Eastern Highlands Provincial Health Authority v Forereme [2021] PGNC 465; N9288 (14 October 2021)

N9288

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 244 OF 2021

BETWEEN:
THE EASTERN HIGHLANDS PROVINCIAL HEALTH AUTHORITY
Plaintiff

AND:
MR. MARERIME FOREREME, DR. TOKI ININA, MR. LANSON HINANU,
MR. BENJAMIN SOSO, MR. BOKO MEHIO, MR. GABRIEL WAU, MR. MICHAEL MURI, MR. CLANCY SIMEROX, MR. NOCKSY GUNURE, MR. LAWRENCE NAMARO & OTHERS
First Defendants

AND:
THE PAPUA NEW GUINEA NURSING ASSOCIATION INCORPORATED
Second Defendant

Goroka: Mugugia, AJ
2021: 30^th September, 14^th October

CIVIL – Practice and Procedures – return of ex parte interim injunctive orders – hearing on continuation or discharge of interim injunctive orders – interim orders have not been extended – no Court Order extending or further extending the interim orders – interim orders lapsed and expired.

Cases Cited:

Dick v Lok (2007) N3205
Piari v Samai (2014) N5886
Berasi v Konekaru Holding Ltd (2010) N4189

Counsel

I. Abe, for the Plaintiff
K. Pilisa, for the Defendants

DECISION

14^th October, 2021
1. MUGUGIA, AJ: Ex-parte interim injunctive orders were made by Neill J on 2 August 2021. The interim orders were made returnable on 19 August 2021. The matter was adjourned four times after 19 August 2021. No order for extension of the orders of 2 August 2021 was made on 19 August 2021 or on the four return dates after that. On 30 September 2021, the matter returned before me for the hearing on whether the interim orders of 2 August 2021 should continue or be discharged. The Plaintiff argued that the interim orders should continue. On the other hand, the Defendants argued that the interim orders should be discharged. After hearing parties, I reserved my decision to 14 October 2021, which I now deliver.

2. The terms of the interim orders of 2 August 2021 read as follows:

“1. For the purpose of the application filed today for interim injunctive orders (application), the requirement of service of the court documents as relating to the application is dispensed with.

2. The Plaintiff shall use its best effort to serve without delay a copy of the court documents relating to the application upon Marerime Forereme and upon Nocksy Gunure personally or by delivering a copy of the court documents to their respective residences and giving the court documents to an adult person who appears to live at that residence and by delivering a copy of the court documents to Pilisa Lawyers, Goroka.

3. The Plaintiff shall serve by email or other electronic means a copy of the Orders made pursuant to the application (Orders) on the National President of the Second Defendant and a copy of the other court documents by email or by electronic means or by Express Courier.

4. Service of these Orders is deemed to have been effected on the other defendants in the proceeding as cited, and on all professional staff employed by the Plaintiff and those members of the Second Defendant employed by the Plaintiff by placing a copy of the Orders on the General Public Notice Board located at the Provincial Hospital conducted by the Plaintiff at Leigh Vial Street, West Goroka.

5. Until further Order, participation by the First Defendants or by persons nominated in Order 4, in the intended strike action, whether by sit-in protest or any other means, such as to interfere or likely to interfere with the operation of the Provincial Hospital or other business of the Plaintiff elsewhere in the Province, as has been announced by the First Defendants as planned for Tuesday 3 August 2021, or as may occur at some later time is illegal and a person who disobeys these Orders is liable to contempt of Court.

6. Until further Order, participation by a person nominated in Order 4, whether by agents or whosoever, are restrained from inciting, encouraging, organizing, financing or facilitating any such actions such as would affect any of the Plaintiff’s facilities within the Province and a person who disobeys these Orders is liable to contempt of Court.

7. The Plaintiff, the First and Second Defendants are to report their grievances forthwith to the Registrar of the Public Services Conciliation and Arbitration Tribunal (Tribunal) pursuant to Part IV of the Public Services Conciliation and Arbitration Act.

8. The Plaintiff shall file an Affidavit of Service of the documents as nominated in the Orders before the return date.

9. These orders shall return on 19 August 2021 at 9:30am.

10. Time is abridged to the date of settlement by the Registrar, National Court Goroka forthwith.”

3. The substantive relief that the Plaintiff seeks in its originating summons filed on 2 August 2021 are declaratory orders, a mandamus order and permanent injunctions.

4. I will deal with the issue of whether or not the interim orders of 2 August 2021 have lapsed and expired first. If I find that the interim orders have lapsed and expired then it will not be necessary for me to consider the submissions made by the parties.

5. During the hearing on 30 September 2021, I asked the Plaintiff’s lawyer if the interim orders of 2 August 2021 were extended on 19 August 2021, and if there was any order extending those interim orders. He said that he was not aware of any.

6. I have reviewed the documentation on the Court file and note the following. The matter returned to Court on 19 August 2021. Both the parties’ lawyers were in Court. The matter was then adjourned to 24 August 2021. On 24 August 2021, only the Defendants’ lawyer was in Court. The matter was further adjourned to 27 August 2021. On 27 August 2021, only the Defendants’ lawyer attended Court. The matter was adjourned again to 6 September 2021. This time, both lawyers attended Court, and the matter was adjourned to 27 September 2021. It was finally adjourned to 30 September 2021 for hearing. The matter was adjourned four times after 19 August 2021. No order for extension of the orders of 2 August 2021 was made on 19 August 2021 or on the four return dates after that.

7. In Dick v Lok (2007) N3205, Davani J stated in paragraph 27 of her decision that:
“27....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.”
8. In Piari v Samai (2014) N5886, Kariko J stated these words in paragraph 12 of his ruling:
“12. Where an urgent application is heard ex parte under this Rule and interim orders are issued, orders must be made for service of the court documents on the other parties, and a return date is given for the application to be heard inter partes. Her Honour Davani, J stressed this requirement in Kaiya Dick v Peter Lok (2007) N3205 stating that:

" .. 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".

9. See also Davani J’s decision in Berasi v Konekaru Holding Ltd (2010) N4189.
10. An injunction order lapses on the return date unless the order specifies otherwise or it is renewed on the return date. An ex parte order is never intended to continue to an open ended date. If nothing is done by the set date then it must expire unless specifically extended to another date or superseded by a permanent order in the main proceedings.

11. In the present case, the interim orders lapsed on 19 August 2021 because they were not renewed or specifically extended on this first return date. They were not extended on the return dates that followed. There is no Court Order on the Court file confirming that the interim orders made on 2 August 2021 were extended or further extended. This clearly shows that the interim orders of 2 August 2021 were not extended.

12. The finding I make is that the interim orders of 2 August 2021 lapsed on 19 August 2021, and expired. There no longer exists any ex-parte order.

13. It is therefore not necessary for me to consider the submissions made by the parties on the issue of whether the interim injunctive orders of 2 August 2021 should continue or be discharged.

FORMAL ORDERS

14. The formal orders are:

(1) The interim orders made on 2 August 2021 lapsed and expired on 19 August 2021, and are not in force.

(2) The Parties are to expeditiously progress the matter to substantive hearing.

(3) Costs be costs in the cause.

(4) Time for entry of these orders is abridged to the date of settlement which shall take place forthwith before the Registrar.
________________________________________________________________
I. Abe: Lawyer for the Plaintiff
K. Pilisa: Lawyer for the Defendants