N7056
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO.71 OF 2011

BETWEEN:
BANNING TRADING LIMITED
Plaintiff

AND:
MAX KOMBAMUNG trading as DOKONA BUILDING   
Defendant

AND:

OS NO.115 OF 2011

BETWEEN:
MAKUM TRADING LIMITED
Plaintiff

AND:
BANNING TRADING LIMITED   
First Defendant

AND:
MR. KOSTAS G. CONSTANTINOU,
Chairman of National Physical Planning Board    
Second Defendant

AND:
HON. LUCAS DEKENA,
Minister for Lands & Physical Planning    
Third Defendant
AND:
PEPI KIMAS,
Secretary for Lands & Physical Planning    
Fourth Defendant

AND:
HENRY WASA,
Registrar of Titles    
Fifth Defendant

AND:
KEN KAIA,
Government Printer    
Sixth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA,
Seventh Defendant

Waigani:  David, J
2017:  7 November

PRACTICE AND PROCEDURE- competency of notice of motion -National Court Rules, Order 4 Rule 49(8).

PRACTICE AND PROCEDURE- application to amend originating summons – principles to amend documents considered and applied -National Court Rules, Order 8 Rule 50.

PRACTICE AND PROCEDURE- application to dismiss proceedings for being an abuse of the process of the court – National Court Rules, Order 12 Rule 40.

PRACTICE AND PROCEDURE - application for injunction – principles governing applications for the grant of injunctions considered and applied – Constitution, Section 155(4), National Court Rules, Order 14 Rule 10.

Cases Cited:

Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853
Komboro George v MVIT [1993] PNGLR 477
Michael Kewa v Elias M. Kombo (2004) N2688 
Michael Gene v Hamidian Rad (1999) PNGLR 444
New Guinea Limited v Thomason [1975] PNGLR 454
National Executive Council and Luke Lucas v Public Employees Association [1993] PNGLR 264
Peter Makeng v Timbers (PNG) Limited (2008) N3317
Robinson v National Airlines Commission [1983] PNGLR 476
The Papua Club Inc. v Nasaum Holdings Ltd (2002) 2273
Telikom PNG Ltd v ICCC and Digicel (2008) SC906

Counsel:

Priscilla Tamutai, for Makum Trading Limited
Nickson Kiuk Magela, for Banning Trading Limited
Jacinta Y. Doa, for the second to seventh defendants in OS 115 of 2015

RULING
7th November, 2017 

1.	DAVID, J: INTRODUCTION:  This is a ruling on four applications moved by Banning Trading Limited (Banning) and Makum Trading Limited (Makum) involving two separate proceedings which were consolidated concerning Allotment 28 Section 12 Mt. Hagen (the property) in the Western Highlands Province.  The parties agreed for the applications to be heard together.   During the hearing, the parties took no issue with making cross-references to affidavits filed in different, but now consolidated proceedings. 

2.	I will set out the details of the motions below.

OS 71 of 2011

3.	In Banning’s notice of motion filed on 24 February 2011, the principal order sought was:

“2. Pursuant to Order 12 Rule 1 of the National Court Rules and/or Section 155(4) of the Constitution, the Defendant, his servants, agents and employees and any other person(s) be restrained from continuing to interrupt and prevent the Plaintiff in any manner from its free use of the property described as Section 12 Allotment 28 Mt Hagen, Western Highlands Province until current proceedings are determined..”    

4.	In support of this application, Banning relied on the: 

1.	Affidavit in Support of Glen Kundin sworn on 18 February 2011 and filed on 24 February 2011 (doc 3);
2.	Supplementary Affidavit of Glen Kundin sworn on 18 February 2011 and filed on 24 February 2011 (doc 4);
3.	Affidavit in Response of Glen Kundin sworn on 18 March 2011 and filed on 28 February 2011 (doc 10);
4.	Affidavit in Support of Glen Kundin sworn and filed on 14 April 2011.

5.	Order 4 Rule 49(8) of the National Court Rules requires motions to contain a concise reference to the Court’s jurisdiction to grant the orders specifically sought.    Banning relies on Order 12 Rule 1 of the National Court Rules and Section 155(4) of the Constitution.   Order 12 Rule 1 of the National Court Rules is a general provision and does not contain a concise reference to the Court’s jurisdiction to grant the relief specifically sought.  Section 155(4) of the Constitution is not the source of primary jurisdictional power and cannot be invoked contrary to any provision of the National Court Rules:  Peter Makeng v Timbers (PNG) Limited (2008) N3317.  The motion is incompetent and in the exercise of my discretion it is struck out for want of form pursuant to Order 4 Rule 49(8) of the National Court Rules.

OS 115 of 2011

6.	In Banning’s notice of motion filed on 6 May 2011 (doc 17), the principal order sought was:

“1.   	Pursuant to Order 12 Rule 40 of the National Court Rules, the within proceedings be dismissed for being frivolous, vexatious and an abuse of the process of the Court.” 

7.	In support of this application, Banning relied on the affidavits of:

1.	Nickson Kiuk Magela sworn on 26 April 2011 and filed on 6 May 2011 in OS 115/2011;
2.	Glen Kundin sworn on 18 February 2011 and filed on 24 February 2011 (doc 3) in OS 71/2011.

8.	In Makum’s notice of motion filed on 16 March 2011, the principal orders sought were:

“2.	Pursuant to Order 14 Rule 10(1) of the National Court Rules and Order 11 Rule 49 sub-rule (5)(2)(3) of the Motions Amendment Rules 2005 and/or Section 155(4) of the Constitution UNTIL FURTHER ORDERS and Order that:
(a)	The Second, Third, Fourth, Fifth, Sixth and Seventh Defendants, their agents, servants and associates be restrained from facilitating or publishing in the National Gazette the decision of the National Physical Planning Board dated 29 January 2010, granting and approving Banning Trading Limited (First Defendant) Planning Permission for the:-
(i)	Closure of part access road in Mount Hagen adjoining Section 12 Allotments 16 (the Plaintiff’s Allotment) and 26 (the First Defendant’s Allotment) and 14 and 15 (NBC’s Allotments; and
(ii)	Rezoning to commercial from public utility; and
(iii)	Consolidated to form one (1) Allotment with Section 12 Allotment 26 Mount Hagen (now renamed Section 12 Allotment 28 Mount Hagen);
(b)	The Third, Fourth, Fifth, Sixth and Seventh Defendants, their servants and associates are restrained from taking any steps or issuing  Registered Title (State Lease) to the First Defendant in accordance with the decision of the Physical Planning Board dated 29 January 2010, granting and approving Banning Trading Limited (First Defendant) Planning Permission for the:- 
(i)	Closure of part access road in Mount Hagen adjoining Section 12 Allotments 16 (The Plaintiff’s Allotment) and 26 (The First Defendant’s Allotment) and 14 and 15 (NBC’s Allotments); and
(ii)	Rezoning to commercial from public utility; and
(iii)	Consolidated to form one (1) Allotment with Section 12 Allotment 26 Mount Hagen (now renamed Section 12 Allotment 28 Mount Hagen);
(c)	The First Defendant its agents, servants and associates are restrained from dealing with or building any fence or structures on the part access road now zoned as public utility and adjoining, Allotments 14, 15, 16 and 26 Section 12 Mount Hagen...” 
 
9.	In support of this application, Makum relied on the affidavits of:

1.	Max Kombamung sworn on and filed on 16 March 2011;
2.	Max Kombamung sworn and filed on 1 April 2011;
3.	Matthew P. Tamutai sworn and filed on 1 April 2017.

10.	At the hearing, Makum only sought relief 2(c) of the notice of motion. 

11.	In Makum’s notice of motion filed on 9 May 2011, the principal order sought was:

“Pursuant to Order 8 Rule 50(1), the Plaintiff be granted leave to amend the Originating Summons as per Annexure “A” of the Affidavit in Support of Mr Tamutai filed in support of this application.” 
	
12.	In support of this application, Banning relied on the affidavit of Matthew P. Tamutai sworn on 6 May 2011 and filed on 9 May 2011.

ISSUES IN 0S 115 OF 2011

13.	The main issues that arise from the three applications are:

1.	Whether Makum’s application for leave to amend the originating process should be granted?
2.	Whether the proceedings should be dismissed under Order 12 Rule 40 of the National Court Rules?
3.	Whether Makum’s application for an injunction should be granted?

WHETHER MAKUM’S APPLICATION TO AMEND THE ORIGINATING PROCESS SHOULD BE GRANTED?

Submissions

14.	Banning submitted that the application should be refused on the basis that Makum has sought to amend the originating summons multiple times since commencing the proceedings. 

15.	Ms Doa for the second to seventh defendants did not make any submissions on this issue.

16.	Makum submitted that the amendments to the originating summons were necessary to; enable the Court to determine the real questions in controversy between the parties; the amendment will not cause real prejudice or injustice to the other parties; the application for such amendment was made bona fide and not mala fide; the other parties can be fairly compensated with costs for such amendment.      

REASONS FOR RULING

17.  Copies of the proposed further amended originating summons are annexed to the affidavits of Nickson Kiuk Magela and that of Matthew P. Tamutai sworn on 9 May 2011.  	

18.	The power of the Court to either grant or not to grant the leave sought by the plaintiff is derived from Order 8 Rule 50 of the National Court Rules. Order 8 Rule 50(1) provides that at any stage of the proceedings, the Court may grant leave to a party to make an amendment to any document in the proceedings either on application of a party or of its own motion in such manner as the Court thinks fit. Sub-rule (2) then provides that all necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, or of correcting any defect or error in any proceedings, or of avoiding multiplicity of proceedings.

19.	The Court’s power under this rule is discretionary and broad and in exercising that discretion, the Court has the duty to do so judicially and on proper principles, so that justice is done in the case even at the late stage of the proceedings: see New Guinea Limited v Thomason [1975] PNGLR 454; Komboro George v MVIT [1993] PNGLR 477.

20.	In The Papua Club Inc. v Nasaum Holdings Ltd (2002) 2273, Gavara-Nanu, J set out five considerations to be taken into account when deciding whether or not to grant leave to amend.  These are:  

1. 	Will the amendment enable the Court to determine the real question in controversy between the parties? 
2.	Will the amendment correct any defect or error in the proceedings?
3.	Will the amendment cause real prejudice or injustice to other party?
4. 	Is the application for such amendment made mala fide or bona fide?
5.	Can the other party be fairly compensated with costs for such amendment?

21.	Three other considerations were added to that list by Cannings, J in Michael Kewa v Elias M. Kombo (2004) N2688.  These are:

1.	Is the party applying prevented by its conduct or the manner in which the proceedings have been progressed from being permitted to amend its pleadings?
2.	Where do the interests of justice lie?
3.	Is the proposed amendment efficacious? That is, is it a proper amendment?   

22.	I now apply the considerations as follows:

(a)	Will the amendment enable the Court to determine the real question in controversy between the parties? Yes. 
(b)	Will the amendment correct any defect or error in the proceedings?  Not applicable.
(c)	Will the amendment cause real prejudice or injustice to other party? No.
(d)	Is the application for such amendment made mala fide or bona fide?  It is made bona fide.
(e)	Can the other party be fairly compensated with costs for such amendment? Yes.
(f)	Is the party applying prevented by its conduct or the manner in which the proceedings have been progressed from being permitted to amend its pleadings?  It is true that Makum has amended its originating summons multiple times before.  Order 8 Rule 50(1) does not restrict how many times a document may be amended.  It however specifies the purpose of making an amendment.  Case law has established that the conduct of a litigant must be considered so the number of times an amendment to a particular document has been made prior to the new application is a factor that can be considered in assessing a litigant’s conduct.  I am of the view that plaintiff’s prior conduct should not be held adversely against it as in my view it is not such as to be denied the amendment sought in the circumstances of the present case.
(g)	Where do the interests of justice lie?  The interests of justice lie in granting the application for the purpose of determining the real questions in controversy between the parties that arise in the proceedings.
(h)	Is the proposed amendment efficacious? That is, is it a proper amendment?  It is a proper amendment. 

23.	In the exercise of my discretion, I will grant the plaintiff’s application.  

WHETHER THE PROCEEDINGS SHOULD BE DISMISSED UNDER ORDER 12 RULE 40 OF THE NATIONAL COURT RULES?

Submissions

24.	It was submitted by Banning that Makum was challenging the decision of the National Physical Planning Board, a public body, so the proper procedure for mounting such a challenge would be by way of judicial review under Order 16 of the National Court Rules and not under Order 4 Rule 3 of the National Court Rules.    Hence, the proceedings should be dismissed for being an abuse of the process of the Court.

25.	Ms Doa for the second to seventh defendants supported Banning’s submission to dismiss the proceedings for being an abuse of process of the Court.   

26.	Makum submitted that it had an option whether or not to file judicial review proceedings under Order 16 Rule 1(1) or Rule 1(2) of the National Court Rules.  In the present case, Banning was only seeking declarations and injunctions so there was no need to file judicial review proceedings.

Reasons for ruling

27.	At the hearing Banning only pursued the ground under Order 12 Rule 40(1)(c), i.e., that the proceedings were an abuse of process of the Court. 

28.	There are conflicting decisions of the Supreme Court as to which is the correct procedure to be adopted in challenging decisions of public bodies where the relief sought do not specifically seek orders in the nature of prerogative writs.  The cases of Michael Gene v Hamidian Rad (1999) PNGLR 444  and Telikom PNG Ltd v ICCC and Digicel (2008) SC906 are proponents of the test that the substance and the language of the proposed relief must be considered to determine whether or not they seek orders in the nature of prerogative writs.  In National Executive Council and Luke Lucas v Public Employees Association (1993) PNGLR 264, the Supreme Court however said you only need to look at the relief sought. These cases however are in agreement that a litigant has a choice of procedure under Order 4 of the National Court Rules or by way of judicial review under Order 16.

29.	As I have briefly alluded to earlier, the dispute between the parties particularly between Banning and Makum concern the property.  The evidence before the Court is this.  Banning has constructed a multi-storey building on the property.  Banning was the proprietor of Allotment 26 Section 12 Mt. Hagen.  The property comprises what was formerly part of an access road between Allotments 14, 15, 16 and 26 Section 12 Mt. Hagen and allegedly by a decision of the Physical Planning Board dated 29 January 2010 rezoned from public utility to commercial, consolidated with Allotment 26 and renamed as Allotment 28 Section 12 Mt. Hagen.  This decision was made following Banning lodging an application for consolidation and rezoning of part of the access road behind Allotment 26 Section 12 Mt. Hagen including an application for planning permission.  A notice of intention to close a street was issued in relation to the subject access road. Banning put up a fence around the property.  Makum is the proprietor of Allotment 16 Section 12 Mt. Hagen which is located at the back of the property.  Makum asserts that the closure of the access road was contrary to the provisions of the Physical Planning Act and the Street Closing Act on the basis that there was no prior consultation with it as proprietor of an adjoining piece of land and there was lack of notice to the public including itself given it was a public road being closed.  Makum also claims that the closure of the access road has deprived it and its clients or customers access or a driveway to its property.   The proprietor of Allotments 14 and 15 Section 12 Mt. Hagen has taken no issue with steps taken by Banning.

30.	In order to appreciate the arguments advanced, it is useful to set out some of the relevant provisions of the Physical Planning Act and the Street Closing Act which I think may determine the dispute between the parties apart from other provisions of the Physical Planning Act and the Physical Planning Regulations which Makum relies on in the further amended originating summons.

31.	Section 77 of the Physical Planning Act sets out the purpose for which an application for Planning Permission is made and how such an application can be made.  Sub-section (4) of that provision relevantly states:

“Where an applicant is not the sole owner of land or an agent appointed by the sole owner, the applicant shall-

(a)	notify all of the owners that the application is being made; or
(b)	where it is not possible for good reason to notify an owner, publish in a newspaper circulating in the area in which the land is situated, a notice giving details of the application.”      

32.	My initial impression about this provision is that it concerns land owned by more than one person when notice is required to be given by an applicant to the other owners.  There is no reference to owners or proprietors of adjoining land.   

33.	Sections 2 to 5 of the Street Closing Act state:
	
“2. (Notice of Intention to Close)
Notwithstanding any other law, if in the opinion of the Minister it is necessary or desirable to close a street he may give notice in the National Gazette of the intention to close the street.

3. (Objections)
A person desiring to object to a proposed closure notified under Section 2 may lodge an objection with the Minister within 60 days of the publication of the notice.

4.	(Closure)
On or after the expiration of 60 days from the publication of a notice under Section 2, the proposed closure and any objections shall be considered by the Minister and the Minister may close any street the subject of the notice.

5.	(Title to land)
The land comprised in a street closed under this Act shall be deemed to be vested in the State.”

34.	The relief sought by Makum are declarations and injunctions.  It is permitted to elect to adopt the procedure under Order 4 over the judicial review procedure under Order 16 applying the test in National Executive Council and Luke Lucas v Public Employees Association.

35.	For these reasons, Banning’s application to dismiss the proceedings for an abuse of process premised on the contention that a wrong mode was adopted is refused.      

WHETHER MAKUM’S APPLICATION FOR AN INJUNCTION SHOULD BE GRANTED?

36.	Makum submitted that all considerations required to be satisfied before an application for an injunction is granted have been met.

37.	It submitted that there is a serious dispute as to whether due process was followed under the Physical Planning Act and the Street Closing Act when the purported decision by the National Physical Planning Board was made to close the access road, rezone the access road from public utility to commercial and the purported consolidation of the area covered by the access road with Allotment 26 Section 12 Mt. Hagen to form Allotment 28 Section 12 Mt. Hagen.

38.	It was submitted by Makum that the balance of convenience favoured it as Banning did not have any proprietary interest in the access road prior to the decision of the National Physical Planning Board and that the access road was vital to providing access and drive way to its customers and clients.

39.	Makum also submitted that damages was not the appropriate remedy in the circumstances.

40.	An undertaking as to damages was filed.

41.	Banning submitted that the application should be refused on the basis that:
1.	It had complied with all relevant provisions of the Physical Planning Act and the Street Closing Act including notice requirements on the closing of the access road.
2.	National Broadcasting Corporation, the proprietor of adjoining allotments gave its approval.     

42.	Ms Doa of counsel for the State parties submitted that all considerations required to be satisfied by an applicant before the grant of an application for an injunction must be met.

RELEVANT PRINCIPLES

43.	The grant of an interlocutory relief is an equitable remedy and it is a discretionary matter. The purpose of an interlocutory injunction is to preserve the status quo until the determination of the substantive action. That position was succinctly put in Robinson v National Airlines Commission [1983] PNGLR 476 where at p. 480, Andrew, J held:

“The purpose of an interlocutory injunction is to preserve the status quo until the hearing of the main action “where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo”, per Frost C.J. in Mt Hagen Airport Hotel Pty Ltd v Gibbs and Anor [1976] PNGLR. 316. No real principles can be laid down as to when they should or should not be granted except they are granted when “just or convenient” and what falls within that description must differ substantially from case to case. As Lord Denning M.R. said in Hubbard v Vosper [1972] 2 W.R.L. 389 at 396:
“In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of claim but also to the strength of the defence and then decide what is best to be done. Sometimes it is best to grant an injunction so as to maintain the status quo until the trial. At other times it is best not to impose a restraint upon the defendant but leave him free to go ahead… The remedy by interlocutory injunction is so useful that it should be kept flexible and discretionary. It must not be made the subject of strict rules.”

44.	The relevant principles governing applications for the grant of interim injunctions in this jurisdiction are well settled and these were restated and reaffirmed by the Supreme Court in Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853.  So in order for an injunction to be granted, it is incumbent upon an applicant to demonstrate that:

(a)	there is a serious question to be determined (either of law or fact) in the substantive proceedings;
(b)	the balance of convenience favours the grant or continuity of the injunction;
(c)	damages is not an appropriate remedy if the injunction is not granted;	
(d)	an undertaking as to damages has been given by the applicant.

APPLICATION OF THE PRINCIPLES TO THE PRESENT CASE
Is there a serious question to be determined (either of law or fact) in the substantive proceedings?

45.	There is no doubt that there is.  They arise from whether the decision of the National Physical Planning Board made on 29 January 2010 with regard to the application by Banning to close the access road and have it rezoned from public utility to commercial and to consolidate that part of the access road with Banning’s allotment contravened provisions of the Physical Planning Act and the Street Closing Act. 

Does the balance of convenience favour the grant of the injunction?

46.	No. The evidence shows that the National Physical Planning Board made a decision on 29 January 2010 in favour of Banning with regard to an application by Banning to close the access road under provisions of the Physical Planning Act and its Regulations and the Street Closing Act. That resulted in the rezoning of the access road from public utility to commercial and the subsequent consolidation with Allotment 26 Section 12 Mt. Hagen to become the new Allotment 28.  As to whether the decision made by the National Physical Planning Board on 29 January 2010 was right or wrong, is a matter for substantive determination. Makum does not have any proprietary interest in that part of the access road. On the other hand, Banning either has a proprietary or an equitable interest over that portion of land as a consequence of the decision of National Physical Planning Board. The balance of convenience therefore favours Banning. 

Is damages not an appropriate remedy if the injunction is not granted?

47.	Clearly, damages is not an appropriate remedy.

Has Makum provided an undertaking as to damages?

48.	Yes. It has.  Its value was not challenged. 

Conclusion

49.	Not all considerations have been considered in favour of Makum.  This particular application had no chance of success from the start for reasons I have given.  For these reasons and in the exercise of my discretion, the application for an injunction is refused.     

ORDER

50.	The formal orders of the Court are:

1.	Banning Trading Limited’s notice of motion filed on 24 February 2011 is struck out.
2.	Makum Trading Limited’s application to amend the originating summons by the further amended originating summons is granted.
3.	Banning Trading Limited’s application to dismiss the proceedings for being an abuse of the process of the Court is dismissed.
4.	Makum Trading Limited’s application for the grant of an injunction is refused.
5.	The parties shall bear their own costs. 
Ordered accordingly
______________________________________________________________
Nikiuma Lawyers	: Lawyers for Banning Trading Ltd			 
Tamutai Lawyers	: Lawyers for Makum Trading Ltd		
Solicitor General Lawyers: Lawyers for the State