Papua New Guinea Maritime College Board v Tonno [2013] PGNC 202; N5447 (14 December 2013)

N5447

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 370 OF 2012

PAPUA NEW GUINEA MARITIME COLLEGE BOARD
First Plaintiff

CAPTAIN RICHARD TEO, PRINCIPAL, PAPUA NEW GUINEA MARITIME COLLEGE
Second Plaintiff

LOE LAURI, ADMINISTRATION MANAGER, PAPUA NEW GUINEA MARITIME COLLEGE
Third Plaintiff

V

JUSTIN TONNO
Defendant

Madang: Cannings J
2013: 17, 22 October, 14 December

INJUNCTIONS – application for permanent injunction to restrain a person from entering campus of educational institution – quia timet proceedings

ALTERNATIVE DISPUTE RESOLUTION – mediation orders – power of National Court to order mediation on its own initiative: National Court Act, Section 7B(2); ADR Rules, Rule 5(2)(a) – whether the Court can order the parties to attempt mediation of areas of dispute not expressly before the Court.

The plaintiffs sought orders in the form of a quia timet injunction against the defendant to permanently restrain him from having access to or interfering with the operations of an educational institution. The plaintiffs allege that the defendant, a former member of the teaching staff of the institution, was instrumental in organising student and staff unrest at the institution in the period that he was employed there, particularly in May 2012. The defendant denied behaving in the manner alleged by the plaintiffs and argued that there was no good reason for an injunction to be issued against him. He claimed that since he, in June 2012, ceased to be employed by the institution there has been no further unrest, he has not attempted to enter the campus or threatened any harm to any member of the staff or attempted to interfere with the management of the institution. It became apparent during the hearing of the evidence that as well as the question of whether the relief sought by the plaintiffs should be granted, there were two other underlying areas of dispute between the parties: the question of any alleged unpaid entitlements due to the defendant and the question of whether the defendant should be required to vacate any residential properties he, his family or associates are occupying. Three major issues emerged at the trial: (1) what findings of fact should be made regarding the events of May 2012 and the period from June 2012 to the date of trial? (2) should the primary relief sought by the plaintiff be granted? (3) what other orders, if any, should be made by the Court?

Held:

(1) The defendant was heavily involved in encouraging the student boycott of classes from 21 to 23 May 2012, behaved in a threatening, abusive, disruptive and offensive manner at and was responsible for the abandoning of a mediation session at the campus on 23 May 2012 that had been organised in good faith by the principal. He abused and intimidated two eminent persons who had attended the planned mediation. The defendant's conduct provided good and justifiable reason for the decision of the Board to, in effect, terminate his employment with immediate effect on 25 June 2012. However, since the date of termination of his employment and in accordance with an order of the National Court the defendant had not repeated such misbehaviour. There has been no further unrest, he has not attempted to enter the campus or threaten to do any harm to any member of the staff or interfere with the management of the institution.

(2) An injunction is a discretionary remedy and in this case the Court exercised its discretion to refuse the relief sought, for three reasons. (a) The plaintiffs have failed to show that it is necessary to grant such a substantive remedy. There are two factors to take into account when deciding whether to grant a quia timet injunction: the probability of harm and the nature and extent of the harm (Pastor Johnson Pyawa v Cr Andake Nunwa (2010) N4143). Here there is no reasonable probability of harm and if it does occur in the manner that the plaintiffs are concerned about, the plaintiffs can seek the assistance of the Police or bring their concerns to the Court. (b) The plaintiffs have not established a clear cause of action: they have asked the Court to grant an order in a vacuum. (c) To grant an injunction would tend to impose a barrier between the parties, which would distance them from each other, which would not be conducive to the resolution of underlying areas of dispute that still remain.

(3) Though the primary relief sought by the plaintiffs was refused, the interests of justice made it appropriate to order the parties to attempt mediation. The Court on its own initiative ordered the parties to attempt mediation so that all remaining areas of dispute between them can be quickly and amicably resolved, including those areas of dispute that came to light in the trial that were not expressly the subject of the proceedings.

Cases cited

The following cases are cited in the judgment:

Gabriel Yer v Peter Yama (2009) SC996
GK Pacific (NG) Ltd v Anderson (2000) N2062
Louis Medaing v Ramu Nico Management Ltd (2011) N4340
Pastor Johnson Pyawa v Cr Andake Nunwa (2010) N4143
PNG Maritime College Board & 2 Ors v Justin Tonno & 4 Ors, OS No 370 of 2012, 20.12.12

ORIGINATING SUMMONS

This was a trial in which the primary relief sought was a quia timet injunction.

Counsel

F Griffin, for the plaintiffs
W Akuani, for the defendant

14th December, 2013

1. CANNINGS J: The main issue in this case is whether a permanent injunction should be granted against the defendant, Justin Tonno, a former member of the teaching staff of the Papua New Guinea Maritime College, to permanently bar him from having access to the College or interfering with its operations in any way. There were originally four other defendants but the proceedings were dismissed against them by an order of Justice Kariko (PNG Maritime College Board & 2 Ors v Justin Tonno & 4 Ors, OS No 370 of 2012, 20.12.12). The plaintiffs are the Board of Management of the College, the Principal and the Administration Manager.

2. The plaintiffs seek orders in the form of a quia timet injunction, ie an injunction the purpose of which is to restrain apprehended harm or wrongful acts that are threatened and imminent, but have not yet been committed (Louis Medaing v Ramu Nico Management Ltd (2011) N4340). The plaintiffs allege that the defendant was instrumental in organising student and staff unrest at the institution in the period that he was employed there, particularly in May 2012, that he was a disruptive influence, and that he engaged in a series of activities in April and May 2012 that led to the suspension of classes from 21 to 23 May 2012.

3. The defendant denies behaving in the manner contended for by the plaintiffs and argues that there is no good reason for an injunction to be issued against him. He claims that since he on 25 June 2012 ceased to be employed by the College there has been no further unrest, he has not attempted to enter the campus or threatened any harm to any member of the staff or attempted to interfere with the management of the institution.

4. It became apparent during the hearing of the evidence that as well as the question of whether the relief sought by the plaintiffs should be granted, there were two other underlying areas of dispute between the parties: the question of any alleged unpaid entitlements due to the defendant and the question of whether the defendant should be required to vacate any residential properties he, his family or associates are occupying.

5. Three major issues emerged at the trial:

(1) what findings of fact should be made regarding the events of May 2012 and the period from June 2012 to the date of trial?

(2) should the primary relief sought by the plaintiffs be granted?

(3) what other orders, if any, should be made by the Court?

1 WHAT FINDINGS OF FACT SHOULD BE MADE REGARDING THE EVENTS OF MAY 2012 AND THE PERIOD FROM JUNE 2012 TO THE DATE OF TRIAL?

6. The Court heard evidence from six witnesses for the plaintiffs and three witnesses for the defendant. It is clear that there was considerable tension at the campus, arising from allegations of improper conduct against the Administration Manager which were the subject of a petition by staff in April 2012 for his removal and a petition by the Student Representative Council in May 2012. The tension reached a peak in late May, resulting in the suspension of classes and closure of the Administration Office. Having considered that evidence I make the following findings of fact.

7. The defendant was heavily involved in encouraging the student boycott of classes from 21 to 23 May 2012. He behaved in a threatening, abusive, disruptive and offensive manner and was responsible for the abandoning of a mediation session at the campus on 23 May 2012 that had been organised in good faith by the Principal. He abused and intimidated two eminent persons from Divine Word University who, with good and honourable intentions, had attended the planned mediation to provide assistance to the College and its students and staff. The defendant's conduct in my view provided good and justifiable reason for the decision of the Board to, in effect, terminate his employment with immediate effect on 25 June 2012.

8. However, since the termination of his employment and in accordance with an order of the National Court made on 27 June 2012 the defendant has not repeated such misbehaviour. There has been no further unrest, he has not attempted to enter the campus or threatened to do any harm to any member of the staff or attempted to interfere with the management of the institution.

2 SHOULD THE PRIMARY RELIEF SOUGHT BY THE PLAINTIFFS BE GRANTED?

9. Mr Akuani for the defendant submits that the relief sought by the plaintiffs should be refused as the circumstances of the case have entirely changed. The defendant is no longer an employee of the College. There is no evidence that he attempted in any way to interfere with the operations or management of the College. Mr Akuani further submits that granting of the orders sought by the plaintiffs would interfere with certain constitutional rights of the defendant.

10. An injunction is an equitable remedy. It involves an exercise of discretion by the Court. The Court looks at all the circumstances of the case and the conduct of the parties in deciding whether the injunction sought should be granted (GK Pacific (NG) Ltd v Anderson (2000) N2062). I have decided to exercise the discretion of the Court, despite finding the facts generally in the manner contended for by the plaintiffs, by refusing the relief sought, for three reasons.

(a) An injunction is not necessary

11. The plaintiffs have failed to show that it is necessary to grant such a substantial remedy. As a quia timet injunction is sought, there are two factors to take into account: the probability of harm and the nature and extent of the harm (Pastor Johnson Pyawa v Cr Andake Nunwa (2010) N4143). The more likely the harm is to occur and the greater its extent and seriousness if it does occur, the stronger is the case for an injunction to restrain the activity that will cause harm.

12. Here there is no reasonable probability of harm and if it does occur in the manner that the plaintiffs are concerned about, the plaintiffs can seek the assistance of the Police or bring their concerns to the Court.

(b) No clear cause of action

13. The plaintiffs have failed to demonstrate a clear legal basis on which the injunction is sought. Mr Griffin's submission focused on the "unlawful" behaviour of the defendant but was unable to pinpoint the precise civil wrongs or criminal offences of which the defendant had been guilty. The decision of the Court to grant a permanent injunction must be based on a clear legal basis (Gabriel Yer v Peter Yama (2009) SC996). A clear cause of action must be established. Here it is lacking. I uphold Mr Akuani's submission that the Court has been asked to grant a very substantial and permanent order in a legal vacuum. And I agree that the injunction sought would impinge on the defendant's exercise of human rights, in particular the right to freedom of movement under Section 52 (right to freedom of movement).

(c) An injunction may be counter-productive

14. To grant an injunction would tend to impose a barrier between the parties, which would distance them from each other, which would not be conducive to the resolution of the underlying areas of dispute that still remain. The relationship between the parties was in the period April to June 2012 rather noxious. It appears to be still of that character. But it ought not to be. They still have things to sort out. They need to talk. To communicate. An injunction would be counter-productive.

3 WHAT OTHER ORDERS, IF ANY, SHOULD BE MADE BY THE COURT?

15. Having decided to refuse the application for a permanent injunction, one way of bringing the proceedings to finality would be to simply order that the proceedings are dismissed. But that would not solve the problems that exist between the parties. I reiterate that there are two underlying areas of dispute. They were not expressly before the Court but they are bubbling beneath the surface. Those disputes need to be resolved. I have decided to try something novel, even radical. I am going to order the parties to attempt mediation of these other disputes despite those areas of dispute not being expressly before the Court. I will do this on the own initiative of the Court under Section 7B(2) of the National Court Act and Rule 5(2)(a) of the ADR Rules. Section 7B(1) and (2) (power to order mediation, etc) state:

(1) In addition to the jurisdiction vested in the Court by Section 166 of the Constitution, and any other law, the Court—

(a) may order a resolution of a dispute or a matter before it by mediation for an amicable resolution of the dispute; or

(b) may order or direct a proceeding or any part of the proceeding to be inquired into and resolved by an appropriately qualified and experienced person or an expert in the issue.

(2) At any stage of a proceeding, the Court may, whether with or without the consent of the parties, order that the proceeding or a part of the proceeding before it be referred to mediation.

16. Under the ADR Rules the National Court is empowered by Rule 5(2), of its own motion, to order mediation for a resolution of any part of any proceedings provided that at the time of considering whether to order mediation it has regard to the factors prescribed by Rule 5(3). I have had regard to those matters. I consider that: (a) mediation will not result in prejudice to the rights of any of the parties; (b) it is reasonably within the ability and power of the parties to comply with a mediation order; (c) mediation will not entail substantial work for any party; (d) the nature of the relief sought, both expressly and tacitly, lends itself to mediation; (e) a mediation at Madang can be set up very soon and this should be convenient to all parties; (f) neither side has expressed opposition to the prospect of mediation; (g) Court-ordered mediation has not yet been attempted and it should be attempted at least once before consideration is given to further litigation; (h) neither side loses the right to have remaining areas of dispute tried in court; and (i) it is in the interests of justice to attempt mediation as a method of resolving disputes such as this.

ORDER

(1) The relief sought in paragraphs 1 to 7 of the originating summons is refused.

(2) Pursuant to Section 7B(2) of the National Court Act and Rule 5(2)(a) of the ADR Rules the question of appropriate orders and declarations that will finally determine these proceedings, by addressing all remaining areas of dispute between the parties that are incidental to and underlying these proceedings, including the question of any alleged unpaid entitlements due to the defendant and the question of whether the defendant should be required to vacate any residential properties he, his family or associates are occupying, shall be referred to an accredited mediator in accordance with the ADR Rules and a separate mediation order.

(3) The parties will bear their own costs.

Judgment accordingly.
______________________________________________
Young & Williams Lawyers: Lawyer for the Plaintiffs
William Akuani Lawyers: Lawyers for the Defendant