Gary McHardy v Prosec Security and Communication Ltd Trading as Protect Security (2000) SC646

• Jurisdiction: Papua New Guinea
• Judge: Amet CJ, Jalina J, Kirriwom J
• Judgment Date: 30 June 2000
• Court: Supreme Court
• Judgement Number: SC646

Full Title: Gary McHardy v Prosec Security and Communication Ltd Trading as Protect Security (2000) SC646

Supreme Court: Amet CJ, Jalina J, Kirriwom J

Judgment Delivered: 30 June 2000

SC646

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA 39 OF 2000

BETWEEN:

GARY McHARDY

Applicant

AND:

PROSEC SECURITY AND COMMUNICATION LTD

trading as PROTECT SECURITY

Respondent

Waigani: Amet, CJ

Jalina & Kirriwom JJ

2000 : 21 & 30 June

Practice and Procedure — Judgements and orders — Stay pending appeal from the National Court — Supreme Court Act Section 19.

Application for Stay — Foreign tests or conditions — Too restrictive — Discretionary powers of the Court — Unlimited jurisdiction to do justice — Proper tests — Not exhaustive — Varying from case to case.

Interlocutory Judgement — Appeal from — Supreme Court Act Section 14 (3) — Grant or refusal of Injunction — Exception — No leave required — Section 14 (3)(ii).

Held: Application for stay refused.

Cases Cited

The following cases are cited in the judgement.

State v. Kapal [1987] PNGLR 302

PNG v. Gulf Provincial Government [1994] PNGLR 34

Commissioner for Corrective Institutions Services v. Daniel Mollen

Unreported Supreme Court Judgement No. SC 513

Post PNG Ltd v. Westpac Bank Limited (Unreported Supreme Court

Judgement No SC 608

Alexander v. Cambridge Credit Corp Ltd [1985] NSWLR 586

A Kandakasi, for the Applicant.

P Korowi, for the Respondent.

30 June 2000

BY THE COURT : This is an application made pursuant to Section 19 of the Supreme Court Act for an order staying the execution of the injunctive orders of the National Court made against the Applicant pending the hearing of his application for leave to appeal.

The Respondent commenced action OS No. 109 of 2000 in the National Court against the Applicant seeking to enforce a restraint of trade clause under a contract of employment between the parties. The Respondent then successfully applied for and obtained an interim order restraining the Applicant from continuing to be employed in similar business activities until determination of the proceedings.

Applicant's Submission

The Applicant has filed affidavit deposing that he would face financial hardship as a result of the injunctive order if it were not stayed. He deposed that he would have no financial means to support himself and his family without any form of employment.

The first ground advanced to support the application for stay therefore was financial hardship and difficulties the restraining order would place upon the Applicant. The second ground relied upon was the submission that there is a serious dispute as to the validity of the contract relied upon in the originating claim, pursuant to which the injunctive order was obtained. It was contended therefore that the Applicant had a very strong case on the merits in the National Court action. Thirdly, it was submitted that because the Applicant has filed an application for leave to appeal it was appropriate to stay execution of the injunctive order to maintain the status quo and avoid prejudice and hardship to him, because he depends upon that employment for his livelihood.

Respondent's Submissions

The Respondent first contended that the application is incompetent and misconceived because it says there was no formal appeal before this Court. It would not be proper for this Court to grant a stay when the application for leave has not yet been determined by this Court. Section 14 (3)(b)(ii) of the Supreme Court Act was relied upon to support the proposition that no appeal lies to the Supreme Court without the leave of the Court from an interlocutory judgment granting an injunction. It was submitted therefore that it is premature to grant an order staying enforcement of that order when the application for leave is yet to be determined.

Alternatively, it was submitted that there are no "special" or "exceptional circumstances" warranting a stay of the interim orders of the Court. The National Court decision of the State v Phillip Kapal [1987] PNGLR 302 was relied upon wherein the learned trial judge preferred to adhere to the test that an Applicant must show "special" or "exceptional circumstances" before a stay will be granted. It was contended that the Applicant had not deposed to any special or exceptional circumstances that warranted a grant of stay of the interim order of the National Court. The fact that the Applicant is effectively restrained from employment resulting in financial hardship, is not a special or exceptional circumstance. The balance of convenience did not warrant a grant of stay...