Dekenai Construction Ltd v National Airports Corporation Ltd [2015] PGSC 39; SC1444 (14 July 2015)

SC1444

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 53 OF 2011

BETWEEN

DEKENAI CONSTRUCTION LTD
First Appellant

AND

LUCAS DEKENA, MP
MINISTER FOR LANDS & PHYSICAL PLANNING
Second Appellant

AND

PEPI KIMAS
SECRETARY FOR DEPARTMENT OF LANDS
& PHYSICAL PLANNING
Third Appellant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Appellant

AND

NATIONAL AIRPORTS CORPORATION LTD
Respondent

Waigani: Makail, J
2015: 08th & 14th July

SUPREME COURT – PRACTICE & PROCEDURE – Application for stay – Stay of National Court proceeding – Proposed appeal against grant of leave to apply for judicial review – Supreme Court Act – Section 19.

Cases cited:

McHardy v. Prosec. Security & Communications Ltd [2000] PNGLR 279
Jubi v. Frazer (2004) SC735
Kilip v. Mosley (2005) SC784
Willie Edo v. Margaret Elias (2008) SC1160
Pruaitch v. Manek (2011) SC1134
Bishop Wenge v. Mitio (2013) SC1234
State v. Transferees (2014) SC1348
Pruaitch v. Nelson (2014) SC1349
JST Limited v. Arkhefield (2014) SC1352
Hon. Ano Pala & Hon. Prime Minister Peter O'Neill v. Sam Koim, Chairman of the Task Force Team Sweep & Ors (2015) SC1436

Counsel:

Mr. I. Molloy with Mr. D. Mel, for Appellants
Mr. D. Levy, for Respondent

RULING ON APPLICATION FOR STAY

14th July 2015

1. MAKAIL J: This is an application made pursuant to Section 19 of the Supreme Court Act to stay the National Court proceeding OS (JR) No 430 of 2010 between National Airports Corporation Limited v. Lucas Dekena, Minister for Lands and Physical Planning & Ors pending the hearing and determination of the First Appellant's application for leave to appeal or further order.

2. The Respondent instituted proceeding in the National Court and sought leave to apply for judicial review of two decisions:

(a) the decision of 09th April 2010 published in the National Gazette on 13th April 2010 to revoke a previous declaration of land as aerodrome land made and gazetted in June 1980 and a new declaration made in 2010; and

(b) the decision of 12th November 2009 to grant an Urban Development Lease ("UDL") over Portion 2690 to the First Appellant.

3. On 03rd May 2011 the National Court granted the Respondent leave to apply for judicial review. The National Court held, amongst other things, the Respondent had an arguable case. The Appellants by application filed on 25th May 2011 sought leave to appeal against that decision. On 30th May 2011 they filed an application for stay of the National Court proceeding. They did not move the application until about a week ago.

4. The reasons for not progressing the application appear from the affidavit of Dane Mel filed on 23rd June 2015. Firstly, in July 2011, the application was adjourned several times. Secondly, the First Appellant filed an application in the National Court to dismiss the proceeding for want of prosecution. The parties agreed not to progress the Supreme Court proceeding pending the decision in the National Court on the application to dismiss. That decision was not given until 08th October 2012. The application to dismiss was refused.

5. Meantime, on 09th June 2011, the Respondent had filed an objection to competency of the leave application. That objection was not heard until March 2013 and the decision was not given until March 2015. The decision was, the objection was dismissed. There had been no stay of the National Court proceeding and it had not been progressed to trial since the grant of leave in May 2011 and indeed since the decision by the National Court refusing to dismiss the National Court proceeding on 08th October 2012. In June 2015 the Respondent by Kawat Lawyers, advised that the matter was returning to the National Court for directions hearing.

6. The Respondent submitted there has been a long delay in prosecuting the application. It is a period of 4 years and the delay has not been satisfactorily explained. For example, after the Supreme Court dismissed the objection to competency on 19th May 2015 the Appellants did not take steps to prosecute the application. It was not until the advice from the lawyers that the matter was returning for directions hearing that the Appellants moved to get the application heard. This is not a satisfactory explanation.

7. The principles governing a stay were considered by the Supreme Court in McHardy v. Prosec. Security & Communications Ltd [2000] PNGLR 279 SC646 which has been adopted and applied in many subsequent cases: for example Jubi v Frazer (2004) SC735; Kilip v. Mosley (2005) SC784; Willie Edo v. Margaret Elias (2008) SC 1160; Pruaitch v. Manek (2011) SC1134; Bishop Wenge v. Mitio (2013) SC1234; State v. Transferees (2014) SC1348, Pruaitch v. Nelson (2014) SC1349 and JST Limited v. Arkhefield (2014) SC1352. These authorities establish there are no hard and fast pre-conditions to the grant of a stay. There is no need to show "exceptional" or "special" circumstances. The relevant principles are:

1. Whether leave to appeal is required and whether it has been obtained.
   
2. Whether there has been any delay in making the application.
   

100. Possible hardship, inconvenience or prejudice to either party.
     

4. The nature of the proceeding sought to be stayed.
   
5. The financial ability of the applicant.
   
6. Preliminary assessment about whether the applications have an arguable case on the proposed appeal.
   
7. Whether on the face of the record or the judgment there is apparent error of law or procedure.
   
8. The overall interest of justice.
   
9. The balance of convenience
   
10. Whether damages would be sufficient remedy.
    

8. The delay has been satisfactorily explained. There were interlocutory applications pending in both Courts and both sides were responsible for bringing these applications which delayed the prosecution for stay. There was also a time where both sides agreed not to progress the Supreme Court proceeding pending the decision of the National Court on the application by the Appellants to dismiss the National Court proceeding. In effect, both sides contributed one way or the other to the delay. That said, as the Respondent had pointed out, the Appellants have not explained why they have not taken steps to prosecute the application between 19th May 2015 and last week. While the explanation has not been forthcoming, it is less than two months of delay and it can be excused.

9. What is relevant and significant though is this: the Appellants claimed they have a strong case. The dispute concerns land near Jacksons International Airport in Port Moresby. It is located at the north-western end of the runway. According to the affidavit of Jim Fallon filed on 30th May 2011, on 12th November 2009 a decision was made, under the Land Act 1996, to grant the UDL over land described as Portion 2690, to the First Appellant. The First Appellant has proceeded to develop the land. It was soon discovered that an apparent mistake had been made. Portion 2690 was included in a 1980 a declaration made under Section 5A of the then Land Act that an area of land in Port Moresby be an aerodrome. The area included in the declaration was vast and included, for example, the Six Mile Police Station and Six Mile Clinic. Under Section 54 of the Land Act 1996, land the subject of such a declaration may only be dealt with under the Aerodrome Business Concession Act Ch No. 354.

10. When this "mistake" was recognised, two steps were taken. First, a new declaration was made in 2010 which varied the earlier declaration so as to exclude inter alia Portion 2690. Secondly, the UDL, issued to the First Appellant in 2009 while Portion 2690 was still within the declaration, was surrendered and a fresh UDL was issued dated 08th February 2011.

11. The Respondent is challenging the variation to the declaration made in 2010. The claim is that it was an abuse of process and not made for any good reason. The Appellant, however, says that there is no basis for saying that. Secondly, the Respondent is challenging the grant made to the First Appellant in 2009, when Portion 2690 was subject to a declaration. However, the challenge is misconceived. The First Appellant says it does not derive its title from the 2009 grant. It surrendered the 2009 lease when the mistake was discovered, and was granted a new UDL on 08th February 2011. It says the Respondent is not challenging that title, thus the National Court proceeding is misconceived.

12. In demonstrating that there is an apparent error of law on the face of the record, the Appellants submitted the learned primary judge did not deal with any of the issues even on a preliminary or prima facie basis. They submitted his Honour misunderstood the dispute. In finding that there is an arguable case, his Honour did not refer at all to (a) the variation of the declaration, (b) the surrender of the original lease and the grant of new lease, and (c) the absence of any challenge to the new and current lease from which the First Appellant derived its title. This was where his Honour erred.

13. It was submitted for the Respondent the grounds of the application for leave to appeal do not disclose an arguable case. Further, they are confusing and moreover, the application for leave to appeal is pending and a determination of the application for stay will influence the outcome of the former. The proper course is for the Appellants to prosecute the former first. It was further submitted the Appellants have not pointed to an apparent error of law on the face of the judgment to warrant a grant of stay.

14. It is not correct to say the grounds of the application for leave to appeal are confusing or that they do not disclose an arguable case. The points raised by the Appellants clearly demonstrate that there is an arguable case. It boils down to whether the First Appellant holds a valid UDL over Portion 2690. To determine this issue, it will require a consideration of the process involved in changing the 1980 declaration of aerodrome land to the time the UDL was granted. As the Appellants have asserted, it was a "mistake" that Portion 2690 was included in the aerodrome land. Given this, that issue must be properly considered.

15. A further significant consideration in this application is whether the Appellants should be allowed to argue these points in the appeal proper and a stay is necessary to preserve the status quo. The First Appellant was represented by counsel at the hearing of the leave application but did not make submission as the transcripts of the National Court proceeding confirms. Counsel for the First Appellant had a watching brief on the matter while counsel for the other Appellants made submissions in response to the leave application presumably by virtue of Section 8 of the Claims By and Against the State Act, 1996. Counsel for the other Appellants relied on the Affidavit of Mr Fallon to oppose leave. Even if the matters raised in Mr Fallon's affidavit were raised before the National Court, the Appellants are not precluded from raising them at the trial. In Hon. Ano Pala & Hon. Prime Minister Peter O'Neill v. Sam Koim, Chairman of the Task Force Team Sweep & Ors (2015) SC1436, the Court refused an application for leave to appeal. That was a case where the Minister for Justice & Attorney-General and the Prime Minister sought to appeal against the decision of the National Court to grant the Respondents leave to apply for judicial review in relation to the National Executive Council's decision to disband the Task Force Team Sweep.

16. The Court held that the matters raised were matters that could appropriately be dealt with by the National Court at trial (substantive hearing). The Court took this view because a hearing of a leave application is a preliminary hearing which does not entail a detailed analysis of each party's case and that it is an ex parte hearing. Consequent on this, the Appellants did not respond to the application. In this case, it has not been submitted that the matters raised by the Appellants were matters that could not appropriately be dealt with by the National Court at trial. For these reasons, I am not satisfied the Appellants are not precluded from raising them at the trial in the National Court. Their recourse is in the National Court. The Supreme Court should be the last resort.

17. Another factor that goes against the Appellants is what the Respondent has pointed out and that is, leave to appeal has yet to be granted to appeal against the decision of the National Court. Leave is required because the appeal is from an interlocutory judgment not falling within the exceptions contained in Section 14(3)(b) of the Supreme Court Act. It would be pre-emptive to say at this stage that the Appellants will be granted leave to appeal. A strong case may be made for a grant of stay if the Appellants had first obtained leave to appeal.

18. The facts of this case show that the overall interest of justice does not favour the granting of the stay. Contrary to the Appellants' submission that no benefit is derived by advancing the National Court proceeding unless the Supreme Court proceeding is resolved in the Respondent's favour, in my view, the matters raised in the proposed appeal and in the National Court proceeding are common. Given the commonality of issues, there is already a proceeding pending in the National Court and parties would save time and money by addressing them in that proceeding. If the Appellants were to pursue the Supreme Court proceeding, it will cost both sides extra time and money. Not only that but the stay will delay the National Court proceeding and parties will have to go through the Supreme Court preliminary hearings if leave to appeal was granted. This will include the preparation of the appeal book. It will be a long process and by the time the appeal is heard and determined, a substantial amount of time would have been spent. The time and resources devoted to the preparation of the Supreme Court proceeding could be spent in progressing the matter to trial in the National Court.

19. Based on the affidavit of Mark Sheppard filed on 23rd June 2015, it is not disputed the First Appellant had subdivided the land and sold to other parties. It is accepted that the interests of other parties, who have taken title through the subdivision, have now to be considered. However, as noted, the Appellants contention that the First Appellant holds a valid UDL over the land can appropriately be dealt with by the National Court at trial. And it may be that the primary judge misunderstood the true position of the grant but it can be drawn to the notice of the Court at trial for consideration. The point is the Appellants still have the opportunity to draw this and other matters to the notice of the National Court for consideration. The balance of convenience does not favour the granting of the stay.

20. It is also noted that the nature of the proceeding sought to be stayed is a proceeding for judicial review of decisions made in 2009 and 2010 – five and six years ago. Time is of essence in this type of cases and a substantial amount of time had been spent on interlocutory applications at both levels of the Court in an attempt to bringing the matter to a close but had been unsuccessful. It is, therefore, critical that both sides must now quickly bring this matter to a close one way or the other.

21. Finally, it was submitted for the Appellants no question of damages arises, likewise, the financial ability of the First Appellant. For the Respondent, it was submitted damages is not an adequate remedy. The land is important because the Respondent needs it to carry out its Airport Improvement and Expansion Programme in line with Government policy. It also does not know the financial ability of the First Appellant because there is no evidence of it. For the reasons given by the Respondent, I find that these further considerations go against the Appellants.

22. In the circumstances, it is not appropriate to stay the National Court proceeding. It should be allowed to run its course. Stay is refused with costs.

Ruling and orders accordingly.
______________________________________________________________

Steeles Lawyers: Lawyer for Appellants
Manase & Co Lawyers: Lawyer for Respondent