PNG Air Traffic Controllers Association Incorporated v Civil Aviation Authority of Papua New Guinea [2008] PGSC 36; SC950 (3 October 2008)

SC950

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 89 OF 2008

PNG AIR TRAFFIC CONTROLLERS
ASSOCIATION INCORPORATED
First Appellant

CIVIL AVIATION NATIONAL TECHNICAL STAFF
ASSOCIATION INCORPORATED
Second Appellant

V

CIVIL AVIATION AUTHORITY
OF PAPUA NEW GUINEA
First Respondent

THE INDEPENDENT STATE
OF PAPUA NEW GUINEA
Second Respondent

Waigani: Cannings J
2008: 1, 3 October

INJUNCTIONS – stay of proceedings and interim orders pending an appeal against a judgment of the National Court – Supreme Court Act, Section 5(1)(b).

The appellants (then the plaintiffs) commenced proceedings against the respondents (the defendants) in the National Court, challenging the validity of a memorandum of agreement between the parties and seeking orders to prevent implementation of the agreement. The appellants claim that the agreement was signed on their behalf by an unauthorised person. Prior to the trial the appellants applied by motion before the National Court for a number of orders, including an order that the respondents be prevented from implementing the agreement pending determination of the substantive matter. The National Court refused the motion in its entirety and the appellants appealed against the judgment of the National Court refusing the motion. On the same day that they filed their notice of appeal, the appellants filed an application for various interim orders under Section 5(1)(b) (incidental directions and interim orders) of the Supreme Court Act, which states:

Where an appeal is pending before the Supreme Court ... an interim order to prevent prejudice to the claims of the parties may be made by a Judge.

This is a ruling on the application for interim orders.

Held:

(1) The question of whether to grant an application for interim orders under Section 5(1)(b) is a matter of discretion, which must be exercised after taking into account all the circumstances of the case, including:

• whether leave to appeal is required and whether it has been obtained;
• whether there has been any delay in making the application;
• possible hardship, inconvenience or prejudice to either party;
• the nature of the judgment sought to be stayed;
• the financial ability of the applicant;
• preliminary assessment about whether the applicant has an arguable case on the proposed appeal;
• whether on the face of the record of the judgment there may be indicated apparent errors of law or procedure;
• the overall interests of justice;
• the balance of convenience;
• whether damages would be a sufficient remedy.
  

(Gary McHardy v Prosec Security and Communications Ltd, trading as Protect Security [2000] PNGLR 279 applied.)

(2) In the present case, leave to appeal is not required; the appellants have acted quickly to file their appeal and make the application for interim orders; the appellants would be prejudiced if interim orders are not granted; the judgment sought to be stayed is only an interlocutory order; the applicants’ financial position would reasonably be expected to be less secure than that of the respondents; the appellants have an arguable case that the National Court judgment was wrongly decided; the interests of justice and the balance of convenience require that interim orders be granted; and the nature of the appeal is such that it should be able to be prepared for hearing and determined quickly.

(3) The application for interim orders was accordingly granted.

Cases cited

The following cases are cited in the judgment:
Buka Huinj v Kundapen Tila (2004) SC743
Gary McHardy v Prosec Security and Communications Ltd, trading as Protect Security [2000] PNGLR 279
Kumagai Gumi Co Ltd v National Provident Fund Board of Trustees (2005) SC776
National Superannuation Fund Ltd v Pacific Equities and Investments Ltd (2006) SC845
Samson Jubi v Susan Edna Fraser (2004) SC735
Telikom PNG Ltd v Newsat Ltd SCA No 101 of 2008, 01.10.08
Wep Kilip v An Application By The Liquidator, Hugh Mosley (2005) SC784

APPLICATION

This is a ruling on an application for interim orders pending a Supreme Court appeal.

Counsel
D Steven, for the appellants
T Manjin, for the first respondent

3 October, 2008

1. CANNINGS J: This is a ruling on an application for interim orders pending a Supreme Court appeal.

2. The application is made by the appellants, two unions involved in the airline industry, who are in dispute with the Civil Aviation Authority. The dispute centres on a memorandum of agreement entered into between the unions and the CAA on 13 August 2008. The unions say that the agreement was signed on their behalf by an unauthorised person and that therefore it is invalid. They want to prevent it being registered and gazetted by the Industrial Registrar. Their view is that the agreement does not protect their interests and that it should be renegotiated. The CAA says that the agreement was duly signed on behalf of the unions by an industrial advocate that the unions themselves appointed.

3. The dispute found its way into court just two days after it was signed, when the unions filed OS No 463 of 2008 in the National Court, challenging the validity of the agreement and seeking a declaration that the agreement is void and of no effect and orders to prevent its implementation.

4. On the same day that the originating summons was filed, 15 August 2008, the unions filed a notice of motion. The motion was moved on 18 August 2008 before Gavara-Nanu J in the National Court. It was aimed at obtaining a number of orders, including an order that the CAA be prevented from implementing the agreement, pending determination of the substantive matter.

5. Gavara-Nanu J refused the motion in its entirety on the day that it was heard, 18 August 2008, evidently on the ground that the motion was seeking much the same relief as was being sought through the originating summons and therefore argument on the issues should be left to the trial of the originating summons.

THE APPLICATION NOW BEING DETERMINED

6. Four days later, on 22 August 2008, the unions appealed against the judgment of the National Court refusing the motion. On the same day that they filed their notice of appeal, the unions filed an application for various interim orders under Section 5(1)(b) (incidental directions and interim orders) of the Supreme Court Act, which states:

Where an appeal is pending before the Supreme Court ... an interim order to prevent prejudice to the claims of the parties may be made by a Judge.

7. The unions want three sorts of orders. They want:

• the second respondent, in particular the State through the Registrar of Industrial Relations, to be restrained from registering and publishing in the National Gazette the agreement signed on 13 August 2008;
• the first respondent, the CAA, by its servants and agents, to be restrained from taking steps to implement the agreement signed on 13 August 2008;
• the order for costs made by the National Court on 18 August 2008 and the proceedings in OS No 463 of 2008 to be stayed.
  

8. I am satisfied that the application is properly before the court and that I have jurisdiction, sitting as a single Judge of the Supreme Court, to make the type of orders that are being sought.

INTERIM ORDERS ARE A MATTER OF DISCRETION

9. The question of whether to grant an application for interim orders under Section 5(1)(b) is a matter of discretion, which must be exercised after taking into account all the circumstances of the case, including:

• whether leave to appeal is required and whether it has been obtained;
• whether there has been any delay in making the application;
• possible hardship, inconvenience or prejudice to either party;
• the nature of the judgment sought to be stayed;
• the financial ability of the applicant;
• preliminary assessment about whether the applicant has an arguable case on the proposed appeal;
• whether on the face of the record of the judgment there may be indicated apparent error of law or procedure;
• the overall interests of justice;
• the balance of convenience;
• whether damages would be a sufficient remedy.
  

10. An applicant for interim orders does not have to prove that there are special or exceptional circumstances to warrant the making of interim orders. There are no hard and fast pre-conditions that have to be satisfied. Provided that the court exercises its discretion justly and reasonably and in accordance with the principles of natural justice or procedural fairness, the discretion available to the Judge or the Court when deciding whether to grant the interim orders, is very broad. These are the principles emerging from the leading case of Gary McHardy v Prosec Security and Communications Ltd, trading as Protect Security [2000] PNGLR 279. They have been followed faithfully by single-Judge Supreme Court decisions in many cases, including:

• Samson Jubi v Susan Edna Fraser (2004) SC735, Injia DCJ – application for interim orders refused;
• Kumagai Gumi Co Ltd v National Provident Fund Board of Trustees (2005) SC776, Kapi CJ – application granted;
• Buka Huinj v Kundapen Tila (2004) SC743, Hinchliffe J – application granted;
• Wep Kilip v An Application By The Liquidator, Hugh Mosley (2005) SC784, Lay J – application refused;
• National Superannuation Fund Ltd v Pacific Equities and Investments Ltd (2006) SC845, Lay J – application partially granted;
• Telikom PNG Ltd v Newsat Ltd SCA No 101 of 2008, 01.10.08, Gabi J – application granted.
  

11. In the present case, there are a number of considerations that favour the making of interim orders. In particular:

• Leave to appeal is not required. Under Section 14(3)(b)(ii) of the Supreme Court Act, if a party wishes to appeal against the refusal of an injunction (which is what Gavara-Nanu J’s decision amounted to), leave to appeal does not have to be obtained.
  
• The unions have acted quickly to file their appeal and make the application for interim orders. They took both of those steps just four days after the National Court judgment.
  
• The unions will be prejudiced if interim orders are not granted. If the interim orders are not made, it is likely that the agreement of 13 August 2008 will be registered and this will have the effect of pre-determining the case before the National Court.
  
• The judgment sought to be stayed is only an interlocutory order.
  
• The unions’ financial position would reasonably be expected to be less secure than that of the CAA and the State.
  
• The unions have an arguable case that the National Court judgment was wrongly decided, in that it appears that their motion was, amongst other things, seeking interim injunctions and the orders sought under that motion would not have determined the substantive merits of the issues raised by the originating summons.
  
• I consider that the interests of justice and the balance of convenience require that interim orders be granted. Mr Manjin, for the CAA, submitted that the agreement is aimed at resolving a number of long outstanding issues between the unions and the CAA, especially about redundancy payments, and that it is important that these issues be resolved by 31 December 2008 when the CAA’s functions will be apportioned to two new corporations. I appreciate that position and I am sure that everyone – the unions included – want to have these issues sorted out as soon as possible. But I would have thought that the chances of an amicable and expeditious resolution of the issues will not be enhanced by forcing the unions to comply with an agreement that they wanted to disown almost before the ink dried after its signing. The unions have been saying since immediately after the agreement was signed that the person who signed on their behalf did not have the authority to do so.
  
• The nature of the appeal is such that it should be able to be prepared for hearing and determined quickly.
  

12. I consider that the unions have made out a good case for interim orders that will prevent prejudice to their interests. I am not satisfied that the CAA will be unduly prejudiced by the making of the interim orders. I will therefore grant the application and make interim orders in the terms sought by the unions.

ORDER

1 Pending the hearing and determination of the appeal:

(a) the second respondent, in particular the State through the Registrar of Industrial Relations, is restrained from registering and publishing in the National Gazette the agreement signed on 13 August 2008;
(b) the first respondent by its servants and agents is restrained from taking steps to implement the agreement signed on 13 August 2008;
(c) the order for costs made by the National Court on 18 August 2008 and the proceedings in OS No 463 of 2008 are stayed.

2 Costs shall be in the cause.

Stevens Lawyers: Lawyers for the appellants
Legal Officer, CAA: Lawyer for the first respondent