Evara v Gulf Provincial Administration [2007] PGDC 131; DC699 (3 May 2007)

DC699

PAPUA NEW GUINEA
IN THE DISTRICT COURT AT KEREMA

CASE NO: 22/07

BETWEEN:

IVAN EVARA
Applicant

AND:

GULF PROVINCIAL ADMINISTRATION
Respondent

KEREMA: A. ARUA
2007: May 3

DECISION

Restraining order – When available – Normally to follow main action – Preservation of status quo – just and convenience – Where no main action on foot – Court to exercise discretion based on circumstances of case – Discretion to grant – Humanitarian grounds existing – Restraining order granted.

PNG cases referred to:

Public Employees Association of Papua New Guinea and Napoleon Buyawo Liosi v. Public Services Commission [1988-89] PNGLR 585.
Markscal Limited & Robert Needham v .Mineral Resources Development Company Pty Limited [1996] PNGLR 419.

Overseas cases cited:

Hubbard v. Vosper [1972] 2 W.L.R. 389.

ARUA. The applicant has filed an urgent application by way of notice of motion seeking the following orders:

1. That the Gulf Provincial Administration be restrained from using the police from evicting the tenant Ivan Evara from the house No. 18, Section 14, Allotment 7, at Popoharo, Kerema town.
   
2. That the Gulf Provincial Administration considers the applicant’s request for transfer of ownership of House No. 18 at Popoharo to himself or compensate him for monies of over K23, 148.07 that he had expended on the residence.
   
3. That the Gulf Provincial Administration pays K19,870.00 being for the

applicant’s outstanding service entitlements as Kerema Urban Local Level Government town manager.

4. That the Gulf Provincial Administration computes the applicant’s outstanding services as assembly clerk for the period of October 2005 to November 2006.
   
5. That the Gulf Provincial Administration computes the applicant’s higher duties allowance for the same period from 10 October, 2005, to November 2006.
   
6. That the Gulf Provincial Administration pays the applicant’s outstanding claims for expenses incurred on duty and GST/VAT revenue survey between the Gulf Provincial Government and the National Capital District Commission totaling K15, 320.00 expended between October 2002 and November 2004.
   

He submits that his application is urgent because a police unit from Port Moresby is here in Kerema town, under instructions from the Provincial Administrator and has already commenced the eviction exercise.

While he is seeking restraining order first and foremost, orders 2 to 6 are in my view claims against the Gulf Provincial Administration that Ivan Evara contends he is owed. These are claims that should be properly pleaded and filed by way of Writ of Summons in the National Court and should form the basis of his substantive claim. The applicant should also consider the adequacy of damages as a possible remedy where his rights have been infringed by the police during the eviction.

Without taking away his rights to pursue his claims, the manner and the process in which the applicant is asking the court to grant him orders 2 to 6 is wrong and therefore not proper. This is also not the appropriate forum. Accordingly, orders 2 to 6 are not competent at this level and I do not have the powers to grant them. To do so would result in me exercising powers beyond my jurisdiction and would amount to an error in law. Therefore, his request for orders 2 to 6 in this application are refused and would not be entertained.

By stating the above I am not saying that the applicant has no rights. I agree that he may have some rights and those rights are being affected. However, those rights can be properly pursued by Writ of Summons, where they can be properly pleaded and argued.

In relation to the order sought in paragraph 1 of the notice of motion, I note that he is seeking a restraining order which is prohibitive in nature. It is sought to restrain the respondent from evicting him from the residence, maybe while he pursues his retrenchment or his other claims?

The applicant is a member of the group of retrenched public servants who have been seeking review of their retrenchment in the National Court. That matter was dismissed by the National Court on 26 March, 2007. The interim order, restraining the respondent from evicting them was also discharged, which led to the eviction exercise now being carried out.

In essence the applicant is asking the court to allow him to continue remaining in the residence while he challenges his retrenchment and maybe, pursue his other claims. In order to decide on the issue, one need to ask ‘whether his eviction from the residence will cause "irreparable or irreversible injury’ to him, thus severely affecting the status quo.

The factors to be considered when deciding on an application for restraining order, for the purposes of this case, are well discussed in our jurisdiction. Several judgments have been delivered by the higher courts concerning such relief or remedies and the conditions for grant of such relief or remedies have been well discussed in those cases. These, to name a few among others include, Public Employees Association of Papua New Guinea and Napoleon Buyawo Liosi v. Public Services Commission [1988-89] PNGLR 585, and
Markscal Limited & Robert Needham v. Mineral Resources Development Company Pty Limited [1996] PNGLR 419.

The purpose of a restraining order, similar to an injunction is to maintain the status quo until the hearing of the substantive or the main action. This simply means that a restraining order or an application for restraining order should follow a main action.

While no strict requirements can be laid down as to when they should or, should not be granted, it is left open to the discretion of the court to grant when "just or convenient". What falls within the description as to what is "just or convenient" may differ from case to case. Lord Denning M.R. stated in Hubbard v. Vosper [1972] 2 W.L.R. 389 at 396:

"In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of claim but also to the strength of the defence and then decide what is best to be done. Sometimes it is best to grant an injunction so as to maintain the status quo until the trial. At other times it is best not to impose a restraint upon the defendant but leave him free to go ahead...The remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made the subject of strict rules."

Applying the above considerations to the application before me, the applicant must establish or satisfy four main conditions:

1. He must have a substantive or main action already filed on foot.

2. He must establish that he has a serious, not speculative case, which has a real possibility of ultimate success.

3. He must also establish that he has a legal or equitable right, title or interest which might be jeopardized if the restraining order is not granted.

4. He must show that "irreparable damage" or "injury" would result if a restraining order is not granted.

Where the above conditions are established, it is then up to the court to decide whether the restraining order should be or, should not be granted, at the same time considering other factors such as adequacy of damages as a remedy, whether there are alternative remedies, the strength of the respondents defence and, the balance of convenience.

Restraining order may be granted where damages may not be the adequate remedy. Where damages may be adequate, restraining order may not be granted. However, even if the conditions stated above are present, it is up to the court, after considering all the circumstances of the case, to exercise it’s discretion whether to grant the restraining order or not.

Having considered the applicant’s supporting affidavit and other supporting documents; I find that there is no main or substantive action on foot, filed by the applicant which this application should be following. Should this court, in the absence of a main action, grant him the restraining order that he is seeking?

It may seem that while the presence of a main action may be one of the factors that the courts should consider when deciding on this type of cases, there is no hard and fast rule about it. Even where there is no main action on foot, it is my view that there may be some situations where the court may have to exercise its discretion whether or not to grant such order, taking into consideration the circumstances of the case. In such cases, restraining order should only be granted for an interim period and, should have a definite time period attached to it.

In this application, there is the question of the applicant not receiving his retrenchment entitlement cheque, which is at the Finance Department for drawing of the new cheque. Can that be seen as a genuine reason to allow him to continue to reside in the residence while he awaits the new cheque? I think it can go both ways. He can move out and still pick up his cheque or remain and pick up his cheque before he leaves, depending on the circumstances, such as the distance of his home province or village, etc.

Then, there is also the question of his repatriation warrants. Whether he has been given his repatriation warrants by his employer to enable him to return to his home province or village. If travel expenses have not been given yet, he is entitled to remain in the residence until that is sorted out.

However, when considering all the arguments put forward by the parties, I find that the balance of convenience favors the respondents. The applicant had signed the "Deed of Release" and had his entitlements calculated and a cheque released which he didn’t pick up for reasons known only to him thus, making the cheque stale. The cheque is now at the Finance Department for a new one to be made out. I do not think that the sole reason for awaiting the cheque may be adequate to warrant the applicant to continue remaining in the residence. Likewise, other reasons that the applicant submitted, such as his retrenchment and other outstanding claims are matters he could pursue in separate proceedings and, he is at liberty to do so.

Because I have already concluded that the balance of convenience favors the respondent, the applicant should not be granted the restraining orders.

However, as I have stated earlier, there may be cases where the court may have to exercise its discretion in deciding whether or not to grant restraining order, despite the absence of the main action. This application falls within that category.

While I understand the respondent’s position and note that the applicant should vacate the residence, I think that he should be allowed reasonable time to pack properly. I think one week for one to pack up and leave is too short a time frame to properly pack up. Not only that, but one has to be given adequate time to arrange alternative accommodation, especially where one had been a long time resident at a particular residence and have a lot of personal effects to move, as well as where a large number of immediate family members are involved, especially school age children, who will be severely affected.

Moreover, it is also evident that the respondent may have failed to follow proper legal process in carrying out the eviction exercise. There is evidence of harassment and intimidation by the police unit towards the applicant and others like him who are in the same situation. Clearly, basic humanitarian principles have been disregarded by the respondent and the police in carrying out the eviction.

Due to the above considerations, and on the basis of humanitarian grounds, I would grant the restraining order that the applicant is seeking but only for a definite period.

I order that the respondent, its servants, agents, representatives or anyone else acting under its direction or control is hereby restrained from evicting the applicant from the residence at Section 14, Allotment 6, Popoharo, Kerema, for the time being until 17 May, 2007, when this matter is returnable for further orders, or it is discharged earlier by a court of competent jurisdiction, whichever occurs first.

Lawyers for the applicant: In person
Lawyers for the respondent: Ex parte