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Morove v Webster [2005] PGDC 38; DC195 (14 September 2005)

DC195

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 2270 OF 2005

BETWEEN

Elizabeth Morove
Complainant

V

Dr Thomas Webster
National Research Institute
First Defendant

National Research Institute
Second Defendant

Port Moresby: Bidar
2005: 13th And 14th September

DISTRICT COURT- Practice and Procedure - Application to set aside Ex parte orders of this court dated 10th August, 2005 - General principals - District Court Act, S.25

Counsel
G.Tamade for applicant/defendant
K.Kepo for Respondent/complainant

RULING

14th September, 2005

BIDAR, PM: On the 1st September 2005 the Defendants filed a notice of motion seeking the following orders:

"1. The ex parte orders made by the Court on 10th August 2005 be set aside pursuant to S.25 of the District Court Act.

2. This proceedings be struck out for disclosing no reasonable cause of action

3. The Complainant pays costs of the Defendants.

4. Any other orders the court deems fit."

To understand the orders sought it is appropriate to state in brief the background to this proceedings.

On the 9th August 2005, the complainant filed summons upon complaint against the defendants claiming among other things that the defendant be restrained from evicting the Complainant until a suitable accommodation is found to accommodate her and her family; as well as restraining Defendants from taking any disciplinary action against her.

On the 10th August 2005, she applied ex parte and obtained certain interim restraining orders, which is the subject of the present proceedings.

In support of the orders sought the Defendants rely on affidavit of Stanislaus Motolova sworn on 23rd August 2005, as well as that of Gertrude Tamade sworn on 1st September and filed on the same date.

Mr. Motolova deposes to various facts including complainants employment as secretary to the second Defendant. Complainant since 2001 has been living temporary in a house at Rainbow which is owned by the second Defendant. After he advised Complainant verbally to vacate the house in February 2005, a memo was sent to her advising her to vacate the house as the Institute was facing accommodation problem to accommodate Senior Research Officers, whom the Institute was obligated to accommodate. Mr. Motolova has deposed to various facts which I have read and considered.

The complainant swore to an affidavit on 12th and filed on 13th September 2005, in response to the application which I have considered as well.

Basically the orders complainant obtained ex parte on 10th August 2005 were injunctive orders. To obtain injunctive orders the principles are that, there is a serious issue to be decided and that the balance of convenience favours granting of such injunctive orders.

Whether, the circumstances are such that the complainant has a genuine interest which should be preserved.

This is a situation where the Defendants are lawfully entitled to make decisions for the benefit of the Institute and should not be prevented from lawfully doing their job.

I accept that Complainant is an employee of the Second Defendant and it has gone out of its way to arrange accommodation for complainant, although she is not entitled to accommodation as condition of her employment.

As to whether or not there is a reasonable cause of action for Complainant to pursue, it seems her action initially was to obtain injunctive relief, which she did on 10th August, but has no proprietary interest to protect or maintain the status quo. She may or may not have an equitable interest to protect but this was not her properly and sufficiently argued.

Upon reading the affidavits for and against the orders sought and having heard both counsel, I am unable to be satisfied that the Complainant has a genuine interest to be protected so as to allow continuance of the injunctive orders, because there is no reasonable cause of action on foot to pursue. Secondly, the Defendants should not be prevented from carrying out its lawful duties for benefit of the second defendant.

In all the circumstances, I grant the motion by Defendants. I make the following orders:

(1) The ex parte orders of this court dated 10th August 2005 and set aside.

(2) The proceedings filed herein by complainant on 9th August 2005, is struck out for disclosing no reasonable cause of action.

(3) As to the alleged rental arrears I refuse to order payment of the same, as this should be properly claimed in a separate proceedings

(4) In relation to costs which is a discretionary matter, and in these circumstances, I order parties to pay their own costs

(5) These orders are abridged

Public Employers Associate: Complainant
Counsel K. Kepo
Pacific Legal Group: Defendant
Counsel G. Tamade