A stay stops enforcement. Interim orders do something different: they hold the position so that the appeal, when it is heard, still has something to decide.
The main power
Where an appeal is pending before the Supreme Court —
(a) a direction not involving the decision on the appeal; or
(b) an interim order to prevent prejudice to the claims of the parties; or
(c) an order in any proceedings (other than criminal proceedings) for security for costs; or
(d) an order dismissing an appeal in civil proceedings for default in furnishing security; or
(e) an order admitting an appellant to bail,
may be made by a Judge.
Section 5(2) — a direction or order under subsection (1) shall be deemed to be a direction or order of the Supreme Court. It is not a lesser order because one Judge made it.
Section 5(3) — it may be discharged or varied by the Supreme Court. So a party dissatisfied with a single Judge’s interim order has a route to the full Court.
The appeal must exist first
An intending appellant who has not yet filed cannot use section 5. The answer where the matter is urgent is to file the notice of appeal and apply the same day — and remember that under Order 7 Rule 11 of the Supreme Court Rules 2012, filing is what constitutes giving notice of appeal.
Before filing, the National Court retains its own powers, and an application there is often faster.
Paragraph (b) in practice
The words are wide. The orders that recur are —
Preservation of property — that land not be transferred, or an asset not be disposed of, pending the appeal.
Payment into Court — a judgment sum, or a fund in dispute, held by the Registrar rather than paid out.
Continuation of an injunction granted below, or an injunction in equivalent terms.
Restraining a step that would make the appeal pointless — a sale, a winding-up, a demolition, an appointment.
Preservation of the status quo in a governance or membership dispute, so that the office in issue is not filled before the appeal is heard.
A direction not involving the decision on the appeal is the source of the ordinary case-management order: abridging or extending time for a step, directing service, fixing a timetable for affidavits or submissions.
Order 13 also provides for directions on the conduct of matters, and Order 11 Rule 9 allows an application to a Judge for directions where the manner or form of a procedure is not prescribed.
Orders in pending proceedings
Where proceedings under these rules are pending, the court or a Judge may, subject to the Act, make such orders as are considered necessary for —
(a) the custody or release on bail or otherwise of a person in custody;
(b) the custody, preservation and production of exhibits or other property;
(c) the suspension or payment of any fine;
(d) the suspension or variation of any order relating to restitution of property.
An appellant against conviction who has been fined, or against whom a restitution order has been made, can ask for the fine to be suspended and the restitution order suspended or varied pending the appeal.
Paragraph (a), with section 5(1)(e), is the source of the power to admit an appellant to bail pending a criminal appeal.
Procedure
Order 13 Rule 15: all applications for interlocutory orders must contain a concise statement of the Court’s jurisdiction to grant the orders being sought; with the exception of urgent applications they shall be made to the Duty Judge on a scheduled motions day; and all applications shall be made in Form 4.
Kawaso Ltd v Oil Search (PNG) Ltd [2010] PGSC 34; SC1082 held that an application made by notice of motion is incompetent and may be struck down, and that the applicant must state the nature of the application and the grounds in the application itself.
Cite section 5(1)(b), or Order 11 Rule 8, as the jurisdiction. Support the application with an affidavit identifying the prejudice and how the order prevents it.
Order 13 contemplates an interim order which provides some solution, until the return date, together with a specific return date, an undertaking as to damages (where appropriate), an order for service of the documents by a specified date, liberty to apply, and an affidavit of service.
Come with a draft order in those terms. A Judge asked at short notice for relief is far more likely to grant something short and returnable than something final.
Expect to give one
An interim order restraining a respondent from dealing with property, or from enforcing, causes loss if the appeal fails. An undertaking as to damages is the ordinary price, and an applicant who cannot honour one should say so frankly and offer something else — a payment into Court, or a charge.
Note Order 12 Rule 23: where a further interlocutory injunction or stay continues an earlier one, the costs order on the further application shall, unless otherwise ordered, include the costs of the first.
Sources
- Supreme Court Act (Chapter 37) — ss 5, 19
- Supreme Court Rules 2012 — O 7 r 11; O 11 rr 8, 9; O 12 r 23; O 13 rr 14, 15; Form 4
- Kawaso Ltd v Oil Search (PNG) Ltd [2010] PGSC 34; SC1082
Before relying on anything here, read the current text of the Supreme Court Rules 2012 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.