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Mairi v Tololo [1976] PNGLR 59 (25 February 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 59 - Norah Mairi v Alkan Tololo 

[1976] PNGLR 59

N26

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

NORAH MAIRI (AN INFANT BY HER NEXT FRIEND MAIRI-MAIRI)

V

ALKAN TOLOLO AS SECRETARY FOR EDUCATION AND CHAIRMAN OF THE NATIONAL EDUCATION BOARD

FIRST DEFENDANT

THE NATIONAL EDUCATION BOARD

SECOND DEFENDANT

ROSS FUREY DEVERE AS CHAIRMAN OF THE BOARD OF GOVERNORS, PT. MORESBY HIGH SCHOOL

THIRD DEFENDANT

LLOYD WILLINGTON

FOURTH DEFENDANT

(NO.1)

Waigani

Frost CJ

24-25 February 1976

PRACTICE AND PROCEDURE - Supreme Court of Justice - Interim order by single judge to prevent prejudice - Principles applicable analogous to those on interlocutory orders - Serious question to be tried - Balance of convenience - Particular circumstances involving application to restrain charging of fees in multi-racial schools - Discretionary nature of power - Supreme Court Act 1975, s. 6 (1) (b)[lxxi]¹.

Where on a notice of motion for interlocutory orders restraining the defendants from imposing or collecting a fee called an economic fee of K400 per year charged to parents of pupils attending multi-racial schools, or from instituting a separate curriculum for students based on the non-payment of the fee, an order was made that the case be reserved for the hearing of the Supreme Court under s. 5[lxxii]2 of the Supreme Court Act 1975.

Held

(1)      The power to make an interim order under s. 6(1)(b) of the Supreme Court Act 1965, to prevent prejudice to the claims of the parties, could be invoked.

(2)      The principles upon which interlocutory injunctions are granted are by analogy applicable as a useful guide to the exercise of the power to make interim orders under s. 6(1)(b) of the Supreme Court Act 1975, although they are not to be applied strictly in every case.

(3)      Those principles require (a) that the court must first be satisfied that there is a serious question to be tried; (b) consideration of whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought, and (c) the power being discretionary, adverting to the principles upon which the balance of convenience may be determined (including preservation of the status quo and any undertaking as to damages that may be appropriate).

American Cyanamid Co. v. Ethicon Ltd.[1975] UKHL 1; , [1975] A.C. 396 and Fellowes & Son v. Fisher, [1975] 2 All E.R. 829, C.A. referred to.

(4)      Applying the principles, (a) the claim (involving interalia construction of s. 19(1) and s. 96 of the Education (Papua New Guinea) Act 1970) did raise a serious question to be tried; (b) the disadvantages to both sides being very general, the balance of convenience was evenly balanced and (c) neither side being compensable by an award of damages the appropriate course was to preserve the status quo.

(5)      The final decision involving a question of urgent national importance and the practicality of the National Education Board continuing multi-racial schools in the present way, having regard to the financial resources available to the Government, there ought to be a speedy trial.

Notice of Motion

This was a notice of motion seeking interlocutory orders in the National Court, restraining the defendants from imposing or collecting a fee, called an economic fee of K400 per year charged to parents of pupils attending multi-racial schools, or from instituting a separate curriculum for students based on non-payment of the fee. During argument, counsel for the plaintiff sought an order, which was not opposed that the case be reserved for the hearing of the Supreme Court under s. 5 of the Supreme Court Act 1975, and the order was made accordingly. The issue then became one of the making of an interim order under s. 6 (1) (b) of the Supreme Court Act 1975 to prevent prejudice to the claims of the parties.

Counsel

NH Pratt and RG Day for the plaintiff

JA Ross for the first, second and fourth defendants

JA Griffin for the third defendant

Cur. adv. vult.

26 February 1976

FROST CJ:  The infant plaintiff is a student at the Port Moresby High School enrolled for this year in form 2. The curriculum taught at the school, which is called a multiracial school, was officially, until last year, a curriculum based on Australian standards and one common to all students at the school, both national and non-national. In fact it has been continued at the school this year, but apparently in contravention, as it will appear, of departmental directions. The non-National students come from the families of expatriates who are employed in the Government service, private enterprise, and the diplomatic or consular missions to this country. Of the 561 students, 151 are Papua New Guineans who are required to be fluent in English and with a home background appropriate for classes taught in English.

As appears from the annexures to the affidavit filed on behalf of the plaintiff, the cost of providing these multiracial schools is comparatively high because Australian teachers, who are amongst the most highly paid, are required, and also because of the lower ratio of pupils to teacher. To enable the education system to be maintained and these higher costs to be absorbed, in the latter part of last year the Government decided on a new financial policy under which the multiracial schools were to be treated as National institutions staffed directly through the National Education Board; and a new fee called an “economic fee” of K400 per year was to be charged the parents.

By a resolution of the Board, the function of which is broadly to advise the Government upon all aspects of the operation of the education system, the Board resolved, as appears from a memorandum dated 11th November, 1975:

“a.      it could not further reduce any of the facilities it has already approved for Papua New Guinea Curriculum Schools in the National Education System for 1976;

b.       because of budget requirements and staff planning based on the budget, it is impossible to increase the staffing budget for multiracial schools beyond what has already been planned for 1976;

c.       the economic fee of K400 per pupil in multiracial schools as approved by the Executive Council, is still necessary;

d.       since the Government cannot collect the fee directly, the Board now must issue instructions for this to be done as per s. 19 (1) (i) of the Education Act.”

But the children of expatriates employed by Government Departments were to be exempt having regard to the Government’s need to recruit such employees. The Board then proceeded to direct governing bodies of multiracial schools to adopt one of two methods of collecting the economic fee. The first option was for governing bodies to collect an economic fee of K400 per pupil and to pay it into a single National trust account to be set up for the purpose, thus enabling the Government to pay all teachers at their school full overseas salary.

The alternative option to charge a composite fee up to a maximum of K500 was also provided for, but it appears that it is not relevant to the case of the Port Moresby High School. It is sufficient to say that the composite fee was to comprise the economic fee and also a fee fixed by and ordinarily paid to the Board of Management, and used as an operating grant to purchase school materials, pay ancillary staff, and for general operational expenses. Each governing body was directed by the National Education Board to advise by 30th November as to the option it intended to adopt, but at the beginning of the current school year the governors of the Port Moresby High School had failed to comply with the Board’s direction.

The Department, or it may have been the National Education Board, thereupon instructed the Board of Governors by letter dated 11th February, 1976, to divide the school into two curricula, namely a common curriculum for all fee-paying students and exempt “expatriate” students, and also a National curriculum for all national students who did not pay the K400 fee. The Board of Governors accepted this instruction in a decision which thus falls within the first option and was to be implemented as from 1st March, 1976.

The plaintiff’s father is opposed to her entering the National curriculum stream, and does not intend to pay the economic fee, for the imposition of which he asserts there is no lawful authority. Accordingly this action has been brought for declarations that the imposition and collection of the fee and the separation of students into two streams based on the payment of a fee is unlawful, and appropriate injunctions are also sought.

The applications now before the Court under the notice of motion are for interlocutory injunctions restraining the defendants from imposing or collecting the fee or instituting a separate curriculum based on the non-payment of the fee.

During the argument however Mr. Pratt, for the plaintiff, sought an order, which was not opposed, that the case be reserved for the hearing of the Supreme Court under s. 5 of the Supreme Court Act, and an order was made accordingly. This order will also meet the possibility of a question arising during the hearing relating to the application of s. 209 (1)[lxxiii]3 of the Constitution upon which as a constitutional question the Supreme Court has original jurisdiction to the exclusion of this Court. (The Constitution, s. 18 (1).)

Another effect of this order was to enable Mr. Pratt to base his present claim for the relief sought upon the jurisdiction of a judge where an appeal is pending before the Supreme Court to make an interim order to prevent prejudice to the claims of the parties. (Supreme Court Act, ss. 1 and 6 (1) (b).)

Mr. Pratt at first argued that the principles upon which such interim orders should be made were identical with those applicable to the grant of interlocutory injunctions. He relied particularly upon the recent decisions of American Cyanamid Co. v. Ethicon Ltd.[lxxiv]⁴ and also Fellowes & Son v. Fisher[lxxv]⁵.

But it is significant that the power conferred upon the Supreme Court makes no reference in terms to that established form of proceeding. By analogy, however, I would hold that the principles upon which interlocutory injunctions are granted are applicable as a useful guide for the exercise of the judge’s power to make interim orders, although those principles are not to be applied strictly. For example, the Act does not import the necessity, in my opinion, for the judge to require in every case an undertaking as to damages.

The rules laid down by Lord Diplock in American Cyanamid Co. v. Ethicon Ltd.[lxxvi]⁶ are that the court must first be satisfied that there is a serious question to be tried, and should then go on and consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought. As in that type of case the basis of the statutory jurisdiction to make interim orders is, in my opinion, discretionary, so that the further principles upon which the balance of convenience may be determined referred to by the Court of Appeal in Fellowes & Son v. Fisher[lxxvii]⁷ may also be adverted to under s. 6(1) (b).

Mr. Pratt particularly relied upon the rule laid down by Lord Diplock that “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”[lxxviii]⁸.

The question whether in this case there is a serious question to be tried depends on the construction of s. 96 of the Education (Papua New Guinea) Act 1970, and incidentally also of s. 19 (1) (i). Mr. Ross’ submission in relation to s. 19 (1) (i)[lxxix]9 was that the specific direction of the National Education Board to the governing body of the school as to the fee to be charged fell within the power of determined limits within which the fee could be charged in the school under that section. This point is not crucial to the issue. He did not seek to justify the imposition of the fee under any provision other than s. 96, which is in the following terms:

“96.    Subject to compliance with the requirements of any other law of Papua New Guinea and of its constitution, and to any directions of the education agency, the governing body of a school, vocational centre or college may raise funds and expend them for the benefit of the school, centre or college.”

Mr. Pratt submitted that the power conferred by that section was upon a proper construction of the whole Act restricted to the raising of funds for purposes which, in effect, are covered by the Board of Management fees in relation to the needs of the particular school. The raising of funds for the payment of teachers’ salaries, which is the purpose of the economic fee, he submits is outside the scope of power conferred by s. 96. In support of this argument reference was made to s. 18 of the Teaching Service (Auxiliary Members) Act 1973 in which it is provided that it is the Government which is responsible for the payment of salaries and allowances of auxiliary members within the meaning of the Act, a term which includes all the overseas teachers employed in the multiracial schools. The method adopted by the Port Moresby High School for raising the economic fee which was to be paid into a trust account, it was contended, showed that the fee was outside the operation of s. 96, for it thus became available as Government finance generally including the payment of teachers’ salaries.

Mr. Pratt also relied on Attorney-General v. Wilts United Dairies Ltd.[lxxx]¹⁰, and on appeal in the House of Lords[lxxxi]¹¹, Bowles v. Bank of England[lxxxii]¹², T. and J. Brocklebank, Ltd. v. The King[lxxxiii]¹³, and Cam and Sons Pty. Ltd. v. Ramsay[lxxxiv]¹⁴. These authorities, which are based on the provision in the Bill of Rights of England from which s. 209 (1) of the Constitution is derived, were cited for the proposition that in the application of s. 209 (1) clear words are required to constitute a legal authorization by Parliament for the imposition of compulsory payments to be made to the State.

The argument for the defendants is that s. 96 is general in its terms and there is no room for the implication of any limitation upon the nature of the purposes for which a governing body may raise funds for the benefit of the school concerned.

On the whole, without adjudicating upon the merits of the case, I consider that the claim does raise a serious question to be tried. Upon the balance of convenience there is to be weighed the disadvantage to the infant plaintiff in being compelled to follow the new curriculum and then, if her case succeeds, having her course changed back to the familiar Australian curriculum; and the great difficulties which the defendants will have encountered, if their case succeeds in the trial, in the financing and management of the education system for the period pending the trial, by the loss of the additional fees and the delay in introducing the dual curriculum.

Having regard to the very general nature of these disadvantages on both sides, neither it seems to me can be compensated by an award of damages, and these factors appear to me to be evenly balanced.

The appropriate course in these circumstances in my opinion is for this Court to preserve the status quo or the present position pending the hearing of the action. The present position is the factual one of the single curriculum, although as between the National Education Board and the governing body the Board claims that the latter was at fault in not instituting earlier the new system.

In the circumstances of this case I do not consider it necessary to go into any of the other possible factors of convenience which are referred to in Fellowes & Son v. Fisher[lxxxv]¹⁵. I propose therefore to grant the relief sought.

There is another matter to which I should refer. The final decision in this case undoubtedly involves a question of urgent national importance and the practicality of the National Education Board continuing multiracial schools in the present way, having regard to the financial resources available to the Government.

Accordingly there is a strong case for a speedy trial which, by consent of the parties, I fix for 5th April, 1976.

ORDER

That the defendants and each of them their servants or agents be restrained until the trial of this action or further order from imposing or collecting an economic fee of K400 or any other amount from the plaintiff or her parents or from separating the students at the Port Moresby High School into an Australian curriculum and a National curriculum based upon the payment or non-payment of an economic fee of K400 or any other sum.

Solicitor for the plaintiff: N. H. Pratt, Acting Public Solicitor.

Solicitor for the first and second defendants: B. W. Kidu, State Solicitor.

Solicitors for the third defendant: McCubbery Train Love and Thomas.

Solicitor for the fourth defendant: B. W. Kidu, State Solicitor.

[lxxi]Section 6(1)(b) of the Supreme Court Act 1975, provides that where an appeal is pending before the Supreme Court an interim order to prevent prejudice to the claims of the parties may be made by a judge and s. 6(2) thereof provides that such an order shall be deemed to be an order of the Supreme Court.

[lxxii]Section 5 of the Supreme Court Act, 1975 provides:

Cases or points of law reserved for Supreme Court.

(1)        A Judge or Judges of the National Court sitting in the exercise of any jurisdiction, other than criminal, may reserve any case or any point in a case for the consideration of the Supreme Court, or may request any case or point in a case to be argued before the Supreme Court, and the Supreme Court may hear and determine any such case or point so reserved or directed to be argued.

(2)        Except where the contrary intention expressly appears in a law, the powers conferred by subsection (1) may be exercised in relation to any appeal or matter whatsoever which comes before a Judge or the National Court under any law by which a Judge of that Court is designated as the Judge, Court, arbitrator or person appointed to hear and determine the appeal or matter, notwithstanding that the determination of the Judge or of the Court is expressed to be final or without appeal.

[lxxiii]209            Parliamentary Responsibility.

(1)        Notwithstanding anything in this Constitution, the raising and expenditure of finance by the National Government, including the imposition of taxation and the raising of loans, is subject to authorization and control by the Parliament, and shall be regulated by an Act of the Parliament.

[lxxiv][1975] A.C. 396.

[lxxv] [1975] 2 All E.R. 829, C.A.

[lxxvi][1975] A.C. 396.

[lxxvii] [1975] 2 All E.R. 829, C.A.

[lxxviii][1975] UKHL 1; [1975] A.C. 396 at 408.

[lxxix]19(1)          Subject to this Act, the functions of the National Education Board are —

...

(i)         subject to such conditions and limitations as are laid down by the Government of Papua New Guinea, to determine the limits within which and the conditions subject to which fees may be charged in schools;

[lxxx] (1921) 37 T.L.R. 884 per Scrutton L.J.

[lxxxi](1922) 38 T.L.R. 781.

[lxxxii][1913] 1 Ch. 57.

[lxxxiii][1924] 1 K.B. 647.

[lxxxiv][1960] HCA 82; (1960) 104 C.L.R. 247, at p. 257.

[lxxxv] [1975] 2 All E.R. 829, C.A.