SC2663
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 11 OF 2022

BETWEEN:
THOMAS SEROWA
First Appellant

AND:
T SEROWA LIMITED trading as T Serowa & Co
Second Appellant

AND:
PAULUS M DOWA trading as PAULUS M DOWA LAWYERS
First Respondent

AND:
BANK OF SOUTH PACIFIC LIMITED (As amalgamated entity from formerly PNGBC Ltd, Nambawan Finance Limited, and Bank of South Pacific Limited)
Second Respondent

Waigani: Mogish J, Yagi J and Purdon-Sully J
2024: 14th & 29th November

SUPREME COURT – practice and procedure – application for stay of order by a single Judge of the Supreme Court – application to vary or set aside orders of a single Judge – Order 11 Rules 25 and 26 – whether a stay order should be granted.

Cases Cited:
Gary McHardy v Prosec & Communication Ltd trading as Protect Security (2000) SC646
Application by Douglas Tomuriesa, MP (2024) SC2611
State v Kalaut (2002) SC2246

Counsel:
Mr T. Serowa, Applicant In Person
Mr C. Joseph, for the Second Respondent

DECISION

29th November 2024

1.	BY THE COURT: This is a contested application to stay the orders of David J sitting as a single Judge of the Supreme Court which orders were made on 26 October 2024.

Background Facts

2.	The appellants filed a notice of appeal on 8 February 2022 against a judgment of the National Court given on 4 January 2022. The second respondent then filed on 23 February 2022 an objection to the competency of the appeal. This action triggered a series of filings by the appellants and the second respondent. The filings involved the appellants filing a supplementary notice of appeal and two further amended supplementary notices of appeal. The second respondent, in response, filed objection to competency in respect to all subsequent filings by the appellants.

3.	On 5 October 2022 the matter went before Batari J for directions hearing. The second respondent successfully moved, and the Court granted an adjournment of the hearing with orders for cost. The Court ordered, among others, that the first appellant pay the second respondent’s cost of the previous objections to competency on indemnity basis. 

4.	The second respondent subsequently lodged an application for taxation of its bill of cost pursuant to the orders of 5 October 2022. The first appellant then filed his objections to the itemised costs submitted by the second respondent. On 28 June 2024 the Taxing Officer issued a written decision on the cost wherein the bill of cost lodged by the second respondent was allowed in full in the sum of K179,118.00. Consequently, the second respondent filed for and was issued a certificate of taxation on 11 July 2024.

5.	The appellants were aggrieved by the decision of the Taxing Officer and therefore applied for leave to review the decision. The application was filed on 24 July 2024. On 5 August 2024 the second respondent filed an objection to the competency of the leave application filed by the appellants.

6.	The objection to competency was heard by David J sitting as a single Judge of the Supreme Court and a ruling was delivered by his Honour on 26 October 2024. His Honour upheld the objection and dismissed the leave application essentially because inappropriate form was used and that the procedure adopted by the appellants was fundamentally flawed. The orders made by David J are as follows:

“1.	The Second Respondent’s objection to competency moved pursuant to the Notice of Objection to Competency filed on 5 August 2024 is upheld.

2.	The Applicant’s “Notice of Motion Application for Leave to Review Costs” filed on 24 July 2024 is dismissed.

3.	The Applicant shall bear the Second Respondent’s cost of and incidental to the Applicant’s “Notice of Motion Application for Leave to Review Costs” and the Second Respondent’s Notice of Objection to Competency filed on 5 August 2024 which shall be taxed if not otherwise agreed.

4.	Time for the entry of these orders is abridged.”

7.	The appellants now seek to stay the orders made by David J. 

Application to Vary or Set aside

8.	Following the ruling on 26 October 2024 by David J the appellants filed an application to vary or set aside the orders of David J. Hence the application is by way of a Notice of Motion filed on 5 November 2024 and is made pursuant to Order 3 Rule 2(a) and (b); Order 11 Rules 25 and 26 of the Supreme Court Rules, s. 5(1)(a) and (b), (2) and (3) of the Supreme Court Act; and s. 59 of the Constitution. The reliefs sought in that application is expressed in these terms:

1.	Pursuant to Order 3 Rule 2(a)(b) and Order 11 Rules 25 and 26 of the Supreme Court Amended Rules 2022, Section 5(1)(a)(b), (2), & (3) of the Supreme Court Act, and Section 59 of the Constitution the Court vary or set aside orders of the Single bench made on 26 October 2024.

2.	Consequential to varying or setting aside the orders of 26 October 2024, a further order that the Applicant Appellant’ s Leave Application to review taxed costs filed on 24/07/24 be proceeded to be given an hearing date.

3.	Cost of the application and all incidentals therein on indemnity basis shall be paid by the 2nd Respondent and to be taxed if not agreed.

4.	Any other orders the Court deems fits.	

5.	Time abridgement.

Application to Stay

9.	In the interim, the appellants are seeking to stay the orders of 26 October 2024 and therefore filed on 06 November 2024 an application to stay. The application adopts Form 4 of the Supreme Court Rules and is expressed in these terms:

“1.	For Nature of Application for orders:

(a)	Pursuant to Order 3 Rule 2(a)(b) and Order 13 Rule 14(1) of the Supreme Court Amended Rules 2022, Sections 5(1)(a)(b), (2), & (3) and 19 of the Supreme Court Act, and Sections 59 and 185 of the Constitution the Court stay the Single Bench Orders of 26 October 2024 and further stay the 2nd Respondent’s application filed on 28 October 2024 to enter judgment on taxed costs fixed for 14 November 2024.”

Submission by the Appellants

10.	The appellants rely on the principles enunciated in Gary McHardy v Prosec Security and Communication trading as Protect Security (2000) SC646 and submit that a stay order should be granted for the following reasons:

•	The requirement for leave to appeal is not a relevant consideration because an application to review has been filed together with a supporting affidavit within 21 days as required by Order 11 Rule 25 of the Supreme Court Rules.

•	The application to stay the orders of 26 October 2024 had been made promptly.

•	A stay order would not cause any prejudice, hardship or inconvenience to the second respondent. To the contrary, it is the appellants whose rights and interest that will be prejudiced in terms of delay.

•	The nature of the order sought to be stayed is such that the certificate of taxed cost is based on improper grounds and otherwise the appellants were denied the right to be heard under s. 59 of the Constitution.

•	The requirement for the appellants to give undertaking as to damages is a irrelevant consideration.

•	There are 14 arguable grounds for the proposed application under Order 11 Rules 25 and 26 of the Supreme Court Rules, among others, include the denial of the right to be heard on their Notice of Motion seeking leave to review the taxed cost and moreover the inconsistency in the terms of the order for cost made on 5 October 2022.

•	An error of law is apparent on the face of the record in terms of the denial of the right to be heard in respect to the application for leave to review.

•	The overall interest of justice favours the grant of stay order to prevent the Court and its officers from acting beyond their powers.

•	The balance of convenience favours the grant of stay order as the second respondent suffered or will suffer injustice.

•	The question of whether damages is an adequate remedy is irrelevant given that the leave application was not determined on its merit but on competency grounds, thereby denying the appellants the right to be heard on the merit of the leave application.

Submission by the Second Respondent

11.	It was submitted on behalf of the second respondent that the application for stay should be dismissed for reasons that:

•	The appellants do not have an arguable case on the basis that the application to vary or set aside order of 26 October 2024 is premised on Order 11 Rules 25 and 26 of the Supreme Court Rules.

•	The application under Order 11 Rules 25 and 26 of the Supreme Court Rules is incompetent because, among others, it is not seeking the same orders as sought in the hearing before David J.

•	The decision of David J was correct in law and practice. The assertion by the appellants of flaw in terms of “procedural fairness and breach of natural justice” is misconceived.

•	The stay application is not pursued in the interest of justice and otherwise it only causes delay in bringing the substantive appeal proceeding to finality in an expeditious manner.

•	The second respondent is entitled to enjoy the fruits of the order made on 26 October 2024 in terms of the certified taxed cost.

Legal principles on application for stay

12.	The principles for a grant of a stay order are now settled in Garry McHardy (supra). It is trite, and we accept, that case sets out a number of considerations that a Court may take into account in determining whether or not a stay should be granted.  These considerations include:
 
(a)    The Court must start from the basic premise that the respondent is 	entitled to the fruits of the judgment.
(b)    Whether leave to appeal is required and whether it has been obtained.
(c)    Whether there has been delay in making the application.
(d)    The nature of the judgment sought to be stayed.
(e)    Whether on the face of the record of the judgment there may be an 		apparent error of law or procedure.
(f)    Preliminary assessment about whether the applicant has an arguable 		case on the proposed appeal.
(g)    Possible hardship, inconvenience or prejudice to either party.
(h)    The financial ability of the applicant.
(i)    Balance of convenience.
(j) Whether damages would be sufficient remedy.
(k)   The overall interest of justice.

Considerations and Conclusion

13.	The appellants are seeking a grant of stay and they rely on the Supreme Court case of Gary McHardy (supra) which states that the grant of stay is discretionary and should be exercised on proper principles and on good grounds. 

14.	It is abundantly obvious that the appellants are aggrieved by a decision of a single Judge of the Supreme Court. Therefore, in pursuit of their grievance, the appellants have invoked the procedure under Order 11 Rules 25 and 26 of the Supreme Court Rules as their primary right.

15.	In terms of the stay application, we are of the opinion that Order 3 Rule 2(a) and (b) of the Supreme Court Rules is neither relevant or applicable provisions that confers jurisdiction on the Supreme Court based on the facts and circumstances of the present case. These provisions of the Rules are applicable where “original jurisdiction” is being invoked and continued in the proceeding. In this case, the appellants have invoked an “interlocutory jurisdiction” under Order 11 Rules 25 and 26 of the Supreme Court Rules. The legal basis of the application, with respect, is misconceived.

16.	As to Order 13 Rule 14(1) of the Supreme Court Rules, in our view, this provision also does not confer jurisdiction. Rather it provides for the procedure in initiating an urgent application. It is inapplicable in the circumstances of the case. Again, this is being misconceived by the appellants.

17.	With regards to s. 5(1)(a)(b), (2) and (3) of the Supreme Court Act, it is clear on a combined reading of the provisions that jurisdiction is conferred on a single Judge of the Supreme Court and not on a Full Court. Again, the appellants have misconceived the relevancy and utility of the provision.

18.	Section 19 of the Supreme Court Act is obviously also inapplicable because it does not confer jurisdiction on the Court. It is merely a statement of the law that an appeal or application for leave to appeal do not automatically operate as a stay of proceeding in the Court below. It simply means that a separate application needs to be pursued before a stay order is made.

19.	Without expressing a determinative view on the merit of the Notice of Motion filed on 05 November 2024, what is glaring, is that orders claimed in the motion are not the same as orders claimed in the application determined by David J on 26 October 2024. The orders sought before David J were:

“ ........... Leave be granted to the Appellants to review the Certificate of Taxation issued on 11 July 2024 and the ex parte Taxation Decision made on 28 July 2024, and also for the Court to exercise its inherent powers in a de novo hearing for the amount certified at K179,118.00.”

20.	This Court is fully cognizance of a unanimous opinion of the Full Court (David J, Yagi J, Murray J, Kangwia J and Polume-Kiele J) pronounced recently on 31 July 2024 in Application by Douglas Tomuriesa, MP (2024) SC2611 where the Court held, among others, that a notice of motion filed pursuant to Order 11 Rule 25 of the Supreme Court Rules, the motion must, as required by Rule 26, seek the same orders as sought before the single Judge. That being the case, it follows that the Court does not have jurisdiction to hear an application that fails to comply with the mandatory requirements of the Supreme Court Rules: State v Kalaut (2002) SC2246.

21.	In our respectful opinion given that jurisdiction of the Court has not been correctly invoked by the appellants is fatal to the appellants cause. All other considerations under the Gary McHardy (supra) principle are trivial, untenable and irrelevant. They may be relevant considerations only where the jurisdiction of the Court is properly invoked. In other words, there is no discretion to be exercised because there is neither jurisdiction conferred on the Supreme Court, nor a legal right established by the appellants.

22.	Accordingly, we refuse the appellants application to stay the orders of David J made on 26 October 2024 with cost.

Orders

23.	The orders of the Court are:
	
1.	The application is refused.

2.	The appellants shall pay the second respondent’s cost on party-party basis, if not agreed, to be taxed.

________________________________________________________________
Thomas Serowa in Person
Ashurst PNG Lawyers: Lawyers for the Second Respondent