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Dambui v Sansan [2023] PGNC 357; N10506 (7 September 2023)

N10506

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 51 OF 2023 (IECMS)

CHARLES DAMBUI
Plaintiff

V

TAIES SANSAN
Defendant

Waigani: Miviri J
2023: 06^th & 7^th September

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Order 16 Rule 8 (a) & (b) Order 12 Rule 1 Order 4 Rule 49 (5) (ii) (e) (ii) NCR – Arguable Case – Damages Not Adequate Remedy – Balance of Convenience – Interests of Justice – Materials Sufficient – Stay Granted – Cost follow Event.

Cases Cited:

McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279

Counsel:

N. Kopunye, for Plaintiff
H. Wangi, for Defendants

RULING

07^th September 2023

1. MIVIRI, J: Charles Dambui was granted leave for Judicial review on the 23^rd August 2023. This is the ruling on his application for Stay.
   
2. Which he now seeks pursuant to Order 16 Rule 3 (8) (a) & (b), subrule 13 (1), Order 12 rule 1 and Order 4 Rule 49 (5) (ii) (e) (ii) of the National Court Rules, Section 12 of the Laws Adoption and Adoption Act Chapter 20, and Adoption of the Common Law and Equity pursuant to the Underlying Act 2000 and inherent powers of the Court, pending hearing and determination of the substantive judicial review application herein or until further orders of this Court, the Defendant and the Board of Directors of the Coffee Industry Corporation Limited, and the National Executive Council (by themselves and their servants and agents) are restrained and injuncted against: -
   
   1. appointing an acting Chief Executive Officer of the Coffee Industry Corporation Limited;
      
   2. taking steps to interfere with and or prevent the plaintiff from performing his functions and roles as Chief Executive Officer of Coffee Industry Corporation Limited.
      
3. Order 16 Rule 3 (8) (a) and (b) give effect that where leave is granted as here that will operate as a Stay where the relief sought is either Prohibition or certiorari. Where it is any other relief sought the court may at time grant such interim relief as could be granted in an action begun by writ. Mandamus is sought here against the defendant to do his duty called upon by the National Executive Council.
   
4. Leave has been granted because there has been established on the balance arguable basis to so grant. This is one of the grounds considered in an application for Stay as is the present. There is arguable basis to sway that Stay lies in favour of the applicant. Further that damages would not be an adequate remedy. Here particularly given that the applicant was by the decision of the National Executive Council accorded that position which but for what remains in the hands of the defendant to be executed. Given these damages would not be adequate, and so discharging this ground in favour of the applicant.
   
5. The balance of convenience favours grant because applicant has been appointed to the subject position but for the duties called upon the defendant to execute to formalize the decision of the National Executive Council. It would not be prejudicial to accord by the orders sought here. This ground is satisfied on the balance in favour of the applicant. And given this fact it would be in the interest of Justice to grant as he has pleaded. It would be within the authority in this area of the law: McHardy v Prosec Security and Communication Ltd [2000] PNGLR 279. The materials relied on read with that law accord in aggregate that Stay be granted as applied.
   
6. The state has argued that applicant is already acting in the position. Stay is not necessary it would be the substantial remedy accorded him. Be that it maybe, he was serving in that position and was accorded favour by the National Executive Council yet to be formalized with a contract of employment in the hands of the defendant. Who has been directed in that regard by the former yet to be realized. It would be not wrong to put that word and status on hold by a formal stay as applied here. The balance is discharged in the aggregate considering all, because an undertaking as to damages was filed as of the 31^st May 2023. And in my view the interest of Justice overall is to accord the motion in favour of the applicant plaintiff as applied. He is therefore granted a stay in the terms of the motion pleaded here set out above.
   
7. The formal orders of the Court granted pursuant to the Jurisdiction set out above pleaded here are, pending hearing and determination of the substantive judicial review application herein or until further orders of this Court, the Defendant herein and the Board of Directors of the Coffee Industry Corporation Limited, and the National Executive Council (by themselves and their servants and agents) are restrained and injuncted against:
   
   1. appointing an acting Chief Executive Officer of the Coffee Industry Corporation Limited;
      
   2. taking steps to interfere with and or prevent the plaintiff from performing his functions and roles as Chief Executive Officer of Coffee Industry Corporation Limited.
      
   100. The Stay will be reviewed before this Court on or upon the expiration of 21 days as of today’s date on Friday 06^th October 2023 at 9.30am,
        
   4. Further Liberty is granted either parties to the dispute on application by Notice of three clear days to set aside the subject Stay now granted even before the expiration of the 21 days now granted expiring Friday 06^th October 2023.
      
   5. Costs will follow the event.
      

Orders Accordingly.
__________________________________________________________________
Kopunye Lawyers: Lawyer for the Plaintiff/Applicant
Office of the Solicitor General: Lawyer for the Defendants