[2000] PNGLR 386

PAPUA NEW GUINEA

[national court of justice]

SASA WANDUMA

v

GIVISA GENG for and on behalf of the members of the WUNU CLAN; and
GEORGE MUTUWEREC, council manager, mumeng local government council

lae: sakora j
12 March 1999; 17 January 2000

Civil Practice and Procedure — Appeal — Application for interlocutory injunctive orders pending appeal — Compliance with District Court orders — No order to stay.

Facts

The appellant appeals against a decision of the District Court which ordered both the appellant and the first respondents who were both defendants in the District Court proceedings to release monies paid by Highlands Products Pty Ltd pursuant to an agreement for access to water source between the company and the Wunu clan, of which the applicant and the first respondent are members. Pending the outcome of the appeal, the applicant applies for an injunction to preserve the status quo, pursuant to O 14 r 10(3) National Court Rules.

The applicant had however not applied for Orders to stay the District Court’s decision. The first respondent had, two weeks before the proceedings were commenced, released the monies to all members of the Wunu clan in compliance with the District Court order.

Held

Under the circumstances, issues of balance of convenience and the maintenance of the status quo do not arise. There is therefore no merit in the application. Application dismissed with costs.

Counsel

Mr Ovia, for the applicant.
Mr Mukwesipu, for the first respondent.
Second respondent in person.

17 January 2000

Sakora j. This is an interlocutory application for interim injunctive orders pending the final hearing and determination of the substantive appeal in this matter. And the application is made pursuant to a notice of motion dated 9 and filed 17 February 1999.

Before embarking upon a consideration of this application, it is convenient that a brief background of the circumstances giving rise to the institution of the appeal should be outlined here. The first respondent in this appeal proceedings was the complainant in the District Court summons to a person upon complaint (No. PP 441 of 1998) claiming entitlement to certain monies from the present appellant and second respondent. The summons had been issued out of the Lae District Court on 2 November 1998. All parties had legal representation.

On 3 December 1998, the hearing date, the learned District Court magistrate, upon being satisfied that service of the summons on the two defendants had been duly effected, directed counsel to file and serve affidavits and written submissions on behalf of their respective clients. The case was then adjourned several times to enable parties to comply with the terms of the direction, more particularly in relation to their respective answering affidavits.

Eventually, on 28 December 1998, the court handed down its decision on the claim, ordering both the first and second defendants (the present appellant and second respondent) to release the monies paid by a company named Highlands Products Pty Ltd and held by them to the Wunu clan (on whose behalf the complainant/first respondent sued the defendants). It is this order of the District Court, Lae, that the appellant is aggrieved about. He filed his notice of appeal on 22 January 1999.

In the supporting affidavit filed by the appellant, it is contended that the appellant was to distribute the monies to the members of the clan, and that to date the monies have been withheld by the second respondent, and, further that, as a direct consequence, he has been "kept in the dark" as to the present status of the monies. And one of the grounds of his appeal is that the learned magistrate erred in fact in holding that the complainant (the first respondent here) was a genuine representative of the Wunu clan.

From the copy of the agreement for access to water source dated 17 October 1995 between the Wunu clan and the Water Use Permit Holder, Highlands Products Pty Ltd, the company was to pay the clan monies for the use of their water. It is the contention of the first respondent that, as a representative of the clan, he was responsible for picking up the payment cheques from the company and distributing the proceeds to the members of the clan.

The first respondent further contends that, in line with his representative capacity, and in direct compliance with the court order in question (28 December 1998), he obtained the cheque in question from the second respondent on 7 January 1999. On the same day he cashed the cheque and distributed the monies to the members of the Wunu clan. These contentions are made in an affidavit that he has filed.

The appellant’s notice of motion seeks the following orders:

1.	The second respondent be restrained from releasing royalty monies in the sum of K4,000 to the first respondent and members therein (sic).

2.	Alternatively if the said monies has (sic) being (sic) released to the first respondents (sic) and therein benefiting (sic) an order that same be reimbursed to the second respondent by the first respondent and members of the Wunu clan therein (sic).

3.	That the first respondent and members of Wunu clan therein (sic) be restrained from interfering or attempting to obtain monies from the second respondent and compromising this appeal.

4.	Further, the first respondent and members of Wunu clan therein (sic) be restrained from causing animosity and breach of peace of the community against the appellant and his members of Wunu clan or his family.

Mr Ovia, counsel for the appellant, relies on the affidavit of the appellant sworn 12 February 1999 (supra). Learned counsel submits that the royalty monies, the subject of the District Court complaint, were in the end ordered to be released by the appellant and the second respondent. These monies had been received by the second respondent in his official capacity from the company, the water use permit holder.

There is a notice of appeal filed against the District Court decision, and, it is contended for the appellant, the appeal process will be either frustrated or pre-empted if the interim injunctive relief sought now are not granted. It is submitted that support for this comes from the provisions of O 14 r 10(3) of the National Court Rules. It is instructive to set out O 14 r 10 which is in the following terms:

"10.	Preservation of property.

(1)	In proceedings concerning any property, or in proceedings in which any question may arise as to any property, the Court may make orders for the detention, custody or preservation of the property.

(2)	An order under Sub-rule (1) may authorise any person to enter any land or to do any other thing for the purpose of giving effect to the order.

(3)	In proceedings concerning the right of any party to a fund, the court may order that the fund be paid into Court or otherwise secured."

Mr Ovia submits further that the balance of convenience favours the preservation of the status quo. However, in view of the recent distribution of the monies, as evidenced by the contents of the affidavit of the first respondent, the first relief under the notice of motion will now not be possible. Therefore, he urges the court to make the alternative order sought, which is that the first respondent reimburse the monies to the second respondent, or that these be paid direct to the court as envisaged by O 14 r 10(3) National Court Rules.

Mr Mukwesipu, counsel for the first respondent, submits that this application should be dismissed. It is contended in this respect that there is an existing agreement between the parties concerned as to how the royalty payments for the water use should be distributed to the resource owners. And, it is argued, this agreement was endorsed by the decision of the District Court. Thus, the monies were duly released as ordered and distributed in pursuance of the order and the agreement.

The second respondent appeared in person, thus without legal representation, and I heard him. He basically submitted that he had been ordered on 28 December 1998 by the District Court to pay the royalty monies he had in his custody. He duly complied with this order on 7 January 1999. It was not his duty, he suggests, to decide who to give monies to contrary to the terms of the agreement or in defiance of the court order.

The second respondent makes the pertinent point that if he had withheld those monies in the way the appellant would want done, and in direct disobedience of the court order, he would be in contempt of court. He makes the point also that he had not been served with either the notice of appeal or the notice of motion for this application according to the requirements of the National Court Rules.

The court notes in this respect that the second respondent discharged his obligation under the District Court order some two weeks before the notice of appeal was filed. And he has, to this day, not been served with a copy of the appeal notice. It is noted also that no order for stay has ever been taken out on the 28 December 1998, District Court order.

In the end result, it is the opinion of this Court that this application should be dismissed. I find no merit at all in this application. Contrary to the assertion of the applicant, the subject District Court order did not mention him as somebody who should be involved in the distribution of the monies to the individual members of the Wunu clan. Rather, he and the second defendant were ordered to release the monies to the Clan pursuant to the 17 October 1995 agreement.

In the subject District Court proceedings, the appellant was sued in his personal and individual capacity by the complainant/first respondent in his representative capacity. This must surely be acknowledged by the appellant himself, when he appeals in his individual capacity and the first respondent is accorded in the notice of appeal a representative capacity.

Issue of balance of convenience and maintenance of the status quo do not, in my opinion, arise here.

The court orders that this application be dismissed with costs.

Lawyers for the applicant: Gamoga & Co. Lawyers.
Lawyers for the first respondent: Warner Shand Lawyers.
Second respondent in person.