Gaspar Nakau v Moses Gabuogi

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 12 November 2012
• Citation: (2012) N4883
• Court: National Court
• Year: 2012
• Judgement Number: N4883

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

N4883

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 340 OF 2012

GASPAR NAKAU & LEONARD SARIKEY KAPTIGAU

Plaintiffs

V

MOSES GABUOGI, CHAIRMAN,

GOVERNING COUNCIL, MADANG TEACHERS COLLEGE

First Defendant

STEPHEN POTEK, PRINCIPAL,

MADANG TEACHERS COLLEGE

Second Defendant

Madang: Cannings J

2012: 9, 12 November

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

NOTICE OF MOTION

This was an application made on the return of an interim order for the discharge of the order.

Counsel

T M Ilaisa, for the plaintiffs

W Akuani, for the defendants

12 November, 2012

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 their institutional housing. The plaintiffs had on 10 May been served with notices by Mr Gabuogi requiring them to vacate their institutional houses and to leave the College on the ground that they had not been appointed by the National Education Board to any positions at the College for the 2012 academic year.

3. On 22 June Gavara-Nanu J made an interim order that restrained the defendants from “evicting the plaintiffs ... from occupancy of the houses they are occupying at the Madang Teachers College” and from “harassing, threatening, intimidating or causing any inconvenience or harm to the plaintiffs from performing their teaching duties at the Madang Teachers College”. That order was set aside by Davani J on 19 July due to the failure of the plaintiffs to appear at the appointed time to argue their case for continuation of the order. On 18 October I reinstated the order of 22 June on application by the plaintiffs, on condition that the question of whether that order should continue returns to court for a full hearing. The defendants then filed a motion specifically asking for an order that the orders of 22 June and 18 October be discharged.

4. Despite the apparent complexity created by the matter coming in and out of court several times the issue now before the Court is a simple one: should the interim order of 22 June be discharged? I am not dealing with the substantive issue of whether all the orders sought in the originating summons should be granted. There will need to be a trial before consideration is given to those matters, and there has been no trial yet.

POWER TO SET ASIDE INTERIM ORDERS

5. It is uncontroversial that if the National Court has made an interim order (ie an interlocutory order, an order made in the course of proceedings before a determination of the question of substantive relief) it has the power to discharge or vary it. This is made clear by Order 12, Rule 8(4) of the National Court Rules, which states:

... the Court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.

6. The power to discharge or vary an interim order can be exercised by any Judge, not only by the Judge who made the interim order. If, as in this case, the interim order was made ex parte, Order 12, Rule 8(3)(a) of the National Court Rules is also relevant. It states:

The Court may, on terms, set aside or vary an order … where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order …

7. It is also uncontroversial that in exercising its discretion whether to set aside or vary an interim order the Court will take into account the considerations outlined by Injia DCJ, as he then was, in the leading case Mainland Holdings Ltd v Stobbs (2003) N2522 (which I have followed, for example, in Mark Ekepa v William Gaupe (2004) N2694, Pius Nui v Senior Sergeant Mas Tanda (2004) N2765 and Pacific Native Timbers (PNG) Ltd v Andrew Donaldson (2005) N2933), including:

1 whether there has been a change in circumstances rendering continuation of the interim order unnecessary or inappropriate;

2 the conduct of the parties;

3 whether there are previously undisclosed material facts that have been discovered since the interim order was made;

4 whether the interim order was made on an erroneous legal basis;

5 whether the grounds relied on to discharge the interim order have been previously argued; and

6 whether the Court was misled when it made the interim order.

THIS CASE

8. Mr Ilaisa for the plaintiffs submits that that there is no good reason to set aside the interim order of 22 June. The order was properly made to protect the interests of the plaintiffs who were being victimised as they were the whistleblowers who had brought to light very serious allegations of misappropriation and mismanagement at the College, particularly against the second defendant, Mr Potek. An attempt had been made to evict the plaintiffs and their families from their homes at short notice and to remove the plaintiffs from the academic staff of the College. Very recently, on 29 October, the Momase Regional Adviser of the Teaching Service Commission, Mr Joseph Ouyoumb, purported to suspend one of the plaintiffs, Mr Nakau, and charge him with a disciplinary offence, in spite of the interim order of 22 June being in place. Continuation of the order is necessary to ensure stability in the management of the College and is in the best interests of the students as the academic year comes to a close, Mr Ilaisa submitted.

9. I have carefully considered those submissions, however I have been persuaded by the submissions of Mr Akuani for the defendants that the considerations outlined in the Mainland Holdings case favour the discharge of the interim order. In particular:

1 Change in circumstances: There has been a change in circumstances rendering continuation of the interim order unnecessary or inappropriate in three respects. First, the plaintiffs are no longer at risk of...