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Pam v Manam [2025] PGNC 281; N11354 (4 July 2025)

N11354


PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]


WS NO. 239 OF 2025


BETWEEN
RAYMOND PAM
Plaintiff


AND
GIDEON MANAM
First Defendant


CHERUBIM VAIYANG
Second Defendant


WEWAK: COLLIER J
4 JULY 2025


PRACTICE AND PROCEDURE – application for interim injunction pending determination of defamation proceedings in National Court – where defendants alleged to have authored and distributed reports containing serious allegations of criminal conduct and corruption against the plaintiff – ex parte hearing of application for interim injunction – whether ex parte hearing appropriate – principles for granting interim injunctions – whether serious question to be tried – balance of convenience – whether award of damages adequate remedy – undertaking as to damages – interim injunction restraining publication granted


The plaintiff was at all material times the President of Yuat Rural Local-Level Government. The first defendant was at all material times the Financial Administration Officer of Yuat Rural Local-Level Government in Angoram District, East Sepik Province. The second defendant was at all material times the Local Level Government Manager of Yuat Rural Local Level Government in Angoram District, East Sepik Province.


The plaintiff alleges that the defendants authored and distributed two separate reports during 2024 and 2025, containing serious allegations of criminal conduct and corruption against him, including theft, misappropriation, and misuse of public funds. The plaintiff alleges that the two reports were published and distributed physically to members of the public in and around Yuat Local-Level Government and distributed, in part, on social media.


The plaintiff claims the conduct of the defendants amounts to defamation under the Defamation Act 1963, and would injure him in the present local level government elections. Pending final determination by the National Court of the plaintiff’s substantive claims, the plaintiff sought an interim injunction restraining the defendants from publishing the reports or any part thereof.


Held:


Interim injunction restraining publication granted subject to undertaking as to damages by plaintiff. Appropriate in circumstances where all relevant parties in remote areas to determine the interim application ex parte, subject to the matter being returnable at the next civil call over in Wewak.


Cases cited
Audela Ltd v National Housing Corporation [2024] SC2531
Barrick Niugini Ltd v Nekitel [2021] N8791
Bemobile Ltd v Digicel (PNG) Ltd [2013] N5064
Constitution
Golobadana No. 35 Ltd v Bank of South Pacific Ltd [2002] N2309
Hetura Paz Development Co Pty Ltd v Niugini Nius Pty Ltd, Paliau and Thurecht [1982] PNGLR 250
Mai Corp Ltd v National Airports Corporation [2015] N6031
Sone v Samson [2022] N10170
Quartz Hill Consolidated Gold Mining Co. v Beall [1882] UKLawRpCh 46; (1882) 20 Ch. D. 501


Counsel
Mr M Bayam, for the plaintiff
No appearance, for the defendants


  1. COLLIER J: On 2 July 2025, I heard a Notice of Motion filed by the plaintiff, Mr Raymond Pam, on 23 June 2025 in which he sought the following relief against the respondents Mr Gideon Manam and Mr Cherubim Vaiyang:
(1) Pursuant to Order 1 Rule 7 or Order 4 Rule 38(2) or Order 12 Rule 1 of the National Court Rules 1983 (National Court Rules), the requirement for three days service of this Notice of Motion and the service of supporting documents be dispensed with.
(2) Pursuant to Order 14 Rule 9(a) and Order 12 Rule 1 of the National Court Rules, the Plaintiff seeks interim injunctive orders restraining the Defendants, whether by themselves, their agents, servants or any other person acting on their instructions or in concert with them, from:
(3) That these interim orders remain in force until the hearing and final determination of the substantive claim filed in this proceeding.
(4) Such further or other orders as the Honourable Court deems just in the circumstances.
  1. The matter came before me ex parte on 2 July 2025. Only the lawyer for the plaintiff was present at the hearing.
  2. After hearing Counsel for the plaintiff, I made the orders sought by the plaintiff. These are my reasons for doing so.


Pleadings and evidence


  1. On 23 June 2025, the plaintiff filed a Writ of Summons and Statement of Claim in which he pleaded the following background facts:

(paras 7, 8 and 9)

  1. Mr Pam pleaded at para 14 of the Statement of Claim that the reports contained statements which were defamatory, the particulars of which were in summary:
  1. The plaintiff pleaded at para 15 of the Statement of Claim that the conduct of the Defendants had amounted to defamation pursuant to s 3 of the Defamation Act 1962 (Defamation Act).
  2. The plaintiff pleaded at para 16 that the publications were made maliciously with intent to influence the upcoming LLG elections, and were drafted and circulated to be timed to coincide with the 2025 LLG elections in order to sabotage the plaintiff’s political standing and electoral prospects. The plaintiff also pleaded at para 17 that the defendants had failed to adhere to proper administrative procedure by neglecting to submit the reports to the Provincial Administrator of East Sepik Province, who was responsible for authorising an audit to verify the relevant allegations.
  3. The plaintiff pleaded at para 18 that as a consequence of these publications he had endured humiliation, embarrassment, and reputational harm, adversely affecting his leadership standing and public credibility. Further he claimed that he was now more likely to be shunned and ridiculed by members of the community and the broader Yaut constituency; to be exposed to ongoing public scrutiny and humiliation, and to suffer a loss of political support in the lead-up to the 2025 LLG elections.
  4. The plaintiff pleaded that he had brought the proceedings pursuant to s 24 of the Defamation Act, and sought damages, injunctive relief, interest and costs.
  5. In his affidavit filed on 23 June 2025, the plaintiff gave evidence consistent with his Statement of Claim. He expanded his evidence by reference to the government entities to whom the defendants should have referred the reports, namely the Provincial Administrator, the Auditor-General and the Ombudsman Commission. In particular the plaintiff deposed that the defendants are required to report any misconduct such as management of public monies to either the Departmental Head or the Ombudsman Commission (s 13.3 of the Public Service Code of Business Ethics & Conduct), and that the Auditor-General is the appropriate authority to execute audit (ss 3 and 4 of the Audit Act 1989, through referral by the Provincial Administrator). The plaintiff further deposed that in the case of misuse of public funds by elected leaders, the defendants were permitted by law to lodge a complaint with the Ombudsman Commission for investigation: s 16 of the Organic Law on the Duties and Responsibilities of Leadership.
  6. The plaintiff also deposed that some candidates contesting for the President seat were using the reports and campaigning against him for the presidency in the Yuat LLG elections.


Power of the Court to grant an interim injunction and relevant principles


  1. The grant of an interim injunction is an exercise of discretion by the Court: Golobadana No. 35 Ltd v Bank of South Pacific Ltd [2002] N2309 per Kandakasi J (as his Honour then was).
  2. Section 155(4) of the Constitution provides:
(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.
  1. Further, under the National Court Rules Order 12 Rule 1 provides:
1. General relief
The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgement or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgement or order in any originating process
  1. I am satisfied that s 155(4) of the Constitution and Order 12 Rule 1 of the National Court Rules empowers the Court to make interim orders.
  2. In Golobadana No 35 Ltd v Bank of South Pacific Ltd [2002] N2309, Kandakasi J observed:
The authorities also agree that before there can be a grant of such a relief, the Court must be satisfied that there is a serious question to be determined on the substantive proceedings. This is to ensure that such a relief is granted only in cases where the Court is satisfied that there is a serious question of law or fact raised in the substantive claim. The authorities also agree that the balance of convenience must favour a grant or continuity of such a relief to maintain the status quo. Further, the authorities agree that, if damages could adequately compensate the applicant, then an injunctive order should not be granted.
  1. In Sone v Samson [2022] N10170, Thoke AJ observed in respect of interim interlocutory relief:
    1. Interim orders or interlocutory injunctions are temporary reliefs which the Court grants while the actual substantive process is pending. They are usually made when there is an urgent/pressing issue calling for immediate attention/action while the court process is going on.
    2. Andrew J; held in Robinson v National Airlines Commission [1983] PNGLR 476 (at p. 480) that “no real principles can be laid down as to when interlocutory injunctions should or should not be granted except they are granted when just or convenient and what falls within that description must differ substantially from case to case” [emphasis is mine]. Thus, the National Court is vested with general jurisdiction by virtue of Order 12, Rule 1 of the NCR and Section 155(4) of the Constitution to apply its “trained” discretion in granting interim orders.
  2. I further note the following observations by Davani J in Bemobile Ltd v Digicel (PNG) Ltd [2013] N5064:
    1. The principles applicable to interim injunctions are well settled in our jurisdiction. These principles are set out in Employers Federation of Papua New Guinea v. Papua New Guinea Waterside Workers and Seaman's Union and Arbitration Tribunal (unreported judgment of Kapi DCJ, N393 dated 11 October 1982) at pages 3-4, where the Court said:
“However, the House of Lords had the opportunity to reconsider this principle in the case of American Cyanamid Company v. Ethicon Limited [1975] UKHL 1; [1975] 1 All E.R. 504. 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 ER. 411 at 419.
  1. The Court must then consider whether the balance of convenience lies in favour of granting or refusing interlocutory relief.
  2. 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.
  3. 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.
  4. Then one goes on to consider all the matters relevant to the balance of convenience, an important factor in the balance should, other things being even, preserve the status quo; and
  5. When all other things are equal it may be proper to take into account in tipping the balance of the relative strength of each party's case as reviewed by the evidence before the Court hearing the interlocutory application.
  6. Finally, I note recent comments of Miviri J in Barrick Niugini Ltd v Nekitel [2021] N8791, where his Honour said:
    1. Here he must demonstrate that without the grant of the mandatory injunction or Stay, serious damage will be resultant upon the plaintiff. Prima facie it is a serious case to be tried and the material he relies upon justify this cause. Because the result is that damages will not adequately remedy what he sustains. That when viewed the balance of convenience favours grant because upon trial, he will be successful.
  7. As a general proposition, as explained by Kapi DCJ in Hetura Paz Development Co Pty Ltd v Niugini Nius Pty Ltd, Paliau and Thurecht [1982] PNGLR 250, jurisdiction to grant an interim injunction to restrain publication of matter alleged to be defamatory must be very carefully exercised, particularly where privilege is claimed: Quartz Hill Consolidated Gold Mining Co. v Beall [1882] UKLawRpCh 46; (1882) 20 Ch. D. 501. His Honour observed that the source of the Court’s power in that case was the National Court Rules in their form at that time, and s 155(4) of the Constitution. His Honour continued:
Jurisdiction to grant an interim injunction to restrain publication of matter alleged to be defamatory must be very carefully exercised particularly where privilege is claimed: Quartz Hill Consolidated Gold Mining Co. v Beall [1882] UKLawRpCh 46; (1882) 20 Ch. D. 501.
Where privilege is claimed, the plaintiff must prove malice. This is difficult to prove on an interlocutory application. Liverpool Household Stores Association v. Smith [1887] UKLawRpCh 212; (1887) 37 Ch. D. 170, at p. 180; Bonnard v. Perryman [1891] 2 Ch. D. 269.
Free Speech is a strong reason for being very cautious with the exercise of jurisdiction: Bonnard v. Perryman (supra).
Even if defamatory but intends to make fair comment on a matter of public interest,the truth should out: Fraser v. Evans [1969] 1 Q.B. 349.
Jurisdiction should be exercised only in clear cases of defamation: Coulson, William and Sons v. Coulson, James and Co. (1887) 3 T.L.R. 846.; Liverpool Household Stores Association v. Smith (supra).
The balance of convenience does not apply in defamation cases. Edelsten v. John Fairfax & Sons Ltd. (supra).
Whether the plaintiff is likely to suffer by the publication. Fraser v. Evans (supra).
  1. In the circumstances of this case, I am satisfied of the following.
  2. First, the imputations in the reports are prima facie defamatory within the meaning of ss 2 and 3 of the Defamation Act, in that the evidence before the Court supports findings at this interlocutory level that:
  1. It follows that there is a serious question to be tried in respect of the claims of the plaintiff.
  2. Second, the balance of convenience favours the plaintiff. No clear prejudice to the defendants exists in they are restrained from printing, publishing, posting, circulating, quoting or making reference to the reports until the final determination of the substantive proceedings. In contrast, the reputation of the plaintiff could be permanently ruined if the reports continue to be published.
  3. Third, I am satisfied that an award of damages would not be an adequate remedy to the plaintiff. As the evidence of the plaintiff demonstrates, there are presently LLG elections taking place. Irretrievable damage to the plaintiff could result from the continued proliferation of the reports, in particular, it could unfairly affect his election campaign.
  4. Fourth, the plaintiff has, quite properly, offered an undertaking as to damages. As the Supreme Court explained in Audela Ltd v National Housing Corporation [2024] SC2531:
    1. A court has no power to compel an applicant for an injunction to give an undertaking as to damages. The Court can only refuse to grant the injunction: Tucker v New Brunswick Trading Company of London [1890] UKLawRpCh 60; (1890) 44 Ch D 249.
    2. The National and Supreme Courts have said that as a general rule, before the Court can grant an injunction, an applicant must provide an undertaking as to damages: Gobe Hongu Ltd v National Executive Council (1999) N1920; NHC v Yama Security Services Pty Ltd (2000) N1985; Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853
  5. Subject to my consideration next of whether the Court ought to entertain the plaintiff’s Notice of Motion ex parte, I am satisfied that the plaintiff is entitled to the interim injunctive relief he has sought.


Ex parte hearing


  1. In the present case the plaintiff filed a Writ of Summons and Statement of Claim seeking substantive relief for defamation on 23 June 2023. Relevantly Order 4 Rule 49(5) of the National Court Rules provides:
5. Urgent ex parte applications
i. ...
ii. Urgent ex parte applications in other cases
(a) A lawyer or a party wishing to make an urgent ex parte application, must contact the Registrar in writing, explaining the reasons for the urgency and why the requirements for service of the Motion is sought to be dispensed with.
(b) The Registrar, after being satisfied with the explanation given, will fix a time and date for the hearing of the Motion, in consultation with the Motions Judge.
(c) The application will not be set down for hearing unless the following documents are filed—
(i) Originating Process;
(ii) Notice of Motion;
(iii) Supporting Affidavit/s;
(iv) Where appropriate, an Undertaking as to Damages;
(v) Draft order.
(d) The applicant must, in the Notice of Motion, first seek an order dispensing with the requirement for service of the motion. In the supporting affidavit, the deponent must demonstrate the urgency of the matter and the reasons why dispensation with the requirement for service of the Motion is necessary, such as difficulty with locating the defendant in order for service to be effected.
(e) Upon hearing the application, the Judge may make orders including:
(i) An order dispensing with requirements of service;
(ii) An interim order which provides some solution, until the return date;
(iii) Service of the Order, the Originating Process, Motion, Supporting Affidavit, Undertaking as to Damages (where appropriate) and other documents filed in the proceedings, on or by a specified date.
  1. The plaintiff has complied with the provisions of Order 4 Rule 49(5)(ii) of the National Court Rules in respect of his application for urgent ex parte injunctive relief.
  2. In respect of the grant of ex parte relief, Davani J in Bemobile observed:
    1. Consistent with the authorities in Papua New Guinea, an applicant's duty when seeking an ex parte order and the consequence of failing to satisfy them were succinctly stated by Bingham .J (as His Lordship then was) in Siporex Trade SA v. Condel Commodities Limited (1986) 2 Lloyd's Rep. 429 at 437 as follows:
(i) An applicant must show the utmost good faith and disclose his case fully and fairly;
(ii) It must, for the protection and information of the defendant, summarise his case and the evidence in support of it by affidavit evidence;
(iii) It must identify the nature of the cause of action asserted and the facts relied on and not rely on general statements;
(iv) It must identify any likely defences;
(v) It must disclose all facts which reasonably could or would be taken into account by the Judge in deciding whether to grant the application; it is no excuse for an applicant to say that he was not aware of the importance of matters he had omitted to state;
(vi) If the duty of full and fair disclosure is not observed, the Court may discharge the ex parte order even if after full enquiry, its view is that the order made was just and convenient and would probably have been made even if there had been full disclosure.
(vii) In other words, the order may be discharged entirely as a punitive measure for failing to fully disclose.
  1. Subsequently, in Mai Corp Ltd v National Airports Corporation [2015] N6031, Makail J said:
    1. ...As is usually the case in an ex parte hearing, not all the information is placed before the Court for it to have a balanced view of the case, although the onus is also on any Applicant to give full and candid disclosure of all information that are within the Applicant's knowledge, even if they do not favour the Applicant's case: Sioti Bauf and Lovai Nodai v. Poliamba Pty Limited [1990] PNGLR 278; Eastern Highlands Provincial Government v. Aita Ivarato [1998] PNGLR 268 and Airlines PNG Limited v. Air Niugini Limited (2010) N4047
  2. In the present case the plaintiff relevantly deposed:
    1. I seek an order dispensing with the requirement for service of this Motion pursuant to Order 4 rule 5(i)(d) of the National Court Motions (Amendment) Rules 2005, as I am currently campaigning in the remote and scattered villages of Yuat LLG. Due to the remoteness of the villages, transport limitations and the distance of travelling by boat, I am unable to locate and serve the Defendants in a timely manner before the hearing.
    2. I respectfully request that the Court treat this application as an ex parte urgent motion due to the exceptional urgency of preventing further damage to my electoral prospects, and the practical impossibility of prompt service upon the Defendants.
  3. In the circumstances I am satisfied that:


Conclusion


  1. It is appropriate that the Court make the interim injunctive orders sought by the plaintiff ex parte.

THE COURT ORDERS THAT:


SUBJECT TO THE UNDERTAKING AS TO DAMAGES GIVEN BY MR RAYMOND PAM ON 19 JUNE 2025, THE COURT ORDERS THAT:
  1. Pursuant to Order 1 Rule 7 or Order 4 Rule 38(2)(a) or Order 12 Rule 1 of the National Court Rules 1983, the requirement for three days’ service of this notice of motion and the service of supporting documents be dispensed with.
  2. Pursuant to Order 14 Rule 9(a) and Order 12 Rule 1 of the National Court Rules 1983, an interim injunction be and is hereby granted restraining the first and second defendants, whether by themselves, their agents, servants or any persons acting on their behalf, from:
(a) printing;
(b) publishing;
(c) posting (including on social media);
(d) circulating;
(e) quoting; or
(f) making reference in any form,
to the following reports or any part thereof:
(a) “FINANCE REPORT, GROSS MISUSE OF YUAT PEOPLE’S MONEY, ... MORAN DAUNIM MONI ...”; and
(b) “YAUT LOCAL LEVEL GOVERNMENT UNDER MICROSCOPE, MPA FUNDS REPORT for 2022, 2023 and 2024 Disaster Funds ...”,
pending final determination of the substantive proceedings herein.
  1. The plaintiff shall serve the application with the minutes of these Orders on the defendants within 7 days from the date of this Order.
  2. The plaintiff shall file an affidavit of service confirming service of the application and the minutes of these Orders on the defendants.
  3. The matter be listed for mention at the next civil call over in Wewak, pending the outcome of the inter parties hearing of the substantive matter.
  4. Costs be in the cause.
  5. There be liberty to apply.
  6. The time of entry of these Orders is abridged to the time of settlement by the Registrar which shall take place forthwith.

____________________________________________________________________
Lawyers for the plaintiff: Mr M Bayam

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