Stay applications are refused more often for how they are brought than for what they say. The form point comes first because it disposes of applications before their merits are reached.
Kawaso v Oil Search
In Kawaso Ltd v Oil Search (PNG) Ltd [2010] PGSC 34; SC1082 the Supreme Court held that there is no express provision in either the Supreme Court Act or the Supreme Court Rules as to the manner of applying for a stay.
The proper manner is by an application using Form 4 of the Rules of Court. An application for stay made by notice of motion is incompetent and may be struck down.
The applicant must also state the nature of the application and the grounds in the application itself.
The notice of motion. Familiar from the National Court, and wrong in the Supreme Court.
The bare application. An application that says only “the appellant applies for a stay” and leaves the grounds to the affidavit does not comply. The grounds go in the application.
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. All applications shall be made in Form 4.
What to cite
Section 19 — unless otherwise ordered by the Supreme Court or a Judge, an appeal does not operate as a stay. This is the source of the power to order otherwise.
Section 5(1) — where an appeal is pending, a Judge may make a direction not involving the decision on the appeal (paragraph (a)) or an interim order to prevent prejudice to the claims of the parties (paragraph (b)). Section 5(2) deems the order to be one of the Supreme Court; section 5(3) allows the Supreme Court to discharge or vary it.
Cite both, concisely, in the jurisdiction statement Order 13 Rule 15 requires.
The application itself
1. The orders sought. Precisely — which order or part of the order is stayed, and until when (“until the determination of this appeal or further order”).
2. The jurisdiction. Sections 19 and 5 of the Act, in a sentence or two.
3. The grounds. Numbered. Why the appeal is arguable, what harm enforcement will cause, why that harm cannot be repaired, and why the balance favours a stay.
4. Any undertaking offered. As to damages, or to prosecute the appeal expeditiously, or to pay the judgment sum into Court.
Evidence
The judgment — exhibit the order and the reasons.
The appeal — exhibit the notice of appeal, so the Judge can see the grounds.
Promptness — the dates: judgment, filing, service, when the respondent was asked to agree, when this application was filed.
The harm — specifically. Not “the appellant will suffer prejudice”, but what is to be sold, what business will close, what will be irrecoverable if the appeal succeeds.
The respondent’s position — whether a stay causes real prejudice, and whether the respondent could repay if the appeal succeeded after enforcement.
Ability to meet the judgment — where the stay is of a money judgment, evidence that the sum is safe.
Where affidavit evidence is filed on an appeal, Rule 57 requires the applicant to file the notice and any affidavit not later than 21 days before the hearing, and Rule 58 requires other parties’ evidence not later than 14 days before the hearing, unless otherwise ordered. Rule 59 requires copies to be lodged as the Registrar directs and served on each other party.
On an urgent interlocutory application those periods will usually be abridged, but the obligation to serve remains.
If it cannot wait for a motions day
Applications go to the Duty Judge on a scheduled motions day with the exception of urgent applications.
Where enforcement is imminent, approach the registry for an urgent listing before the Duty Judge, with the Form 4, the affidavit, and a draft order ready.
Expect the interim relief granted at that stage to be short — an order holding the position to a return date, on the pattern reflected in Order 13, which contemplates an interim order which provides some solution, until the return date, a specific return date, an undertaking as to damages where appropriate, service of the documents by a specified date, liberty to apply, and an affidavit of service.
Five that recur
Using a notice of motion. Kawaso disposes of it.
Leaving the grounds to the affidavit. They belong in the application.
Applying late. Delay is the single most damaging fact on a stay application.
Arguing “exceptional circumstances”. That formulation was rejected in McHardy v Prosec Security and Communication Ltd [2000] PGSC 31; [2000] PNGLR 279 as restrictive. See what the Court considers.
Asking for a stay of the whole judgment when only part is appealed. Match the stay to the appeal.
Sources
- Supreme Court Rules 2012 — O 7 rr 57–59; O 13 rr 14, 15; Form 4
- Supreme Court Act (Chapter 37) — ss 5, 19
- Kawaso Ltd v Oil Search (PNG) Ltd [2010] PGSC 34; SC1082
- McHardy v Prosec Security and Communication Ltd [2000] PGSC 31; [2000] PNGLR 279
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.