Ume More, Fabian Pok, Levi Tilto, Wandi Oscar Yamula [Yamuna], Paul Piru, Powes Parkop and Members of the Student Representative Council and all those Students now enrolled at the University of Papua New Guinea who have National Scholarships other than Medical Students v The University of Papua New Guinea[1985] PNGLR 401

• Jurisdiction: Papua New Guinea
• Judge: Los J:
• Judgment Date: 11 December 1985
• Court: Supreme Court
• Citation: [1985] PNGLR 401
• Year: 1985
• Judgement Number: SC310

Full Title: Ume More, Fabian Pok, Levi Tilto, Wandi Oscar Yamula [Yamuna], Paul Piru, Powes Parkop and Members of the Student Representative Council and all those Students now enrolled at the University of Papua New Guinea who have National Scholarships other than Medical Students v The University of Papua New Guinea[1985] PNGLR 401

Supreme Court: Pratt J, Amet J, Los J

Judgment Delivered: 11 December 1985

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

UME MORE, FABIAN POK, LEVI TILTO, WANDI OSCAR YAMULA, PAUL PIRU, POWES PARKOP AND MEMBERS OF THE STUDENTS REPRESENTATIVE COUNCIL AND ALL THOSE STUDENTS NOW ENROLLED AT THE UNIVERSITY OF PAPUA NEW GUINEA WHO HAVE NATIONAL SCHOLARSHIPS OTHER THAN MEDICAL STUDENTS

V

UNIVERSITY OF PAPUA NEW GUINEA

Waigani

Pratt Amet Los JJ

26-27 March 1985

11 December 1985

PRACTICE AND PROCEDURE — Civil proceedings — Desirability of following accepted practices and procedures — Orders in respect of relief sought only — Representative orders — Sanctions for anticipated breach not available — National Court Rules, O 5, r 13.

PRACTICE AND PROCEDURE — National Court — Judgments and orders — In respect of relief sought only — Representative orders — When available — Sanctions for anticipated breach not available — National Court Rules, O 5, r 13.

PRACTICE AND PROCEDURE — Enforcement proceedings under Constitution — Relevant practice of civil law applicable — Procedure appropriate.

JUDGMENTS AND ORDERS — Civil proceedings — Orders in respect of relief sought only — Sanctions for anticipated breach not available.

JUDGMENTS AND ORDERS — Civil proceedings — Representative orders — When available — Sanction of court required — National Court Rules, O 5, r 13.

INJUNCTIONS — Grounds for refusing — Availability of criminal sanctions — Failure to take any steps to invoke criminal sanctions — When relevant to grant of perpetual injunction.

INJUNCTIONS — History and background of law relating to — Discussion of.

CONSTITUTIONAL LAW — Basic rights — Enforcement proceedings under Constitution — Practice and procedure on — Civil procedure appropriate.

Certain students of the University of Papua New Guinea, over a period of ten days, forcibly disrupted lectures, erected and manned barricades at the main entrance road and selectively restricted entry thereto. The University sought an injunction restraining such conduct. The defendants to these proceedings were six-named students "and members of the Students Representative Council and all those students now enrolled at the University who have National Scholarships other than Medical Students".

The National Court granted a permanent injunction, and being of the opinion that breaches of guaranteed rights and freedoms under the Constitution had been infringed, and could be enforced in any appropriate manner under s 57 on the Court's own initiative, made orders stripping two named students and four unnamed students of their positions on the Students Representative Council, banned the six-named students from the campus, Port Moresby and Lae, ordered them to be returned to their villages and to secure due performance of the orders, remanded them in custody for five days.

Held

(1) In civil proceedings it is essential that the established practices and procedure be followed and observed so as to ensure, inter alia, the avoidance of confusion, uncertainty and consequences which are either unexpected or unsought or both.

(2) A party to civil proceedings cannot obtain relief which has not been requested or sought in the pleadings either originally or by way of proper amendment.

London Passenger Transport Board v Moscrop [1942] 1 All ER 97 at 105; Blay v Pollard and Morris [1930] 1 KB 628 at 634, followed and applied.

(3) Representative orders cannot be made unless a person or persons have been nominated to represent the class and that nomination has been sanctioned in accordance with the National Court Rules, O 5, r 13.

(4) The Court cannot, of its own volition, in respect of orders in civil proceedings, impose sanctions or punishment in anticipation of a subsequent breach of the orders.

(5) The relevant practice and procedure of the civil law is applicable to proceedings to enforce the Constitution (s 22), to enforce sanctions (s 23) and to enforce guaranteed rights and freedoms under s 57.

Outline of procedure appropriate to be followed.

(6) In the circumstances the orders purporting to be in enforcement of guaranteed rights and freedoms under the Constitution, s 57, had been improperly made and (by Los J) being contrary to the principles of natural justice, should be quashed.

(7) In the circumstances, the orders purporting to be representative orders were not within power and should be quashed.

(8) The availability of criminal sanctions of itself is not a bar to obtaining an injunction at least where the criminal law has already proved inadequate or where irremediable damage will ensue.

Gouriet v Union of Post Office Workers [1977] 3 All ER 70; Attorney-General v Chaudry [1971] 3 All ER 938, followed.

(9) (By Pratt and Woods JJ) Perpetual injunctions should not be granted to restrain conduct which invokes the commission of criminal offences where there has been a failure to take any steps at all to invoke available and appropriate provisions of the criminal law before seeking the injunction.

Gouriet v Union of Past Office Workers [1977] 3 All ER 70; Attorney-General v Chaudry [1971] 3 All ER 938, considered.

(10) (Los J dissenting) In the circumstances the injunction was an inappropriate remedy and ought to be quashed.

Discussion (by Pratt J) of the history and background of the law relating to injunctions.

Cases Cited

Attorney-General v Chaudry [1971] 1 WLR 1614; 3 All ER 938.

Attorney-General v Harris [1961] 1 QB 74.

Attorney-General v Melville Construction Co Ltd (1968) 20 P&CR 131.

Attorney-General v Premier Line Ltd [1932] 1 Ch 303.

Attorney-General v Sharp [1931] 1 Ch 121.

Attorney-General (Qld) (Ex rel Kerr) v T (1983) 57 ALJR 285.

Blay v Pollard and Morris [1930] 1 KB 628.

Gee v Pritchard (1818) 2 Swans 402; 36 ER 670.

Gouriet v Union of Post Office Workers [1978] AC 435; [1977] 3 All ER 70.

Iambakey Okuk v Gerald Fallscheer [1980] PNGLR 274.

Kent County Council v Batchelor (No 2) [1979] 1 WLR 213; [1978] 3 All ER 980.

London Passenger Transport Board v Moscrop [1942] AC 332; 1 All ER 97.

Mopio, Re James Eki [1981] PNGLR 416.

Perryman v Minister for Foreign Affairs and Trade [1982] PNGLR 339.

Premdas v Independent State of Papua New Guinea [1979] PNGLR 329.

Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149.

Public Prosecutor v Nahau Rooney (No 2) [1979] PNGLR 448.

Ridge v Baldwin [1964] AC 40.

SCR No 2 of 1981; Res 19 (1) (f) of the Criminal Code [1982] PNGLR 150.

Springhead Spinning Co v Riley (1868) LR 6 Eq 551.

State, The v John Rumet Kaputin [1979] PNGLR 544.

University of Papua New Guinea v Ume More [1985] PNGLR 48.

Vincent v Peacock [1973] 1 NSWLR 466.

Appeal

This was an appeal from a decision of Bredmeyer J reported as University of Papua New Guinea v Ume More [1985] PNGLR 48.

Counsel

I R Molloy, for the appellants.

R Thompson, for the respondent.

P Young, for the principal legal adviser (by leave).

Cur adv vult

11 December 1985

PRATT J: This appeal arises from an application by the University of Papua New Guinea by way of notice of motion pursuant to a writ of summons claiming: first, damages; and secondly, an injunction to restrain the defendants from carrying out certain threats and acts referred to more specifically in the statement of claim.

THE APPLICATION

The notice of motion asked for:

(1) An order restraining the defendants from disobeying reasonable directions and obstructing the conduct of University business, from unduly interfering with the comfort and convenience of persons in the University and from wrongfully dealing with University property.

(2) An order restraining the defendants from "infringing, denying or otherwise interfering with" the plaintiffs and plaintiff's student's basic rights and freedom under the Constitution.

(3) A sanction in the event of non-compliance with the restraining orders.

I take a brief resume of the events behind the application from the judgment of Bredmeyer J whose orders are now appealed: see University of Papua New Guinea v Ume More [1985] PNGLR 48 at 49:

"Evidence has been put before me by the University and the student defendants as to past events over the last ten days, as to what has happened at the University. The University evidence is that lectures were forcibly disrupted on Monday, 25 February and then on Thursday, 28 February barricades were erected and manned by the students and that ingress and egress to the University were restricted to only those whom the students would let through. Much but not all of that evidence is denied by the defendants."

The matter came before the learned judge of first instance...