Philip v Ayake [2025] PGNC 395; N11528 (17 October 2025)

N11528

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS 211 OF 2025

BETWEEN:
MARK PHILIP
First Plaintiff

PIALI YAMOWINI INCORPORATED LAND GROUP
Second Plaintiff

AND
HEWALI AYAKE
Defendant

MT HAGAN: CROWLEY J
7, 15 & 17 OCTOBER 2025

CIVIL – Stay- Proper test- interests of justice- arguable case- balance of convenience- damages as an adequate remedy.

Held:

1. The orders of the District (Land) Court at Tari in LLC. No. 11 of 2024 are stayed pending the outcome of Originating Summons in O.S. No. 211 of 2025 filed in the National Court at Mt Hagan.
   

Cases cited
McHardy v Prosec Security and Communication Ltd [2000] PGSC 22; SC646
Lucy Ande (2001) N2206
Sunga Andrew (2001) N2031

Counsel
Mr H Pora for the plaintiff

1. CROWLEY J This is an ex parte application seeking a stay of a decision of the District (Land) Court pending the resolution of an Originating Summons filed in the National Court. That Originating Summons seeks a declaration that the District (Land) Court did not have jurisdiction to deal with the matter.
   

PROCEDURAL HISTORY OF NOTICE OF MOTION

2. The matter came before me as an urgent application on 7 October 2025. The Notice of Motion sought an order that the usual requirements of service be dispensed with. But, I was told by counsel for the Plaintiff that service had been affected (though there was no evidence before me). On that basis I adjourned the matter and ordered that an affidavit of service be filed including details of efforts to service the defendant notice of this Notice of Motion.
   
3. I adjourned it for a week for that to occur. It came back to me on 15 October 2025. An affidavit was filed by leave on that day. It was sworn by Edward Polip a policeman and was sworn on 8 October 2025.
   
4. The affidavit deposed to the service on the defendant of the Originating Summons, Notice of Motion, Supporting Affidavit and Undertaking as to Damages. That occurred on 2 October 2025.
   
5. At the hearing on the 15^th of October, I was told that the defendant had also been given notice of the hearing of the Notice of Motion. That on the 7^th of October 2025 the same policeman had delivered a letter to the defendant identifying when the Notice of Motion was returnable.
   
6. I accepted that information but ordered that it be put before the court in an affidavit. I proceeded to hear the matter ex parte.
   

THE MAIN DISPUTE AND ORIGINATING SUMMONS

7. I now turn to the question of whether a stay should be granted. For that purpose, I will outline the background facts as deposed to in the material.
   
8. On 24 May 2024 the defendant filed an application in the District (Land) Court at Tari seeking orders in relation to “customary land ownership right [sic] in distribution”. This was in relation to the Nano Manda Peali lands in Moran PDL 5”.
   
9. On 9 April 2025 the first plaintiff (then the first defendant) filed a Notice of Motion that the matter be struck out as frivolous, vexatious and abuse of the Court process.
   
10. The substantive hearing occurred on 11 June 2025 and the learned magistrate delivered his decision on 8 August 2025.
    
11. Besides orders disposing of various interlocutory injunctions the learned magistrate ordered parties to mediate the dispute. It is this order that the Plaintiffs seek to stay.
    

LAW

12. The National Court Rules do not have a provision that directly deals with a stay in this circumstance. The plaintiff in their Notice of Motion cites the General Relief, Order 12 Rule 1 as empowering the court to grant a stay. Order 12 Rule 1 provides that:
    

The Court may, at any stage of any proceedings, on application of any party, direct the entry of such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgement or order in any originating process. [My emphasis]

13. It seems to me that a stay of a judgment is “such order” and the seeking it could be made “as the nature of the case requires”.
    

TEST FOR A STAY

14. However, Order 12 Rule 1 does not give the Court guidance in relation to the test to be applied. At the initial hearing counsel for the plaintiff directed me to McHardy v Prosec Security and Communication Ltd [2000] PGSC 22; SC646 (McHardy) where the Supreme Court (Amet, CJ, Jalina J & Kirriwom J) distilled from earlier precedents the kind of factors the Court will consider in exercising its discretion to grant a stay or not.
    
15. Though that case was in relation to stay of National Court judgments by the Supreme Court it has been held that it is also the appropriate test the National Court should apply when considering a stay of District Court judgments (see Lucy Ande (2001) N2206 and Sunga Andrew (2001) N2031).
    
16. The first criteria the Supreme Court identified was that “the judgment creditor is entitled to the benefits of the judgment.” This is an overarching principle, no doubt founded in the inherent notion that parties can expect finality of litigation.
    
17. The other factors include the following:
    
    1. Whether leave to appeal is required and whether it has been obtained;
    2. Whether there has been any delay in making the application.
    100. Possible hardship, inconvenience or prejudice to either party.
    4. The nature of the judgement sought to be stayed.
    5. The financial ability of the applicant.
    6. Preliminary assessment about whether the Applicant has an arguable case on the proposed appeal.
    7. Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure.
    8. The overall interest of justice.
    9. Balance of convenience.
    10. Whether damages would be sufficient remedy.
        
18. In relation to these criteria, the Court said:
    

The stipulation by the Court of the kinds of factors and circumstances it may consider taking into account cannot be exhaustive. They must necessarily vary from case to case and from time to time depending on differing circumstances. These, in our view, must only be guidelines to assist both the Court and the parties making application before it. They cannot be exhaustive or hard and fast pre-conditions.

19. I do not consider all the criteria enunciated in McHardy relevant to this case. I have taken a more global approach focusing primarily on the interests of justice, balance of convenience, nature of the judgement sought to be overturned and whether there are errors of law apparent in it.
    

APPLICATION OF MCHARDY CRITERIA TO THE FACTS

20. The decision of the District (Land) Court was handed down on 8 August 2025 and the Notice of Motion filed on the 19 September 2025. Therefore, the application for a stay was brought without undue delay.
    
21. The matter in the District (Land) Court is principally over the payment of royalties. That dispute has been sent to mediation. Until the mediation is resolved, the payment of royalties has been stayed by the District (Land) Court. The mediation has yet to occur. As the litigation is (in one sense) in abeyance, to grant a stay does not seem to overly inconvenience the parties. It might prolong the resolution of the dispute but as it stands there is no timeline for that resolution.
    
22. I was troubled by the fact that the plaintiffs had not chosen to appeal. I explored this with counsel. An appeal from the Local Land Court lies to the Provincial Land Court (see s54(1) Land Disputes Settlement Act 1975). Counsel told me that the plaintiffs position is that the Local Land Court had no jurisdiction, therefore the most appropriate way to undermine the purported decision is via a declaration in the National Court, not via an appeal. That seems consistent with s58 of the Land Disputes Settlement Act 1975 which prescribes four grounds of appeal. None of those grounds are a want of jurisdiction.
    
23. I don’t know if the position the plaintiffs have taken in this regard is right, but it is not self-evidently wrong. Moreover, if the proper course is to appeal, that is a matter best left for the judge to determine on the hearing of the Originating Summons.
    
24. The essence of the plaintiffs’ argument in the Originating Summons is that the land in question, Nano Manda Peali lands in Moran PDL 5, is subject to a Ministerial Determination. The plaintiffs provided a copy of the National Gazette dated 12 February 2002 where Moran Huli Landowners were entitled to receive royalites from Petroleum Development License Five (PDL 5). That, the plaintiff claims, is evidence that the land in question is the subject of a Ministerial Determination.
    
25. They point of s169(10) of the Oil & Gas Act 1998 which states “A ministerial determination made pursuant to the section shall not be reviewable before any court unless an application for review is made within 28 days of the Ministerial determination.” Therefore, they argue the District (Land) Court has no jurisdiction to entertain the defendant’s claims.
    
26. I make no judgments about whether that argument is right but it seems to me that the plaintiffs have an arguable case.
    
27. This argument was dealt with in the judgment they seek to stay. The learned magistrate heard and determined it (see para [41] to [71 of the decision of SPM M. Maitang of 8 August 2024). In his judgment the learned magistrate sets out s169 of the Oil & Gas Act 1998 and considers it. He identifies case law that establishes that, in making his decision, the minister is obliged to take into account rulings made by the District (Land) Court in relation to the block of land. He then extrapolates from that to say that “It therefore follows that where customary land ownership issues arise, the Local Court has exclusive power to determine ownership of customary land even over land already subject of Ministerial Determination”.
    
28. That may be correct but, with respect to the learned magistrate, his reasoning for extending the precedents he cites is not readily apparent. Though I wouldn’t say this was an “apparent error of law”, it is certainly a leap in logic which could be explored at the substantive hearing.
    
29. The dispute about whether royalties should be paid to the defendant or not is a matter which inconvenience the defendant more than the plaintiffs because they are expecting payment. However, as noted above, the staying of the order to mediate pending the outcome of the plaintiffs’ dispute over jurisdiction may cause a delay to the resolution. That may inconvenience the defendant more than the plaintiffs but not so much as to tip the scale against the granting of a stay.
    
30. Since this is primarily a dispute over money (royalties), on the face of it damages would be an adequate remedy. However, forcing a party to a mediation when one party questions the authority to do this, is a larger than questions of money. The parties may have an ongoing relationship for years. Therefore, the dispute needs to be dealt with according to law so that each party may have an opportunity to be heard. That cannot be compensated by mere damages.
    
31. Certainly, the payment of royalties is a matter of importance to the parties in this dispute and to the law of Papua New Guinea. It seems on my initial reading of the material that the case raises an interesting legal point that would be in the interest of justice to resolve. As indicated above the inconvenience to the parties is in a possible delay but as it stands there is no timeline to resolution of the original proceedings in any event.
    

CONCLUSION

32. Overall, it seems to me that the interest of justice favour the grant of the stay.
    
33. For the reasons given above, I grant the application.
    

ORDERS

1. The orders of the District (Land) Court at Tari in LLC. No. 11 of 2024 are stayed pending the outcome of Originating Summons in O.S. No. 211 of 2025 filed in the National Court at Mt Hagan.
   
2. Matter is listed for directions before me on Tuesday 2 December 2025.
   

__________________________________________________________________
Lawyers for the plaintiffs: Henry Pora Lawyers