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Kufuana v Correctional Institutional Services of Papua New Guinea [1998] PGDC 7; DC30 (4 June 1998)

Unreported District Court Decisions

[1998] PNGDC 7 - BUTTICK F KUFUANA & OTHERS V CORRECTIONAL INSTITUTIONAL SERVICES

[1998] PNGDC 7

PAPUA NEW GUINEA

[DISTRICT COURT OF JUSTICE]

DC NOS 80-82 OF 1998

PARTIES:� BUTTICK K KUFUANA

FIRST APPLICANT

AND

JACK J PISE

SECOND APPLICANT

AND

OTTO M KARI

THIRD APPLICANT

V

THE CORRECTIONAL INSTITUTIONAL SERVICES OF PAPUA NEW GUINEA

RESPONDENT

Kimbe

2 June 1998

4 June 1998

S Lenalia PM

CIVIL LAW - Application to stay execution � Ejectment Orders made � Applicants retired Correctional Services Officers � No such requirement to stay execution pending appeal.

APPLICATION TO STAY EXECUTION � District Court � Basis of jurisdiction � District Courts Act (Chapter 40) s22 � District Courts Regulation (Chapter 40) s46 � National Court Rules O13 r11, r21.

Cases Cited

Robinson v National Airlines Commission [1983] PNGLR 476 distinguished

Mt Hagen Airport Hotel Pty Ltd v Gibbs and Anor [1976] PNGLR 216 distinguished

Representation

Counsel/Representative

Applicants:� O Oiveka

Respondent:� No appearance for the Respondent

Lawyers/Representative

Applicants:� The Public Solicitor

Respondent:� No appearance for the Respondent

4 June 1998

S LENALIA PM:

N1>[1]����� The facts which led to institution of this application are well stated in the judgment of my learned brother His Worship, Mr Manuhu dated 21 May of this year. In brief this is an application by the three Applicants to stay execution of an eviction order, successfully obtained against them by the Respondents. The three Applicants are retired and were former Correctional Services Officers based in Lakiemata Goal in the West New Britain Province. The Applicants have been occupying State Houses since their retirement in 1996 and 1997 respectively. From the facts, the First Applicant retired with a pension on 19 July 1996. In the case of the second and third Applicants, they retired on 31 January and 1 March 1997 respectively. Each officer has refused to deliver up possession of the premises they now occupy at the Lakiemata Goal. The Correctional Services Department took out eviction proceedings against them and on 21 May (last month), they were ordered to deliver up possession by today (4 June 1998). The three Applicants have filed a Notice of Appeal pursuant to s220 of the District Courts Act (Chapter 40) and have now applied to this Court to stay execution pending their appeals, or alternatively, to stay the eviction orders for two months to enable them to arrange for their childrens' schooling, as well as to await their excess baggage entitlements. I understand from my reading of the judgment, the subject of this application, is that the Warrant of Execution would be effective as from today.

N1>[2]����� The lawyer for the Applicants submitted that the basis for this application is s22 of the District Courts Act to which I agree. That section reads:

N2>"22.��� General ancillary jurisdiction

Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it:

(a)����� grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and

(b)����� give the same effect to every ground of defence or counterclaim, whether equitable or legal,

as ought to be granted or given in a similar case by the National Court and in as full and ample a manner."

N1>[3]����� This Court's jurisdiction also stems from s46 of the District Courts Regulation which deals with deficiencies or lack of procedural provisions in both the Act or Regulation itself. That section says:

N2>"46.��� Supplying deficiencies in Regulation, etc

Where in this Regulation, there is no provision, or no sufficient provision, for or in respect of any matter or thing, then the Court may supply the deficiency, or allow it to be supplied, in such manner as may be just and proper, and for that purpose regard may be had to any relevant or analogous practice, procedure or form in use by, or for the purposes of, the National Court."

N1>[4]����� The above two provisions empower this Court to entertain applications of this nature where there are no specific provisions provided by either the District Courts Act or the District Courts Regulation. In the National Court, Order 13 r11 and r21 of the National Court Rules conveniently cater for application to be made to stay execution. Thus Order 13 r11 of the Rules says:

N2>"11.��� Matters occurring after judgement

(1)����� A person bound by a judgement may move the Court for a stay of execution of the judgement or for some other order, on the ground of matters occurring after the date on which the judgement takes effect and the Court may, on terms, make such order as the nature of the case requires.

(2)����� Sub-rule (1) does not affect the powers of the Court under Rule 21 (stay of execution)."

Then O13 r21 of the Rules says:

N2>"21.��� Stay of execution

The Court may, on terms, stay execution of a judgement or order."

N1>[5]����� The lawyer appearing for the three Applicants in his affidavit filed and sworn to on 26 May says the Applicants have now appealed against the eviction orders obtained on 21 May 1998 and they each wish to remain in the institutional houses pending their appeals. In view of this argument Mr Oiveka argued that an Ejectment Order has been made against his clients and the return date is 4 June that is today (4 June 1998).

N1>[6]����� Reasons advanced in support of the application before me are that: first, if the Applicants are evicted today, being persons from outside this province, they will not find suitable accommodation for themselves and their families to await their appeals; and secondly, that the Applicants have not received their excess baggage entitlements. Apart from this, Mr Oiveka further submitted that the Applicants will not be able to find places for their school children if they were to go straight back to their home provinces. In the case of the First Applicant, he comes from Finschhafen in the Morobe Province. The Second and Third Applicants both come from Sandaun Province. It is also submitted on behalf of the Applicants that they have all been given what is due to them except for excess baggage entitlements.

N1>[7]����� It seems to this Court that the gist of the Applicants' argument is that despite being retired and despite been given all that is due to them except for the excess baggage entitlements, they should still be allowed to continue to occupy the houses until such time as their appeals are disposed of by the National Court.

N1>[8]����� As to when the National Court next sits, it is uncertain. The question that arises is, should this Court grant a stay order? or alternatively, should this Court exercise its discretion to extend the time for execution?

N1>[9]����� The question posed must be addressed in the light of various factors. First, the Respondent is under no obligation whatsoever to provide accommodation to anyone who has retired. The Applicants' contractual relationship in regard to their employment contract with the Respondent ceased when the three Applicants retired. Secondly the Court must look at the time taken and given to the Applicants to make arrangements for whatever they now plead in this application. The First Applicant retired almost two (2) years ago (19 July 1996), the Second Applicant one (1) year and six (6) months (31 January 1997) and the Third Applicant almost one (1) year three (3) months ago (1 March 1997).

N1>[10]��� Each officer has refused to deliver up possession since retirement. When the Respondent quite properly obtained Ejectment Orders, the Applicants have now lodged an appeal and further, applied to this Court to stay execution. Nothing in the District Courts Act prevented the Applicants from applying to the same magistrate whose order is the subject of the appeal and this application. I am of the view that the three Applicants have had sufficient time to prepare for their travels. I further hold the view that the contractual obligations between the three Applicants and the Respondent ceased when they were retired.

N1>[11]��� There is no basis for them to continue to occupy the three State houses. To make an order to stay execution would, in my view, be an abuse of the process and an intervention on the administrative functions of the Respondent on movement and relocation or replacement of staff.

N1>[12]��� The application before me is not in the nature of an interlocutory injunction the purpose of which is to "preserve the status quo" until the hearing of the main trial. The application before me is distinguishable from the case of Robinson v National Airlines Commission [1983] PNGLR 476 and Mt Hagen Airport Hotel Pty Ltd v Gibbs and Anor [1976] PNGLR 216. The principles stated in those two cases simply say that the purpose of an interlocutory hearing is to preserve the status quo until such time when the trial proper is heard. The circumstances of this application are distinct from the two cases cited. Order 18 r14 of the National Court Rules also says that an appeal cannot operate as a stay of an order.

N1>[13]��� In Robinson's case the Plaintiff was employed as Deputy General Manager of Air Niugini. His services were terminated and he sought mandatory and interlocutory injunctions to restrain his former employer, Air Niugini, from demanding possession of the property he then occupied prior to the termination of his employment. He filed a Writ of Summons claiming inter alia unlawful termination and other interim injunctive relief. The Court refused to grant interim injunctions saying that the plaintiff's remedy was to sue for damages for wrongful dismissal.

N1>[14]��� In the application before me, the Applicants have been ordered that by today (4 June 1988) they must be moved out forcefully if they still remain in occupancy of the three State Houses. Their case has been dealt with. They have been ordered to leave the CIS premises by today. Mr Oiveka also submitted that a day before the eviction orders were made, the Applicants received their excess baggage entitlements. So that at the end of the day, there are now no difficulties in "shifting" their personal effects from Kimbe back to their home provinces. I do not think I should grant further extension for the return date of the Ejectment Orders. It is my view that the Applicants have been given sufficient time to arrange for their travels, that of their families and of their personal effects. I must therefore refuse this application.

N1>[15]��� Orders accordingly.