Talakan v Misren [2018] PGSC 9; SC1663 (14 March 2018)

SC1663

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 41 OF 2017

BETWEEN
PAULA TALAKAN for and on behalf of the NAPKIA
Family of Lihir Island
Applicant

AND
JEROME MISREN for and on behalf of the MINAI
Family of Lihir Island
Respondent

AND
SEBASTIAN YANASA for and on behalf of the SOLGAS
Family of Lihir Island
Respondent

AND
PATRICK BAIWAN, sitting as the NEW IRELAND
PROVINCIAL LAND COURT
Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Dingake J
2018 : 14^th March

SUPREME COURT - Application for Stay – Requirements for Stay not met – applicant ion refused.

Cases cited:

McHardy v Prosec Security and Community Ltd [2000] PNGR p 279

Counsel:

Mr. Tai Yai, for Applicant
Mr. Hillary Jasiria, for First Respondent

14^th March, 2018

1. DINGAKE J: This is an application for stay made pursuant to Section 5(1) (b) and Section 19 of the Supreme Court Act.
   
2. The applicant prays the court that proceedings entitled: “OS No. 740 of 2017 Jerome Misren and Others v Paula Talakan and Others” at Kokopo National Court be stayed pending determination of the appeal.
3. The brief background to this matter is that the first respondent, Jerome Misren, filed the above mentioned judicial review proceedings on the 19^th of September, 2017, seeking leave pursuant to Order 16 Rule 3(1) of the National Court Rules to apply for judicial review of the decision of the third respondent, New Ireland Provincial Land Court, of 2016 to declare and award customary land ownership of Matatal also known as Block 16 and Pongsiat also known as Block 75, to the first respondent.
4. The National Court granted leave for judicial review on the 6^th of October, 2017.
5. After leave was granted the plaintiff proceeded to file the substantive judicial review application by way of notice of motion pursuant to Order 16 Rule 5(1) of the National Court Rules on the 11^th of October, 2017.
6. The applicant seeks to stop the aforesaid proceedings from progressing further and has filed an appeal, which he avers he is entitled to do as of right.
   
7. The respondents without filing any objection to competency of the appeal have taken issue with the application arguing that the applicant’s appeal is incompetent, as it is an appeal against the interlocutory judgment of the National Court - and that the applicant ought to have obtained leave to appeal.
   
8. The applicant was able to address the matter in argument and objected that the respondents are precluded from raising the issue of competency because they have not filed any objection to the competency of the appeal prior to this hearing.
   
9. It is true that the respondents have not objected to the competency of the appeal prior to this hearing, which they ought to have done. However, in the circumstances of this case such a failure was not fatal. I say so, because the applicant was able to address the Court on the objection and no prejudice was demonstrated by the applicant arising out of the failure aforesaid.
   
10. It is plain from the papers filed of record that the granting of leave by the National Court did not finally dispose of the rights of the parties in the dispute rendering such decision interlocutory in nature and requiring that leave to appeal same must be sought from this Court.
    
11. Section 14(3)(b) of the Supreme Court Act provides that:

(3) No appeal lies to the Supreme Court without leave of the Supreme Court–

(b) from an interlocutory judgement made or given by the National Court except–

(i) where the liberty of the subject or the custody of infants is concerned; or

(ii) in cases of granting or refusing an injunction or appointing a receiver; or

(iii) in such other cases prescribed by the Rules of Court as are in the nature of final decisions; or

12. It is plain on the evidence that the applicant does not fall within the exceptions mentioned in Section 14 (3) (b).
    
13. The jurisprudence of this court indicates that in considering an application for stay the following factors must be taken into account:
    
    • Whether leave to appeal is required and whether it has been obtained;
    • Whether there has been any delay in making the application;
    • Possible hardship, inconvenience or prejudice to either party;
    • The nature of the judgement sought to be stayed;
    • The financial ability of the applicant;
    • Preliminary assessment about whether the applicant has an arguable case on the proposed appeal;
    • Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure;
    • The overall interest of justice;
    • Balance of convenience;
    • Whether damages would be sufficient remedy.
      
14. It is my considered view that the grant of stay is in the discretion of the Court and is not granted automatically. For the applicant to obtain stay he must advance cogent reasons that meet the requirements stated above. The applicant has failed to do so.
    
15. In this case the application ought to fail for another compelling reason, being that, the applicant requires leave as a matter of law and such leave has not been obtained. Furthermore, no prejudice or hardship has been shown by the applicant to persuade this court to grant the stay sought. Although the applicant may have a point that judicial review proceedings were brought late, this is a matter which the Court below can competently deal with.
16. In all the circumstances of this case, and having regard to the applicable principles, as enunciated above, and reflected in the case of MC Hardy v Prosec Communication Pty Ltd (2000) PGSC 22; SC646 this application ought to fail.
    
17. In the premises, this application is without merit and it is refused.

________________________________________________________________
Mr. Tai Yai: Lawyers for the Applicant
Mr. Hillary Jasiria: Lawyers for the Respondent