N10222

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 95 OF 2023

BETWEEN:

GDFC (PNG) LIMITED
Plaintiff

AND:
PAULINE BAYANGO
Defendant

Goroka: Mugugia, AJ 

2023: 2nd May

PRACTICE AND PROCEDURE – Plaintiff’s motion for injunctive order against the Defendant – Considerations – Are there serious questions to be tried? – Has the Plaintiff given an undertaking as to damages? – If the injunctive order is not granted, would damages be an inadequate remedy? - Does the balance of convenience favour the granting of the injunctive order? – Exercise of discretion – Injunctive order granted.  

Case Cited:
Mauga Logging Company Pty. Ltd. v. South Pacific Oil Palm Development Pty. Ltd. [1977] PNGLR 80

Counsel:
Mr M. Kambao, for the Plaintiff/Applicant  
No appearance for the Defendant 

RULING 
2nd May, 2023 
1. MUGUGIA, AJ: The Plaintiff is before this Court with an urgent interlocutory motion filed on 1st May 2023, seeking an injunctive order pursuant to Section 155(4) of the Constitution to restrain the Defendant, her relatives, family members, agents and servants from coming closer to the property described as Portion 317, Goroka, Eastern Highlands Province or anywhere within and outside Goroka Town, Eastern Highlands Province, and to restrain them from disturbing the peaceful occupation of the property by any of the Plaintiff’s officers, agents and staff until the Court hearing and determination of the substantive proceeding. 
     
DISPENSATION OF SERVICE 

2. In its motion, the Plaintiff sought as its first order, an order for dispensation of service of the documents filed. I considered the urgency of the matter. The Plaintiff demonstrated the urgency of the matter. I was satisfied with the reasons given to dispense with the requirement for service. I therefore proceeded to hear the Plaintiff’s application for the injunctive order.  The hearing was ex parte. 

ISSUE  

3. Whether the Plaintiff’s application satisfies all of the requirements for a grant of the injunctive order. 

PLAINTIFF’S EVIDENCE 

4. In making the application for the injunctive order, reliance was placed on the Affidavit of Lu Xiaoshe filed on 1st May 2023, Affidavit of Chen Bo filed on 1st May 2023 (Document No. 4), Affidavit of Chen Bo filed on 1st May 2023 (Document No. 8), and Affidavit of Michael Kambao filed on 2nd May 2023. 

PLAINTIFF’S SUBMISSIONS

5. Mr Kambao relied on his Submissions filed on 1st May 2023. These were his submissions:

Is there a serious question to be tried?

6. It is submitted that the Plaintiff/Applicant has a serious question to be heard and determined by this Court in respect to the Defendant’s unnecessary and unlawful entry of the premises without permission. Such unlawful behavior of the Defendant has to be put to an end, as there is no right in law or equity for the Defendant to behave in that manner. The Court is required to make a finding of fact in this case as the Plaintiff is the registered proprietor of the property. 

Balance of convenience 

7. It is submitted that the balance of convenience favors the grant of the application in order to restrain the Defendant and her relatives from peaceful occupation and enjoyment of the property from any form of disturbance pending the Court hearing and determination of the substantive matter. 

Damages as adequate remedy

8. It is submitted that the Defendant would not suffer any damages. She did not suffer any damages previously. The application when granted would not cause any inconvenience or prejudice to the Defendant in any manner or way but the Plaintiff gives an undertaking so as to avoid any unforeseeable event which might be seen as dangerous.
 
Undertaking as to Damages

9. The Plaintiff filed an Undertaking as to Damages on 1st May 2023. 

DELIBERATION 

10. In Mauga Logging Company Pty. Ltd. v. South Pacific Oil Palm Development Pty. Ltd. [1977] PNGLR 80, Frost CJ held that if an application for an interim injunction did not meet the conventional ‘tests’ in common law or equity which form part of the underlying law, recourse could be had to Section 155(4) of the Constitution which states:

“Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of the particular case.” 

11. Injunctions are equitable remedies available at the discretion of the Court.

12. To determine the issue, the following questions should first be considered and determined:

•	Are there serious questions to be tried?
•	Has the Plaintiff given an undertaking as to damages?
•	If the interim orders are not granted, would damages be an inadequate remedy?
•	Does the balance of convenience favour the granting of the interim orders?

13. The Plaintiff filed its Originating Summons on 1st May 2023, seeking the following declarations:

“1. A declaration that the Plaintiff is the registered proprietor (owner) of the land described as Portion 317 Milinch Goroka, Eastern Highlands Province. 
2. A declaration that the National Court on 9th August 2022, dismissed summarily WS No. 425 of 2021, Pauline Bayango v. Guangdong Construction Ltd. 
14. Injunctive orders are sought as consequential relief. 
Are there serious questions to be tried? YES 

15. I have considered the originating process and the Plaintiff’s affidavits. The Plaintiff’s evidence clearly show serious allegations against the Defendant. The evidence is supported with documentations which support the Plaintiff’s claim. I find that the Plaintiff has established that there are serious questions to be tried concerning the proprietorship of the subject land.  

Has the Plaintiff given an Undertaking as to Damages? YES

16. The Plaintiff filed an Undertaking as to Damages on 1st May 2023. 

If the interim orders are not granted, would damages be an inadequate remedy? YES

17. The Plaintiff is seeking declarations. This is not a monetary claim. If the Plaintiff succeeds at the trial, damages would not be an adequate remedy. It is appropriate to grant the interim orders sought by the Plaintiff. 
18. The substantive relief sought are declaratory orders. As such, damages would not be an adequate remedy. 

Does the balance of convenience favour the granting of the interim orders? YES

19. If the injunctive order is not made, the Defendant or other people known to her might disturb the Plaintiff from peaceful occupation and enjoyment of the subject land. On the other hand, if the injunctive order is made, the Plaintiff will continue to occupy and enjoy the subject land. The status quo will be maintained. 

20. There is a need to preserve the property concerned, pending the final determination of the matter or until further orders of the Court. The best thing to do on an interim basis is to grant the injunctive order sought by the Plaintiff. I find that the balance of convenience lies in favour of the Plaintiff. 

Interest of justice

21. The interest of justice requires the maintenance of the status quo. The interests of justice lie in the Plaintiff’s favour. 

CONCLUSION

22. Pursuant to Order 12, Rule 1 of the National Court Rules, the Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgement or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating summons.

23. The Plaintiff’s application has satisfied all of the requirements for a grant of the injunctive order sought. I am convinced that I should exercise my discretion to grant the injunctive order sought to maintain the status quo. The interests of justice require me to do so. In the exercise of my discretion, I will grant the injunctive order sought by the Plaintiff. 

COURT ORDERS

24. I make the following orders:

1. The requirement of service of the motion pursuant to Order 4, Rule 49(11)(1) of the National Court Rules, and the requirement for service of the documents filed in this proceedings are dispensed with. 
2. Pursuant to Order 12, Rule 1 of the National Court Rules, and Section 155(4) of the Constitution, the Defendant, her relatives, family members, agents and servants are restrained from coming closer to the property described as Portion 317, Goroka, Eastern Highlands Province or anywhere within and outside Goroka Town, Eastern Highlands Province until the Court hearing and determination of the substantive proceeding. 
3. Pursuant to Order 12, Rule 1 of the National Court Rules, and Section 155(4) of the Constitution, the Defendant, her relatives, family members, agents and servants are restrained from disturbing the peaceful occupation of the property described as Portion 317, Goroka, Eastern Highlands Province by any of the Plaintiff’s officers, agents and staff until the Court hearing and determination of the substantive proceeding. 
4. This Order, the Originating Process, Motion, Supporting Affidavit, Undertaking as to Damages and other documents filed in the proceedings shall be served on the Defendant by 8th May 2023. 
5. An affidavit of service of the documents referred to above shall be filed. 
6. The interim orders are returnable on 23rd May 2023 at 1:30pm for hearing inter-partes.   
7. Time for entry of these orders is abridged to the date and time of settlement of these orders by the Registrar which shall take place forthwith.

Ruling and Orders accordingly. 
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Strotesic Legal Services: Lawyers for the Paintiff/Applicant