Abio v Pomaleu [2010] PGSC 36; SC1083 (19 November 2010)

SC1083

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA No. 125 of 2010

BETWEEN:

TONI ABIO and his Current Management Committee
First Appellant

AND:

SAI BUSINESS GROUP INC.
Second Appellant

AND:

IVAN POMALEU, as
Registrar of Companies & Business Groups
First Respondent

AND:

JASON SAYAMA, and
his Former Management Committee
Second Respondent

AND:

MENOSH AKRIS, and
his Former management Committee
Third Respondent

Waigani: Sawong, J
2010:15th & 19th November

SUPREME COURT – practice and procedure – application for stay of judgment of National Court - grant or refusal of stay is discretionary matter and is to be exercised on proper principles and on proper basis or grounds - whether judgment is interlocutory and as such leave to appeal is necessary – Judgment given by National Court interlocutory in nature – no leave granted - Notice of Appeal clearly incompetent - stay order cannot be granted to in those circumstances – s.19 Supreme Court Act

Facts:

This application for a stay of judgment of the National Court in Lae is made by way of a Notice of Motion pending the determination of an appeal filed against the decision. There are arguments raised in relation to the nature of the judgment which is the subject of the stay application.

Held:

1. If the judgment is interlocutory then, leave to appeal is necessary and must be obtained first. If leave has not been obtained then the Notice of Appeal is incompetent. A stay cannot be granted in an incompetent appeal.
   
2. It appears that the judgment is interlocutory in nature which means that an application for leave to appeal is required.
   
3. No leave has been granted to the Appellant. The Notice of Appeal is clearly incompetent.
   
4. A stay order cannot be granted. Application is refused.
   

Cases cited in the judgment:

Gary McHardy v. Prosec Security & Communications Limited Trading as Protect Security (2000) PNGLR 279
SCA No. 117 of 2009 – Menos Ivango & Others v. Ivan Pomaliu & Others, unreported set judgment; date (15th October 2010)

Counsels:

Mr. B. Ovia, for the Appellant
Mr. T. Tape, for the Respondent

RULING

19th November, 2010

1. SAWONG, J: The Appellants apply for stay of the judgment of the National Court sitting at Lae given on 20th August 2010. The application is made by way of Notice of Motion under s. 19 of the Supreme Court Act, ch. 37. An order for stay is being sought pending the hearing and determination of an appeal filed against the said decision. The Respondents contest the application.
   
2. In support of the application Mr. Ovia relies on the affidavit of Tony Abio filed on 29th October 2010. He has also filed in his submission. I have read and considered those materials and the submissions.
   
3. The proper principles on grant of stay are set out in Gary McHardy v. Prosec Security & Communications Limited Trading as Protect Security (2000) PNGLR 279 (McHardy case). The grant or refusal of stay is discretionary matter and it is to be exercised on proper principles and on proper basis or grounds. The Court must start from the fundamental principle that a judgment creditor is entitled to enjoy the benefits of the judgment. The Court in that case set out ten (10) other factors in consideration in determining an application for stay. I remind myself of those principles and apply and adopt them in this case.
   
4. I should note here that a similar application was made on 15th October before the Chief Justice, who refused it. See SCA No. 117 of 2009 – Menos Ivango & Others v. Ivan Pomaliu & Others, unreported set judgment; date 15th October 2010).
   
5. Mr. Ovia in his written and oral submissions, made submissions on the applications of each of those facts. I have considered those submissions carefully.
   
6. Mr. Tape, counsel for the Respondent has submitted that the National Court did not make any orders and the matter is still pending before the National Court. In the circumstance, he submitted the application is incompetent and without any merit.
   
7. The arguments raised, raises the issue of what is the nature of the judgment in the National Court. That is whether the judgment is interlocutory and as such leave to appeal is necessary. If the judgment is interlocutory then, leave to appeal is necessary and must be obtained first. If leave has not been obtained then the Notice of Appeal is incompetent. A stay cannot be granted in an incompetent appeal.
   
8. The learned Chief Justice considered this issue in the case I have cited, above. He came to consider that the judgment of the National Court was interlocutory and as such leave was required. As no leave had been granted, the Notice of Appeal filed was incompetent and a stay cannot be granted on an incompetent appeal. He therefore dismissed the application.
   
9. I too agree with His Honours reasons and the conclusion. The Judgment that was given by the National Court, is clear interlocutory. The matter is part heard and is yet to be completed.
   
10. No leave has been granted to the Appellant. That being the case, the Notice of Appeal is clearly incompetent.
    
11. A stay order cannot be granted to in those circumstances.
    
12. For these reasons, I refuse the application. The applicants shall pay the costs of Respondents to be agreed, if not taxed.
    

_____________________________________
Biliou Lawyers: Lawyers for the Appellant
Daniel & Associates Lawyers: Lawyers for the Respondent