Joshua Kalinoe, Chief Secretary to Government and Gabriel Yer, Acting Secretary, Department of Finance and Simon Tosali, Secretary, Department of Treasury and The Independent State of Papua New Guinea v Paul Paraka, trading as Paul Paraka Lawyers andSCM NO 3 0F 2007; Hon Bire Kimisopa M, Minister for Justice and Winnie Kiap, Secretary, National Executive Council and The Independent State of Papua New Guinea v Paul Paraka, trading as Paul Paraka (2010) SC1024

• Jurisdiction: Papua New Guinea
• Judge: Salika DCJ, Lenalia & Cannings JJ
• Judgment Date: 30 April 2010
• Court: Supreme Court
• Citation: (2010) SC1024
• Docket Number: SCM NO 15 0F 2006
• Year: 2010
• Judgement Number: SC1024

Full Title: SCM NO 15 0F 2006; Joshua Kalinoe, Chief Secretary to Government and Gabriel Yer, Acting Secretary, Department of Finance and Simon Tosali, Secretary, Department of Treasury and The Independent State of Papua New Guinea v Paul Paraka, trading as Paul Paraka Lawyers and
SCM NO 3 0F 2007; Hon Bire Kimisopa M, Minister for Justice and Winnie Kiap, Secretary, National Executive Council and The Independent State of Papua New Guinea v Paul Paraka, trading as Paul Paraka (2010) SC1024

Supreme Court: Salika DCJ, Lenalia & Cannings JJ

Judgment Delivered: 30 April 2010

SC1024

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM NO 15 0F 2006

JOSHUA KALINOE, CHIEF SECRETARY TO GOVERNMENT

First Appellant

GABRIEL YER, ACTING SECRETARY,

DEPARTMENT OF FINANCE

Second Appellant

SIMON TOSALI, SECRETARY, DEPARTMENT OF TREASURY

Third Appellant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Appellant

V

PAUL PARAKA, TRADING AS PAUL PARAKA LAWYERS

Respondent

SCM NO 3 0F 2007

HON BIRE KIMISOPA MP, MINISTER FOR JUSTICE

First Appellant

WINNIE KIAP, SECRETARY, NATIONAL EXECUTIVE COUNCIL

Second Appellant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Appellant

V

PAUL PARAKA, TRADING AS PAUL PARAKA LAWYERS

Respondent

Waigani: Salika DCJ, Lenalia & Cannings JJ

2010: 29, 30 April

SUPREME COURT – jurisdiction – necessity for parties seeking orders from the Supreme Court to properly invoke jurisdiction of the Court

PRACTICE AND PROCEDURE – orders for a stay of proceedings – application for discharge of stay order – need for application to be made without undue delay

PRACTICE AND PROCEDURE – stay of proceedings – Supreme Court Act, Section 19 – whether an applicant for a stay of proceedings needs to give an undertaking as to damages – difference between a stay of proceedings and an injunction.

The respondent to two separate Supreme Court appeals applied for discharge or variation of a stay order granted by single Judges of the Supreme Court in each of those appeals. The effect of the stay order was in each case to put a stay on the National Court orders that were being appealed against, those orders in each case requiring the appellants to pay approximately K6 million to the respondent for legal fees allegedly owed to him by the State. The respondent argued before the Supreme Court (constituted by three Judges) that the stay orders were made in error as in each instance the single Judge of the Supreme Court had failed to insist on the appellants providing an undertaking as to damages; a stay order being the equivalent of an injunction and it being a part of the law of PNG that an undertaking as to damages is an essential prerequisite to the granting of an injunction.

Held:

(1) Any party seeking any order from the Supreme Court must clearly specify in its application or any other originating process the basis on which it seeks to invoke the jurisdiction of the Supreme Court.

(2) An applicant for an order to discharge or vary an existing order of the Supreme Court must make its application within a reasonable time after the order it seeks to have discharged or varied was made; and if there appears to have been an inordinate delay in making the application a very good explanation must be available to warrant the Court entertaining the application.

(3) An injunction and a stay order are conceptually different court orders; and whereas an undertaking as to damages is in most cases an essential prerequisite to the granting of an injunction, it is not so for the granting of a stay order.

(4) In this case, the respondent’s application for discharge or variation was vague and confusing and it followed that the Supreme Court’s jurisdiction was not properly invoked. The applications were inherently defective and the Court refused leave to remedy the defect. For this reason alone the applications were refused.

(5) Further, the applications were not made until more than two years after each stay order was made and there was no reasonable explanation for the undue delay. For this reason also the applications were refused.

(6) As to the merits of the applications, the respondent failed to persuade the Court that it should disturb the well-settled distinction between an injunction and a stay of proceedings. The Judges who granted the stay orders made no errors by not insisting on an undertaking as to damages.

(7) Both applications were accordingly dismissed, with costs.

Cases cited

The following cases are cited in the judgment:

Gary McHardy v Prosec Security and Communications Ltd, trading as Protect Security [2000] PNGLR 279

Isaac Lupari v Sir Michael Somare MP (2008) SC951

Peter Makeng v Timbers (PNG) Limited (2008) N3317

Vincent Kaupa v Simon Poraituk (2008) SC955

APPLICATIONS

These were two applications to set aside or vary stay orders, in separate appeal proceedings, that had been made by single Judges of the Supreme Court.

Counsel

SCM No 15 of 2006

P Mawa, for the first, second and fourth appellants

G Poole, for the third appellant

R Inua & P Othas, for the respondent

SCM No 3 of 2007

P Mawa, for the first, second and third appellants

R Inua & P Othas, for the respondent

30 April, 2010

1. BY THE COURT: We are hearing two separate applications in two separate Supreme Court proceedings, known as SCM (Supreme Court Motion) No 15 of 2006 and SCM No 3 of 2007. The applications are similar and the Supreme Court proceedings – and also the National Court proceedings – to which they relate are similar. So we are hearing the applications together.

2. In each case the application is by the respondent to a Supreme Court appeal: Paul Paraka, trading as Paul Paraka Lawyers. In each case the appellants are similar in that they are all senior public officials or the State. In SCM No 15 of 2006 the lead appellant is the then Chief Secretary to Government, Mr Joshua Kalinoe. In SCM No 3 of 2007 the lead appellant is the then Minister for Justice, Hon Bire Kimisopa MP.

3. In each case the appellants are appealing against orders of the National Court constituted by Hinchliffe J in late 2006 and early 2007 during a period when there was an ongoing dispute between the respondent and various public officials, including the appellants in both cases, concerning the briefing out of legal work of the State to private law firms. In particular there was disagreement about the amount of money owed by the State to the respondent’s firm, Paul Paraka Lawyers, for legal work it had provided to the State.

OS NO 829 OF 2006 AND SCM NO 15 OF 2006

4. In the National Court proceedings OS No 829 of 2006 Hinchliffe J granted leave on 17 November 2006 to the respondent, Mr Paraka, to apply for judicial review of the decision of the Chief Secretary to Government to cease payment of all legal fees to Paul Paraka Lawyers. On the same day, 17 November 2006, his Honour ordered that the State pay K6.499 million (approx) to Paul Paraka Lawyers by 1.30 pm that day; and on 22 November 2006 made a further order in regard to that payment (as it had not been paid by the time set by the Court).

5. The appellants, led by the Chief Secretary to Government, immediately appealed against the orders of 17 and 22 November 2006 and on 22 November 2006 Kapi CJ, sitting as a single Judge of the Supreme Court, ordered a stay of the National Court orders of 17 November 2006. The order of Kapi CJ of 22 November 2006 is one of the two orders that the respondent, Mr Paraka, is applying to have set aside or varied.

OS NO 876 OF 2006 AND SCM NO 3 OF 2007

6. In the National Court proceedings OS No 876 of 2006 Hinchliffe J granted leave on 14 December 2006 to the respondent, Mr Paraka, to apply for judicial review of the decision of the Minister for Justice to establish a departmental inquiry into the briefing out of legal work of the State to private law firms. On 2 March 2007, his Honour ordered that the State pay K6.438 million (approx) to Paul Paraka Lawyers by 3.30 pm that day.

7. The appellants, led by the Minister for Justice, the following day appealed against the order of 2 March 2007 and on 5 March 2007 Injia DCJ, as he then was, sitting as a single Judge of the Supreme Court, ordered a stay of the National Court orders of 2 March 2007. The order of Injia DCJ of 5 March 2007 is the second of the two orders that the respondent, Mr Paraka, is applying to have set aside or varied.

NATURE OF THE APPLICATIONS

8. The two applications that are before us for determination were filed on 11 August 2009 and are in the same terms. They each state:

Application will be made pursuant to Section 5 of the Supreme Court Act to a Judge of the Supreme Court …

For orders:

1. That the stay order [of 22 November 2006 or 5 March 2007, as the case may be] be set aside.

2. Alternatively that the appellants file and serve on the respondent … an undertaking as to damages.

3. That the undertaking as to damages have retrospective effect to [22 November 2006 or 5 March 2007, as the case may be].

9. At the hearing of these applications it was pointed out to the respondent’s counsel, Mr Inua, that the applications appeared to be confusing as they were cast in terms of an application to a single Judge of the Supreme Court, whereas in fact the application was being made to the ‘full’ Supreme Court – a three-Judge bench constituted in accordance with Section 161(2) of the Const...