Dekenai Construction Ltd and Lucas Dekena MP, Minister for Lands & Physical Planning and Pepi Kimas,Secretary for Department of Lands & Physical Planning and The Independent State of Papua New Guinea v National Airports Corporation Ltd (2015) SC1444

• Jurisdiction: Papua New Guinea
• Judge: Makail J
• Judgment Date: 14 July 2015
• Citation: (2015) SC1444
• Docket Number: SCA NO. 53 of 2011
• Court: Supreme Court
• Year: 2015
• Judgement Number: SC1444

Full Title: SCA NO. 53 of 2011; Dekenai Construction Ltd and Lucas Dekena MP, Minister for Lands & Physical Planning and Pepi Kimas,Secretary for Department of Lands & Physical Planning and The Independent State of Papua New Guinea v National Airports Corporation Ltd (2015) SC1444

Supreme Court: Makail J

Judgment Delivered: 14 July 2015

SC1444

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 53 OF 2011

BETWEEN

DEKENAI CONSTRUCTION LTD

First Appellant

AND

LUCAS DEKENA, MP

MINISTER FOR LANDS & PHYSICAL PLANNING

Second Appellant

AND

PEPI KIMAS

SECRETARY FOR DEPARTMENT OF LANDS

& PHYSICAL PLANNING

Third Appellant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Appellant

AND

NATIONAL AIRPORTS CORPORATION LTD

Respondent

Waigani: Makail, J

2015: 08th & 14th July

SUPREME COURT – PRACTICE & PROCEDURE – Application for stay – Stay of National Court proceeding – Proposed appeal against grant of leave to apply for judicial review – Supreme Court Act – Section 19.

Cases cited:

McHardy v. Prosec. Security & Communications Ltd [2000] PNGLR 279

Jubi v. Frazer (2004) SC735

Kilip v. Mosley (2005) SC784

Willie Edo v. Margaret Elias (2008) SC1160

Pruaitch v. Manek (2011) SC1134

Bishop Wenge v. Mitio (2013) SC1234

State v. Transferees (2014) SC1348

Pruaitch v. Nelson (2014) SC1349

JST Limited v. Arkhefield (2014) SC1352

Hon. Ano Pala & Hon. Prime Minister Peter O’Neill v. Sam Koim, Chairman of the Task Force Team Sweep & Ors (2015) SC1436

Counsel:

Mr. I. Molloy with Mr. D. Mel, for Appellants

Mr. D. Levy, for Respondent

RULING ON APPLICATION FOR STAY

14th July 2015

1. MAKAIL J: This is an application made pursuant to Section 19 of the Supreme Court Act to stay the National Court proceeding OS (JR) No 430 of 2010 between National Airports Corporation Limited v. Lucas Dekena, Minister for Lands and Physical Planning & Ors pending the hearing and determination of the First Appellant’s application for leave to appeal or further order.

2. The Respondent instituted proceeding in the National Court and sought leave to apply for judicial review of two decisions:

(a) the decision of 09th April 2010 published in the National Gazette on 13th April 2010 to revoke a previous declaration of land as aerodrome land made and gazetted in June 1980 and a new declaration made in 2010; and

(b) the decision of 12th November 2009 to grant an Urban Development Lease (“UDL”) over Portion 2690 to the First Appellant.

3. On 03rd May 2011 the National Court granted the Respondent leave to apply for judicial review. The National Court held, amongst other things, the Respondent had an arguable case. The Appellants by application filed on 25th May 2011 sought leave to appeal against that decision. On 30th May 2011 they filed an application for stay of the National Court proceeding. They did not move the application until about a week ago.

4. The reasons for not progressing the application appear from the affidavit of Dane Mel filed on 23rd June 2015. Firstly, in July 2011, the application was adjourned several times. Secondly, the First Appellant filed an application in the National Court to dismiss the proceeding for want of prosecution. The parties agreed not to progress the Supreme Court proceeding pending the decision in the National Court on the application to dismiss. That decision was not given until 08th October 2012. The application to dismiss was refused.

5. Meantime, on 09th June 2011, the Respondent had filed an objection to competency of the leave application. That objection was not heard until March 2013 and the decision was not given until March 2015. The decision was, the objection was dismissed. There had been no stay of the National Court proceeding and it had not been progressed to trial since the grant of leave in May 2011 and indeed since the decision by the National Court refusing to dismiss the National Court proceeding on 08th October 2012. In June 2015 the Respondent by Kawat Lawyers, advised that the matter was returning to the National Court for directions hearing.

6. The Respondent submitted there has been a long delay in prosecuting the application. It is a period of 4 years and the delay has not been satisfactorily explained. For example, after the Supreme Court dismissed the objection to competency on 19th May 2015 the Appellants did not take steps to prosecute the application. It was not until the advice from the lawyers that the matter was returning for directions hearing that the Appellants moved to get the application heard. This is not a satisfactory explanation.

7. The principles governing a stay were considered by the Supreme Court in McHardy v. Prosec. Security & Communications Ltd [2000] PNGLR 279 SC646 which has been adopted and applied in many subsequent cases: for example Jubi v Frazer (2004) SC735; Kilip v. Mosley (2005) SC784; Willie Edo v. Margaret Elias (2008) SC 1160; Pruaitch v. Manek (2011) SC1134; Bishop Wenge v. Mitio (2013) SC1234; State v. Transferees (2014) SC1348, Pruaitch v. Nelson (2014) SC1349 and JST Limited v. Arkhefield (2014) SC1352. These authorities establish there are no hard and fast pre-conditions to the grant of a stay. There is no need to show “exceptional” or “special” circumstances. The relevant principles are:

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 proceeding sought to be stayed.

e) The financial ability of the applicant.

f) Preliminary assessment about whether the applications have an arguable case on the proposed appeal.

g) Whether on the face of the record or the judgment there is apparent error of law or procedure.

h) The overall interest of justice.

i) The balance of convenience

j) Whether damages would be sufficient remedy.

8. The delay has been satisfactorily explained. There were interlocutory applications pending in both Courts and both sides were responsible for bringing these applications which delayed the prosecution for stay. There was also a time where both sides agreed not to progress the Supreme Court proceeding pending the decision of the National Court on the application by the Appellants to dismiss the National Court proceeding. In effect, both sides contributed one way or the other to the delay. That said, as the Respondent had pointed out, the Appellants have not explained why they have not taken steps to prosecute the application between 19th May 2015 and last week. While the explanation has not been forthcoming, it is less than two months of delay and it can be excused.

9. What is relevant and significant though is this: the Appellants claimed they have a strong case. The dispute concerns land near Jacksons International Airport in Port Moresby. It is located at the north-western end of the runway. According to the affidavit of Jim Fallon filed on 30th May 2011, on 12th November 2009 a decision was made, under the Land Act 1996, to grant the UDL over land described as Portion 2690, to the First Appellant. The First Appellant has proceeded to develop the land. It was soon discovered that an apparent mistake had been made. Portion 2690 was included in a 1980 a declaration made under Section 5A of the then Land Act that an area of land in Port Moresby be an aerodrome. The area included in the declaration was vast and included, for example, the Six Mile Police Station and Six Mile Clinic. Under Section 54 of the Land Act 1996, land the subject of such a declaration may only be dealt with under the Aerodrome Business Concession Act Ch No. 354.

10. When this “mistake” was recognised, two steps were taken. First, a new declaration was made in 2010 which varied the earlier declaration so as to exclude inter alia Portion 2690. Secondly, the UDL, issued to the First Appellant in 2009 while Portion 2690 was still within the declaration, was surrendered and a fresh UDL was issued dated 08th February 2011.

11. The Respondent is challenging the variation to the declaration made in 2010. The claim is that it was an abuse of process and not made for any good reason. The Appellant, however, says that there is no basis for saying that. Secondly, the Respondent is challenging the grant made to the First Appellant in 2009, when Portion 2690 was subject to a declaration. However, the challenge is misconceived. The First Appellant says it does not derive its title from the 2009 grant. It surrendered the 2009 lease when the mistake was discovered, and was granted a new UDL on 08th February 2011. It says the Respondent is not challenging that title, thus the National Court proceeding is misconceived.

12. In demonstrating that there is an apparent error of law on the face of the record, the Appellants submitted the learned primary judge did not deal with any of the issues even on a preliminary or prima facie basis. They submitted his Honour misunderstood the dispute. In finding that there is an arguable case, his Honour did not refer at all to (a) the variation...