Nakau v Gabuogi [2012] PGNC 144; N4883 (12 November 2012)

N4883

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 340 OF 2012

GASPAR NAKAU & LEONARD SARIKEY KAPTIGAU
Plaintiffs

V

MOSES GABUOGI, CHAIRMAN,
GOVERNING COUNCIL, MADANG TEACHERS COLLEGE
First Defendant

STEPHEN POTEK, PRINCIPAL,
MADANG TEACHERS COLLEGE
Second Defendant

Madang: Cannings J
2012: 9, 12 November

PRACTICE AND PROCEDURE – motion to discharge interim order – relevant considerations when deciding whether an interim order should be discharged or varied.

The National Court made an interim order restraining the defendants from evicting the plaintiffs from institutional housing that they were occupying in their capacity as lecturers at a tertiary educational institution and from harassing them in regard to their teaching duties. The defendants subsequently applied by motion to have the interim order discharged.

Held:

(1) The Court has power to discharge or vary an interim order and in exercising its discretion whether to do so takes into account considerations including whether there has been a change in circumstances rendering continuation of the interim order unnecessary or inappropriate, the conduct of the parties, whether there are previously undisclosed material facts that have been discovered since the interim order was made, whether the interim order was made on an erroneous legal basis, whether the grounds relied on to discharge the interim order have been previously argued and whether the Court was misled when it made the interim order (Mainland Holdings Ltd v Stobbs (2003) N2522 applied).

(2) The Mainland Holdings considerations favoured discharging the interim order, and there was no good reason for the interim order remaining.

(3) The interim order was accordingly discharged.

Cases cited

The following cases are cited in the judgment:

Island Helicopter Services Ltd v Wilson Sagati (2008) N3340
Joseph Sanga Kumbu v Dr Nicholas Mann (2012) N4784
Mainland Holdings Ltd v Stobbs (2003) N2522
Mark Ekepa v William Gaupe (2004) N2694
Pacific Native Timbers (PNG) Ltd v Andrew Donaldson (2005) N2933
Pius Nui v Senior Sergeant Mas Tanda (2004) N2765
Wawoi Guavi Timber Company Ltd v Ken Norae Mondiai (2007) SC1018

NOTICE OF MOTION

This was an application made on the return of an interim order for the discharge of the order.

Counsel

T M Ilaisa, for the plaintiffs
W Akuani, for the defendants

12 November, 2012

1. CANNINGS J: This is a ruling on a motion by the defendants to discharge (ie set aside or dissolve) an interim order previously made by this Court. The case relates to the management and control of Madang Teachers College and the confusion that has arisen during the course of the 2012 academic year as to which members of staff are holding senior positions. All events referred to in this judgment have occurred in 2012.

2. The case commenced on 7 June when two members of the academic staff, the plaintiffs Mr Gaspar Nakau and Mr Leonard Sarikey Kaptigau, filed an originating summons seeking various orders, including that the defendants, the Chairman of the Governing Council Mr Moses Gabuogi and the Principal Mr Stephen Potek, be restrained from evicting them from their institutional housing. The plaintiffs had on 10 May been served with notices by Mr Gabuogi requiring them to vacate their institutional houses and to leave the College on the ground that they had not been appointed by the National Education Board to any positions at the College for the 2012 academic year.

3. On 22 June Gavara-Nanu J made an interim order that restrained the defendants from "evicting the plaintiffs ... from occupancy of the houses they are occupying at the Madang Teachers College" and from "harassing, threatening, intimidating or causing any inconvenience or harm to the plaintiffs from performing their teaching duties at the Madang Teachers College". That order was set aside by Davani J on 19 July due to the failure of the plaintiffs to appear at the appointed time to argue their case for continuation of the order. On 18 October I reinstated the order of 22 June on application by the plaintiffs, on condition that the question of whether that order should continue returns to court for a full hearing. The defendants then filed a motion specifically asking for an order that the orders of 22 June and 18 October be discharged.

4. Despite the apparent complexity created by the matter coming in and out of court several times the issue now before the Court is a simple one: should the interim order of 22 June be discharged? I am not dealing with the substantive issue of whether all the orders sought in the originating summons should be granted. There will need to be a trial before consideration is given to those matters, and there has been no trial yet.

POWER TO SET ASIDE INTERIM ORDERS

5. It is uncontroversial that if the National Court has made an interim order (ie an interlocutory order, an order made in the course of proceedings before a determination of the question of substantive relief) it has the power to discharge or vary it. This is made clear by Order 12, Rule 8(4) of the National Court Rules, which states:

... the Court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.

6. The power to discharge or vary an interim order can be exercised by any Judge, not only by the Judge who made the interim order. If, as in this case, the interim order was made ex parte, Order 12, Rule 8(3)(a) of the National Court Rules is also relevant. It states:

The Court may, on terms, set aside or vary an order ... where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order ...

7. It is also uncontroversial that in exercising its discretion whether to set aside or vary an interim order the Court will take into account the considerations outlined by Injia DCJ, as he then was, in the leading case Mainland Holdings Ltd v Stobbs (2003) N2522 (which I have followed, for example, in Mark Ekepa v William Gaupe (2004) N2694, Pius Nui v Senior Sergeant Mas Tanda (2004) N2765 and Pacific Native Timbers (PNG) Ltd v Andrew Donaldson (2005) N2933), including:

1. whether there has been a change in circumstances rendering continuation of the interim order unnecessary or inappropriate;
2. the conduct of the parties;
3. whether there are previously undisclosed material facts that have been discovered since the interim order was made;
4. whether the interim order was made on an erroneous legal basis;
5. whether the grounds relied on to discharge the interim order have been previously argued; and
6. whether the Court was misled when it made the interim order.
   

THIS CASE

8. Mr Ilaisa for the plaintiffs submits that that there is no good reason to set aside the interim order of 22 June. The order was properly made to protect the interests of the plaintiffs who were being victimised as they were the whistleblowers who had brought to light very serious allegations of misappropriation and mismanagement at the College, particularly against the second defendant, Mr Potek. An attempt had been made to evict the plaintiffs and their families from their homes at short notice and to remove the plaintiffs from the academic staff of the College. Very recently, on 29 October, the Momase Regional Adviser of the Teaching Service Commission, Mr Joseph Ouyoumb, purported to suspend one of the plaintiffs, Mr Nakau, and charge him with a disciplinary offence, in spite of the interim order of 22 June being in place. Continuation of the order is necessary to ensure stability in the management of the College and is in the best interests of the students as the academic year comes to a close, Mr Ilaisa submitted.

9. I have carefully considered those submissions, however I have been persuaded by the submissions of Mr Akuani for the defendants that the considerations outlined in the Mainland Holdings case favour the discharge of the interim order. In particular:

1. Change in circumstances: There has been a change in circumstances rendering continuation of the interim order unnecessary or inappropriate in three respects. First, the plaintiffs are no longer at risk of being evicted from their institutional housing. Mr Gabuogi has conceded (in an affidavit filed on 20 July) that the Governing Council's decision to terminate the employment of the plaintiffs and to serve them with eviction notices was made in error. The plaintiffs have been reinstated to their substantive positions. The Council is no longer seeking to evict them. By altering its position the Council is acting in accordance with instructions from the Acting Chairman of the Teaching Service Commission, Mr Baran Sori, conveyed in letters dated 25 May and 2 July, and the Secretary for Education, Dr Musawe Sinebare, conveyed by a letter dated 29 June. Secondly the allegations against Mr Potek are the subject of an official investigation. He was suspended on 2 August and an acting Principal, Mr Mathias Sully, has been appointed. Thirdly, Mr Sully deposes in an affidavit filed on 22 October that there is no longer uncertainty or unrest at the College.
   
2. Conduct of parties: I am not impressed by the conduct of Mr Nakau who, I find, has been misrepresenting to the staff and students that he is the Deputy Principal (Academic) despite there being in place a decision made by the National Education Board at Kimbe on 16 February that the Acting Deputy Principal (Academic) is Mr Serongke Sondo. Any doubt about Mr Nakau's status was removed by a letter to him by the Acting Chairman of the Teaching Service Commission, Mr Sori, dated 10 October, which stated amongst other things:
   

You are hereby directed to take up your substantive position No 1090102720 at Madang Teachers College. Mr Sondo is the legitimate acting Deputy Principal Academic at Madang Teachers College. You are also directed to vacate the Deputy Principal Academic's office by 4.06 Friday (12/10/12). Mr Sondo will then move into the office.

10. Mr Nakau is no doubt aggrieved by the decision of the National Education Board as he was until this year the Deputy Principal (Academic) and feels that he has been victimised but that gives him no right to ignore the decision. The Court has not set aside that decision and he has a legal and moral obligation to abide by it. Mr Nakau's misrepresentation of the true position has continued into October by his holding himself out as Deputy Principal (Academic) and promulgation of a teaching timetable that conflicted with a timetable promulgated by Mr Sondo. Mr Nakau has also refused to vacate the physical office of the Deputy Principal (Academic), which has led to him being charged by Mr Ouyoumb.

11. By contrast, I find nothing irregular in the conduct of the defendants. Mr Gabuogi, as explained above, has accepted that the decision to terminate the plaintiffs and evict them from their institutional housing was made in error. Mr Potek has accepted his suspension and appears to be patiently awaiting the outcome of the investigation of his management of the College. I add that I find nothing prima facie irregular in the decision of Mr Ouyoumb to charge Mr Nakau with a disciplinary offence and to suspend him.

3. Undisclosed facts: There are previously undisclosed material facts that have been discovered since the interim order was made: Mr Gabuogi's change of position, Mr Potek's suspension and Mr Nakau's defiance of the decision of the National Education Board and the direction of the Acting Chairman of the Teaching Service Commission.
   
4. Legal basis of order: The interim order was, to some extent, made on an erroneous legal basis in that it was expressed to be made pursuant to Order 14, Rule 9 of the National Court Rules which should only be relied on as a source of jurisdiction "on the application of a person who intends to commence proceedings", whereas here the proceedings had already commenced (on 7 June) by the time that the interim order was made (on 22 June).
   
5. Grounds not argued: The grounds relied on to discharge the interim order have not been previously argued as both the interim order of 22 June and the order of 18 October reinstating it were made ex parte.
   
6. Court misled: The Court was misled by the plaintiffs and their counsel when it made the interim order in that Mr Nakau was held out as Deputy Principal (Academic) when the true position was that he no longer held that position.
   

CONCLUSION

12. All considerations in Mainland Holdings favour the discharge of the interim order. There is no good reason for it to continue. All parties agree that the interests of the students of Madang Teachers College are paramount, especially at this critical time of the year when they are sitting final examinations. There needs to be stability in the management of the institution. Stability will be enhanced if the interim order is set aside. All parties to these proceedings are urged to cooperate with each other to ensure an orderly conclusion to the academic year, which means accepting and respecting that, for the time being:

(a) the Chairman of the Governing Council is Mr Gabuogi;
(b) the Principal, Mr Stephen Potek, is under suspension;
(c) the Acting Principal is Mr Mathias Sully;
(d) the Acting Deputy Principal (Academic) is Mr Serongke Sondo;
(e) the plaintiff Mr Nakau is under suspension;
(f) the plaintiff Mr Sarikey is not under suspension and is required to perform the duties and responsibilities of his substantive teaching position.

13. I will reserve the question of costs which is best determined by notice of motion as there may be a case for an award of costs on a solicitor-client or indemnity basis against the plaintiffs or their lawyers, which should only be pursued by notice of motion (Wawoi Guavi Timber Company Ltd v Ken Norae Mondiai (2007) SC1018, Island Helicopter Services Ltd v Wilson Sagati (2008) N3340, Joseph Sanga Kumbu v Dr Nicholas Mann (2012) N4784).

ORDER

14. For the reasons set out above the court makes the following order:

(1) The interim orders of 22 June 2012 and 18 October 2012 are discharged.

(2) The question of costs is reserved.

(3) Time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Ordered accordingly.
___________________________

Thomas More Ilaisa Lawyers & Attorneys: Lawyers for the Plaintiff
William Akuani Lawyers: Lawyers for the Defendants