Post PNG Limited v Westpac Bank PNG Limited [1999] PGSC 15; SC608 (26 May 1999)

Unreported Supreme Court Decisions

SC608

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA NO. 23 OF 1999
POST PNG LIMITED
APPELLANT
-V-
WESTPAC BANK PNG LIMITED
RESPONDENT

Waigani

Los Jalina Sawong JJ
23 March 1999
26 May 1999

APPEAL - Stay of Order pending appeal - Application for stay - Special or exceptional circumstances - Not requirement of s. 19 of Supreme Court Act - All that applicant needs to show is a reason or an appropriate case for grant of stay - Case for stay not shown - Application dismissed.

Cases Cited

PNG -v- Gulf Provincial Government [1994] PNGLR 34

Russels Trading Pty Ltd -v- Coca Cola Amatil (PNG) Pty Ltd an unreported Supreme Court Decision dated 29 March 1996

The Commissioner, Corrective Institution Services -v- Daniel Mollen an unreported Supreme Court Decision SC 513 dated 19 November 1996

Counsel

S. Ketan for Applicant

P. Payne for Respondent

26 May 1999

LOS JALINA SAWONG JJ: This is an application by the Appellant seeking a stay of orders of Woods J dated 2 February 1999 pending the hearing of an appeal which the Appellant has filed in this Court on 24 February 1999. The Appellant makes this application following refusal by the Chief Justice sitting as a single judge of the Supreme Court on 5 March 1999.

The application is made pursuant to s. 19 of the Supreme Court Act Ch. 37:

“19. 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 proceeding”

It has been decided by this Court in a number of cases that an applicant for stay pursuant to s. 19 of the Supreme Court Act is required to satisfy the Court that “special” or “exceptional” circumstances exist before stay may be granted (see PNG -v- Gulf Provincial Government [1994] PNGLR 34 and Russels Trading Pty Ltd -v- Coca Cola Amatil (PNG) Pty Ltd an unreported Supreme Court Decision in SCA No. 17 of 1996 and dated 29 March 1996).

Although not fully argued, Amet CJ, Kapi DCJ and Los J had occasion to consider s. 19 at some length in The Commissioner, Corrective Institution Services-v- Daniel Mollen an unreported Supreme Court Decision SC 513 dated 19 November 1996. With respect, we are of the view that the Court in that case has now clarified the misconception and misapplication of “special or exceptional circumstances” which are no where to be found in s. 19 of the Supreme Court Act. In commenting on the application of “special” or “exceptional” circumstances as a test in PNG -v- Gulf Provincial Government (supra) the Supreme Court said at p. 4:

“With respect, this conclusion was reached without a close analysis of the terms of s. 19 of the Act. We note that s. 19 does not have the requirement “special” or exceptional” circumstances in its terms. It simply states “unless otherwise ordered by the Supreme Court or Judge........” Those words clearly indicate that there is an unfettered discretion in the Court to stay proceeding pending appeal.

The requirement that “special or exceptional circumstances” need to be shown before the discretion is exercised in favour of granting stay may be a restriction of the discretion of the Court not included either expressly or by implication under s. 19 of the Act.”

The above view was based on what the Court of Appeal in New South Wales said in Alexander -v- Cambridge Credit Corp Ltd [1985] 2 NSWLR 685 when considering Pt 51, r 10 of the New South Wales Supreme Court Rules 1970 which are similar in terms to our s. 19.

“10. An..appeal to the Court of Appeal shall not-

(a) operate as a stay of execution or of proceedings under the decision of the court below;

(b) invalidate any intermediate act or proceeding, except so far as the Court of Appeal may direct or, subject to any direction of the Court of Appeal, as the court below may direct.”

Their Honours said at page 6:

“In examining the principles in the light of the rules, the Court of Appeal gave three reasons why the principles should be reconsidered. It is not necessary to set out all the reasons. We are content to refer to only one. At page 693 the Court said:

“First, there is no suggestion in the rule that ‘special’ or ‘exceptional’ circumstances must be established before the discretion conferred upon the Court will be exercised. This is significant because, where the Act or the rules contemplate the need for special or exceptional circumstances to warrant a particular course they generally say so. For example the very next rule (Pt 52, r 11) dealing with security for costs of an appeal says, in terms, that such an order may be made ‘in special circumstances’. No such limitation appears in Pt 51, r 10: cf also Supreme Court Act 1970, s 75A. If it had been contemplated that ‘special circumstances’ were required or that ‘exceptional circumstances’ should be established to attract the discretion to grant a stay pending appeal, it might have been supposed that the legislature would have said so in terms. The absence of such a provision implies, at least in the practice of this Court, that no such requirement exist.”

The New South Wales Supreme Court had relied on a passage from the judgment of Mahoney J. as correctly stating the proper principles in Re Middle Harbour Investments Ltd (In Liq) (Court of Appeal, 15 December 1976, unreported) which are referred to in Daniel Mollen’s case also at pages 6 - 7:

“Where an application is made for a stay of proceedings, it is necessary that the applicant demonstrate an appropriate case. Prima facie, a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct. These are not matters of rigid principle and a court asked to grant a stay will consider each case upon its merits, but where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or mere argument, weight must be given to the fact that the judgment below has been in favour of the other party. ........... In our opinion it is not necessary for the grant of a stay that special or exceptional circumstances should be made out. It is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour.”

We with respect endorse the views expressed by this Court in Mollen’s case (supra) regarding the appropriate test in considering applications for stay namely that “special” or “exceptional” circumstances are not express requirements of s. 19 of the Supreme Court Act. If the legislature had intended that “special” or “exceptional” circumstances were required to be satisfied before the Court would exercise its discretion to grant a stay under s. 19, it would have said so. It would therefore appear from the authorities referred to above that an applicant for stay need to show or demonstrate is a reason or an appropriate case by evidence to warrant the exercise of discretion in his favour.

Having decided that “special” or “exceptional” circumstance is no longer the test, we now consider whether the Applicant herein has demonstrated a reason or an appropriate case by evidence for us to exercise our discretion in its favour.

Mr. Ketan for the Applicant submits, relying on his affidavit filed herein on 15 March 1999 that a stay is “necessary to avoid unnecessary hardships, inconvenience and prejudice to it pending the final determination by the Supreme Court of the Appeal herein. He further submits that the judgment debt of K394,178.00 was a large amount of money and as such it would prejudice the Applicant.

It is not necessary for us to recite Mr. Payne’s submissions on behalf of the Respondent. We are satisfied that the Applicant has failed to demonstrate to us by evidence how it would suffer hardship, inconvenience or prejudice if the order of the National Court is not stayed. We accept the Respondent’s submission that there is no evidence that the Applicant, which is a company owned by the State and which enjoys a statutory monopoly on postal services throughout Papua New Guinea, lacks the financial ability to pay the judgment debt. We also accept Mr Payne’s submission that the Respondent is a substantial company and there was nothing from the Appellant to show that if the judgment was paid and the Applicant succeeded on its appeal the Respondent would lack the means to repay the (judgment) debt. We further accept Mr. Payne’s submission that as a general rule a successful Plaintiff is entitled to the fruit of a judgment and that in the instant case, the Respondent has been without its cash money in the sum of K394,178.00 and interest since 15 January 1997.

The Applicant has therefore failed to demonstrate to us a reason or an appropriate case for us to exercise our discretion in its favour. We accordingly dismiss the application with costs to the Respondent.

Lawyer for the Applicant: Peter Pena & Associates

Lawyer for the Respondent: Blake Dawson Waldron