Inspac (PNG) Ltd v Monier Ltd [2022] PGSC 22; SC2221 (10 March 2022)

SC2221

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 177 OF 2021

BETWEEN:
INSPAC (PNG) LIMITED
Appellant

AND
MONIER LIMITED
AND ANOTHER
Respondents

Waigani: Logan J
2022: 10^th March

PRACTICE & PROCEDURE – application for stay of operation of orders of the National Court – where appeal to the National Court from Workers’ Compensation Tribunal (Tribunal) – where appeal instituted by an insurer on the insurers own behalf and on behalf of its insured – where the National Court dismissed appeal on basis that the appeal was incompetent – balance of convenience – where the decision of Tribunal entitled to be enforced until such time as decision overturned – where there is an arguable case on appeal – where undertaking as to damages offered – where no evidence that respondent impecunious – application dismissed

ADMINISTRATIVE BODIES – where Tribunal opposed stay – where there is already an obvious contradictor in the proceedings – proper role of adjudicative Tribunal in such circumstances

Facts:

In October 2020, Mr Vincent Tangaro was injured in a workplace accident. A consequence of Mr Tangaro’s injury was that he required specialist medical treatment. That treatment was not available in Papua New Guinea. Accordingly, arrangements were made for Mr Tangaro to be transported overseas to undergo the relevant treatment.

A dispute subsequently arose between Mr Tangaro’s employer, Monier Limited (Monier) and Monier workers’ compensation insurer, Inspac (PNG) Limited (Inspac) as to the extent to which Monier was entitled to indemnity in respect of the costs incurred by it in aid of Mr Tangaro’s treatment. That dispute was, in first instance, the subject of a proceeding in the Workers’ Compensation Tribunal (Tribunal).

On 5 May 2021, the Tribunal determined that Monier was liable to reimburse Mr Tangaro for the cost of his treatment overseas. In turn, it was also determined that Inspac was required to indemnify Monier under the terms of the relevant contract of insurance in force between Inspac and Monier for those costs.

Monier was dissatisfied with the Tribunal’s decision. It appealed to the National Court. That appeal was purported to be brought on behalf of Inspac and Monier, although those acting for Inspac did not hold instructions to institute an appeal on Monier’s behalf. An objection to competency was raised on this basis. On 16 November 2021, the National Court dismissed the appeal on the basis that the joinder of Monier without instructions rendered the entire appeal incompetent.

Inspac instituted an appeal, within time, to the Supreme Court seeking to overturn the National Court’s decision to dismiss the appeal against the Tribunal’s decision. Inspac concurrently applied for a stay of the operation of the order of dismissal of the proceeding in the National Court.

Held:

1. Whether a stay should be granted entails consideration of whether the applicant/appellant has an arguable case and whether the balance of convenience favours the grant of a stay.
   
2. In assessing the balance of convenience, the prima facie position is that a judgment of a lower court should not be treated as merely provisional and a successful party in litigation is entitled to the fruits of their judgment. Generally speaking, courts should not be disposed to delay enforcement of court orders: Cook’s Construction Pty Ltd v Stork Food Systems Pty Ltd [2008] QCA 322; [2008] 2 Qd R 453 referred to.
   
3. It is arguable that, where an insurer who holds an equitable right of subrogation and itself enjoyed a right of appeal under s 49 of the Workers’ Compensation Act 1978 also appeals on behalf of its insured, the fact that the insurer may not hold instructions to institute such an appeal on behalf of the insured does not render the appeal incompetent: Tongayu v Oil Search Ltd [2021] PGSC 58; SC2131 distinguished.
   

Cases Cited:
Papua New Guinean Cases

Tongayu v Oil Search Ltd [2021] PGSC 58; SC2131

Overseas Cases

Cook’s Construction Pty Ltd v Stork Food Systems Pty Ltd [2008] QCA 322; [2008] 2 Qd R 453
Murdoch v Lake [2014] QSC 142
R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13

Legislation:

District Court Act 1963
Workers’ Compensation Act 1978

Counsel:

Mr. S. Gor, for the Appellant
Mr. E. Asigau, for the First Respondent
Ms. N. Aiwara, for the Second Respondent

Oral decision delivered on
10^th March 2022

1. LOGAN J: Mr Vincent Tangaro, an employee of Monier Limited (Monier), the first respondent, had the misfortune to be injured in a workplace accident in October 2020. After initial assessment here in Papua New Guinea, the medical opinion formed was that he required specialist medical treatment, the nature of which was not possible to be provided in Papua New Guinea. Accordingly, he was transported overseas to receive that medical treatment.
   
2. Monier’s workers’ compensation insurer were and are Inspac (PNG) Limited (Inspac), the appellant. There was a controversy as between Inspac and Monier as to the extent of liability under the policy for workers’ compensation insurance in respect of Mr Tangaro’s treatment. That controversy claimed to be the subject of a proceeding before the Workers’ Compensation Tribunal (Tribunal), the second respondent.
3. On 5 May 2021, the Tribunal made, materially, this decision:
   

“(1) The employer (Monier) is liable to pay as compensation to the worker, such reasonable expenses as were and will be incurred by the worker as a result of his injuries.

(2) Expenses related to the hospital and medical expenses, reasonable accommodation costs and airline and land transportation costs to the treating hospital in the Philippines and the transportation back to Port Moresby are, according to the tribunal, reasonable and necessary expenses and therefore payable as a liability of the employer, Monier, and reimbursable from the insurer, Inspac, if incurred or payable to relevant source provider, if claimed.”

4. Inspac was a party to the proceeding before the Tribunal. So too was Monier, and for that matter, Mr Tangaro.
   
5. Inspac was dissatisfied with the Tribunal’s decision, the effect of which was to create an obligation on its part to pay some hundreds of thousands of Kina to Monier in respect of treatment costs of Mr Tangaro. Inspac therefore instituted, or at least purported to institute, an appeal to the National Court pursuant to s 49 of the Workers’ Compensation Act 1978. In so doing, Inspac named not only itself as an appellant but also Monier. This was done by Inspac without express instructions from Monier to do so.
   
6. A question was therefore raised in the appeal proceeding in the National Court as to whether the appeal was competent. In the result, the learned primary judge, whilst concluding that the notice of appeal had been filed within time, concluded that the joinder of Monier without instructions rendered the entire appeal incompetent. Accordingly, on 16 November 2021, his Honour dismissed the appeal.
   

Application for stay

7. Inspac has now instituted, within time, an appeal against that order of dismissal naming Monier and the Tribunal as respondents. Inspac has also applied for a stay of the operation of the order of dismissal of the proceeding in the National Court.
   
8. It is the question as to whether or not a stay as sought should be granted which arises for decision today. Whether or not to grant a stay entails at the very least, consideration of whether Inspac has an arguable case, and where the balance of convenience lies. As to the latter, Monier has the benefit of a subsisting decision of the Tribunal.
   
9. The position is therefore analogous to a party which has succeeded in the National Court in obtaining in that party’s favour, a monetary judgment which is the subject of a subsequent appeal. It is well established by authority in this jurisdiction that, in the ordinary course of events, such a party is entitled to the fruits of the judgment, notwithstanding the existence of an appeal.
   
10. A similar position is evident in other jurisdictions. The prevailing position was, with respect, nicely put by Keene JA, as his Honour then was, in the Queensland Court of Appeal in Cook’s Construction Pty Ltd v Stork Food Systems Pty Ltd [2008] QCA 322; [2008] 2 Qd R 453 at 455, referring to a similar power to grant a stay to that possessed by this court. His Honour observed:
    

“[I]t will not be appropriate to grant a stay unless a sufficient basis is shown to outweigh the considerations that judgments of the Trial Division should not be treated as merely provisional, and that a successful party in litigation is entitled to the fruits of its judgment.4 Generally speaking, courts should not be disposed to delay the enforcement of court orders.”

11. Those same sentiments, in my view, apply by analogy in relation to a decision of the Tribunal, subject to one important qualification arising under statute in Papua New Guinea in relation to a decision of the Tribunal. The qualification is not one upon which it is necessary to reach a final conclusion, but it was put that the effect of s 227 of the District Court Act 1963 was to stay the operation of the Tribunal’s decision or at least its enforcement once an appeal to the National Court had been instituted.
    
12. It is a moot point, in my view, as to whether s 227 of the District Court Act is applicable in relation to an appeal from the Tribunal to the National Court. By s49(1) of the Workers’ Compensation Act, it is provided materially that an appeal to the National Court is to be: “within the time and in accordance with the conditions prescribed by the Rules of Court for appeals from decisions of the District Court”. So, the Workers Compensation Act does not, in terms, incorporate by reference all of the provisions in the District Court Act with respect to an appeal from the District Court to the National Court, only the rules of court for appeals from decisions of the District Court.
    
13. In any event, reference to s227 was made in the context of providing an explanation as to why the stay of the Tribunal’s decision had not been sought in the National Court. That point was raised as a reason why a stay should not be granted by this court. I can see how a view may have been formed by reference to s 227 of the District Court Act and s 49(1) of the Workers Compensation Act that it was unnecessary to seek a stay in the National Court. I would not be disposed to refuse a stay on that basis. It may, as I have indicated, have been a mistaken view of the operation of s 49(1) of the Workers Compensation Act, but I can see how such a view might have been formed nonetheless.
    
14. The real question in my view is more one of whether there is an arguable case raised, and if so, whether there is some sufficient reason to stay the operation of the National Court’s dismissal decision which in turn had the effect of enlivening the decision of the Tribunal, if indeed it needed enlivening, having regard to the observations I have made in relation to the construction of s 49(1) of the District Court Act.
    
15. Inspac’s notice of appeal raises as one issue the existence, as claimed on the part of an insurer, of a right of subrogation such that it was always entitled to name Monier as an appellant in addition to appealing in its own right. Inspac did not point to any particular contractual right of subrogation but, prima facie at least, an insurer would have in equity a right of subrogation. So, that point strikes me as one which is arguable.
    
16. More fundamentally, in terms of an arguable case, Inspac was itself a party to the proceeding in the Tribunal. Inspac itself enjoyed as a party a right of appeal pursuant to s 49 of the Workers Compensation Act. In those circumstances, it strikes me as at least arguable that Inspac had in any event irrespective of whether or not there was or was not a correct joinder of Monier as an appellant invoked the jurisdiction conferred on the National Court by s 49 of the Workers Compensation Act. It is to be remembered that an objection to competency goes to jurisdiction. Thus, on this basis, if not also on the subrogation point, I am persuaded that Inspac has an arguable case in relation to the appeal against the dismissal order.
    
17. I have taken into account a case recently decided in the Supreme Court, Tongayu v Oil Search Ltd [2021] PGSC 58; SC2131, to which my attention was helpfully drawn by counsel for Monier. That case saw the dismissal as incompetent of an appeal in circumstances where procedural requirements in respect of the institution of proceedings by the Securities Commission of Papua New Guinea had not been observed, and further, where there had been a change in office holding.
    
18. Of course, if an appeal were but purportedly instituted without instructions, then there would be a good objection to competency if a regular notice of appeal were not filed within the time set out in s 17 of the Supreme Court Act. But in this case, as I have mentioned, Inspac itself was a party to the Tribunal proceeding and in that capacity, itself had a right of appeal. So, it may be that the subrogation issue and for that matter, a basis of dismissal of the appeal to the National Court is misconceived given that Inspac itself had instituted an appeal.
    
19. That then leaves, as I have mentioned, whether to grant a stay on the basis that even though the case is arguable, Monier should be deprived of the fruits of the Tribunal’s decision.
    
20. One course which might have been open is to order that the sum concerned be paid into the trust account of Monier’s lawyers to be invested in an interest bearing account in the names of both Inspac and Monier on terms that it then be paid out in accordance with the judgment on the appeal. Such an order was made in a Queensland case, Murdoch v Lake [2014] QSC 142, but no such order was sought or promoted by any party.
    
21. Inspac did not, in my view, have to establish some special or exceptional circumstance but it did have to establish some sufficient reason upon which to stay the operation of the National Court’s order of dismissal. Inspac pointed to an undertaking as to damages which it offered. But the question really becomes, having regard to that, as to whether the insurer, Inspac, should retain the moneys or whether the decision of the Tribunal providing for that payment to Monier should be allowed to stand. That decision was not an aspirational statement.
    
22. If there were evidence of particular impecuniosity or pending insolvency on the part of Monier, then the granting of a stay would readily commend itself. But Inspac has introduced no evidence which would indicate any possibility, let alone anything beyond that, that if the decision of the Tribunal takes effect according to its terms, Monier will be unable, in the event that Inspac enjoys success on the appeal, to repay the sum to Inspac.
    
23. Of course, prospects of success in relation to an appeal are relevant but the points at large on the appeal are difficult ones. It would not be appropriate in my view on a stay application to do anything other than recognise that Inspac has an arguable case. Were there an obvious error inherently likely to be corrected on appeal, that would be a telling consideration in favour of granting a stay even in the absence of some evidence as to Monier’s ability to repay and certainly, if there were such evidence.
    
24. It only comes to this. Therefore, I am not persuaded that the case is one for the granting of a stay. That is because I am not persuaded that there is, on the evidence, a sufficient reason to depart from the ordinary position that a successful party is entitled to the fruits of a judgment. The position, in my view, in relation to a decision of the Tribunal where matters have reached the stage of an appeal to the Supreme Court is analogous to the ordinary position in relation to the fruits of civil judgments. For these reasons, the application for a stay is dismissed.
    

The position of the Tribunal as contradictor

25. I also make this observation. The Tribunal adopted a position of opposing the granting of a stay. I can see how such a position was warranted, having regard to the statutory regime prevailing whereby a decision of the Tribunal is entitled to obedience.
    
26. There is, though, a question as to whether it would be appropriate for the Tribunal to adopt other than a neutral stance in relation to a hearing on the merits of the appeal. Monier is obviously an active contradictor.
    
27. The Tribunal under the Workers’ Compensation Act has a quasi-judicial role to undertake in the nature of an umpire as between insurers, employers and employees. In those circumstances, it appears to me that observations made as to a need for neutrality in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 by the High Court of Australia are appropriately considered as relevant by analogy. I make no further observation on that subject.
    

Orders

1. The appellant/applicant and the second respondent’s written submissions be placed on the Court file.
2. The application for a stay be dismissed.
3. The appellant (applicant on the application for a stay) pay the respondents’ costs of and incidental to the application for a stay to be taxed if not agreed.
4. Orders be passed and entered forthwith.

__________________________________________________________________
Fiocco & Nutley Lawyers: Lawyers for the Appellant
Pacific Legal Group Lawyers: Lawyers for the First Respondent
Solicitor General’s Office: Lawyers for the Second Respondent