Tabalar v Murray [2005] PGDC 127; DC453 (22 December 2005)

DC453

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2445 OF 2005

BETWEEN

Steven Tabalar
Complainant

V

Raymond Murray
Defendant

Port Moresby: Bidar, Pm
2005: 06th & 22nd December

District Court
- Practice and Procedures
- Summons upon Information
- Seeking permanent restraining or Injunctive orders
- District Court Act, S5

District Court
- Practice and Procedures
- Summons upon Information seeking permanent Restraining Orders
- Jurisdiction
- District Court Act, S.22

Cases cited in the Judgment

Counsel
Complainant appeared in person
Miss Nambau, for the defendant

DECISION

22nd December 2005

BIDAR, PM: Complainant instituted these proceedings by summons upon Information which he filed on 11th July 2005.

The summons and Information are in these terms:

"You did unlawfully threaten, harass, insult and physically assault the informant without any good reasons. The informant being so aggrieved therefore prays to the court for the following restraining orders.

1. The defendant be restrained from harassing, threatening, insulting, contacting or communicating with the informant at anytime.

2. The defendant be restrained from going or entering the work place or residence of the informant at anytime.

3. The defendant be restrained from using abusive language and physically assaulting the informant at any time and anywhere.

4. In breach of clauses (1) (2) and (3) the members of the Police Force be empowered to arrest the defendant and brought before Court to be dealt with according to law.

5. And any other orders the Court deems fit."

The Complainant (Informant) initially applied for and obtained interim restraining orders in similar terms. The Informant now seeks permanent restraining orders. These proceedings are akin to proceedings filed under s. 209 and 210 of the District Court Act. It involves requirement to find sufficient sureties to keep peace. The present proceedings are slightly different. The informant is seeking permanent injunctive orders against the defendant.

The first issue to determine is whether or not this court has jurisdiction to grant orders, the informant seeks. District Court Act is the legislation which creates the establishment of the District Courts in Papua New Guinea. All powers and functions are derived from the enabling legislation. S.22 of the Act appears to be the general provision relied on for seeking orders such as these. Section 22 is in these terms:-

"Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall in proceedings before it -

(a) grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and

(b) give the same effect to every ground of defence or counter-claim, whether equitable or legal as ought to be granted or given in a similar case by the National Court and in as full and ample a manner."

The terms of S.22 are quite wide and the proviso is that the Court must have jurisdiction in the matter before it can grant such a relief or reliefs.

The next issue is whether or not there is a substantive matter on foot. Complaint does not bring an action for damages for assault; he is as I alluded to, simply asking this court to grant restraining orders which should be made permanent against the defendant. Section 22 provides that, there should be a cause of action, which court has jurisdiction before any of the relief listed can be granted. As it is there is no substantive cause of action on foot upon which the orders sought by complainant (Informant) can stand on.

Having considered whole of evidence and submission by both parties and the circumstances of this case, I would refuse to grant permanent orders which the complainant seeks. On the basis that there is no substantive cause of action on foot, in any event, the actions for the defendant against the complainant has been dealt with under the Code of Military Discipline. In all the circumstances, I refuse to grant the orders sought, and I dismiss these proceedings with costs to the defendant.