Logona v Roaveneo [2016] PGSC 14; SC1498 (27 April 2016)

SC1498

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA. 19 OF 2014

BETWEEN:

REI LOGONA
First Appellant

AND:

AIR NIUGINI LIMITED
Second Appellant

AND:

MEISSY ROAVENEO
First Respondent

AND:

NATIONAL FLIGHT ATTENDANT
ASSOCIATION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Sawong J & Frank J
2016: 22nd February, 27th April

Cases Cited:

Air Niugini v Alphmeledy K. Joel as Secretary for Labour & Employment [1992] PNGLR 132
Gabriel Yerr v Peter Yama (2009) SC 990
Mainland Holding Ltd v RD Tuna Cannery Ltd [2000] PNGLR, 213
Niugini Civil & Petroleum Ltd v West New Britain Development Corporation (2005) N2909
Olympic Stationery v The State (2001) N2194
Russell on the Law of Arbitration, 18th Edition, London
The International Hotel v Registrar of Titles (2012) N4618
Yama Group of Companies v PNG Power Ltd (2005) N2831

Text

Counsel:

E. Issac, for the Appellants
O. Ogen Dekas & M. Murray, for the Respondents

27th April, 2016

1. BY THE COURT: This is an appeal against a decision of the learned trial judge in the National Court made on 3rd March 2014.

BACKGROUND

2. The First Respondent is a former employee of the Second Appellant (Air Niugini). She is a financial member of the Second Respondent (the Union).
   
3. On 3rd December 2013, Air Niugini suspended the First Respondent over some allegations of misconduct, alleging stealing, fraud and personal gain from her employment with Air Niugini.
   
4. On 10th December 2013, the first respondent responded to the allegations against her in writing denying the allegations.
   
5. Air Niugini considered her reply to the allegations and found that she was guilty of the allegations against her, and terminated her services on 12th February 2014.
   
6. On 21st February 2014, the respondents commenced proceedings by way of an Originating Summons in the National Court seeking declaratory and consequential orders.
   
7. The Respondents relied on s.155 (4) of the Constitution to declare the termination of the services of the First Respondent unlawful for want of compliance with Clause 34 of an Industrial Award Internal between Air Niugini and the Union.
   
8. In that decision the trial judge granted interim injunctions against the Appellants in the following terms:
   
   • (i) An order restraining the Defendants from terminating (which has taken place) the First Respondent from employment with the Second Defendant until the final determination of this matter under clause 34 of the Agreement.
     
   • (ii) An order restraining the defendants from removing (which has taken place) the First Plaintiff from payroll by the Second Defendant until the final determination of this matter under clause 34 of the Agreement.
     
   • (iii) An order re-instating the First Plaintiff to her former position of engagement as international flight attendant with the Second Defendant with full pay until final determination of clause 34 of the Agreement.
     

(iv) An order restraining the Defendant from taking steps to evict the First Plaintiff from her company provided accommodation until such time this Honourable Court determine otherwise or a determination hearing under clause 34 of (Grievance Board – Internal).

9. The appellants being aggrieved by the decision of the learned trial Judge filed an appeal against that decision.
   

GROUNDS OF APPEAL

10. In the Notice of Appeal the Appellants pleaded file (5) principle grounds. However, these have been condensed to four (4) grounds. We will consider the appeals along the same line. The grounds of appeal may be summarised as follows:
    
    • (a) The learned trial Judge erred in law and in fact in granting the interim injunctions when the acts, subject of the injunctions sought, had already occurred.
      
    • (b) The learned trial Judge erred in law and in fact in the exercise of his discretion in granting the interim injunctions as there was no serious issues raised for determination in the substantive claim, that the orders sought in the Notice of Motion were materially the same as pleaded in the Originating Summons, which amounted to an abuse of process.
      
    • (c) The learned trial Judge erred in the exercise of his discretion in failing to consider whether or not damages would be an adequate remedy, and when the First Respondent did not give any undertaking and the undertaking given by the Second Respondent was not under seal.
      
    • (d) The learned trial Judge erred in law and in fact, in that the failure to consider or given sufficient consideration to the fact that the Respondents did not exhaust the alternative dispute resolution provided for under Clause 34 of the agreement.
      

Relevant Principles

11. There are no serious issues between the parties as to relevant principles in relation to grant or refusal to grant interim injunctions. The only point of contention is really the application of those principles to facts of this case.
    
12. The parties have made both oral and written submissions. We have heard and considered those submissions. We will refer to them in the course of our decision.
    
13. We propose to consider Ground 4 first.
    

GROUND 4 - FAILURE TO CONSIDER THAT CLAUSE 34 HAD NOT BEEN EXHAUSTED

14. In this ground, the Appellants submit that the learned trial Judge erred in law and in fact in dealing with the proceedings before him, in that respondents had not exhausted the dispute resolution process agreed to by the parties as set out in clause 34 of the Agreement between the parties.
    
15. The Appellants submitted (AB:114; lines 7-10) that under clause 34, it is for the First Respondent to invoke clause 34 for the Appellants to take the steps required of them under that clause.
    
16. The respondents submit that the learned trial judge did not commit any error of law or in fact, and that the respondents were entitled to seek relief in the Court.
    
17. It is clear from the substantive relief sought in the Originating Summons that the Respondents accept the dispute resolution process established under clause 34.
    
18. The point of difference between the parties is as to its application. Effectively, the Respondents say that the right to terminate under clause 33.4.2 is to be exercised only after the dispute resolution process under clause 34 has been invoked and exhausted.
    
19. The issues this raises are –
    
    • (a) Whether the exercise of the right to terminate under clause 33.4.2 is subject to the exhaustion of the dispute resolution process under clause 34; and
      
    • (b) Whether the court should allow a party to a dispute resolution agreement to invoke the jurisdiction of the court without first exhausting the dispute resolution process under such an agreement.
      

Is clause 34 subject to clause 33

20. Clause 33 (AB:63-64) provides –
    

"33.1 The Employee may terminate his/her employment at any time either by giving four (4) weeks written notice to the Employer or without such notice by forfeiting four (4) weeks' salary.

33.2 The Employer may terminate the Employee's employment at any time by giving the Employee four (4) weeks written notice or by the payment in lieu of such notice.

33.3 The Employer may retrench an employee where an Employee's position is made redundant due to operational requirements or organizational changes. Retrenchment benefits to the employee shall be as per the Retrenchment Policy.

33.4 If the Employee is alleged of misconduct, the Employer may take but not limited to the following actions;

33.4.1 ...

33.4.2 The Employer shall exercise the right to terminate the Employee without notice, in which case the Employee shall be paid to the date of his/her termination." (Underlining Added)

21. Clause 34 of the Agreement between Air Niugini and the Union sets out a dispute resolution process. It reads:
    

"34.1 There shall be a Grievance Board consisting of five (5) members, two (2) of whom shall be selected and appointed by the Flight Attendant Association and two (2) by the Employer, together with an independent Chairman who shall be appointed by the Secretary of the Department of Labour and Industrial Relations.

34.2 The Grievance Board shall be empowered to deal with the settlement of disputes arising out of the Agreement, but in no case shall a Grievance Board have power to vary the rates specified in this Agreement or order the payment of rates other than those specified in this Agreement.

34.3 The Flight Attendant and the Employer/Company may arrange such representation before the Board and call such witness as they wish in support of their respective case.

34.4 Decision of the Grievance Board shall be binding on both parties. In the event of the members of the Board being eventually divided in opinion, the Chairman shall cast his vote as the decider by majority decision.

34.5 Either party to this Agreement aggrieved by a Determination of the Grievance Board may at any time appeal to the Secretary for Department of Labour and Industrial Relations against a Determination of the Grievance Board and the Secretary for Department of Labour and Industrial Relations may uphold, dismiss and vary the Determination.

34.6 Any party still aggrieved by the decision of the Secretary for Department of Labour and Industrial Relations may review or appeal the decision to a Court of competent jurisdiction.

22. This clause provides a three stage process to resolve disputes or grievances between Air Niugini and member of the Union. The first step is setting up of a Grievance Board who will hear and determine the dispute or grievance at the first instances. Clause 34.1 to 34.4.
    
23. The second phase is that if either party is aggrieved by a decision of the Grievance Board, either party may appeal to the Secretary for the Department of Labour and Industrial Relations to hear and determine the appeal. The Secretary may uphold, dismiss or vary the decision of the Grievance Board.
    
24. The final phase, involves an appeal or review application to be made by an aggrieved party, against the decision of the Secretary to the Court.
    
25. Both Air Niugini and the Union are signatories to the agreement.
    
26. From their terms alone, there is nothing in clauses 33 and 34 which suggests that the application of clause 33 and in particular clause 33.4.2 is made subject to the exhaustion of the dispute resolution process under clause 34. Under clause 33.4.2, the Second Appellant may terminate an employee the subject of the Agreement at any time without notice. This right is not made subject to any condition to first invoke and exhaust the dispute resolution process under clause 34. We reject the Respondents submission on this issue.
    
27. The Respondents say (AB:31, para. 6) that the First Respondent had requested for the allegation against her to be dealt with under clause 34. The Appellants, on the other hand, say, at paragraph 27 of the Affidavit of Mr. Logona (AB: 81), that no notice invoking clause 34, has been given by the Respondents. As an example of how the clause is to be invoked, the Appellants produced a letter dated 3 July 2003 given under the hand of Mr. Randolf, (Annexure "G" to the First Appellant's affidavit), written on behalf of one Raphael Pupua, which in part reads (AB:92) –
    

"We have taken the decision in view of a recent Management's decision in unfairly terminating Raphael Pupua who is a very senior cabin crew operator with Air Niugini.

"The Association now invoke clause 34 of the 2008 Agreement ... and requests the Management to implement clause 34."

28. The process set out in Clause 34 above was set out in similar terms in Clause 29 of the Airline Flight Attendant (PNG) Agreement 1987. This was subject of a Court proceedings in Air Niugini v. Aphmeledy K Joel as Secretary for Labour and Employment & Others [1992] PNGLR 132.
    
29. The facts in that case was that, Air Niugini dismissed nine flight attendants. They were members of the PNG Flight Attendants Association. They were dismissed for cause. The order of termination was after the airline had made enquiries into an incident.
    

At that time there was an agreement between the airline and the Union to refer disputes to a grievance board with a further appeal to the Secretary for Labour or his delegate.

30. The grievance board enquired into the dispute or grievance and ordered that the nine employees be reinstated.
    
31. Air Niugini being aggrieved by that decision appealed to the Secretary for Labour, who received the necessary submissions from both parties, and confirmed the decision of the grievance board. Air Niugini then sought a judicial review of the decision of the Secretary, but the Court refused to grant review.
    
32. The important point to note is that, the parties in that case exhausted the grievance procedure set out in Clause 29 of the agreement.
    
33. We agree with the Appellants. There is no evidence that the Respondents have invoked clause 34. The First Respondent's letter of response to her suspension (AB:38) simply drew to the Appellants' attention clause 34 and expressed a belief that clause 34 must be complied with before any penalty is decided against her, a belief which is not (as we have already concluded) supported by the proper construction of clauses 33 and 34 of the Agreement.
    

Should the court allow a party to a dispute resolution agreement to invoke the jurisdiction of the court without first exhausting the dispute resolution process under such an agreement?

34. Where parties, by their agreement, adopt a dispute resolution process, and one party, such as the Appellants in this case, insist that that process should be exhausted first, should the proceedings before the court be stayed so that the plaintiff honours its agreement to resolve its dispute using the dispute resolution process it had agreed to?
    
35. The issue as to whether or not the court should allow a party to a dispute resolution agreement to invoke the jurisdiction of the court without first exhausting the dispute resolution process under such an agreement was not sufficiently raised in argument by either party, and as a result the learned trial judge did not give due consideration to this.
    
36. In Russell On The Law of Arbitration, 18th edition, London, the author of this text,(at pp.137-138), in the context of arbitration clauses, says,
    

"A party to a contract to refer disputes to arbitration has a perfect right to bring an action in respect of those disputes. Any provision to the contrary would be an ouster of the jurisdiction of the courts. But the court has a discretion to say whether it will try such disputes or stay the proceedings, provided the other party comes in time and otherwise complies with the provisions of the section.

"It is clear that as the arbitration clause is a matter of agreement the first thing to ascertain, according to the ordinary principles of construction, is what the parties have actually agreed. Under the Arbitration Act 1889, s. 4, the court is given a discretionary power to stay an action brought in breach of an arbitration clause. Such a clause, therefore, though absolute in terms is qualified in the sense that it is subject to the overriding discretion of the court."

"The present position, therefore, of agreements to refer to private tribunals may be shortly expressed thus. The law will not enforce the specific performance of such agreements, but, if duly appealed to it has the power in its discretion to refuse to a party the alternative of having the dispute settled by a court of law, and thus to leave him in the position of having no other remedy than to proceed by arbitration. If the court has refused to stay an action, or if the defendant has abstained from asking it to do so, the court has seisin of the dispute, and it is by its decision, and by its decision alone, that the rights of the parties are settled. It follows, therefore, that in the latter case, the private tribunal, if it has ever come into existence, is functus officio, unless the parties agree de novo that the dispute shall be tried by arbitration, as in the case where they agree that the action itself shall be referred. There cannot be two tribunals each with jurisdiction to insist on deciding the rights of the parties and to compel them to accept its decision. To my mind this is clearly involved in the proposition that the courts will not allow their jurisdiction to be ousted. Their jurisdiction is to hear and decide the matters of the action, and for a private tribunal to take that decision out of their hands and decide the question itself is a clear ouster of jurisdiction." (Underlining added)

37. The learned author (at pp.153 -172), continues –
    

"Where parties have agreed to refer a dispute to arbitration, and one of them, notwithstanding that agreement, commences an action to have the dispute determined by the court, the prima facie leaning of the court is to stay the action and leave the plaintiff to the tribunal to which he has agreed. " If parties choose to determine for themselves that they will have a domestic forum instead of resorting to the ordinary courts, then, since that Act of Parliament [Common Law Procedure Act 1854] was passed a prima facie duty is cast upon the courts to act upon such an agreement." Once the party moving for a stay has shown that the dispute is within a valid and subsisting arbitration clause, the burden of showing cause why effect should not be given to the agreement to submit is upon the party opposing the application to stay."

38. In Niugini Civil and Petroleum Ltd v West New Britain Development Corporation Ltd (2005) N2909, Cannings, J. said –
    

"There is a general policy in the National Justice System of encouraging alternative dispute resolution: getting individuals and companies to seek resolution of their disputes in more informal, often speedier, forums than courts."

39. Not only is there a general policy; it is a requirement under Rules 4 and 5 of the ADR Rules, that except with the leave of the court, no steps may be taken in the prosecution of an action without first considering and attempting to resolve the dispute through mediation.
    

Factors which favour a Stay

40. In so far as far as those factors which are relevant for the exercise of discretion in favour of a stay, again, Russell On The Law of Arbitration, 18th edition, London(at p. 140), states –
    

"Under section 4 (1) the court, or a judge thereof, has the power to exercise its discretion to make an order staying proceedings, provided that:

(1) There is a valid agreement to have the disputes concerned settled by arbitration.
(2) Proceedings in court have been commenced.
(3) The proceedings have been commenced by a party to the agreement or a person claiming through or under him, against another party to the agreement, or a person claiming through or under him.
(4) The proceedings are in respect of a dispute so agreed to be referred.
(5) The application to stay is made by a party to the proceedings.
(6) The application is made after appearance by that party, and before he has delivered any pleadings or taken any other "step in the proceedings."
(7) The party applying for a stay was and is ready and willing to do all things necessary to the proper conduct of the arbitration."

Factors which may result in a refusal of stay

41. In Russell On The Law of Arbitration, 18th edition, London, the author of this text, (at pp.153 -172), sets out grounds upon which a stay of the court proceedings may be refused. These are –
    
    • (a) Where doubt about a submission to arbitration or an alternative forum for resolution of a dispute has been established;
    • (b) Where a party wanting a stay does not apply promptly for such relief;
    • (c) Where the relief claimed in the proceeding is beyond the powers of the arbitrator;
    • (d) Where a referral to arbitration would entail more expense than would be necessary if the dispute was litigated before the court;
    • (e) Where the principal issue is a question of law or the proper construction of an agreement than if the dispute involved principally questions of fact;
    • (f) Where the arbitrator has misconduct himself or has such an interest in the subject matter of the proceedings or there is probability that he will be biased that he is disqualified from acting;
    • (g) Where part of a dispute is appropriate for arbitration or where only part of a dispute falls within the subject matter for arbitration or the dispute involves in additional to that part a pure question of construction. This will be influenced by the convenience of trying different parts separately. Factors on which stay will be refused are where only a "subordinate and trifling" part of the dispute is agreed to be referred or where two claims one inside and one outside the agreement turn upon substantially the same facts or the arbitrator can only decide the amount of the claim and not the liability;
    • (h) Where arbitration is no longer possible;
    • (i) Where one of the parties has waived its right to a dispute resolution clause by which the parties have agreed that that no right of action shall accrue in respect of a dispute the subject of such agreement until such dispute has been adjudicated upon by an arbitrator.
      
42. Whilst these considerations have been applied in the context of an arbitration clause, we consider that they are of general application to any agreement by which parties have prescribed the dispute resolution process that they are to use to resolve a dispute for which that process has been established. Arbitration is just one way disputes may be resolved.
    
43. In fact, a number of decisions of the National Court have considered this issue. Cannings, J. summarized this in Niugini Civil and Petroleum Ltd (supra), where his Honour said:
    

" ... a stay of proceedings is not automatic. The court has discretion to exercise. There are a number of considerations to take into account when deciding whether to grant a stay. Some are set out in Section 4. Others are sourced in the duty of the court under Section 158(2) of the Constitution, when interpreting the law, to give paramount consideration to the dispensation of justice. In particular to ensure that persons abide by their contractual agreements (Mauga Logging Company Pty Ltd v Okura Trading Co Ltd [1978] PNGLR 259, National Court, Kearney J). I identify the considerations as follows:

1. Has the application been made after the applicant's appearance in the legal proceedings and before delivering any pleadings or taking any other steps in the proceedings?
   

This question arises from Section 4(1). If the answer is yes the application is properly before the court. If no, eg if the application is made after the applicant has filed a defence in the proceedings, the application would not meet the preconditions of Section 4(1).

2. Is the court satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission?
   

That is the wording used in Section 4(2). Put in plainer English the question to ask is: is there good reason to refer the matter to arbitration as provided for by the contract? If yes, that is a factor supporting the application. If no, ie if the court is satisfied that there is a sufficient reason for not referring the matter to arbitration, that is a factor working against granting a stay order.

3. Was the applicant ready and willing to do all things necessary for the proper conduct of the arbitration at the time when the legal proceedings were commenced?
   

This question emerges from Section 4(2). If the answer is yes, it is a factor supporting the application. If no, it is a factor working against granting a stay order.

4. Does the applicant still remain ready and willing to do all things necessary for the proper conduct of the arbitration?
   

This question also emerges from Section 4(2). If the answer is yes, it is a factor supporting the application. If no, it is a factor working against granting a stay order.

5. Does the arbitration clause make it mandatory for disputes to be referred to arbitration?
   

It is necessary to ask this question so as not to lose sight of the fundamental task of the court, which is to ascertain the intention of the parties, evidenced by the agreement that they have lawfully entered into. Sakora J made the point pithily in [Mainland Holdings v RD Tuna Cannery Ltd [2000] PNGLR,213], when granting an application by a defendant to stay proceedings and refer a dispute to arbitration. His Honour stated:

The ... point to make is that the contract containing the arbitration clause ... is an agreement, a mutual agreement at that, between the parties. It is, therefore, no function of the Court to write up new contracts for the parties, as it were. The Court's function is only to interpret the contract, according to law, to determine what was it that the parties intended and entered into, and with what legal consequences, if any.

There is no general principle that an arbitration clause in a contract takes precedence over the right of a party to a contract to initiate court proceedings for breach of contract or monies due under a completed contract. A contract is a piece of private law and by giving effect to that law the court maintains the rule of law. The Arbitration Act does not remove that task from the court's jurisdiction. This is clear from the final words of Section 4(2). Even if an application meets all the requirements of Section 4, the court "may make an order staying the proceedings". It is not obliged to. Getting back to the question posed – does the arbitration clause make it mandatory for disputes to be referred to arbitration? – if the answer is yes, it is a factor supporting the application. If no, it is a factor working against granting a stay order. (Olympic Stationery Ltd v The State (2001) N2194, National Court, Sevua J.)

6. Is the application for a stay of proceedings brought within a reasonable time after commencement of the legal proceedings?
   

This is similar to the first question, based on Section 4(1). If the answer is yes, it is a factor supporting the application. If no, it is a factor working against the application. This question allows the court to consider the overall 11 conduct of the applicant. It will help avoid the spectre of a party to a contract who takes no steps to defend court proceedings until the last minute, being allowed to pull out its trump card – an arbitration clause – without notice, and use it as a reason to stay the proceedings. It is reasonable to presume that if a party commences court proceedings notwithstanding the existence of an arbitration clause and the other parties do not object to that course of action within a reasonable time, that they acquiesce in the court proceedings and are estopped from denying the jurisdiction of the court.

7. Has the applicant not waived its right to arbitration?
   

This requires examination of the conduct of the applicant. It may expressly or by implication waive its right to arbitration. If the answer is yes, it is a factor supporting the application. If no, it is a factor working against the application. (See the Olympic Stationery case where Sevua J rejected the argument that the defendant had waived its right to arbitration.)

8. Has the respondent to the application – which will usually be the plaintiff in the court proceedings – rushed to the court rather than exploiting the arbitration provisions of the contract? "
   
44. His Honour considered those factors which favoured the exercise of discretion in favour together with those which favoured a refusal of a stay.
    
45. We respectfully adopt and apply (in the order in which these considerations have been listed in the abovementioned text) these considerations which favour the grant of stay as follows –
    
    • (a) First, there is a valid agreement in clause 34 for the parties to have their disputes settled by the dispute resolution process established under that clause. The Respondents did not suggest that clause 34 should be severed from the Agreement or that the Agreement is void or unenforceable. In fact they accept that their grievance should be resolved through the dispute resolution process under clause 34. That process has not commenced because the Respondents (who are the parties aggrieved by the termination) have not invoked it.
      
    • (b) Second, the proceedings below have been commenced by the Respondents. The First Respondent's employment is governed by the Agreement. The Second Respondent is a party to the Agreement. The Appellants are parties to the Agreement. The Appellants and Respondents will also be parties involved in and be affected by the process and determination under clause 34.
      
    • (c) Third, the Respondents commenced the proceedings below to have their grievance arising from the termination of the First Respondent determined by the court. The result will be that the grievance cannot be brought before the authority that is to determine the grievance under clause 34 unless the proceeding below is stayed or dismissed.
      
    • (d) Fourth, the proceeding below is in respect of a dispute so agreed by the parties to be resolved through the dispute resolution process provided for in clause 34.
      
    • (e) Fifth, the Second Appellant, who is a party to the Agreement, raised clause 34 in opposing the motion for the injunctive orders sought and granted. Whilst no application for stay was made by the Appellants in the proceedings below, the Appellants reliance on clause 34 to oppose the motion for the injunctive orders necessarily raised these matters for consideration by the learned trial judge.
      
    • (f) Sixth, the Appellants had not taken any other step in the proceedings below (other than to appear and oppose the application for the injunctive orders) that might have suggested an intention otherwise then to abide by clause 34.
      
    • (g) Seventh, the Appellants are ready and willing to do all things necessary for the proper conduct of the dispute settlement under clause 34.
      
46. None of those factors upon which a stay may be refused apply to the circumstances of the dispute as was before the court below, for the reasons which follow –
    
    • (a) There is no doubt, and the parties are in agreement, that clause 34 was established to address and resolve any grievance between the parties arising from the Agreement; the parties have resorted to such process before in Air Niugini v Joel (supra);
      
    • (b) The requirement for the dispute to be resolved through clause 34 was raised at the first opportunity when the injunctive orders were sought;
      
    • (c) No issue has been raised that the dispute is beyond the power of the authority that is to determine the dispute under clause 34. The fact that it is within the power of the Grievance Board is demonstrated by Air Niugini v Joel (supra);
      
    • (d) There also is no evidence that a resolution through clause 34 would entail more expense than would be necessary if the dispute was litigated before the court;
      
    • (e) When the matter is before the Grievance Board, its principal task would be to resolve the factual issues surrounding the misconduct relied on by the Appellants to terminate the First Respondent. Whilst the Respondents seek to raise an issue of construction of clauses 33 and 34, we have already concluded that the construction placed by the Respondents of these clauses in respect of the exercise of the right to terminate under clause 33.4.2 as against the process under clause 34 is not supported by the terms of these clauses;
      
    • (f) No issue as to misconduct of the authority appointed under clause 34 applies; the process under that clause has not been set in motion;
      
    • (g) It has not been suggested that any issue would arise as to the power of the Grievance Board to hear and determine the entire dispute. Except for the timing of when the process is to take place (as against the exercise of the right to terminate), the Respondents have agreed to refer the dispute to the process under clause 34. Again, the fact that the dispute is within the power of the Grievance Board is demonstrated by Air Niugini v Joel (supra);
      
    • (h) We do not consider that a determination before the Grievance Board is now not possible. The delay thus far in invoking the dispute resolution process under clause 34 will not alter the issues raised by the dispute.
      
    • (i) There was no suggestion that the Appellants have waived their right to have the dispute resolved under clause 34. Nor is there any evidence of any step taken by the Appellants, which might suggest or from which it might be inferred that the Appellants have waived their right to the dispute resolution process under clause 34.
      
47. By clause 34, parties are to bring their grievance to court only after a determination has been made by the Secretary for the Department of Labour and Industrial Relations under clause 34.5. The Respondents have not invoked the process under clause 34. Refusing the injunctive orders would have compelled the Respondents to honour their side of the agreement under clause 34.
    
48. In the result, there is no reason why the Respondents grievance arising from the termination of the First Respondent should not be resolved through the dispute settlement process under clause 34.
    

GROUND 1

49. As to ground 1, it is trite law that an interim injunction would not be appropriate if the act or acts sought to be injuncted has already occurred. See The International Hotel v. Registrar of Titles (2012)N4618, Yama Group of Companies v. PNG Power Limited (2005) N2831.
    
50. There is overwhelming evidence from the First Appellant supporting these. His evidence shows that the first respondent was dismissed on 12th February 2014. She also vacated the premises she was living in. Moreover, she was paid her final entitlements. The Respondents filed the proceedings well after the acts they sought to injunct had occurred. It is clear that the acts against which injunctive orders were sought had already occurred.
    
51. Given these, we find that his Honour erred in law granting interim injunctions when there was nothing to injunct. We would uphold this ground of the appeal also.
    

GROUNDS 2 & 3

52. These grounds are considered together as these grounds and submission raised by both parties overlap. There are three sub –grounds raised by these ground. It is submitted that the trial Judge erred in the exercise of his discretion, in that he did not exercise his discretion properly on:
    

(i). The Notice of Motion sought substantive relief.

(ii). He committed error on the face of the record.

(iii). The respondents did not satisfy the established principles for grant of interim injunctions.

53. As to these grounds, the respondents submit that the learned trial Judge did not commit any errors in the exercise of his discretion.
    

Grounds (B) (v) and (D) (b) – Are Damages Adequate

54. Assuming that there is an arguable case, one of the requirements for the grant of an injunction is that damages will not be an adequate remedy. This raises the issue whether damages would be adequate.
    
55. The learned trial judge correctly noted this requirement (AB:129; lines 17-18). However, the learned trial judge did not, as the records show, give any consideration to this requirement before granting the injunctive orders.
    
56. In an ordinary claim arising from the termination of an employment, damages is ordinarily the appropriate relief and is usually adequate.
    
57. One of the relief sought in the originating summons is a claim for Damages. It is relevant to note in this respect that an order for reinstatement is not a relief sought in the originating summons. Proceeding on the basis that the First Respondent seeks damages, it has not been suggested otherwise by the Respondents that damages would not be an adequate remedy.
    
58. The learned trial judge did not direct his mind to consider and determine this requirement before granting the injunctive orders. In the result, his Honour fell into error. We uphold this ground of appeal.
    

Notice of Motion seeking substantive relief.

59. It is now settled law that a Notice of Motion is for interlocutory reliefs only Motions should not be utilized to obtained substantive reliefs. This is made clear by the terms of Order 4 Rule 49 (9) of the National Court Rules and Gabriel Yer v. Peter Yama, (2009) SC 990.
    
60. Order 4 Rule 49 (9) of the National Court Rules reads:
    

"9 Motions from interlocutory matters only. Except as otherwise expressly provided in the National Court Rules, Motions shall be for relief on the interlocutory matters only and not for substantive relief claimed in the originating process".

61. In Gabriel Yer v. Peter Yama (2009) SC 990, the Court stated:
    

"45. In the Supreme Court judgment of John Momis and Ors v. Attorney General, NEC and The State [2000] PNGLR 109, Kapi, DCJ, held that in a case where a Plaintiff has commenced proceedings by Originating Summons under Order 4, Rule 3 of the National Court Rules, it is an abuse of process of the Court for the Plaintiff to seek substantive reliefs by way of an interlocutory application in a Notice of Motion. The matter must proceed to trial for proper determination of the issues. That principle in John Momis'case (supra) is now promulgated into that Motions Amendments Rules in rule 5(2) (f) and make it mandatory that a "party shall not and the judge shall not make any order in terms of the substantive relief sought in the originating process."

62. In PAC –LNG International Ltd v. SPI (208) Ltd (2014)N5681, the Court held:
    

"11. This submission does not address the issue of whether relief that is materially the same as that sought in the Originating Summons can be sought in a motion filed in the proceedings.

12. Order 4 Rule 49 (9) National Court Rules is as follows:

"Except as otherwise expressly provided in the National Court Rules, Motions shall be for relief on interlocutory matters only and not for the substantive relief claimed in the originating process".

13. This rule mirrors the position taken by the Supreme Court in NCDC v. Yama Security Services Pty Ltd (2003) SC707 and William Duma v. Eric Meier (2007) SC898 which approved the National Court decision in John Momis v. Attorney General (2000) PNGLR 109, N1951.

14. As the PAC LNG Companies are seeking in their Motion relief that is materially the same as that sought in the Originating Summons, they are seeking the substantive relief claimed in the originating process, in contravention of Order 4 Rule 49(9) of the National Court Rules. Consequently the Notice of Motion of the PAC LNG Companies should be dismissed".

63. The Appellants submit that the proceedings amounted to an abuse of the Court process as the Respondents sought the same or materially same reliefs in the Notice of Motion as in the Originating Summons. It is submitted that in the circumstance the trial Judge erred in law in granting the interim injunctions.
    
64. The Respondents submitted that the relief sought in the Notice of Motion were not same as those pleaded in Originating Summons, thus there was no abuse of process.
    
65. We agree that the injunctive orders are in terms of the relief sought in paragraphs 4, 5, 6, and 7 of the originating summons. If these were the only relief sought in the originating summons, the notice of motion upon which the injunctive orders were granted would be an abuse of process as the relief sought in paragraphs 2, 3, 4 and 5 of it are in the same terms as those sought in paragraphs 4, 5, 6 and 7 of the originating summons.
    
66. However, the originating summons, in paragraphs 1, 2 and 3, also seeks the following relief –
    

"1. A declaration that pursuant to section 155 (4) of the Constitution the decision of the Defendants in terminating the First Plaintiff from employment on Wednesday 12th February 2014 is contrary to clause 34 of an existing 2008 Award/Agreement between National Flight Attendant Association of Papua New Guinea and Air Niugini Limited and therefore unlawful at the outset.

2 Pursuant to Section 155 (4) of the Constitution a declaration that whilst being an employee of the Second Defendant, the First Plaintiff is a financial member of the Second Plaintiff which terms and conditions of employment are covered under the Award/Agreement between National Flight Attendant Association of Papua New Guinea and Air Niugini Limited. Therefore, any matters of internal grievance and or allegation must first be referred to the internal grievance mechanism process provided under clause 34 of the said 2008 Award/agreement which has not been complied with.

3 A declaration that Air Niugini Memorandum letter dated 12th February 2014 by the First Defendant terminating the services of the First Plaintiff without compliance with clause 34 (Grievance Board – Internal) of the 2008 Award/Agreement is unlawful and void ab initio"

67. The relief sought in these paragraphs, which are the principal or substantive relief to be sought at the trial of the action, are different from and were not sought in the notice of motion nor has the learned trial judge granted orders in their terms.
    
68. This ground is without merit.
    
69. In summary, we accept the submission by the appellants. We are of the view that the learned trial Judge made clear errors of law and in fact in the exercise of his discretion, such that the orders he made cannot be allowed to stand.
    
70. We allow the appeal and quash the decision of the National Court.
    
71. The Respondents shall pay the Appellant's costs, to be taxed if not agreed.
    

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Bradshaw Lawyers: Lawyers for the Appellant
Murray & Associate: Lawyers for the Respondent