Kundal v Kaystar Construction Ltd [2015] PGDC 3; DC2059 (30 September 2015)

DC2059

PAPUA NEW GUINEA

[In the Civil Jurisdictions of the District Court Held at Wabag]

DC No 35 0f 2015

BETWEEN:

ISHMAEL KULIMBAO KUNDAL
(Complainant)

AND:

KAYSTAR CONSTRUCTION LTD
(First Defendant)

AND:

WAPENAMANDA DISTRICT SERVICES
(Second Defendant)

AND:

DEPARTMENT OF NATIONAL WORKS-WABAG
(Third Defendant)

Wabag: C Inkisopo
2015: 29th July, 5th August & 30th September

National Constitution – s 158(2) - Constitutional embodiment of duty of Court to give paramount consideration to dispensation of justice –

Claims by and Against the State Act – s 5 notice a prerequisite to all suits against State – whether s 5 notice requirement necessary for non-contract, non-tort and non-Constitutional rights breach claims as in Restraining Order claims –

District Courts Act Chapter 40 – District Court's a creature of Statute - practice & procedure defined & prescribed by Act or other delegated legislations, bye laws, rules & regulations – powers & jurisdictions defined and parameters of application demarcated by Act –

Practice & Procedure – District Court; Court of limited jurisdiction - powers & jurisdictions specially defined and demarcated – application to set aside ex parte order provided for under s 25 of Act – such applications governed by established principles – whether ex parte order granted ancillary to substantive matter pending before this or other tribunal -

Practice & Procedure - ex parte order irregularly entered must be set aside as a matter of principle – if regularly entered or by slip or error on the part of Applicant, exercise of discretion required – material relevant to discretion: affidavit disclosing defence on merit, reasonable explanation why ex parte order allowed to be entered - promptness or otherwise of application –

Practice & Procedure – propriety & appropriateness of notice of motion seeking reliefs in identical or similar terms as in originating process – abuse of process -

Practice & Procedure – undertaking as to damages – prerequisite to filing for and obtaining ex parte restraining and other injunctive reliefs -

Jurisdictional boundaries of District Courts under s 21 – non-money claim but discretionary relief for restraint – propriety of seeking restraining order per se of itself with nil substantive proceeding –

Practice & Procedure - the balance of convenience favours setting aside as adequate remedy in award of damage available if consequential damages suffered -

Properties - customary land – land-owner identification and property damage valuation exercise – whether genuine bona fide act carried out prior to project implementation – such exercise ex post facto – State & agencies acting without proper prior regard for citizens' rights, interests & values –

Legislations/Rules/Regulations & Authorities

1: Constitution of the Independent State of Papua New Guinea
2: Claims By And The State Act, 1996
3: District Courts Act, Chapter No 40

PNG cases cited/referred to:

1: Barker -vs- Government of Papua New Guinea [1970] PNGLR 340
2: Bokin -vs- Dana [2001] N2111
3: BSP -vs- Spencer [1983] PNGLR 239
4: Duque -vs- Paru [1997] PNGLR 378
5: George Page Pty Ltd -vs- Malipu Bus Balakau [1982] PNGLR 140

6: Gobe Hongu & Ors -vs- NEC & Ors (1999) N1920

7: Hewali -vs- State (2000) N2233

8: John Momis & Ors -vs- Attorney General & Ors [2000] PNGLR 109

9: Paul Tohian & State-vs- Tau Liu (1998) SC566

10: Koopa -vs- Henry Tokam & State [1996] PNGLR 277

11: Mission Asiki -vs- Manasupe Zurenuoc & Anor (2005) SC797

12: Wassey -vs- Aigilo & State [2005] PNGLR 1

13: William Duma -vs- Yehiura Hriewazi (2004) N2526

14: Worm -vs- Sergeant Koken [1996] PNGLR 348

Appearances:

1: Ms Grace Appa for the Applicant/First Defendant
2: Mr Robin Otto Yallon for the Respondent/Complainant

30th September, 2015

JUDGMENT

C Inkisopo::This is an application by the First Defendant by way of a Notice of Motion dated 10th and filed 14th July 2015 seeking the following;-

(a) Pursuant to s 25 of the District Courts Act and/or s 155(4) of the Constitution, the ex parte interim orders of 17th June, 2015 be set aside

(b) Pursuant to s 22 of the District Courts Act and/or s 155(4) of the Constitution, the entire proceedings be dismissed on account of Complainant's failure to comply with s 5 of the Claims by and Against the State Act, 1996

(c) In the alternative, pursuant to s 22 of the District Courts Act and/or s 155(4) of the Constitution, this proceeding be dismissed in its entirety for disclosing no reasonable cause of action, being frivolous and vexatious and being an abuse of process

(d) Respondent/Complainant to pay costs of this proceeding

(e) Time of entry of these orders b e abridged.

2: This Application after repeated mentions and false starts for various causes (not of any of the Parties' making), First Defendant's Notice of Motion was fixed for hearing to 5th August, 2015 at 9:30am. Then on the day of hearing, Complainant/Respondent filed and served a Notice Motion of then even date seeking a number of reliefs as per the following;-

(a) The name K-Star constructions be amended to Kaystar Constructions,

(b) The First, Second and Third Defendants be directed to come into Court and say why they should not be held for contempt of court for failing to comply with the orders of the Court,

(c) Costs of the Application,

(d) Any further or other orders.

3: In situations where several Motions are on foot before a Court for hearing on the same day, I understand it to be the preferred and convenient practice to deal with the motion that is the latest filed and on file; and I'd accordingly deal with the Complainant's Application first. Being that as it may however, I find an immediate practical problem besetting me with that course. Complainant's Application in my view is quite unique and an intriguing one; in that Complainant is seeking to enforce an order of this Court that is the very subject of the First Defendants' application to have set aside. In other words, the legal basis or authority (order) that Complainant bases on and seeks to have enforced has already been brought to issue by virtue of the First Defendant's Notice of Motion filed on 14/07/15 in which they seek to have that very Order set aside. I said earlier that the latest Notice of Motion filed and on file ought to be heard first; but in the light of the unique nature and circumstance of this case, I consider it only reasonably convenient and appropriate to deal first with the First Defendant's application; for if the Application is refused and the ex parte order upheld, then the Complainant's application to cite the Defendants would naturally have sound legal basis to progress against the Defendants.

4: If however, the First Defendant's application is successful, the legal basis for the Complainant to progress to cite for contempt is effectively negated; thus nullifying the subject ex parte restraining order and rendering the Complainant's pursuit null and of no legal effect. For these reasons, I propose to deal first with the Defendants' Application seeking, inter alia, to set aside this Court's interim ex parte restraining orders of 17th June, 2015 and I so do!

Background Impetus

5: In order to have a fuller and better appreciation of this Application, the factual background that gives rise to the Application itself is necessary to be canvassed at this juncture.

6: A road construction project into the Tsak Valley of Wapenamanda District of Enga Province initiated and sponsored by Wapenamanda District Joint District Planning & Budget Priorities Committee (JDP & BPC) as part of the District development program was funded and launched and the project commenced early in the year (2015). Kaystar Construction Limited, a locally owned Engan construction firm, First Defendant which was contracted to carry out the actual construction work on the subject Mukurumanda to Tsak Valley Road. The said road project started early in the year and is still in progress.

7: As the project progressed, portions of customary owned lands, developments and sacred sites and spots of value and of significance to locals on and within site, and in the way and vicinity of the project were interfered with and impacted upon hence agitating the Respondent/Complainant into Court action.

8: The Complainant who says to be from Kanamanda Village in Wapenamanda District, Enga Province filed claims before this Court that several portions of his customary land through which the project passes have been unlawfully interfered with. He laments that the manner in which he perceived the Defendants to have just gone ahead and dealt adversely with his portions of customary land and properties located within the road project site were so carried out without due regards and appropriate consideration. He claimed that his properties were just bulldozed through and damaged without proper valuation and appropriate restitution.

9: Aggrieved by what he saw and perceived happening, he came to this Court and secured an interim ex parte restraining order against the Defendants from causing further damages and destructions to his portions of land and developments thereon until proper and appropriate assessments, valuations and restitutions have been made. It is this interim ex parte restraining order of 17th June, 2015 that the First Defendant seeks to have set aside; and subsequently have dismissed altogether.

10: Applications seeking to set aside ex parte orders are governed by principles established and settled in this jurisdiction starting with the oft-cited case of Green & Company Pty Ltd -vs- Green [1976] PNGLR 73 that has been expanded on and refined in a number of numerous later cases over the course of time; that is already well settled in this jurisdiction. The following are an example of how the principle has evolved, developed, expanded on and refined over the course of time in this jurisdiction;-

See Barker -vs- Government of Papua New Guinea [1970] PNGLR 340, George Page Pty Ltd -vs- Malipu Bus Balakau [1982] PNGLR 140, Duque -vs- Paru [1997] PNGLR 378, BSP -vs- Spencer [1983] PNGLR 239, Koopa -vs- Henry Tokam & State [1996] PNGLR 277, Worm -vs- Sergeant Koken [1996] PNGLR 7348, William Duma -vs- Yehiura Hriewazi [2004] N2526 and several more others on point.

11: The above cases are by no means exhaustive; as the principle is being considered by the Courts and being dealt with in this jurisdiction to this point. The Courts; whether this or the National Courts have at their disposal established principles to be guided by in dealing with such applications to set aside ex parte judgments and orders.

11: These principles can be summarized as;-

1: There must be supporting affidavit material disclosing defence on merit,

2: Reasonable explanation why the ex parte judgment or order by default was allowed to be entered, and

3: Promptness or otherwise of application to set aside and/or reasonable explanation for delay in applying; (if any delay).

12: The current Application by Applicant/First Defendant to set aside the interim ex parte order of this Court of 17th June, 2015 is relief No 1 that Applicant seeks in his Notice of Motion. Applications of this nature before the District Courts are provided for under s 25 of the District Courts Act, Chapter No 40.

Section 25 of the Act: Ex parte Order may be set aside

"A conviction or order made when one party does not appear may be set aside on application to the Court on such terms as to costs or otherwise as the Court thinks just; and the Court, on service on the other party on such reasonable notice as the Court directs, may - ..."

13: The Applicant relies on a number of affidavits filed in support of the Application; noteworthy is that of Mr Paul Kurai dated 10th July and filed 14th July, 2015. The gist of Paul Kurai's affidavit is that he is the Managing Director of the Applicant which is contracted to construct the Tsak Valley Road. The National Department of Works and the Wapenamanda District Service through the Wapenamanda District Joint District Planning & Budget Priorities Committee (JDP & BPC) co-funded the project. The Wapenamanda District Services was the agency responsible for identifying land owners in the way of the project and those who lost properties as a result of the project and identified for payment of appropriate restitution by the third Defendant when funds became available. He said that his construction firm was merely the contractor contracted to carry out the actual construction aspect of the project and had no part in the identification, valuation and the payment processes. (See paragraphs 21-22 of Paul Kurai's affidavit).

14: Against this backdrop, and to my mind, I am satisfied that sufficient material is available in Mr Kurai's affidavit to demonstrate to the satisfaction of this Court that a reasonable level of defence on merit is sufficiently disclosed.

15: I am also satisfied that the subject ex parte order by the very nature of it being entered ex parte implied that Applicant was not served notice of the Application. This view is strengthened by the fact that the Complainant's initial application for the interim restraining order was allowed to be moved ex parte upon a proper grant of leave to dispense with the service requirements. This Court is satisfied that Applicant has advanced satisfactory grounds explaining why the subject ex parte restraining order was allowed to be entered ex parte.

16: The interim ex parte restraining order the subject of the Application was entered on 17th of June, 2015 whilst this application is dated 14th July, 2015. Viewed against the detailed description surrounding the fact of how the interim ex parte order first came to the notice of the Applicant/First Defendant and the time it took for him to have filed this Application (17/6/15 - 14/7/15) being a little under a month, is considered reasonable. I therefore accept that Applicant has filed its application within a reasonable frame of time. On the basis of the fact that the Applicant has satisfied all the requirements in such applications to set aside ex parte orders to my satisfaction; the Application should normally and ordinarily be allowed and the interim ex parte restraining order set aside forthwith; but for the fact that Applicant has through its lawyers raised several legal and other related issues that I consider appropriate to address fully so as to render complete the picture.

17: This Court feels much indebted to the lawyers for both Parties for their invaluable assistance in providing written submissions that greatly assisted the Court in dealing with the matter. The Submissions also helped address most of the legal issues raised in the case.

Section 5 notice issue

18: One of the reliefs (alternative) Applicant seeks is for the dismissal of the entire originating process due to lack of service of s 5 Notice under the Claims by and Against the State Act, 1996. The law, practice and procedure prescribed and required for service aspects of s 5 notice is almost well-settled in our jurisdiction that must be met by all potential claimants intending to make claims against the State; Service of s 5 notice is a condition precedent to issuing proceedings against the State in all circumstance, See Paul Tohian & State -vs- Tau Liu (1998) SC566; s 5 notice must contain sufficient details of the potential claim so as to enable the State conduct its own investigation into the potential claim whilst the 'trail of evidence is still fresh', See Hewali -vs- State (2002) N2233, and s 5 notice must be by personal service on the State and not through or by mail; See John Bokin -vs- Paul Dana (2001) N2111.

19: The Respondent/Complainant in his affidavit dated 04/08/15 filed in support of his Application to cite the Defendants for breach of the interim ex parte restraining orders made only a perfunctory reference and annexed a copy of his purported s 5 notice. Apart from the actual purported s 5 notice he claimed to have served before he embarked on filing the claim for restraining orders, there is no indication as to whom he addressed the notice, how it was served or how service was effected on the Solicitor General's Office at Waigani and whether or not he procured and secured upon service a stamped impression of the Solicitor General's Office's official 'acknowledgment of service' seal impression. These are relevant considerations that remain to be satisfied on the face of the Complainant's affidavit supporting his application to cite for contempt. There is nothing in his affidavit that explains to my satisfaction those apparent shortfalls.

20: Being that as it may, given the particular circumstance of this case, the question that immediately comes to mind is; does s 5 notice requirements apply in cases of restraining orders? The Supreme Court in its sittings at Lae in Mission Asiki -vs- Manasupe Zurenuoc (2005) SC797 held that s 5 notice requirements apply only to actions that are founded on contract, tort or breach of constitutional rights cases. Hence, to my humble mind, it would seem that claims seeking restraining and other interlocutory injunctive reliefs do not require s 5 notices. I consider this to being so for very good reasons; in my view. For instance; if the State through its relevant agencies like the NHC and Police are about to evict a lawfully installed tenant of an NHC property, it would be unreasonable to require the affected tenant to first serve the s 5 notice before he issues a proceeding for an urgent order for restraint; because by the time he is through with his s 5 notice requirement, he would be in danger of finding himself thrown out of the house and the whole purpose for him seeking a restraining order in the first place is markedly defeated. Hence, to my mind, it would be unreasonable to expect the s 5 notice requirement to apply in claims for immediate and urgent restraining orders against the State and its agencies for various causes. I feel fortified in this view by the said Mission Asiki -vs- Manasupe Zurenuoc case (supra). Accordingly I hold the humble view that s 5 notice requirements do not apply in the present case. I therefore dismiss Applicant's claim concerning s 5 notice.

Undertaking as to Damage

21: Applicant's lawyers in their Written Submissions took issue and argued emphatically that the Respondent/Complainant had failed to give an undertaking as to damages. I am fully cognizant and am aware of the value and the import of this requirement which has more or less become a condition precedent to applications and grants of urgent ex parte restraining and other injunctive orders. Cases for this proposition in this jurisdiction are numerous commencing with the case of Gobe Hongu & Gulf Southern Highlands Highway -vs-National Executive Council [1999] N1920. The Courts before which such applications are brought are obligated to ensure that such undertakings as to damages are first given and on file before the ex parte application could be entertained and orders granted.

22: I dismiss this contention as being grossly untenable for the reason that Applicant/First Defendant seemingly failed to conduct a file search before raising this ground; for if it did, it would have discovered that a written undertaking was actually filed before the subject ex parte orders were secured. The Respondent/Complainant had filed an undertaking as to damages that the Court actually physically sighted and confirmed before the interim ex parte restraining application was entertained and order subsequently granted. Of course, this Court would not have even (to begin with) considered and granted the order the subject of this Application if no such undertaking was made in writing before the application was considered in the first place. In other words, this issue is always a relevant consideration at the time of the application for an ex parte restraining order relief. I therefore consider this question really to be a non-issue.

Lack of reasonable cause of action, vexatiousness, frivolity; and abuse of process

23: Applicant next claims that the matter should be dismissed in its entirety for disclosing no reasonable cause of action, being frivolous and vexatious; and being an abuse of the process. While I understand and appreciate Counsel's arguments in these respects, I am, as a Court, entitled to consider this argument against the wider general tenor and backdrop of the Complainant's claim, though poorly constructed; I agree!

24: In my view, the Complainant should not be driven from the judgment seat because of poor formulation and particularization of his originating process in the light of the kind of proceeding instituted and the particular relief sought. Besides; the Courts such as this have a Constitutional mandate to conduct their businesses in ways that promote 'dispensation of Justice' as enshrined under s 158(2) of the National Constitution. Here the Respondent/Complainant, being a lay person formulated and filed the proceedings claiming to assert and protect what he perceived to have been an unlawful encroachment and interference with his land and properties without an apparently proper and appropriate regard by the Defendants in their work on the Tsak Valley Road project.

25: To my mind, the Complainant was raising a fundamentally genuine concern for the Defendants to attend to in doing something they seemed to have failed doing prior to the commencement of the actual destruction and construction work; i.e. surveying, identifying and assessing the land owners so affected, the lands and properties involved and the valuations of the damages and destructions for purposes of compensatory payments. Applicant tries to demonstrate to this Court through the affidavit of Andrew Yamanea that the land-owner identification, survey, valuation and assessments for purposes of restitution were carried out by District Administration officers prior to the commencement of the project. From my consideration of the parties' affidavit evidence on file, this statement runs in direct conflict with Cr Joe Betom's affidavit evidence. Cr Betom in his latest affidavit he filed in support of the Respondent/Complainant deposed that he was never consulted nor involved at all as Mr Yamanea claimed in his affidavit to have been the case. I prefer Cr Joe Betom's claim on this point to Andrew Yamanea's affidavit evidence particularly the 4th paragraph of his affidavit. I find that the purported land owner and property identification and valuation exercise seem to me to being an exercise carried out after the subject Order was granted - ex post facto and done purposely albeit to circumvent the subject ex parte Order.

26: The Complainant's claim though poorly formulated, as it were; that was filed and brought to Court in its then current form; was apt to allay the impression of it lacking reasonable cause of action. However as I have found; the Complainant to my mind, has a genuine and a substantive cause of action to pursue in an appropriate forum. I therefore hold the firm view that the Respondent/Complainant has a valid claim to pursue to assert and protect before an appropriate avenue; just that the originating process and the relief sought in this instance and actually did obtain is just unfortunate that he has had to grapple and struggle with as being legally and procedurally out of tune.

27: On the basis of the immediate above discussion, I do not intend to shut out the Respondent/Complainant from the corridors of judgment for pleading his cause poorly but to give effect to the Court's wider and greater duty to so conduct its business in ways that promote dispensation of justice. Though this Court is not interpreting sections or provisions of an Act or legislation, I still consider it my duty as a Court, to so deal with the matter in ways that best dispenses justice in this case. To emphasize this sentiment, I find it most apposite to adopt the words of Cannings J in Wassey -vs- Aigilo & Ors [2005] PNGLR 1 at p.14. "The gates of the Courts should not be locked unnecessarily."

28: I therefore do not agree and accept that the Complainant's claim disclosed no reasonable cause of action, nor is it to my mind, frivolous and vexatious and an abuse of the process of the Court. In my humble view, the Complainant on a wider scale, seems to have a potential claim for damages against the Defendants that is substantially open to him to pursue; just that in the instant case he pleaded an inappropriate cause and sought reliefs that are so poorly formulated and pleaded in manner and form that are markedly incompatible with existing rules, practices and principles. I therefore refuse the Applicant/First Defendant's claim in this respect.

K-Star as opposed to Kaystar as First Defendant's name

29: Applicant/First Defendant took issue that its registered name is K-Star but Kaystar Constructions Limited. I appreciate what Applicant is saying, however, I do not consider it being of any detrimental significance. The general base pronunciation of the name to my mind makes not much difference though the spelling seems to being so. To my mind, this is just a trivial misspelt issue that does not substantially alter the name and operate to obliterate Kaystar Construction Ltd into oblivion nor does it alter significantly the substance and status of the Applicant/First Defendant.

30: Besides, there are no other rival construction firms in Enga to be confused with: K-Star or Kaystar refers to only one road construction firm in Enga owned by Mr Paul Kurai doing the Enga section of the Highlands Highway and the Tsak Valley Road and that it cannot have been any other but this Applicant. I hold the firm view that this purported issue is really a non-issue; in that the misspelling in name does not and cannot in my view adversely prejudice the Applicant nor does it conversely by that fact promote the Complainant's claim and position to an unfair advantageous level. It also does not have the tendency to prejudice the Applicant in its defence to the claim. I therefore hold that the name K-Star or Kaystar is of no greater significance to the substance of the matter before this Court and I accordingly dismiss this argument to being without merit.

District Court; a Court of limited jurisdiction

31: This discussion brings me to another important consideration in so far as it impacts on the propriety of the ex parte restraining orders obtained by the Respondent/Complainant. The District Court is a Court of limited jurisdiction and its powers to grant such orders are defined and demarcated under s 22 of the District Court Act. Section 22 of the Act in my humble view is meant and intended to be ancillary only in nature and not absolute per se; unlike that of the National Court which enjoys a wide-ranging inherent jurisdiction under s 155 of the National Constitution. Under s 22 of the District Courts Act, the District Court can in proceedings for the time being before it, grant ancillary orders open to it to be considered and granted where it so warrants.

Section 22 of the District Courts Act

Section 22 provides;-

"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 counterclaim, 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."

32: In my view, s 22 does not confer powers on the District Court to grant restraining orders per se without a foundational substantive cause of a matter on foot and pending before it or any other tribunal. In other words, a proceeding dealing with a substantive cause within the Court's jurisdiction must first be set on foot and whilst that proceeding is pending before it, s 22 permits of ancillary orders to be made; such as urgent interim restraining orders normally geared towards maintaining a particular status quo pending the determination of the substantive matter.

33: In my humble view, no ancillary orders in the nature of restraining or other interim injunctive orders are to issue in vacuum when there are no substantive matters at the District Court or any other tribunal currently on foot and pending.

34: This discussion brings me to yet another consideration; the Complainant took out a Complaint and Summons supported by affidavit material sworn to by him. It appears clear to this Court that the base relief he sought in the originating process are none but restraining orders against the Defendants as his primary relief. That was the substantive and only claim Complainant claimed in his Complaint and Summons. And then in his Notice of Motion, Complainant sought, inter alia, interim restraining orders against the various Defendants and this relief is much the same and identical or similar to what he specifically claimed in his Complaint and Summons.

35: The current legal position in this jurisdiction forbids interim applications by way of Notice of Motion seeking reliefs in similar or identical terms to that sought in the originating process; for they are held to be abuse of the process of the Court. See John Momis & Ors -vs- Attorney General & 2 Ors [2000] PNGLR 109 which proposition has subsequently been accepted as being the correct legal position in this jurisdiction and is subsequently codified and embodied into rules of practice as s 5(2)(f) of the Motions Amendment Rules, 2005. It is obvious to my mind that the Complainant in filing and moving his Notice of Motion seeking reliefs in similar and identical terms to his substantive relief sought in the originating process markedly offends against this principle. Accordingly, the Application must but succeed also on this point. Conversely, in my view, this position would be different if the Complainant had claimed damages in monetary terms before the Court and whilst that claim is pending, he sought and obtained an interim ex parte restraining order. That, to my humble mind, would have been compatible and consistent with what s 22 of the District Courts Act envisages and sets out to achieve.

36: There are several other legal issues raised and argued emphatically on by Applicant's legal Counsel, Ms Appa who presented her arguments; especially the legal principles in a clear, succinct and lucid fashion that I was able to follow with a keen interest. I was impressed with the manner in which she delivered her arguments which were delivered with such acute clarity; and the brevity of her presentation kept me focussed, even though I thought the presentation was quite long. Counsel raised other matters that I do not consider necessary to discuss or cover them all in this judgment; suffice it to say that relevant and immediate applicable legal issues likely to have immediate bearings on the Application have sufficiently been canvassed and discussed in the judgment.

37: In the ultimate upshot, I reach the humble conclusion that the points of argument advanced in favour of the application to set aside far outweigh points of argument raised in favour of maintaining the interim ex parte restraining order. Further, the balance of convenience, to my mind, favours setting aside the interim ex parte restraining orders than to maintain it; as adequate remedy by awards of compensatory damages are available to the Complainant if he suffers consequential damages as a result of the uplift of the subject ex parte interim restraining order.

38: The final consideration relates to costs issue. The Applicant through Mr Paul Kurai claimed that the subject restraining order greatly prejudiced and jeopardized Kaystar Constructions limited as it cost it about K10, 000 daily for the time machinery and workmen remained idle and not working; all because of the subject restraining order. In dealing with that issue, I do also consider the affidavits of Ishmael Kundal and Cr Joe Betom who each deposed to this one fact; that First Defendant had not and could not have suffered any monetary losses because, as they claim, it continued operating even in the face of the subject restraining order in apparent breach of it (the restraining order). I feel more inclined to accepting Ishmael Kundal's and Councillor Joe Betom's evidence of Kaystar continuing to carry out the work in apparent disregard of the interim ex parte restraining orders. I do so because of the Councillor's claim in his affidavit showing that Applicant was still continuing the work at the project site despite the Order and that it cannot have suffered any loss as per paragraphs 7 & 8 of the honourable Councillor's affidavit of 5th August, 2015.

39: Accordingly, I find that Applicant did not suffer any losses as Mr Paul Kurai claims. I do not therefore accept that Applicant suffered loss of K10, 000 daily due to the effect of the order as I find that they did not stop but continued operating even in the face of the subject restraining Order.

Orders of the Court

40: In the final analysis, the Court Orders as follows;-

1: The interim ex parte order of this Court of 17th June, 2015 is hereby set aside forthwith;

2: The Complaint & Summons filed dated 28th May, 2015 is dismissed as being incompetent and not capable of passing and sustaining before this Court;

3: Question of costs would normally and ordinarily follow the event; but it also being a matter for judicial discretion coupled with the fact that Applicant has been found to have continued operating in apparent violation of the interim order of this Court, I order that each party shall bear his/its own costs of proceeding.

Orders accordingly!

Lawyers:

1: Mr Robin Yallon; Counsel of Yallon & Associates of Wabag, Enga Province for the Respondent/Complainant, Mr Ishmael Kulimbao Kundal

2: Ms Grace Appa; Counsel of Yobone & Co Lawyers of Mt Hagen on instructions as City Agents for Steels Lawyers of Port Moresby for the Applicant/First Defendant, Kaystar Constructions Ltd