Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers and Seaman's Union, Lawrence Titimur, Tony Hartwell, Didiulosi Boshen (Member of the Arbitration Tribunal appointed by the Minister for Labour and Industry) [1982] PGNC 24; N393 (11 October 1982)

Unreported National Court Decisions

N393

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS NO. 793 OF 1982
BETWEEN: EMPLOYERS FEDERATION OF PAPUA NEW GUINEA
PLAINTIFF
AND: PAPUA NEW GUINEA WATERSIDE WORKERS AND SEAMAN'S UNION
1ST DEFENDANT
AND: LAWRENCE TITIMUR, TONY HARTWELL AND DIDIULOSI BOSHEN MEMBERS OF THE ARBITRATION TRIBUNAL APPOINTED BY THE MINISTER FOR LABOUR AND INDUSTRY
2ND DEFENDANT

Waigani

Kapi DCJ
8 October 1982
11 October 1982

CIVIL - Interlocutory Injunction - proper principles discussed.

Cases Referred To

J.T. Stratford and Son Ltd. v. Lindley (1964) 3 All E.R. 102

Fellowes v. Fisher (1975) 2 All E.R. 829 at 841

American Cyanamid Company v. Ethicon Limited [1975] UKHL 1; (1975) 1 All E.R. 504

Norah Mairi v. Alkan Tololo and Others (1976) P.N.G.L.R. 59

Mt. Hagen Airport Pty. Ltd. v. Gibbes and Another (1976) P.N.G.L.R. 216

Mauga Logging Company Ltd. v. South Pacific Oil Palm (1977) P.N.G.L.R. 80

Barnard v. National Dock Labour Board [1953] EWCA Civ 5; (1953) 2 Q.B. 18

Vine v. National Dock Labour Board (1957) A.C. 488

Taumaku Morea v. Central Provincial Government (1978) P.N.G.L.R. 415 at 416

Pyx Granite Company Limited v. Ministry of Housing and Local Government (1958) 1 Q.B. 554

Avia Aihi v. State Unreported judgment, SC195 dated 27th March, 1981.

Reference No.2 of 1981 Unreported judgment, SC224 dated 26th March, 1982.

Legislation Referred To

Industrial Relations Act - Chapter 174.

The Constitution of Papua New Guinea.

INTERLOCUTORY JUDGMENT

KAPI DCJ: On the 4th of June 1982, the first defendant served a log of claims in respect of terms and conditions of employment for waterside workers on the plaintiff. In a letter dated the 13th of July 1982, the first defendant requested the assistance of the Department of Labour in the negotiations of this log of claims. This assistance was requested pursuant to s.27 of the Industrial Relations Act (Chapter 174). The Department of Labour under s.25(3)(b) of the Industrial Relations Act, gave notice to the parties to enter into negotiations. The parties were unable to come to a settlement. The Department of Labour under s.28 of the Act gave notice to the parties for a compulsory conference. This notice was given on the 23rd of September 1982. Again, the parties did not come to a settlement of the log of claims at this conference. The tribunal, the second defendant, was appointed to hear the dispute.

It would appear that during the negotiations, the first defendant suggested in settlement an alternative claim, that the plaintiff should consider a 3.5 per cent increase on wages across-the-board and that this was put on the basis that this would supercede the log of claims. When the tribunal commenced its hearing on the 4th of October 1982, the first defendant informed the tribunal of these discussions and informed the tribunal that the claim of 3.5 per cent increase would supercede the log of claims. The plaintiff at the hearing objected to the tribunal dealing with the 3.5 per cent wage increase. However, subsequently, after having heard further evidence, the tribunal decided or reversed its decision and indicated that it would treat the offer of 3.5 per cent increase as part of the dispute and would hear submissions and representations from the parties. This occurred on the afternoon of the 6th of October 1982. The tribunal adjourned its proceedings to recommence at 1.30 p.m. on the 7th of October 1982. It would appear that the plaintiff indicated to the tribunal that an application would be made to the National Court to stop the tribunal from hearing and determining the dispute.

The plaintiff proceeded to the National Court by way of a writ of summons No. 793 of 1982 and sought the following remedies:

“1. A declaration that the second defendant tribunal is improperly constituted and has no power to determine any dispute between the plaintiff and the first defendant.

2. An injunction restraining the second defendant tribunal from hearing or determining any dispute between the plaintiff and first defendant.

3. In the alternative, a declaration that the second defendant tribunal has no power to hear a dispute between the plaintiff and the first defendant except for that dispute arising out of a log of claims dated 4th day of June 1982 issued by the first defendant and referred to the second defendant tribunal.

4. A declaration that the second defendant tribunal has no power to hear an application by the first defendant for a 3.5 per cent across the board wage claim nor for any other matter not raised in the said log of claims.

5. An injunction preventing the second defendant tribunal from hearing any claims by the first defendant for a 3.5 per cent pay rise for its members or any other claim outside the terms of the said log of claims.”

At the same time the plaintiff took out a Notice of Motion seeking an interlocutory injunction against the second defendant to stop it from proceeding with the hearing of the question of 3.5 per cent wage increase. It appears from the nature of submissions by counsel for the plaintiff that the interlocutory injunction was intended only to stop the tribunal dealing with 3.5 per cent and not the dispute over the log of claims. The motion came before me before lunch on the 7th of October and by consent the parties agreed to adjourn the hearing of the interlocutory application to 1.30 p.m. on Friday the 8th of October 1982. At the hearing on the 8th of October 1982, the first defendant indicated through Mr. McAlister that it does not wish to make any representation on this interlocutory application. I heard arguments from the counsel for the plaintiff and the second defendant.

In J.T. Stratford and Son Limited v. Lindley N393.html#_edn984" title="">[cmlxxxiv]¹, the House of Lords stated that an applicant seeking an interlocutory injunction must establish a prima facie case. However, it would appear that the House in that case assumed and adopted this as the correct principle as counsel appearing in that case agreed without argument that this was the proper principle. See Fellowes v. Fisher N393.html#_edn985" title="">[cmlxxxv]² . However, the House had the opportunity to reconsider this principle in the case of American Cyanamid Company v. Ethicon Limited N393.html#_edn986" title="">[cmlxxxvi]³). The House of Lords laid down the following principles in this case.

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? All these questions laid down the same test. See Smith v. Inner London Education Authority (1978) 1 All E.R. 411 at 419.

2. The Court must then consider whether the balance of convenience lies in favour of granting or refusing interlocutory relief.

3. As to the balance of convenience the court should first consider whether if the applicant succeeds, he would be adequately compensated by damages for the loss sustained between the application and the trial, in which case no interlocutory injunction should normally be granted.

4. If damages would not provide an adequate remedy the Court should then consider whether if the applicant fails, the defendant would be adequately compensated under the applicant's undertaking in damages, in which case there would be no reasons on this ground to refuse an interlocutory injunction.

5. Then one goes on to consider all the other matters relevant to the balance of convenience, an important factor in the balance should, other things been even, preserve the status quo; and

6. When all other things are equal it may be proper to take into account in tipping the balance the relative strength of each party's case as reviewed by the evidence before the Court hearing the interlocutory application.

These principles have been applied, explained, clarified or distinguished in subsequent cases. See Fellowes v. Fisher (supra), Smith v. Inner London Education Authority (supra). See also cases discussed in Chapter 14 Civil Litigation (1st Ed.) by John O'Hare Robert N. Hill. See also Article “Interlocutory Injunction since Cyanamid” 1981 Cambridge Law Journal pp. 307-339. The American Cyanamid Case (supra) has been adopted as part of the underlying law in this jurisdiction. See Norah Mairi v. Alkan Tololo and others N393.html#_edn987" title="">[cmlxxxvii]⁴, Mount Hagen Airport Pty. Ltd. v. Gibbes and Another N393.html#_edn988" title="">[cmlxxxviii]⁵, Mauga Logging Company Ltd. v. South Pacific Oil Palm N393.html#_edn989" title="">[cmlxxxix]⁶.

The counsel for the second defendant has submitted that the writ of summons for declaration and injunction is misconceived as this types of proceedings can only be dealt with by a prerogative writ. He therefore submitted that the applicant would not have any prospect of success in the trial of the issues at the hearing. However, I would not accept this submission. The law in this regard in England has been well settled. Similar arguments were put to the Court of Appeal in the case of Barnard v. National Dock Labour Board N393.html#_edn990" title="">[cmxc]⁷. Lord Denning answered these submissions in the following words at p.41:

“Finally, Mr. Paull said (and it was his principle argument) that these Courts have no right to interfere with the decisions of statutory tribunals except by the historical method of certiorari. He drew an alarming picture of what might happen if once the court intervened by way of declaration and injunction. It meant, he said, that anyone who was dissatisfied with the decision of a tribunal could start an action in the courts for a declaration that it was bad, and thus, by a side-wind, one could get an appeal to the courts in cases where Parliament intended that there should be none. I think that there is much force in Mr. Paull's contention; so much so that I am sure that in the vast majority of cases the courts will not seek to interfere with the decisions of statutory tribunals; but that there is power to do so, not only by certiorari, but also by way of declaration, I do not doubt. I know of no limit to the power of the court to grant a declaration except such limit as it may in its discretion impose upon itself; and the court should not, I think, tie its hands in this matter of statutory tribunals. It is axiomatic that when a statutory tribunal sits to administer justice, it must act in accordance with the law. Parliament clearly so intended. If the tribunal does not observe the law, what is to be done? The remedy by certiorari is hedged round by limitations and may not be available. Why then should the court intervene by declaration and injunction? If it cannot so intervene, it would mean that the tribunal could disregard the law, which is a thing no one can do in this country. The authorities show clearly that the courts can intervene.”

This principle was approved and applied by the House of Lords in Vine v. National Dock Labour Board N393.html#_edn991" title="">[cmxci]⁸. See also Taumaku Morea v. Central Provincial Government N393.html#_edn992" title="">[cmxcii]⁹. Even where a statute provides for an alternative remedy, the remedy by way of declaration can only be taken away by clear words in the statute. See Pyx Granite Company Limited v. Ministry of Housing and Local Government N393.html#_edn993" title="">[cmxciii]¹⁰ and see the House of Lords' decision in this case in (1960) A.C. 260.

Counsel for the applicant has submitted that the second defendant was appointed to hear a dispute regarding the log of claims submitted by the first defendant. He submitted that the 3.5 per cent wage increase was not part of the log of claims and has never been the subject of dispute between the plaintiff and the first defendant. He submitted that the tribunal which was appointed under the Industrial Relations Act was appointed specifically to arbitrate the dispute on the log of claims. The logical extension of this argument is that if the first defendant withdrew the log of claims, there would be no industrial dispute for which the tribunal was established. He therefore submitted that the tribunal has no jurisdiction to determine the question of 3.5 per cent wage increase.

Part III of the Industrial Relations Act (Chapter 174) deals with the settlement of industrial disputes. Under these provisions, where there is an industrial dispute, negotiations are allowed to take place between the parties and also under the supervision of the Department of Labour with a view to come to a settlement. However, when all attempts to settle the dispute are exhausted the dispute is then reported to the Minister for Labour under s.29 of the Act. The Head of State may direct the departmental head to refer the industrial dispute to a tribunal for a decision. It should be emphasized so far as this case is concerned that the tribunal is only referred the dispute in question and only has jurisdiction to deal with that dispute and no other. The critical question which arises in this case is - What was the dispute which was reported to the Minister under s.29, sub-s.1, of the Act? What was the industrial dispute which was referred to the tribunal under s.29, sub-s.2 of the Act? From the evidence before me, the major dispute between the plaintiff and the first defendant relates to the log of claims which was submitted by the first defendant. As far as I can see from the evidence, the negotiations between the parties and under the supervision of the Labour Department at the compulsory conference related mainly to this log of claims. It is also not disputed that during the course of this negotiations, the question of the alternative claim of 3.5 per cent wage increase was raised. The evidence shows that no agreement was reached in relation to this alternative claim of the 3.5 per cent wage increase. There is no evidence before me in the affidavit regarding the contents of the report of the dispute to the Minister under s.29(1) of the Act. This, in my view, is significant because it forms the basis for the reference to the tribunal which gives it the jurisdiction. The only evidence before me which may indicate the nature of the dispute which then forms the basis of the reference to the tribunal is the notice fixing the time and place for hearing of the industrial dispute by the tribunal dated the 4th of October 1982. It has not been disputed that the tribunal has been duly appointed under the Act. The only evidence before me indicating the nature of this reference to the tribunal is this notice which sets out the nature of the claim. And this notice simply related to the log of claims submitted by the first defendant. There is no indication from this notice that the hearing also related to the alternative claim of the 3.5 per cent increase. As far as I can ascertain from the evidence it would appear that the reference to the tribunal relates only to the log of claims. There is no other evidence before me that the reference to the tribunal also included the alternative claim of 3.5 per cent wage increase. I have therefore come to the conclusion having regard to this evidence that there is a serious question to be tried.

On the question of balance of convenience, the particular facts in this case are special and need special consideration. There is no dispute that the tribunal should continue its hearing on the log of claims. However, if the tribunal was allowed to deal with what appears to me to be a separate claim (i.e. 3.5 per cent wage increase) with the disputed matters in the log of claims, this may well affect the consideration of the matters raised in the log of claims and an award may be made rejecting all the claims in the log of claims and instead make an award only on the question of a general wage increase. If the plaintiff is successful in the substantive action that the tribunal had no jurisdiction on the question of general wage increase then such an award would have no effect.

I consider in the circumstances, the status quo should be preserved until the substantive action is determined. I consider it is in the interest of all parties that this should be clarified before the tribunal proceeds to deal with the claim of 3.5 per cent wage increase. Having come to this conclusion, I should point out that the facts which led to the establishment of the tribunal are incomplete and disputed. These matters can be resolved in the substantive action.

There is also an alternative method of proceeding with this interlocutory injunction under s.155(4) of the Constitution. See Mauga Logging Company Ltd. v. South Pacific Oil Palm (supra), Avia Aihi v. State N393.html#_edn994" title="">[cmxciv]¹¹, Reference No.2 of 1981 N393.html#_edn995" title="">[cmxcv]¹². Under this provision, I would come to the same conclusion.

The applicant is willing to give an undertaking for any costs the tribunal may incur as a result of the injunction. I make this part of the order.

Solicitor for the Plaintiff: Beresford Love & Company

Counsel: Mr. B. Larkin

Solicitor for 2nd Defendant: Mr. Charles Maino, Principal Legal Advisor

Counsel: Mr. R. Gunson

N393.html#_ednref984" title="">[cmlxxxiv]^{(1) (1964) 3 All E.R. 102}
N393.html#_ednref985" title="">[cmlxxxv]^{(2) (1975) 2 All E.R. 829 at 841}
N393.html#_ednref986" title="">[cmlxxxvi]^{(3) (1975) 1 All E.R. 504}
N393.html#_ednref987" title="">[cmlxxxvii]^{(4) (1976) P.N.G.L.R. 59}
N393.html#_ednref988" title="">[cmlxxxviii]^{(5) (1976) P.N.G.L.R. 216}
N393.html#_ednref989" title="">[cmlxxxix]^{(6) (1977) P.N.G.L.R. 80}
N393.html#_ednref990" title="">[cmxc]^{(7) (1953) 2 Q.B. 18}
N393.html#_ednref991" title="">[cmxci]^{(8) (1957) A.C. 488}
N393.html#_ednref992" title="">[cmxcii]^{(9) (1978) P.N.G.L.R. 415 at 416}
N393.html#_ednref993" title="">[cmxciii]^{(10) (1958) 1 Q.B. 554}
N393.html#_ednref994" title="">[cmxciv]^{(11) Unreported judgment, SC 195 dated 27th March, 1981.}
N393.html#_ednref995" title="">[cmxcv]^{(12) Unreported judgment, SC 224, dated 26th March, 1982.}