Ipatas v Kikala [2009] PGSC 58; SC1395 (24 June 2009)

SC1395

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA 55 OF 2009

BETWEEN:

HON. PETER IPATAS AS GOVERNOR FOR ENGA PROVINCE AND CHAIRMAN OF THE PROVINCIAL EXECUTIVE COUNCIL AND THE ENGA PROVINCIAL ASSEMBLY
First Appellant

AND:

DR. SAMSON AMEAN as the ADMINISTRATOR of the DEPARTMENT OF ENGA
Second Appellant

AND:

JOB POMAT as MINISTER FOR PROVINCIAL & LOCAL LEVEL GOVERNMENT AFFAIRS
Third Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Appellant

AND:

PHILIP KIKALA MEMBER FOR LAGAIP PORGERA JOINT DISTRICT PLANNING AND BUDGET PRIORITIES COMMITTEE
Respondent

Waigani: Hartshorn J.
2009: June 22nd, 24th

Application for a stay pending the hearing of an Appeal – application to stay an Order that prima facie is a correct interpretation of the current law
Cases cited:

Gary McHardy v. Prosec Security [2000] PNGLR 279

Counsel:

Mr. A. Manase, for the First and Second Appellants
Mr. M. S. Wagambie, for the Respondent

24th June 2009

1. HARTSHORN J: This is an application for a stay of a National Court Order pending an appeal against it to the Supreme Court.

2. In October 2008, 14 Council Presidents or Heads of Rural Local Level Governments were purportedly sworn in as members of the Enga Provincial Assembly (purported members). The Honourable Mr. Philip Kikala, the Member for Lagaip Porgera, commenced proceedings in the National Court seeking declaratory and other relief that disputed the swearing in of the purported members on the ground that it was in breach of the Organic Law on Provincial Governments and Local Level Governments (Amendment No.10) Law (OL Amendment 10) which had amongst others, repealed the entitlement of persons such as the purported members to be members of a Provincial Assembly.

3. On 3rd June 2009, the Deputy Chief Justice granted the first order of substantive relief sought by Mr. Kikala and adjourned the hearing of the remainder.

4. The Honourable Mr. Peter Ipatas, Governor of Enga Province and Dr. Samson Amean, the Acting Administrator of the Department of Enga, appeal the decision of the Deputy Chief Justice and pending the hearing of the appeal, now apply for a stay of that Order.

5. The Order that they seek to stay is:

"An Order in the nature of a declaration that the purported swearing in of fourteen (14) Council Presidents and or Heads of Rural Local Level Governments as members of the Enga Provincial Assembly on the 30th of October 2008 is unconstitutional void and of no effect pursuant to amendment No. 10 of 2006 of the Organic law on Provincial and Local Level Government."

6. Section 19 Supreme Court Act provides that 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 proceedings.

7. In 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 stay a decision of the National Court 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.

8. In this instance, leave to appeal is not required and there has not been any delay by Messrs Ipatas and Amean in bringing this application.

9. As to possible hardship, inconvenience or prejudice to any party, it is submitted on behalf of Messrs Ipatas and Amean, that the purported members, 4 of whom are Chairpersons, will suffer hardship as they will be stopped from sitting in Provincial Assembly meetings and representing people from their respective Local Level Government areas.

10. As to the nature of the judgment that is being appealed, it is substantive in nature and if a stay is not granted, it will affect any substantive rights that Messrs Ipatas and Amean and the purported members may have.

11. As to the financial ability of Messrs Ipatas and Amean, it is submitted that as they are the political and administrative heads of Enga Provincial Government, any damages that may become payable as a result of a stay would be met, otherwise a stay would not affect Mr. Kikala monetarily.

12. As to whether there is an arguable case, it is submitted on behalf of Messrs Ipatas and Amean that there is. Their argument in essence is that the hearing before the Deputy Chief Justice was for the consideration of whether the interim orders already granted to Mr. Kikala should be extended. Instead, the Deputy Chief Justice granted the first substantive order sought by Mr. Kikala without there being a proper hearing and trial of the issues concerning whether substantive relief should be granted.

13. It was submitted on behalf of Mr. Kikala that even if the Deputy Chief Justice was incorrect in making the Order that he did, when he did, (which was not conceded), the fact remained that the Order made was correct and that there were admissions by Mr. Ipatas as to the effect of OL Amendment 10. In Mr. Ipatas's affidavit filed in the National Court, (a copy of which is annexed to Mr. Manase's affidavit filed in support of this application to stay) it is deposed that OL Amendment 10 "effectively removed the Council Presidents role in the Provincial Assembly", and "I am quite disturbed at the amendments that have been made to the said Sections which have removed the LLG Presidents.".

14. From a perusal of OL Amendment 10 (also annexed to Mr. Manase's affidavit), it is clear that sections 10(3) (b) and (c) of the Organic Law which provided for Local Level Government representation in a Provincial Assembly, have been repealed. Mr. Ipatas is correct in his belief concerning the effect of OL Amendment 10.

15. Given the above, the opposition by Messrs Ipatas and Amean to the first order of substantive relief sought in the National Court proceedings has no merit.

16. In such circumstances, I am not satisfied that it is in the interests of justice to stay an Order that prima facie is a correct interpretation of the law as it is presently enacted, and which ultimately would be one of the Orders made by the National Court if an appeal was granted and a substantive hearing held. The effect of an order to stay would in my view be to countenance a breach of an existing law.

17. Consequently after considering all factors, the application for stay dated the 4th June 2009 is refused. The costs of and incidental to this application are to be paid by the first and second appellants to the respondent.

_______________________________________________________
Manase & Co Lawyers: Lawyers for the First and Second Appellants
M. S. Wagambie Lawyers: Lawyers for the Respondent