SC2727
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCA 89 OF 2024

BETWEEN:
REX LAM PAKI
First Appellant

AND:
et al
Second and Third Appellants

AND:
PNG SUSTAINABLE DEVELOPMENT PROGRAM LIMITED
(Singapore UEN No. 200106898W)
First Respondent

AND
et al
Second to Tenth Respondents

WAIGANI: HARTSHORN J
13, 17 MARCH 2025

SUPREME COURT – practice and procedure - application for a stay

Cases cited
Canopus No. 16 Ltd v. Maisi Trust Co (2008) N3401 
Films Rover International Ltd v. Canon Films Sales Ltd [1987] 1WLR 60 at 680 
Gary McHardy v. Prosec Security [2000] PNGLR 279
Hadkinson v. Hadkinson [1952] 2 ALL ER 567 
Independent State of Papua New Guinea v. Kalaut (2021) SC2067
Mobil Oil New Guinea Ltd v. Yakainga Business Group (Inc) (2014) N6661
Ombudsman Commission v. Gabriel Yer (2009) SC1041 
Paraka v. Gauli (2020) SC2087 
Talisman Energy Niugini Ltd v. Bismark Maritime Ltd (2015) N6800 
William Duma v. James Puk (2019) SC1754
Yama Group of Companies Ltd v. PNG Power Ltd (2005) N2831 
Yap v. Tin Siew Tan [1987] PNGLR 227
Yap v. Tin Siew Tan [1987] PNGLR 227

Counsel
G. Manada for the appellants
S. Supro for the first respondent

1. HARTSHORN J:   This is a decision on a contested application for a stay of Orders of the Supreme Court of Singapore and a National Court judgment. The application is made by the appellants and is opposed by the first respondent.

Background
2. The appellants appeal a judgment of the National Court made on 20th June 2024 (HR decision).  The HR decision dismissed the National Court proceeding for failing to disclose a reasonable cause of action, frivolity, vexatiousness and for being an abuse of process.
3. The National Court proceeding had sought declarations that enforcement of a certain Singapore Judgment would be unlawful and entail a breach of the appellants’ human rights under the Constitution. Further, a declaration was sought that the Reciprocal Enforcement of Judgments Act 1976 is unconstitutional. 

The Application

4. The appellants seek a stay of certain Singapore Supreme Court Orders and/or the HR decision.  The Singapore Orders ordered amongst others, judgment against the First Appellant, Mr. Paki, for breach of fiduciary duties and that Mr. Paki is liable to the First Respondent, PNG Sustainable Development Program Limited in the sum of AUD$6.6 million and PGK1.7 million plus interest.

Consideration

5. The appellants first seek a stay of the Singapore Supreme Court orders of 4th March, 2020 per Justice Vinodh Coomaraswamy in HC/S 865 of 2018: PNG Sustainable Development Program Ltd v. Rex Lam Paki and 5 Others (Singapore Orders). The jurisdiction relied upon is s. 19 Supreme Court Act in conjunction with Order 13 Rule 1 and 14 Supreme Court Rules.

6. In answer to questions from the Court as to the authority or jurisdiction of the Court to stay Orders of an overseas Court, in this instance, Orders of the Supreme Court in Singapore, counsel for the applicants submitted that the Singapore Orders had been registered in Papua New Guinea and that this gave this Court the requisite authority or jurisdiction.  The orders registered in Papua New Guinea, however, are not stated in the application as being the orders which are sought to be stayed.  The Singapore Orders are the orders sought to be stayed.

7. The Court has not been referred to any jurisdiction which gives it the power to stay orders of the Supreme Court of Singapore and I am not satisfied that this Court has that power.  Consequently, the application for a stay of the Singapore Orders should be refused.

8. If the application for a stay of the Singapore Orders was not refused on the above basis, s. 19 Supreme Court Act, which provides this Court with the jurisdiction to grant a stay, does not give the jurisdiction to this Court to stay an order or proceedings, which are not being appealed. I refer to my judgment of Paraka v. Gauli (2020) SC2087 at [7] in this regard.

9. Here, the Singapore Orders are not being appealed.  What are being appealed are the orders of Cannings J dated 20th June 2024 – the HR decision.

10. Order 13 Rules 1 and 14 Supreme Court Rules which are relied upon are not relevant and do not give this Court the relevant power or jurisdiction.

11. Consequently, the application for a stay of the Singapore Orders is refused.

12. Secondly, the applicants seek and/or a stay of the Court orders of 20th June 2024, per Cannings J being appealed – the HR decision.

13. As referred to, application is made pursuant to s. 19 Supreme Court Act. 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.

14. 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.

15. I refer 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 Commission 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 ae 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 ae 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. Further, s. 19 does not impose any fetter on the discretion of the Court to grant a stay.
17. 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 Rules did not fetter the discretion of the Judge why should the Court do so?’’ 

18. I now consider some of the factors referred to in McHardy (supra):

a) leave to appeal is not required as the judgment appealed, the 	HR decision is final.

b) As to whether there has been any delay in making the stay application - a period of 7 months has elapsed since the HR Decision and about 6 months since this appeal was filed. The first respondent submits this is delay. The appellants submit that there is no delay as they did not anticipate that the Singapore Orders may be enforced until recently.  In respect of the HR Decision, I am satisfied that there is delay but not to the extent that it affects the decision whether to grant a stay.

c) As to whether the appellants have an arguable case, the submissions of the appellants and first respondent diverge.  In regard to this factor, whether the appellants have an arguable case, I do not consider this factor in detail and proceed for present purposes only, on the basis that the appellants do have an arguable case.  It is not be assumed however, that I have considered the merits or otherwise of this appeal in any way.

d) As to hardship, inconvenience or prejudice to a party, it is submitted by the appellants that they will suffer hardship, inconvenience or prejudice because enforcement of the Singapore Orders would involve the seizure of the appellants property in Papua New Guinea and the appellants interest in the property will be prejudiced.

e) The evidence of Mr. Paki is that “we have significant property interests in PNG and any early enforcement of the Singapore Orders will prejudice us when the appeal is pending before the Supreme Court.”

f) Mr. Paki also deposes that there are serious criminal investigations being conducted in Papua New Guinea and being contemplated in Australia and Singapore which amongst others, could have a direct hearing on the Singapore Orders.  This may lead to the Appellants being exonerated of any liability under the Singapore Orders, Mr. Paki deposes.

g) The first respondent submits that the appellants’ right of appeal in the Singapore Courts has been exhausted and there is evidence of the unsuccessful attempts to overturn or stay the Singapore Orders. Further, the appellants have already applied unsuccessfully to set aside the Singapore Orders in the Papua New Guinea National Court and have been unsuccessful in appealing or reviewing the relevant National Court decision.

19. The first respondent submits that it stands to suffer hardship, inconvenience or prejudice if a stay is granted of the HR decision as it would be deprived of the fruits of the HR decision and would face further financial hardship in defending an unmeritorious appeal.

20. The submission and evidence of the appellants are concerned with hardship, inconvenience and prejudice if the Singapore Orders are not stayed, not if the HR decision is not stayed.  This is explained by the Court being informed that in the HR decision there was an agreed stay order in force of the enforcement of the Singapore Orders. This stay order ceased once the HR decision, now appealed, was delivered.  If the HR decision is stayed, the agreed stay order in the HR proceeding would become effective again.

21. In answer to questions from the Court, counsel for the appellants agreed that the appellants would not be prejudiced in their prosecution of this appeal, if the stay sought was not granted and that they would be able to continue with their proposed appeal.

22. As to the criminal investigations referred to by Mr. Paki, it is not evident how any successful criminal prosecutions would lead to the Singapore Orders being discharged or set aside given the unsuccessful attempts which have already occurred to stay or set aside. In addition, any further rights in that regard have been exhausted.

23. As to the likelihood of enforcement of the Singapore Orders against property of the appellants, it is worthy of note in my view, that the Singapore Orders were made on 4th March 2020.  This is a significant period of time that has elapsed which may be categorised as significant delay.  Notwithstanding that various attempts have been made to either stay or set aside the Singapore Orders, Mr. Paki and the other appellants have known of the Singapore Orders for over five years.

24. Mr. Paki has known of the obligation against him to comply with the Singapore Orders.  This involves arranging his affairs to be able to comply with the Singapore Orders.

25. Mr. Paki has had that time of over five years to arrange his affairs to be able to comply with the Singapore Orders.  As was said in Hadkinson v. Hadkinson [1952] 2 ALL ER 567 at 569 and as cited in Yap v. Tin Siew Tan [1987] PNGLR 227:

“It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a court of competent jurisdiction to obey it until that order is discharged” …. even where the person objected by an order believes it to be irregular or even void.”

26. The Singapore Orders are not a surprise to Mr. Paki.  He has had over five years to arrange his affairs so that enforcement of the Singapore Orders would not cause him hardship, inconvenience and prejudice.  Further, the appellants have given an undertaking as to damages.

27. Notwithstanding that in written submissions of the appellants reference is made to costs as opposed to damages and notwithstanding that the first respondent submits that the undertaking as to damages is worthless, the Court is entitled to form the view that the appellants would not knowingly give an  undertaking as to damages to this Court which they have, which they could not honour.  Consequently, the appellants should be viewed by the Court as having the financial resources to at least pay damages.

28. Further, if the Singapore Orders are enforced, any property taken by way of enforcement would be able to quantified.  If the appellants are successful in their appeal, they would have recourse against amongst others, the first respondent to recover the value of what was taken in enforcement.

29. It is to be noted that in the evidence relied upon for the stay, there is no evidence by the appellants that damages would not be an adequate remedy.

30. Given the above, I am satisfied that although some inconvenience may be caused to the appellants if the HR decision is not stayed, the appellants would not be prejudiced in prosecuting their appeal, they have the financial ability to pay at least damages, that damages would be an adequate remedy, and as such it has not been made out that they would suffer any or any appreciable hardship.

31. In regard to hardship, inconvenience or prejudice to be suffered by the first respondent if a stay is granted, the first respondent would suffer delay in recovery but would be compensated if successful on the appeal with interest and costs orders.

32. As 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.”

33. The principles contained within this passage have 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; Mobil Oil New Guinea Ltd v. Yakainga Business Group (Inc) (2014) N6661 and Independent State of Papua New Guinea v. Kalaut (2021) SC2067.

34. 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 the appellants are not successful in their appeal.

35. In the instance, that the stay is not necessary to prevent prejudice to the appellants prosecuting their appeal, that the Singapore Orders were made over five years ago and that the appellants have had that time to arrange their affairs, that an undertaking as to damages has been given by the appellants and so the appellants have financial resources, that damages are an adequate remedy for the appellants and that the respondents are entitled to the fruits of their judgment, the balance of convenience favours and it is in the interests of justice that the stay sought of the HR decision should not be granted.

36. Given the above, it is not necessary to consider the other submissions of counsel.

ORDERS

a) The application for stay of the appellant filed 27th January 2025 is dismissed.

b) The costs of and incidental to the said application shall be paid by the appellants to the first respondent.

________________________________________________________________
Lawyers for the appellants:	          Greg Manda Lawyers
Lawyers for the first respondent:	Dentons Lawyers