This is the most frequently misunderstood point in Supreme Court practice, and the misunderstanding is expensive. Filing an appeal does nothing to the judgment appealed from.
The provision
Unless otherwise ordered by the Supreme Court or a Judge, an appeal, or an application for leave to appeal, to the Supreme Court does not operate as a stay of proceedings.
The judgment creditor can take out a writ of levy of property. Interest continues to run. An injunction granted below remains in force. An order for possession can be executed. A winding-up order takes effect. A person ordered to do something remains obliged to do it, on pain of contempt.
None of that changes because a notice of appeal has been filed. The only thing that changes it is a stay.
The section covers both
An applicant waiting for leave under section 14(3)(b) in respect of an interlocutory judgment is in exactly the same position as an appellant. The pending application confers no protection.
The same is true of an application for review under section 155(2)(b) of the Constitution: it is not an appeal, and it certainly does not operate as a stay.
What you have to do instead
Section 19 preserves the power — unless otherwise ordered by the Supreme Court or a Judge. The application is made in Form 4, to a single Judge.
Kawaso Ltd v Oil Search (PNG) Ltd [2010] PGSC 34; SC1082 held that there is no express provision in the Act or the Rules as to the manner of applying for a stay, that the proper manner is by an application using Form 4, and that an application made by notice of motion is incompetent and may be struck down. The applicant must state the nature of the application and the grounds in the application itself.
See applying for a stay.
Where an appeal is pending, an interim order to prevent prejudice to the claims of the parties may be made by a Judge. That is the provision for interim protection short of a full stay — for instance, an order preserving a fund or an asset until the appeal is heard.
National Court or Supreme Court?
An application for a stay can be made to the National Court under its own rules, typically immediately after judgment and before the appeal is filed. That is often the fastest protection, and it is worth asking for on the spot when judgment is delivered.
Once an appeal is pending, section 19 and section 5 point to the Supreme Court or a Judge of it.
Where the matter is genuinely urgent and the appeal has not yet been filed, file the notice of appeal and apply at once — the appeal must be pending for section 5 to be engaged.
Move quickly
An appellant who waits two months, allows the judgment to be enforced, and then seeks a stay is asking the Court to undo what has already happened. Money paid out, property sold, a business closed — these are hard to reverse and are the very things a stay exists to prevent.
Order 13 Rule 15 requires applications for interlocutory orders (urgent applications aside) to be made to the Duty Judge on a scheduled motions day. Where the matter is urgent, that qualification is the route in, but urgency should be established by evidence, not asserted.
The simplest answer
Many respondents will agree not to enforce pending an appeal, particularly where the appeal is to be heard soon, where the judgment sum is secured, or where enforcement would be pointless.
An agreement should be in writing and, better, recorded in a consent order. An informal assurance is worth little when the judgment creditor changes lawyers.
Where the respondent will not agree, the correspondence is useful evidence on the application: it shows the appellant acted promptly and that the application was necessary.
One point on continuing injunctions
Where the Court or a Judge grants an interlocutory injunction or stay and afterwards grants a further interlocutory injunction or stay continuing the first, with or without modification, an order as to the costs of the further injunction or stay shall, unless the Court or a Judge otherwise orders, include the costs of the first.
So the costs of successive stay applications travel together. That is a reason to make one properly prepared application rather than a series of short holding ones.
The same rule for reviews
The filing of an application for review does not operate as a stay of enforcement of the decision of the National Court, subject of the review.
So an applicant for review under section 155(2)(b) is in the same position as an appellant: the decision below stands and can be enforced unless a stay is obtained. See section 155(2)(b) reviews.
Section 19 for appeals and applications for leave; Order 5 Rule 38 for reviews. In every route to the Supreme Court, the challenge does not suspend what is being challenged. The suspension has to be asked for, and it has to be asked for early.
Sources
- Supreme Court Act (Chapter 37) — ss 5, 14, 19
- Supreme Court Rules 2012 — O 12 r 23; O 13 r 15; Form 4
- Kawaso Ltd v Oil Search (PNG) Ltd [2010] PGSC 34; SC1082
- Constitution of the Independent State of Papua New Guinea — s 155(2)(b)
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.