A losing party who appeals often assumes the judgment is on hold until the Supreme Court decides. It is not.
The starting point
Nothing in the National Court Rules 1983 provides that filing an appeal stays a judgment. The judgment takes effect under Order 12 Rule 3 and, once the time for compliance in Rule 4 has expired, may be enforced under Order 13.
So a judgment debtor who appeals and does nothing else may find goods seized or an account garnished while the appeal is pending. A stay must be sought, and sought promptly.
The Rules do provide automatic stays in several places — on acceptance of money paid into Court under Order 8 Rule 76(1); on payment of a liquidated demand under Order 4 Rule 10(3); on the filing of a motion for a stay after refusal of a medical examination under Order 9 Rule 39(2); and on service of a jurisdiction motion under Order 7 Rule 7(5).
The absence of any equivalent for appeals is deliberate. See stays of proceedings generally.
The Supreme Court regime
An appeal from the National Court lies to the Supreme Court under the Supreme Court Act (Chapter 37), and the procedure is prescribed by the Supreme Court Rules 2012.
An application for a stay pending appeal is therefore made under that regime, not under the National Court Rules. The Supreme Court Rules prescribe the form, the time and the venue for such applications.
PacLII carries the Supreme Court Act (Chapter 37) as a downloadable document rather than as browsable text. Consult the current text of the Act and the Supreme Court Rules 2012 for the applicable provisions on stays; the general propositions below are drawn from the National Court Rules and from the Supreme Court authority cited.
Under section 14(3)(b) of the Supreme Court Act, no appeal lies without leave from an interlocutory judgement, except where the liberty of the subject or the custody of infants is concerned, in cases of granting or refusing an injunction or appointing a receiver, or in cases prescribed by Rules of Court as in the nature of final decisions.
And under section 14(2), an appeal does not lie from an order made by consent of the parties. See appealing an interlocutory order and consent orders.
The considerations
- An appeal is on foot, or leave has been sought — with the notice of appeal or application for leave exhibited.
- Arguable grounds. Not that the appeal will succeed, but that it is genuine. Where the appeal is against a discretionary decision, remember the standard in Chief Collector of Taxes v Bougainville Copper Limited [2007] PGSC 1; SC853: the appellant must demonstrate identifiable and serious error warranting interference before the appellate Court can interfere.
- That the appeal would be rendered nugatory without a stay — the strongest single factor. If the judgment is executed and the money cannot be recovered, a successful appeal achieves nothing.
- The balance of convenience — the prejudice to the judgment creditor kept out of money against the prejudice to the debtor.
- Promptness. Delay while enforcement proceeds tells against the applicant.
- What you offer — payment into Court, security, or an undertaking. A stay is far more readily granted where the judgment sum is secured.
That appeal was against an interlocutory decision lifting an interim stay and injunction. The Supreme Court held that leave was required to raise questions of fact, that an appellant is at no liberty to raise new points on appeal except with the agreement of the parties, and that the right of appeal exists only against the exercise of a trial judge’s decision on issues raised before him.
The practical lesson for a party contemplating a stay: make every argument below, because you will not be able to make new ones above.
If a stay is refused or not available
| Option | Basis |
|---|---|
| Pay into Court or provide security | Often the price of a stay in any event; removes the creditor’s objection |
| Agree terms with the creditor | A consent order staying enforcement pending appeal — but note s 14(2) bars an appeal from a consent order |
| Seek more time to comply | Order 12 Rule 4(5) — the Court may require the act within another specified time; and Order 1 Rule 15 allows extension of any time fixed by any judgement or order, after the time has expired |
| Apply to set aside rather than appeal | Order 12 Rule 8, where the judgment was in default or given in a party’s absence |
| Stay of enforcement on a cross-claim | Order 12 Rule 39(2) — the Court may stay execution until determination of the claim by the party against whom judgment was directed |
There is no execution against the State under the Claims By and Against the State Act 1996, and satisfaction follows a statutory certificate process. A State appellant therefore faces no immediate enforcement risk. See how a judgment against the State is paid and execution against the State.
File the appeal or application for leave; apply for a stay immediately under the Supreme Court Rules; notify the judgment creditor and ask them to hold enforcement meanwhile; and be ready to offer payment into Court or security. A stay applied for after a writ of levy has issued is a much harder application than one made the week judgment was entered.
Sources
- Supreme Court Act (Chapter 37) — s 14; Supreme Court Rules 2012
- Chief Collector of Taxes v Bougainville Copper Limited [2007] PGSC 1; SC853
- National Court Rules 1983 — O 1 r 15; O 4 r 10; O 7 r 7; O 8 r 76; O 9 r 39; O 12 rr 3, 4, 8, 39; O 13
- Claims By and Against the State Act 1996 — ss 13, 14
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.