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Demok v Yapi [2024] PGNC 68; N10720 (12 April 2024)

N10720

PAPUA NEW GUINEA
[IN NATIONAL COURT OF JUSTICE]

OS NO. 334 OF 2023

BETWEEN:
JOHN DEMOK
First Plaintiff

AND:
KATU YAPI, LUTHERAN HEALTH SERIVCES NATIONAL SECRETARY
First Defendant

AND:
JOEL RONAPO, the incumbent Health Manager of the Morobe Regional Lutheran Health Services
Second Defendant

AND:
THE LUTHERAN CHURCH OF PAPUA NEW GUINEA
Third Defendant

Lae: Dowa J
2024: 9^th & 12^th April

PRACTICE AND PROCEDURE– application for interim restraining orders-whether the plaintiff met the requirements for interim interlocutory orders-held on termination of employment of the applicant the balance of convenience does not favour the grant of interim restraining orders as the status quo has shifted in favour of the Defendants-application refused.

Case Cited:
Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853
Robson vs. National Airlines Corp [1983] PNGLR 476
Wamena Trading Ltd vs. Civil Aviation Authority [2006] PNGLR 1
Employers Federation vs. PNG Waterside Workers (1982) N393
Mondio vs. Moses (2018) N7563
Wingti v Rawali and others (2008) N3568

Counsel:
K Keindip, for the Plaintiff
M Karu, for the Defendants

INTERLOCUTORY RULING

12^th April 2024

1. DOWA J. This is a ruling on two competing applications.
   
2. The Plaintiff, by Notice of Motion, applies for the following orders:
   
   1. That the second Defendant be restrained from performing any duties of the Regional Health Manager of the Morobe Provincial Lutheran Health Services pending determination of these proceedings.
      
   2. That the Defendants be restrained from evicting the Plaintiff and his family from the institutional house at the Second Defendant's Headquarters at Ampo, Lae.
      
3. The Defendant, on the other hand, by Notice of Motion, seeks orders that:
   
   1. The Plaintiff deliver up vacant possession of the institutional house he is now occupying at Ampo, Lae.
   2. The Defendant and his relatives be restrained from remaining on the said property.
      
4. I will deal with the Plaintiff’s Application first.
   

Facts

5. The Plaintiff was employed as Lutheran Health Services Regional Health Manager until his termination on 22^nd March 2023. He is based in Lae, at the Lutheran Headquarters, Ampo, Morobe Province. The Plaintiff alleges that his termination is unlawful in that the first Defendant did not follow the Lutheran Health Services Policy, dealing with Staff Disciplinary matters. He alleges that the First Defendant who orchestrated the termination does not have the power to terminate senior staff, like him. He has therefore commenced this proceeding seeking nullification of the termination and for an order for reinstatement.
   
6. Pending the hearing of the substantive proceedings, the Plaintiff seeks interim orders for preserving the status quo, especially that the Second Defendant has been appointed to take over his job.
   

Issues

7. The issue for consideration is whether the Court should grant the interim orders sought and further restrain the Defendants from removing him from the institutional house he is currently occupying.
   

The Law

8. The law on interim injunctive orders is settled in this jurisdiction led by the Supreme Court in Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853. Other relevant cases are Robson vs. National Airlines Corp (1983) PNGLR 476, Wamena Trading Ltd vs. Civil Aviation Authority (2006) PNGLR vol 1, pages 236, Employers Federation vs. PNG Waterside Workers (1982) N393 and Mondio vs. Moses (2018 N7563, and Wingti v Rawali and others (2008) N3568.
   
9. In Robson vs. National Airlines Corp. (1983) PNGLR 476, at page 480 of the judgment, the Court said:
   

“The purpose of an interlocutory injunction is to preserve the status quo until the hearing of the main action “where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo”, per Frost C.J in Mt. Hagen Airport Hotel Pty Ltd vs. Gibbs and Anor [1976] PNGLR 316. No real principles can be laid down as to when they should or should not be granted except they are granted when “just or convenient” and what falls within that description must differ substantially from case to case. As Lord Denning M.R. said in Hubbard vs. Vosper [ 1972] EWCA Civ 9; [1972] 2 W.L.R. 389 at 396 “In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of claim but also to the strength of the defence and then decide what is best to be done. Sometimes it is best to grant an injunction so as to maintain the status quo until the trial. At other times it is best not to impose a restraint upon the defendant but leave him free to go ahead...The remedy by interlocutory injunction is so useful that is should be kept flexible and discretionary. It must not be made the subject of strict rules.”

10. In Wingti v Rawali his Honour Cannings J when dealing with a stay application for a recount in an election petition set out the relevant considerations. At paragraph 12 of the judgment, his Honour said:

“It is incumbent on the applicant for a stay order to show that:

1. there are serious questions to be tried and that an arguable case exists.
2. an undertaking as to damages has been given.

100. damages would not be an adequate remedy if a stay is not granted.

4. the balance of convenience favours the granting of a stay; and
5. the interests of justice require that there be a stay.”
   

11. I will apply the above principles in the present case.
    

Are there serious questions to be tried, or does the Plaintiff have an arguable case.

12. The Plaintiff says the First Defendant did not have authority to terminate him. The Plaintiff argues, the Defendant did not follow the disciplinary process under section 4.7 of ELCPNG-Lutheran Health Services-Policy and Procedures Manual. The Defendants argue that this rule does not apply to the Plaintiff’s case. Clearly, the Plaintiff has demonstrated he has an arguable case.
    

If a stay is not granted, would damages be inadequate remedy.

13. The decision sought to be reviewed is made by the First Defendant. It was appealed to the LHS National Health Appeal Committee. The Committee considered the Appeal. The Committee decided that in lieu of the termination, they demoted the Plaintiff and have him transferred out to a new location with other conditions. The Plaintiff was directed to take up his new role as Nursing Officer within one month. The Plaintiff opted not to take up the new job. Clearly the decisions are made by the senior management level of the LHS of the ELCPNG. ELCPNG is a big corporate body established by an Act of Parliament operating in PNG. It is therefore safe to say the answer to the question is “No”. If the interim orders are not granted, damages would still be an adequate remedy in the event of a successful outcome in favor of the Plaintiff.
    

Does the balance of convenience favor the granting of interim orders.

14. The Plaintiff is seeking two separate interim orders. In the first, the Plaintiff is seeking the stay of the decision, in that it restrains the Second Defendant from taking up the position left by the Plaintiff. The evidence shows, the Second Defendant was appointed on 29^th March 2023 to take up the position left vacant by the Plaintiff.
    
15. The Second Defendant has since occupied the position and is currently functioning in that capacity. A stay is likely to cause disruption to the smooth and good administration of the Lutheran Health Services run by ELCPNG. The balance of convenience does not favour the granting of a stay.
    
16. In respect of the second relief, the Plaintiff seeks to restrain the Defendant from evicting him from the institutional house he is occupying. The Defendants submit that the house is needed by the Second Defendant and the new Financial Manager. Although the Plaintiff has an arguable case, the balance of convenience does not favour the grant of the relief he is seeking. The house is required by the Defendants to house their current serving employees. The Plaintiff has been terminated and he as no immediate right to accommodation being provided by the Defendants. The status quo has shifted in favour of the Defendants many months back and thus nothing to preserve. In the circumstances, it is not in the interest of justice to grant the interim restraining orders sought by the Plaintiff.
    

Defendants’ Application

17. The Defendants apply for an order that the Plaintiff deliver up immediate possession of the Defendant’s house he is currently occupying. For the same reasons given in refusing the Plaintiff’s application, the Defendants are entitled to vacant possession of the house currently occupied by the Plaintiff. The Court will give reasonable time to the Plaintiff to vacate the premises. In my view a reasonable period should be two (2) months.
    

ORDERS

1. The Plaintiff’s application for interim orders sought in the Notice of Motion filed 04^th December 2023 is refused.
2. The Plaintiff shall deliver up possession of the institutional house he is currently occupying to the Defendants within 2 months from date hereof.
3. The parties shall file further affidavits if they wish by 31^st May 2024.
4. The matter returns to Court for listing on 3^rd June 2024.
5. Costs be in the cause.
6. Time be abridged.
   

________________________________________________________
Daniels & Associates: Lawyers for the Plaintiff
Gor Lawyers: Lawyers for the Defendants