Bole v Nangamanga Ltd [2018] PGSC 46; SC1702 (15 August 2018)

SC1702

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 104 OF 2018

BETWEEN:
MICHAEL BOLE
Appellant

AND:
NANGAMANGA LIMITED
First Respondent

AND:
ANTHONY FLYNN
Second Respondent

AND:
ROSE FLYNN
Third Respondent

Waigani: Dingake J
2018: 15 Jul, 31 Jul & 15 Aug

SUPREME COURT – Application for Stay – test set out – Application failed to meet the test required – Application refused.

Case Cited:

Gary Mc Hardy v Prosec Security and Communication Ltd (2000) PNGLR 279.

Counsel:

Mr. Muriso Pokia, for the Appellant
Ms. Andrea Yauieb, for the Respondent

24 August, 2018

1. DINGAKE J: By way of an amended application filed with this Court on the 6^th of August, 2018, the applicant sought the following orders from the Court:
   • (a) Pursuant to Order 2 Rule 1(h) of the Supreme Court Rules, Order 1 Rule 7 of the National Court Rules, Order 4 Rule 38(2)(a) and (b) of the National Court Rules, and Order 4 Rule 42 of the National Court Rules, the requirement to serve this Application on the respondents be dispensed with.
   • (b) Pursuant to Section 19 of the Supreme Court Act 1975, Order 13 Rule 14(1), and to the Court’s inherent jurisdiction to control the practices and procedures before it, the Orders of His Honour Justice Pitpit made on 24^th July, 2018 in National Court proceedings with Court file number WS No. 1068 of 2009 and titled, Nangamanga Limited, Anthony Flynn, Rose Flynn v Gold Exports Limited, Michael Bole and Opaoti Trading Limited, be stayed.
   • (c) Pursuant to Section 19 of the Supreme Court Act 1975, Order 13 Rule 14(1), and to the Court’s inherent jurisdiction to control the practices and procedures before it, any Warrant of Commitment to commit or remand the appellant in custody issued by His Honour Justice Pitpit on 24 July, 2018, be set aside or stayed.
   • (d) The appellant’s passport be returned to the appellant by the Assistant Registrar of the Lae National Court.
   • (e) Pursuant to Section 19 of the Supreme Court Act 1975, Order 13 Rule 14(1), and to the Court’s inherent jurisdiction to control the practices and procedure before it, the Respondent’s Notice of Motion filed on 14 March, 2018 to punish the appellant for Contempt of Court be stayed, pending the hearing and determination of the Notice of Appeal of the within proceedings.
   • (f) The respondents pay the costs of this application on a Solicitor/Client basis.
   • (g) Such other orders as the Court considers appropriate.
2. The facts of this case may be stated briefly.
3. The applicant was charged with contempt for failure to comply with Court orders made on the 7^th of December, 2015.
4. The lawyers for the plaintiff by way of notice of motion, made pursuant to Order 14 Rule 42(1) and 49(1) of the National Court Rules, sought an order that he be cited for contempt of Court and be punished by imprisonment until he fully complies with the Order of the Court issued on the 7^th December, 2015. The Court upheld the application and remanded the applicant in custody and also ordered him to surrender his passport to the Lae National Court Acting Assistant Registrar.
5. In the supporting affidavit filed by the applicant’s lawyer, Muriso Pokia, it is alleged that a verbal application that the applicant be remanded in custody was made by the respondents’ lawyers in terms of Order 14 Rule 40(1) of the National Court Rules.
6. The application is opposed by the respondents, who did not file any supporting papers.
7. On the 15^th of August, 2018, I heard this application and reserved my ruling to consider the evidence tendered in support of the application and submission put before me.
8. The principles on the grant of stay were stated in the leading case of Gary Mc Hardy v Prosec Security and Communication Ltd (2000) PNGLR 279.
9. The grant or refusal of stay is discretionary and it is exercised on proper principles and proper grounds.
10. The onus is on the applicant for stay to persuade the Court to exercise its discretion in his favour.
11. The factors or considerations enunciated in the case of Gary Mc Hardy are as follows:
    • The principle that the judgment creditor is entitled to the benefits of the Judgment;
    • Whether leave is required and whether it has been obtained;
    • Whether there has been a delay in making the application;
    • Possible hardship, inconvenience or prejudice to either party;
    • The nature of the judgment sought to be stayed;
    • The financial ability of the applicant;
    • Preliminary assessment about whether the applicant has an apparent error of law or procedure;
    • Whether on the face of the record, there may be indicated an apparent error of law or procedure;
    • The overall interest of justice;
    • The balance of convenience.
      
12. In exercising its discretion the Court must consider all relevant and appropriate circumstances in determining whether it is just and reasonable that the relief prayed for should be granted. It is not a requirement of the law that the discretion should be exercised on all the considerations remunerated above, rather the Court is required to consider the totality of those relevant factors and circumstances in order to dispense substantive justice in the circumstances of the case before it.
13. I have taken into account all the above factors. In this case, the applicant, strangely, did not depose to any affidavit, instead, his lawyer did.
14. The affidavit of his lawyer did not canvass any of the grounds outlined above.
15. The affidavit itself is least helpful and fails to canvass material facts. It contradicts some of the annexures attached in support of the application. For instance the affidavit of Mr. Muriso Pokia, suggest that a verbal application pursuant to Order 14 Rule 40(1) of National Court Rules, was made but filed of record is a Notice of Motion for the applicant’s remand made in terms of Order 14 Rule 42(1) of the National Court Rules. This apparent contradiction is not explained anywhere.
16. It is still not clear to me, given that the applicant is in custody, whey the applicant chose to apply for stay rather than for bail. That much, I imagine, was his prerogative.
17. In all the circumstances of this case, the supporting affidavit material in support of the application is too weak to support the relief sought.
18. In the result, the application is without merit and it is refused.

___________________________________________________________
Mirupasi Lawyers: Lawyers for the Applicant
Huon Lawyers (City Agent Wagambie Lawyers): Lawyers for the Respondents