N3205

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 502 OF 2006

BETWEEN:

KAIYA DICK for and on behalf of herself
and Ten [10] Others [as per Schedule hereto]
Plaintiffs

AND:

PETER LOK as Head of the
Star Mountains Local Level Government
First Defendant

AND:

STAR MOUNTAINS LOCAL LEVEL GOVERNMENT
Second Defendant

AND:

MATTHEW AWARI as the Community Relations Officer 
for OK Tedi Mining Limited
Third Defendant

AND:

OK TEDI MINING LIMITED
Fourth Defendant

Waigani: Davani, .J
2007: 14 August
6 September

INJUNCTIONS – interim injunction obtained ex parte – must always be made returnable for hearing inter parties – interim ex parte process can be abused – r. 5 (1) (2) of Motions (Amendment) Rules 2005.

INJUNCTIONS – necessity to plead in originating process – failure to plead will result in setting aside of orders - 

Cases Cited:

Wamena Trading v Civil Aviation Authority (2006) N3058.
Mainland Holdings Ltd v Paul Stobbs N2522 .
National Housing Corp. v Yama Security Services Pty Ltd N1985 
Mark Ekepe v William Gaupe N2694 
Sioti Bauf and Lovoi Nadai v Poliamba Pty. Ltd [1990] PNGLR 278
Golobadana No 35 Ltd v Bank of South Pacific Ltd N2309
Gobe Hongu Ltd v the National Executive Council and the Independent State of Papua New Guinea and Barclay Bros (PNG) Ltd and Southern Highlands Gulf Highway Ltd

Counsel:

L. Kari, for the plaintiff
J. Aisa Jnr, for third and fourth defendant

DECISION

6 September, 2007

1. DAVANI .J: Before me is Notice of Motion filed by Allens Arthur Robinson Lawyers on 30 July, 2007, for the third and fourth defendants, seeking orders that ex-parte orders of 15 September, 2006 be varied to allow authorized officers, servants and/or agents of the fourth defendant to remove any of the plaintiffs from any designated markets in Tabubil for breaches of the fourth defendants Small Business Operations – Market Vendors Procedures (‘market procedures’). On the hearing of the motion, Mr Aisa for the third and fourth defendants abandoned paragraph 1 of that notice of motion.

2.     The application is opposed by the plaintiffs.

Background

3.     The plaintiffs are vendors who regularly sell their wares at the fourth defendants market situated at the Tabubil township.

4.     The Tabubil township was built by Ok Tedi Mining Limited (‘OTML’) under the Mining (Ok Tedi Agreement) Act 1976 for the purposes of the operation of the Ok Tedi mine. The Tabubil township is contained within a Special Purposes Lease (lease) under the Land Act 1996 held by OTML. All land within the lease is held by OTML. There are no sub-leases. Businesses and other activities authorized by OTML to operate within the Lease are licensed by OTML to do so. 

5.     The township was constructed for the accommodation of OTML employees and contractors and their families. OTML alone has approximately 2000 direct employees, the great majority of whom live in Tabubil. OTML is responsible for the maintenance of the township, and the security of its employees and their families.

6.     OTML established a market place within the lease for the use of spouses of OTML employees, contractors and public servants living in Tabubil and nearby landowners. Of late, large numbers of squatters from other parts of the country have settled in Tabubil township. 

7.     Because of the increased squatting in Tabubil, in February 2006, the OTML decided to take steps to enforce access to the Tabubil townships markets by allowing only persons who are eligible under the market procedures.

8.     The plaintiffs are affected and aggrieved by the defendants’ action in not giving them access to the market because of the defendants’ strict adherence with the market procedures. By notice of motion filed on 17 July, 2006, the plaintiffs through their lawyer Mr Kari of PNG Legal Services Lawyers, applied to the court and obtained ex-parte orders on 15 September, 2006, that pending hearing of the plaintiffs’ substantive matter, being Originating Summons filed on 17 July, 2006, that the plaintiff be allowed access to the Tabubil market as vendors to sell or produce their wares without further interference from the defendants "unless restricted by an operation of law or regulation."

9.     The court also ordered that the matter be referred to and placed on the alternative dispute resolution courts listing for plaintiffs to expedite the substantive hearing of the matter.

10.     The third and fourth defendants applied to set aside those orders or alternatively that the proceedings be stayed or dismissed. This application was heard by his Honour Justice Los on 11 December, 2006 and a decision handed down on 26 April, 2007 some 4 months later. The formal orders were entered on 7 August, 2007, again 4 months later. Los. J said this at pg. 3 of his brief published reasons;

"It is apparent that the market place is within the boundaries of the mining town and it was meant for the use by the families of the persons who work in the mining town. It is therefore a matter for the OK Tedi Mining Limited to have a policy decision made. It is not the question of who might be legally sell and buy food etc. in the boundary. It is who might be permitted to use the land within the boundary for marketing purposes. The OK Tedi Mining Limited has decided not to allow any person who is not in any way involved with the OK Tedi directly or indirectly to use the market to sell goods. 

Kaiya Dick has asked to continue to use the market because she had used the market for some time when her husband who was an employee of the mine at that time. The husband’s status has changed and hence what she asked for is for the mine to decide. The court is not in a position to decide as by law there is nothing to support the claim in favour of the plaintiff.

I note that an order is in place. That is the matter be placed on alternative dispute resolution court for listing and to expedite the matter to a hearing to the substantive matter, I therefore decline to make any further orders.

I make no orders as to costs. That is, the parties meet their own costs." 
 (my emphasis)

Application to set aside interim injunctive orders

11.     Mr Kari for the plaintiffs submit that when the Defendants earlier motion to set aside the interim injunctive orders of 15 September, 2006 was argued before his Honour Justice Los, that the court heard full submissions in relation to the setting aside of orders and refused the application. I note that the orders taken out by the plaintiff and entered on 7 August, 2007, read as follows;

"1.	The application by the defendants to set aside the ex-parte orders of 15th September, 2006 is refused.

2.	The defendants application to have the whole proceedings dismissed for failing to disclose a reasonable cause of action and it is frivolous or vexatious and is an abuse of process, is declined.

3.	That the matter be placed on the alternative dispute resolution court for listings and to expedite the matter to a hearing of the substantive matter.

4.	Each party meet their own costs."

12.     But these orders were only entered on 7 August, 2007, some 8 months after Los .J heard the application and during that period, 4 months after he made a ruling. Why were the orders not entered earlier? Was it because registry clerks acknowledged that the endorsement on the court file of Los .J’s orders were entirely different to the orders drafted by Mr Kari? That could have been the reason. I say this because the endorsement on the court file reads as follows;

"1.	Matter be placed on the alternative dispute resolution court for listings and to expedite the matter to a hearing of the substantive matter.

2.	Parties meet their own costs."

13.     Clearly, the orders taken out by Mr Kari are not in the terms ordered by the court and shown on the endorsement on the court file.

14.     The endorsement on the court file is also a clear reflection of his Honour’s published reasons. In fact, his Honour did not order that the application to set aside be refused. Nor did he order that the application to have the whole proceedings dismissed, be "declined." He only said that there was nothing to support the claim in favour of the plaintiff because what the plaintiff is asking for is for the mine to decide on because the fourth defendant has made a policy decision on who should use its market. He then ordered that the matter be referred to the alternative dispute resolution court for listing and for the matter to be expedited to a substantive hearing. He also declined to make any further orders. He said; "….I note that an order is in place. That is the matter be placed on alternative dispute resolution Court for listing and to expedite the matter to a hearing to the substantive matter, I therefore decline to make any further orders." (my emphasis)

15.     Which means he did not make any orders in relation to the dismissal or not of the third and fourth defendants motion. In fact, his Honour said that by law, there was nothing to support the claim in favour of the plaintiff. 

16.     However, the plaintiff maintains that the entered orders of 26 April, 2007 are good orders and that the matter was heard on the merits prior to the making of such orders. Mr Aisa for the third and fourth defendants submits otherwise. Although Mr Aisa agrees that the application was declined, he submits that Los .J did not consider and decide on the merits of the application. 

17.     In relation to this uncertainty, both counsel should have put before the court copies of the transcript of that day to show whether his Honour did or did not hear submissions in relation to the setting aside of those interim orders. But this is not before me. Therefore, I can only rely on the good records of the Court. These are his Honour’s published reasons and the endorsement on the court file. And I will not accept the orders drafted by Mr Kari and filed, to be correct, as they do not reflect the orders made by Los .J. The registry clerks or the Registrar should not have sealed those orders without first checking the endorsement on the court file. I find Mr Kari’s behaviour to be most unbecoming of a lawyer and very unethical. Therefore, I am inclined to accept Mr Aisa’s submissions because this is reflected in Los .J’s published reasons and the associates endorsement on the court file.

18.     Which then takes me to the law in relation to the setting aside or varying of injunctions. Mr Aisa referred the court to Wamena Trading v Civil Aviation Authority (2006) N3058. There, Lay .J sets out the principles set by various courts in applications to set aside injunctions. These are;

(a) 	Where the conditions or stipulations of the order have been met and the order is no longer necessary.

(b) 	If it is subsequently discovered by the Court that the interlocutory order was founded on wrong principles.

(c) 	Changes in relevant circumstances, including the failure of the party enjoying the order to act responsibly after obtaining it.

(d) 	It is shown that the party obtaining the order has not come to the Court with 'clean hands'; (See Mainland Holdings Ltd v Paul Stobbs N2522 (lnjia DCJ)).

(e) 	Where the plaintiff has failed to prosecute its action after obtaining an injunction: (See National Housing Corp. v Yama Security Services Pty Ltd N1985 (Sevua J)).

(f) 	If the Court finds that it was misled on the earlier application:
(See Mark Ekepe v William Gaupe N2694 (Cannings J)).

(g) 	In an ex parte interlocutory application the applicant has failed to fully disclose relevant material both for and against the applicant's case: (See Sioti Bauf and Lovoi Nadai v Poliamba Pty. Ltd [1990] PNGLR 278, Golobadana No 35 Ltd v Bank of South Pacific Ltd N2309 (KandakasiJ));

19.     Have the third and fourth defendants satisfied the above principles or any one of them?

20.     Mr Aisa submits that they have. In saying that he expounded on the principles that were satisfied. These are;

21.     Changes in relevant circumstances including the failure of the party enjoying the order to act responsibly after obtaining it – the defendants submit that the plaintiff continues to flout the fourth defendant’s market policies by selling store goods in the fourth defendants markets and relies on the interim orders of 15 September, 2006 to do so. That order is specific, that the vendor can sell its wares without restrictions unless restricted by an operation of law or regulation. The fourth defendant’s market policy are regulations governing the running of its markets. The defendant’s evidence in support of these contentions is the affidavit of Robin Moaina sworn on 12 October, 2006 and Mathew Awari sworn on 21 June, 2007. But these affidavits were relied on by the defendants before the 15 September, 2006 orders. The defendants have not put to the court evidence of the plaintiffs conduct after 15 September, 2006. There should be further affidavit material on the plaintiffs’ alleged reckless and illegal conduct after 15 September, 2006. 

22.     Mr Aisa also relies on Mr Kari’s letter to him of 29 May, 2007 which is before me as annexure ‘JA 4’ attached to his affidavit sworn on 7 August, 2007. In that letter, Mr Kari requests that his client continue to sell store goods that they already have and will not bring in any new goods to sell at the market. He said this will continue until final determination of the substantive matter. Mr Aisa responded by his letter of 12 June, 2007 advising Mr Kari to advise his client not to sell store goods because she is in defiance of the 15 September orders. Mr Kari did not respond to this letter. As a result, Mr Aisa filed the motion that is now before the court because he had given notice by his letter of 12 June, 2007 that he would apply to the court for orders to protect his client’s interests without further notice. 

23.     I find that by his letter of 29 May, 2007, Mr Kari only requests that his client sell store goods. I cannot make assumptions that the plaintiffs were in fact selling store goods. I would have preferred that an affidavit be put before the court by the fourth defendant’s representative that the plaintiffs are in fact selling store goods in defiance of the court orders of 15 September, 2006.

24.     Mr Aisa’s submissions under this leg must fail. This is not a situation as in Mainland Holdings Ltd v Paul Stobbs N2522 where the evidence was available but was not produced. This is a situation where further fresh evidence is not filed.

25.     Did the plaintiff delay in setting the substantive matter down for hearing, after obtaining the injunction? – Mr Aisa relies on his own affidavit sworn on 7 July, 2007 where he deposes this. He deposes at pars. 11, 12, 13 and 14 of his affidavit that after the interim injunctive orders of 15 September, 2006, the court did not give a return date. Instead it directed that the matter go before the alternative dispute resolution court. Mr Aisa submits and deposes that the plaintiffs did not take any steps to expedite the matter to a hearing since 15 September, 2006. It was only by his persistence through the National Court Registry that has now resulted in the matter being listed for directions hearing. 

26.     I accept that the plaintiff’s lawyers have sat on this matter. 

27.     Furthermore, all interim orders obtained ex parte must always have a return date for hearing inter-parties. Courts must not make orders on ex parte applications which will continue until the substantive hearing. The Motions (Amendment) Rules 2005 is specific. It provides for this at R. 5 (1) (2) which reads;

"5.	Urgent ex parte applications.

(1)	Without filing Originating Process and Notice of Motion under Order 14 Rules 9 – 16 of the National Court Rules.

(a)	If a lawyer or a party wishes to make an urgent ex parte application, they must first contact the Registrar or Deputy Registrar by telephone, and by sending a fax setting out the details of the application, and why the matter is urgent.

(b)	The Registrar will then fix a time for the hearing in consultation with the Motions Judge.

(c)	If the judge grants the interim orders sought, they must be made returnable before the Court on a fixed date. The judge must also make orders for filing and service of the Court Order, Originating process, Notice of Motion and supporting affidavit. Undertaking as to damages, security for costs and any other relevant documents, on the defendant or any other person directly affected by the order. (my emphasis)

(2)	Urgent ex parte applications in other cases

(a)	A lawyer or a party wishing to make an urgent ex parte application, must contact the Registrar in writing, explaining the reasons for the urgency and why the requirements for service of the Motion is sought to be dispensed with.

(b)	The Registrar, after being satisfied with the explanation given, will fix a time and date for the hearing of the Motion, in consultation with the Motions Judge.

(c)	The application will not be set down for hearing unless the following documents are filed:-

•	Originating Process;
•	Notice of Motion;
•	Supporting Affidavit/s;
•	Where appropriate, an Undertaking as to Damages;
•	Draft Order.

(d)	The applicant must, in the Notice of Motion, first seek an order dispensing with the requirement for service of the motion. In the supporting affidavit, the deponent must demonstrate the urgency of the matter and the reasons why the requirement for service of the Motion is necessary, such as difficulty with locating the defendant in order for service to be effected. 

(e)	Upon hearing the application, the Judge may make orders including:

i.	An order dispensing with requirements of service;

ii.	An interim order which provides some solution, until the return date;

iii.	Service of the Order, the Originating Process, Motion, Supporting Affidavit, Undertaking as to Damages (where appropriate) and other documents filed in the proceedings, on or by a specified date.

iv.	Giving "liberty to apply";

v.	Giving a specific return date, when the interim orders become returnable before the Motions Judge.

vi.	Affidavit of service of the documents referred to in above.

(f)	A party shall not and the judge shall not make any order in terms of the substantive relief sought in the originating process. (my emphasis)

28.     These rules took effect on 27 September, 2005 and therefore, apply to this case. The plaintiffs’ lawyer should have made this known to either the trial judge or the Registrar, but did not.

29.     An applicant can abuse these orders by not complying with other orders made, in this case, to have the matter listed for substantive hearing. This can be interpreted to mean that the applicant/plaintiff is using the interim ex parte orders to continue to trade. The plaintiffs have clearly breached r.5 (1) (2) of the Motions (Amendment) Rules. If it were not for Mr Aisa’s persistence, the matter would not have been listed before the Directions Court. 

30.     Did the plaintiff plead the injunction in its statement of claim? – An important procedural step by any party claiming an injunction in an interim application, is to plead it also in its statement of claim or in this case, originating summons. I note that the plaintiffs have not claimed injunctive orders in their originating summons. That is in clear breach of principles held and settled in relation to the grant of injunctive orders. In saying that I refer to Gobe Hongu Ltd v the National Executive Council and the Independent State of Papua New Guinea and Barclay Bros (PNG) Ltd and Southern Highlands Gulf Highway Ltd N1920 dated 8th June, 1999.

31.     In that case, his Honour Sevua .J held that;

"It is trite law that a party is not entitled to a remedy he has not pleaded in his claim. In this case, the plaintiff has not claimed an injunction in its statement of claim... I am of the view that the interim injunction should not have been granted then because the plaintiff did not claim it as a relief."

32.     The fact that the injunction was not pleaded and claimed in the originating summons, is sufficient to set aside the interim orders of 15 September, 2006. This is a serious procedural flaw that should have been pointed out to the court on 11 December, 2006 but which was not. I can only assume that because this was not done, his Honour made no mention of this procedural flaw. 

33.     Having reviewed the law and evidence before me including Los .J’s orders of 26 April, 2007, this court finds that the interim orders of 15 September, 2006 and Los .J’s orders of 26 April, 2007, should be set aside. 

34.     The plaintiffs Undertaking as to Damages should be set down for hearing and damages assessed.

35.     I find also that the plaintiffs have not come to court with clean hands. The fourth defendant has rules and regulations in place governing how its market should be run. The plaintiffs must accept that. If they are aggrieved by the fourth defendant’s decision, this action addresses those grievances. An injunction should not be placed against the defendant preventing it from enforcing its rules, and allowing the plaintiffs to conduct activities at the fourth defendants markets without first obtaining the fourth defendants approval, which on the fact of it, appear to be illegal activities.

Formal orders

36.     These are the courts formal orders

1.	The interim orders of 15 September, 2006 and 26th April, 2007, are set aside;

2.	The parties obtain a date for the hearing of the substantive matter and the hearing on the assessment of damages to be drawn from the plaintiff Undertaking as to Damages filed on 15 August, 2006.

___________________________

PNG Legal Services: Lawyer for the plaintiffs
Allens Arthur Robinson: Lawyer for the third and fourth defendant