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Papua New Guinea Air Services Ltd v Tai [2015] PGNC 13; N5870 (20 February 2015)

N5870

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 30 OF 2014

PAPUA NEW GUINEA AIR SERVICES LIMITED
Plaintiff

V

WANI TAI
Defendant

Madang: Cannings J
2014: 3, 12 December,
2015: 20 February

LAND – residential property – continued occupation of employer-provided accommodation by ex-employee after termination of employment – order sought for vacant possession

DECLARATIONS – whether appropriate to declare that future actions would amount to trespass – need for real controversy to exist before granting declarations

INJUNCTIONS – application for permanent injunction to restrain former employee from future actual or threatened violence – quia timet injunctions

The plaintiff terminated the defendant's employment for cause. It alleged that since the date of termination, the plaintiff had refused to vacate his employer-provided residential property, unlawfully entered the defendant's premises, issued threats of personal violence to the plaintiff's officers and threatened to damage the plaintiff's property. The Plaintiff applied by originating summons for four remedies: (1) an order for vacant possession of the residential property; (2) a declaration that any entry by the defendant on to the plaintiff's premises would amount to trespass; (3) a declaration that the plaintiff was at liberty to deduct from the defendant's final entitlements the value of damage he caused to the property and costs of these proceedings; (4) a quia timet injunction to restrain the defendant from using or threatening violence against the plaintiff's staff or property. At the trial of the originating summons the defendant argued that none of the relief sought by the plaintiff should be granted.

Held:

(1) Though the plaintiff was unable to prove that it was the registered proprietor of the State Lease over the residential property, it had a much better claim to possession than the defendant, who had been occupying the property by virtue of his employment with the plaintiff. A conditional order for vacant possession was granted.

(2) A declaration will generally only be granted to determine a live controversy between parties and not to determine hypothetical questions of law or the effect of an assumed set of facts. The application for a declaration as to the effect of the defendant's future conduct was refused.

(3) The application for a declaration that sought to justify the plaintiff's future conduct, based on an assumed set of facts, was also refused.

(4) There are two factors to take into account when deciding whether to grant a quia timet injunction: the probability of harm and the nature and extent of the harm. Here there is no reasonable probability of harm and if it does occur in the manner that the plaintiff is concerned about, the plaintiff can seek the assistance of the Police or bring its concern to the Court. The application for an injunction was refused.

(5) In summary, one of the four remedies sought was conditionally granted, three were refused.

Cases cited

The following cases are cited in the judgment:

Louis Medaing v Ramu Nico Management Ltd (2011) N4340
Pastor Johnson Pyawa v Cr Andake Nunwa (2010) N4143
PNG Maritime College Board v Justin Tonno (2013) N5447
The State v Central Provincial Government (2009) SC977

ORIGINATING SUMMONS

This was a trial in which the plaintiff sought an order for vacant possession of property, declarations and a permanent injunction against the defendant.

Counsel

A Warokra, for the plaintiff
J Morog, for the defendant

20th February, 2015

1. CANNINGS J: The plaintiff, PNG Aviation Services Ltd, applies by originating summons for four orders or declarations against the defendant, Wani Tai, its former employee. Mr Tai was employed by the plaintiff or its predecessor the Civil Aviation Authority from 1992 to 30 May 2013 when he was dismissed on the ground of disgraceful conduct constituted by sexual harassment of a fellow officer. At the time he was an air traffic services assistant at Madang Airport.

2. The plaintiff alleges it has had trouble with the defendant since his termination in that he has refused to vacate his employer-provided residential property, unlawfully entered the defendant's premises and issued threats of personal violence to the plaintiff's officers and threatened to damage the plaintiff's property, including the control tower at Madang Airport. It seeks the following relief:

(1) an order for vacant possession of the residential property;

(2) a declaration that any entry by the defendant on to the plaintiff's premises will amount to trespass;

(3) a declaration that the plaintiff is at liberty to deduct from the defendant's final entitlements the value of damage he has caused to the property and costs of these proceedings;

(4) a permanent injunction to restrain the defendant from using or threatening violence against the plaintiff's staff or property.

1 ORDER FOR VACANT POSSESSION OF RESIDENTIAL PROPERTY

3. The plaintiff claims:

An order that the defendant forthwith give vacant possession of accommodation provided to the defendant by the plaintiff in accordance with the terms of employment.

4. The residential property that the plaintiff provided to the defendant as one of the conditions of his employment is at Section 128, Allotment 4, Madang. It forms part of the Nambis Compound, near Madang Airport. The plaintiff acknowledges that it is not the registered proprietor of the property, although it expects that it will be soon. Mrs Warokra, for the plaintiff, explained that the plaintiff is one of three State Aviation Enterprises (the others being the National Airports Corporation (NAC) and the Civil Aviation Safety Authority (CASA)) amongst which the assets and liabilities of the former Civil Aviation Authority are to be divided under amendments made to the Civil Aviation Act 2000 in 2010. She points to Section 324A(1) (succession of certain assets and liabilities of Civil Aviation Authority by CASA, PNG ASL and NAC) and Section 324B (transitional provisions) of the Civil Aviation Act, which relevantly provide:

324(1): As from the date declared by the Minister in the National Gazette, CASA, PNG ASL and NAC succeed to all of the assets and liabilities of the Civil Aviation Authority, to the extent that such assets and liabilities relate to the objects and functions of CASA, PNG ASL and NAC ... in the same capacity as such assets and liabilities were vested in the Civil Aviation Authority.

324B: Notwithstanding any other provisions of this Act, CASA, PNG ASL and NAC have all the powers, authorities, duties and functions in relation to assets, liabilities and other matters and things to which they succeed under this Part as the Civil Aviation Authority had (in any capacity) immediately prior to the date declared by the Minister by notice in the National Gazette.

5. The plaintiff's Manager of Properties Bernard Manuai has given evidence that Section 128, Allotment 4, Madang was an asset of the Civil Aviation Authority to which the plaintiff expects to "succeed" pursuant to an agreement that is being negotiated between the plaintiff, the National Airports Corporation and the Civil Aviation Safety Authority. The plaintiff's case therefore is that the house that has been occupied by the defendant has long been used to accommodate air traffic services staff. It is expected that it will soon formally be regarded as an asset of the plaintiff under Sections 324A and 324B of the Civil Aviation Act.

6. The defendant disputes all that. He claims that Section 128, Allotment 4 is a National Housing Corporation property. His problem is that apart from a vague statement in his affidavit that he has been told that by a senior officer of the NHC, he has no evidence to support that assertion.

7. I prefer the plaintiff's evidence, which appears credible. I find that the property has long been used to accommodate air traffic services staff. It is reasonably expected that it will soon formally be regarded as an asset of the plaintiff under Sections 324A and 324B of the Civil Aviation Act. As the defendant is no longer employed by the plaintiff he has no right to continue occupying the property. Nor does he have any legitimate expectation of being allowed to continue occupying it.

8. The plaintiff on the other hand has a clearly recognisable equitable interest in the property. It is in a proper position to decide who occupies it. I will therefore grant an order for vacant possession generally in the terms sought. However, the order will be subject to some conditions designed to break the impasse that seems to have arisen between the plaintiff and the defendant. The plaintiff appears to have been saying 'you won't get your final entitlements until you move out of the house', while the defendant's response has been 'I won't move out of the house until you pay my final entitlements'.

9. I will order the plaintiff to pay the defendant's final entitlements within the next week and order the defendant to accept what he is paid, without risk that by accepting the payment he is to be taken as having accepted the payment as correct. He will also have the right, if he wishes, to commence fresh proceedings against the defendant arising from the circumstances of his termination. I accept that he is genuinely aggrieved by what happened. He thinks he was unlawfully dismissed. However, he will have to take what he is given and move out of the house and then consider his position. He has no right to remain in the house.

2 DECLARATION AS TO ENTRY BY DEFENDANT ON PLAINTIFF'S PREMISES

10. The plaintiff claims:

A declaration that any entry by the defendant and or his servants, agents and associates into building or property from which the plaintiff is in possession of or operates from or undertakes business upon or is entitled to be in possession of or control over without the plaintiff's consent amounts to trespass. [sic]

11. I will not grant this declaration as the plaintiff is asking the Court to make a declaration of the legal effect of future conduct. A declaration will generally only be granted to determine a live controversy between parties and not to determine hypothetical questions of law or the effect of an assumed set of facts (The State v Central Provincial Government (2009) SC977). The application for a declaration as to the effect of the defendant's future conduct is refused.

3 DECLARATION AS TO DEDUCTIONS FROM DEFENDANT'S FINAL ENTITLEMENTS

12. The plaintiff claims:

A declaration that the plaintiff be at liberty to deduct from the defendant's final employment entitlements costs incurred for damage caused to the plaintiff's properties by the defendant and/or for costs in obtaining vacant possession of accommodation provided to the defendant by the plaintiff, including costs of these proceedings.

13. I refuse to make this declaration for the same reason I refused the declaration sought in paragraph 2 of the originating summons.

4 PERMANENT INJUNCTION RESTRAINING DEFENDANT FROM USING OR THREATENING VIOLENCE

14. The plaintiff claims:

A permanent injunction restraining the defendant and his servants, associates and/or agents from:

(i) using threats of violence against the plaintiff or the plaintiff's employees, officers, agents or contractors;
(ii) using acts of violence to attack, hurt or injure the plaintiff's employees, officers, agents or contractors;
(iii) using acts of violence to damage the plaintiff's properties;
(iv) confiscating, commandeering or taking possession by force or otherwise of any of the plaintiff's property;
(v) interfering or obstructing [the] plaintiff's employees and/or agents or contractors in their duty to obtain safe custody of any property belonging to the plaintiff but in the possession of the defendant, including land and housing provided to the defendant by the plaintiff.

15. The plaintiff is seeking an order in the form of a quia timet injunction, ie an injunction the purpose of which is to restrain apprehended harm (Louis Medaing v Ramu Nico Management Ltd (2011) N4340). The plaintiff alleges that in June 2013 the defendant entered its premises at Madang Airport and removed 'flight progress strips', which he kept for several hours before returning, and that despite a warning from the Police not to go back, he went back a week later and argued with the plaintiff's officers and damaged a computer monitor. It is also alleged that in January 2014 the defendant called the General Manager's office and threatened to cause damage to the Madang control tower. The defendant does not deny these allegations but says that they were Police matters, which have been resolved.

16. There are two factors to take into account when deciding whether to grant a quia timet injunction: the probability of harm and the nature and extent of the harm (Pastor Johnson Pyawa v Cr Andake Nunwa (2010) N4143, PNG Maritime College Board v Justin Tonno (2013) N5447). Here, I am satisfied that the likelihood of the defendant repeating the sort of conduct that he engaged in, in June 2013 and January 2014, is slight. The evidence suggests that his attitude is now far less combative and he is willing to let the law takes its course. He is now legally represented. I find that there is no reasonable probability of harm occurring in the manner referred to in paragraph 4 of the originating summons. An injunction is not necessary. If the sort of events that the plaintiff is concerned about do actually happen or are threatened, the plaintiff can seek the assistance of the Police or bring its concerns to the Court by way of fresh proceedings.

ORDER

(1) The relief sought in paragraph 1 of the originating summons will be granted subject to the following:

• (a) the plaintiff shall by 27 February 2015 calculate and pay to the defendant the amount of all final entitlements he is yet to be paid and the defendant shall receive that amount, which receipt will not act as agreement by the defendant with the correctness of the amount or prevent him from commencing proceedings against the plaintiff in respect of the circumstances of termination of employment or alleged underpayment of final entitlements;
  
• (b) the parties shall appear before the Court at 9.00 am on 3 March 2015 at Madang, at which hearing the Court will check compliance with order (1)(a) and make an order for the defendant to give vacant possession of the property in not less than seven days or such other order or declaration as is necessary to do justice in the circumstances.
  

(2) The relief sought in paragraphs 2, 3 and 4 of the originating summons is refused.

(3) The question of costs is deferred for submissions at the next hearing.

(4) Time for entry of this order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

________________________________________________________________
Bradshaw Lawyers: Lawyers for the Plaintiff
Public Solicitor: Lawyer for the Defendant