N9575
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 388 OF 2021

JOSEPH TONDOP – Acting Assistant Commissioner of Police,
Highlands Eastern End
Plaintiff

V

HODGES ETTE – Assistant Commissioner of Police,
Crimes Division
First Defendant

DAVID MANNING-
Commissioner of Police
Second Defendant

Mt. Hagen: Eliakim AJ
2021: 24th December
2022: 23rd February

PRACTICE AND PROCEDURE – Application for Interim injunctive and Stay orders- Interim orders granted ex parte to preserve status quo - Considerations of relevant principles – Change in status quo – Overall interest of justice and balance of convenience does not favour continuity of the interim orders - Interim orders uplifted.

Cases Cited

Gary McHardy v. Prosec Security and Communication Ltd trading as Protect Security [2000] PNGLR 279
Rimbink Pato v. Anthony Manjin & Ors (1999) SC622
Royal Thompson -v- Sylvester Kalaut [2011] N4265
Wartoto -v- State [2015] SC1411
Yakasa v O’Neil [2011] N4461

Counsel

Mr. H. Pora, for the Plaintiff
Mr. D. Kints, for the Defendant

RULING ON INTER PARTE HEARING

23rd February, 2022 
1.	ELIAKIM AJ: 	The plaintiff was granted the following ex parte interim injunctive and stay orders, on 24 December 2021, which returned today for inter partes hearing:

(a)	“Pursuant to O.4R.4 and 38(2)A and Rule 49(5)(ii) and O.12 of the NCR and s.155(4) of the Constitution, the Notice of Suspension dated 10 December 2021 suspending the Plaintiff which Notice was served on the Plaintiff on 20 December 2021 be stayed until 05 January 2022.
(b)	Pursuant to O.4R.4 and 38(2)A and Rule 49(5)(ii) and O.12 of the NCR and s.155(4) of the Constitution, the defendants and their successors be restrained from dealing adversely with the plaintiff in relation to the suspension and the allegations thereof until 05 January 2022.
(c)	Pursuant to O.4R.4 and 38(2)A and Rule 49(5)(ii) and O.12 of the NCR and s.155(4) of the Constitution, I order that the plaintiff continue in his position as the Acting Assistant Commissioner of Police, Highlands Eastern End until 05 January 2022.
(d)	……….
(e)	The plaintiff’s NOM filed 22/12/21 shall return to court for interparte hearing on 05 January 2022 at 9.30am”.

2.	The plaintiff now seeks continuity of these orders while the defendant vigorously opposes on the following grounds:

i.	Proceeding is prematurely filed as plaintiff was only suspended pending investigations and disciplinary charges, if any.
ii.	There is no serious question to be tried and damages is an adequate remedy, thus balance of convenience does not favour continuity of the restraining orders.
iii.	Proceedings and interim injunctive and stay orders serves no utility as a permanent appointment was made on 18 January 2022. 

Brief Facts
3.	The plaintiff is a commissioned officer with the rank of Chief Superintendent of the Royal Papua New Guinea Police Force. He has been a serving member since 1984.

4.	He was appointed on 27 September 2021 as acting Divisional Commander, Highlands Eastern End, pending a permanent appointment to that position.

5.	From 29/11/21 to 03/12/21, the Police Commissioner’s Conference was held in Port Moresby in which senior members of the Police Force attended, including the plaintiff.

6.	Following the conference, a confidential Information Paper to the NEC was leaked to the social media, which the defendants discovered had been uploaded from the plaintiff’s laptop.  

7.	On 20 December 2021, a Notice of Suspension was formally served on the plaintiff.
 
8.	His suspension on full pay for 21 days, was made pursuant to s.28, Part IV, Division 4 of the Police Act 1998 where the plaintiff was suspected of committing a Disciplinary Offence. 

9.	The allegations are: “It was alleged on 08 December 2021, being a high ranking officer in the Constabulary, did facilitate in preparing and posting on social media an Information Paper to the National Executive Council of the Independent State of Papua New Guinea, discrediting a management failure in the RPNGC describing as a threat to National Security which caused dissatisfaction at the executive management of the Royal PNG Constabulary”. 

(i)	Ex parte Hearing of Plaintiff’s application

10.	The plaintiff moved his application on 24 December 2021.  He relied on his affidavit filed 22/12/21 and an Affidavit of one Paul Amatio filed 22/12/21.

11.	He moved for an urgent stay of his suspension on the following grounds:

(i)	That this is a case of an exceptional circumstance in that the allegations being grounds for his suspension is an abuse as the allegations were false. He was suspended for the actions of another person, despite him informing the defendants that the real offender was Mr. Paul Amatio, who had himself sent a letter admitting to having in possession his laptop which he used in uploading the confidential document. 

In support of this ground, the plaintiff relied on the case of Thompson -v- Kalaut [2011] N4265 where the Court found that the criminal charge was based on false allegations. 

(ii)	Considering the lawlessness in the Highlands, there needs to be continuity and maintenance in security operations particularly at this Christmas holiday leading up to the national elections. Confidence in the Police Force and visibility of its command and control is therefore critical at this time.  Thus, this application is primarily to preserve the status quo.  

(iii)	Days before the plaintiff’s suspension, there was already a decision to transfer another senior officer from outside of the Highlands to act in the position of Divisional Commander Highlands Eastern End. This created confusion for the plaintiff and policemen working under his command as the plaintiff then becomes an unattached officer. At paragraph 53 of the plaintiff’s affidavit, he states “Even, in the transfer notice, I was not transferred to a new location or position but it leaves me unattached”.  Hence, the situation requires an urgent intervention to preserve the status quo and maintain command and control in the Highlands Eastern End Command.

12.	Considering the serious security issues in the Highlands Region and especially during the Christmas and new year period, it was an exceptional situation that public interest and policy dictated the grant of the interim stay of the plaintiff’s suspension. Thus, it was primarily to maintain status quo and to allow for continuity of security within the Highlands Eastern End.

(ii)	Inter parte Hearing of the Plaintiff’s application

13.	At the inter partes hearing, the plaintiff relied on his additional affidavit filed on 25 January 2022, while the defendants relied on David Manning, Commissioner of Police’s sworn affidavit filed 14 January 2022.

14.	The evidence was that the plaintiff had his substantive position which is Deputy Commander Highlands Eastern End Command (‘HREDC’). Secondly, his appointment as Divisional Commander was only on an acting basis until a permanent appointment is made. This was contained in the memo to him dated 27 September 2021 from the Deputy Commissioner of Police, Anton Billie.

15.	In line with the above memo, the Commissioner of Police accepted the recommendations from the Police Promotion Selection Board and made a permanent appointment to the Divisional Commander Highlands Eastern End on 18 January 2022.

16.	Counsel for the defendants submitted that not only should the interim stay be uplifted but that the entire proceeding should be dismissed on the basis that:

(i)	The proceeding was premature and an abuse of process, as the plaintiff was only suspended pending investigations and possible disciplinary charges;
(ii)	This proceeding served no utility at all as a permanent appointment to the position has been made.

17.	Mr. Pora, counsel for the plaintiff argued that his client had properly commenced this mode of proceeding as he was seeking orders in the nature of certiorari being his primary relief.

Preliminary Matters

18.	I remind myself that this is not a review of my earlier decision to grant the interim injunction and stay, but to determine its continuity taking into account relevant circumstances and principles, particularly whether or not the preservation of the status quo should be maintained.

19.	I am further reminded that this proceeding is not one of Judicial Review, but a general originating summons under Order 4 Rule 3(2) of the National Court Rules. 

20.	The court invokes its primary jurisdiction from Order 12 Rule 1 of the National Court Rules. Thus, jurisdiction is not an issue.

21.	The plaintiff’s counsel aggressively argued that under exceptional circumstances of this case, the civil court has the power to continue the interim injunctive and stay orders. It submitted that the court should adopt the same principles in the case of Thompson v Kalaut, [2011] N4265, and permanently stay any further dealings and investigation into the allegations against the plaintiff. 
22.	Before I venture into the principles of whether or not to continue the interim injunctive and stay orders, it is important that the court clearly demarcate a criminal process from an administrative process. 

Criminal Process

23.	A criminal prosecution is the act of carrying on a legal action in court, against a person accused of a crime.

24.	Thus, an investigation would have already been conducted with sufficient evidence to charge a person under the Criminal Code or any other statute providing for an act that is criminal in nature. 

25.	In the case of Royale Thompson, Thompson was criminally charged. The National Court permanently stayed the criminal prosecution on the basis that the actions of the prosecutor was a gross abuse of the court’s process as he had filed proceedings knowing that the facts were incorrect and false. In summary, it was held that the Court has jurisdiction to protect persons from the abuse of process of the criminal jurisdiction of the court and that the abuse must be an abuse of the whole function of the criminal jurisdiction and not some particular procedure.

26.	“Any exercise of the power must be approached with caution.  It must be quiet clear that the case is truly one of abuse of process and not one involving elements of oppression, illegality or abuse of authority in some way which falls short of establishing that process of the court has itself been improperly made use of”. (Thompson case supra)

27.	Similar to the Thomson case, the accused in the Wartoto case also sought the civil court’s intervention in the criminal prosecution against him. In the Wartoto -v- State [2015] PGSC 1, SC1411, the court however found that it was an abuse of the court’s process for him to resort to s.155(4) of the constitution at the National Court, to challenge the charges against him, when he had an earlier opportunity to apply for a stay at the District Court but he chose not to.

28.	‘It would be inappropriate, an abuse and an improper use of the process of the National Court for an accused to seek to invoke the Court’s civil jurisdiction to raise a criminal process, procedure or substantive issue, without first raising it and exhausting the avenues available at the appropriate levels below it.” (Wartoto -v- State)

Administrative Process

29.	In the context of administrative law, an enabling statute provides the powers and responsibilities of a government agency. In this case, it is the Police Act 1998.

30.	The employer’s authority to suspend a police officer on disciplinary grounds will therefore be contained in the Police Act 1998.

31.	As opposed to criminal prosecution, an employer in most cases, has a legal authority under a Contract of Employment or the enabling legislation, to suspend an employee for a fixed period, pending investigations into allegations prior to deciding whether or not to lay disciplinary charges. 

32.	The plaintiff in this case was suspended under section 28 of the Police Act 1998 which states: 

(1) Where– 
(a) a disciplinary offence or suspected disciplinary offence is such; or 
(b) the circumstances in which a disciplinary offence or suspected 
disciplinary offence are committed are such, 
that the member of the Force should not continue in the performance of his duty, the 
Commissioner may suspend the member from duty. 
(2) Suspension under Subsection (1) may be effected before, at the time of or 
after the laying of a charge, and may be lifted by the Commissioner. 
(3) Where a charge is not sustained, the suspension shall be lifted immediately 
on a finding to that effect.”

Present case
33.	There is uncontested evidence before me that the plaintiff’s suspension falls under the administrative process of the Police Force as opposed to being criminally charged.

34.	The plaintiff was suspended from official duty pending administrative investigations with possible disciplinary charges to follow as opposed to an officer suspended under s.32 of the Act where he/she has been charged with a criminal offence.
35.	Although the plaintiff does not deny that he owned the laptop bearing his name as the administrator, he strongly argues that the main offender being one Paul Amatio had admitted to uploading of the confidential information. Thus, the Commissioner of Police should not have exercised his right to suspended the plaintiff having received this information. This argument in my view is the plaintiff’s defence which will be considered by the disciplinary officer during its internal investigation.  

36.	The Police Act 1998 stipulates the various stages of discipline taken against its officers, whether it be a serious or minor offence. Section 23 of the Act provides the plaintiff an opportunity to respond to the allegations.  Section 24 allows for internal investigations to be undertaken and s.25 provides that a report will be furnished to the Commissioner of Police with a recommendation on whether or not charges are sustained and appropriate penalties to be imposed, if necessary.

37.	Part IV of the Act sets out the discipline process for all members of the Police Force in which the plaintiff is and will be given an opportunity to respond to the allegations. In the event that the disciplinary charges against the plaintiff are not sustained, then the suspension shall be lifted immediately, and the plaintiff reverts back to his substantive position.

Relevant Laws

38.	As the application before me is for continuity of both an interim stay and interim injunctive orders granted on 24 December 2021, the relevant principles and or law applicable are as follows: Firstly, for a stay application, the relevant principles as set out in the case Gary McHardy v. Prosec Security and Communication Ltd trading as Protect Security [2000] PNGLR 279, are:

(i)	Whether leave to appeal is required and whether it has been obtained;
(ii)	Whether there has been any delay in making the application;
(iii)	Possible hardship, inconvenience or prejudice to either party;
(iv)	The nature of the judgement sought to be stayed;
(v)	The financial ability of the applicant;
(vi)	Preliminary assessment about whether the applicant has an arguable case on the proposed appeal;
(vii)	Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure;
(viii)	The overall interest of justice;
(ix)	Balance of convenience;
(x)	Whether damages would be sufficient remedy.

39.	The supreme court held in that case, “The stipulation by the Court of the kind of factors and circumstances it may consider taking into account cannot be exhaustive.  They must necessarily vary from case to case and from time to time depending on different circumstances”.
  
40.	As for an interim injunction, the leading authority is the English case of American Cyanide Co. -v- Ethicon Ltd (1975) 1 A11 ER 594. That case has been followed and applied in PNG on numerous occasions.

41.	One of the earlier decisions of the National Court that adopted and restated the principles set out by the leading authority, is the case of Employees Federation of PNG -v- PNG Waterside Workers Union (1982) N393.

42.	The principles as restated by Kapi DCJ (as he then was) have been summarised by Injia, J (as he then was) in the case of AGK Pacific (NG) -v- William Brad Anderson Karsan Constructions (PNG) Ltd and Downer Constructions (PNG) Ltd (2000) N2062.  On page 3 of His Honour’s decision, His Honour stated:

“In essence, an applicant for interim injunction must satisfy two basic requirements:

1.	 That there is a serious question to be determined.

2.	That balance of convenience favours the grant of interim injunction in order to preserve status quo.”

43.	This was followed by Cannings J, in the case of Ewasse Landowners Association Inc. -v- Hargy Oil Palm Ltd (2005) N2878.  In that case, Cannings, J went further and held that:

“When dealing with applications for interim injunctions the Court should consider three main issues.  First, are there serious questions to be tried and does the plaintiff have an arguable case?  Secondly, does the balance of convenience favour granting the injunction?  Thirdly, is an injunction necessary to do justice in the circumstances of the case?”
44.	Having set out the principles and or law dealing with applications for stay and injunctive orders, I now turn to consider whether the Stay and Injunctive Orders issued on 24th December 2021 should continue or not. 

Injunctive Orders

45.	I start off with the injunctive orders. 

(i)	Does the applicant have an arguable case?

46.	In considering the mode of commencement of this proceeding, I find that the plaintiff may have an arguable case but am not convinced that, there is a likelihood of success.

47.	The plaintiff is highly concerned of his reputation being tarnished by the defendant’s decision to suspend him. There are however remedies available where the plaintiff is entitled to pursue such as initiating defamation proceedings or claiming compensation for damages to his reputation. Similar views are echoed by the Supreme court in the case of Rimbink Pato v. Anthony Manjin (1999) SC622.

48.	Furthermore, I remind myself that the plaintiff’s only claim of right or interest will be to his substantive position and not to a position that he was acting on.

49.	“An acting appointment may be revoked at any time, especially where there is no tenure attached to the acting appointment.” (Yakasa v. O’Neil [2011] N4461).

50.	The plaintiff submitted that the defendant’s decision to suspend him was an abuse of his powers and pre-meditated as he had already made a decision to transfer another officer to act in the Divisional Commander’s position and as such, would leave him unattached.  I find this argument baseless and of no merit for reasons that the plaintiff has a substantive position and was only acting in the Divisional Commander’s position.

(ii)	Does the balance of convenience favour the continuity of the injunctive orders? 
51.	In considering the balance of convenience, I take into account the Plaintiff’s current position. The evidence before me is that his substantive position is Deputy Commander Highlands Eastern End command and was only acting Commander at the time of his suspension. Secondly, public safety and interest at the time of the exparte application, compelled continuity of security operations to be maintained within the Highlands Eastern End particularly during the Christmas and New Year period.  

52.	Clearly, the status quo has changed. The interim injunction was issued to preserve the status quo then which in my view is now futile. In the circumstances, I am of the view that the balance of convenience no longer favours the continuity of the interim injunctive and stay orders.

(iii)	Is the continuation of the interim injunction necessary to do justice in the circumstances of the case?
53.	As a matter of discretion, it was in the interests of justice, in the interim, to restrain the defendants and their successors from dealing adversely with the plaintiff in relation to the suspension and the allegations thereof and also to stay the suspension notice until 05 January 2022. Thus, it was primarily to preserve the status quo then. 

54.	Unlike other countries, the military and police force in PNG are integrally involved in providing election security. Hence, public policy and overall interest of justice commands at this crucial time, the allowance for security forces to exercise their constitutional and administrative functions without any interference at the eve of the country’s national elections.  Given the change, which is beneficial to the plaintiff, the interim injunction is no longer necessary to preserve a status quo which no longer exists. Thus, to allow the injuction would not be in the interest of justice. 
Whether damages would be sufficient remedy?

55.	The plaintiff’s complaint relates to the suspension of a position he was acting in. If he succeeds, he would be adequately compensated for any loss sustained.  Thus, I find that damages will be an adequate remedy, in which case, the continuity of the injunction is unnecessary.

56.	For the reasons set out above, I refuse to allow the interim injunctive orders to continue.  

Stay Order

57.	Although there is a jurisprudential difference between an interlocutory injunction and a stay order, (see:Vincent Kaupa v Simon Poraituk (2008) SC955), for practical purposes in the present case, I am of the view that there is little difference between the two different orders being sought (see Ombudsman Commission v Gabriel Yer (2009) SC1011, Zachary Gelu v Sir Michael Somare MP (2008) N3526). Thus, I have, in determining whether I should continue to stay the suspension notice, taken into account the same considerations that I have taken into account in refusing the application for continuation of an interlocutory injunction and have reached the same conclusion and that is, a request for the continuation of the stay order should be refused as well.

 ORDERS

1.	The plaintiff’s application for both the interlocutory injunction and the stay order are refused.
2.	The interim injunctive and the stay orders granted on 24 December 2021 are immediately uplifted.
3.	The plaintiff shall pay the defendant’s costs of this interlocutory proceeding.
4.	Matter is adjourned to 15 March 2022 for directions.
5.	Time shall be abridged to time of settlement to take place forthwith.

________________________________________________________________ 
Henry Pora Lawyers: Lawyers for the Plaintiff
Jemma Lawyers: 	Lawyers for the Defendants