Independent State of Papua New Guinea v Kalaut [2021] PGSC 2; SC2067 (28 January 2021)

SC2067

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 10 OF 2021

BETWEEN:
THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
First Appellant

AND:
DAVID MANNING,
THE COMMISSIONER OF POLICE
Second Appellant

AND:
HON. BRYAN KRAMER,
MINISTER FOR POLICE
Third Appellant

AND:
HON. SOROI EOI,
MINISTER FOR PUBLIC SERVICE
Fourth Appellant

AND:
THE PUBLIC SERVICE COMMISSION
Fifth Appellant

AND:
THE NATIONAL EXECUTIVE COUNCIL
Sixth Appellant

AND:
SYLVESTER KALAUT
First Respondent

AND:
FRED YAKASA
Second Respondent

Waigani: Hartshorn J
2021: 28^th January

INTERIM STAY - Application for order for interim stay – principles of stay – consideration of – whether balance of convenience favours the grant of stay – whether the interest of justice requires the grant of stay – whether damages would be an adequate remedy – likely prospect of success of appeal – substantial prejudice would be caused to the state if stay is not granted – grant of stay would do justice in the circumstances of the case – interim stay order granted pending appeal – costs in the cause

Cases Cited:
Papua New Guinea Cases

Gary McHardy v. Prosec Security [2000] PNGLR 279
Yama Group of Companies Ltd v. PNG Power Ltd (2005) N2831
Canopus No.16 Ltd v. Maisi Trust Co (2008) N3401
Ombudsman Commission v. Gabriel Yer (2009) SC1041
Havila Kavo v. Mark Maipakai & Ors (2010) SC1067
Marape v. O’Neill (2014) SC1378
Mobil Oil New Guinea Ltd v. Yakainga Business Group (Inc) (2014) N6661
Talisman Energy Niugini Ltd v. Bismark Maritime Ltd (2015) N6800
William Duma v. James Puk (2019) SC1754

Overseas Cases

Films Rover International Ltd v. Canon Films Sales Ltd [1987] 1 WLR 670

Counsel

Mr. T. Mileng, for the First and Third to Sixth Appellants
Mr. D. Wood and Mr. C. Joseph, for the Second Appellant
Mr. D. Dotoana, for the Respondents

Oral decision delivered on
28^th January 2021

1. HARTSHORN J: This is a decision on a contested application for an interim stay order of National Court Orders made on 22^nd January 2021 (Orders Appealed) pending the hearing and determination of this appeal. The Orders Appealed amongst others declared the appointment of the second appellant, Mr. David Manning as Commissioner of Police, unlawful and gave Mr. Manning until 12 midday 29^th January 2021 to vacate the Office of Commissioner of Police.

Background

2. On 10^th December 2019 the Acting Governor-General appointed Mr. Manning as Commissioner of Police and Secretary for the Department of Police for a period of four years.

3. The two respondents, Messrs, Sylvester Kalaut and Fred Yakasa were aggrieved by the appointment of Mr. Manning. They were granted leave and applied for judicial review of the decision of the National Executive Council to advise the Governor-General to appoint Mr. Manning as Commissioner of Police and Secretary for the Department of Police.

4. The National Court made the Orders Appealed. In essence, the primary judge found for the respondents on the basis that Mr. Manning was not qualified for the position of Secretary for the Department of Police as he does not hold a tertiary qualification.

5. As the Acting Governor General made one decision appointing Mr. Manning to the two positions of Commissioner and of Secretary, the primary judge stated that it was impractical and undesirable to declare that only the appointment as Secretary was affected by error of law and not the appointment as Commissioner.

Consideration

6. The appellants make application for a stay pursuant to s. 5(1)(b) and/or s.19 Supreme Court Act. Counsel for the respondent objected to this as an abuse.

7. I find no merit in this objection. There is no uncertainty as to what is being relied upon, the respondents are not caught by surprise, and no authority was relied upon by counsel for the respondents for this objection.

8. The appellants submit that a stay should be granted as:

1. the Orders Appealed were wrong and significantly prejudice the very important functions that Mr. Manning performs in the management of the police force and to maintain law and order in Papua New Guinea;
   
2. the orders appealed prejudice the other State appellants in maintaining a stable Police Force;
   

100. with the quashing of the appointment of Mr. Manning as Commissioner, there is no officer in control of the police force as the next most senior officers are all Assistant Commissioners of Police. There is no substantive Deputy Commissioner of Police to be Acting Commissioner of Police;
     

4. divisions and instability have arisen in the Police Force since the Orders Appealed were made and these are likely to intensify when the orders appealed become affective;
   
5. when there is a vacancy in the Office of the Commissioner, with no successor or officer to act on an acting basis, the ability of the State through the Police Force, to maintain law and order in Papua New Guinea is prejudiced;
   
6. Mr. Manning’s ability to carry out his additional duties as Controller in the present covid19 pandemic will also be impacted by the quashing of his appointment as Commissioner;
   
7. the Orders Appealed must be stayed in the interests of national security for the above reasons.
   

9. The respondents submit that a stay should not be granted as:

a) the respondents are entitled to the benefit of the fruits of their judgment;

b) the respondents are entitled to presume the judgment is correct;

c) a stay will aid an illegal appointee to hold office;

d) there is no prejudice to the appellants and the Government can appoint a new Police Commissioner;

e) the appellants do not have an arguable case;

f) the interests of justice and balance of convenience do not favour a stay being granted.

10. I consider the application under s. 19 Supreme Court Act first. Counsel for the respondents submitted that s. 19 Supreme Court Act does not give the Court the necessary jurisdiction to grant a stay. There are numerous Supreme Court cases that disagree with him.

11. Section 19 Supreme Court Act provides that unless otherwise ordered by the Supreme Court or any Judge, an appeal, or an application for leave to appeal, to the Supreme Court does not operate as a stay of proceedings.

12. In 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.
13. I 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:

“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.”

14. Further, s. 19 does not impose any fetter on the discretion of the Court to grant a stay.

15. In William Duma v. James Puk (2019) SC1754 the Court, of which I was a member, said at [13]:

“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?””

16. Lastly, I refer to the case of Havila Kavo 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.”
17. As to the submissions of the respondents that a stay would be aiding an illegal appointee and will damage the Papua New Guinea legal system: the appellants have a statutory right to appeal a final National Court judgment. They also have a right to apply for a stay. There is no legislative requirement of which I am aware to the effect that a Supreme Court cannot grant a stay of a National Court order that has found an appointment unlawful or illegal. The submissions of the respondents concerning damage to the legal system have no basis and are without merit.

18. In this instance, leave to appeal is not required and there has not been any delay in making the application. As to whether the appellants have an arguable case on the appeal, without in any way considering the merits of the appeal, I am satisfied from a consideration of the National Court decision, the Orders Appealed, and the grounds of appeal, that the appellants have an arguable case on numerous grounds. An example is that the primary judge recognized that Mr. Manning was very qualified, that he possessed the skills, training, and experience to occupy the position of Commissioner of Police and that tertiary qualifications are not required for appointment as Commissioner for Police. The primary judge then found that it would be impractical and undesirable to declare only that Mr. Manning’s appointment as Secretary was affected by error of law and not his appointment as Commissioner. This was after having found that the positions of Secretary and Commissioner are two separate positions. I am satisfied that the appellants have an arguable case in this regard.

19. As to any hardship, inconvenience or prejudice to a party, Mrs. Taies Sansan, the Secretary for the Department of Personal Management in unrebutted evidence, deposes that because of the decision of the primary judge there is now uncertainty as to which process to follow in the appointment of the Commissioner of Police. Mrs. Sansan deposes that the question now is, is it necessary to advertise the two positions, where previously only one position needed to be advertised?

20. It is submitted that whilst this uncertainty remains, the State is prejudiced in not knowing precisely how a Commissioner of Police should be appointed as a consequence of the decision of the primary judge.

21. There is also evidence from Mr. Manning of prejudice that will be caused to him performing his functions. Clearly, the quashing of his appointment as Commissioner will prejudice him from performing the functions of the Commissioner, but they will no longer be his functions to perform. It is the responsibility of the appointing body to rectify that situation. It will not be Mr. Manning’s responsibility and so he does not suffer the prejudice that he claims personally. The same comments apply to him concerning his position as Controller under the National Pandemic Act.

22. Mr. Manning however, also deposes, as he is presently able to do on behalf of the State, that the State will be prejudiced in maintaining a stable police force. This will be exacerbated by there not being a current substantive Deputy Police Commissioner to take over as Acting Commissioner. There will only be a number of Assistant Commissioners of Police with no one in charge. Further, Mr. Manning deposes that there are divisions in the Police Force and instability, which is likely to become worse when the quashing of his appointment as Commissioner takes effect.

23. The primary judge indirectly referred to the possibility of there being uncertainty in the superintendence and efficient organisation and control of the Police Force with Mr. Manning no longer being Commissioner, when he ordered that his orders take effect in seven days.

24. In considering the above, I am satisfied that the State is likely to be prejudiced in the appointment of a new Commissioner of Police, given the unrebutted evidence of Mrs. Sansan that the appointment process is now unclear. Such uncertainty is especially prejudicial given the critically important roles and functions a Commissioner of Police fulfills.

25. In this context, and in the absence of any rebutted evidence or submissions to the contrary, the ability of the State through the Police Force to maintain law and order in Papua New Guinea, in my view, will be prejudiced with Mr. Manning’s removal as Commissioner. As a consequence, it is in the interests of National Security for a stay of the orders appealed to be granted.

26. I am satisfied on the unrebutted evidence of Mr. Manning that prejudice is likely to be caused by the State as referred to if a stay of the Orders Appealed is not granted.

27. I mention that unfortunately, it is not unheard of for there to be divisions and instability in the Police Force and I refer to the Supreme Court case of Marape v. O’Neill (2014) SC1378 as an example, although that case arose out of different circumstances. That there were divisions in the Police Force was a factor in the Court granting interim relief in that case.

28. I am also of the view that a stay of the Orders Appealed would be in the public interest for the reasons mentioned. I refer to Havila Kavo v. Mark Maipakai & Ors (2010) SC1067 on this point.

29. Damages would not be an adequate remedy in this instance as amongst others, they would not be quantifiable. Further, when issues relating to the maintenance of law and order are involved, damages are not appropriate in my view.

30. When consideration is given to any inconvenience, hardship or prejudice that may be caused to the respondents, Counsel for the respondents conceded, quite correctly in my view, that no prejudice will be caused to the respondents if a stay of the Orders Appealed is granted.

31. In regard to where the balance of convenience lies, in determining this, I have recourse to the following statement of Hoffman J. in Films Rover International Ltd v. Canon Films Sales Ltd [1987] 1 WLR 670 at 680:

“The principal dilemma about grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the Court may make the ‘wrong’ decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the Court should take whichever course appears to carry the lower risk of injustice if it turns out to have been “wrong’ in the sense I have described.”

32. The principle contained within this passage has been affirmed in amongst others: Yama Group of Companies Ltd v. PNG Power Ltd (2005) N2831; Canopus No.16 Ltd v. Maisi Trust Co (2008) N3401; Talisman Energy Niugini Ltd v. Bismark Maritime Ltd (2015) N6800; and Mobil Oil New Guinea Ltd v. Yakainga Business Group (Inc) (2014) N6661.

33. To my mind, although this statement concerns the grant of interlocutory injunctions, the principles contained therein apply equally to the grant of a stay. The fundamental principle is that the Court should take whichever course appears to carry the lower risk of injustice if it turns out that Mr. Manning is not successful in his appeal.

34. Considering this, if a stay is granted, Mr. Manning continues as Commissioner until the appeal is determined. Any prejudice suffered by the respondents may be compensated by costs if they are successful on appeal. Further, the prejudice to the State concerning the appointment of a new Commissioner, the running of the Police Force and law and order issues is removed.

35. If the stay is not granted, the prejudice to the State as referred to, is likely, with damages not being an adequate remedy. The least risk of injustice therefore, if Mr. Manning loses his appeal, is for a stay to be granted. The balance of convenience favours a stay being granted and so do the interests of justice.

36. Consequently, for all of the above reasons the appellants have made out and are entitled to the stay order which they seek.

37. Given this, it is not necessary to consider the other submissions of counsel.

Order

38. It is ordered that:

1. Pursuant to s.19 Supreme Court Act an interim stay is granted of the Orders made on 22^nd January 2021 in National Court proceeding in Waigani, National Capital District, in OS (JR) No. 2 of 2020, Sylvester Kalaut & Fred Yakasa v. The State & Ors, pending the hearing and determination of this appeal;
   

b) Costs are in the cause.
__________________________________________________________________
Office of the Solicitor General: Lawyers for the First and Third to Sixth Appellants
Ashurst Lawyers: Lawyers for the Second Appellant
Dotaona Lawyers: Lawyers for the Respondents