SC1820

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO. 46 OF 2019

BETWEEN:
PACIFC TRADE INTERNATIONAL LIMITED
Appellant

AND:
JAMES WAISIME
First Respondent

AND:
MARYANNE WAISIME
Second Respondent

AND:
AUSKOA ENTERPRISES LIMITED
Third Respondent

AND:
JUSTIN SEO trading as CITI ENGINEERING (PNG) LIMITED
Fourth Respondent

Waigani:  Batari J
2019:   09 July

SUPREME COURT – interlocutory application – stay – Garnishee orders – application to stay proceedings pending application for leave to apply for judicial review – whether court has jurisdiction under Supreme Court Rules O.5 r.6 in absence of leave having been granted – incompetence of – application dismissed. 

Held: 
(1) An ordinary appeal does not automatically operate as a stay of proceeding of the National Court because of s.19 of the Supreme Court Act.
(2)  	Section 19 of the Supreme Court Act has no general application to judicial review applications under s. 155 (2)(b) of the Constitution.  So, the Supreme Court has jurisdiction to hear a stay application only where leave has been granted and a judicial review application is being heard or pending hearing under O 5 r 6 of the Supreme Court Rules.  
(3)	The process for an application for judicial review and an application for leave to apply for review and related application for stay is exhaustively set out in Order 5 and Order 7 Division 2 of the Supreme Court Rules. 

Cases Cited:

Barrick (Niugini) Ltd v John Toke Pokoli (2015) SC1338
Les Curlewis v David Yuapa (2013) SC1274
McHardy v Prosec Security and Communication Ltd (2000) PNGLR 279

Counsel:

Ms. E Doiwa, for the Appellant/Applicant
D. Kipa, for the First & Second Respondents
No appearance by or on behalf of Third and Fourth Respondents

9 July, 2019

1.	BATARI J:	   This is a contested Application for Stay of the National Court proceedings and orders of 1st July and 28th February, 2019 in WS No 811 of 2014 – James & Maryanne Waisimi v Auskoa Enterprises Ltd, Justine Seeto trading as Citi Engineering (PNG) Ltd and Pacific Trade International Ltd, by his Honour, Kandakasi, DCJ.

2.	On 1st July, 2019 the primary judge made the Garnishee Orders obtained on 4th June, absolute against the applicant. The orders of 28th February, 2019 concerned assessment and award of damages.  The Court ordered judgment for the plaintiffs against all the defendants jointly and severally in the sum K268,012.63. The Court further ordered costs on a Solicitor/Client basis against each defendant both jointly and severally.

3.	Ms. Doiwa of counsel for the Applicant submitted, the Stay application has exceptional urgency as the Garnishee Orders have been made against a party with the least degree of culpability. The Applicant would show upon a review of the primary court decision, the award of damages on the basis of joint and several liability was/is against uncontested evidence that the applicant was a passive defendant. That also makes the Garnishee Order unfair and highly prejudicial against the applicant’s judicial review case.

4.	Relying on, Garry McHardy v Prosec & Security Communications Ltd [2000] PNGLR 279 principles, Ms Doiwa further submitted, the Garnishee Orders will cause the applicant real hardship and difficulty in pursuing a claim against the other defendants; the applicant has a strong chance of success on a judicial review of the assessment of damages; the applicant having filed an undertaking as to damages, has the ability to compensate the respondents; the interests of justice favour the applicant.

5.	Mr. Kipa of Counsel for the First and Second respondents submitted, the application should be dismissed. It is incompetent under O 5 r 6 of the Supreme Court Rules (SCR). Counsel also argued, the stay application is confusing.  It does not specify whether the orders sought are against the Garnishee Orders or the assessment and award of damages.   Mr Kipa further argued, the application is an abuse of the court process as the same application for stay has been entertained and refused in the court below.

Ruling

6.	The real issue in this case is the competency of the Application for Stay. The application is made pending an application for leave to apply for judicial review of a National Court decision.  It is not clear if the applicant is also appealing or seeking a judicial review of the Garnishee Orders. That issue may be absolved into the leave argument or before another Court.

7.	It is trite that the Supreme Court or a Judge, has no jurisdiction to hear an application for stay where no appeal or application for leave to appeal is pending before the Supreme Court. Even where an appeal is filed, it does confer on the appellant, automatic right of stay because of s.19 of the Supreme Court Act which provides, that an appeal or an application for leave to appeal does not operate as a stay of proceedings. The onus is on the appellant to show cause for an order of stay of proceedings in the National Court pending determination of the appeal or application for leave to appeal.  See, Barrick (Niugini) Ltd v John Toke Pokoli (2015) SC1338.

8.	The same principle in my view, applies but in a limited way to a stay of proceedings in respect of judicial review applications made under Constitution s. 155(2)(b). The procedure for making a judicial review application is set out in Order 5 of the Supreme Court Rules (SCR). The Court has no jurisdiction to hear a stay application unless leave has been granted to apply for judicial review, or a judicial review application is pending hearing.

9.	 This is apparent from the reading of O.5 r.6 of the SCR, that:
“A Judge may grant leave to proceed, give any directions desirable to prepare the matter for hearing or to preserve the interests of the parties pending hearing of the review, or make any other interlocutory Order which seems just, which is not determinative of the issues under review.” (underling mine.)

10.	The power of the judge, vis-à-vis, a single judge of the Supreme Court to grant interlocutory Orders is limited to those matters in O. 5 r. 6 namely;
a)	grant leave to proceed;
b)	give any directions desirable to prepare the matter for hearing;
c)	grant directions or orders to preserve the interests of the parties pending hearing of the review;
d)	make any other interlocutory order which seems just, which is not determinative of the issues under review.
11.	It is clear, a judge has no jurisdiction to entertain a stay application where an application for leave for review has not been granted. This view is fortified by the phrases; “to preserve the interests of the parties pending hearing of the review” and “make any other interlocutory Order which seems just, which is not determinative of the issues under review” in O. 5 r. 6.

12.	Those provisions presuppose a fact of leave having been granted and that the application for review is either pending hearing or is being heard.  It is indeed untenable to grant an interlocutory order for stay where there is no review pending subsequent to grant of leave.

13.	This is distinct from the requirement of s.19 of the Supreme Court Act which permits an application for stay of proceedings to be made where an application for leave to appeal is pending. Section 19 does not have a general application to judicial review proceedings under Constitution s. 155(2)(b). The process for an application for leave to apply for judicial review and the application for judicial review and related application for stay is exhaustively set out in Order 5 and Order 7 Division 2 of the SCR.

14.	I bear in mind, rules of court and its other practices and procedures are designed to ensure that litigants have a reasonable opportunity to be heard: Les Curlewis v David Yuapa (2013) SC1274. The onus is on the applicant to show the application of the rules of court relating to practice and procedure would result in unjust results in the circumstances of the case. 

15.	In this case, the applicant has recourse to O.11 r. 9, to remedy the omission to seek leave to apply for judicial review before make making the stay application. The applicant has not exercised that right to seek a waiver of the application of the relevant provisions in Order 5 and Order 7 Division 2 of the Supreme Court Rules.  On the other hand, the respondents have been put to unnecessary time, resource and costs wastage in having to defend an incompetent application.

16.	The Court is therefore bound to enforce and give effect to the rules as are designed in order to enhance the fundamental reason and purpose for which rules exist as a means of doing justice for all the parties. 

17.	The stay application is premature and incompetent. It is dismissed.

18.	I am mindful, the Applicant may be caused some real prejudice and hardship if the Garnishee Order is enforced while its application for leave to seek a judicial review is pending. The interest of justice in my view, lies in maintaining the status quo.

19.	Exercising the inherent jurisdiction of the Court under Constitution ss. 155 (2); 185, I hereby waive compliance with O. 5 r. 6 of the Supreme Court Rules by the applicant and make the following interim Orders: 
a)	The Application for Stay is dismissed.
b)	A Stay of the proceedings shall be in force pending hearing and determination of the application for leave to apply for  judicial review;
c)	The application for leave shall be heard within one week of today or by 16 July 2019;
d)	These orders shall expire: (i) on 16 July, 2019 if the leave application has not by then been prosecuted or, (ii) upon delivery of the ruling on the application for leave for judicial review, notwithstanding the end result.
e)	The Applicant shall pay the First & Second Respondents costs of and incidental to this application to be taxed if not agreed.     

___________________________________________________________
Makap Lawyers:  Lawyers for the Applicant 
Twivey Lawyers: Lawyers for the First & Second Respondents