SC2432
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 3 OF 2023 (IECMS) 

BETWEEN:
PHILIP VITOLO
First Appellant

AND
HERMAN PASI, VINCENT TOVILI & KENNY SONNY
Second Appellants

V
MARAREA LAND GROUP INCORPORATED
First Respondent

AND
HONOURABLE JUSTIN TKATCHENKO in his capacity as the 
MINISTER FOR LANDS & PHYSICAL PLANNING
Second Respondent

AND
IRUNA ROGAKILA in his capacity as the 
Registrar of Incorporated Land Groups
Third Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

AND
NEW BRITAIN PALM OIL LIMITED
Fifth Respondent

Waigani: Anis, J
2023: 8th & 9th August

PRACTICE AND PROCEDURES – Objection to competency of stay application –whether application for stay should be declined premised on jurisdiction contest on notice of motion that is filed under Order 10 of the Supreme Court Rules – whether Court has jurisdiction to hear application for stay given the jurisdiction challenge - consideration and ruling on the preliminary point

Cases Cited:

SCA No. 11 of 2023, Philip Vitoto and 1 Or v Mararea Land Group Incorporated and Ors (2023) delivered on 5 July 2023
Joel Luma v John Kali and Ors (2014) SC1608
McHardy v Prosec Communication Pty Ltd (2000) SC646
Talakan v Misren (2018) SC1663
Ambassador Evan Jeremy Paki v Hon. Polye and Ors (2011) SC1095

Counsel:

E Isaac, for the Appellants
H Leahy, for the First Respondent
M N Yano, for the Second, Third & Fourth Respondents
M Mininga, for the Fifth Respondent

RULING

9th August 2023

1.	ANIS J:  I heard preliminary jurisdiction argument concerning the applicants’ stay application, on 8 August 2023.

2.	I reserved my ruling to this morning at 9:30am.  

3.	This is my ruling.

BRIEF BACKGROUND

4.	On 22 February 2023, the applicants filed their Notice of Motion (Appeal).  The Appeal was filed under Order 10 of the Supreme Court Rules (SCR).  The applicants are appealing against a decision of the National Court made on 13 December 2022, in a judicial review proceeding.  The judicial review proceeding is described as OS (JR) No. 925 of 2018 (JR proceeding).  In the JR proceeding, the Court, upon hearing 2 notices of motion, (i), rejected the applicants’ notice of motion to dismiss the first respondent’s application for leave for judicial review, and (ii), granted the first respondent’s application for security for costs.  

5.	The Appeal stems from the said decision of the National Court.  The applicants initially appealed against the same decision in appeal proceeding described as SCA No. 11 of 2023.  They filed an application for leave to appeal and later a notice of appeal, that is, after leave was granted to them on 2 February 2023 by Cannings J sitting as a single judge of the Supreme Court.  On 6 February 2023, Hartshorn J sitting as a single judge of the Supreme Court, granted a stay order in their favour.  But on 8 March 2023, the applicants applied for leave to withdraw SCA No. 11 of 2023.  So, on 16 March 2023, Cannings J sitting as a single judge of the Supreme Court, granted leave and the applicants withdrew their notice of appeal filed in SCA No. 11 of 2023.  His Honour also made orders discharging the stay order that was granted in the said appeal proceeding.

6.	The present Appeal was filed on 22 February 2023.  The Appeal was filed about a month earlier, that is, before the appellants sought leave of Court to withdraw SCA No. 11 of 2023.

7.	But that was not the end of SCA No. 11 of 2023.  On 21 March 2023, the applicants filed a new application in SCA No. 11 of 2023.  They sought orders therein to reinstate the earlier stay order that had been discharged by Cannings J.  In their said application, they requested the Supreme Court to reinstate the stay orders on the basis that it should remain binding to this Appeal until after its final outcome.

8.	The Supreme Court (which comprised of Makail J, Polume-Kiele J and Auka J) heard the application on 29 May 2023.  On 5 July 2023, in a written decision described as SCA No. 11 of 2023, Philip Vitoto and 1 Or v Mararea Land Group Incorporated and Ors, the Supreme Court dismissed the applicants’ application in its entirety.  They ruled the application as misconceived and abuse of process.  They also awarded costs against the applicants in favour of the respondents on a solicitor/client basis.

OBJECTION

9.	What returned before me yesterday was the applicants’ Stay Application filed 4 August 2023 (SA).  Before the application was moved, Mr. Leahy, on behalf of the first respondent, raised this preliminary issue.  He submits that the SA is incompetent; that this Court has no jurisdiction to deal with it because the applicants did not obtain leave to appeal in regard to the substantive appeal that is pending.  Mr Yano, for the second, third and fourth respondent supports the first respondent on this preliminary matter.

10.	Mr Issac and Mr Mininga opposed the argument.  In summary, their main submission is this.  They say that leave to appeal had been obtained and therefore the preliminary objection was misconceived.  In any event, they further argue that questions of jurisdiction should be appropriately raised at an objection to competency hearing; they say this Court has no jurisdiction to deal with the issue in this manner, thus they submit that the objection raised should be dismissed and the Court should hear the SA.

ISSUE

11.	The main issue in my view is this; whether I have jurisdiction to hear the SA.

CONSIDERATION

12.	I make the following observations.  I take into account the divided views of the parties on the jurisdiction issue, that is, of whether leave is required in this appeal.  However, what cannot be ignored, which is also the status quo of this present Appeal, is the fact that the applicants have filed a substantive appeal by way of Notice of Motion under Order 10 of the SCR.  In so doing, they have essentially appealed as of right or so they claim.  And it is premised on this substantive appeal, that the applicants file this SA.  The Supreme Court in Joel Luma v John Kali and Ors (2014) SC1608 stated that (and I paraphrase at para 15) there must exist a substantive proceedings on foot upon which to ground a stay or interim relief.  Whether the Appeal herein is competent or not would be a separate matter in my view.  I note that there is an objection to the competency of the appeal that is already filed which is pending.  In my view, and I also uphold the applicants’ submission in that regard which is that the jurisdiction issue would be a matter for a competency Court to determine; that I would have no jurisdiction to determine that; that the issue is not properly before me to decide in this manner as I am being asked to.  

13.	What I note therefore is that there is a substantive appeal proceeding on foot.  And the SA is made under it thus is properly before this Court, that is, to hear the application and make a determination premised on the established criteria for stay.   See cases: McHardy v Prosec Communication Pty Ltd (2000) SC646 and Talakan v Misren (2018) SC1663.  I should also mention this to make a comparison.  Had the only document filed in this proceeding been an application for leave to review, and the SA was made without leave being first obtained, the situation would have been different, and I would have upheld the submissions of the first and fifth respondents.  See cases:  Joel Luma v John Kali and Ors (supra) and Ambassador Evan Jeremy Paki v Hon. Polye and Ors (2011) SC1095.  Hartshorn J in Evan Paki for example held, and I quote: An application for leave to appeal does not have a primary right of appeal that is able to be protected by reliance upon s.155(4) Constitution.  The present matter, however, is not in that situation for the reasons as I have stated.

SUMMARY

14.	So, in summary, I would answer the issue in favour of the applicants. 

15.	In so doing, I will now proceed to hear the SA.  I will ask parties to keep their submissions short from 20 to30 minutes each.

ORDERS OF THE COURT

16.	I make the following orders:

1.	The preliminary objection raised by the first and fifth respondents that this Court should decline to hear the Stay Application on the basis that the applicants did not first obtain leave is refused.

2.	I will now hear the Stay Application.

The Court orders accordingly
________________________________________________________________
Emmanuel:	Lawyers for the Appellant
Pacific Legal Group:	Lawyers for the First Respondent
Solicitor General:	Lawyers for the Second, Third & Fourth Respondents
Bradshaw:	Lawyers for the Fifth Respondent