Paul Paraka Trading as Paul Paraka Lawyers v Eastern Highlands Provincial Government (2005) SC809

• Jurisdiction: Papua New Guinea
• Judge: Sakora J, Sevua J, Lenalia J
• Judgment Date: 08 November 2005
• Citation: (2005) SC809
• Docket Number: SCA 92 of 2002
• Court: Supreme Court
• Year: 2005
• Judgement Number: SC809

Full Title: SCA 92 of 2002; Paul Paraka Trading as Paul Paraka Lawyers v Eastern Highlands Provincial Government (2005) SC809

Supreme Court: Sakora J, Sevua J, Lenalia J

Judgment Delivered: 8 November 2005

LAWYERS FOR THE APPELLANT : STEVEN LAWYERS

LAWYERS FOR THE RESPONDENTS : SOLICITOR GENERAL

PAPUA NEW GUINEA

[Supreme Court of Justice]

SCA 92 of 2002

BETWEEN

PAUL PARAKA trading as PAUL PARAKA

LAWYERS

Appellant

AND

EASTERN HIGHLANDS PROVINCIAL GOVERNMENT

Respondent

Waigani : Sakora, Sevua & Lenalia, JJ.

2004 : 1 July

&

2005 : 8 November

PRACTICE and PROCEDURE – Notice of Motion – Motions claiming orders not pleaded in originating process – Whether parties entitled to relief not pleaded in statement of claim.

PRACTICE and PROCEDURE – Mareva Injunction - Basis of – Conditions or requirements for grant – Whether respondent had satisfied these conditions – Relevant principles – Assets within jurisdiction – Evidence of dissipation of assets.

Cases cited in judgment.

JT Stratford & Sons Limited v. Lindley [1964] 3 All ER 102

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

Employers Federation of Papua New Guinea v. Papua New Guinea Waterside Workers & Seamens Union and Lawrence Titimur & Ors, (1983) unreported, N.393, 11 October 1993

Mareva Compania Naviera SA v. International Bulkcarriers SA [1975] 2 Lloyds Rep 509; [1980] 1 All ER 213

Third Chandris Shipping Corp v. Unimarine SA [1979] QB 645

Riley McKay Pty Ltd v. McKay [1982] 1NSWLR 264

Jackson Sterling Industries Pty Ltd (1987) 61 ALJR 332

Mt. Uriwaka Enterprises Pty Ltd v. Bernard Baxter & Ors [1988] PNGLR 244

Ume More v. UPNG [1985] PNGLR 40

Mussau Timber Development Pty Ltd v. Santee Mangis & Ors [1994] PNGLR 1

Gobe Hongu Ltd v. National Executive Council & Ors, (unreported) N.1920, 8 June 1999

PNGBC v. Jeff Tole, unreported, SC 690, 27 September 2002.

Held

1. There was no legal basis for granting the injunction sought as there was no evidence of any assets of the appellant being dissipated by removal out of the jurisdictions or dealing with them in any way to defeat a judgment or order.

2. It is trite law that a party who has not pleaded a relief in his statement of claim is not entitled to it.

3. Appeal upheld and the orders of the National Court of 23 October 2003 quashed.

4. Costs follow the event.

H. Nii with N. Lame for Appellant

G. Poole with C. Jaminan for Respondent

8 November 2005

BY THE COURT: The appellant appeals against the decision of the National Court constituted by Kandakasi, J on 23 November 2002 at Waigani.

The Court is unable to locate a sealed copy of the order, the subject of this appeal, however at page 178 of the appeal book, we note that the trial Judge said the following:-

“orders in terms of notice of motion paragraphs 2 (a) and (b), 3 (a) and (b), 4 (a), (b) and (c). The rest of the orders sought are adjourned sine die. Defendant shall be at liberty to apply for variation or set aside, (sic) lifting of the orders on three days notice.”

A perusal of file WS 1104 of 2002 revealed that the order taken out by the plaintiff, now respondent, has also not been sealed. That may have been due to the stay order issued by the Supreme Court on 25 October 2002. Be that as it may, it is the responsibility of the respondent’s counsel to file the order, have it sealed and served on the other side. This Court cannot continue to remind lawyers of their responsibilities in respect of simple and basic requirements.

The notice of motion at pages 18 – 20 of the appeal book reveals that the orders granted, which we alluded to above, are in these terms:

2. That until trial or further order:-

(a) an injunction issue restraining the first defendant, whether by himself, his officers, servants, workers or agents or howsoever otherwise an (sic) everyone of them from removing disposing out of the jurisdiction or from otherwise dealing with in any manner other than to Governor or Administrator of the plaintiff only, whatsoever any assets belonging to him, whether sole or jointly with any other person or corporation including (but not limited to) the following assets, up to a value of K2 million :-

(i) any monies standing to the credit of the first defendant, or in any accounts for which the first defendant has operating authority in any bank or other deposit taking institution within Papua New Guinea; and

(a) an order required (sic) the first defendant to file and serve on the lawyers for the plaintiff within three (3) days from the date of this order made herein, an affidavit or affirmation.

(i) disclosing to the best of his knowledge, information and belief, the

first defendant has in his name or as trustee or to his name any, and if so, what monies he has received from the Independent State of Papua New Guinea in respect of the Grant.

(ii) specifying all the transactions conducted by him in respect of the monies referred to in paragraph (a) (ii) hereof, annexing or exhibiting any documents concerning those transactions including (without limiting the generality of the foregoing) the following document :-

(a) any bank statements or statements of account in custody possession or control of the first defendant including but not limited to, settlement statements, cheques or other records in connection with that money or in which the first defendant has an interest.

(ii) settlement statements, disbursement authorities or other records in connection with the receipt of money from the Independent State of Papua New Guinea in respect of the Grant.

3. That First Defendant:-

(a) deposit with the Registrar of the National Court Waigani, all of the books, records, journals and trust records, (as defined in Section 1 and Section 6 of the Trust Account Regulations (1990) within 24 hours of the making of this order.

(b) deposit with the Registrar, National Court all moneys held on trust by the first defendant for the plaintiff within 24 hours of making this order.

4. A copy of this Order to be served on the following:-

(a) Australia and New Zealand Banking Group (PNG) Limited;

(b) Bank of South Pacific Limited;

(c) Westpac Bank (PNG) Limited.

The appellant has stated several grounds of appeal, but for our own purpose, it is not really necessary to cite all those grounds in full, suffice it to say that the appeal raises one fundamental issue - error of law, and the appellant has raised procedural and grounds of such error in its grounds of appeal. Despite the number of grounds of appeal, we are of the view that the issue is a narrow one and it is an issue of law which does not require citing all the grounds of appeal. We think that it is sufficient only to refer to the motion on foot before the National Court then because the appeal is centered on the respondent’s motion which was given preference whilst the other motions were not heard.

And therefore we refer to the motions pending at the time of hearing the respondent’s motion. There were three applications on foot then. The first is Document No. 2 and was filed by Pacific Legal Group on behalf of the respondent on 29 August 2002 and made returnable on 30 August 2002. The second motion is Document No. 14, filed on 19 September 2002 by Mirupasi Lawyers on behalf of the Attorney General and The State and it sought an order inter alia, that they be joined as parties to the proceedings. It was returnable on 20 September 2002. The third application is Document No. 17, and was filed on 19 September 2020 by Harvey Nii Lawyers on behalf of the appellant and was returnable on 20 September 2002. That motion sought orders that the proceedings be dismissed for showing no cause of action, or alternatively, the proceedings be stayed until OS 547 of 2002 is determined.

On the face of the records, we consider that the application by the Attorney General and the State should have been heard first as a matter of common sense and logic because the State had an interest in this case. Other than that, there is no prejudice against the other parties if the Attorney General and the State were added as parties to the proceedings. However, without any reason given, the trial Judge declined to hear that motion therefore we consider that he erred in the exercise of his discretion. He must give reasons.

The motion by the appellant was to dismiss the proceedings, or stay the other related proceedings, OS 547 of 2002. Dismissing the proceedings would have effectively put an end to the whole suit. If the trial Judge had considered that there was a cause of action in law, he would not have granted the first relief, but perhaps the second.

However, we are of the opinion that the error by the trial Judge in relation to the respondent’s motion go beyond the exercise of his discretion. We accept the appellant’s submission that the trial Judge erred in law when he granted injunctive orders to the respondent. We have previously adverted to the orders granted by the trial Judge. We consider that there are three principal reasons that the appeal should be upheld.

Firstly, the trial Judge erred in law in granting injunctive orders to the respondent when it had not established any of the relevant conditions which are required to be established before a Court grants an injunction. We reiterate that the law in this area is well settled in our jurisdiction and there are several authorities on this area.

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