NIUGINI LIMITED
Second Respondent

AND:
SOUTH FLY DISTRICT DEVELOPMENT AUTHORITY
Third Respondent

Waigani:	  Dingake J
2018:   11 Apr, 5 Jun, 4 Jul & 31 Jul

PRACTICE AND PROCEDURE – Application for Stay – the Applicants have established an arguable case – Application granted.

Cased Cited:

Gary Mc Hardy v Prosec Security & Communications Limited Trading as Protect Security (2000) SC646;
Peter O’Neil v Nerrie Eliakim (2016) PGSC 40 SC1524;
Badastal Limited v Dr. Puka Temu, Minister for Lands & Physical Planning & Others SCA No. 107 of 2018 (2011) SC1092;

Counsels:

Mr. Kenneth Imako, for the Appellants
Mr. Branden Lai, for Respondents

7 September, 2018
1. 	DINGAKE J:  This is an application to stay Court Proceedings described as WS No. 992 of 2014 (CC1) – Manton Group Limited, Siam Niugini Limited and South Fly District Development Authority v Secretary, Department of Mineral Policy and Geohazard Management and Independent State of Papua New Guinea, pending the determination of the appeal.
2. 	The application is made in terms of Section 19 of the Supreme Court Act and Section 155(4) of the Constitution and the inherent jurisdiction of the Supreme Court.
3. 	I heard this application on the 31st of July, 2018. At the end of the submissions, I granted a short ex-tempore ruling staying the proceedings of the National Court and promised to give more elaborate reasons in 21 days from the 31st July, 2018. These are my reasons:
4. 	The sole issue for determination is whether the applicants have made out a case that the aforesaid proceedings should be stayed pending the determination of the appeal.
5. 	The material facts, sufficient for the purposes of this application, are that the plaintiffs sued the defendants in the National Court for costs and expenses incurred by the defendants over the maintenance of MV Capella, the Vessel, which was acquired for the third respondent on or about the 31st of August, 2012, pursuant to a contract executed by the second applicant and the first respondent.
6. 	Subsequent to filing the suit, the respondents, on or about the 5th of March, 2018, applied for Summary Judgment against the applicants.
7. 	On the 2nd of April, 2018, the National Court (per Salika DCJ) granted summary judgment in favour of the respondents, inter-alia, in the liquidated sum of K13,538,218.32 to be paid from the Trust Account forthwith.
8. 	The applicants/appellants being unhappy with the decision of the National Court have filed an appeal to the Supreme Court.
9. 	The grounds of appeal upon which the applicants seek to overturn the decision of the National Court are wide ranging, and for the purposes of this Stay application, it is not necessary to traverse each of those grounds.
10. 	It is sufficient to indicate that among the grounds of appeal taken by the applicants include errors of law regarding the propriety of the Section 5 Notice required by the Claims By and Against the State Act, and the incompetence of granting summary judgment on a liquidated sum in the face of the prohibition outlined in Section 12(3) of the Claims By and Against the State Act.
11. 	More specifically, with respect to the Section 5 Notice, the applicants contend that the National Court erred when it erroneously accepted that the Section 5 had been filed – within the six (6) months of the cause of action accruing.
12. 	With respect to Section 12(2) of the Clams By and Against the State Act 1996, the applicants contend that it was not competent, in the face of Section 12(2) to order that the Summary Judgment in the liquidated sum be paid “forthwith”.
13. 	The applicants also contend that the National Court erred when it relied on the affidavit of Glen Jerry sworn on the 26th of March, 2018, because the affidavit was filed after the parties argued the application on the 26th of March, 2018, thereby denying them the opportunity to respond thereto.
14. 	The other ground of appeal raised by the appellants is that the Court erred when it refused to acknowledge that the applicants had filed an application on 26th of March, 2018, seeking that the learned Judge, reuse himself on the basis of perceived or actual bias.
15. 	The factors or circumstances that should be taken into account in the exercise of the discretion to grant or refuse an application for stay are helpfully set out in the leading case of Gary Mc Hardy v Prosec Security & Communications Limited Trading as Protect Security (2000) SC646. The factors and or principles are:
(i)	The principle that the judgment creditor is entitled to the benefits of the Judgment;
(ii)	Whether leave is required and whether it has been obtained;
(iii)	Whether there has been a delay in making the application;
(iv)	Possible hardship, inconvenience or prejudice to either party;
(v)	The nature of the judgment sought to be stayed;
(vi)	The financial ability of the applicant;
(vii)	Preliminary assessment about whether the applicant has an apparent error of law or procedure;
(viii)	Whether on the face of the record, there may be indicated an apparent error of law or procedure;
(ix)	The overall interest of justice;
(x)	The balance of convenience.
16. 	I have also found the remarks of Sakora J in the case of O’Neil v Eliakim (2016) PGSC 40, at paragraph 69, with reference to the factors outlined in the case of Mc Hardy, cited above, illuminating, when he stated:
	“69.	Finally, the underlying reason for these tests and operating factors or circumstances has to do with the main concern in the maintenance of the status quo in the circumstances before the actions were taken by either or both parties that purportedly created a legal dispute invoking the jurisdiction of the court. And if the determination of that dispute in the court below is the subject of an appeal, then apart from the requirements of statute and rules of court governing the exercise of appellate jurisdiction, it just makes eminent sense to ensure that nothing is done by way of effecting or executing the challenged judgment before the appellate court exercises its jurisdiction over it.”  
17. 	It seems to me that a proper approach of the court, in considering a stay application is not a mechanical one of ticking the boxes. The Court, having regard to the requirement that each case must turn on its own circumstances, should have a holistic view of all the factors stated in McHardy case and then come to an appropriate determination.
18. 	The basic premise of departure should be to consider, first, that the judgment creditor is entitled to the benefits of the judgment. I have taken this into account.
19. 	On a consideration of the balance of the factors, this Court has already found that the applicant does not require leave to appeal. The applicants have already filed the appeal. The applicant has not delayed in filing the application. The application was filed on the 5th of April, 2018. It was listed for hearing on the 13th of June, 2018 and subsequently adjourned until it was heard on the 31st of July, 2018.
20. 	The balance of convenience in this matter coincides with the common sense. It seems to me, convenient that nothing should be done by way of effecting or executing the challenged judgment before the appellate Court exercises its jurisdiction over it.
21. 	In my mind, there is no issue impugning the financial capability of the applicants to finally settle the judgment of the lower Court. The judgment appealed against is final in nature and the applicants have no recourse in the lower Court if stay is not granted.
22. 	I have assessed the grounds of appeal filed by the applicant in the context of the nature of character of summary judgment, namely that summary judgment is an extra-ordinary remedy that closes the door in final fashion against the defendants without the benefit of a full trial and that it should only be granted where the plaintiff’s claim is unanswerable and or unassailable, and there is conceivably no bona fide defence to the claim. The grounds of appeal raised by the applicants suggest that they may well have a bona fide defence that stands a chance of succeeding.
23. 	It is my respectful view that all the grounds outlined above, are fairly arguable.
24. 	In my mind, the granting of summary judgment on a liquidated demand in the face of Section 12 (3) of the Claims By and Against the State Act and the absence of a valid Section 5 Notice that is the condition precedent to suing the State may well be an impermissible error on the face of the record. It seems to me that with respect to Section 5 of the Claims By and Against the State Act they may well be an issue around its validity. This is so because there are authorities that say that a notice under Section 5 of the Claims By and Against the State Act must provide the date of the alleged occurrence giving rise to the claim (Badastal Limited v Dr. Puka Temu, Minister for Lands & Physical Planning & Others - SCA No. 107 of 2018).
25. 	The other grounds of appeal relating to the affidavit of Mr. Glen Jerry and the application for recusal, impact on the principles of natural justice and the duty to act fairly, are arguable. It seems to me that whilst a judge should not unjustifiably allow himself/herself to be chased from the judgment seat, because of the duty to preside, where such an attempt is made, it must be heard and dealt with on the merits.
26. 	In all the circumstances, this Court should not lose sight of the fact that the applicants seek to appeal against a summary judgment, which should only be granted if the applicant’s case is unanswerable and there is no bona fide defence.
27. 	In conclusion, having regard to the totality of the circumstances in this case, I am satisfied that the applicants have satisfied the requisite elements for stay of the entire proceedings of the National Court.
28. 	In the result:
	(i)	Pursuant to Section 19 of Supreme Court Act (Chapter 37) and Section 155(4) of the Constitution and the inherent jurisdiction of the Supreme Court, the National Court proceedings described as WS No. 992 of 2014(CC1) – Manton Group Limited, Siam Niugini Limited and South Fly District Development Authority v Secretary, Department of Mineral Policy and Geohazard Management and Independent State of Papua New Guinea, are hereby stayed pending determination of the Appeal.
______________________________________________________________
Corrs Chambers Westgarth Lawyers:  Lawyer for the Appellant
B. S. Lai Lawyers:  Lawyer for the Respondents