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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS NO. 793 OF 1982
BETWEEN: EMPLOYERS FEDERATION OF PAPUA NEW GUINEA
PLAINTIFF
AND: PAPUA NEW GUINEA WATERSIDE WORKERS AND SEAMAN'S UNION
1ST DEFENDANT
AND: LAWRENCE TITIMUR, TONY HARTWELL AND DIDIULOSI BOSHEN MEMBERS OF THE ARBITRATION TRIBUNAL APPOINTED BY THE MINISTER FOR LABOUR
AND INDUSTRY
2ND DEFENDANT
Waigani
Kapi DCJ
8 October 1982
11 October 1982
CIVIL - Interlocutory Injunction - proper principles discussed.
Cases Referred To
J.T. Stratford and Son Ltd. v. Lindley (1964) 3 All E.R. 102
Fellowes v. Fisher (1975) 2 All E.R. 829 at 841
American Cyanamid Company v. Ethicon Limited [1975] UKHL 1; (1975) 1 All E.R. 504
Norah Mairi v. Alkan Tololo and Others (1976) P.N.G.L.R. 59
Mt. Hagen Airport Pty. Ltd. v. Gibbes and Another (1976) P.N.G.L.R. 216
Mauga Logging Company Ltd. v. South Pacific Oil Palm (1977) P.N.G.L.R. 80
Barnard v. National Dock Labour Board [1953] EWCA Civ 5; (1953) 2 Q.B. 18
Vine v. National Dock Labour Board (1957) A.C. 488
Taumaku Morea v. Central Provincial Government (1978) P.N.G.L.R. 415 at 416
Pyx Granite Company Limited v. Ministry of Housing and Local Government (1958) 1 Q.B. 554
Avia Aihi v. State Unreported judgment, SC195 dated 27th March, 1981.
Reference No.2 of 1981 Unreported judgment, SC224 dated 26th March, 1982.
Legislation Referred To
Industrial Relations Act - Chapter 174.
The Constitution of Papua New Guinea.
INTERLOCUTORY JUDGMENT
KAPI DCJ: On the 4th of June 1982, the first defendant served a log of claims in respect of terms and conditions of employment for waterside workers on the plaintiff. In a letter dthe 13th of J of July 1982, the first defendant requested the assistance of the Department of Labour in the negotiations of thisof claims. This assistance was sted pted pursuant to s.27 of the Industrial Relatielations Act (Chapter 174). The Depar of Labour under nder s.25(3)(b) of the Industrial Relations Act, gave notice to the parties to enter into negotiations.& The parties were unable to come to a settlement. The DepartmenLabour under nder s.28 s.28 of the Act gave notice to the parties for a compulsory conference. notice was given on the 23he 23rd of September 1982. Again, theies did not come come settlement of the log of clof claims at this conference. The tribunal, thond defendefendant, was appointed to hear the dispute.
would appear that during the negotiations, the first defendefendant suggested in settlement an alternative claim, that the plaintiffld consider a 3.5 per cent cent increase on wages across-the-board and that this was put on the basis that this would supercede the log of claims. When the tri commenced itsd its hearing on the 4th of October 1982, the first defendant informed the tribunal of these discussions and informed the tribunal that the claim of 3.5 per cent increase would supercede the log of claims. Thentiff at the hearing obng objected to the tribunal dealing with the 3.5 per cent wage increase. However, subsequently, aftving heard further evidence, the tribunal decided or reversed its decision and indicated thed that it would treat the offer of 3.5 pet increase as part of the dispute and would hear submissions and representations from the pthe parties. This occurred on the afon noon of the 6th of October 1982. The tribunal adjourned its proceedings to recommence at 1.30 p.m. on the 7th of Octobe2. Ild appear that the plaintlaintiff indicated to the tribunal that an application wion would be made to the National Court to the nal from hearing ring and determining the dispute.The plaintiff proceeded to the Nahe National Court by way of a writ of summons No. 793 of 1982 and sought the following remedies:
“1. & A declaration that the sehe second defendant tribunal is improperly constituted and has no power to determine any dispute between the plaintiff and the first dant.
2.&ـ An injuninjunctionction rest restrainiraining the second defendant tribunal from hearing or determining any dispute between the plaintiff and first defendant.
3. ـ I thernlternative, a decl declaration that the second defendant tribunal has no power to hear a dispute between the plaintiff and the first defendant except for that dispute arising f a l claited 4th day day of Juof June 19ne 1982 issued by the first defendant and referred to the second defendant tribunal.
4. ;ټ A60; A decladeclaration that the second defendant tribunal has no power to hear an application by the first defenfor aper cent across the board wage claim nor for any other matter not raised in the sthe said laid log of claims.
5. &ـ A6 inju injunctionction preventing the second defendant tribunal from hearing any claims by the first defendant for a 3. centrise ts members or any other claim outside the terms of the said log of clai claims.&#ms.”8221;
At the same time the plaintiff took out a Notice of Motion seeking an interlocutory injunction against the second defendant to stop it from proceeding with the hearing of the question of 3.5 per cent wage increase. pears from the nature of s of submissions by counsel for the plaintiff that the interlocutory injunction was intended only to stop the tribunal dealing with 3.5 per cent and not the dispute ove log of claims. The The motioe before me e me before lunch on the 7th of October and by consent the parties agreed to adjourn the hearing of the interlocutory application to 1.30 p.m. on Friday the 8th of October 1982. A hearing on the 8th of Ocof October 1982, the first defendant indicated through Mr. McAlister that it does not wish to make any representation on this interlocuapplication. I heard arguments the coun counsel for tfor the plaintiff and the second defendant.
In J.T. Stratford and Son Limited v. Lindley N393.html#_edn984" title="">[cmlxxxiv]1, the House of Lords stated that an applicant seeking an interlocutory injunction must establish a prima facie case. However, it would apphat that the House in that case assumed and adopted this as the correct principle as counsel appearing in that case agreed withogument that this was the proper principle. See Fellowes v. F N393.html#_edn985" title="">[cmlxxxv]2 . However, the Hous thadoppo opportunity to reconsider this principle in the cf American Cyanamid Comp Company v. Ethicon Limited N393.html#_edn986" title="">[cmlxxxvi]
31. ـ I60; Is there action not frivolous or vexatious? Is thererious question to n to be tried? Is there a real prospect that the appt wilceed e clar an injunction at the trial?rial? All thuestions laid down down down the sthe same tame test. See Sm. Inner London Edon Edon Authority (1978) 1 All E.R. 411 at 419.
2.. ;ټ The Coue Court must must then consider whether thence of convenience lies in favour of granting or refusing iing interlocutory relief.
3. ټ&#A60; bahe ba of ciof cience tnce the cohe court surt should first consider whether if the applicant succeeds, he would be adequately compensated by damagesthe lustaietween the application and the trial, ial, in whin which cach case no interlocutory injunction should normally be granted.
4. Ia damwoes noldprov de ande an adequate remedy the Court should then consider whether if the applicant fails, the defendant would be adequately compensated under the applicant's undertaking in damages, in which case there would be no reasons on this ground to refuse an interlocutory injunction.
5. &##160; T60; Then one goeso n tsidonsider all the other matters relevant to the balance of convenience, an important factor in the balance should, other things been even, presehe stquo; p>
6. #160; When Whl all oaler ther things are equal it may be proper to take into account in tipping the balance the relative strength of each party's case as reviewed by the evidence before the Court hearing the interlocutory application.
These principles have been applied, explained, clarified or distinguished in subsequent cases. See llowes v. Fisher ((supra), Smith v. Inner London Education Authority (supra). Sso cases discussed in Chan Chapter 14 Civil Litigati> (1st Ed.) by John O'Hare Robert N. Hill. See also also Article “Interlocutory Injunction since Cyanamid” 1981 idge Law Journal pp. 307-3307-339. T>American Cyanamid Case
The counsel for the second defendant has submitted that the writ of summons for declaration and injunction is misconceived as this types of proceedings can only be dealt with by a prerogative writ. He therefubmitted that thet the applicant would not have any prospect of success in the trial of the issues at the hearing. However, I wnot accept thit this submission. The law in this regard in England has been well settled. Simirguments were put to t to the Court of Appeal in the case of Barnard v. National Dock Labour Board N393.html#_edn990" title="">[cmxc]77. Lording answered thes thes these submissions in the following words at p.41:
“Finally, Mr. Paull said (and it was his principle argument) that these Courts have no right to interfere the decisions of statutory tory tribunals except by the historical method of certiorari. He drealarming picture of e of what might happen if once the court intervened by way of declaration and injunction. It meant, he saidt anyone yone who was dissaed with the decision of a tribunal could start an action inon in the courts for a declaration that it was bad, and thus, by a side-wine could get an appeal to the courts in cases where Parliamrliament intended that there should be none. I think that there is morc force in Mr. Paull's contention; so much so that I am sure that in the vast majority of cases the courts will not seek to inre with the decisions of statutory tribunals; but that there is power to do so, not only byly by certiorari, but also by way of declaration, I do not doubt. I of no limit to the powerpower of the court to grant a declaration except such limit as it may in its discretion impose upon itself; and the court should not, I think, tie its hands in this matter of statutory tribunals. It iomatic that when a staa statutory tribunal sits to administer justice, it must act in accordance with the law. Parliamentrly sended.  If the tribunal doe observbserve the law, what is to be done? 160; The remedy by crari iari is hedged roy limitations and may not be available. Wen should the court interintervene by declareclaration and injunction? If it cannot servene, itd ould mean that the tribunal could disregard thed the law, which is a thing no one can do in this country. The authoritiew clethat that the courts can intervene.”
This principle was approved and appl applied by the House of Lords in Vine tional Dock Labour Board N393.html#_edn991" title="">e="">[cmxci]8. See al>Taumaku Morea v. Cev. Central Provincial Government N393.html#_edn992" title="">[cmxcii]
Counsel for the applicant has submitted that the second defendant was appointed to hear a dispute reng the log of claims submitted by the first defendant.  He tted that the 3.5 per cper cent wage increase was not part of the log of claims and has never been the subject of dispute between the plaintiff and the first defendant. He submitted thattribuhichwhich was appointeointed under the Industrial Relations Act was appointed specifically to arbitrate the dispute on th of claims. The logical extensi this ahis argument is that if the first defendant witt withdrew the log of claims, there would be no industrial dispute for which the tribunal was established. He therefore submitted that the tribunal has no jurisdiction to determine the question of 3.5 per cent wage increase.
Part III of the Industrial Relations Act (Chapter 174) death the settlement of industrial disputes. Under thesethese provs, whs, where there is an industrial dispute, negotiations are allowed to take place between the parties and also under the supervision of the Department of Labour with a view to come to a setnt. However, when alln all attempts to settle the dispute are exhausted the dispute is then reported to the Minister for Labour under s.29 of the Act. The HeaState may direct thct the departmental head to refer the industrial dispute to a tribunal for a decision. It should be emphasiz far far as this case is concerned that the tribunal is only referred the dispute in question and only has jurisdiction to deal with that dispute and no other. The critical question which arises in this case is - What was the dispute which was reported to the Minister under s.29, sub-s.1, of the Act? What was the inial disputespute which was red to the tribunal under s.29, sub-s.2 of the Act? F60; From the eve before more me, the major dispute between the plaintiff ae first defendant relates to the log of claims which was suas submitted by the first defendant. As f I can see from the evhe eve, the negotiations betweentween the parties and under the supervision of the Labour Department at the compulsory conference related y to this log of claims. It is not disputed that that that during the course of this negotiations, the question of the alternative claim of 3.5 per cent wage increase was raised. The evidencws that no agre agreement was reached in relation to this alternative claim of the 3.5 per cent wage increase. There is no evidbefore me e me in the affidavit regarding the contents of tport of the dispute to the the Minister under s.29(1) of the Act. Tin my view, is significanficant because it forms the basis he reference to the tribunaibunal which gives it the jurisdiction. Tly evidence before me whie which may indicate the nature ofdispute which then forms thms the basis of the reference to the tribunal is the notice fixing the time and place for hearing of the irial dispute by the tribunaibunal dated the 4th of October 1982. It has not been disputed that the tribunal has been duly appointed under the Act. The only eve before me inde indicating the nature of this reference to the tribunal is this notice whits out the nature of the claim. And notice simplsimply rely related to the log of claims submitted by the first defendant. There isndication from thim this notice that the hearing also related to the alternative claim of the 3.5 per cent increase. As faI canrtain from the ethe evidence it would appear that the reference to the tribunal relateelates only to the log of claims. Ths no evidence before mere me that the reference to the tribunal also included the alternaternative claim of 3.5 per cent wage increa160; I have therefore come to the conclusion having regard to this evidence that there is a is a serious question to be tried.
On the question of balance of convenience, the particular facts in this case are special and need special consideration. is no dispute that the trhe tribunal should continue its hearing on the log of claims. Howeverthe tribunal was alas allow deal with what appears to me to be a separate claim (i.e. 3.5 per cent wage increase) with with the disputed matters in the log of c, this may well affect the consideration of the matters rais raised in the log of claims and an award may be made rejecting all the claims in the log of claims and instead make an award only on the question of a general wage increase. If the plaintiff is ssful sful in the substantive action that the tribunal had no jurisdiction on the question of general wage increase then such and would have no effect.
I consider in the circumstances, the status quo should be prbe preserved until the substantive action is determined. I consider in the interesterest of all parties that this should be clarified before the tribunal proceeds to deal with the claim of 3.5 per cent wage increase. Having co this conclusion,sion, I should point out that the facts which led to the establishment of the tribunal are incomplete and disputed. These matters can be resolved in the substantive actip>
There is also an alte alternative method of proceeding with this interlocutory injunction under s.155(4) of the Constitution See Mauga Logging Company Ltd. v. South Pacific Ofic Oil Palm (supra), Avia Aihi v. State N393.html#_edn994" title="">[cmxciv]11, Reference No.2 of 1981 N393.html#_edn995" title="">[cmxcv]12. Under provision, I would culd come to the same conclusion.
The applicant is willing to give an undertaking for any costs the tribunal may incur as a result of the injunction. I make thit of rder.
Soli>Solicitor for the Plaintiff: Beresford Love & Company
Counsel: Mr. B. Larkin
Solicitor nd Defendant: Mr. Charles Maino, Principal Legal Advisor
Counsel: Mr. R. Gunson
N393.html#_ednref984" title="">[cmlxxxiv](1) (1964) 3 All 1.R. su2>
N393.html#_ednref985" title="">[cmlxxxv](2) &#(10; ) 2 All EAll E.R. 82R. 829 at 841
N393.html#_ednreednref987"f987" title="">[cmlxxxvii](4) ( P.N.. 59
<
N393#_ednref988" title="">[cmlxxxviii](5)) (60; (1976) P.N.G.L.R
N393.htmnref9itle="">[cmlxxxixxxxix]](6) (1977) P.N.G.L.R. 80N393.html#_ed90" title="">[cmxc](7) ټ&##160;< < (19 Q.B. 18
N393._ednrefdnref991" 991" titletitle="">[cmxci](8) & < (1957) A.C. 488>
[cmxcii](9) &##160;; < (60; (1978) P.N.G.L.R. t 4 at 416
[="">[cmxcicmxciv](11) ټ Unreported jued judgment, SC 195 dated 27th March, 1981.
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