Kaupa v Poraituk [2008] PGSC 37; SC955 (10 December 2008)

SC955

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 118 of 2007

BETWEEN

VINCENT KAUPA
First Appellant

AND

HON CHARLES ABEL as MINISTER FOR CULTURE & TOURISM
Second Appellant

AND

SIMON PORAITUK
First Respondent

AND

TRUSTEES OF THE NATIONAL MUSEUM & ART GALLERY
Second Respondent

Waigani: Kirriwom, Lay and Gabi JJ.
2008: 3rd July & 10th December

APPEAL – Supreme Court Act – Section 14 (3) – Application for leave to appeal against stay order – Stay order is not an injunctive order – leave is required

Cases Cited
Boyepe Pere v Emmanuel Ningi (2003) SC711
Chief collector of taxes v Bougainville Copper Limited (2000) SC853
Gary McHardy v Prosec Security and Communications Ltd trading as Protect Security [2000] PNGLR 279
Oia Aba v MVIL (2005) SC779
Peter Makeng v Timbers (PNG) Limited (2008) N3317
The State v John Talu Tekwie (2006) SC843

Counsel
N Amoiha, for the Appellant/Applicant
S Tadabe, for the First Respondent/Respondent

10 December, 2008

1. BY THE COURT: Introduction: Simon Poraituk and the Trustees of the National Museum & Art Gallery applied for judicial review of the National Executive Council (NEC) decision to suspend Simon Poraituk as Director of the National Museum & Art Gallery and appoint Vincent Kaupa as Acting Director. The National Court granted leave and ordered a stay of the NEC decision to suspend Simon Poraituk as Director and appoint Vincent Kaupa as Acting Director.

2. Vincent Kaupa and Charles Abel applied for leave to appeal the National Court decision to stay the NEC decision. Simon Poraituk and the Trustees of the National Museum & Art Gallery objected to the competency of the application for leave to appeal. The grounds of objection are:

"(a) The Application for Leave to Appeal against the Orders of His Honour, the Deputy Chief Justice Injia, granting stay of the NEC decision to suspend the First Respondent pending the hearing of the substantive review pursuant to Order 16, Rule 3(8) of the National Court Rules which are in themselves injunctive orders and thus the Appeal comes with the exception provided under Section 14(3)(b)(ii) of the Supreme Court Act and therefore, does not require Leave to Appeal against such order in the nature of granting or refusing an injunction or stay.

(b) The Appeal itself seeks to appeal against an interlocutory Order or ruling of the National Court in granting an injunction and not the Courts decision to grant of leave to review on the 22nd October 2007, thus, the application for leave is frivolous, vexations and an abuse of process and should be dismissed pursuant to Section 11 of the Supreme Court Act."

3. The issue is whether a stay order is an injunctive order for purposes of section 14 (3) (b) (ii) of the Supreme Court Act.

Facts

4. The brief facts were that on 5th October 2006, Simon Poraituk was appointed as Director of the National Museum and Art Gallery. It is alleged that at a meeting of the Board of Trustees on or about 21st September 2007 Simon Poraituk was suspended as Director. It is also alleged that Charles Abel, the Minister for Tourism, was present at that meeting, which was convened specifically to deal with the suspension of Simon Poraituk. It appears that on or about 27th September 2007, NEC suspended Simon Poraituk as Director and appointed Vincent Kaupa as Acting Director. On 28th September 2007, the Board of the Trustees convened their scheduled meeting at Lamana Hotel and was advised by Ms Maria Kopkop that Simon Poraituk had been suspended at a meeting held on 21st September 2007 at the Gateway Hotel.

5. Simon Poraituk and the Trustees of the National Museum and Art Gallery sought leave to apply for review of the NEC decision to suspend him and appoint Vincent Kaupa. On 22nd October 2007, leave for judicial review was granted. On 25th October 2007, the National Court stayed the suspension of Simon Poraituk as Director and the appointment of Vincent Kaupa as Acting Director. On 20th November 2007, Vincent Kaupa and Charles Abel filed an application for leave to appeal. On 4th December 2007, Simon Poraituk and the Trustees of the National Museum and Art Gallery filed an objection to competency of the application for leave to appeal.

The Law

6. Section 14 (3) of the Supreme Court Act provides:

"(3) No appeal lies to the Supreme Court without leave of the Supreme Court –

(a) from an order allowing an extension of time for appealing or applying for leave to appeal; or

(b) from an interlocutory judgement made or given by the National Court except –

• (i) where the liberty of the subject or the custody of infants is concerned; or
• (ii) in cases of granting or refusing an injunction or appointing a receiver; or
• (iii) in such other cases prescribed by the Rules of Court as are in the nature of final decisions; or
  

(c) from an order of the National Court as to costs only that by law are left to the discretion of the National Court." (Emphasis added).

Submissions

7. Counsel for Simon Poraituk submits that a stay order is an injunctive order and no leave is required under s. 14 (3) (b) (ii) of the Supreme Court Act (see Gary McHardy v Prosec Security and Communications Ltd trading as Protect Security [2000] PNGLR 279). He argues that the grant of stay is akin to a grant of injunction restraining the effect of the NEC decision. As such, the application for leave is incompetent and should be struck out with costs.

8. Counsel for Vincent Kaupa submits that a stay order is different from an injunction. Counsel cited no authority to the Court to show how a stay order is different from an injunction. In the alternative, he argues that the grounds raise questions of fact alone and leave is required (see Chief collector of taxes v Bougainville Copper Limited (2000) SC 853).

Is a stay order an injunctive order for purposes of s 14 (3) (b) (ii) of the Supreme Court Act?

9. The effect of a stay order and an injunctive order are the same in that they preserve the status quo until the full hearing; but technically they are two different forms of relief. In Peter Makeng v Timbers (PNG) Limited (2008) N3317, His Honour Injia DCJ, (as he then was) considered the question of whether the Court has jurisdiction to grant stay or other interim relief prior to grant of leave to apply for judicial review under O. 16 r. 3 (8) of the National Court Rules. At paragraph 19, he said:

"In terms of the meaning of O 16 r 3 (8), first, the provisions of r 3 (8), par (a) and (b) are expressed conjunctively by use of the word ‘and’ adjoining the two paragraphs. They are intended to be read conjunctively as a whole. There is little difference between an order for stay issued under par (a) and an interim order, usually an interim injunction, issued under par (b) because both have the same effect. In De Smith, Wolf and Jowell, Judicial Review of Administrative Action, 5th Ed; Sweet & Maxwell, 1995, the distinction between RSC Ord 53 3 (10) (a) and (b) is explained, at page 670, par 15-29:

‘When the relief sought includes an order of certiorari or prohibition, the grant of leave, if the court so directs, operate as a stay or until the court otherwise orders. The term ‘stay of proceedings’ is not confined to proceedings of a judicial nature, but encompasses the process by which any decision challenged has been reached, including the decision itself. When any other relief is requested, the court may at any time grant such relief as could be granted in an action commenced by writ, most usually an interim injunction. Although a stay of proceedings and an interim injunction perform the same function of preserving the status quo until the full hearing, there are conceptual differences between the two forms of relief. Whilst the injunction protects the interest of the litigant in dispute with another, the stay is not addressed to an ‘opposing party’ but rather is directed at suspending the operation of a particular decision. While the grant of an interim injunction is usually conditional upon the applicant giving a cross-undertaking in damages, there appears to be no such requirement or practice in relation to a stay of proceedings’".(Emphasis added).

10. We are of the view that a stay order is not an injunctive order for purposes of section 14 (3) (b) (ii) of the Supreme Court Act and leave is required. However, if we were to treat the stay order as an injunctive order, is the application for leave to appeal incompetent?

11. Where leave is sought but not required and notice of appeal has not been filed, leave should be granted if the appeal appears to have merit: Boyepe Pere v Emmanuel Ningi (2003) SC 711, applied in Oia Aba v MVIL (2005) SC 779 and The State v John Talu Tekwie (2006) SC 843. We are of the view that the appeal raises arguable issues or has merit. Accordingly, we dismiss the objection to competency with cost.

Steeles Lawyers: Lawyers for the Respondents
Henaos Lawyers: Lawyers for the Appellants