Sireh v Larelake [2007] PGDC 132; DC697 (7 May 2007)

DC697

PAPUA NEW GUINEA
IN THE DISTRICT COURT

CASE NO: 36/07AT KEREMA

BETWEEN:

PAUL SIREH for himself and 147 affected Public Servants of Department of Gulf
Complainant / Applicant

AND:

MIAI LARELAKE
First Defendant/
Respondent

AND:

GULF PROVINCIAL ADMINISTRATION
Second Defendant/
Respondent

KEREMA: A. ARUA
2007: May 4 & 7

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 the case – Discretion to grant – Humanitarian grounds existing – Restraining order granted.

Cases cited: Markscal Limited & Robert Needham v .Mineral Resources Development Company Pty Limited [1996] PNGLR 419. Mauga Logging Company Pty Ltd v. South Pacific Oil Palm Limited [1977] PNGLR 80. Public Employees Association of Papua New guinea and Napoleon Buyawo Liosi v. Public Services Commission [1988-89] PNGLR 585. Hubbard v. Vosper [1972] 2 W.L.R. 389.

ARUA. This matter comes before me as an application on notice of motion seeking orders as follows:

1. The first and second defendants/respondents, their servants, agents and any other person acting under their direction or control, are restrained from evicting the complainant/applicant and 147 other retrenched public servants from their current residences pending the determination of their substantive hearing.
   
2. The first and second defendants/respondents, their servants, agents and any other person acting under their direction or control, are restrained from threatening, harassing, intimidating, physically confronting and assaulting the complainant/applicant and their family members.
   
3. ....
   
4. ....
   

The applicant’s reasons for his application are set out in his affidavit and other supporting affidavits of David Kehara and Isua Nawia. I do not intend to restate them here in full.

The orders he is seeking are similar to injunctions sought in the higher courts. I am satisfied that I do have the jurisdiction to preside over this matter and grant the order sought by virtue of Section 22 of the District Courts Act.

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, Markscal Limited & Robert Needham v. Mineral Resources Development Company Pty Limited [1996] PNGLR 419, Mauga Logging Company Pty Ltd v. South Pacific Oil Palm Limited [1977] PNGLR 80, and Public Employees Association of Papua New guinea and Napoleon Buyawo Liosi v. Public Services Commission [1988-89] PNGLR 585.

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 real principles 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."

In applying the above factors to the application before me, the applicant must establish or prove that he has a serious, not a speculative case, which has a real possibility of ultimate success. 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. The applicant must show that "irreparable damage" or "injury" would result if a restraining order is not granted. Where such factors 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 factors or conditions stated above are present or have been established, it is up to the court, after considering all the circumstances 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 orders 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 the court should exercise its discretion whether or not to grant such order, taking into consideration the circumstances of the case. There is also the question of damages. Is damages adequate remedy available to the applicant in the circumstances?

I note that 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 were also discharged, which led to the eviction exercise now being carried out.

In essence the applicant is asking the court to allow him and the members of the group to continue remaining in their residences, while they pursue the challenge on their retrenchment exercise. In order to decide on the issue, one need to ask ‘whether their eviction will cause "irreparable or irreversible injury’, thus severely affecting the status quo. I do not think so. They can vacate their residences and still have the opportunity to pursue their claim by Writ of Summons, which in view may be the best option available to them.

By stating the above I am not saying that the applicant and other members of the group have no rights. I agree that they 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.

There is also the question of some members of the group not been paid their outstanding leave warrants for previous leaves taken, under payment of their retrenchment entitlements and non payment of repatriation costs, etc. Can these be seen as genuine reasons to allow them to continue to reside in the residences while they follow up with the claims. I think it can go both ways. They can move out and still pursue those claims or, remain and pursue them, depending on the circumstances, such as the distance of their home province or villages, etc.

In my view, to allow them to continue occupying the residences while they pursue their retrenchment and other claims would be detrimental to the whole public service system in this province. It would also cause substantial hardship and would severely prejudice the rights of those persons who were appointed under the restructure, especially their rights to occupancy of government allocated housing which may come with their appointments.

Having considered all the arguments put forward by the parties, I find that the balance of convenience favors the respondents. The applicant and other members of their group had signed the "Deed of Release" and had their entitlements calculated and paid out. I am of the view that they should vacate the residences and still have the opportunity to pursue their retrenchment and other claims by way of Writ of Summons in separate proceedings.

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

However, while I understand the respondent’s position and note that the applicant should vacate the residence, I think that they 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 properties to move, as well as where a large number of immediate family members are involved, especially school aged children, who will be severely affected. I also note that the respondents have not followed due process of law before carrying out the eviction exercise. They have not obtained a court order under the Summary Ejectment Act, nor a warrant for eviction, which normally follows the order where a person who has been ordered to move out, has refused to do so. The respondents are in my view trying to make a short cut and this has placed the applicants in very awkward position.

I also note that the eviction exercise, especially the manner in which the applicant and his family and other members of the group may have been removed by the police, acting on instruction and direction from the respondents, may have been harsh, oppressive, inhumane and may have breached their rights enshrined under the constitution. The eviction exercise may not have followed the set legal process from the beginning and may have been illegal. However, I am of the view that they can properly seek damages for the breach if they wish.

Where the applicant or a member of the group has already been evicted and locks have been changed, the court cannot reverse the situation. To do so would create chaos and confusing in the whole process. It would be detrimental to good administration of the whole public service machinery in this province.

Due to the above considerations, and also for humanitarian reasons, I would order that the respondents, their servants, agents, representatives or anyone acting under their direction or control, are hereby restrained from carrying out their eviction exercise, and from evicting any remaining retrenched public servant from the residences they are occupying until 17 May, 2007, 4.06pm, when the respondents will be at liberty to recommence the eviction exercise, or if this order is discharged earlier by a court of competent jurisdiction, whichever occurs first.

Lawyer for the applicant: In person.
Lawyer for the respondents: Mr Larelake in person.