Peter Pagi v Wilfred Mindili (2009) N3753

• Jurisdiction: Papua New Guinea
• Judge: Makail J
• Judgment Date: 25 September 2009
• Citation: (2009) N3753
• Docket Number: OS NO 644 OF 2007
• Court: National Court
• Year: 2009
• Judgement Number: N3753

Full Title: OS NO 644 OF 2007; Peter Pagi v Wilfred Mindili (2009) N3753

National Court: Makail J

Judgment Delivered: 25 September 2009

N3753

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 644 OF 2007

BETWEEN

PETER PAGI

Plaintiff

AND

WILFRED MINDILI

Defendant

Mount Hagen: Makail J,

2009: 17th & 25th September

INJUNCTIONS - Interim mandatory injunction - Application to set aside - Interim mandatory injunction made inter-parties - Equitable relief - Principles of equity applied - Constitution - Schedule 2.2.

Cases Cited

Papua New Guinea cases

AGK Pacific (NG) Ltd -v- William Brad Anderson, Karson Construction (PNG) Ltd and Downer Construction (PNG) Ltd (2000) N2062

Mainland Holdings Limited -v- Paul Robert Stobbs & 3 Ors (2003) N2522

East Arowe Timbers Resources Limited & Ors -v- Cakara Alam (PNG) Limited, Papua New Guinea Forest Authority & Martin Mato (2008) N3270

Thadeus Kambanei -v- The National Executive Counsel & 5 Ors (2006) N3064

Yama Group of Companies Ltd -v- PNG Power Ltd (2005) N2831

Overseas cases cited:

Jimi Co-op Daries Ltd -v- Capital Diary Products Ltd (1989) I PRNZ 622

Zockoll Group Ltd -v- Mercury Communications Ltd [1997] EWCA Civ 2317

G & A Ltd. -v- HN Jewellery (Asia) Ltd [2004] EWCA Civ 674

Nottingham Building Society -v- Eurodynamics Systems [1993] FSR 468

Counsel:

Mr. P Kunai, for Plaintiff

Mr. T Dalid, for Defendant

RULING

25th September, 2009

1. MAKAIL J: There are two applications before me for determination. One by the plaintiff by his notice of motion filed on 18th May 2009 to have the defendant punished for contempt of court of an interim order of 13th March 2008 (“interim order”) and the other by the defendant by his amended notice of motion filed on 21st August 2009, to set aside that same interim order.

2. The interim order, which was made inter-parties and subject of these two applications, reads as follows:

“1. An interim Order that the Defendant is to release to the Plaintiff the Toyota Coaster Bus bearing Registration No P 6104 forthwith.

2. The matter is to be placed on the call-over list.

3. The Defendant is to bear the Plaintiff’s costs of the motion.

4. Time is abridged.”

3. It was decided that I hear the application to set aside the interim order before the application for contempt of court because its determination may decide whether it would be necessary at all to hear the plaintiff’s application for contempt of court, notwithstanding that the plaintiff’s application was filed first in time and should be heard first.

4. Briefly, from reading the affidavit of the defendant sworn on 28th May 2009 and filed on 29th May 2009, affidavit of Tony Ipinis sworn on 29th April 2009 and filed on 4th May 2009, affidavit of Councilor Simon Kapua sworn on 29th April 2009 and filed on 4th May 2009 and the opposing affidavit of the plaintiff sworn on 8th May 2009 and filed on 18th May 2009, it is not disputed that there was a motor vehicle accident involving the plaintiff’s motor vehicle, a Toyota Coaster bus, bearing registration no P-6104 (“bus”) and the defendant’s motor vehicle, a Mazda PMV truck, bearing registration no P-078A (“truck”) at Lumbi village in Mendi on 23rd February 2007.

5. Passengers in the bus and the truck were seriously injured. The plaintiff’s bus was towed to the defendant’s village at Aisesa Papera village on the same day. The plaintiff’s attempts to salvage it from the defendant’s village proved unsuccessful, even after obtaining the interim order. The defendant says that, first the bus was towed to his village for safe keeping upon instructions from the Mendi police. It was not him who directed his tribesmen to impound the bus, but a police man from Mendi Police Station by the name of Sergeant Lucas Lapan.

6. Then, the bus was towed to the defendant’s village where the relatives of the injured passengers impounded it. Hence, it is incorrect for the plaintiff to accuse him as being the instigator of the dispute. However, the plaintiff says that he has every right to take possession of it and even obtaining the interim order and attending at the defendant’s village with Mt Hagen based Mobile Squad police, the defendant’s tribesmen over powered them and they returned empty handed.

7. Secondly, the bus is held by the relatives of the injured passengers until the plaintiff compensates the injured passengers. Once the plaintiff pays compensation to them, they will release it to him. As for the defendant, he has paid compensation of K21,542.50 comprising of cash and 14 live pigs to the injured passengers and their relatives.

8. For these reasons, it is beyond his power and control to comply with the interim order and return the bus to the plaintiff. He therefore, asks that the Court set aside the interim order so he does not get into any trouble with it. His counsel relies on Order 12, rule 8 of the National Court Rules to set aside the interim order. That provision of the National Court Rules states:

“8. Setting aside or varying judgement or order. (40/9)

(1) The Court may, on terms, set aside or vary a direction for entry of judgement where notice of motion for the setting aside or variation is filed before entry of the judgement.

(2) The Court may, on terms, set aside or vary a judgement -

(a) where the judgement has been entered pursuant to Order 12 Division 3 (default judgement); or

(b) where the judgement has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the direction; or

(c) when the judgement has been entered in proceedings for possession of land pursuant to a direction given in the absence of a person and the Court decides to make an order that the person be added as a defendant.

(3) The Court may, on terms, set aside or vary an order -

(a) 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; or

(b) where notice of motion for the setting aside or variation is filed before entry of the order.

(4) In addition to its powers under Sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgement) 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.

(5) This Rule does not affect any other power of the Court to set aside or vary a judgement or order.”

9. In an application to set aside an order made inter-parties, what principles of law should the Court apply to decide the application? Neither counsel has referred me to any guiding principles of law or case authority in relation to this kind of application. Obviously, the interim order was made after the Court heard arguments for and against the plaintiff’s application before it made the order but either parties have produced to the Court, a copy of the decision of the Court of 13th March 2008.

10. This, places the Court in a difficult position to know exactly the reasons of the earlier Court to grant the interim order. Nonetheless, it is agreed and accepted by both parties that the interim order was made inter-parties. Therefore, the principles of law applicable in applications to set aside ex-parte orders under Order 12, rule 8 of the National Court Rules do not apply here. That is, orders made in the absence of a party or parties.

11. But I consider that the National Court exercising its equitable jurisdiction under Schedule 2.2 of the Constitution may set aside or vary the interim order in this case, as part of the Court’s application and enforcement of the underlying law, the principles and rules of common law and equity in England that were formed immediately before Independence day. This is where the equitable jurisdiction of the Court comes into play. In my view, term 1 of the interim order is indeed an interim mandatory injunction as it compels the defendant to release the bus to the plaintiff pending the determination of the dispute in relation to the defendant’s right of detention. It states, “[A]n interim Order that the Defendant is to release to the Plaintiff the Toyota Coaster Bus bearing Registration No P1604 forthwith.”

12. An injunction is an equitable relief. In AGK Pacific (NG) Ltd -v- William Brad Anderson, Karson Construction (PNG) Ltd and Downer Construction (PNG) Ltd (2000) N2062, Injia J, (as he then was), stated that, “[T]he grant of injunctive relief, interim or permanent, mandatory or otherwise, is an equitable remedy and it is discretionary.” (Emphasis is added).

13. In deciding whether to set aside an injunction, the National Court relies on the principles of equity that were adopted on Independence. Some of those principles were neatly summarized by Injia DCJ, (as he then was), in Mainland Holdings Limited -v- Paul Robert Stobbs & 3 Ors (2003) N2522 some of which I adopted and applied in East Arowe Timbers Resources Limited & Ors -v- Cakara Alam (PNG) Limited, Papua New Guinea Forest Authority & Martin Mato (2008) N3270. I list these principles...