SC2360

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 38 OF 2022 [IECMS]

BETWEEN:
REX KIPONGE
Appellant

AND:
HON WALTER SCHNAUBELT in his official capacity as MINISTER FOR TRANSPORT & CIVIL AVIATION & SHAREHOLDER OF NATIONAL AIRPORTS CORPORATION LIMITED
First Respondent

AND:
NATIONAL EXECUTIVE COUNCIL
Second Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani:  Batari J, Hartshorn J, Dingake J                     
2023:  22nd, 27th & 28th February

SUPREME COURT – Application for interim orders pursuant to s. 5(1)(b) Supreme Court Act – held – it has not been established that an interim order is necessary to prevent prejudice to the appellant’s appeal against the refusal to grant leave for judicial review – application refused.

Cases Cited:
Peter Makeng v. Timbers Ltd (2008) N3317
Kawari Fortune Resources Ltd v. Louis Limbo Apurel (2015) SC1614
Joel Luma v. Francis Awesa (2013) SC1259
Peter O’Neill v. Cosmos Bidar (2019) SC1899

Counsel:
Mr. Dan Kakaraya/Mr. Noel Ako, for the Appellant
Mr. Steven Ranewa, for the First Respondent
Mr. Kevin Kipongi, for the Second & Third Respondents

28th February, 2023

1. 	BY THE COURT:   This is a decision on a contested application for a stay and other interim orders sought pursuant to s. 5(1)(b) Supreme Court Act and other provisions. 

2. 	The Applicant/Appellant is the Managing Director (“MD”) and Chief Executive Officer (“CEO”) of the National Airports Corporation Limited (“NAC”) having been so appointed by the Board of the NAC on 3rd December 2021.

3. 	On the 7th of December 2022 by a notice published in the National Gazette No. G930 dated 7th December 2022, the First Respondent suspended the Applicant/Appellant as Managing Director and Chief Executive Officer of NAC and appointed Joseph Tupiri as Acting Managing Director and Chief Executive Officer of NAC for a term of three (3) months commencing on 5th December 2022. The exercise of power by the First Respondent to make this decision was pursuant to Section 147AG of the Civil Aviation (Amendment No. 1) Act 2022 (“CA Amendment Act”).

4. 	On the 13th of December 2022, the Applicant/Appellant filed an application for leave for judicial review at the National Court in the proceeding entitled: OS (JR) No. 123 of 2022 – Rex Kiponge v Hon. Walter Schnaubelt and Others to review the decision of the First Respondent to suspend him as the Managing Director of NAC.

5. 	The leave application was heard by Kandakasi DCJ in the National Court on the 16th of December 2022 and was dismissed.
6. 	On the 19th of December 2022, the Applicant/Appellant filed an appeal in the Supreme Court against the said decision.

7. 	Thereafter, the Applicant/Appellant brought an application before Makail J, sitting as a single Judge of the Supreme Court, under section 5(1) (b) of the Supreme Court Act, seeking to stay the decision of the First Respondent to suspend the Applicant/Appellant. 

8. 	The application was refused. Being dissatisfied with the decision of Makail J given on the 30th of December 2022, the Applicant/Appellant filed a Notice of Motion on the 20th of January 2023 seeking interim orders or interlocutory injunctions pursuant to s. 5 (1) (b) of the Supreme Court Act.

9. 	This decision relates to the above Notice of motion.

10. 	We deal with this application as one brought in terms of s. 5 (1) (b) Supreme Court Act. In our considered opinion the other provisions relied upon by the Applicant are not applicable.  Order 2 Rule 1(h) may only be relied upon where there is no relevant Supreme Court section or rule - here there is a section – s. 5(1)(b) Supreme Court Act. 

11. 	It is also trite learning that s.155(4) of the Constitution - may only be relied upon in the absence of other legislation - here there is other legislation – s. 5(1)(b) Supreme Court Act.

 Section 5(1)(b) Supreme Court Act

12. 	In regard to an application made pursuant to s. 5(1)(b) Supreme Court Act, we reproduce the following passage from Kawari Fortune Resources Ltd v. Louis Limbo Apurel (2015) SC1614 at [24] - [26] with which, we respectfully agree:

" 24.       An interim order made under s 5(1)(b) of the Supreme Court Act can, like a stay order under s 19 of that Act, have the effect of preserving the status quo pending the hearing and determination of an appeal or application for leave to appeal but these two types of relief are conceptually different. An interim order is typically an injunction addressed to an opposing party so as to protect an interest of the party seeking the interim order whereas a stay is not so addressed but rather suspends the operation of the judgement or decision under challenge: Peter Makeng v Timbers (PNG) Limited (2008) N3317 (Injia DCJ, as the Chief Justice then was). ...... 
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? There is nothing in the text of the provision which requires an applicant for such an order to demonstrate special or exceptional circumstances. It would be an impermissible gloss on that text to introduce any such requirement.  
26.	Identifying the claims of the parties does not entail reaching any final conclusion on the merits of the claim advanced by the applicant for the interim order, only that the applicant has an arguable case. The claims are to be found in the grounds specified in the notice of appeal or, as the case may be, application for leave to appeal and in the bases upon which those grounds are contested. Where the claim of the applicant appears to strongly arguable, even comparatively minor prejudice might warrant the making of an interim order (and the converse may also warrant the making of an interim order in the circumstances of a particular case). What is involved is the exercise of a judicial discretion in which the two considerations, strength of the applicant's claim and nature and extent of prejudice interplay, according to the circumstances of a particular case."

The claim of the Appellant

13. 	As stated in Kawari Fortune (supra), Joel Luma v. Francis Awesa (2013) SC1259 and Peter O’Neill v. Cosmos Bidar (2019) SC1899 at [8], the claims of the Appellant are found in the grounds of appeal. Here, the claim is that the primary judge fell into error in refusing to grant leave to judicially review. 

Nature of appeal

14. 	The appeal is against the refusal to grant leave to apply for judicial review. The National Court does not have jurisdiction to grant interim relief until an application for leave to judicially review is granted: Peter Makeng v. Timbers Ltd (2008) N3317. This is because a plaintiff does not have a primary right to challenge an administrative decision until leave is granted.

15. 	Similarly, interim relief cannot be granted in the Supreme Court until an application for leave to appeal or an application for leave to review are granted.

16. 	When there is an appeal against a refusal to grant leave for judicial review, it is an appeal as of right, against a final decision, permitted by statute, against that refusal.

17. 	Until the Supreme Court overturns that refusal, the Plaintiff/Appellant still does not have a primary right to challenge the administrative decision. Consequently, a Plaintiff/Appellant should not be able to obtain any interim relief - similar to the situation in the National Court - until the refusal is overturned unless provided by statute.

18. 	Section 5(1)(b) of the Supreme Court Act provides that, “Where an appeal is pending before the Supreme Court, an interim order to prevent prejudice to the claims of the parties may be made by a Judge.”

19. 	In this instance, the “claim” of the Appellant in s. 5(1)(b) is the appeal against the refusal to grant leave to judicially review - the claim is not the decision of the Minister to suspend.

20. 	This Court in considering this application under s. 5(1)(b) should consider whether it has been established that an interim order is necessary to prevent prejudice to the Appellant’s appeal against the refusal to grant judicial review.
 
21. 	In this application, the Applicant/Appellant seeks a stay of the decision by the First Respondent to dismiss him. The Minister’s decision, however, is not the claim of the Appellant in the appeal. As mentioned, the Appellant’s claim for the purposes of s. 5(1)(b) Supreme Court Act is an appeal against the refusal to grant leave to judicially review.
22. 	In considering whether an interim order is necessary pursuant to s. 5(1)(b) to prevent prejudice to the Appellant’s appeal against the refusal, it has not been established that the Appellant will be prevented from or prejudiced in continuing with his appeal against the refusal if the stay sought is not granted. It is not necessary that there should be a stay of the Minister’s decision to suspend, as sought, for the Appellant to continue with his appeal against the refusal to grant leave to judicially review.

23. 	Consequently, the application for a stay pursuant to s. 5(1)(b) should be refused.

24. 	The other relief sought, also pursuant to s.5(1)(b), should be refused as again, it has not been established that such relief is necessary to prevent prejudice to the Appellant’s claim which is an appeal against the refusal to grant judicial review.

25. 	In the result this application is misconceived. It is accordingly dismissed with costs – such costs to be taxed if not agreed.
__________________________________________________________________
Warner Shand Lawyers: Lawyers for the Appellant
Kawat Lawyers: Lawyers for the First Respondent
Solicitor General: Lawyer for the Second & Third Respondents