Edo v Elias [2008] PGSC 55; SC1160 (16 December 2008)

SC1160

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 7 OF 2008

BETWEEN:

WILLIE EDO - Acting Administrator,
West New Britain Province
Appellant

AND:

MARGARET ELIAS – Secretary Department
of Personnel Management
First Respondent

AND:

THE STATE
Second Respondent

Waigani: Hartshorn J.
2008: 15th & 16th December

Application for interim orders pending an appeal against a refusal of leave to apply for judicial review

Facts:

The appellant was refused leave to judicially review certain decisions of the first respondent. Those decisions are; the decision not to submit to the National Executive Council a list of candidates for appointment as the Administrator of West New Britain Province and the decision to advertise the position. The appellant seeks, among others, a stay of "the process leading to the appointment and the perfecting of a substantive Administrator", that the State "refrain from dealing with further and perfecting the substantive appointment of an Administrator", and a stay of the National Executive Council decision revoking his appointment as Provincial Administrator and appointing Mr. Steven Raphael as Administrator, until his appeal is determined.

Held:

1) The overall interests of justice and balance of convenience do not favour the grant of the interim relief sought. Mr. Edo does not lose his right of appeal if he is not granted the interim relief he seeks and there is no credible evidence to say why he would be prejudiced in the prosecution of his appeal if the interim relief was not granted. There is no evidence or submission to the effect that damages would not be an adequate remedy for any loss suffered.

2) It would be inconsistent for an applicant who is not able to obtain interim relief in the National Court until he obtains leave, to be able to obtain that interim relief in the Supreme Court before his appeal against a refusal to be granted leave is heard.

Cases cited:

Leytrac Pty Ltd v. State [1982] PNGLR 148
Aro Investments Ltd v. Fly River Provincial Government & Anor (1997) N1519
Viviso Seravo & Anor v. John Giheno (1998) SC555
Gary McHardy v. Prosec Security [2000] PNGLR 279
Yama Group of Companies Ltd v. PNG Power Ltd (2005) N2831
Livestock Development Corporation Ltd v. Rural Development Bank Ltd (2008) SC923
Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317

Counsel:

Mr. W. Hagahuno, for the Appellant
Mr. R. Bradshaw, for West New Britain Provincial Government

16th December, 2008

1. HARTSHORN J: The appellant Mr. Willie Edo, was refused leave to judicially review certain decisions of the first respondent. Those decisions are; the decision not to submit to the National Executive Council (NEC) a list of candidates for appointment as the Administrator of West New Britain Province on 1 June 2007 and the decision to advertise the position.

2. Mr. Edo filed an appeal on 8 July 2008. A summary of the grounds of appeal are that the trial judge erred in law by:

a) directing the defendants to file affidavits when the application was for leave only,

b) considering matters that should not have been on an application for leave,

c) failing to find that the appellant had an arguable case.

3. Mr. Edo filed an Amended Notice of Motion on 8 December 2008 seeking interim orders under s. 5(1)(b) Supreme Court Act, Order 3 Rule 2 (b) Supreme Court Rules and s. 155 (4) Constitution.

4. Leave was granted to the West New Britain Provincial Government (WNBPG) to appear on the hearing of Mr. Edo's Amended Notice of Motion, there being no strong objection by counsel for Mr. Edo.

5. I had already heard and refused an application for interim orders under Order 3 Rule 2 Supreme Court Rules and s. 155(4) Constitution so will not consider this application under those provisions.

6. Mr. Edo was the Acting Provincial Administrator of West New Britain Province. On 28th November, the NEC appointed Mr. Steven Raphael as Administrator and he commenced his duties on the 5th December 2008.

7. Mr. Edo seeks amongst others, a stay of "the process leading to the appointment and the perfecting of a substantive Administrator", that the State "refrain from dealing with further and perfecting the substantive appointment of an Administrator", and a stay of the NEC decision revoking the appointment of Mr. Edo and appointing Mr. Raphael as Administrator, until Mr. Edo's appeal is determined.

8. The grounds for seeking the relief are that Mr. Edo has good prospects of success in his appeal and that he will suffer prejudice if a stay is not granted. Counsel for Mr. Edo relied on the Supreme Court case of Viviso Seravo & Anor v. John Giheno (1998) SC555, where it was held that in considering whether to grant a stay pending the determination of a review of an election petition under s. 155(2)(b) Constitution, it is sufficient for an applicant to show or demonstrate that a stay is necessary to do justice in the circumstances of a particular case.

9. In the more recent decision of Gary McHardy v. Prosec Security [2000] PNGLR 279, the Supreme Court found that it had unlimited jurisdiction to do justice and should exercise its discretionary power depending on the factors and circumstances of the particular case. Factors to consider when deciding whether to grant a stay include:

a) whether leave to appeal is required and whether it has been obtained;

b) whether there has been a delay in making the application;

c) possible hardship, inconvenience or prejudice to either party;

d) the nature of the judgment sought to be stayed;

e) the financial ability of the applicant;

f) a preliminary assessment about whether the applicant has an arguable case on the proposed appeal;

g) whether on the face of the record of the judgment there may be indicated apparent error of law or procedure;

h) the overall interests of justice;

i) the balance of convenience;

j) whether damages would be a sufficient remedy.

10. In this instance, leave to appeal is not required. There has been delay in making the application since the appeal was filed in July 2008 although there was an earlier application heard in October that was unsuccessful.

11. As to possible hardship, inconvenience or prejudice, Mr. Edo says that he will suffer prejudice and his counsel submits that he will. They have not specified why that is. No submissions were made as to whether damages would be a sufficient remedy for any loss suffered. In this regard the court was informed by counsel for WNBPG, without objection by counsel for Mr. Edo, that Mr. Edo is apparently still being paid and has reverted to his former position of Deputy Provincial Administrator. I also take into account the content of a letter written by Mr. Edo dated 5th December 2008 to the Governor of WNBPG in which Mr. Edo states, in regard to being informed of the revocation of his appointment as Acting Provincial Administrator, "Though I'm disappointment (sic), I respect the decision of the Provincial Executive Council [PEC] to that effect".

12. As referred to, the decision appealed is a refusal to grant leave for judicial review. It is the case then that the National Court has made a determination that Mr. Edo does not have an arguable case. No submissions were made concerning the financial ability of Mr. Edo. As to a preliminary assessment as to the merits of the appeal, Mr. Edo submits that he has good prospects of success.

13. Counsel for WNBPG submitted amongst others, that as the events that Mr. Edo seeks to stay or restrain have already occurred, a stay or injunction was not available. He relied upon the decision in Leytrac Pty Ltd v. State [1982] PNGLR 148 which has been referred to in Aro Investments Ltd v. Fly River Provincial Government & Anor (1997) N1519, Yama Group of Companies Ltd v. PNG Power Ltd (2005) N2831 and Livestock Development Corporation Ltd v. Rural Development Bank Ltd (2008) SC923.

14. Counsel for WNBPG also submitted that as Mr. Edo's appeal was against a decision that refused him leave to judicially review, Mr. Edo did not have any pending claim before the National Court and therefore there is no claim that can be protected by the grant of a stay order.

15. This submission is based upon the decision of Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317. At para 34, Injia DCJ (as he then was) said:

Under O 16, a plaintiff has no right to seek judicial relief unless leave is granted. No such primary right to commence proceedings exists until leave is granted and no such right to apply for a stay or for interim relief and the Court's jurisdiction to grant such relief exists until an application for judicial review seeking substantive relief is filed by the person granted leave. Upon the grant of leave and filing of the application for judicial review, the Court assumes jurisdiction to deal with any interlocutory applications.

and then at para 35:

I hold that pursuant to O 16 r 3 (8), the Court has no jurisdiction to grant stay or other interim relief in a judicial review matter brought under O 16 before the grant of leave to apply for judicial review but only after leave is granted.

16. Without deciding whether Mr. Edo does have a claim that can be protected, I mention that in my view it would be inconsistent for an applicant who is not able to obtain interim relief in the National Court until he obtains leave, to be able to obtain that interim relief in the Supreme Court before his appeal against a refusal to be granted leave is heard.

17. After considering all of the evidence filed and the submissions made, I am not satisfied that the overall interests of justice and balance of convenience favour the grant of the interim relief sought.

18. Mr. Edo does not lose his right of appeal if he is not granted the interim relief he seeks and there is no credible evidence to say why he would be prejudiced in the prosecution of his appeal if the interim relief was not granted. As mentioned, there is no evidence or submission before me to the effect that damages would not be an adequate remedy for any loss suffered.

19. Consequently the relief sought in the Amended Notice of Motion of the Appellant dated 8th December 2008 is refused.

20. Costs are in the cause.
_________________________________________________________

Williams Attorneys: Lawyers for the Appellant
Bradshaw Lawyers: Lawyers for West New Britain Provincial Government