SC2213

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 62 OF 2021 (IECMS)

BETWEEN:
PAUL VANUGA 
AND OTHERS
Applicants

AND
THE STATE 
AND PAUL DOPSIE
Respondents

Waigani: Logan J
2022: 3rd March

PRACTICE & PROCEDURE – application for stay – where application for stay in proceeding dismissed by different judge of Supreme Court – where applicant then makes fresh application for stay – whether single judge has power pursuant to s 5(3) of Supreme Court Act to discharge or vary order made under s 5(1) – where further application for stay amounted to an abuse of process – application dismissed

Facts:

On 19 November 2021, the appellants applied pursuant to s 5(1) of the Supreme Court Act 1975 for a stay in respect of the operation of orders made in the National Court on 15 September 2021. That application was listed for hearing before Hartshorn J, sitting as a single judge of the Supreme Court. The hearing proceeded before his Honour on 13 December 2021. Hartshorn J ultimately dismissed the application for want of prosecution on that day. 

The appellants did not seek to vary or discharge Hartshorn J’s orders. Instead, on 20 January 2022, the appellants filed a fresh application for stay seeking to reagitate the application that had been dismissed by Hartshorn J on 13 December 2021 before a single judge of the Supreme Court.  

Held:

1.	The power of the Supreme Court to discharge or vary an order made pursuant to s 5(1) of the Supreme Court Act 1975 may only be exercised by the full Court: Powi v Southern Highlands Provincial Government [2006] PGSC 15; SC844 referred to. 
2.	Where the Court has dismissed an earlier application pursuant to s 5(1) of the Supreme Court Act 1975 for a stay, a further application for a stay is an abuse of process.

Cases Cited:

Powi v Southern Highlands Provincial Government [2006] PGSC 15; SC844

Legislation:

Supreme Court Act 1975

Counsel:

Mr. D Levy, for the Applicants
Mr. J Napu, for the Respondents

Oral decision delivered on
3rd March 2022

1.	LOGAN J: On 19 November 2021, the appellants applied pursuant to s 5(1) of the Supreme Court Act 1975 for a stay in respect of the operation of orders made in the National Court on 15 September 2021. The effect of those orders was to require the implementation forthwith of a decision of the Public Service Commission of 3 November 2020 in favour of Dr Paul Dopsie.  At that time, the court further ordered that a decision of the Secretary for Health of 29 November 2019, which effectively suspended Dr Dopsie from office, be annulled and that he be reinstated to his substantive position held prior to suspension.  There was a further order which made provision in respect of payment of salary.

2.	The application for a stay was listed before Hartshorn J, sitting as a single judge of the Supreme Court, on 13 December 2021.  At that time, there was an application made for the adjournment of the hearing of the stay application on the basis that Mr Levy, the managing partner, who it was desired to appear for the appellants (and applicants on the stay application) was then away so as to attend to an urgent matter in Lae.

3.	His Honour considered that submission but in the result made an order that day which dismissed for want of prosecution the application for a stay.

4.	The appellants chose not to seek the discharge or variation of the order for dismissal and a consequential hearing on the merits of the stay application. Instead, on 20 January 2022, they filed a fresh application for a stay.  The point has been raised by Mr Napu on behalf of the respondent that so to do is an abuse of process in circumstances where there is a subsisting order for dismissal in respect of the earlier stay application.  

5.	The power to grant a stay being an interim order is one which may be exercised by a single judge: see s 5(1) of the Supreme Court Act.  However, s 5(3) of the Supreme Court Act provides: “A directional order made under subsection (1) may be discharged or varied by the Supreme Court.”  

6.	In Powi v Southern Highlands Provincial Government [2006] PGSC 15; SC844, the Supreme Court held that the reference in s 5(3) to the Supreme Court meant the full Supreme Court, in other words, the Supreme Court as constituted by three or more judges.  

7.	Mr. Levy for the applicants/appellants was not able to point me to any particular authority which would grant to a single judge the power to discharge or vary the order dismissing the earlier stay application.  Mr. Napu also did not point to any authority which would have permitted me to have discharged or varied the order dismissing the earlier application for a stay.

8.	In the absence of an order dismissing the earlier stay application, it seems to me that the further application for a stay is an abuse of process.  It is in effect an endeavour to get around the requirement that the Supreme Court constituted as a full court, and as so constituted alone, has power to discharge the earlier order of dismissal.  To file a further application in the face of the subsisting order of dismissal is in my view an abuse of process. 
 
9.	It seems to me that the course which ought to have been taken by the appellants/applicants is to apply to the Supreme Court constituted as a full court under s 5(3) of the Supreme Court Act to discharge or vary the order made in December last year and, at the same time, if the court thought fit, to hear and determine on the merits the application for a stay.  
10.	For these reasons, it seems to me that the application for a stay filed on 20 January 2022 must be dismissed with costs to be taxed if not agreed. 

Orders

1.)	The application for a stay filed on 20 January 2022 be dismissed.
2.)	The applicants (appellants) pay the respondent’s costs of and incidental to that application, such costs to be taxed if not agreed. 
__________________________________________________________________
Manase & Co. Lawyers: Lawyers for the Appellants	
Napu & Co Lawyers:  Lawyers for the Respondents