Samson Jubi and Three (3) Others v Susan Edna Fraser and Two (2) Others (2004) SC735

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ
• Judgment Date: 28 January 2004
• Court: Supreme Court
• Citation: (2004) SC735
• Docket Number: SCA No 1 of 2004
• Year: 2004
• Judgement Number: SC735

Full Title: SCA No 1 of 2004; Samson Jubi and Three (3) Others v Susan Edna Fraser and Two (2) Others (2004) SC735

Supreme Court: Injia DCJ

Judgment Delivered: 28 January 2004

1 Supreme Court Appeals—Stay of interim injuctive orders—Four Fishing vessels—Principal factors—Arguable grounds of appeal, balance of convinience and maintenance of status quo, damages as an adequate remedy, considered—Application refused.

2 Gary Mchardy v Prosec Security and Communication Ltd (2000) SC646, Golobadana No 35 Ltd v Bank of South Pacific Ltd (2002) N2309, Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers and Seamen's Union (1982) N393, AGK Pacific (NG) Ltd v Anderson (2000) N2062, Markscal Ltd v MRDC [1996] PNGLR 419 referred to

___________________________

SC735

PAPUA NEW GUINEA

IN THE SUPREME COURT OF JUSTICE

SCA. No. 1 of 2004

SAMSON JUBI & THREE (3) OTHERS

- Appellants

vs

SUSAN EDNA FRASER & TWO (2) OTHERS

- Respondents

WAIGANI: Injia, DCJ

2004: 15th & 28th January

Supreme Court Appeals – Stay of interim injuctive orders – Four Fishing vessels – Principal factors – Arguable grounds of appeal, balance of convinience and maintenance of status quo, damages as an adequate remedy, considered – Application refused.

Counsel :

T. Nonggorr for the Appellant

B. Andrew for the Respondent

RULING

28th January, 2004

INJIA, DCJ: The Appellants apply for a stay of the interlocutory judgment of Davani, J of 2nd January 2004, pending the hearing of the appeal. Her Honour granted interim injunctions in respect of four fishing vessels, the issue of ownership of which was the subject of proceedings commenced by the Respondents in WS No. 1809 of 2003.

The facts in short are that on 19 Novemebr, 2002 the parties entered into written Contracts of Sale in respect of four(4) fishing vessels supposedly by the Respondents. The vessels were registered in Australia supposedly under the respondents’s names. The appellants agreed to pay fixed prices for the vessels. In compliance with the agreements, when the respondents delivered the vessels at Daru, the Appellants failed to complete the contracts by paying the purchase price . Subsequenlty, the parties entered into some mutual arrangements to conduct business and commence fishing operations under revenue –sharing arrangements, the precise terms of which are in dispute. The Appellants deregistered the Australian registration of the four (4) vessels and registered them in Papua New Guinea under the Appellants’ names, under different names. The transfer of ownership through registration is in issue. Fishing licences were also obtained from PNG authorties. Fish caught in PNG waters was taken to Cairns and exported by the respondents and revenue received by the Respondents. Disagreeemnts occurred between the parties as the verification of fish caught, revenue earned, distribution of revenue between them and tax liabilities and other things. This resulted in the Appellants reporting the fishing activities of the Respondents to PNG authorities . On 23 October, 2003 PNG authorities seized the vessels and took them to Port Moresby where the business operations underwent investigations. The vessels were later released to the Appellants. On 13 November, 2003, the Appellants filed proceeding in the Supreme Court of Cairns seeking declaratory relief and damages. The Respondents filed their own proceeding s at the Waigani National Court seeking declaratory relief and damages. Jutice Davani granted interim injuctive orders in favour of the respondents These interim orders are now the subject of these appeal proceedings.

The interim injunctive orders appealed from are as follows:

1. That the Defendants, their servants and or agents are to return the fishing vessels Seahawk, registered in PNG as Mundi 1, registered no. 000944, Freedom, registered as Liberty, registered no. 000946, Prospector, registered no. 00947, Interpid, registered as Riverlea Star, registered no. 000945 to their original anchorage in Port Moresby Harbour until further order of this Honourable Court.

2. That the Defendants, their servants and or agents are restrained from any disposition, removal or dealings with the aforementioned vessels.

3. That the vessels shall in the interim be manned and maintained by a neutral person appointed by the Registrar of the National Court.

4. The Registrar of the National Court shall supervise the day to day upkeep and maintenance of the vessels together with the neutral person that he will appoint.

5. That the balance, if any, of the proceeds of the sale of the cargo which was on board the said vessels upon seizure on 23 October, 2003 and now sold at the direction of the PNG Fisheries Authority, after completion of the Authority’s enquiries and or imposition of any penalties for breaches of the Fisheries Act, be paid into the National Court.

An appeal against the decision was filed on 8th January 2004. Pursuant to s.14(3)(b)(ii) of the Supreme Court Act, leave is not required for appeals against an interlocutory judgment in respect of the grant or refusal of an injunction: Gary McHardy v Prosec Security and Communications Ltd trading as Protect Security, unpublished Supreme Court Judgment SC 646 dated 30 June, 2000.

The Notice of Motion before me seeks the following orders:

1. That the judgment and orders of Judge Davani on 2 January 2004 be stayed pending the hearing of the appeal in this matter.

2. That Mundi no. 1 Limited re-commence fishing operations with the vessels.

3. That a person nominated by the Maritime Division of the Transport department be present on the fishing runs to monitor the operations.

4. That the vessels shall be skippered by a person appointed by agreement of all parties, and such skipper shall utilize existing crew.

5. That the catch from the fishing to be sold to existing and any new overseas and or local buyers and the proceeds from those exports and local sales be deposited into the Supreme Court Trust Account, to be supervised by the Registrar.

6. That the manager of Mundi No. 1 Limited be allowed to withdraw reasonable amounts from the proceeds in trust for operational and maintenance expenses of the vessels such as crew wages, operational costs of and incidental connected to the running, repair and maintenance of the vessels, staff of Mundi No. 1 Limited and sale of the catch.

7. All parties shall be furnished with updates of the fishing operations and associated and consequential activities of the vessels on a fortnightly basis and the accounts audited on a monthly basis.

The principles on grant of stay are set out in McHardy’s case. The grant or refusal of stay is discretionary and it is exercised on proper principles and reasonably according to the natural justice to all parties. The relevant factors and circumstance to be taken into account include the basic premise that the judgment creditor is entitled to enjoy the benefit of the judgment. An applicant must show the following:

a) Whether leave to appeal is required and whether it has been obtained.

b) Whether there has been any 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) 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...