Papua New Guinea Law Reports - 1985
[1985] PNGLR 401
SC310
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
UME MORE, FABIAN POK, LEVI TILTO, WANDI OSCAR YAMULA, PAUL PIRU, POWES PARKOP AND MEMBERS OF THE STUDENTS REPRESENTATIVE COUNCIL AND ALL THOSE STUDENTS NOW ENROLLED AT THE UNIVERSITY OF PAPUA NEW GUINEA WHO HAVE NATIONAL SCHOLARSHIPS OTHER THAN MEDICAL STUDENTS
V
UNIVERSITY OF PAPUA NEW GUINEA
Waigani
Pratt Amet Los JJ
26-27 March 1985
11 December 1985
PRACTICE AND PROCEDURE - Civil proceedings - Desirability of following accepted practices and procedures - Orders in respect of relief sought only - Representative orders - Sanctions for anticipated breach not available - National Court Rules, O 5, r 13.
PRACTICE AND PROCEDURE - National Court - Judgments and orders - In respect of relief sought only - Representative orders - When available - Sanctions for anticipated breach not available - National Court Rules, O 5, r 13.
PRACTICE AND PROCEDURE - Enforcement proceedings under Constitution - Relevant practice of civil law applicable - Procedure appropriate.
JUDGMENTS AND ORDERS - Civil proceedings - Orders in respect of relief sought only - Sanctions for anticipated breach not available.
JUDGMENTS AND ORDERS - Civil proceedings - Representative orders - When available - Sanction of court required - National Court Rules, O 5, r 13.
INJUNCTIONS - Grounds for refusing - Availability of criminal sanctions - Failure to take any steps to invoke criminal sanctions - When relevant to grant of perpetual injunction.
INJUNCTIONS - History and background of law relating to - Discussion of.
CONSTITUTIONAL LAW - Basic rights - Enforcement proceedings under Constitution - Practice and procedure on - Civil procedure appropriate.
Certain students of the University of Papua New Guinea, over a period of ten days, forcibly disrupted lectures, erected and manned barricades at the main entrance road and selectively restricted entry thereto. The University sought an injunction restraining such conduct. The defendants to these proceedings were six-named students “and members of the Students Representative Council and all those students now enrolled at the University who have National Scholarships other than Medical Students”.
The National Court granted a permanent injunction, and being of the opinion that breaches of guaranteed rights and freedoms under the Constitution had been infringed, and could be enforced in any appropriate manner under s 57 on the Court’s own initiative, made orders stripping two named students and four unnamed students of their positions on the Students Representative Council, banned the six-named students from the campus, Port Moresby and Lae, ordered them to be returned to their villages and to secure due performance of the orders, remanded them in custody for five days.
Held
(1)      In civil proceedings it is essential that the established practices and procedure be followed and observed so as to ensure, inter alia, the avoidance of confusion, uncertainty and consequences which are either unexpected or unsought or both.
(2)      A party to civil proceedings cannot obtain relief which has not been requested or sought in the pleadings either originally or by way of proper amendment.
London Passenger Transport Board v Moscrop [1942] 1 All ER 97 at 105; Blay v Pollard and Morris [1930] 1 KB 628 at 634, followed and applied.
(3)      Representative orders cannot be made unless a person or persons have been nominated to represent the class and that nomination has been sanctioned in accordance with the National Court Rules, O 5, r 13.
(4)      The Court cannot, of its own volition, in respect of orders in civil proceedings, impose sanctions or punishment in anticipation of a subsequent breach of the orders.
(5)      The relevant practice and procedure of the civil law is applicable to proceedings to enforce the Constitution (s 22), to enforce sanctions (s 23) and to enforce guaranteed rights and freedoms under s 57.
Outline of procedure appropriate to be followed.
(6)      In the circumstances the orders purporting to be in enforcement of guaranteed rights and freedoms under the Constitution, s 57, had been improperly made and (by Los J) being contrary to the principles of natural justice, should be quashed.
(7)      In the circumstances, the orders purporting to be representative orders were not within power and should be quashed.
(8)      The availability of criminal sanctions of itself is not a bar to obtaining an injunction at least where the criminal law has already proved inadequate or where irremediable damage will ensue.
Gouriet v Union of Post Office Workers [1977] 3 All ER 70; Attorney-General v Chaudry [1971] 3 All ER 938, followed.
(9)      (By Pratt and Woods JJ) Perpetual injunctions should not be granted to restrain conduct which invokes the commission of criminal offences where there has been a failure to take any steps at all to invoke available and appropriate provisions of the criminal law before seeking the injunction.
Gouriet v Union of Past Office Workers [1977] 3 All ER 70; Attorney-General v Chaudry [1971] 3 All ER 938, considered.
(10)    (Los J dissenting) In the circumstances the injunction was an inappropriate remedy and ought to be quashed.
Discussion (by Pratt J) of the history and background of the law relating to injunctions.
Cases Cited
Attorney-General v Chaudry [1971] 1 WLR 1614; 3 All ER 938.
Attorney-General v Harris [1961] 1 QB 74.
Attorney-General v Melville Construction Co Ltd (1968) 20 P&CR 131.
Attorney-General v Premier Line Ltd [1932] 1 Ch 303.
Attorney-General v Sharp [1931] 1 Ch 121.
Attorney-General (Qld) (Ex rel Kerr) v T (1983) 57 ALJR 285.
Blay v Pollard and Morris [1930] 1 KB 628.
Gee v Pritchard (1818) 2 Swans 402; 36 ER 670.
Gouriet v Union of Post Office Workers [1978] AC 435; [1977] 3 All ER 70.
Iambakey Okuk v Gerald Fallscheer [1980] PNGLR 274.
Kent County Council v Batchelor (No 2) [1979] 1 WLR 213; [1978] 3 All ER 980.
London Passenger Transport Board v Moscrop [1942] AC 332; 1 All ER 97.
Mopio, Re James Eki [1981] PNGLR 416.
Perryman v Minister for Foreign Affairs and Trade [1982] PNGLR 339.
Premdas v Independent State of Papua New Guinea [1979] PNGLR 329.
Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149.
Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448.
Ridge v Baldwin [1964] AC 40.
SCR No 2 of 1981; Res 19(1)(f) of the Criminal Code [1982] PNGLR 150.
Springhead Spinning Co v Riley (1868) LR 6 Eq 551.
State, The v John Rumet Kaputin [1979] PNGLR 544.
University of Papua New Guinea v Ume More [1985] PNGLR 48.
Vincent v Peacock [1973] 1 NSWLR 466.
Appeal
This was an appeal from a decision of Bredmeyer J reported as University of Papua New Guinea v Ume More [1985] PNGLR 48.
Counsel
I R Molloy, for the appellants.
R Thompson, for the respondent.
P Young, for the principal legal adviser (by leave).
Cur adv vult
11 December 1985
PRATT J: This appeal arises from an application by the University of Papua New Guinea by way of notice of motion pursuant to a writ of summons claiming: first, damages; and secondly, an injunction to restrain the defendants from carrying out certain threats and acts referred to more specifically in the statement of claim.
THE APPLICATION
The notice of motion asked for:
(1)      An order restraining the defendants from disobeying reasonable directions and obstructing the conduct of University business, from unduly interfering with the comfort and convenience of persons in the University and from wrongfully dealing with University property.
(2)      An order restraining the defendants from “infringing, denying or otherwise interfering with” the plaintiffs and plaintiff’s student’s basic rights and freedom under the Constitution.
(3)      A sanction in the event of non-compliance with the restraining orders.
I take a brief resume of the events behind the application from the judgment of Bredmeyer J whose orders are now appealed: see University of Papua New Guinea v Ume More [1985] PNGLR 48 at 49:
“Evidence has been put before me by the University and the student defendants as to past events over the last ten days, as to what has happened at the University. The University evidence is that lectures were forcibly disrupted on Monday, 25 February and then on Thursday, 28 February barricades were erected and manned by the students and that ingress and egress to the University were restricted to only those whom the students would let through. Much but not all of that evidence is denied by the defendants.”
The matter came before the learned judge of first instance ex parte, and was adjourned to the following day, 1 March at 3.00 pm when all parties were represented before the Court. In response to a query from this Bench, counsel for the University advised that at the original ex parte hearing some submissions were made to his Honour on the appropriateness of the type of remedy being sought. Counsel sought to make some advantage from the fact that counsel for the defendants/appellants when he made his appearance next day did not seek to argue the appropriateness or otherwise of the equitable remedies of declaration and injunction. It is obvious, however, that such counsel was struggling manfully with what he conceived to be the central issues of fact rather than the equally important issue of form of action, and that he had, to use the words of the learned judge “very little time to prepare and (he) is opposed by three lawyers in addition”. I also note he is a comparatively young advocate of some few years experience only. I have no doubt that the question of whether or not the orders sought by the plaintiff/respondent were appropriate remedies under the law was mentioned at the ex parte hearing and passingly considered but certainly his Honour did not have the benefit of full argument on the issue.
Further reference to the form of remedy being sought was made on 1 March by the respondent’s counsel. The application is described as an “interim injunction”. It is clear, however, that the matter had become a “substantive application” which led to a perpetual injunction, “unless or until further order”. The original claim for damages under the writ had been abandoned. His Honour found (at 53) that: “It is highly likely that the classes will be disrupted in the future and that barricades will be re-erected in the future unless restrained by suitable orders.” The orders actually made by his Honour were:
(1)      In the same terms as set forth in par 1 in the notice of motion and paraphrased by me above.
(2)      Order and injunctions shall continue in effect until further order.
(3)      Ume More, Fabian Pok, Emily Dirua Awak, Surari Putago and John Rau are stripped of their offices, the Students Representative Council offices are closed to all students and its financial affairs are to be managed by the University of Papua New Guinea for the time being and the University of Papua New Guinea is to hold fresh elections for the Students Representative Council offices within two months.
(4)      Ume More, Fabian Pok, Levi Tilto, Wandi Oscar Yamula, Paul Piru and Powes Parkop are banned from setting foot in the University of Papua New Guinea campus for the remainder of 1985.
(5)      Ume More, Fabian Pok, Levi Tilto, Wandi Oscar Yamula, Paul Piru and Powes Parkop are not to come within Port Moresby or Lae for three months.
(6)      The Government of the Independent State of Papua New Guinea is to send Ume More, Fabian Pok, Levi Tilto, Wandi Oscar Yamula, Paul Piru and Powes Parkop back to their home province.
(7)      To secure the due performance of orders 5 and 6 hereof, Ume More, Fabian Pok, Levi Tilto, Wandi Oscar Yamula, Paul Piru and Powes Parkop are to be remanded in custody at Bomana for a period not exceeding five days.
At the conclusion of submissions, this Court reserved its decision but in view of the urgency of the matter reconvened on the following day and announced a unanimous decision to uphold the appeal by overruling orders 3, 4, 5, 6 and 7 with reasons to be furnished in due course. No decision or reasons were handed down concerning orders 1 and 2, that is concerning the appropriateness of making an injunctive order.
EFFICACY OF PLEADINGS
There are some preliminary matters mentioned by Mr Molloy for the appellants which I believe are quite vital. In the first place, the defendants in the original action were six-named people and “members of the Students Representative Council and all those students now enrolled at the University of Papua New Guinea who have National scholarships other than medical students”. There is provision under our National Court Rules for a representative order to be taken out: see O 5, r 13. No such order was ever sought or obtained in connection with these proceedings.
In order 3 it will be noticed that the names Emily Dirua Awak, Surari Putago and John Rau are mentioned, yet at no stage have they been named specifically or representatively in the proceedings.
A party cannot obtain relief which has not been requested or sought in the pleadings. In London Passenger Transport Board v Moscrop [1942] 1 All ER 97, Lord Russel of Killowen has this to say (at 105):
“This appears to me to have been a complete recasting of the plaintiff’s alleged cause of action, and the matter was unfortunately carried through without any amendment of the statement of claim. This should not be so. Any departure from the cause of action alleged or the relief claimed in the pleadings should be preceded, or, at all events, accompanied, by the relevant amendments, so that the exact cause of action alleged and relief claimed shall form part of the court’s record, and be capable of being referred to thereafter should necessity arise. Pleadings should not be ‘deemed to be amended’ or ‘treated as amended’. They should be amended in fact.”
The necessity to amend the pleadings was also emphasised by Scrutton LJ in Blay v Polland and Morris [1930] 1 KB 628 at 634, where his Lordship says:
“Cases must be decided on the issues on the record; and if it is desired to raise other issues they must be placed on the record by amendment. In the present case the issue on which the judge decided was raised by himself without amending the pleadings, and in my opinion he was not entitled to take such a course.”
Although the point may seem trite and obvious, I believe it is most important to remember that the proceedings which are now the subject of this appeal are truly civil, despite the fact that in the ultimate some of the defendants spent up to four days in prison awaiting deportation to their home provinces from the capital. In civil proceedings it is essential to observe and follow established practice and procedure if for no other reason than to avoid confusion, uncertainty and consequences which are either unexpected or unsought or both.
THE CONSTITUTIONAL ORDERS
I turn first to the question of representative orders. The writ and notice of motion referred to “members of the Students Representative Council”. Order 3 refers to six persons, two of whom are defendants in the writ and the notice of motion, and four of whom are not mentioned anywhere except in the order. At no stage does there appear to be any order appointing either all or any of the persons named in order 3 as “representatives” of the Students Representative Council, within the meaning of that quite technical term under the National Court Rules. Indeed whilst the form used in the writ in the original stages of the proceedings might be understandable, the regularising of the position should certainly have been attended to before the stage of the final orders was reached. Someone should have been nominated as being representative of the class, and the court sanction therefore obtained to such nomination. There was nothing in the documentation or in the transcript to indicate that any person was appointed representative of the class. Consequently, any order made in connection with them as representative of the class cannot have any effect. Our National Court Rules, O 15, r 13, should be compared with the English Rules of the Supreme Court, O 15, r 12, referred to in the 1982 White Book at 236 ff. The specific requirements of O 15, r 13 should also be noted. They have not been observed in the case under appeal before us. The order in so far as it purports to be representative is void.
I turn next to that part of order 3 which stripped six persons of their positions as office bearers in the Students Representative Council and prohibited them from continuing in the administration of the affairs of that Council. I have already drawn attention to the fact that four of these six persons have not been named specifically as defendants and I am unable to find any place in the evidence where they are referred to as “members of the Students Representative Council”. Be that as it may, the important aspect which has been completely overlooked in the making of this order is that at no time was such an order sought by the applicants and no mention is made in the notice of motion before the trial judge whereby the legality and correctness of the office holding in the Students Representative Council by the defendants is called in question. Nor is the administration of that organisation called into question let alone a request for an examination of such administration. There is no doubt that there was ample evidence before the learned trial judge to come to certain conclusions in so far as that evidence went. Not surprisingly, however, only part of the story emerged, as the persons holding offices in the Students Representative Council were not given any notice (nor could they be) that their official positions, or their administration of the Council was going to be called in question until they went into the witness box. No doubt on entering the box they believed they were to give evidence on another matter namely, the blockading of roads and obstruction of classes at the University. I do not think anything further need be said on this point. The order cannot be justified either under the pleadings or the Court Rules.
Orders 4, 5, 6 and 7 all suffer from one major defect so far as civil proceedings are concerned. In the first place, none of the evidence supports a direct conclusion by the learned trial judge that the orders which he had made would be disregarded by the persons named in the order. It was an inference drawn, but the persons concerned were never asked whether they would or would not. In addition, I am not aware of any procedure or practice which permits a court at its own volition to impose sanctions on a defendant simply because the court believes that the orders made will not at some future time be observed. The first obvious problem encountered is that the Court may well be wrong. The orders may be observed. But even if his Honour has every good reason to come to the conclusion that such orders would not be observed, there is no power so far as I am aware to impose a punishment in anticipation of a subsequent breach. That is certainly what has been done under these four orders, and goes much further than the sanctions sought in the event that non-compliance would occur.
However, the orders were not being made under the ordinary law but under the Constitution, s 57. The mere fact that one can invoke the Constitution, s 57, does not mean that the practice and procedure of the civil law governing the type of application should be disregarded. Of course what complicates the situation here is that although mention was made in the application of a breach of fundamental rights, no specific application was made as to what type of sanction was sought from the Court. This lack of particularity brings us to the very heart of the matter. It is essential not to lose sight of the fact that the various defendants were before the Court on an application for injunction to restrain them from interrupting University life in certain aspects. Very unwisely it was merged into an allegation that the defendants were causing breaches of constitutional rights and sought the imposition of sanctions in respect of such breaches. Granted this is a novel area and for that reason alone should be carefully separated out from the area of ordinary law despite the fact there may be an interrelation between the remedies. It is not an area which has been invoked in this manner before and consequently this Court should take the opportunity to set down some guiding principles which may be of assistance on future occasions when a need for urgent decision arises, as in the present case before the judge of first instance.
His Honour formed the view that a number of freedoms had been interfered with by the actions of the defendants. If I might summarise his Honour’s findings they are as follows: The right to freedom under s 32 was interfered with by the erection of barricades and the forceful disruption of classes. Secondly, a breach of s 37, more particularly by Ume More and Fabian Pok, in that they deprived the students of their protection at law by organising a “strike” on behalf of the Students Representative Council and running the affairs of the Students Representative Council. The third is a breach of freedom of expression under s 46 by the forceful disruption of lectures and also the use of barricades. The freedom of expression here of course naturally enough includes a freedom to listen as well as to speak and I, for one would not quarrel with that extension. Next comes a breach of s 52, namely, freedom of movement — this of course may be related to s 32 because of the use of the barricades and the interruptions of citizens to enter the University and students to attend lectures, and all to go about their lawful business.
The next thing to bear in mind is the practical effect that the orders made by his Honour have had on six of the named defendants together with four other persons who were not named specifically as defendants but who were deprived of office. In order 3, the persons named were apparently purporting to exercise certain rights and obligations as members of the Students Representative Council. It was declared by his Honour that they were not properly elected and that their purported exercise of powers was without legal foundation. The position in which the defendants in this action eventually found themselves can be summarised as follows:
(1)      Two of the defendants and four others who have never been named in the proceedings other than perhaps under the so-called representative term “members” have been deprived of office.
(2)      The six defendants have been prohibited from entering the University grounds or premises for ten months.
(3)      The six defendants have been prohibited from coming within the environs of the cities of Port Moresby and Lae for a period of three months. In other words, movement of the defendants has been restricted quite substantially from a practical point of view, as if an order had been made under the Criminal Code (Ch No 262), s 600, (a section which itself may be in conflict wholly or partly with the Constitution, s 42 and s 52).
(4) and (5)    In addition to being banned from Lae and Port Moresby the six defendants have been ordered to be repatriated to their home areas, and in the meantime, in order to ensure both expulsion and repatriation, they were held in custody at the Bomana Corrective Institution for a maximum period of five days. Two of those days are Saturday and Sunday, when little if anything would eventuate concerning their movements. Certain directions were also given to the officer-in-charge of the Bomana Corrective Institution, although under what Act or by what authority such directions were made is somewhat of a mystery. I presume reliance could be sought in the Constitution, s 22, though this would require a very broad interpretation indeed of the phrase “supporting machinery or procedural laws”.
The consequences which flow from the orders are obvious and serious — apart from their loss of liberty, which in fact did occur over a period of three to four days, the defendants would have lost an entire year of study. The effect which such loss may have on those who hold Government scholarships we do not know. In the case of one defendant, who is privately sponsored, the result could be quite disastrous from a career point of view.
There is no doubt that three of the defendants were involved to a greater or lesser degree in the “strike”, a term however which I decline to follow. In my view the use of the word “strike” in circumstances where students who are supported either privately or by the taxpayers to attend classes and refuse to do so is a complete misnomer and an abuse of the language. “Strike” by definition is a withdrawal of service by a worker from an employer who normally gives monetary reward for the performance of such services. There is little or no resemblance to such by students who attend lectures.
There was of course ample evidence before the learned trial judge covering matters mentioned in par 1 of the notice of motion, that is, matters concerning the interference with University life. Likewise there was also some evidence that there was an interference with constitutional rights but in view of the vague nature of cl 2 in the notice of motion, it is impossible to see how any order could be made except in the most general terms. No amendment was sought to obtain orders more specific.
Bredmeyer J indicated however that he intended to rely upon the enforcement provisions of the Constitution, s 57. In my view any such reliance on the Constitution be it on s 57, s 22 or s 23 or some other section, should not disregard the Rules of Court when they can be used so easily “by way of analogy”. The drastic consequences here highlight the absolute necessity for formulating an allegation in the most specific terms and putting it directly to the person who will be affected.
As a starting point, the paragraph requesting relief for a breach of constitutional rights and freedoms in the notice of motion is undoubtedly open to criticism as a piece of pleading on the ground that it lacks any pretence at particularity. Consequently, it should have been struck out or at the very least, an order made for some specifics. For example, what freedoms were alleged to have been broken, what rights was it claimed were being disregarded, what relief was specifically sought and under what section was it sought. As a consequence, it is obvious that the various defendants were completely uncertain as to what was intended, and therefore what type of sanction was being sought by the applicants under the Constitution, s 23. Once again, the pleading requests one thing but what was imposed by his Honour was something else, under the Constitution, s 57. Again, there is no amendment to the notice of motion or any suggestion that such an amendment was sought. The counsel for the University towards the end of the original hearing was however most insistent that “Draconian sanctions” such as a fine or imprisonment for contempt were not being sought and did request instead some sort of lesser sanctions under the Constitution, s 23.
I do not propose to spend any time analysing the content of the sections of the Constitution most obviously applicable to the present circumstances. I believe that to state the relevant part of the sections is sufficient explanation for the course which I suggest should be followed in the future where the sanction provisions are utilised under s 57 or s 23.
“37.    Protection of the Law
...
(2)      Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.
(3)      A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.
(4)      A person charged with an offence:
...
(c)      shall be given adequate time and facilities for the preparation of his defence ....”
“42.    Liberty of the Person
(1)      No person shall be deprived of his personal liberty except:
...
(b)      in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or
(c)      by reason of his failure to comply with the order of a court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law ....”
I note in passing here that deprivation of liberty flows only from the commission of an offence, the act of contempt of court or a failure to comply with a court order. None of these sections envisages the loss of liberty because the court fears its orders will not be observed or because it wishes to direct the movement of a person from one part of the country to another.
SUGGESTED PROCEDURE
I therefore suggest the following sequence of steps:
(1)      A specific allegation should be formulated, in writing if possible, which states clearly the right or freedom which is allegedly broken or ignored together with a reference to the section number in the Constitution. The allegations should also refer to the maximum penalty available to the court if it should find the allegation proven.
(2)      A specific date, time and place for hearing the matter should be set down, bearing in mind the requirement under the Constitution for adequate time for a defendant to prepare his case.
(3)      At the time of hearing in (2) above the allegation should be put to the defendant in the language which he best understands. He should also be advised verbally of the sanctions available to the court or at least those sanctions which the court believes may be relevant to the type of breach alleged. In short, he should be given some idea of what penalty he is facing. He should also be asked whether he admits or denies the allegation.
(4)      In the event of a denial the evidence in support of the allegation should be adduced in logical sequence, and such evidence should be subject to cross-examination by the defendant (or his legal representative).
(5)      At the conclusion of the case in support of the allegation the court should make up its mind as to whether or not there is sufficient evidence to call upon the defendant to decide whether or not he intends to answer the allegation. If there is insufficient evidence the court should dismiss the claim forthwith. If there is prima facie evidence of the commission of such breach, then the defendant should be asked if he wishes to give evidence himself or to adduce evidence by any other witnesses or otherwise on his behalf.
(6)      At the conclusion of all the evidence the Court should decide the issues, bearing in mind that the onus of proof rests on the accuser and the degree of proof shall be no less than that set forth by the Supreme Court in the reported decision of Re James Eki Mopio [1981] PNGLR 416. We have not heard any argument on this point but I am firmly of the view that where the sanction involves the deprivation of liberty either through imprisonment or failure to pay fine the standard of proof must be beyond reasonable doubt.
In short, if a court were to follow essential procedures and practice as laid down for the conduct of a criminal trial, its handling of a case alleging a breach of fundamental rights and/or freedoms of the Constitution could not go far astray.
It is quite clear that a failure to observe something like the procedure I have set down has led to the imposition of penalties on six defendants without:
(1)      Any formulation of the allegations being made before the penalty was imposed. In putting it in this way, I am fully aware of the fact that during his judgment, the learned trial judge formulated the breaches that he believed had occurred and that this formulation occurred after he had invited learned counsel to address him on this area. Nevertheless, the time for the defendants to say anything on the matter had long since passed. It was rather the proverbial “closing of the stable door after the horse had bolted”.
(2)      Any opportunity for the defendants to respond, call witnesses or give evidence on their own account.
(3)      Any opportunity for the defendants to address the Court on the matter of penalty. Indeed how could they? No one knew what the nature of the penalty was going to be until the learned judge delivered it out of his own breast.
I believe an adoption of the course suggested will at least form a productive starting point from whence further refinements may be made.
THE USE OF INJUNCTION
I now turn to the area in which we reserved our decision, namely, the appropriateness or otherwise of using the remedy of injunction, be it interim or perpetual. I said earlier that it is clear that the application changed from one seeking an interim injunction to one which I can only describe as a perpetual injunction. Consequently, the emphasis changes in relation to elements which receive scrutiny by the Court in concluding whether it should grant or refuse the injunction. One element which acquires greater significance in the case of a perpetual injunction is the availability of alternate remedies though it is still a very significant element when considering interlocutory injunctions. That this should be so is not perhaps surprising when one recalls that the equitable remedy of injunction emerged partly in competition with the already established doctrine of common law under circumstances which allowed the judges of the King’s Bench to guard zealously any infringements of their domain by the developing Courts of Chancery. Where there was a gross injustice perpetuated under the common law or a hiatus (such as the whole area of trusts and injunctions) then equity supplied a remedy. With the passing of Lord Eldon (1827) the equitable doctrines themselves had become fixed and almost immutable. The area of equitable remedies was distinguished by two particular features:
(1)      they were “in personam”; and
(2)      they were discretionary.
It is important however to avoid laying too great an emphasis these days on the availability of an alternate remedy at law despite my insistence to the contrary during respondent’s submissions. As the learned author of Snell’s Principles of Equity (28th ed, 1982), p 566 points out, it is not simply that equity could refuse its relief when the plaintiff had an adequate remedy at law but often only did so where the applicant had unclean hands or a claim which would produce unfair results, or was not willing to do equity or had slept on his rights.
Another important relevant element operating in the area of a perpetual injunction relates to a breach of statutory duty. “Where a statute imposes a new and particular negative duty and provides a remedy for its infringement, for example, a fine, a person aggrieved by its breach is not entitled to enjoin the wrongdoer unless property rights of his have been invaded”: Snell at p 629.
The term “property rights” seems to have a fairly limited and specific meaning within this context. It is almost as if it is to be interpreted as real property. For example, Lord Dilhorne in Gouriet v Union of Post Office Workers [1977] 3 All ER 70 at 92-93; cited with approval the judgment of Malins VC in Springhead Spinning Co v Riley (1868) LR 6 Eq 551 who himself was relying on a much earlier case of Gee v Pritchard (1818) 2 Swans 402 at 413, where Sir Richard Malins said:
“The jurisdiction of this Court [Chancery] is to protect property, and it will interfere by injunction to stay any proceeding whether connected with crime or not, which go to the immediate, or tend to the ultimate, destruction of property, or to make it less valuable or comfortable for use or occupation ....”
This is not to say that injunctions are restricted to such cases for obviously this is not so. It does indicate however that if any reliance is being placed on an infringement of property rights, one must be careful to ascertain that the claim is a valid one. Though the giving and receiving of lectures in the matter before this Court undoubtedly arises from a basic contractual relationship, and freedom from personal injury is an accepted underlying assumption, I doubt if either come within the ambit of “property” in the strictly equitable sense. Freedom of movement (and access) however certainly would, in so far as the “owners” of real property are concerned.
It is a basic premise of injunction law that the remedy would not be granted to restrain actionable wrongs for which damages are the proper remedy. The overall approach to assist in a search for whether or not the remedy of injunction can have application to a particular case is well illustrated by the format as much as the content of material set out in Spry, Equitable Remedies, Injunctions and Specific Performance (2nd ed, 1980) where he deals first of all with the inadequacy of damages and then goes on to consider the “inadequacy” of other legal remedies in the following terms (at 362):
“The need for equitable intervention does not arise unless it appears, not merely that damages are not an adequate remedy, but also that there is no other adequate remedy at law. It is not often, however, that the existence of a common law remedy other than damages is regarded in this sense, that is, as adequate so as to exclude the right to injunction which might otherwise have been obtained.”
The author then gives a number of examples to illustrate that it is only in exceptional circumstances in which injunctions are refused. Amongst those examples, he deals with a New South Wales decision in which an injunction was granted even though criminal proceedings were available to the applicants. In this case, Vincent v Peacock [1973] 1 NSWLR 466 an injunction was sought to restrain the nuisance perpetuated by an alcoholic next-door-neighbour who, over a period of years insisted upon, inter alia, “performing” in a public area adjoining the applicant’s property. The Court of Appeal there does also touch upon the position of proprietary rights in association with the law of nuisance under injunction law and at the bottom of 467 cites a statement by Lord Evershed MR contained in the Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149 at 181 as follows:
“It is, I think, well settled that if A proves that his proprietary rights are being wrongfully interfered with by B, and that B intends to continue his wrong, then A is prima facie entitled to an injunction, and he will be deprived of that remedy only if special circumstances exist, including the circumstance that damages are an adequate remedy for the wrong that he has suffered.”
The Court goes on to say that without the aid of injunction the law of nuisance would be “largely rendered nugatory”.
A number of authorities have been cited to us concerning relator actions by the Attorney-General or cases in which the Attorney-General has refused to act. Most of these authorities are not particularly relevant to the problem before this Court. Nevertheless, an important distinguishing factor is pointed out by the learned trial judge of first instance in Attorney-General v Chaudry [1971] 3 All ER 938 at 942 citing Eve J in the case of Attorney-General v Premier Line Ltd [1932] 1 Ch 303 at 313:
“... the dispute is no longer one between individuals, it is one between the public and a small section of the public refusing to abide by the law of the land.”
In such instances of course, it becomes a matter in which the Attorney-General would allow proceedings to be instituted by relation. Indeed, it is pointed out by the Court of Appeal in Chaudry that the Attorney-General was in a different position from the ordinary litigant “for he represented the public interest in the community at large”. In many of these cases the appearance of the Attorney-General itself denotes a special public importance about the matter and because of his interest “there must be exceptional circumstances” before leave to grant the requested injunction is refused.
Several cases deal with the destruction of trees contrary to local authority, environmental or agricultural legislation (for example, the Attorney-General v Melville Construction Co Ltd (1968) 20 P & CR 131 and Kent County Council v Batchelor (No 2) [1978] 3 All ER 980). In Batchelor’s case the trial judge was moved to say (at 986) that the question was not merely one of preventing the commission of a criminal offence but also of “preventing interference with the areas of natural beauty which they have sought by their tree preservation orders to preserve”. The tree cases of course are clearly also an extension of those cases where there is an interference with proprietary rights and it is not surprising that injunctions were issued despite the fact that the defendants in both cases had committed breaches of the criminal law, or had made it quite clear that they intended to continue a breach of the criminal law. As is pointed out in the text entitled Equity: Doctrines and Remedies by Meagher, Gummow and Lehane at p 468, although the ancient maxim of equity is to the effect that it has no jurisdiction in the criminal law and will not injunct against the commission of a crime, it does not follow that if a prohibited activity happens to be criminal that equity will be deprived of its jurisdiction to injunct against such conduct:
“If it is both criminal and in infraction of the public right, equity has jurisdiction to grant an injunction. If it is merely criminal and nothing more, equity will hold its hand.”
Lord Denning put it even more forcefully in Chaudry at 947. This principle applies just as much where there is an anticipated breach as in Vincent v Peacock at 468. The New South Wales Court of Appeal expresses the view with which I respectfully agree, namely, “... it is not a ground for refusing an injunction that it would not have a practical effect where its failure to have a practical effect is because the defendant disobeys it”. Nevertheless I believe that such statement must be taken strictly within the context of facts in which it was made and must be applied with a full awareness of the general principles and restrictions of injunctive remedy.
One of the most notable features arising from an examination of the cases in which injunctions have been issued in relation to activities which also constitute a criminal offence, is the fact that in each case criminal proceedings have in fact been instituted and, with the exception of Chaudry’s case, such proceedings concluded in the imposition of a fine. In most instances however, the imposition of a fine proved to be quite incapable of acting as a deterrent. The defendants simply preferred to continue breaking the law and to pay their fines, as this was the most profitable course from their point of view (see Attorney-General v Sharp [1931] 1 Ch 121 as well as the Melville Construction Co case, Batchelor’s case and Attorney-General v Harris [1961] 1 QB 74 at 75 where it was held:
“... persistent and deliberate flouting of the law was in itself a grave and serious injury to the public which warranted the grant of an injunction where the monetary penalties imposed by statute were ineffective to secure compliance with the law.” (See also cases cited in Snell at 636.)
Lord Denning at 947 of Chaudry put it thus:
“Many a time people have found it profitable to pay a fine and go on breaking the law.”
Chaudry’s case however adds another item to the list, in that a delay in bringing proceedings before the criminal court may be a factor in allowing the court to grant an injunction. However, this factor was inextricably involved with the aspect that the “threatened” injury was irremediable in so far as the eruption of a fire in premises without adequate fire escapes could cause loss of life which could occur even between the time the summons was taken out from the Magistrates’ Court and the day it was set down for hearing. In Chaudry’s case there was a lot more involved than the destruction of some trees, but nevertheless the criminal breach was as such a minor matter.
As I have said, cases to which our attention has been drawn deal with facts where either criminal proceedings have already been instituted and found ineffective, or delay in completing the criminal process is such that in the meantime irremediable harm could take place. Perhaps one may also add here that in Chaudry’s case the defendants would probably have continued with their breach of the law and simply paid whatever fines the court imposed. This solution was cheaper than building proper fire escapes.
In the New South Wales decision of Vincent v Peacock the Court was of the view that the availability of the Summary Offences Act 1970 (NSW) was of little use to the applicants as some of the instances of the conduct complained of were outside the provisions of the Act, and in others there was provision for the imposition of a small fine only. The remedy of binding over before a magistrate to keep the peace was not relevant in the circumstances as no threat to the person was involved: see our District Courts Act, s 215 — now s 209 of the revised Act — also Lord Diplock in Gouriet at 95.
Whether or not the failure of the University authorities in the matter before us to invoke the provisions of the criminal law has a significant bearing on the exercise of judicial discretion is a matter to which I shall shortly return. There certainly were other remedies available to them, quite apart from the criminal law. Despite counsel’s attempts to play down the provisions of the University of Papua New Guinea Act (Ch No 169) and more particularly the statute dealing with “Student Discipline, Protection of Property and Use of the Library”, s 9 of that statute gives considerable disciplinary powers indeed to the Vice-Chancellor if he is prepared to use them. Under s 9(b) the Vice-Chancellor could refer any disciplinary matter to the Discipline Committee and in the meantime exclude the student from University or any part of it. In addition to this power, there are also powers of exclusion and expulsion given to the Discipline Committee under s 10. Despite counsel’s insistence that such a Committee could not be called speedily together I was unable to see then, and still cannot see, why this should be so. One would have thought that such a Committee would have been well into its operations before the University authorities even approached the Court. At the same time the University Council should have been shaken out of its apparent lethargy.
In short, the University authorities clearly had available to them their own statute which supplied ample powers for dealing with the situation as it developed daily. I do not know whether reference was made to the statute before the learned judge of first instance. If so, it seems that counsel downgraded its significance and consequential results even more than before this Court. Be that as it may, I am not prepared to say that a refusal by his Honour to issue an injunction based alone on the factor that the University had ample power under its own statute to deal with the situation would have constituted an improper use of the discretion. It may well be that I would have exercised my discretion differently but a difference of opinion as to the way in which discretion is exercised is never a basis for upholding an appeal against the use of the discretion. I would not be prepared to say on the basis of the existence of the statute alone that there was either a failure to consider a factor relevant in the use of the discretion by his Honour or a misapplication of principle.
Although, it has been demonstrated that the availability of criminal sanctions of itself is not a bar to obtaining an injunction, and although the authorities demonstrate that the applicant must at least show that the criminal law has already proved inadequate, or that irremediable damage will ensue, there is nothing to suggest that a complete failure to act through the criminal courts warrants the granting of an injunction. In my opinion, a failure to take any steps at all by way of invoking the provisions of the criminal law before approaching the civil courts for an injunction would of itself constitute an almost insuperable barrier to the obtaining of such an injunction. One must not forget that the criminal law emerged in tandem with the development of the common law and later equity, and as such occupies a position under the present law of Papua New Guinea as one dealing with those areas where the State considers the matter so important as to remove it from the domain of subject and subject. I do not wish to enter into the difficult jurisprudential area of trying to distinguish between the civil law and tort on the one hand and what constitutes an act offending against the criminal law and the State on the other. Nevertheless, I think the three tests for example mentioned by G W Keeton in his Elementary Principles of Jurisprudence at p 309 namely, the public injury test, the mens rea test, and the sanctions test so much favoured by Professor Kenny, each in their own way illustrates how the criminal law differs from the civil law and underlines the essential necessity to remove it from an area merely between subject and subject (however much the complainant may prefer it). It had much to do with the keeping of the Queen’s peace, with the ability of the Queen’s subjects to go about their lawful affairs without let or hindrance by others and without fear of personal injury and the right of the subject generally to expect that the Queen’s peace would be enforced.
If the matters alleged in evidence before the learned trial judge were indeed proved, then an injured or threatened party could have utilised the revised District Courts Act (Ch No 40), s 209, to bind certain students over to keep the peace on pain of sanction under that Act in the event of their failure to do so. As well, a number of facts constituted breaches of various sections of the Criminal Code. Counsel for the University appearing before the learned trial judge and indeed the learned trial judge himself have stated on a number of occasions in the transcript that breaches of the criminal law had occurred or were threatened. Counsel for the appellant has also mentioned a number of sections in the Criminal Code: s 63, unlawful assembly and “riot”; s 66, rioters remaining after command ordering them to dismiss; s 76, threatening violence; s 79, interfering with political liberty; s 201, resisting public officers; s 230, common nuisances; s 335, common assault; s 341, serious assaults; s 359, threats; and generally s 517, conspiracy.
In addition to any breaches of the criminal law the erection of barricades of course was clearly an act which contravened the Motor Traffic Act (Ch No 243) in view of the enlarged definition of “public street” appearing in s 1 of that Act. Under s 44 of the Act every member of the police force must do all in his power to ensure that the provisions of the Act are observed and may give reasonable directions to drivers of motor vehicles or pedestrians on a public street for the “safe and efficient regulation of the traffic on the street”. By reg 138(3) it is an offence to cause any obstruction to traffic or interfere with the movement of traffic. It seems obvious that not only would those students who were manning the barricades be committing an offence against the regulation just cited but that the police would certainly have power to remove such barricades and to arrest persons who persisted in re-erecting them and take them before the court.
Counsel for the respondent very properly drew attention to the fact that bail follows arrest and that bail must be granted as a matter of course in Papua New Guinea, except under special circumstances. Therefore the charging of the students under either the criminal law or the Motor Traffic Act would not necessarily mean an end to their disruptive conduct. The simple answer of course is that whilst bail must certainly be granted in a majority of circumstances, it may and indeed in such circumstances should be granted with conditions: see Bail Act (Ch No 340), s 18.
I think however the real danger of permitting the court’s civil procedures to be used as a means of avoiding the implementation of the criminal law is voiced in the warnings given by their Lordships in Gouriet’s case, particularly Lord Wilberforce (at 83) where he points out that the right of the Attorney-General, let alone a private citizen, to invoke the assistance of the civil court in aid of criminal law as only one of comparatively modern use, and quite exceptional:
“It is an exceptional power confined, in practice, to cases where an offence is frequently repeated in disregard of a, usually, inadequate penalty (see Attorney-General v Harris [1960] 1 QB 74) or to cases of emergency (see Attorney-General v Chaudry [1971] 3 All ER 938). It is one not without its difficulties and these may call for consideration in the future.”
His Lordship then makes two very pertinent points, both of which I consider are of great significance in the present case:
“If Parliament has imposed a sanction (for example, a fine of £1), without an increase in severity for repeated offences, it may seem wrong that the courts (civil courts) should think fit, by granting injunctions, breaches of which may attract unlimited sanctions (including imprisonment), to do what Parliament has not done. Moreover, where Parliament has (as here in the Post Office Act 1953 (UK)) provided for trial of offences by indictment before a jury, it may seem wrong that the courts, applying a civil standard of proof, should in effect convict a subject without the prescribed trial. What would happen if, after punishment for contempt, the same man were to be prosecuted in a criminal court? That Lord Eldon LC was much oppressed by these difficulties is shown by the discussions in Attorney-General v Cleaver (1811) 18 Ves 211; 34 ER 297.”
I wonder what his Lordship’s reaction would have been if the sanction were to be imposed to stop anticipated breach?
Finally, his Lordship (at 83) goes on to give a piece of advice which I would urge upon all of us if faced with a repeat of the situation which came before the learned trial judge in this matter:
“These and other examples which can be given show that this jurisdiction, though proved useful on occasions, is one of great delicacy and is one to be used with caution.”
On the same area Lord Diplock (at 97-98), after dealing with the availability of injunction procedures to the Attorney-General and also the existence of the power of binding over to be of good behaviour in the ordinary criminal courts, expresses the same reservations and need to take care:
“It is in my view appropriate to be used only in the most exceptional of cases. It is not accurate to describe it as a preventive justice. It is a deterrent and punitive procedure; but this is characteristic too of the enforcement of criminal law through the ordinary courts of criminal jurisdiction. The very creation by Parliament of a statutory offence constitutes a warning to potential offenders that, if they are found guilty by a court of criminal jurisdiction of the conduct that is proscribed, they will be liable to suffer punishment up to a maximum authorised by the statute. When a court of civil jurisdiction grants an injunction restraining a potential offender from committing what is a crime but not a wrong for which there is redress in private law, this in effect is warning him that he will be in double jeopardy, for if he is found guilty by the civil court of committing the crime he will be liable to suffer punishment of whatever severity that court may think appropriate, whether or not it exceeds the maximum penalty authorised by the statute and notwithstanding that he will also be liable to be punished again for the same crime if found guilty of it by a court of criminal jurisdiction. Where the crime that is the subject-matter of the injunction is triable on indictment, the anomalies involved in the use of this exceptional procedure are enhanced. The accused has the constitutional right to be tried by jury and his guilt established by reference to the criminal standard of proof. If he is proceeded against for contempt of court he is deprived of these advantages.”
Obviously in our jurisdiction the comments concerning trial on indictment and right to a jury do not have the same weight as they have in the reasoning of Lord Diplock. Nevertheless a trial by indictment is still one which occurs before a National Court judge as opposed to the lower courts, and in my view the reference to indictment still has some practical pertinence in this jurisdiction. Lord Diplock reviews further examples where acts of a defendant amount to both a commission of a criminal offence and an actionable wrong to another citizen, and concludes that although the use of an injunction should be availed of sparingly, in such circumstances “where the court is satisfied that grave and irreparable harm would otherwise be done to the plaintiff ‘s private rights for which damages could not provide adequate compensation, it has undoubted jurisdiction to grant one” [my emphasis]. Once again emphasis is laid on the necessity for interference with or infringement of some private right of the plaintiff. Once the emphasis is moved from interference with proprietary rights then one has moved from the area of private law into public law. However, I do not think that in mentioning this aspect his Lordship is confining his comments to the more restricted definition of proprietary rights which I referred to earlier. It seems to me that the right of the University to hold lectures and for the students to listen to those lectures in pursuance of the contractual relationship entered into between them, would nowadays be a sufficient creation of private rights to allow the use of an injunctive procedure, all other factors being equal.
Finally, after dealing with Sharp’s case, Harris’ case and Chaudry’s case, Lord Diplock (at 99) concludes:
“The use of this procedure for the reasons I have already given ought not in my view to be extended beyond those limits.”
At the bottom of 107 Lord Edmund-Davies makes it equally clear that a court should exercise extreme care in the granting of injunctions where criminal offences have been committed. He particularly emphasises the role which an Attorney-General, as opposed to an ordinary member of the community, has to play in his duty on behalf of the public to ensure that the criminal law is respected. Like Lord Fraser, his Lordship demonstrated that the authorities supporting the issue of injunctive process where there have been breaches of the criminal law, have done so because the “criminal law was being persistently and deliberately flouted”. The cases are only then where the criminal proceeding have already been used or, as in the case of Chaudry, where resort to criminal proceedings was probably ineffective.
Lord Fraser concludes (at 117) with the following comments:
“The use of injunctions to prohibit conduct, solely because it is criminal, is quite a recent development and it is one which is not without its dangers. The effect of an injunction issued in such circumstances is to add a discretionary penalty for contempt of court to the criminal penalty, which in the case of statutory offence will have been fixed by Parliament.”
Following reference to certain other problem areas, more particularly the avoidance of trial by jury and also of the possibility of prejudicing subsequent criminal proceedings by virtue of an earlier civil action, his Lordship (at 117) concludes with the admonition:
“There are thus powerful reasons of a procedural nature for keeping injunctions against criminal conduct as such within narrow limits.”
INJUNCTION NOT APPROPRIATE
In the final upshot then I have come firmly to the view that his Honour, in issuing the injunction in the present circumstances, where the evidence indicates that there were breaches of the criminal law in addition to breaches of conduct which could have been dealt with by the University authorities under their own statutes, acted on wrong principle. Such statutes not only deal with disciplinary matters involving students’ misconduct but clearly create in the University a public authority, a duty to insist that those who attend on its premises should give full respect and credence to the criminal laws of the land or face the consequences of failure so to do. In addition to these provisions, there is also the binding over power, available under the District Courts Act (Ch No 40), and the special powers in relation to movement of traffic within the University premises under the Motor Traffic Act and Regulations.
Why the University chose to ignore the criminal law is its own business. The fact that it did ignore the criminal law is very much the business of the National Court judge in deciding how to exercise his discretion. To issue an injunction against students who are believed to be engaging in acts committed against the criminal law of the land and without first taking the matter into that jurisdiction is in my view coming close to an abuse of the civil process in that:
(1)      It introduces a completely new heading for the issue of injunctive remedy where there has in fact been a failure by the applicant to attempt a remedy under the criminal process in circumstances where much more than mere proprietary rights are involved (an innovation which I do not believe is supported by the underlying law).
(2)      It fails to take account of the importance which the legislature, the courts and the community lay upon the members of its society observing the provisions of the criminal law and being dealt with by due process of that law where breaches have occurred.
Where criminal conduct is indulged in then the participants must expect to be dealt with under the criminal law. No special privileges can be or indeed should be exercised in relation to any particular group within our society let alone a group of University students. There was an occasion in 1979 apparently where one of the National Court judges also issued injunctions. It is said that there were then even more serious breaches of criminal law than occurred in the present instance. That decision is not under appeal in this case nor do we have the advantage of the learned trial judge’s analysis of the facts or the reasons for his judgment. I believe that the difficulties ready to ensnare a judge who endeavours to resolve such matters as arose in the present case have been amply demonstrated by the orders which were made by his Honour in an attempt to obtain a sufficient degree of sanction of the court orders. The whole reason for the confusion stems from the dogged determination of the applicant/respondent to interweave the principles and rules of equity, with the criminal law and the State’s right to have that law applied to all its subjects without favouritism or special “deals”. It would be a peculiar law indeed which allowed the courts to lend their procedures to what could be regarded as favoured treatment for a special class.
It is perhaps in the area of sanctions that the ineffectiveness of the present procedure is most glaringly illustrated. The University wished to have sanctions imposed. It was never explained how one can have sanctions imposed in an anticipatory manner. The sanctions that were imposed by his Honour were more than the University wished to have and yet no other alternatives of a satisfactory nature were put forward. In fact, however, the sanctions were already there, namely those contained within the statutes of the country dealing with the punishment for criminal offences. If they have been proved inadequate then of course the situation could well be otherwise. I cannot however imagine the sanctions of the criminal law proving inadequate in the present circumstances. Indeed although the outcome may not have been pleasant for some it could well have been a lot quicker and cheaper on the public purse.
In my view no proper basis for the issue of the injunction was made out and it should have been refused by the trial judge as a matter of principle. I would therefore uphold the appeal on this ground and quash orders 1 and 2 made by the trial judge.
AMET J: I have had the advantage of reading the judgment of Pratt J and I find myself in complete agreement with him. His Honour has expressed the reasons for the conclusion, with which I agree, most comprehensively and I wish merely to endorse them. I would however like to add a few remarks in my own words, on several of the matters raised and addressed.
SUGGESTED PROCEDURES FOR ENFORCEMENT OF RIGHTS OR FREEDOMS UNDER THE CONSTITUTION, S 57
This discretionary power which is vested in both the Supreme and National Courts is so wide that some of the sanctions are criminal in nature, in particular those that affect the liberty of the person against whom the enforcement order is made. Because of this possible effect, I too consider that if allegations of specific infringements of rights and freedoms are not pleaded and specific remedies sought, the Court must, at the first moment it considers that allegations of breaches are being raised and the possibility that sanctions for breaches of those rights and freedoms may be made, and at the Court’s own initiative, follow the procedure suggested by Pratt J. I consider it becomes imperative that some basic procedure is adopted to ensure and incorporate the notions of natural justice and fairness so that the person against whom allegations are made has the opportunity of answering them and saying something in his own behalf and calling others to support him if he so wishes. I adopt the six suggested steps by Pratt J as a sound starting point, and as one which would overcome the unfairness occasioned the appellants in this instance.
INAPPROPRIATENESS OF INJUNCTION
In all of the circumstances, legal and evidentiary, considered and discussed by Pratt J, I too am of the view that the remedy of injunction was inappropriate. I wish however to add a few remarks.
I perceive from the oral evidence of Dr Brash, the Vice-Chancellor of the University and its Chief Executive, that recourse to the National Court seeking equitable relief was because of unpleasant experience in the past between the students and the law enforcement agency, namely the police. I set out Dr Brash’s answer to a question by the trial judge at p 30 of the transcript of evidence which highlights the attitude:
“His Honour: Why have you chosen this action and not other means which may be open to you?
Dr Brash: The evidence before me is that the things mentioned in my affidavits are unlawful but past experience has shown that whenever police are used directly as the agents of law, they themselves provoke other complications.... When we had trouble in 1978, there was a Commission of Inquiry set up and the conclusions of that Commission, your Honour, were that the police and the students had been a very bad mixture; that there was evidence that there had been some loss of discipline and control amongst the police force and that some animosity perhaps had been taken out by the police in their behaviour towards students. And that’s why in 1979 I assisted in the presentation of the material before Mr Justice Pritchard which led to his ruling. So I have this in the back of my mind the way which might help defuse the situation because the students hadn’t accepted the judgment of the Standing Committee and the Academic Board. They hadn’t accepted instructions of people in authority like Dr Pernetta and myself that perhaps it should come to a court to decide whether these things were lawful or unlawful.”
Now, from these remarks of the Vice-Chancellor, it seems quite patent to me that the University, because of the unpleasant experience of student/police confrontation in 1978, chose for reasons of convenience to bypass the other lawful remedies available to it under the Student Discipline Statute of the University Act and the other criminal law statutes of the State like the Criminal Code (Ch No 262), Summary Offences Act (Ch No 264), Motor Traffic Regulations and the District Courts Act (Ch No 40). It would seem that whilst some of the students and their leaders were committing criminal acts, the University was bending over backwards to appease them. This became abundantly clear in the final submissions of Mr Roebuck, counsel for the University at the original hearing. At 108-109 it was submitted thus:
“We are not asking for damages. We do not think damages appropriate or sufficient .... There is no intention and no wish on the part of the University authorities for punitive orders. It is the University’s wish that all students and these leaders should get back to classes. At the moment — the attendance today has been almost normal — but that is because there are police on campus and also that the defendants are here in this court case .... Mr More is not willing to undertake not to do any further criminal acts. The University does not wish to punish these students. It does not wish their scholarships to be withdrawn. The University is not seeking damages ....
The sanctions for breach are contempt proceedings followed by fine or imprisonment. The University does not ask the court to use such Draconian sanctions on the students ....”
Quite clearly, because of these reasons the University had not resorted to the other remedies available to it. The University would seem to be quite prepared to condone breaches of the criminal laws of the State by this attitude. It would appear from Mr Roebuck’s submissions that even for breach of the injunctions sought, it would not seek to enforce proceedings for contempt with the consequent sanctions of fine or imprisonment. One is left to wonder what it is that the University wanted. For my part I consider that the dangers and the undesirability of this attitude on the part of plaintiff litigants are sufficiently emphasised in the authorities referred to by Pratt J.
Not only did the University not wish to enforce its internal discipline machinery, or the sanctions of the criminal statutes of the State, but it also did not wish to seek enforcement for breaches of the injunctive relief it was seeking. The University could not have it both ways. It would otherwise be making a mockery of the judicial system. I would only repeat the wise counsel of Lord Wilberforce in Gouriet v Union of Post Office Workers [1977] 3 All ER 70 at 83:
“It is an exceptional power confined, in practice, to cases where an offence is frequently repeated in disregard of a, usually, inadequate penalty see Attorney-General v Harris [1961] 1 QB 74 or to cases of emergency (see Attorney-General v Chaudry [1971] 3 All ER 938.”
Later on his Lordship says:
“These and other examples which can be given show that this jurisdiction — though proved useful on occasions — is one of great delicacy and is one to be used with caution.”
In Gouriet’s case at 117, Lord Fraser adds further caution that:
“There are thus powerful reasons of a procedural nature for keeping injunctions against criminal conduct as such within narrow limits.”
I have cited these several passages to emphasise my view that the University has abused this process in all of the circumstances. However unpleasant, if laws of the State are breached by a minority group to the detriment of a large cross-section of the community, then the full force of the law must be applied without any seeming discrimination. There ought not to exist a situation where the wider public perceives that a different set of rules apply to them than to an elite class of people. Notwithstanding the special status of the University under its Act, in the ultimate the full course of the legal law enforcement machinery ought to have been enforced.
In all these circumstances, the relief of injunction applied for was inappropriate and ought not to have been granted.
LOS J: This appeal arises from the orders made by Bredmeyer J on 6 March 1985. The orders have been cited in full and therefore I do not intend to go over them again. This Court overruled the orders 3, 4, 5, 6 and 7 on 27 March 1985 but reserved its reasons to be given in due course. The Court also reserved its decision on orders 1 and 2.
Mr Molloy appearing for the appellants (hereinafter called the students) argued that the orders 3-7 were in breach of natural justice because the students were not informed of what claims were made against them and what relief the Court might be likely to give. It followed that they neither gave evidence nor addressed on the issues. To start with, it was argued, his Honour decided upon claims that had not been pleaded in the beginning.
The suitability and applicability of the principles of natural justice have been well discussed in Iambakey Okuk v Gerald Fallscheer case [1980] PNGLR 274. It is not necessary to go through it again here. A thorough classification by Lord Reid in Ridge v Baldwin [1964] AC 40 at 65 onwards of the areas in which the rules of natural justice may apply were accepted in the Fallscheer’s at 277, 282, 293. It was necessary for the students to be told of what his Honour had in mind because the consequences of the orders were that the students were stripped of their offices within the Students Representative Union, they could not continue with their studies, they were banned from the University of Papua New Guinea (the UNPG) campus and they were remanded in custody.
Obviously, the University of Papua New Guinea, the plaintiff, was not seeking any substantial remedy against the students. The matter began as an application for an interim injunction. It seems the plaintiff was playing down the seriousness of the whole affair — so it seems from the evidence. Did it matter what orders the judge who was hearing the case gave? In a civil proceeding, a plaintiff could not obtain an order without a proper pleading and proper notice. In this case, the plaintiff did not plead any provisions of the Constitution, s 57. The UPNG could not have claimed any remedies at a later stage of the case pursuant to this section: London Passenger Transport Board v Moscrop [1942] 1 All ER 97. I do not think however that this is a case of the plaintiff attempting to lay a hand on a golden opportunity which came to it by a chance. The plaintiff maintained even after the orders, that it was not seeking to bar the students from attending classes, bar them from occupying certain offices at the Students Representative Council or locking them away. The orders were given by his Honour on his own initiative in the exercise of his powers under the Constitution, s 57. Section 57 empowers the Supreme Court or the National Court to enforce guaranteed rights and freedoms under the Constitution on application by any person who has an interest or “on its own initiative”. His Honour was not incorrect in exercising his powers on his own initiative because of the evidence before him. But the question is, in exercising the powers under s 57 must his Honour disregard the principle of natural justice under s 59. On the authorities he must not. The consequences of his Honour’s orders speak for themselves.
The orders banning the students from setting foot in the university campus and to be detained at the Bomana Corrective Institution are serious and by their nature they are required to have been reached by requiring both parties to produce evidence and fully argue their case. Otherwise, the orders might be in breach of the Constitution, s 42 and s 52. Section 52 prohibits deprivation of personal liberty except in accordance with s 42 “(liberty of accused)” (emphasis mine). The circumstances under which a person’s personal liberty may be deprived are listed in s 42(1):
“No person shall be deprived of his personal liberty except:
(a)      in consequence of his unfitness to plead to a criminal charge; or
(b)      in the execution of the sentence or order of a court in respect of an offence of which he has been found guilty, or in the execution of the order of a court of record punishing him for contempt of itself or another court or tribunal; or
(c)      by reason of his failure to comply with the order of the court made to secure the fulfilment of an obligation (other than a contractual obligation) imposed upon him by law; or
(d)      upon reasonable suspicion of his having committed, or being about to commit, an offence; or
(e)      for the purpose of bringing him before a court in execution of the order of a court; or
(f)      for the purpose of preventing the introduction or spread of a disease or suspected disease, whether of humans, animals or plants, or for normal purposes of quarantine; or
(g)      for the purpose of preventing the unlawful entry of a person into Papua New Guinea, or for the purpose of effecting the expulsion, extradition or other unlawful removal of a person from Papua New Guinea, or the taking of proceedings for any of those purposes; or
(h)      in the case of a person who is, or is reasonably suspected of being of unsound mind:
(i)       or addicted to drugs or alcohol, for the purpose of his care or treatment or the protection of the community, under an order of a court; or
(ii)      for the purpose of taking prompt legal proceedings to obtain an order of a court of a type referred to in Subparagraph (i).”
None of these circumstances seem to support his Honour’s orders. I think Raine DCJ’s statement in Premdas v Independent State of Papua New Guinea [1979] PNGLR 329 at 347 explains the application of s 42(1):
“... But the submission ignores all that follows for s 42 clearly directs itself to the body of a man, if I might put it that way. It is aimed at situations where the authorities locked somebody up for no good reason, or, if there was good reason, kept him locked up without charging him, or trying him. There are a number of necessary and reasonable exceptions to the basic principle, none of which are peculiar to this country, namely, where for reasons of health, unsoundness of mind, etc., it is essential to take people into custody in what would otherwise appear to be an arbitrary way.”
That only in limited instances a person may be deprived of his liberty is further stated in Perryman v Minister for Foreign Affairs and Trade [1982] PNGLR 339 at 340-341.
Bredmeyer J did have other powers under the Constitution, s 155(4), to make “other orders as are necessary to do justice in the circumstances of a particular case”, but the circumstances before his Honour must warrant orders under s 57, as s 155(4) does not give the “Court the power to do anything contrary to what the law says”: SCR No 2 of 1981; Re s 19(1)(f) of the Criminal Code [1982] PNGLR 150 at 154. Further, the plaintiff was not under any legal disability such as to warrant the court to invoke its inherent power. Had there been any disability, a resort to the Constitution, s 22, might have been warranted:
“... rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court .... “ [Emphasis mine.]
Apart from any substantive remedies that the plaintiff might have claimed under the Constitution, the plaintiff could have sought from the beginning to invoke the provisions of the Criminal Code Act (Ch No 262), District Courts Act, the Summary Offences Act (Ch No 264) and the Motor Traffic Act (Ch No 243); or even the disciplinary provisions of the Student Discipline, Protection of Property and Use of the Library Statute (Ch No 169) could have been invoked by the plaintiff (Students Disciplinary Statutes). Whether the invocation of the provisions of the Acts could have given any effective remedy to the plaintiff is not the point here. Nor is it sought to prove that his Honour was rendered powerless on the face of what I said. The point is that on the face of all that I have said, with respect, his Honour, in invoking his powers under the Constitution, s 57 and s 155, in favour of the plaintiff, has overlooked the students’ rights under s 59. According to Wade, overlooking the rules of natural justice is not an uncommon legal error: Wade, Administrative Law, (5th ed, 1982) at p 442. It seems to me that chances of overlooking the rules of natural justice may be minimised if there are procedural guidelines to follow if a court decides to enforce any constitutional rights on its own initiative. In this respect since writing I have sighted Pratt J’s draft judgment in which he suggests certain steps to be followed if a Court decides to enforce any constitutional rights on its own initiative. With respect I endorse those steps but with certain remarks. In certain cases such as the one the subject of this appeal, where no other substantial remedy than an injunction is sought a judge may not be in a position to know at an early stage what rights might have been infringed upon until all or a substantial part of the evidence is called. At this stage if a judge decides to follow the steps as suggested, there might be a vicious circle. One party, particularly the plaintiff, might have missed the chance of proving its case on the standard required except through the cross-examination of witnesses, if any, called by the other party, because the plaintiff may have completed calling his or its evidence.
INJUNCTION: ORDERS 1 AND 2
The appellants’ counsel argued that an injunction should not have been granted as the acts complained of did not threaten any property rights of the respondent. The perpetrators of the acts complained of could have been dealt with in accordance with the provisions of the Students Disciplinary Statutes. Further, police could have been called in to enforce the provisions of the Criminal Code, the Summary Offences Act and the Motor Traffic Act.
I accept that the University had options available. Some disciplinary actions could have been instituted under its own statute. The authorities are clear that a party should not jump to seek an injunction against another party when he has readily available to him remedies available under other laws: Gouriet v Union of Post Office Workers [1977] 3 All ER 70.
But it is also true that having other avenues does not put a total bar to a party seeking an injunction. Lord Denning’s statement in Attorney-General v Chaudry [1971] 3 All ER 938 at 947 is on the point:
“There are many statutes which provide penalties for breach of them — penalties which are enforceable by means of a fine — or even imprisonment — but this has never stood in the way of the High Court granting an injunction. Many a time people have found it profitable to pay a fine and go on breaking the law. In all such cases the High Court has been ready to grant an injunction. As Sellers LJ said in Attorney- General v Harris [1961] 1 QB 74 at 86: ‘It cannot, in my opinion, be anything other than a public detriment for the law to be defied, week by week, and the offender to find it profitable to pay the fine and continue to flout the law.’“
Also the statement by Gibbs CJ in Attorney-General (Qld) (Ex rel Kerr) v T (1983) 57 ALJR 285 at 286:
“While there is no doubt that in appropriate cases the Court will grant an injunction to restrain a breach of the criminal law, that is ‘an exceptional power confined, in practice, to cases where an offence is frequently repeated in disregard of a, usually, inadequate penalty ... or to cases of emergency’. See Gouriet v Union of Post Office Workers [1977] 3 All ER 70 at 83. In Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd (1935) 54 CLR 230 at 245, Rich J said that ‘Old-fashioned views upon the jurisdiction of Courts of equity find the growth of the use of injunction (in the field of criminal law) more repugnant than satisfying.’ Whether or not that view is shared, it is obviously true to say, as Lord Wilberforce said in Gouriet’s case, at 83, that the jurisdiction ‘is one of great delicacy and is one to be used with caution’. As was pointed out in that case by Lord Wilberforce at p 481, and by Viscount Dilhorne at pp 490-491, where Parliament has provided for the trial of offences by jury, it may seem wrong, and it may lead to great difficulties, if the Court, applying a civil standard, in effect, convicts a subject without the trial to which he or she is entitled.”
Apart from re-emphasising that an injunction can only be sought where penalties for breaches of criminal laws are inadequate, Gibbs CJ expressed caution that if an injunction could be granted easily, the consequences of breach of an injunction would be similar to a breach of a criminal law but gained by a back-door method, an easy way to punish a person without requiring that his guilt or otherwise be proven on a criminal standard. I think also that his Honour, the Chief Justice was extra cautious because of the nature of the offence with which the subject might be charged. Hence he continued:
“There are limits to the extent to which the law should intrude upon personal liberty and personal privacy in pursuit of moral and religious aims. Those limits would be overstepped if an injunction were to be granted in the present case.”
In my view, the University was put in a unique position by the striking students and thus was entitled to choose to seek an injunction rather than pursue any of the other courses open to it. In this respect, I accept Miss Thompson’s argument that as the University statute provides a lengthy procedure, it could not solve the immediate problem of the barricades and the disruption to classes and they might not have the desired result in the end of fining or otherwise penalising someone. Indeed Bredmeyer J’s finding at 141 of the appeal book sums it up:
“... the barricades were erected and manned by striking students on Thursday, 28 February. At about midday the academic and administrative work of the University ceased. Lecturers were not allowed to get to their rooms, to use the library or to give lectures. The University was put under a kind of siege where the only people free to move around in the campus were students, provided they did not attend lectures and a few others permitted by them.”
This Court is not in a position to appreciate or sense offhand the seriousness of the affairs at the University. The evidence taken by his Honour, indicates the gravity of the situation to a considerable extent. How effective the statute has been I am unable to say. A comparative table showing how often the provisions of the Statute have been invoked and the form of sanctions imposed, or some similar evidence would have been of assistance to this Court, though the nature of the proceedings might not have allowed such evidence to be produced. It seems to me however, as the Statute is intended to deal with matters internal to this learning institution such as breach of the examination rules, not returning a library book, defacing or causing minor damages to the institutional properties, it is inadequate to deal with a large scale strike such as the one subject of the orders where the students bypassing the university insisted upon talking to the officials of the Office of Higher Education and the then Deputy Prime Minister. The arrogant attitudes towards the plaintiff, towards the Student Representative Council Statute and the law generally were displayed without modesty before his Honour in court.
Apart from the slow procedures and the insufficient penalties provided by the Students Disciplinary Statute, in my view the University correctly avoided what could be seen by the University students as siding with the Government on the book allowance issue. The evidence by More at 43 onwards in the appeal book was that the Vice-Chancellor was not helping the students but siding with the Government. Also any disciplinary action taken by the University would have been seen as an extension of its action to suppress the students’ demands. As to the calling of the police in the first instance, the situation could have been worse if the students had confronted the police. It is common knowledge that the two groups do not mix. A continued strike and a confrontation would have resulted in injuries and damages to the buildings owned by the University. Who would pay for these. Certainly not the students, even if they were ordered to, because they could not afford to. The police were called to the campus but at that stage the matter was already before the National Court and the “heat” would have cooled down. I grant that when the University instituted proceedings for an injunction there were no repeated commission of offences of the type in Harris’ case where the defendants continued selling flowers despite prosecutions and convictions or continuous flouting of fire risk laws as in Chaudry’s case but in my view the students’ attitude was reflected in their evidence, that is, they would act no matter what was sufficient for the plaintiff to seek the National Court’s aid. In my view the University took a reasonable and justifiable course in the circumstances. Its aim was not limited to that of preventing breaches of any statutes. In Kent County Council v Batchelor (No 2) [1978] 3 All ER 980 at 987, Talbot J accepted the plaintiff’s proposal not to prosecute:
“There is no question of prosecution of the defendant. I do not have to exact any undertaking. The plaintiffs are responsible authorities and having told me that they do not intend to prosecute, I accept it.”
A very important point made in that case was that the injunction sought was not merely in order to prevent commission of an offence but to ensure the beauty of the area was maintained. In fact in my respectful view the latter was the main objective. Before coming to a conclusion that I have cited earlier, Talbot J (at 986) said:
“It is not just a case of taking action to prevent a criminal offence. It is a case of preventing interference with the areas of natural beauty which they have sought by their tree preservation orders to preserve.”
Batchelor’s case had no urgency such as in Chaudry’s case where a fire would cause irreparable damages including loss of lives. In Batchelor’s case the injunction sought was in relation to preservation of trees. Certainly new trees could be planted, though it would take time to reach a stage where they could be enjoyed. Batchelor’s case leaves a flexibility where an injunction may be sought in a situation such as faced by the University.
The intention of the University was to keep peace which would prevent further serious damage being done to the classrooms and other buildings and to allow free movement so that interested students attended classes, other people moved about doing their business while the concerned students continued their negotiations for an increase of book allowance.
Before coming to the end, I want to refer to another basis upon which a court should refuse to grant an injunction. That is, the consequence of breaches of restraining orders may be more severe than breaches of criminal law where the standard of proving breaches of restraining orders is on civil standard while the standard required of proving breaches of criminal law is beyond reasonable doubt. Gibbs CJ in Ex rel Kerr’s case (at 286) quoting Lord Wilberforce and Viscount Dilhorne in Gouriet’s case said:
“Where Parliament has provided for the trial of offences by jury, it may seem wrong, and it may lead to great difficulties, if the Court, applying a civil standard, in effect, convicts a subject without the trial to which he or she is entitled.”
I think the principle has little application to this case, especially in the context of police laying charges. It is relevant to the situation such as in Batchelor’s case where the penalty for destruction of trees was a fine of £400 or twice the sum of the value of the tree destroyed. A breach of an injunction includes imprisonment. In the present case because of the minimum penalties the consequences would have little difference. For instance the minimum penalty for the offence of riot under the Criminal Code is two years, and penalties for offences of assault under s 6 and for offences of unlawful damage to properties under s 47 of the Summary Offences Act are six months and six months respectively. So far as I know the most serious custodial sentence imposed for any kind of contempt of court or disobedience of court orders are eight months imprisonment in the case of Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448 and two and a half months in the case of The State v John Rumet Kaputin [1979] PNGLR 544.
There were students who wanted to get on with their studies, many of whom were either self or privately sponsored. They paid their fees in order to receive lectures. Their rights to receive lectures were undermined. To pursue their rights to receive lectures became impossible because they were threatened with personal injuries. The medical students who decided they had nothing to do with strikes were deprived of their meals. What would be the most appropriate remedy for these students. Any common law remedy, if there was one, would be of no help at all to them. Their future careers depended on successful completion of their studies. A confrontation between the police and the concerned and active students and a temporary closing down of the University would be of no help to these students. It is apparent from the evidence that a small number of students under the umbrella of a vaguely defined Striking Committee were very disruptive to the orderly running of the University, its staff and its properties and to the orderly giving of lectures and attendance of lectures by the rest of the students.
From all that I have said, in my view the trial judge has properly exercised his discretion by issuing an injunction. I would therefore disallow the appeal and confirm orders 1 and 2.
ORDERS
On 27 March 1985 the Court upheld the appeal in relation to and quashed the following orders of the learned trial judge:
“(3)    Ume More, Fabian Pok, Emily Dirua Awak, Surari Putago and John Rau are stripped of their offices, the Students Representative Council offices are closed to all students and its financial affairs are to be managed by the University of Papua New Guinea for the time being and the University of Papua New Guinea is to hold fresh elections for the Students Representative Council offices within two months.
(4)      Ume More, Fabian Pok, Levi Tilto, Wandi Oscar Yamula, Paul Piru and Powes Parkop are banned from setting foot in the University of Papua New Guinea campus for the remainder of 1985.
(5)      Ume More, Fabian Pok, Levi Tilto, Wandi Oscar Yamula, Paul Piru and Powes Parkop are not to come within Port Moresby or Lae for three months.
(6)      The Government of the Independent State of Papua New Guinea is to send Ume More, Fabian Pok, Levi Tilto, Wandi Oscar Yamula, Paul Piru and Powes Parkop back to their home province.
(7)      To secure the due performance of Orders 5 and 6 hereof, Ume More, Fabian Pok, Levi Tilto, Wandi Oscar Yamula, Paul Piru and Powes Parkop are to be remanded in custody at Bomana for a period not exceeding 5 days.”
On this day the Court further upholds the remaining ground of appeal and quashes order 1 made by the learned trial judge on 6 March 1985, namely:
“(1)    That the Defendants or any of them, by themselves, their servants or agents otherwise howsoever, are hereby restrained from disobeying the reasonable directions of persons in authority over students, from wilfully or recklessly obstructing the use of the facilities of, or roads within the precincts of, the University of Papua New Guinea or of any part of the University of Papua New Guinea, from obstructing the due conduct of the business of the University of Papua New Guinea, from being disorderly and from unduly interfering with the comfort or convenience of any person within the precincts of the University of Papua New Guinea, and from wrongfully dealing with any property of the University of Papua New Guinea or within the precincts of the University of Papua New Guinea.”
Each party to pay their own costs.
Orders accordingly
Lawyers for the appellants: Beresford Love Francis & Co.
Lawyers for the respondent: Young & Williams.
Secretary for Justice: Principal Legal Adviser.