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Ilg v Ilg [2011] PGSC 63; SC1267 (23 September 2011)

SC1267

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA No. 101 of 2011

Between:

TOALE HONGIRI ILG
First Appellant

AND:

TISASAPI ILG
Second Appellant

AND:

SOWOLO ILG
Third Appellant

AND:

WOLOTOU ILG
First Respondent

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

AND:

RENDAL RIMUA- SECRETARY, DEPARTMENT OF PETROLEUM & ENERGY
Third Respondent

AND:

MICAH PITPIT, COMMISSIONER, LANDS TITLES COMMISSION
Fourth Respondent

AND:

LIHALIPU CLAN ILG
Fifth Respondent

AND:

MOLOKO TIPUREPEKE CLAN ILG
Sixth Respondent

Waigani: Injia, CJ
2011: 23rd September

SUPREME COURT – Practice and procedure –Application for stay of National Court orders – principles of - Exercise of discretion – Application granted.

Counsel:

Mr Haiara, for the First and Second Appellants
Mr Boma, for the Third Appellant
Mr Miva, for the First Respondent
No appearance, for the Second, Third and Fourth Respondents.
P Ame, for the Fifth & Sixth Respondents

23rd September, 2011

1. INJIA, CJ: This is an application brought by the first and second appellants for stay of the orders made by the National Court on 24th August 2011, in proceedings WS 1177 of 2007.

2. Arguments of counsel who argued the matter before me were focused on the application of the criteria for grant of stay in Gary Mc Hardy v Prosec Security Services.

3. My consideration of the material and submissions of counsel is embodied in my ruling.

4. The grant or refusal of stay is discretionary. The applicant bears the burden of persuading the Court to exercise its discretion in favor of stay. The leading case on stay is the McHardy case. It is not intended that the exercise of discretion is based on all or only some of the many considerations enumerated in McHardy; rather the Court is required to take into account those considerations that are relevant to the circumstances of the case at hand, in reaching its decision. The circumstances of a particular case may warrant greater or less or even no weight to a particular consideration or a number of considerations but even then, it is a matter of discretion.

5. In the circumstances of this case, I consider the main and the critical considerations to be the nature of the case, the apparent error on the face of the record, the arguable nature of the appeal as it relates to those errors, the balance of convenience and the interest of justice.

6. It is clear to me that the Order was dispositive of the substantive claim in the WS proceedings as it gave full effect to the various agreements that were concluded under a Court - annexed ADR process that was facilitated by the Court, involving accredited Mediators. In those agreements, the first and second appellants do not feature as parties. However they had sufficient interest in the WS proceedings which saw them joined as parties, by leave of the Court, as defendants in the proceedings.

7. What is telling is that the appellants and in particular the plaintiff in those WS proceedings who is now the first and principal respondent in this appeal, did not attend the hearing and did not consent to the order. The first respondent has now expressed its desire to be named as an appellant in this appeal and has supported the application for stay. The third appellant also did not appear in the Court below on 24th August 2011 and has its interests affected by the order. It has now been joined as a party in this appeal, by leave of court. The third appellant also supports the application for stay. The fifth and sixth respondents have now joined these proceedings as parties in the appeal, by leave of the Court. They appeared before the Court below and are largely responsible for producing the draft Consent order which was endorsed by that Court.

8. There are now directional hearings underway in the National Court to facilitate many of the interested land groups in the scheme of the consent order, whilst others such as the first and second appellants have been shut out by the Court from making any application to set aside the Consent order entered ex parte.

9. I am satisfied that the orders made were final in nature in that parts of the order finally disposed of the rights of the parties including the appellants, in particular the first respondent who is the principal plaintiff in the WS proceedings.

10. These and other circumstances show that the Court order of 24th August 2011 is attendant with apparent error on the face of the record and raise an arguable case for appeal against those orders.

11. I am satisfied that the balance of convenience favor the maintenance of the status quo, that being to allow the relevant State agencies, that is, the second and third respondents, to manage the royalty and other benefits from the Kutubu oil development project as it is their statutory duty to do so and as they have been doing so in the past before the Court order, instead of directing those monies to be paid into the Registrar's trust account.

12. Finally, it is clear that the conduct of subsequent directional hearings directly relate to facilitating or giving effect to the order of 24th August. In the interest of justice, further conduct of proceedings in respect of WS 1177 of 2007 by the National Court would have to be halted until the appeal against the order of 24th August 2011 is heard and determined.

13. I am mindful that management of monies owing to landowner groups from resource development projects causes immense anxiety for the disputing landowner groups, and result in costs to such groups. It is therefore in everyone's interest that the appeal should be prosecuted in an expeditious manner. Therefore I will issue directions in that regard.

14. The formal orders of the Court are as follows:

(1) The enforcement of the Court order of 24th August 2011 and the conduct of subsequent proceedings including enforcement of any orders or directions issued subsequent to 24th August 2011 in respect of WS No. 1177 of 2007 are stayed, pending determination of this appeal.

(2) The first and second appellants prosecute the appeal in the next sittings of the Supreme Court commencing 28th November 2011, failing which the matter will return before this Court for listing for summary determination.

(3) Costs of the application shall be in the cause.

__________________________________________________
Steeles Lawyers: Lawyer for the First and Second Appellants
Boma Lawyers: Lawyer for the Third Appellant
Mr Miva: Lawyer for the First Respondent
Ame Lawyers: Lawyer for the Fifth & Sixth Respondents