|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 240 of 2000
BETWEEN:
KURT REIMANN, DOMINIC ANIS,
FRANCIS ALOU, PEIA WAEA,
Collectively known as the Executives of South Coast Soccer Club
- Plaintiffs-
AND:
GEORGE SKELL
- First Defendant/First Contemnor-
AND:
KIMBE SOCCER ASSOCIATION INC.
- Second Defendant/Second Contemnor-
LAE: KANDAKASI,J.
2001: March 29th
CONTEMPT – PRACTICE & PROCEDURE – Contempt of Court orders – Contempt proceedings filed and served in ample time – Date for hearing of confirmed by telephone and in writing – No appearance of Contemnors and or their lawyers – Order for arrest and detention of contemnor and surety for appearance issued – Order 14 rr. 41 – 46 of the National Court Rules (Chp. 38)
INTERLOCUTORY ORDERS – PRACTICE & PROCEDURE – Relevant factors - Serious question to be tried - Balance of convenience - Particular circumstances involving participation by soccer club at start of season pending determination of validity of its suspension – Irreparable damage – Need to maintain status of quo - Discretionary nature of power – Order 4 rr. 37 & 38 National Court Rules (Chp. 38)
Cases cited:
Andrew Kwimberi of Paulus M. Dowa Lawyers v. The State (27/03/98) SC545
SCR No.3 of 1984; Ex Parte Callick and Karoma [1985] PNGLR 67 at pp.69 – 70
Paul Louis Kysely v The State [1980] PNGLR 36
The State –v- Sogavo Momute Aupe (unreported and unnumbered judgement delivered in Goroka on the 16th of March 2001) CR 1163
Anthony John Polling v. Motor Vehicles Insurance (PNG) Trust [1996] PNGLR 228
South Pacific Post Pty. Ltd. v. Ephraim Ikenna Maduabuchi Nwokolo [1984] PNGLR 38
Bowmans Bougainville Pty Ltd and Bougainville Development Corporation Ltd [1986] PNGLR 228
The Public Prosecutor v. The Chief Justice [1992] PNGLR 316
Kuijk v. Kuijk [1977] PNGLR 253
Norah Mairi v. Alkan Tololo & Ors [1976] PNGLR 59
American Cyanamid Co. v. Ethicon Ltd., [1975] UKHL 1; [1975] A.C. 396
Fellowes & Son v. Fisher, [1975] 2 All E.R. 829, C.A.
National Airline Employees’ Association of Papua New Guinea v. National Airline Commission, Trading as Air Niugini [1992] PNGLR 29
National Housing Corporation v. Yama Security Services Pty Ltd (25/08/00) N1985
Mauga Logging Company Pty. Ltd v. South Pacific Oil Palm Development Pty Ltd (No.1) [1977] PNGLR 80
Counsel:
Mr. E. Paisat for the Plaintiff/Applicant
No Appearance for the Defendants/Respondents/ Contemnors
29th March 2001
INTERLOCUTORY JUDGEMENT
KANDAKASI, J: Two notices of motions came before me for hearing on the 29th of March 2001. The first one seeks punishment of the Defendants/ Respondent/ Contemnor (the Defendants) for contempt of court. It was filed on the 1st of February 2001 with directions I gave on the 12th of January 2001. That was for swearing, tearing and not complying with interim orders I issued on the 30th of November 2000. Those orders required the Defendant to allow the plaintiffs to participate in activities sanction by the Second Defendant, including a Annual General Meeting of the Second Defendant scheduled for that day, at 6:00pm.
The second motion is for further interim orders pending determination of the substantive matter. That motion was filed on the 19th of March 2001. I will refer to that motion as "the second motion" and the first motion will be referred to as "the first motion" and a reference to both will be by the reference "the motions".
Although sufficient notice for the hearing of the motions, especially the first motion was given, there was no appearance for or no behalf of the Defendants. I therefore, granted the plaintiff leave to proceed ex parte. Since the first motion concerned contempt, I could not proceed with the substantive matter in the absences of the Defendants (Contemnors). I therefore, ordered the issue of a warrant for the arrest of the Defendants’ and for them to give a surety of K2, 000.00 or be detained in custody whilst waiting for a date for the hearing of the charge against them. I will elaborate on this later on in the judgement.
As for the second motion, I saw nothing preventing me from proceeding to hear the matter ex parte the Defendants, given the urgency of the matter and being satisfied that notice of the hearing was given and the Defendants did nothing about it. I then granted the orders sought and undertook to publish my full reasons for the decision and this meets that undertaking. I will also elaborate on this later on in the judgment.
The Facts
To appreciate the background to the motions, it is necessary to set out in brief the factual background. I hereunder set out the facts without in anyway making a conclusive finding as to those facts given the interlocutory nature of proceedings before me at this stage.
The plaintiffs are executives of a soccer club in Kimbe called South Coast Soccer Club (the Club) and are suing for and on behalf of the Club, its members and or players. The Club is an affiliate of the Kimbe Soccer Association Inc. (KSAI). On the 11th and 12th of October 2000, the Club, its president and a player, Paul Pepa, were penalised by the KSAI Judiciary ("KSAJ") for alleged conduct that was not sportsman like, including an alleged assault on the First Defendant. The First defendant is the President of the KSAI and it seems he was a member of the KSAJ, which decided on and imposed the penalties. The First Defendant was at the time of the alleged assault refereeing a match between the Club and another club Rapatona on the 8th of October 2000.
The penalties included, a fine of K1,000.00 against Mr. Pepa and K600.00 in compensation for breaking of spectacles belonging to the First Defendant and a 12 months suspension which covers this years’ season. Kurt Reimann was fined K200.00. It also included an order that, unless those penalties are paid up, the Club would be automatically suspended. The Plaintiffs paid up the penalties to avoid a suspension of the Club and appealed against the penalties to the Papua New Guinea Football Association Judiciary ("PNGFAJ") on the 15th of October 2000. The PNGFAJ upheld the appeal and ordered a lifting of the suspension against Mr. Pepa and reduced his fine to K500.00. It also ordered him to pay for a replacement of the Second Defendant’s spectacles before participating in any game. It ordered a refund of the fine imposed against Mr. Reimann. It also ordered the club to sign a surety to keep peace and order to have effect from the 2001 season. Subsequently, by a letter dated 27th October 2000, in the letterhead of the Papua New Guinea Football (Soccer) Association Inc., signed for the President, the decision of the PNGAJ was reversed and the decision of the KSAJ was affirmed. Then Plaintiffs then took out these proceedings seeking orders that would effectively inquire into the propriety of the constitution and decision of the KSAJ and the correct rules and procedure to be followed in matters of discipline, including appeal procedures and the powers and or authorities of the various judiciaries in the game of soccer in the country.
While the proceedings remained to be heard and determined, the soccer season was set to start between end of March and early April 2001. That made it necessary for the second motion to be filed and heard on the 29th of March 2001.
On the 30th November 2000, I granted several interim orders and principally directing the Defendants to allow the plaintiffs to fully participate in Annual General Meetings or other activities sanctioned by the KSAI. Those orders were taken out on the same day and personally served on the Defendants at Kimbe by delivering a sealed copy to the First defendant.
The Plaintiffs claim through a number of affidavits that the Defendants, more particularly through the First Defendant when severed with the orders of the 30th of November 2000, they tore up the orders and said of the orders "I don’t give a fuck and don’t give a damn what the orders says" and refused to comply with the orders. He then tried to proceed with the meeting covered by the court order. They further claim that the First Defendant assaulted Mr. Reimann who has since laid criminal charges against the First Defendant through the police. The relevant affidavits are the affidavits of:
Hearing Date and Notice of Same to the Defendants
Mr. Habuka of Counsel for the Defendants attended the court on 12th of January 2001 and he informed the court that his client was denying the contempt allegations. I therefore, directed that contempt proceedings be filed and served on the Defendants. The parties were also directed to file their respective affidavits and adjourned the matter to a date when I next visit Lae with advice of that to the parties.
The plaintiffs have filed the first notice of motion together with the Statement of Charge and supporting affidavits as listed above. Following service of these documents on the Defendants, they filed a "Defence to Statement of Charge" on the 28th February 2001. As my return to Lae was not certain, no date for a hearing of the first motion was confirmed until the 19th of March 2001. At that time, the Assistant Registrar here spoke to Mr. Habuka on telephone and confirmed the motion for hearing on the 29th of March 2001. On the same day, a letter confirming the date was sent to Mr. Habuka with a copy to the plaintiff’s lawyers. Mr Habuka or his client did not object to the matter being fixed for hearing on the 29th of March either on the 19th of March or anytime thereafter. On the court’s request, following no showing for or by the Defendants, the Assistant Registrar came into Court and informed the Court in the above terms. That was after, I had asked him to call Mr. Habuka’s office and find out why there was no appearance for his client. That call was made around 10.00am but Mr Habuka was not at work.
Also on the 19th of March 2001, the plaintiff’s second motion was filed and made returnable on the 29th March 2001. It seems the sealed copy of the motion and the copy of the Assistant Registrar’s letter of 19th March 2001, was received by the plaintiffs on the 27th of March 2001. On the same day they effected service of the motion and supporting affidavit of Kurt Reimann sworn on the 13/03/2001 on the Defendant through their lawyers which is the address for service for the Defendants for these proceedings. These evidence came from the plaintiffs counsel who undertook to file an affidavit of service confirming the above. I found no reason to doubt what counsel said especially, in view of his undertaking to filing an affidavit of service. Given the urgency of the matter which I will elaborate a little later I granted the plaintiffs application to proceed without first filing an affidavit of service.
Mr. Paisat of counsel for the Plaintiff informed the court that, neither he nor his clients, received any indication from Mr. Habuka or his clients that they will not be appearing at the hearing today. He therefore, came prepared and was ready to proceed with both motions on 29th March 2001. However, he argued that, the first motion could not be proceeded with, as it required the presence of the Defendants given that, it was a motion seeking to punish them for contempt of court. He therefore, applied for a warrant of arrest to be issued for the arrest and detention or surety of or by the Defendants under O.14 r. 46 of the National Court Rules (Chp. 38) (hereinafter "the NCR").
Contempt Proceedings – First Notice of Motion
(a) Preliminary Issues
There are two preliminary issues that need to be resolved first before proceeding any further with the contempt proceedings. The first issue is, what is the correct procedure? The second issue is, whether this Court, the subject of the contempt, should deal with it?
It has been clearly held by the Supreme Court in Andrew Kwimberi of Paulus M. Dowa Lawyers v. The State (27/03/98) SC545 at page 21 that contempt proceedings are criminal in nature but a contemnor could be charge, convicted and punished "without following the usual criminal procedure prescribed by written law". The procedure to follow instead is as is prescribed and laid down by the NCRs per O.14 rr. 37 to 50, which are comprehensive. Non compliance of those procedure does not render the proceedings void.
On the basis of this authority, I am of the view that, in so far as a notice of motion has been filed together with a statement of the charge against the Defendants, only rr. 41 to 50 are relevant. Out of those rules, only rules 42 to 46 are of direct relevance.
Rule 42 provides in so far as is relevant that "where contempt is committed in connexion with proceedings in the Court, an application for punishment for contempt must be made by motion on notice in the proceedings...". A statement of charge must support such a motion, which must be, filed with the motion (r.43). Evidence of the charge must then be brought in by affidavit unless the Court otherwise orders (r. 44). The motion, the statement of charge and affidavit must then be served personally on the contemnor (r.45).
The above Supreme Court judgement at page 24 reiterated earlier Supreme Court decisions (e.g. SCR No.3 of 1984; Ex Parte Callick and Karoma [1985] PNGLR 67 at pp.69 – 70) which say, the rules do not prevent the Court, which is the subject of the alleged contempt, from dealing with the charge, whether the contempt is committed on the face of the court or outside the court. However, the Court must adhere to the principles of natural justice, more particularly the need to conduct a fair hearing and to avoid appearances of bias.
The Supreme Court then pointed out at page 29 that, there would be appearance of bias if the alleged act of contempt is directed personally at the judge. This is how the Supreme Court expressed it:
There is no doubt that a judge before whom the alleged contempt is committed "in the face of the Court" can summarily deal with the contempt himself. However, in certain situations, it may become desirable for him to disqualify himself and refer the matter to another judge to dealt with it or to the Public Prosecutor for prosecution under O. 14 r. 42. The test is one of whether the contemptuous behaviour is one of personal affront to, scandalous of or criticism of to the judge concerned; or whether it goes against the system of administration of justice: Re Mark Taua, per Woods J at p. 181. If the contempt is a personal affront to the judge, etc; he should disqualify himself: If it goes to public confidence in the judicial system, then the judge before whom the contempt is committed is entitled to deal to with it: see McDermott J, in SCR No 3 of 1984, supra, at p. 69:
(Emphasis supplied)
In this case, the contempt alleged is not a personal affront to, scandalous or criticism of myself. Instead, it is against the system of administration of justice, the need to respect and honour or comply with Court orders once made and the person(s) required to comply has been serviced or made aware of the existence of Court orders. Accordingly, am of the view that, I am not precluded from dealing with the contempt charge.
In this case, the alleged contempt is in relation to interlocutory orders this Court made on the 30th of November 2000. It was therefore, appropriate to proceed by way of a notice of motion as has been done. A Statement of Charge and affidavits in support of the motion and Statement of Charge have been filed. Hence, the requirements of rules 43 and 44 have been met.
In relation to the requirements for service, Mr. Paisat said an affidavit of service deposing to the documents being personally served on the Defendants was forwarded to the Court with copies for filing but it seems they have gone astray. He has undertaken to file a new one. On the basis of Counsel’s undertaking, I accepted that the documents have been served on the Defendants. This is confirmed by the fact that the Defendants have filed a "Defence to Statement of Charge" on the 28th of February 2001. I also accepted that the Defendants were notified on the 19th of March 2001 of the matter being listed for hearing before me on the 29th March 2001. Despite being served and notified of the hearing set for the 29th March 2001, neither the defendants nor their lawyer turned up in court to proceed with the hearing.
(b) Warrant of Arrest
Since the motion is for punishment for contempt, I agree with the Plaintiff’s Counsel that, the Court can not proceed to deal with the motion in the absence of the contemnors. Accordingly, the hearing has to be adjourned to a new date when the contemnors can attend. In the meantime, I am of the view that, O.14 r. 46 empowered me to issue a warrant of arrest to secure the contemnors appearance and made such orders, as I considered appropriate toward that purpose. That provision reads:
Where—
(a) notice of a motion for punishment of a contempt has been filed or proceedings have been commenced for punishment of a contempt; and
(b) it appears to the Court that the contemnor is likely to abscond or otherwise withdraw himself from the jurisdiction of the Court,
the Court may issue a warrant in Form 64 for the arrest of the contemnor and his detention in custody until he is brought before the Court to answer the charge, unless he, in the meantime, gives security in such manner and in such sum as the Court directs, for his appearance in person to answer the charge and to submit to the judgement or order of the Court.
In the case before me, contempt proceedings have already been commenced in accordance with the rules. The proceedings were then listed for hearing before me on the 29th March 2001, after the contemnors were served with copies of the relevant notice of motion, the Statement of Charge and affidavits in support of the charge and they have file their defence or reply to the charge against them. They had sufficient and ample notice of the hearing. Despite that, there was no appearance for or on behalf of them. There was no explanation for that.
In my view, O.14 r. 46 empowers the Court to issue a warrant of arrest for the arrest and detention of a contemnor "where it appears to the Court that the contemnor is likely to abscond or otherwise withdraw himself from the jurisdiction of the Court". In the present case, the contemnors have already absconded or have failed to turn up in Court for the hearing of the charge against them. Thus it has become more than a case of a "likelihood" of not appearing.
The term "likely" as used in s.9(1)(f) of the Bail Act (Chp. 340)has interpreted to mean in the sense of a tendency with real possibility. It does not mean "more likely than not", "probably", or "very likely". That was in the case of Paul Louis Kysely v The State [1980 ] PNGLR 36 at page 39. In that case there was evidence of the applicant having actually interfered with State witnesses and the court refused to grant bail. I followed that case and revoked bail for the Defendant in The State –v- Sogavo Momute Aupe (unreported and unnumbered judgement I delivered in Goroka on the 16th of March 2001) CR 1163, where there was already evidence of witnesses being interfered with already and not a mere likelihood. In the case before me I also adopted the interpretation of the term "likely" as used in O.14 r. 46 of the NCRs as with appropriate modifications to apply in the context of the rule under consideration.
As was the case in the above cases the Defendant Contemnors despite having notice of the date set for a hearing of the charge against them, failed to turn up in Court for the purpose of hearing and determining the charge against them. In the circumstances I considered it appropriate that a warrant for the arrest and detention of the contemnors especially the First defendant, through who the Second Defendant is acting, should be issued. I therefore made the following orders:
I also ordered that the file and this matter be transferred to Waigani for me to further deal with. Further, I directed that, the Court with due consultation and notice of that to the parties should fix a date for a hearing of the charge against the Defendants.
Application For Interlocutory Orders – Second Notice of Motion
As noted above when the matter was called for hearing there was no appearance for or by the Defendants. That was despite the motion being served on the Defendant on the 27th of this instant. Clearly, the minimum required period of service of three clear days before the date set for hearing pursuant to O. 4 r. 42 of the NCRs have not been met. In the circumstances, Mr. Paisat correctly conceded that the requirements for service under O.4 r.42 were not strictly met but pointed out that was not the same to say the Defendants have not been served at all.
Dispensation of Strict Compliance of Service
Requirements and Hearing Ex pare
Mr. Paisat then applied for a dispensation of the requirements for service and referred the Court to the provisions of O.4 r. 38(2)(a) of the NCRs. That provision in relevant parts provides:
(1) Subject to Sub-rule (2), a person shall not move the Court for any orders unless before moving he has filed notice of the motion and has served the notice on each interested party who has an address for service in the proceedings.
(2) A person may move the Court without previously filing or serving notice of the motion—
- (a) where the preparation of the notice, or the filing or service, as the case may be, of the notice would cause undue delay or other mischief to the applicant
...
(b) where the Court dispenses with the requirements of Sub-rule (1).
(Emphasis supplied)
Counsel for the Plaintiff pointed out to paragraph 6 of the Affidavit of Mr. Kurt Reimann sworn on the 13th of March 2001, and urged the Court to note that the soccer season in Kimbe for this year was commencing between the 29th of March and April 2001. He then argued that, if the hearing of the application is delayed to allow for the service requirements to be strictly met, this year’s soccer season might start without the Plaintiff’s participation. That will adversely affect his client’s position in the relevant soccer competition. That is a "mischief" or consequence they wish to avoid. He points out that they tried to bring the application early this month before my brother, Justice Sakora during His Honour’s circuit to Kimbe, but they were unable to do that as his Honour did not have the time to deal with the motion.
Further, reference was made to the fact that, the Defendants were to appear in court on the 29th of March 2001, in any case, in relation to the first motion but for reasons only known to them, they have not made any appearance. The plaintiff also argued that, the Defendants were served, albeit short and they did not take any step to prevent or stop the motion from being heard on the date specified in the notice of motion. In those circumstances, I was urged to dispense with the strict requirements of the rules to serve three clear days and permit them to proceed with the hearing of their motion ex parte.
It is now settled law that the NCRs are not an end in them but are means to an end in all matters going before the Courts. They are only a code of practice. There is no doubt that, where justice so requires, strict adherence to the Rules can be dispensed with in the circumstances of a particular case: see Anthony John Polling v. Motor Vehicles Insurance (PNG) Trust [1996] PNGLR 228 at 230; South Pacific Post Pty. Ltd. v. Ephraim Ikenna Maduabuchi Nwokolo [1984] PNGLR 38 at 46. It should also be borne in mind that, the Rules were designed to guide and assist the Court and the parties to reach a fair, orderly and expeditious disposition of matters before the Court. Their application was intended to be flexible. See Andrew Kwimberi of Paulus M Dowa Lawyers v. The State (27th March 1998) SC545 at page 22. Non-compliance with any of the rules do not render any proceedings void, unless the Court otherwise orders: See Anthony John Polling v. Motor Vehicles Insurance (PNG) Trust (supra); Bowmans Bougainville Pty Ltd and Bougainville Development Corporation Ltd [1986] PNGLR 228 at 230 and Andrew Kwimberi of Paulus M Dowa Lawyers v. The State (supra).
There is also ample authority for the proposition that, the Court does have the power under O.1 r. 7 of the NCRs to dispense with the requirements of the rules either before or after the need to comply has arisen. When an application under this rule is made the Court will have regard to the urgency of the matter (The Public Prosecutor v. The Chief Justice [1992] PNGLR 316 at p. 321), the interests of justice, the impact of the non-compliance on the parties with reference to whether in reality the other party is in as good a position as if the rules had been complied with, or whether the party has been disadvantaged in regard to its rights in the matter, whether the application for dispensation is made within a reasonable time (Anthony John Polling v. Motor Vehicles Insurance (PNG) Trust (supra) and Bowmans Bougainville Pty Ltd and Bougainville Development Corporation Ltd (supra) at p.231) and whether or not the intend and or the purpose of the rule in question has been met. (Kuijk v. Kuijk [1977] PNGLR 253).
In the present case, the defendants were required to be in court in connection with the first motion. However, has found above in the context of that motion, they failed to neither make an appearance nor provide any explanation for the non-appearance. They were served with the second motion on the 27th of March 2001, which was one clear day before the date set for its hearing. Prior to that, by a letter dated 13th February 2001, (annexure "B") the Plaintiffs requested the Defendants to agree to their participation in the 2001 soccer season in Kimbe pending a determination of the substantive proceedings. In the same letter, the Plaintiffs warned that they would apply to the Court for appropriate orders if their request were not given. By letter dated 27th February 2001, (annexure "C") the Defendant’s lawyers rejected the request of the Plaintiffs. The Defendant’s were thus aware that this application was going to be made when they received the letter dated 13th February 2001, form the Plaintiffs’ lawyers. There is no indication of any concern being shown against a grant of the orders sought by the Plaintiffs at the least, after the notice of motion was file and served. In the meantime, the relevant soccer season was set to start between the date of the hearing of the motion and April 2001
I accepted the argument that if the application was delayed and the orders sought were not granted, the soccer season for this year in Kimbe will be well under way and the Plaintiffs would be greatly disadvantaged. It may take some time before the court comes to deal with and determine the substantive matter. By the time it comes to a decision and if it goes in favour of the Plaintiff, it will not reverse the consequences of the Plaintiff not participating in the competition. They may be no where near on the points leader by reason of their non participation and no order for damages will adequately compensate the Plaintiffs for that.
The situation is not the same for the Defendants if the orders sought are granted. They will not suffer any damage. If the Court determines the substantive proceedings in Defendants favour, the Plaintiffs will simply drop out of the competition by reason of the determination without in any way adversely affecting the competition.
I found on the available material that, there was urgency in the matter and there was a need to avoid unnecessary delays. The motion was served on the Defendants though not within the prescribed period at least well before the date set for hearing. Despite that, the Defendants took no step such as instructing an agent in Lae to appear in Court and apply for an adjournment on the basis of the short service or come to some temporary arrangement with the Plaintiffs. By its failure to do anything, I noted that the Defendants showed no concern over the impact of the failure to comply with the strict requirements for three clear days service for notices of motions. Besides, I noted that, they were required for the purposes of the first notice of motion to be in Court also on the 29th but they failed to make any appearance. In the absence of any evidence to the contrary, I found that, there was going to be no serious impact against the Defendants as a result of the failure to serve the second notice of motion within the required three clear days. I was thus of the view that, it would not have made any difference even if the motion was serve before the 27th of March and within the three clear days requirement. That was so having regard to the Defendants’ failure in relation to the first motion, which was served more than three clear days and confirmed also more than the three clear days before the date set for a hearing of that motion.
In my view, the intention of the requirements for three clear days service for notices of motion, is to ensure that a respondent to a notice of motion has sufficient notice and time to prepare and attend to its the hearing. Often times, parties by negotiation either shorten or extend the period prescribed by the rules. Usually, if a respondent to a notice of motion requires more time he would formerly appear in court and apply for an adjournment if there is no agreement for an adjournment. Of course, the party applying for adjournment has to convince the court with appropriate evidence and arguments that the adjournment needs to be granted before it can be granted. Where a motion has been short served, as in the present case, the respondent to the motion has the obligation to turn up in court and oppose a hearing of the motion on that basis unless the applicant agrees to an adjournment because of the short service. Where a respondent fails to do that, again as in the present case, then in my view, he is tacitly agreeing to the motion being heard on the date shown on the motion despite the short service. However, I am also of the view that, that should not give an automatic right to the applicant to proceed with his application. The applicant must show, inter alia, that the matter is urgent and that a delay in the hearing may result in "mischief" within the meaning of O.4 r.38(2) of the NCRs. If an applicant is able to do that, only than should the court proceed to deal with the motion.
In this case, I found that the intent of the requirements of service of the notice of motion has been met. If that was not so then, it was incumbent upon the Defendants to come to the court and demonstrate that. The Defendants did not turn up in court and do that, even though, they were required and obliged to do so for the purposes of the first motion.
Further, in the absence of any evidence to the contrary, I failed to find what, if any rights, the Defendants had that was going or was being disadvantaged by the short service of the motion.
Finally, I found that the application for the dispensation was not delayed. In fact it was made immediately when the need to comply with the three clear days service requirement arose.
On the basis of the above, I dispensed, with the strict requirements under O.4 r. 42 of the NCRs for three clear days service of the notice of motion pursuant to O.1r.7. That in my view, was what justice required in the particular circumstances put before me. I then granted leave to the Plaintiffs to proceed ex parte in view of my finding that "mischief" or irreparable damage could be done to the Plaintiffs within the meaning of O. 4 r. 38(2) if the hearing of this motion was delayed. Further, after having dispensed with the strict compliance of the three clear days service requirement under O.4 r. 42, upon being satisfied that the motion was served albeit short on the 27th of March 2001, I formed the view that, I could proceed to hear the motion under O.4 r. 46 in the absence of the Defendants. That was based on my view that, the effect of the dispensation of the strict requirements under O.4 r. 42 rendered either the motion not being required to be served (r.46(a)) or that they were duly served (r.46(b)).
Interlocutory Orders
The principles governing the grant of interlocutory orders are very clear and to that extent they are settled. In our jurisdiction from as early has 1976 per Frost CJ in Norah Mairi v. Alkan Tololo & Ors [1976] PNGLR 59 at pages 63 – 65 the principles are in terms of:
These principles have been adopted from the case of American Cyanamid Co. v. Ethicon Ltd.[1975] UKHL 1; , [1975] A.C. 396 and Fellowes & Son v. Fisher, [1975] 2 All E.R. 829, C.A. and many other cases. Subsequent, cases have been applying these principles to determine applications for interlocutory orders. See for example the case of National Airline Employees’ Association of Papua New Guinea v. National Airline Commission, Trading as Air Niugini [1992] PNGLR 29, where the Court said at page 480 that:
"What the plaintiff must prove is that he has a serious, not a speculative case which has a real possibility of ultimate success and that he has property or other interests which might be jeopardised if no interlocutory relief were granted. Then it becomes a matter of seeing if, in all the circumstances of the case, the court should nonetheless exercise its discretion by declining to issue an interlocutory injunction."
A more recent example of applying those principles is in the case of, National Housing Corporation v. Yama Security Services Pty Ltd (25/08/00) N1985 per Sevua J who at page 6 of the judgement said:
"It is trite law that on an application for an interlocutory injunction, the Court must be satisfied that there is a serious question to be tried. That is, the applicant’s evidence at the hearing of his application must disclose material facts that he has a real prospect for succeeding in his claim for an injunction at the trial. The Court must be satisfied that the claim is not frivolous or vexatious.
Before expressing in terms of the above His Honour also covered the need to provide and undertaking has to damages requirements. However, of them all, the first requirement his the most important of all on which the others may depend upon.
In the present case, I am satisfied that, they Plaintiffs do not have a speculative claim against the Defendants. Instead I am satisfied that they have a good chance of success on their action. There is indeed a serious question to be determined. That question relates to severity of the penalties imposed against the Plaintiffs. There is also the possibility of bias on the part of the KSAJ as its President, the Second Defendant was personally affected. He was therefore, personally and actively pursuing the matter against the Plaintiffs. Furthermore, there are serious and important issues to be determined especially in relation to the relation between the PNGFA, the KSAI and their respective judiciaries and whose decision is final. The PNGFAJ made a decision that according to its Constitution was final and yet another body revisited the decision. It seems to me that was not proper especially in the absence of any demonstration of any right of further appeals from the PNGFAJ. Hence my view that, the Plaintiffs have a good case against the Defendants which is likely to succeed.
The balance of convenience and the need to maintain the status of quo also go in favour of the Plaintiffs. If they are not allowed to participate at the commencement of this years soccer season in Kimbe, they will be greatly disadvantaged in that they will be no where on the points tables and that will effectively render them has not having participated at all. This is exactly the kind of result the Defendant would want to see by the time the plaintiff’s action is heard and determined. On the other hand, if the Plaintiffs were allowed to participate there would be no damage or disadvantage suffered by the Defendants. If the Plaintiff’s action is dismissed, their club could simply drop out of the competition and the games would continued to be played without the participation of the Plaintiffs.
As may be apparent from the above, I could not see what if any damages they Defendant’s would suffer if the orders sought by the Plaintiffs were granted as an interim measure. There is therefore no need in my view for an undertaking as to damages to be given. I note that there is authority for the proposition that an undertaking as to damages before grant of interlocutory orders is not a strict one. Instead, it is within the discretion of the court to determine whether such an undertaking as to damages should be given either before or after the grant of the orders sought.
In Mauga Logging Company Pty. Ltd v. South Pacific Oil Palm Development Pty Ltd (No.1) [1977] PNGLR 80, Frost CJ., decided not to require an undertaking has to damages to be given. In that case, His Honour had a company, which was under receivership by virtue of which it could not possibly have the money to pay any damages forced on by an injunction. His Honour was of the view that, s. 155(4) of the Constitution empowered the Court to make such orders as were necessary in the circumstance of a given case to do justices. He was of the view that, the interest of the justice in the case before him required the grant of the orders sought without any undertaking as to damages.
I therefore found that a case has been made out for a grant of the interlocutory orders sought by the Plaintiff, pending a determination of the substantive matter. I also found that particular circumstances of the case require a grant of the orders sought in the interest of doing justice as dictated by s. 155(4) of the Constitution if not at common law or equity. I therefore order that the Plaintiff/Applicants be allowed to participate in the Kimbe Soccer Association sanctioned competition until these proceedings are determined. That was in addition to granting the Plaintiffs leave to proceed ex parte.
Finally the Plaintiff sought orders for a return of a sum of K2, 946.30 it paid to the Defendants through their lawyer Mr. Habuka on the basis of what appeared to be orders made for a payment of a sum of K4, 004.50 on the 18th of December 2000. According to the records. I made an order for costs in favour of the Defendants on the 18th of December 2000 payable before the next hearing date. The orders did not however, fix the amount at K4,004.50 or at all.
Mr. Habuka of Counsel for the Defendants, attached to a formal order, which was taken out on the 27th of December 2000, an itemised list of costs adding up to that amount. There was no taxing or a subsequent order of the Court fixing that amount. Accordingly, when the matter returned to me on the 12th of January 2001, I ordered a strike out and removal of the itemised costs and pointed out to Mr. Habuaka that, what he did was an abuse of process and misrepresentation of the Courts order. The normal procedure is to go for a taxation of costs in the absence of any specific amount being agreed to and or fixed by the Court.
After the orders striking out the itemised costs, the Plaintiffs requested a refund of the money they paid to the Defendants. But the Defendant and their Lawyers were refusing to do that and claimed those funds as a lien or security for their costs again without any order or direction from the Court. I know of no law, which allows for such a conduct. In the circumstances, I order the amounts paid to the Defendant through their lawyers Mr. Habuak, to be forthwith repaid to the Plaintiffs.
In summary I made the following orders in respect of the second motion:
_______________________________________________________________________
Lawyer for the Plaintiff/Applicant: Jackson Gah & Associates Lawyers
Lawyer for the Defendant/Respondent: Habuka Lawyers
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2001/84.html