Mainland Holdings Limited v Paul Robert Stobbs and Three (3) Others (2003) N2522

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2003) N2522
• Date: 29 October 2003
• Year: 2003

Full Title: Mainland Holdings Limited v Paul Robert Stobbs and Three (3) Others (2003) N2522

National Court: Injia DCJ

Judgment Delivered: 29 October 2003

1 Civil—Interim injunctions—Effect of—Extension of contract of employment of company's general manager which had expired—Application to dissolve interim injunction—Grounds—Change in relevant circumstances since grant of—Principles of equity on enforcement of private contracts for personal services discussed—Equity maxims "He who seeks equity must do equity" and "He who seeks equity must come with clean hands" applied—Interim injunctions dissolved.

2 Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170, Jimi Co–op Dairies Ltd v Capital Dairy Products Ltd (1989) 1 PRNZ 622, Modilon Automotive Pty Ltd v Kevin Southcomb [1997] PNGLR 158, Regent Oil Co Ltd v LJ Leavesly (Linchfield) Ltd [1968] 1 WLR 1210, Westgold Resources NL v St Barbara Mines Ltd [2003] WASC 29, Williamson Robinson & Co Ltd v Heve [1898] 2 CLR 451 referred to

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Injia DCJ: The plaintiffs apply before me to dissolve the interim injunctive orders granted by Kirriwom J on 29 August 2003. Ordinarily, this motion should be moved before Kirriwom J, but because His Honour declined to continue dealing with the matter, the motion came before me. The defendants contest the motion.

The injunctive order is the subject of an appeal and an application for stay filed in the Supreme Court at Waigani, both of which are pending determination. As to the proper approach to be adopted by this Court in assuming jurisdiction in this matter in the light of the pending appeal, I accept the position taken by both parties that the National Court has jurisdiction to vary or dissolve an interlocutory order notwithstanding an appeal and application for stay has been filed against the same order, which are pending hearing. There is extensive authority in support of this proposition, some of which have been cited by counsel.

It is also agreed between the parties that this discretionary jurisdiction is exercised where there are changes in relevant circumstances since the interlocutory order was made which render the continuation of the order no longer necessary or appropriate. However, there is some contention between the parties as to whether the interlocutory order should be varied or dissolved on other grounds such as where new facts which existed at the time of the injunctive order and not disclosed then but they are subsequently discovered; or where it is subsequently discovered that the order was granted on erroneous legal basis. Mr Molloy for the plaintiffs argued in the affirmative and cited in support cases including Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170 at 178; Westgold Resources NL v St Barbara Mines Ltd [2003] WASC 29 and Regent Oil Co Ltd v JT Leavesly (Linchfield) Ltd [1968] 1 WLR 1210. Mr Wilson for the First and Fourth defendants contends that the Court's jurisdiction is restricted to change in relevant circumstances, and matters such as new or existing facts subsequently discovered and the appropriateness or legal correctness of the existing order are matters for the appellate court to address in the pending appeal.

In my view, the trial Court has wide discretionary powers to control the management of the case until its substantive disposition. In terms of its interlocutory proceedings, the Court has wide powers to grant or refuse to grant, vary or set aside, dissolve or discharge an interlocutory order either on application by an interested party or upon its own motion, in a wide range of situations including change in relevant circumstances which render the continuation of the order no longer necessary or appropriate. It is also in the Court's discretion to vary or discharge an interlocutory order, where the conditions, if any, stipulated in the order have been met and it is no longer necessary or appropriate to sustain the order. Further, it is in the discretion of the Court to vary or discharge an interlocutory order if it is subsequently discovered by the Court that the interlocutory order was founded on wrong principle.

In the exercise of its regulatory jurisdiction, the Court also has wide discretion to protect itself or its process from abuse by parties aggrieved by its earlier order, seeking to have a second opportunity to re–argue the case in order to reverse its earlier decision. In cases where the earlier interlocutory order is subject of an appeal, the Court should be reluctant to engage in any deliberations on the facts and law which would or is likely to interfere or usurp the review powers of the appellate Court to review findings of fact or law. This is particularly so when a second judge is invited to vary or discharge an interlocutory order of the first judge. In this...