SC2087

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 137 OF 2019

IN THE MATTER OF AN APPLICATION FOR ENFORCEMENT OF HUMAN RIGHTS UNDER s. 57(1) OF THE CONSTITUTION

BETWEEN:

PAUL PARAKA
Appellant 

AND:
MEKEO GAULI Principal Magistrate, Waigani District Court
First Respondent

AND:
Senior Constable PIUS PENG, Chief Superintendent MATHEW DAMARU, Director, Chief Inspector TIMOTHY GITUA, Police Force and former members of the Sweep Team
Second, Third and Fourth Respondents

AND:
PONDROS KALUWIN, Public Prosecutor
Fifth Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

Waigani: Hartshorn J
2020: 2nd & 3rd September 

STAY - Application for a stay – principles of law on stay application discussed – application for stay is brought under s19 and S 5 (1)(b) of Supreme Court Act and s155 (4) Constitution - appellant is not able to rely on s.19 Supreme Court Act for the relief which he seeks -  s. 19 Supreme Court Act does not give Court the power to grant such relief – appellant has not shown to the Court that a stay is required to prevent prejudice to his claim in the appeal, as is necessary -  s. 5(1)(b) cannot be invoked – s155(4) Constitution cannot be invoked as the appellant has his rights provided for by other laws -  s57 (3) and (5) cannot be invoked as the appellant has not shown to the court which of his rights would be infringed if a stay order is not granted – application for stay dismissed 

Cases Cited:

Powi v. Southern Highlands Provincial Government (2006) SC844
Kawari Fortune Resources Ltd v. Louis Limbo Apurel (2015) SC1614
Behrouz Boochani v. State (2017) SC1566

Counsel:

Mr. P. Paraka, in person for the Appellant
Ms. I. Mugugia, for the Second to Sixth Respondents

Oral decision delivered on
3rd September 2020

1. HARTSHORN J: This is a decision on a contested application for a stay.

Background

2. The appellant appeals against a decision of the National Court delivered on 30th August 2019 (decision appealed). The decision appealed refused the relief sought by the appellant in his originating summons which he filed as an application for the enforcement of his human rights. The appellant had sought to restrain the Public Prosecutor from prosecuting him by way of an ex officio indictment. He sought various declarations and orders under s. 57 Constitution to protect and enforce his human rights. He also sought injunctions to permanently restrain the Public Prosecutor from proceeding further with the ex officio indictment. 

3. The further amended application of the appellant by which he seeks a stay, seeks to stay a criminal proceeding CR (FC) 118 of 2019 and any proceedings in the National Court dealing with “the proposed Ex-Officio Indictment against the Appellant dated 25th April 2019.”

4. CR (FC) 118 of 2019 returns to Court tomorrow, the 3rd, and also on the 4th September 2020 for the hearing of two motions. 

Section 19 Supreme Court Act

5. The appellant makes application under s. 19 Supreme Court Act which is: 

“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.”

6. The appellant submits that “proceedings” in s.19 Supreme Court Act is not confined to the proceedings being appealed. He did not cite any authority for this proposition. 

7. To my mind, as s. 19 specifically states that unless otherwise ordered an appeal does not operate as a stay of proceedings, it is referring to the proceedings from which the appeal is from. It is unlikely to be referring to other proceedings as this would lead to uncertainty, and the question, “which are the other proceedings which are not being appealed?”. As in my view, “proceedings” means the proceedings from which the appeal is from, s.19 only gives power to the Supreme Court or a Judge to order a stay of the proceedings which the appeal is from. As the proceedings which the appellant seeks to stay are not the proceedings which the appeal is from, the appellant is not able to rely on s.19 Supreme Court Act for the relief which he seeks as in my view, s. 19 Supreme Court Act does not give this Court the power to grant such relief.  

Section 5(1)(b) Supreme Court Act 

8. The appellant also relies upon s. 5(1)(b) Supreme Court Act. Section 5(1)(b) is 

“Where an appeal is pending before the Supreme Court – 
(b) an interim order to prevent prejudice to the claims of the parties;
 may be made by a Judge.” 

9. In Kawari Fortune Resources Ltd v. Louis Limbo Apurel (2015) SC1614 at [25] the Court said:

“25. As is apparent from the text of s 5(1)(b) of the Supreme Court Act, the purpose of an interim order is “to prevent prejudice to the claims of the parties”, pending the hearing and determination of an appeal to the Supreme Court. Necessarily, that requires attention to be focused on these questions when deciding whether or not to make an interim order: what are the claims of the parties, what is the alleged prejudice and what is necessary, pending the hearing and determination of the appeal to prevent that prejudice?” 

10. In the evidence upon which the appellant relies, which is his evidence, he does not specifically depose as to any prejudice being occasioned to his claim in the appeal, if the stay that he seeks is not granted. Further, in submissions, the appellant did not refer to any prejudice being occasioned if the stay was not granted. The appellant stated that he would be inconvenienced if the stay was not granted. 

11. As a consequence of the above, I am not satisfied that the appellant has satisfied the obligation to show that a stay is required to prevent prejudice to his claim in the appeal, as is necessary for s. 5(1)(b) to be invoked. 

Section 155(4) Constitution

12. The Appellant also relies upon s. 155(4) Constitution. 

13. In Powi v. Southern Highlands Provincial Government (2006) SC844, the Court gave a detailed consideration of s.155 (4) Constitution and listed five important features or attributes of the section. One of those features or attributes was no. 3. No. 3 is “Where remedies are already provided for under other law, the provision does not apply”. 

14. In this instance, s.19 and s. 5(1)(b) Supreme Court Act provide the jurisdiction to this court to grant interim relief or a stay, if invoked correctly. Consequently, s.155(4) Constitution cannot be relied upon by the appellant in this instance. 

Section 57(3) and section 57(5) Constitution

15. The appellant also relies on these two subsections of the Constitution. These sections give power for this court to make orders and declarations as are necessary or appropriate for the purposes of s. 57 and are not limited to actual or imminent infringement of the guaranteed rights and freedoms.

16. The purpose of s. 57 is to protect and enforce a right or freedom in Division 3 -Basic Rights of the Constitution. 

17. In regard to whether s. 57(3) and s. 57(5) give power for interlocutory relief to be granted, I refer to Behrouz Boochani v. State (2017) SC1566 in which it was held that s. 57(3) does not confer such power. For the same reasons, I am not satisfied that s. 57(5) confers power to grant interlocutory relief. 

18. In any event the appellant has not stated the right or freedom in Division 3 which he seeks to protect and enforce and why it is necessary to protect such right or freedom by having a restraining order or a stay issue in the course of this appeal. 

19. It is not clear to the court, which right or freedom listed in Division 3 - Basic Rights, which the appellant alleges is likely to be infringed if a stay or restraining order is not granted in this appeal. This is particularly so in circumstances where the appellant has this appeal on foot; that he has informed the court that he is able to make an application to quash the ex officio indictment in the National Court; that he can review an adverse decision and that he will only be inconvenienced if a stay is not granted. 

20. Consequently, for all of the above reasons, the relief sought in paragraphs 1, 3 and 4 of the further amended application filed 2nd September 2020 is refused. The court notes that the relief sought in paragraph 2 was abandoned. Given this, it is not necessary to consider the other submissions of the appellant and counsel. 

Orders

21. It is ordered that:

a)	The further amended application filed 2nd September 2020 of the appellant is dismissed;

b)	The appellant shall pay the costs of the 2nd to 6th respondents of and incidental to the said further amended application. 
__________________________________________________________________
Appellant, Mr. Paul Paraka In person
Office of the Solicitor General: Lawyers for the Second to Sixth Respondents