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Koisen v Gala [2005] PGDC 55; DC245 (14 April 2005)

DC245

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 1255 OF 2005

BETWEEN

Michael Koisen
First Complainant

Teachers Savings and Loans Society
Second Complainant

V

Gordon Gena Gala
Defendant

Port Moresby: J. Tap
2005: April 14th

Ruling

Civil Law - Practice and Procedure - Notice of Motion - Ex parte Orders -sought without undertaking - to damages.

Ex parte Orders - sought substantive order - on the pretext of Interim Orders - abuse of Court process - application to set aside - Interim ex parte order is granted.

Case Cited
Employer Federation -v- PNG Waterside Workers Union and Lawrence Titimur and others Unreported 1992 N393
Gaman Holdings -v- Labu Holding 2000 N2017
John Momis and Others -v- The State and others 2000 N1951

TAPAT - MAGISTRATE This is a Notice of Motion to set aside the Ex parte Interim Order dated 7th April 2005 granted to the respondent Gordon Gena Gala. The interim order, if not set aside would incur a huge damage which the applicant made no undertaking. Furthermore, he does not have the ability to meet the cost of the damage, if incurred today. The national election for the Board of Directors of Teachers Savings and Loans is to be conducted today 11th April 2005.

The respondent was the applicant seeking an interim order to stay the national election for the Board of Directors of Teachers Savings and Loans. The respondent was an intending candidate who intends to contest a position in the Board of Directors of Teachers Savings and Loans society. He was not considered and short listed for the coming election today 11th April 2005. Therefore, he seek relief through the District Court. An Ex parte Interim Order to restrain the applicants from conducting election was granted preventing election today.

The Bank of Papua New Guinea who supervises all Savings and Loans societies, and Financial Institutions activities, did not short List the respondent. The Bank further did not list the respondent as fit and proper person for a position as a director in the Board of Directors of the Teachers Savings and Loans society. .

His Honour Kapi DCJ as he then was, laid down some principles for applicants who seek Interim orders Ex parte. An applicant who seek Interim Order Ex parte must meet the criteria as laid down.

The principles are in the case of Employers Federation - v- PNG Waterside Workers Union and others unreported N 393 of 1992. Some of the guidelines is as follows;-

1. Is there action not frivolous or vexatious?

Is there a serious question to be tried?

Is there a real prospect that the applicant will succeed in the claim for an injunction at the Trial.

2. Whether, if the applicant fails, would the defendant be adequately compensated under the Applicants undertaking in the damages.

In this application to set aside, the Interim Order, the Counsel pointed out that the respondent;-

i. did not make any undertaking and filed it in court.

ii. was not a fit and proper person according to the list screened by the BPNG and submitted to the court.

If the BPNG listed the respondent as unfit and not a proper person to hold a position as a director in the Board of Directors of Teachers Savings and Loans, then his prospect to succeed in the interim orders trial is very slim or not possible. Furthermore, there was no undertaking to pay Electoral Commission Office for any deferral in election and reprinting of ballot papers.

The Counsel further stated that the respondent's application for interim order has the same relief, he is seeking in the substantive matter. His Honour Injia. J, as he then was, in the case of Gaman Holding PTY LTD – V Labu Holding PTY stated that, it is procedurally wrong or a undesirable practice to seek substantive relief in originating summons under the pretext of urgent interim injunctive orders.

In addition to the above cases, His Honour Kapi DCJ, as he then was, in the case of John Momis and others -v- The State and others reiterated the practice to seek substantive matter in the pretext of interim order as an abuse of process of court.

The above cited cases are sufficient for the lower court to be on guard as the numerous interim order been filed in the District courts. The court registry must be educated and be aware to avoid the abuse of court process as stated by his Honour Kapi DCJ, as he then was. It is important that Interim Ex parte Orders sought meets the principle laid out in the case of Employer Federation -v- PNG Waterside Workers Union and Lawrence Titimur and others.

In this application, the counsel had clearly shown the court that respondent did not meet many of the principles laid down. Therefore, this Court grants the application to set aside the Interim Ex parte Order sought on the 7th of April 2005.

Complainant (Respondent) shall not move his Notice of Motion dated 7th April 2005, without giving three clear days notice to the defendant (Applicant).

Respondent is to meet the applicants cost.