N4189

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 565 OF 2010

BETWEEN:

DORIGA BERASI, GUMASA HENI AND REX VANI, FOR AND ON BEHALF OF THEMSELVES AND VANE CLAN, PAPA VILLAGE
First Plaintiffs

AND:

MOREA LAHUI, FOR AND ON BEHALF OF HIMSELF AND DABARA CLAN OF PAPA VILLAGE
Second Plaintiff

AND:

VANE MATA INCORPORATED LAND GROUP
Third Plaintiff

AND:

KONEKARU HOLDING LTD
First Defendant

AND:

CJ VENTURES LTD
Second Defendant

AND:

PEPI KIMAS, SECRETARY FOR LANDS & PHYSICAL PLANNING
Third Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Davani, J
2010: 15th December
 
INJUNCTIONS – Ex parte Interim injunctions – compliance with principles on the grant of ex parte interim injunctive orders – Ex parte orders must be made returnable for inter-parties hearing – Court order must be specific – Rule 5(1)(2) Motions (Amendment) Rules 2005

INJUNCTIONS – Ex parte interim injunctions – non-compliance with Rule 5(1)(2) of Motions (Amendment) Rules 2005 – Ex parte Interim Order a nullity – must be set aside.

LEAVE FOR JUDICIAL REVIEW – Must be obtained separately and before the hearing of other applications.

Facts:

The second defendant applied to set aside interim ex parte injunctive orders. The brief facts are that the plaintiff applied for an urgent hearing seeking ex parte interim injunctive orders. On the grant of orders, although they were interim and ex parte in nature, they were made returnable at the substantive hearing.

The plaintiff applied for those orders at the same time as the grant of leave for Judicial Review and which orders were granted.

Issue:

1.	Should the Court have issued interim ex parte restraining orders at the same time as the grant of leave for Judicial Review?

2.	Should the interim ex parte restraining orders be made returnable at the substantive hearing?

Reasons:

In an application for leave for Judicial Review, no primary right to commence other proceedings/applications exist, until leave is granted and no such right to apply for a stay or interim relief and the Court's jurisdiction to grant such relief exists until an application for judicial review seeking substantive relief is filed by the person granting leave. Upon the grant of leave and filing of the application for judicial review, the Court then assigns jurisdiction to deal with any interlocutory application. Therefore, a party should not apply for stay or restraining orders or any other application until the grant of leave for Judicial Review. Then the Court will indicate how the application will be heard, i.e should it be served and when or can it be moved ex parte.

Lawyers applying for urgent ex parte interim orders, must comply with Rule 5 of the Motions (Amendment) Rules. Non-compliance with the steps in Rule 5 renders the ex parte order a nullity and warrants its immediate setting aside, where the Court need not necessarily hear submissions on the principles in relation to a set aside where it is clear that the important preliminary steps in relation to applying for an interim ex parte order has not been complied with.

Held:

1.	The Orders of 12th October, 2010 are set aside;

2.	The first and second plaintiffs shall pay the first and second defendants' costs of the application, to be taxed if not agreed.

Case Cited:

Simon Mali v. The State (2002) SC690;
Mainland Holdings Ltd v. Paul Robert Stobbs & 3 Ors (2003) N2522;
Mark Ekepa and Ors v. William Gaupe and Ors (2004) dated 13.10.2004;
Tigam Malevo & Others v. OK Tedi Mining Ltd & 6 Others, OS 718 of 2006 dated 20.11.2007;
Peter Makeng v. Timbers (PNG) Limited (2008) N3317;
Simon Kou & Others v. Simon Kaupa & John Nonggorr & Associates Lawyers WS 632 of 2004 dated 12.6.2009;
Malevo v. Faulkner (SC960) dated 13.3.2010; 
Muri Henao for himself and on behalf of various clans and their members of Boera Village who names appeared in Schedule "A" attached hereto & 4 other plaintiffs on behalf of various other clans from Rearea and Porebada Villages (5 plaintiffs) v. Honourable William Duma, Minister for Petroleum and Energy and 6 others, OS 659 of 2009 dated 24.3.2010; 
Associated Plumbing Installation Limited v. Air Niugini Limited (2010), OS 481 of 2010 dated 5.11.2010;

Counsel:
B. Ovia, for the first and second plaintiffs/respondents
P. Harry, for the third plaintiff/respondent
D. Dusava, for the first and second defendants/applicants
No appearance for and by the third and fourth defendants

DECISION

15th December, 2010

1.	DAVANI. J: On 15th December, 2010, Soi & Associates acting for and on behalf of the first and second defendants ('applicants'), moved their Notice of Motion filed on 19th November, 2010. Mr Dusava, Counsel for the applicants, moved orders pursuant to O.12 r.8 of the National Court Rules ('NCR'), seeking that the ex parte injunctive orders issued by the National Court at Waigani on 12th October, 2010, be either given a return date or alternatively, that the orders be set aside. Mr Tuva, Counsel for the plaintiffs ('respondents'), opposed the application. Mr Harry, for the third plaintiff, supported Mr Tuva and opposed the application.

2.	I heard both Messrs Dusava and Tuva and set aside the orders of 12th October, 2010. I informed Counsel that I would give them my published reasons. This, I now do. I did not hear Mr Harry as it was not necessary, the technical deficiencies in the documentation filed, including the orders taken out, being very obvious.

Background

3.	On 1st October, 2010, the plaintiffs filed these proceedings. The Originating Summons sought Judicial Review together with other declaratory orders, relating to alleged breaches of the Land Act by the named defendants in the awarding of Special Agricultural and Business Lease, amongst others.

4.	The Originating Summons seeking Judicial Review was filed on 1st October, 2010. On 12th October, 2010, the National Court granted leave for Judicial Review. Also, on 12th October, 2010, the Court issued restraining orders, restraining the first and second defendants from entering into land described as Portion 2465C pending the determination of the substantive Judicial Review by the National Court. These restraining orders are now the subject of the setting aside application.

The Application

5.	The terms of the ex parte orders of 12th October, 2010, read as follows;

"1. Leave is granted to the Plaintiffs to review the grant of the Special Agricultural and Business Lease described as Portion 2465C, State Lease, Volume 37, Folio 105, by the Third Defendant to the First Defendant and the subsequent sublease to the Second Defendant.

2. The First and Second Defendants including their servants and agents are restrained from entering into or upon any part of the land described as Portion 2465C for any purpose whatsoever pending the determination of the substantive judicial review by the National Court.

3. The Plaintiffs serve on the Defendants the Originating Summons, Application for Leave to Apply for Judicial Review and all the supporting affidavits.

4. The Plaintiffs are to serve the Order for injunction on all the Defendants.

5. This matter be placed on the Directions Hearing List for further directions for the further conduct of the matter.

6. Costs be in the cause.

7. The entry of these Orders be abridged to the time of settlement by the Registrar of the National Court which shall take place forthwith."

6.	Mr Dusava submits that those orders must be set aside because Counsel for the plaintiffs had not properly complied with processes for the grant of ex parte orders. He submits that because the orders were obtained ex parte and were to continue until the substantive hearing that this is incorrect in law and on that basis, should be set aside as of right.

7.	He then made further submissions relying on the principles for the setting aside of ex parte interim injunctive orders, set in the cases Mainland Holdings Ltd v. Paul Robert Stobbs & 3 Ors (2003) N2522; Mark Ekepa and Ors v. William Gaupe and Ors (2004) dated 13th October, 2004, amongst others. He also handed up written submissions.

8.	The principles or considerations to take into account by any Court in relation to the setting aside or varying of a previous interim ex parte injunctive order, are these;

(i)	Has there been a change in circumstances since the previous orders were made, which render their continuation unnecessary or inappropriate?

(ii)	What has been the relative conduct of the parties since the earlier orders were made?

(iii)	Are there previously undisclosed relevant facts which have been discovered since the interim orders were made?

(iv)	Has it subsequently been discovered that the order was granted on an erroneous legal basis?

(v)	Were the grounds relied upon to support the setting aside or variation of the interim order, argued before the Court when it granted the earlier order?

(vi)	Whether the Court was misled when it issued the interim injunction and if so, was that attributable to the conduct of the party which sought the injunction?

9.	O.12 r.8 of the NCR provides for the setting aside or variation of judgement or order. The whole of that provision reads;

"8. Setting aside or varying judgment or order

(1)	The Court may, on terms, set aside or vary a direction for entry of judgment where notice of motion for the setting aside or variation is filed before entry of the judgment.

(2)	The Court may, on terms, set aside or vary a judgement –

(a)	where the judgment has been entered pursuant to Order 12 Division 3 (default judgment); or

(b)	where the judgement has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the direction; or

(c)	when the judgment has been entered in proceedings for possession of land pursuant to a direction given in the absence of a person and the Court decides to make an order that the person be added as a defendant.

(3)	The Court may, on terms, set aside or vary an order – 

(a)	where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order; or

(b)	where notice of motion for the setting aside or variation is filed before entry of the order.

(4)	In addition to its powers under sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary an order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.

(5)	This Rule does not affect any other power of the Court to set aside or vary a judgment or order."

10.	I consider firstly the submissions by Mr Dusava that the restraining orders obtained ex parte were not made returnable, and should be set aside.

(i)	Order was not made returnable for hearing inter-parties 

11.	The Motions (Amendment) Rules 2005 ('the 'Rules') came into force on 27th September, 2005 when it was signed by all Judges. It is an amendment to O.4 Division 5 (Motions) of the NCR. It reads;

"5. Urgent ex parte applications

(1)	Without filing Originating Process and Notice of Motion under Order 14 Rules 9-16 of the National Court Rules.

(a)	If a lawyer or a party wishes to make an urgent ex parte application, they must first contact the Registrar or Deputy Registrar by telephone, and by sending a fax setting out the details of the application, and why the matter is urgent.

(b)	The Registrar will then fix a time for the hearing in consultation with the Motions Judge.

(c)	If the Judge grants the interim orders sought, they must be made returnable before the court on a fixed date. The Judge must also make orders for filing and service of the Court Order, Originating process, Notice of Motion and supporting affidavit, Undertaking as to Damages, security for costs and any other relevant documents, on the defendant or any other person directly affected by the order.

(2)	Urgent ex parte applications in other cases

(a)	A lawyer or a party wishing to make an urgent ex parte application, must contact the Registrar in writing, explaining the reasons for the urgency and why the requirements for service of the Motion is sought to be dispensed with.

(b)	The Registrar, after being satisfied with the explanation given, will fix a time and date for the hearing of the Motion, in consultation with the Motions Judge.

(c)	The application will not be set down for hearing unless the following documents are filed:-

•	Originating Process;
•	Notice of Motion
•	Supporting Affidavits;
•	Where appropriate, an Undertaking as to Damages;
•	Draft Order.

(d)	The applicant must, in the Notice of Motion, first seek an order dispensing with the requirement for service of the Motion. In the supporting affidavit, the deponent must demonstrate the urgency of the matter and the reasons why the requirement for service of the Motion is necessary, such as difficulty with locating the defendant in order for service to be effected.

(e)	Upon hearing the application, the Judge may make orders including:

i.	An order dispensing with requirements of service;

ii.	An Interim order which provides some solution, until the return date;

iii.	Service of the Order, the Originating Process, Motion, Supporting Affidavit, Undertaking as to Damages (where appropriate) and other documents filed in the proceedings, on or by a specific date.

iv.	Giving "liberty to apply";

v.	Giving a specific return date, when the interim orders become returnable before the Motions Judge.

vi.	Affidavit of service of the documents referred to in above.

(f)	A party shall not and the Judge shall not make any order in terms of the substantive relief sought in the originating process."
 (my emphasis)
 
12.	I have emphasised the clauses above, that are relevant and important and which lawyers and parties must take note of, consider and implement, before appearing before a Judge on an urgent ex parte application. The clauses are straight forward and simple and set out with clarity and precision, every single step an applicant and his/her counsel are to comply with. Non-compliance with these steps renders the ex parte order a nullity and warrants its immediate setting aside. A party should not assume that an ex parte order is taken out at a whim or a snap of a thumb. It is a matter that not only counsel but the Court must give careful consideration to before it is moved. The party who will be affected by that order, must also be given that opportunity to return, before the substantive hearing, to say why the orders should not remain. Therefore, in an application to set ex parte interim injunctive orders, apart from the established principles in relation to the grant of a set aside, another principle that must be considered by the Court and parties, is that the Court must also review the evidence already in the Court file, that the steps or process set in Rule 5 of the Rules, have been fully and properly complied with. And this must be done before the Judge embarks to consider the other established principles on a set aside application.
 
13.	Mr Dusava submits that the orders of 12th October, 2010 were made ex parte. The plaintiffs have not put before me transcript of the hearing before His Honour to show that not to be the case. In relation to the application proceeding ex parte, I must consider the evidence before the Judge demonstrating the urgency of the matter and that service should be dispensed with, in accordance with Rule 5(2)(d) and that the Registrar was also advised by letter of the reasons for the urgency, done in accordance with Rule 5(1)(a) of the Rules.

14.	I have reviewed the documentation on the Court file and note the following to have been filed, dealing with service. There is an affidavit of service sworn on 8th November, 2010 by Inspector Robert Kurei, Station Commander of Port Moresby Police Station, deposing to service upon Konekaru Holdings Ltd the first defendant, of the documentation filed in these proceedings. Service was effected on 14th October, 2010 at Section 24 Lot 12 Lahara Avenue, Boroko, National Capital District. There is no evidence before me that this address is the registered office of the first defendant.

15.	Also before the Court, is an affidavit of service sworn on 8th November, 2010 by Inspector Robert Kurei, Station Commander of Port Moresby Police Station, deposing to service upon CJ Ventures Ltd, the second defendant, of the documentation filed in these proceedings. Service occurred at Section 24 Allotment 12, Lahara Avenue, Boroko, National Capital District on 14th October, 2010 at 1:28pm. There is no evidence before me that this is the registered address of the second defendant.

16.	Another affidavit of service is before me, sworn on 3rd November, 2010 by Buri Ovia, lawyer, deposing to service of the Court Order of 12th October, 2010 upon the office of Soi & Associates on 14th October, 2010 at 10:55 am.

17.	A further affidavit of service on the Court file, sworn by Buri Ovia on 13th October, 2010 and filed on 8th December, 2010, deposes to service of all documentation filed in these proceedings upon the Solicitor-General's Office on 13th October, 2010 at 10:15 am. Service was effected upon Linda Wonuhali, Senior Executive Assistant to the Secretary.

18.	After receipt of the orders of 12th October, 2010, Soi & Associates wrote to the Registrar National and Supreme Courts by letter dated 17th November, 2010 requesting that their application to set aside the injunctive orders be listed for hearing. This letter is attached as Annexure "C" to the affidavit of Willie Pouta, filing clerk with Soi & Associates, affidavit sworn on 23rd November, 2010 and filed on 8th December, 2010. I note particularly par.3 of that letter which states that the ex parte orders were not given a return date and that they wished to apply to set aside these orders.

19.	All the affidavits referred to above show that there was no evidence before the Court on 12th October, 2010, demonstrating that the application was urgent and that because of the reasons deposed therein, that the Court should dispense with service of the Motion, done in accordance with Rule 5(2) of the Rules. Counsel Mr Ovia also, did not send a letter to the Registrar requesting an urgent ex parte hearing, done in compliance with Rule 5(2)(a) of the Rules.

20.	I informed Counsel that I would set aside the interim injunctive orders based on these deficiencies set out above. Additionally, the ex parte orders were not made returnable for a hearing inter-parties, to be done in accordance with Rule 5(2)(e)(i)(ii). The ex parte order must be made returnable for a hearing inter-parties, before the substantive hearing, where submissions will be made by all counsel on whether the interim orders can be set aside or can remain till the substantive hearing. The plaintiffs have not made any effort to have their Motion for restraining orders set down for hearing inter-parties. It is only through the efforts of the first and second defendants, that the application is now for hearing before me.

21.	R.5(2)(e) of the Rules states that upon hearing the ex parte application, a Judge may make orders including:

-	An order dispensing with requirement of service;

-	An interim order which provides some solution, until the return date;

-	Service of the Order, the Originating Process, Motion, supporting Affidavit, Undertaking as to Damages (where appropriate) and other documents filed in the proceedings, on or by a specific date;

-	Giving "liberty to apply";

-	Giving a specific return date, when the interim orders become returnable before the Motions Judge; and

-	Affidavit of service of the documents referred to above.

22.	The rule also states further that a party shall not and the Judge shall not make any order in terms of the substantive relief sought in the originating process (r.5(2)(f)).

23.	In this case, the interim injunction is granted "pending the determination of the substantive judicial review by the National Court." (clause 2 of orders). These orders were made ex parte, without giving the defendants an opportunity to be heard, a clear breach of all principles relating to a fair hearing for all parties.

24.	The endorsement on the Court file shows that the lawyers in attendance at that time, on 12th October, 2010, were Mr Geita and Ms Nindil of the Solicitor-General's Office. Mr Geita and Ms Nindil were in Court only for the hearing of the leave application as is the requirement under s.8 of the Claims By and Against the State Act, where an application for leave for judicial review shall not be moved until after the State has been given an opportunity to be heard. This confirms the applicants' submissions that the application for restraining orders was moved ex parte. Another factor that goes against the plaintiffs is that the application for restraining orders was granted at the same time as the application for leave. This should not have occurred (my emphasis). In Peter Makeng v. Timbers (PNG) Limited (2008) N3317, His Honour Injia (as he then was), after hearing extensive well researched submissions from all Counsel and after careful consideration, held that the Court's inherent jurisdiction under s.155(2) of the Constitution is not applicable to O.16 r.3(8) as it is not the source of the primary jurisdictional power. He held further that the Court's primary power or jurisdiction is given by O.16 r.3(8) of the NCR. He held further that s.155(2) confirms jurisdiction on the Court to issue facilitative orders in aide of enforcement of a primary right conferred by law, whether such right be conferred by statute or subordinate legislation enacted under the enabling statute (par.34). His Honour held that O.16 is the source of primary jurisdictional power. He held that under O.16, a plaintiff has no right to seek judicial review unless leave is granted. He held further that no such primary right to commence proceedings exists until leave is granted and no such right to apply for a stay or interim relief and the Court's jurisdiction to grant such relief exists until an application for judicial review seeking substantive relief is filed by the person granting leave. He held also that upon the grant of leave and filing of the application for judicial review, the Court then assigns jurisdiction to deal with any interlocutory applications. He held that only then, the discretionary power under s.155(4) of the Constitution may be invoked by the Court or a party, to seek remedies in addition to those provided by r.3(8) in aid of the substantive application for judicial review. He held that s.155 cannot be applied to do any thing contrary or inconsistent with the provisions of O.16 r.3(8). His Honour said this at pars.37 to 41 of his reasons;

"37. In terms of the procedure for grant of leave for judicial review, an application for leave is made by Originating Summons. The Originating Summons should not plead any other relief. It should simply seek leave to apply for judicial review of the subject decision which should be particularized. A Motion seeking leave for judicial review and/or an order for stay or any other interlocutory relief is not required to be filed at the leave stage. The current practice by many lawyers of filing an Originating Summons seeking leave and also stay or other interim relief and then filing a Motion seeking the same relief as in the Originating Summons should cease as it only confuses the procedure and is inconsistent with the provisions of O.16 r.3 and O.16 r.5(2).

38. The Statement filed under r.3(3) should plead, amongst other matters required to be pleaded, the following:

1.	a concise description of the decision made or required to be made, the subject of the review including particulars of the decision-maker, the statutory provision under which the decision was made or required to be made but failed to make; and the date of the decision;

2.	a succinct summary of the relevant factual circumstances;

3.	an accurate description of the relief sought; and

4.	the precise grounds on which the relief is sought.

An affidavit verifying the facts relied upon must also be filed.

39. The application for leave is strictly heard ex parte except the State which is given a right to be heard by s.8 of the Claims By and Against the State Act 1996.

40. In a case where a plaintiff intends to apply for a stay or any other interim relief in an urgent case, he or she may file a separate Motion at the time of filing the Originating Summons but that Motion is put on hold pending the determination of the application for leave. The Motion must be served on the respondents or other interested parties whose rights may be directly affected by the interim relief, so that such persons can be heard on the application. The Court deals with the Motion after leave to apply for judicial review is granted and it is heard inter parties.

41. Upon grant of leave, a Motion seeking substantive relief under O.16 r.5(1) should be filed and served. An order for stay or interim relief may be sought in the same Motion or in a separate Motion. It is a fundamental requirement of natural justice and principles of fairness equity and it is highly desirable that the Motion seeking stay or interim relief should be served on the respondents and other interested persons except in very urgent cases where service of the Motion is dispensed with by the Court. The procedure for seeking urgent ex parte interim relief is set out in r.5 of the Motions (Amendment) Rules 2005, which applies to judicial review proceedings by virtue of r.13(1) of Judicial Review (Amendment) Rules 2005."
 (my emphasis)

25.	I agree with his Honour and add that clearly, the plaintiffs should not have applied for the stay or injunctive orders at the same time as the application for leave. They have erred and the ex parte orders must be set aside.

26.	Another procedural point that I made known to all Counsel was the fact that the plaintiffs must be properly authorised by all clan members to bring these proceedings. There are many reasons why this must be done, the obvious one being that in the event the plaintiffs are unsuccessful, that they will be made to pay costs. It may be that some clan members may deny knowledge about the proceedings. Counsel should not rush into filing Court documentation until they are entirely sure themselves by the obtaining of authorities from all clan members that the clan members have authorised those named as plaintiffs to act for and on their behalf. I have said this many times in a lot of my decisions, some of which were dismissed because of that very point. I refer to Muri Henao for himself and on behalf of various clans and their members of Boera Village who names appeared in Schedule "A" attached hereto & 4 other plaintiffs on behalf of various other clans from Rearea and Porebada Villages (5 plaintiffs) v. Honourable William Duma, Minister for Petroleum and Energy and 6 others (2010) dated 24th March, 2010, OS 659 of 2009; Tigam Malevo & Others v. OK Tedi Mining Ltd & 6 Others OS 718 of 2006 dated 20th November, 2007; Malevo v. Faulkner (unreported Supreme Court judgment dated 13th March, 2010) SC960; Simon Mali v. The State (2002) SC690; Simon Kou & Others v. Simon Kaupa & John Nonggorr & Associates Lawyers WS 632 of 2004 dated 12th June, 2009. 

27.	Counsel must always ensure to comply with the process set in the Rules towards the filing and hearing of urgent applications. I also discussed this at length in Associated Plumbing Installation Limited v. Air Niugini Limited (2010) dated 5th November, 2010, OS 481 of 2010.

28.	It was for those reasons that I set aside the interim ex parte orders. I also informed Counsel that there was no need for me to consider the other principles on the setting aside of interim injunctive orders, as a case for a set aside had already been made out only on consideration of the preliminary submissions made under Rule 5 of the Motions (Amendment) Rules 2005.

Formal Orders

29.	These are the formal orders of the Court;

(1)	The Orders of 12th October, 2010 are set aside;

(2)	The first and second plaintiffs shall pay the first and second defendants' costs of the application, to be taxed if not agreed.

_____________________________
Kundu Legal Services: Lawyer for the first and Second Plaintiffs
Stevens Lawyers: Lawyer for the Third Plaintiff
Soi & Associates Lawyers: Lawyer for the first and Second Defendants