Paki v Polye [2011] PGSC 11; SC1095 (26 April 2011)

SC1095

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCA 32 OF 2011

BETWEEN:

AMBASSADOR EVAN JEREMY PAKI
Appellant

AND:

THE HONOURABLE DON POLYE, MINISTER FOR FOREIGN AFFAIRS, TRADE AND IMMIGRATION
First Respondent

AND:

AMBASSADOR MICHAEL MAUE, SECRETARY FOR FOREIGN AFFAIRS AND TRADE
Second Respondent

AND:

THE PRIME MINISTER, THE RIGHT HONOURABLE GRAND CHIEF SIR MICHAEL SOMARE, in his capacity as CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL
Third Respondent

AND:

THE NATIONAL EXECUTIVE COUNCIL
Fourth Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

Waigani: Hartshorn J
2011: April 21st, 26th

SUPREME COURT: Application for stay and injunctive relief pending an application for leave to appeal – whether a stay and injunctive relief is available before leave to appeal granted – whether a stay should be granted – office of Ambassador - public interest in good administration of public office

Facts:

The Appellant was the Ambassador to the United States of America when he was recalled and dismissed by a decision of the National Executive Council. He was granted leave by the National Court to apply to judicially review that decision but interim relief that had been granted was discharged. The appellant seeks leave to appeal the interlocutory decision which discharged the interim relief. He now applies to stay the interlocutory decision and for the interim relief that had been granted to continue pending his application for leave to appeal.

Held:

1. There is no specific provision in the Supreme Court Act that provides for a stay to be granted where an application for leave to appeal is pending as distinct from where an appeal is pending, notwithstanding that s.19 Supreme Court Act provides for this by implication.

2. An applicant for leave to appeal does not have a primary right of appeal that is able to be protected by reliance upon s. 155 (4) Constitution.

3. In light of (1) and (2) above, the appellant has not satisfied the Court that he is able to successfully rely upon the provisions of s.19 Supreme Court Act or s. 155 (4) Constitution for a stay or for the injunctive relief that he seeks, where an application for leave to appeal as distinct from an appeal, is pending.

4. The balance of convenience and the interests of justice do not favour the granting of the stay and the other relief that the appellant seeks. The relief sought by the appellant in his application filed 19th April 2011 seeking a stay, injunctive and other relief, is refused.

Cases cited:

Gary McHardy v. Prosec Security [2000] PNGLR 279
Curtain Bros (PNG) Ltd v. UPNG (2005) SC788
Paias Wingti v. Kala Rawali (2008) N3716
Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317
State v. Sam Akoita & Ors (2009) SC977
Ron Napitalai v. PNG Ports Corporation Ltd & Ors (2010) SC1016
Havila Kapo v. Mark Maipakai & Ors (2010) SC1067
Ramu Nico Management (MCC) Ltd v. Farina Siga (2010) SC1056

Counsel:

Mr. R. Leo, for the Appellant
Mr. T. Tanuvasa, for the Respondents

26th April 2011

1. HARTSHORN J: The appellant has been granted leave by the National Court to apply to judicially review a decision of the National Executive Council to recall and dismiss him as amongst others, the Ambassador to the United States of America. Interim relief that had been granted however was later discharged by the National Court.

2. The appellant has applied for leave to appeal the discharge of that interim relief.

3. The appellant now applies for the interlocutory decision that discharged the interim relief to be stayed, the interim injunctions that had been granted to continue and that he continue to serve as amongst others, the Ambassador to the United States of America.

4. The respondents oppose the appellant's application.

5. An issue that arises initially is whether it was necessary for the appellant to apply for leave to appeal when the interlocutory decision he seeks to appeal is an interlocutory judgment that refused an injunction. Such a judgment does not require leave to appeal: s. 14 (3) (b) (ii) Supreme Court Act; Ramu Nico Management (MCC) Ltd v. Farina Siga (2010) SC1056. The issue of whether leave is required however, is not before me and so I do not consider it further.

6. The appellant relies upon s. 19 Supreme Court Act and s. 155 (4) Constitution for the relief that he seeks. Section 19 Supreme Court Act is as follows:

"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. The implication here is that the Supreme Court or a Judge is able to order that an appeal or an application for leave to appeal does operate as a stay of proceedings. Section 5 (1) (b) Supreme Court Act provides for a Judge to make an interim order to prevent prejudice to the claims of the parties where an appeal is pending before the Supreme Court but I am not aware of any similar provision that is applicable where an application for leave to appeal is pending.

8. As to reliance upon s. 155 (4) Constitution, it is settled law that this section can only be relied upon to protect primary rights in the absence of other relevant law. In addition, s.155 (4) cannot be relied upon for any relief that is contrary or inconsistent with provisions of legislation. In this regard I respectfully agree with the observations of Injia DCJ (as he then was) in Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317.

9. As to the primary right of the appellant, by applying for leave to appeal, the appellant is conceding that he does not have a primary right to appeal in this instance as he requires the leave of the Supreme Court to appeal. There is then no primary right of appeal that can be protected by s. 155 (4) Constitution. This is analogous to the fact situation in Paias Wingti v. Kala Rawali (2008) N3716 paras 19-23.

10. Given the above, I am not satisfied that the appellant is able to successfully rely upon the provisions of s. 19 Supreme Court Act or s. 155(4) Constitution for a stay or indeed, for the injunctive relief that he seeks, where an application for leave to appeal, as distinct from an appeal, is pending.

11. If however, the appellant is able to rely upon the above provisions for the relief that he seeks, the next considerations are the principles upon which this court will grant a stay. In the leading case 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 a 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.

12. Counsel for the appellant referred to and placed reliance upon the recent case of Havila Kapo v. Mark Maipakai & Ors (2010) SC1067. In that case Injia CJ said that:

"In cases founded on public law which involve issues of removal and/or appointment of public officials, the public interest may be a special consideration that is to be taken into account separate from the balance of convenience."

Further in his judgment, Injia CJ then sets out certain relevant matters which the court is required to consider in circumstances where, given the above statement, the court is of the view that the public interest in the good administration of a public office is a special consideration.

13. I am cognisant of the fact that the statements by Injia CJ were made in a case concerning what he describes as, "the tussle for control of the GPG" (Gulf Provincial Government) and then later comments that, "it is not in the public interest to have the GPA (Gulf Provincial Authority) rendered dysfunctional by internal politicking over the Governors position..... The Gulf Province Government must be fully functional with the legislative and executive arms of the province intact and at a time when important decisions remain to be made on economic projects in the province." The statements made by Injia CJ then, whilst they should not be restricted to, they perhaps should be considered in the context of, the circumstances of that particular case.

Consideration of principles

14. In this instance an application for leave to appeal has been filed. I have expressed my reservation as to whether this is necessary. There has not been any delay in making the application.

15. As to possible hardship, inconvenience or prejudice, the appellant says that he will suffer prejudice and his counsel submits that he will. No submissions were made as to specifically how the appellant will be prejudiced. The appellant, in his supporting affidavit, although he says that he will be denied justice, does not specifically detail how he will be prejudiced if the relief sought is not granted. No submissions were made as to whether damages would be a sufficient remedy for any loss suffered and no submissions were made concerning the financial position of the appellant.

16. As to the nature of the judgment sought to be stayed, it involves an appeal from the refusal of the National Court to grant injunctive relief. Regardless of whether the appeal, if it proceeds, is successful, the substantive rights of the appellant to apply for judicial review will not be affected.

17. Counsel for the appellant submits that the appellant has good prospects of success in his appeal. As to a preliminary assessment about whether the appellant has an arguable case, it is sufficient for present purposes in my view, to refer to the Supreme Court's role in an appeal from the exercise of judicial discretion. In this regard I make reference to the decision of Curtain Bros (PNG) Ltd v. UPNG (2005) SC788 and reproduce the following passage from that decision:

"The appellant Court will not interfere with a discretionary judgment on a procedural matter within its jurisdiction, except where the exercise of that discretion is clearly wrong. A discretionary judgment may be set aside if an identifiable error occurred in the exercise of discretion. Alternatively, it may be set aside where there is no identifiable error, but the resulting judgment or order is "unreasonable or plainly unjust" and such that an error can be inferred. These principles are well established. We adopt a passage from Kitto J in the Australian High Court case of Australia Coal and Shale Employees' Union v The Commonwealth [1953] HCA 25; (1956) 94 C.L.R. 621 at p.627, which was adopted by Clarkson J. in Breckwoldt & Co. (N.G.) Pty Ltd v. Gnoyke [1974] PNGLR 106 at p.112 – 113:

"The decision by the primary judge to stay the action was made in exercise of a judicial discretion and I accept that in those circumstances the principles on which this Court should act are as described by Kitto J. in Australian Coal and Shale Employees' Union v The Commonwealth ... the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgments is that there is a strong presumption in favour of the correctness of the decisions appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance..."

18. This passage has been agreed with and adopted by this court in State v. Sam Akoita & Ors (2009) SC977 and Ron Napitalai v. PNG Ports Corporation Ltd & Ors (2010) SC1016. I am satisfied that the principles referred to are applicable here. Consequently the appellant has to satisfy the principles to which reference is made to be successful in his appeal.

19. As to whether this is a case where the public interest in the good administration of a public office is a special consideration, the position that the appellant occupied is that of an Ambassador. That is, a Head of an Overseas Mission representing the Independent State of Papua New Guinea. As such he must amongst others, represent the State's interests, he must not engage in any conduct that is injurious to the State's interest and he must uphold the oath of office without fear or favour, supportive of Government foreign policy. His contract of employment may be terminated by the National Executive Council on amongst others, the ground that it is in the best interests of Papua New Guinea as determined by the National Executive Council.

20. The position of Head of Mission is not a position that has as a prerequisite that a person has won electoral office. It is a position in respect of which the National Executive Council has the sole prerogative in determining who is best suited to be able to represent the best interests of Papua New Guinea overseas, those interests being determined by the National Executive Council.

21. If this is a case where the public interest in good administration of a public office is a special consideration, then the public interest in my view, is likely to be in the National Executive Council appointing someone to represent the interests of Papua New Guinea overseas whom it believes is suitably qualified and who will represent the best interests of Papua New Guinea in support of Government foreign policy. A further consideration may be that when a change in the appointment of a Head of Mission occurs, it is performed in an orderly manner and again in the best interests of the country as determined by the National Executive Council.

22. The submissions and evidence of the appellant as to what in his view is in the best interests of Papua New Guinea are to my mind, based on the incorrect premise that he is the arbiter of this question as opposed to the National Executive Council.

23. After considering all of the submissions and evidence, I am of the view that the balance of convenience and the interests of justice do not favour the granting of the stay and the other relief that the appellant seeks irrespective of whether the appellant has a serious question to be tried on his appeal. The best interests of Papua New Guinea and the public interest in the good administration of the position, matters upon which the appellant made submissions and gave evidence at length, are likely to be satisfied by the National Executive Council's decision as to who is to occupy the position, being implemented as soon as possible. I am not satisfied that the appellant will suffer prejudice if the relief that he seeks is refused. If the appellant is ultimately successful in his appeal and his application for judicial review, he will be entitled to appropriate and adequate remedy.

24. For the above reasons, the relief sought by the appellant in his application filed 19th April 2011 seeking a stay, injunctive and other relief, is refused. The costs of the respondents of and incidental to the application shall be paid by the appellant.

_____________________________________________
Leo Lawyers: Lawyers for the Appellant
Office of the Solicitor-General: Lawyers for the Respondents