Duma v Puk [2019] PGSC 1; SC1754 (7 January 2019)

SC1754

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV (EP) 43 of 2018

APPLICATION UNDER S. 155(2)(b) OF THE CONSTITUTION AND
IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

BETWEEN:
WILLIAM DUMA
Applicant

AND:
JAMES PUK
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Waigani: Batari, Hartshorn and Murray JJ,
2019: 3^rd, 7^th January

SUPREME COURT – practice and procedure - Application for stay – stay of proceedings at National Court sought pending determination of review by Supreme Court – grounds of stay considered – reasons for and against grant of stay by parties considered - in determining whether a stay should be granted Court must consider what is necessary to do justice in the circumstances of a particular case - what is necessary and required to do justice in the circumstances of this case is for trial of the election petition in National Court to be stayed – stay application granted – s155 (4) Constitution

Cases Cited:
Papua New Guinea Cases

Green & Co Pty Ltd (Receiver Appointed) v. Roger Britain Green [1976] PNGLR 73
Viviso Seravo v. John Giheno (1998) SC555
David Arore v. John Warisan (2008) SC947
Totamu v. Small Business Development Corporation (2009) N3702
Ombudsman Commission v. Gabriel Yer (2009) SC1041
Albright Ltd v. Mekeo Hinterland Holdings Ltd (2013) N5774
Anton Yagama v. Peter Charles Yama (2013) SC1219
Electoral Commission v. Peter Charles Yama (2014) SC1383
Independent Public Business Corporation v. Motor Vehicles Insurance Limited (2017) N6664
Gigira Development Corporation Ltd v. Komo Umbrella Joint Venture Ltd (2016) N6785
National Superannuation Fund Ltd v. National Capital Ltd (2017) N6952
K. A. Properties (PNG) Ltd v. Simatab (2017) N7070
Lawrence Kalinoe v. Philip Kereme (2017) SC1631

Overseas Cases

Gardner v. Jay (1885) 29 Ch 50
Evans v. Bartlam [1937] AC 473; 2 All ER 646

Counsel

Mr. H. Nii, for the Applicant
Mr. D. Mel, for the First Respondent
Mr. J. Kolo, for the Second Respondent

7^th January, 2019

1. BY THE COURT: This is a decision on a contested application for a stay of the trial of an election petition in the National Court. The application is made pursuant to s.155(4) Constitution.

Background

2. The applicant was declared as the member elect for the Hagen Open Electorate in the 2017 National General Elections. The first respondent filed a petition challenging the result. The primary judge heard and delivered a decision concerning objections to competency of the petition (competency decision). The applicant sought leave to review the competency decision in this Court. This Court, per the Chief Justice, granted the applicant leave to review the competency decision. The trial of the election petition has been set down to be heard for a period of three weeks commencing on 14^th January 2019.

This application

3. The applicant, supported by the second respondent, submits that a stay of the trial should be granted as:

a) there has not been any delay in making the stay application;

b) the grant of leave and the filing of the application for review have created a right before the Supreme Court that is capable of protection pursuant to s. 155(4) Constitution;

c) the Supreme Court has the power to grant a stay of a trial in the National Court where it is in the interests of justice pursuant to s.155(4) Constitution;

d) by the grant of leave and the filing of the application for review, the Supreme Court has assumed jurisdiction to determine whether the National Court’s jurisdiction has been properly invoked and whether the National Court should continue to hear the petition. To permit the trial to proceed in such circumstances would interfere with the jurisdiction of the Supreme Court;

e) a stay would preserve the status quo, would be for the convenience of all parties, and if the review is unsuccessful would only result in a delay of time. If a stay is not granted and the review is successful, substantial costs are likely to be incurred by all parties in conducting a trial for no purpose;

f) he will suffer prejudice if a stay is not granted.

4. The first respondent submits that a stay should not be granted as:

a) the application for stay is incompetent and misconceived;

b) he is entitled to the fruits of the competency decision;

c) the applicant will not suffer any prejudice apart from the costs of trial, and these may be recovered, and his application for review will not be rendered nugatory if the stay is not granted;

d) the petition must be disposed of quickly and has been fixed for trial;

e) the review does not have strong prospects of success;

f) it is not in the interests of justice.

Law

5. All parties relied upon s. 155(4) Constitution as providing this Court with the inherent power to grant a stay in respect of National Court proceedings pending a review by this Court. Cases cited included Viviso Seravo v. John Giheno (1998) SC555; David Arore v. John Warisan (2008) SC947; Anton Yagama v. Peter Charles Yama (2013) SC1219 and Electoral Commission v. Peter Charles Yama (2014) SC1383.

6. In determining whether a stay should be granted, a Court is to have recourse to the wording of s. 155(4) Constitution – whether a stay is, “...necessary to do justice in the circumstances of a particular case.”

Preliminary

7. The first respondent submits that the application for stay is incompetent and misconceived as what is sought to be stayed is a trial as distinct from an order, and the relief sought by the applicant cannot be sought by a “stay”.

8. In regard to this Court not having the power to stay a trial as distinct from an order, the first respondent submits that this is evident from a perusal of the relevant authorities. It was conceded however, by counsel for the first respondent, correctly in our view, that none of the authorities upon which he relied contained a judicial statement to the effect that s. 155(4) Constitution did not provide the power for this Court to stay a National Court trial.

9. We are satisfied that the wording of s. 155(4) Constitution is sufficiently wide to permit this Court to stay a National Court trial, if the particular circumstances before this Court so warrant.

10. In regard to the relief sought by the applicant not being able to be granted by a “stay”, the first respondent relied upon the following passage from De Smith, Wolf and Jowell, Judicial Review of Administrative Action, 5^th Ed; Sweet & Maxwell, 1995 at 670 [15]-[29], reproduced in Peter Makeng v. Timbers (PNG) Ltd (2008) N3317:

“... the stay is not addressed to an ‘opposing party’ but rather is directed at suspending the operation of a particular decision.”

11. Further on in that passage however, there is a reference to a, “stay of proceedings”. We are satisfied that a “stay” may encompass the staying of a trial, as part of proceedings. We refer in this regard to the numerous references to a stay of proceedings in the National Court Rules, an example of which is Order 12 Rule 40. That a stay may be ordered of proceedings but not part of proceedings such as a trial, to our minds is incongruous.

12. Consequently, the submissions of the first respondent as to competency and misconception are rejected.

Consideration

13. As referred to, in determining whether a stay should be granted this Court must consider what is necessary to do justice in the circumstances of a particular case. There is no fetter on this Court’s discretion apart from this consideration. We are reminded in this regard of the oft cited statement of Bowen LJ in Gardner v. Jay (1885) 29 Ch 50, at 59:

“When a tribunal is invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view of indicating the particular grooves in which the discretion should run, for if the Act or the Rules did not fetter the discretion of the Judge why should the Court do so?”

14. This passage has been reproduced and approved in numerous cases including the House of Lord’s decision of Evans v. Bartlam [1937] AC 473; 2 All ER 646; Green & Co Pty Ltd (Receiver Appointed) v. Roger Britain Green [1976] PNGLR 73; Totamu v. Small Business Development Corporation (2009) N3702; Albright Ltd v. Mekeo Hinterland Holdings Ltd (2013) N5774; Independent Public Business Corporation v. Motor Vehicles Insurance Limited (2017) N6664; Gigira Development Corporation Ltd v. Komo Umbrella Joint Venture Ltd (2016) N6785; National Superannuation Fund Ltd v. National Capital Ltd (2017) N6952; K. A. Properties (PNG) Ltd v. Simatab (2017) N7070 and Lawrence Kalinoe v. Philip Kereme (2017) SC1631.

15. We also make reference to the following passage of Injia CJ (as he then was) in Ombudsman Commission v. Gabriel Yer (2009) SC1041. His Honour was considering a stay application under s. 19 Supreme Court Act, but in our view His Honour’s comments are particularly apt to the stay application before this Court:

“The grant or refusal of stay is discretionary. The principles on grant of stay are set out in McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279 (McHardy case)..... In McHardy the Court said the starting point is the basic premise that the judgment creditor is entitled to enjoy the fruit of the judgment. There are ten (10) other considerations which are enumerated in that case which may be considered. The Court said the list is not exhaustive. In my view, it is not intended that the discretion should be exercised on all or selected consideration(s). The circumstances of a particular case may warrant greater or less or even no weight at all to be given to a particular consideration(s). It is open to the Supreme Court to expound on those considerations or introduce new considerations as necessitated by the circumstances of the case before it. In a case where a number of considerations are relevant, the Court must take into account the totality of those considerations in order to dispense substantive justice in the circumstances of the case before it. The onus is on the applicant to persuade the Court to exercise its discretion in his or her favour.”

16. In this instance this Court has granted leave for the applicant to review the competency decision. If the review is successful, it will determine the National Court proceeding. The issues of whether leave should have been granted and whether the review has merit are not before this Court. If the trial proceeds and either during the trial or after its conclusion, this Court upholds the review, this would lead to amongst others, unnecessary costs being incurred by all parties, and a significant waste of court time. Further, if the National Court trial proceeds at the same time as the review before this Court, this would lead to quite considerable inconvenience to all parties in them attempting to prosecute the two cases at once in Waigani and in Mount Hagen. In our view, what is necessary and what is required to do justice in the circumstances of this case is for the trial of the election petition in the National Court to be stayed. Given this it is not necessary to consider the other submissions of counsel.

Orders

17. The Court orders that:

a) Pursuant to s. 155(4) Constitution the trial of the election petition – EP No. 25 of 2017; James Puk v. William Duma & Patilias Gamato, Electoral Commissioner of Papua New Guinea - in the National Court is stayed until the determination of the review herein;

b) The first respondent shall pay the costs of the applicant and the second respondent of and incidental to the application for stay of the applicant filed 24^th December 2018.
____________________________________________________________
Harvey Nii Lawyers: Lawyers for the Applicant
Mel & Hennry Lawyers: Lawyers for the First Respondent
Kolo Lawyers: Lawyers for the Second Respondent