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

• Jurisdiction: Papua New Guinea
• Date: 08 November 2005
• Citation: (2005) SC809
• Docket Number: SCA 92 of 2002
• Court: Supreme Court
• Year: 2005

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

1 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.

2 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.

3 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, N393, 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) N1920, 8 June 1999, PNGBC v Jeff Tole (2002) SC694, 27 September 2002 referred to

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.

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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...