Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278

• Jurisdiction: Papua New Guinea
• Judge: Sheehan J
• Judgment Date: 21 June 1990
• Citation: [1990] PNGLR 278
• Court: National Court
• Year: 1990
• Judgement Number: N904

Full Title: Sioti Bauf and Lavoi Nodai v Poliamba Pty Ltd [1990] PNGLR 278

National Court: Sheehan J

Judgment Delivered: 21 June 1990

N904

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

SIOTI BAUF AND LAVOI NODAI

V

POLIAMBA PTY LTD

Waigani

Sheehan J

7 June 1990

21 June 1990

INJUNCTIONS — Practice and procedure — Interim injunctions — Ex parte orders — Plaintiff's duties — Full and free disclosure — All material facts including those favourable to defendant — Dissolution for non-disclosure.

INJUNCTIONS — Interlocutory injunctions — Prima facie case — Reasonable cause of action — To be pleaded.

An interim injunction was granted, ex parte, restraining a company, its servants or agents, from entering, clearing and planting land. In the statement of claim in support of the injunction the plaintiff claimed no interest in the land which was, in fact, registered in the name of a third party. The defendant's interest in the land as purchaser under a contract of sale was not revealed to the court on the ex parte application.

Held

(1) A party seeking to obtain an interim injunction, ex parte, is under an obligation to demonstrate utmost good faith and to bring to the attention of the court:

(a) all facts material to the applicant's right to the injunction; and

(b) any material which could be put in favour of the defendant's position.

(2) Failure to make full and proper disclosure of relevant material is sufficient to justify the court dissolving an interim injunction made ex parte.

(3) A statement of claim seeking an injunction must disclose a reasonable cause of action.

(4) The interim injunction should be dissolved for non-disclosure of relevant material.

(5) The originating summons should be dismissed for failure to disclose a cause of action.

Notice of Motion

This was an application on notice seeking to dismiss orders for injunctive relief granted ex parte.

Counsel

M J Sevua, for the plaintiffs.

P R Payne, for the defendant.

21 June 1990

SHEEHAN J: The plaintiffs' village of Kenamana lies adjacent to the land owned by the defendant company. The plaintiffs assert that all of the land occupied by the defendant was formerly owned by clans of Kenamana village. It was acknowledged that a portion of that land was disposed of to the defendant company's predecessors on the land but the plaintiffs claim that the company is now encroaching on and asserting title to land still belonging to the villagers. The plaintiffs' claim has in fact led to confrontation such that in April of this year employees of the defendant company were assaulted when attempting to work the land.

On 31 May 1990, the plaintiffs by originating summons initiated proceedings in this Court to prevent the defendant carrying out further development of the land. The summons states [sic]:

"Originating Summons

The Plaintiff Claims:

1. An order restraining with defendant, its servants or agents from entering, clearing and planting oil palm seedlings on the land called Pangau also known as Maramakas.

2. An order restraining with defendant, its servants or agents from entering, clearing and planting oil palm seedlings on the land known as Panavatlas also known as Lakuramau.

3. An order that the defendant pay the cost of these proceedings.

4. Such further orders or orders as the court may deem meet."

The summons makes no claim to the land by the plaintiff, nor does it assert any right requiring the protection of the orders sought.

Pursuant to that summons, on 6 June 1990, the plaintiffs sought and obtained, ex parte, an injunction as follows.

"Order

The Court orders that:

1. The Defendant it's servants or agents be forthwith restrained from entering, clearing and planting oil palm seedlings on the land called Panamana also known as Maramakas more particularly described as 925 in the Lands Department and marked as Annexura A to Sioti Bauf's affidavit sworn on 21st May, 1990.

2. The Defendant it's servants or agents be forthwith restrained from entering, clearing and planting oil palm seedlings on the land known as Panavatlas or Lakuramau more particularly described in the Lands Department map referred to above as Lot 3 and Lot 4.

3. The Plaintiff commences within twenty one (21) days correct procedures to have the subject dispute over the said land properly brought before the Land Title Commission or some other Tribunal that has Jurisdiction to determine the dispute between the parties over the land known as Pangau or Maramakae and the land known as Panavatlas.

4. The costs of these proceedings be met by the Defendant."

That order was served forthwith on the defendant company, though the originating summons and the affidavits in support of the motion for injunction were not. The defendant company was thus served with a court order without any indication as to how or why it had been made. The supporting documents were subsequently served, at the direction of the court some days later.

The plaintiffs' affidavits, though not the originating summons, set out a claim to the land and refer to disputes and recent confrontations brought about because of the defendant continuing to develop the land contrary to the wishes of the plaintiffs. There was no evidence or statement offered indicating the basis of the defendant's claim or right to possession of that land.

The defendant quickly asserted that claim with a motion to dismiss the orders of 6 June 1990.

In an affidavit made 7 June 1990 and filed in support of the motion, Martin Collins, Managing Director of Poliamba Pty Ltd, deposed that:

"2. Pursuant to a Master Agreement dated 21 September 1989 between the Independent State of Papua New Guinea, the Commonwealth Development Corporation, the New Ireland Development Corporation Pty Limited and Poliamba Pty Limited the parties agreed that Poliamba Pty Limited would establish and develop an oil palm and cocoa project in New Ireland Province including the construction and operation of a palm oil mill and associated infrastructure.

3. So as to establish the said project Poliamba Pty Limited has acquired or is in the course of acquiring various parcels of land including the land contained in Certificates of Title, Volume 6 Folio 34,...