Brigadier General Jerry Singirok MBE v National Executive Council, Attorney–General of Papua New Guinea, The Independent State of Papua New Guinea and Brigadier Leo Nuia OBE (1997) N1590

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 03 July 1997
• Court: National Court
• Citation: (1997) N1590
• Year: 1997
• Judgement Number: N1590

National Court: Sevua J

Judgment Delivered: 3 July 1997

N1590

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 435 OF 1997

BETWEEN: BRIGADIER GENERAL JERRY SINGIROK MBE

PLAINTIFF

AND: NATIONAL EXECUTIVE COUNCIL

FIRST DEFENDANT

AND: ATTORNEY GENERAL OF PAPUA NEW GUINEA

SECOND DEFENDANT

AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA

THIRD DEFENDANT

AND: BRIGADIER GENERAL LEO NUIA OBE

FOURTH DEFENDANT

Waigani

Sevua J

30 June 1997

3 July 1997

INJUNCTION — application for injunction to restrain defendants from removing plaintiff from house where plaintiff's entitlement to house ceased at time of revocation of appointment.

ADMINISTRATIVE LAW — contract of employment — plaintiff's appointment as Commander of PNG Defence Force revoked — substantive claim is for damages for unlawful/wrongful termination of contract — remedy in damages not injunction — injunction not available — injunction refused.

Facts

The plaintiff was the former Commander of the Papua New Guinea Defence Force. He was employed on a contract effective 16th November, 1995 till 16th November, 1999. Under the contract, the provision of accommodation was one of his entitlements. Following his direct involvement in what is commonly known as the Sandline crisis, the Governor General, on 17th March, 1997, terminated his contract upon advice from the National Executive Council. He continued to occupy the official Commander's residence called Flagstaff House at Murray Barracks. He then filed a writ of summons claiming inter alia, damages for unlawful/wrongful termination of his contract. Whilst the substantive action was still pending, he filed a notice of motion seeking an injunction to restrain the defendants from removing him from the Flagstaff House until he is provided alternative accommodation.

Held

1. Past military precedents where former Commanders have been permitted continued occupation of the official Commander's residence has no effect in law and is not binding on this Court.

2. The principles of law in relation to interloctory injunction are clear in this jurisdiction. These are established in Robinson -v- National Airline Commission and the American Cyanamid case. The plaintiff must show that he has a serious case to be tried, that is, he has a good arguable claim to the right he seeks to protect by the granting of an injunction.

3. As the plaintiff's claim is for damages for unlawful/wrongful termination of contract, his remedy in law is in damages, if the unlawful termination is proven.

4. The plaintiff's claim for alternative accommodation is neither a legal nor a equitable right which justifies the granting of an injunction. An injunction cannot be granted without any legal or equitable basis. The plaintiff therefore has not established that he has a legal or equitable right to be protected by injunction. Consequently, he must fail in his application.

Cases Cited

Papua New Guinea cases cited

Robinson -v- National Airline Commission [1983] PNGLR 476

Air Niugini -v- Elizabeth Talum [1992] PNGLR 296

Other cases cited

American Cyanamid Co -v- Ethicon Ltd [1975] AC 396

Counsel

M. Murray, for Plaintiff/Applicant

A. Iwais, for Defendants/Respondents

3 July 1997

SEVUA J: The plaintiff is the former Commander of the Papua New Guinea Defence Force and was terminated by the Governor General on advice of the first defendant on March 17, 1997 as a result of his involvement in what is commonly known as the 'Sandline Crisis'. His appointment as Commander was effected on 16th November, 1995 and was for a tenure of four years to 16th, November, 1999.

On 8th May, 1997, the plaintiff filed a writ of summons claiming, inter alia, damages for wrongful termination of his contract which is not the issue before me now. However, I highlight this at this juncture because the plaintiff's pleadings advert to various matters which in the main, are tantamount to a breach of contract, the remedy for which is damages, if the breach is proven.

On 13th June, 1997, the plaintiff filed a notice of motion seeking orders that:

1. Brigadier General Jerry Singirok MBE and his family remain at Flagstaff House at Murray Barracks until:

(a) alternative accommodation within the barracks is found; or

(b) suitable fully paid accommodation outside the barracks is located which is at least equal to conditions at Flagstaff House, with adequate provision for security.

2. Upon confirmation of a house, twenty eight days be allowed for removal to be effected.

3. Until such time as Order 1 is effected, the defendants, their agents, servants whatever be restrained from doing anything contrary to the orders herein.

On 26th June, 1997, when this application first came before Sheehan, J, ex parte, he ordered that no steps be taken to remove the plaintiff until Tuesday, 17th June, 1997 at 9:30 am. This interim order has been extended on a few occasions until today.

As I understand it, the crux of the plaintiff's case is based solely on public policy consideration because Mr Murray conceded and agreed with the authorities on the...