Gaspar Nakau v Moses Gabuogi

• Jurisdiction: Papua New Guinea
• Citation: (2012) N4883
• Date: 12 November 2012
• Court: National Court
• Year: 2012

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Full : OS NO 340 of 2012;Gaspar Nakau & Leonard Sarikey Kaptigau v Moses Gabuogi, Chairman, Governing Council, Madang Teachers College and Stephen Potek, Principal, Madang Teachers College (2012) N4883

National Court: Cannings J

Judgment Delivered: 12 November 2012

PRACTICE AND PROCEDURE—motion to discharge interim order—relevant considerations when deciding whether an interim order should be discharged or varied.

The National Court made an interim order restraining the defendants from evicting the plaintiffs from institutional housing that they were occupying in their capacity as lecturers at a tertiary educational institution and from harassing them in regard to their teaching duties. The defendants subsequently applied by motion to have the interim order discharged.

Held:

(1) The Court has power to discharge or vary an interim order and in exercising its discretion whether to do so takes into account considerations including whether there has been a change in circumstances rendering continuation of the interim order unnecessary or inappropriate, the conduct of the parties, whether there are previously undisclosed material facts that have been discovered since the interim order was made, whether the interim order was made on an erroneous legal basis, whether the grounds relied on to discharge the interim order have been previously argued and whether the Court was misled when it made the interim order (Mainland Holdings Ltd v Stobbs (2003) N2522 applied).

(2) The Mainland Holdings considerations favoured discharging the interim order, and there was no good reason for the interim order remaining.

(3) The interim order was accordingly discharged.

Cases cited

The following cases are cited in the judgment:

Island Helicopter Services Ltd v Wilson Sagati (2008) N3340

Joseph Sanga Kumbu v Dr Nicholas Mann (2012) N4784

Mainland Holdings Ltd v Stobbs (2003) N2522

Mark Ekepa v William Gaupe (2004) N2694

Pacific Native Timbers (PNG) Ltd v Andrew Donaldson (2005) N2933

Pius Nui v Senior Sergeant Mas Tanda (2004) N2765

Wawoi Guavi Timber Company Ltd v Ken Norae Mondiai (2007) SC1018

1. CANNINGS J: This is a ruling on a motion by the defendants to discharge (ie set aside or dissolve) an interim order previously made by this Court. The case relates to the management and control of Madang Teachers College and the confusion that has arisen during the course of the 2012 academic year as to which members of staff are holding senior positions. All events referred to in this judgment have occurred in 2012.

2. The case commenced on 7 June when two members of the academic staff, the plaintiffs Mr Gaspar Nakau and Mr Leonard Sarikey Kaptigau, filed an originating summons seeking various orders, including that the defendants, the Chairman of the Governing Council Mr Moses Gabuogi and the Principal Mr Stephen Potek, be restrained from evicting them from...