SC2310  

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 128 OF 2022

BETWEEN:
HON. KEVIN ISIFU, MP in his capacity as MINISTER FOR INTER-GOVERNMENT RELATIONS
First Appellant

AND:
HON. LUKE PANGUMA in his capacity as PRESIDENT OF HULIA LOCAL-LEVEL GOVERNMENT
Second Appellant

AND:
GIBSON TIGI, PAUL YAWE, THOMAS TAWANDA, JACKSON IRALI, DAVID DALIRA, GIBSON PUNGA and DANNY TADABE as purported members of the Management Committee of MORAN LOCAL-LEVEL GOVERNMENT SPECIAL PURPOSES AUTHORITY
Third Appellant

AND:
ANTHONY HAMAKA as Chairman of MORAN LOCAL-LEVEL GOVERNMENT SPECIAL PURPOSES AUTHORITY
First Respondent

AND:
TIMUGU IRALI as Member of the MORAN LOCAL-LEVEL GOVERNMENT SPECIAL PURPOSES AUTHORITY
Second Respondent

Waigani: Batari J
2022:  17th October, 2nd November

SUPREME COURT – Interlocutory application – stay – amended application – objection to competency of – Supreme Court O. 11 r. 11 on amendment to proceedings – whether amendment sanctioned by the Court or Judge – form – whether general form of application under Supreme Court Rules Form 4 and Form 17 complied with. 

SUPREME COURT – interlocutory application – stay – decision of primary court – principles applied – onus on applicant to show reasonable cause for stay – no reasonable cause shown – application refused. 

Cases Cited:

Minol v Salika (2020) SC2015
Gary McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279
Secretary, Department of Mineral Policy and Geohazard Management v Manton Group Ltd (2018) SC1703
O’Neil v Eliakim [2016] PGSC 40

Counsel:

Ms A. Koisen, for the Appellant/Applicant
Mr P. Harry, for the First Respondent
Mr J. Haiara, for the Second Respondent

RULING

2nd November, 2022

1.	BY THE COURT:   This is an application for stay pursuant to an amended application filed on 13 October, 2022. It is heard together with the respondents’ Objection to Competency of the application. I will deal with the two matters in one decision starting with the issue of Competency of the application for stay.

Background 

2.	The second and third appellants have been involved in a long running and convoluted dispute with the first and second respondents over the membership of Moran Local-Level Government Special Purposes Authority (MLLG Special Purposes Authority). The dispute has also resulted in multiplicity of court cases. In proceedings, OS No. 387 of 2019 Anthony Hamaka & Timugu Irali v. Hon Kevin Isifu & Ors., the plaintiffs successfully sought and obtained against the defendants, declarative orders which annulled the decision of the Minister for Inter-Government Relations that purported to renew the term of the MLLG Special Purposes Authority. The declarative orders also annulled the purported endorsement of the defendants (now second and third appellants) as members of the MLLG Special Purposes Authority. The declarative orders further affirmed the currency of the terms of the management committee of the MLLG Special Purposes Authority headed by Anthony Hamaka. The appeal is against the decision of the primary court in granting the declarative orders. 

The Application for stay 

3.	In this application, the appellants are seeking a stay of the primary court decision pending the hearing of the appeal. The application in essence, reads:

AMENDED STAY APPLICATION

1.	Pursuant to Section 19, Section 5 (1) (a) & (b) of the Supreme Court Act Chapter 37 and Order 03 Rule 2 (b) of the Supreme Court Rules:

(i)	the decision of her Honor Getrude Tamade, AJ made on the 22 of July 2022 in which such orders granted the entire relief sought by the Respondents in the lower court proceeding styled WS 387 of 2019 - Anthony Hamaka & ors v Honourable Kevin Isifu & ors, be stayed until the determination of this appeal; and,

(ii)	The First Respondent and the Second Respondent are restrained from holding themselves out and conducting themselves in any manner whatsoever as the Management Committee of the MLLG Special Purpose Authority until this appeal is determined; and,

2.	The Grounds upon which the Appellants rely on are as set out in the Notice of Appeal filed on Tuesday 16 August 2022.

3.	The Applicant will also rely on the duly sworn and seal affidavit of Gibson Tigi dated 30 August 2022.

Competency of the application 

4.	The competency of the Amended Stay Application is challenged on two fundamental grounds of non-compliances with the provisions of the Supreme Court Rules. The respondents’ first contention is, that the amendment filed on 25 August 2022 was non-compliant with O.11 r. 11 of the Rules in that the initial application for stay was unilaterally amended outside the court process. The respondents argued in the second limb, that the form of the application is non-compliant with Form 4 and Form 17 of the Rules.

5.	The applicant’s position is that the application for stay is duly compliant in all respects of the rules and, that the respondents’ challenge to the competency of the proceedings is misconceived, it should be dismissed.

Ruling 

6.	Order 11 r. 11 states:

“11.	The Court or a Judge may order that any person be added as a party to proceedings under these rules or that the proceedings be amended and may impose such conditions as appears just and give all consequential directions.”

7.	This rule vests in the Court, the power to add a party to the proceedings or to amend a document filed in the proceeding.  The intent of the provision is, that an addition of a party to the proceeding or an amendment to the proceeding must be sanctioned by the Court or a Judge on reasonable and satisfactory explanation of why a party should be added to the proceeding, or why the proceeding be amended. The grant of the relief sought is discretionary with the focus on promoting the interest of justice. The onus is on the party applying to invoke the power of the Court, to set out in clear and precise terms, the grounds in support of the amendment to the proceeding or to add an additional party.

8.	The rule also by inference, gives the Court the mandate to guard against abuse of its processes. It empowers the Court to ensure the application to amend the proceeding is not mala fide or that it would not result in prejudice on the other party. It is equally important that the Court is satisfied, the amendment would facilitate proper ventilation of issues in dispute and promote the interest of justice.

9.	Thus, it is imperative that the rules are complied with unless it is shown that adherence to the rule is, impracticable, it will cause inconvenience and hardship or prejudice, or that compliance has been waived.  Generally, a failure to adhere to the rules of practice in regard to jurisdiction and form will render the proceedings, a nullity.

10.	Order 11 r 11 does not specifically define the nature of the proceedings to be amended. However, the term, “proceedings” is sufficiently wide to cover proceedings to amend the substantive matter before court as well as such related interim reliefs as, an application for stay. This view has support in the case of Minol v Salika (2020) SC 2015 where Hartshorn J said:

“Notwithstanding that Rule 11 does not specifically refer to the amendment of an application for leave to appeal, its wording is sufficiently wide to encompass an application for leave to appeal by use of the word, ‘proceedings.’”

11.	In this case, there is no substance in the applicant’s contention that the respondents’ objection to the validity of the amended application for stay is misconceived. The applicant has not shown that the amendment to the Application for Stay was filed pursuant to O.11 r.11. There is also no evidence that the application of the rule has been waived by the Court.

12.	In addition, the respondents are contesting that the Amended Stay Application was not filed in compliance with Forms 4 and 17 of the Rules. 

13.	Form 4 provides for the general form of Application. Form 17 is for use as the general form of address for service. In the absence of any specific direction under the Rules as to the form to be used in an application for a stay, Form 4 and Form 17 are the appropriate forms to use in invoking the jurisdiction of the Court to hear and determine the application. The appellants’ amended application for stay as set out above, is substantially defective in failing to specify each ground relied on for a stay. This is the requirement in the second clause of Form 4. The appellants have not relied on the grounds and matters to consider as suggested in the well-trodden case of Gary McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279. The result is that there are no grounds for a stay. 

14.	Furthermore, it appears that the filing of the amended application for stay on 28 August 2022 was not accompanied by an affidavit or affidavits in support of the application. This is provided for under clause 3 of Form 4. In addition, the amended application was not filed in compliance with Form 17 which requires that the applicant sets out the names, addresses, postal addresses and telephone numbers of the applicant and the lawyer.

15.	The consequences of non-compliance of with O 11 r 11, Form 4 and Form 17 of the Rules of practice are, that the amended application for stay is incompetently before this Court for adjudication. The application is dismissed.

16.	As regards the merits of the application, the principles which guide the exercise of Court discretion is settled. The matters to be considered are set out in McHardy v Prosec Security and Communication Ltd.  These are:

a)	Whether leave to appeal is required and whether it has been obtained.
b)	Whether there has been any delay in making the application.
c)	Possible hardship, inconven8ience or prejudice to either party.
d)	The nature of the judgment sought to be stayed.
e)	The financial ability of the applicant.
f)	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 apparent error of law or procedure.
h)	The overall interest of justice.
i)	Balance of convenience.
j)	Whether damages would be sufficient remedy.

17.	In my view, it is not necessary that all the boxes for a stay in McHardy’s case are ticked. It is sufficient, where one or a number of the conditions are met, a stay may be ordered in the particular circumstances of a case, if that course is reasonable and necessary to serve the interest of justice.

18.	I have also found the approach suggested by Dingake J in, Secretary, Department of Mineral Policy and Geohazard Management v Manton Group Ltd (2018) SC1703 is enlightening. His Honour stated at paragraph 17: 

“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.” 

19.	In the case of O’Neil v Eliakim [2016] PGSC 40 Sakora, J eloquently stated at paragraph 69, with reference to the factors outlined in the case of Mc Hardy:

“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.”  

20.	In this case, there are no issues raised on the first two factors in McHardy’s case concerning the issues of, leave and delay, in making the application. 

21.	As regards the other factors, the appellants have not demonstrated on the materials before the court, they have a persuasive case for the maintenance of the status quo.  Furthermore, having regard to the requirement that each case must turn on its own circumstances and taking a holistic view of all the factors stated in McHardy case, I am not satisfied that the grant of stay will meet the interest of justice.  

22.	Because I have reached the conclusion on the competency of the application, it is not necessary to expound on the reasons for rejecting the appellants’ application based on it being unmeritorious.

23.	The outcomes of the both rulings are the same. The application is incompetent for lack of jurisdiction and want of form. The application is also misconceived and without merit. The Orders of the Court are that:

1)	The application for stay of the National Court decision is refused.
2)	The costs be in the cause.
_________________________________________________________
Koisen Lawyers: Lawyers for the Appellants
Harry Lawyers: Lawyers for the First Respondents
Haiara’s Legal Practice: Lawyers for the Third Respondents