OS. NO. 505 of 2012; Application for leave to apply for Judicial Review pursuant to Order 12 (1) and Order 16 (3) of the National Court Rules; Michael James for and on behalf of himself and 24 Others Students of Papua New Guinea University of Natural Resources & Environment (No.2) v Joachim Pitala, Chairman Students Disciplinary Committee and Professor Philip Siaguru, in his capacity as the Vice Chancellor of Papua New Guinea University of Natural Resources and Environment and The University of Natural Resources And Envoronment (2012) N4822

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 21 September 2012
• Court: National Court
• Citation: (2012) N4822
• Year: 2012
• Judgement Number: N4822

Full Title: OS. NO. 505 of 2012; Application for leave to apply for Judicial Review pursuant to Order 12 (1) and Order 16 (3) of the National Court Rules; Michael James for and on behalf of himself and 24 Others Students of Papua New Guinea University of Natural Resources & Environment (No.2) v Joachim Pitala, Chairman Students Disciplinary Committee and Professor Philip Siaguru, in his capacity as the Vice Chancellor of Papua New Guinea University of Natural Resources and Environment and The University of Natural Resources And Envoronment (2012) N4822

National Court: Lenalia J

Judgment Delivered: 21 September 2012

N4822

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 505 OF 2012

APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL

REVIEW PURSUANT TO ORDER 12 (1) AND ORDER 16 (3) OF THE

NATIONAL COURT RULES

BETWEEN:

MICHAEL JAMES for and on behalf of himself and 24 Others Students of PAPUA NEW GUINEA UNIVERSITY OF NATURAL RESOURCES & ENVIRONMENT (N0.2)

Applicant/Plaintiffs

AND:

JOACHIM PITALA, CHAIRMAN STUDENTS DISCIPLINARY COMMITTEE

First Defendant

AND:

PROFESSOR PHILIP SIAGURU, in his capacity as the VICE CHANCELLOR OF PAPUA NEW GUINEA UNIVERSITY OF NATURAL RESOURCES AND ENVIRONMENT

Second Defendant

AND:

THE UNIVERSITY OF NATURAL RESOURCES AND ENVORONMENT

Third Defendant

Kokopo: Lenalia J

2012: 14th & 21st September

JUDICIAL REVIEW – Application for stay – Injunctive relief sought – For the Court to stay suspension orders by the Disciplinary Committee which decision is now awaiting judicial review – Application for stay of proceedings following grant of leave to seek judicial review – National Court Rules, Order 16, Rule 3(8) – principles to apply when determining whether to grant a stay of proceedings.

PRACTICE & PROCEDURE – Would a stay or injunctive order preserve the status-quo and would it serve the purpose intended by plaintiffs since the Judicial Review has not been decided? – An Application for stay is not appropriate in this instance – Application refused.

Cases cited.

Robinson-v-National Airlines Commission [1983] PNGLR 476

Kekedo v Burns Philp (PNG) Ltd & Others [1988-89] PNGLR 122

Ila Geno and Others-v-Independent State of Papua New Guinea [1993] PNGLR 22

PNG-v-Gulf Provincial Government [1994] PNGLR 34

Brigadier General Jerry Singorok-v-State (1997) N1590

PNG-v- Daniel Mollen [1997] PNGLR 193

Rimbink Pato-v-Anthony Mangin & 4 Others (1999) SC622

Post PNG Limited-v-Westpac Bank PNG Limited [1999] PNGRL 582

Gary McHardy-v- Prosec Security & Communications Limited [2000] PNGLR 279

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

Zachary Gelu & 2 Others-v- Sir Michael Somare & 2 Others (2008) N3526

Counsel

Mr. T. Potoura, for Applicant/Plaintiffs

No appearances for Defendants

21st September, 2012

1. LENALIA, J. The plaintiffs were students at the University of Vudal until they were suspended on 24th June 2012. They were suspended following allegations of consumption of liquor on the campus premises. Following their suspension the twenty-four (24) plaintiffs have vacated the University campus and are living off campus in private accommodation. They have been to court twice already and this is their third appearance.

2. On their first appearance, on 7th and 8th August this year, this court refused their application for judicial review because after they were suspended, they appealed to the Vice Chancellor and such process had not been completed. In other words, they had not exhausted alternative statutory or administrative remedies as the principles stated in cases like Kekedo v Burns Philp (PNG) Ltd & Others [1988-89] PNGLR 122 or the case of Ila Geno and Others v Independent State of Papua New Guinea [1993] PNGLR 22 say.

3. Their appeal was heard on 6th August, this year. After their appeal was heard, they came to court the second time. Then on 5th this month they applied for leave for them to apply for judicial review. The following day namely 6th, this Court made a ruling on which, it granted them leave to apply for judicial review. The judicial review has not been heard.

4. Up to this stage, the judicial review has not been heard. What the plaintiffs have now done or taken is another cause of action on which they have applied for stay orders pursuant to O.16 r.3. (8)(b) and O.12 r.1 of the National Court Rules.

5. Mr. Potoura arguing this application submitted that their clients are entitled to the stay orders they seek in order for them to wait for the outcome of the review. Counsel relied on O.16 r.3 and (8)(a) where it states that, where leave to apply for judicial review has been granted, the grant of leave operates as a stay in appropriate cases.

6. Counsel cited cases such as Robinson-v-National Airlines Commission [1983] PNGLR 476, Brigadier General Jerry Singorok-v-State (1997) N1590 or Peter Makeng-v-Timbers (PNG) Limited (2008) N3317 and others for the proposition that, injunctive reliefs are granted to maintain the status quo where there is an arguable case. Such applications are granted at the discretion of the Court.

Application of Law

7. The relevant principles in relation to grant of stay or refusing to grant such order are well settled. Principles on the grant of stay are well settled in this jurisdiction. The case now before this court concerns an application for a permanent stay order. The principles in relation to grant of a stay were settled in the case Gary McHardy-v- Prosec Security & Communications Limited [2000] PNGLR 279. The Supreme Court said at page 8 that the principles whether or not to grant the stay order will be applied, in the exercise of discretion. They are;

Ø Whether the leave to appeal is required and whether it has been obtained?

Ø Whether there has been any delay in making the application?

Ø Possible hardship, inconvenience or prejudice to either party;

Ø Return of the judgment sought to be stayed;

Ø The financial ability of the applicant;

Ø Preliminary assessment about whether the applicant has an arguable case on the proposed appeal;

Ø Whether on the face of the record of the judgment, there may be indicated an apparent error of law or procedure;

Ø The overall interest of justice;

Ø Balance of convenience;

Ø Whether damages would be a sufficient remedy?

8. In Zachary Gelu & 2 Others-v- Sir Michael Somare & 2 Others (2008) N3526, the Court held that an applicant seeking to stay on-going investigation being conducted by a proper authority under the laws of Papua New Guinea, must show that there is a strong and arguable case.

9. In that case, the trial judge relied on the case of Rimbink Pato-v-Anthony Mangin & 4 Others (1999) SC622 in saying that the Court should exercise considerable caution before deciding to stay investigations of criminal or other allegedly wrongful or improper conduct being conducted by the Police Force or other proper investigating authorities lawfully set up under the laws of this country.

10. The above principles need to be looked at in order to decide if the applicants’ application should be granted or not. I adopt what Cannings J said in Zachary Gelu & 2 Others-v-Sir Michael Somare & 2 Others (supra) that when the court is considering an application for a stay of proceedings following the grant of leave for judicial review, special considerations should be considered.

11. First, it is necessary for the court to make an assessment of the strength of the case and arguments for or against such application. It is not sufficient for an applicant to just point to the fact that they have an arguable case. Obviously on the face of it, on the instant case, there may be an arguable case.

12. Otherwise, leave would not have been granted if there were not one. I agree with the law stated in the above case that, the standard is higher when the court is deciding whether to grant a stay of proceedings or as in this case for the court to order the defendants to stay the suspension order by the First Defendant which was affirmed by the Second Defendant on appeal.

13. In PNG-v-Gulf Provincial Government [1994] PNGLR 34, the Supreme Court held that, the power of that Court to grant a stay pending an appeal is an unfettered discretion but should only be granted where “special” or “exceptional circumstances are shown”.

14. Then in Post PNG Limited-v-Westpac Bank PNG Limited [1999] PNGRL 582 considered that the earlier case of PNG & The Commissioner, Correctional Services-v-Daniel Mollen [1997] PNGLR 193 had sufficiently clarified the test and it concluded that, the previous test of “special” or “exceptional circumstances” no longer applied and that an applicant for stay need only show or demonstrate “a reason” or “an appropriate case” by evidence to warrant the exercise of discretion in his favour.

15. The plaintiffs/applicants are actually applying for suspending the operation of the Suspension Notices issued by the First Defendant which suspended them then they appealed from that decision to the Second Defendant. On 6th August 2012 the Second Defendant rejected their appeals and upheld the decision of...