Fiji Television Ltd v Minister for Information, Broadcasting, Television & Telecommunications [1997] FJHC 97; Hbj0012d.1997s (30 July 1997)

Fiji Islands - Fiji Television Ltd v Minister for Information, Broadcasting, Television & Telecommunications - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

JUDICIAL REVIEW

ACTION NO. HBJ0012 OF 1997

BETWEEN:

FIJI TELEVISION LIMITED
Applicant

AND:

MINISTER FOR INFORMATION, BROADCASTING,
TELEVISION & TELECOMMUNICATIONS
Respondent

J. Howard for the Applicant
and and E. Walker for the Respondent

Date of Hearing: 20th June 1997
Date of Interlocutory Judgment: 30th July 1997

INTERLOCUTORY JUDGMENT

Introduction and Background:

This application for an interim injunction and judicial review raises important questions of public and constitutional law concerning whether an interim injunction can be granted against the Government of Fiji restraining it through, in this case, the Minister for Information, Broadcasting, Television & Telecommunications from unilaterally rescinding a contract freely entered into with another person (in this case the Applicant) on the grounds of public policy and that the contract is in breach of the Fair Trading Decree 1992.

The contract here is a Licence, granted pursuant to Part II of the Television Decree 1992 to establish, operate and maintain a commercial television broadcast system for the purpose of providing free to air and pay television broadcast services to all points in Fiji. The Licence, which was effective from 1st July 1994, is an exclusive Licence for a period of 8 years (minimum) to 12 years (maximum), unless the Licence is revoked or suspended. The person granting the Licence was the former Minister for Information, Broadcasting & Telecommunications acting on behalf of the Government of Fiji. The public policy said to be involved is the recent policy of deregulation announced by the Minister for Finance in his Budget address to Parliament last year. I shall refer later in more detail to this policy when commenting on a letter dated 23rd May 1997 by the Respondent to the Applicant and an affidavit by the present Minister for Information, Broadcasting, Television & Telecommunications ("the Minister") sworn and filed on the 18th of July 1997.

The provision of the Fair Trading Decree which the Respondent alleges is contravened by the Licence is Section 27 which appears in Part III of the Decree under the heading "Restrictive Trade Practices". Because of its importance to the present proceedings I set out in full Section 27:

"Contracts, arrangements or understandings restricting dealings or affecting competition.

1. If a provision of a contract -

(a) is an exclusionary provision; or

(b) has the purpose, or has or is likely to have the effect, of substantially lessening competition,

that provision is unenforceable in so far as it confers rights or benefits or imposes duties or obligations on a person.

2. A person shall not -

(a) make a contract or arrangement, or arrive at an understanding, if-

(i) the proposed contract, arrangement or understanding contains an exclusionary provision; or

(ii) a provision of the proposed contract, arrangement or understanding has the purpose, or would have or be likely to have the effect, of substantially lessening competition; or

(b) give effect to a provision of a contract, arrangement or understanding, whether the contract or arrangement was made, or the understanding was arrived at, before or after the commencement of this section, if that provision -

(i) is an exclusionary provision, or

(ii) has the purpose, or has or is likely to have the effect, of substantially lessening competition.

3. For the purposes of this section and section 28 "competition", in relation to a provision of a contract, arrangement or understanding or of a proposed contract, arrangement or understanding, means competition in any market in which a person that is a party to the contract, arrangement or understanding or would be a party to the proposed contract, arrangement or understanding, or any body corporate related to such a person, supplies or acquires, or is likely to supply or acquire, goods or services or would, but for the provision, supply or acquire, or be likely to supply or acquire, goods or services."

Facts

The following facts are not in dispute between the parties:

Following the granting of the licence to the Applicant in what the Applicant describes as a form of "legislation by press release", the Respondent first announced his intention with respect to this matter by a press release of 15th April 1997 which advised of the Government's intention to issue a separate pay television licence to the joint venture known as Fiji Vision Limited.

Clauses 2.1 and 2.2 of the licence read as follows:

"2.1 This licence shall be valid for a period of fifteen years pursuant to Clause 16 of this licence.

2.2 During the fifteen year validity period the licence shall, unless revoked or suspended be exclusive for a period of eight years and up to a maximum period of twelve years."

By a letter dated 18th April 1997, the Respondent gave notice of his intention to revoke the exclusivity provision contained in Clause 2.2 by writing a letter in the following terms to the Applicant:

"I refer to the Television Broadcast Licence granted pursuant to Section 4 of the Television Decree 1992 and in particular to the term of the licence as provided in paragraph 2. Paragraph 2.2 provides that Fiji Television Limited is to have a 15 year licence, to be exclusive for a period of 8 years and up to a maximum period of 12 years. The proviso in paragraph 2 allows for revocation or suspension of this exclusive period. This is further reinforced in Section 8 of the Television Decree 1992.

I have carefully given due consideration to the exclusivity provision in the licence and am mindful of the public interest and the provisions of the Fair Trading Decree 1992 on the issue of exclusivity and hence intend to revoke the exclusive provision in your licence.

Therefore, in keeping with the requirement of Section 8(2) of the Television Decree 1992, you are given 14 days notice of my intention to revoke this condition as stated above."

On 28th April 1997 the Applicant protested at the purported notice of revocation and sought to present submissions to the Respondent. The Respondent allowed the Applicant seven (7) days for this purpose, and submissions on behalf of the Applicant were lodged with the Respondent on 9th May.

By a letter dated 23rd May 1997, the Respondent confirmed the "revocation" of the exclusivity of the licence in the following terms:

"1. I am satisfied that the exclusive provision in your licence is in breach of section 27 of the Fair Trading Decree.

2. I am satisfied that the exclusivity provision in the licence falls foul of Government's policy. It is common knowledge that Government has embarked on a policy of de-regulation. General policy announcements to this effect was made in last year's budget and discussed and agreed to in Cabinet. The policy entails liberalising the economy. The policy further includes the removal of protection on certain goods and services, reducing the range of goods currently under price control, and increasing the degree of competition where this is restricted in the economy, whether in public enterprises or in the private sector. The enhancement of competition is a key element in this policy. The policy is aimed towards the consumer. The public will be a beneficiary in that a wide range of products will be more affordable, the choice range will be bigger, better quality goods and the service will be more efficient.

3. On the issue of compensation, I do not see the need for me to meet with you as I do not propose to make any payment in that respect.

Therefore, in exercise of the powers vested in me under section 8(1) of the Television Decree 1992, I revoke the exclusivity provision contained in paragraph 2.2 of the Television Licence dated 24 June, 1994. This therefore means that as from the date of this letter the 8 years exclusive period and up to a maximum of 12 years contained in your Licence is hereby revoked forthwith."

The Legislation:

The grant of television broadcasting Licences is governed by the Television Decree 1992. By Section 3, the Government has the "exclusive privilege" of, inter alia broadcasting any "broadcast matter" by television in Fiji.

The term "broadcast matter" is defined in section 3 to mean any signals transmitted by a television station for aural and visual reception. "Television station" is defined to mean a station which transmits broadcast matter by radio waves, wire or cable for reception by the general public through television broadcast receivers.

Section 4(1) prohibits broadcasting without a Licence in the following terms:

"No person shall broadcast any broadcast matter by television in Fiji except under or in accordance with a Licence granted under this Part."

Licences themselves are created under Section 4(3) and (4), which provide:

"(3) Every such Licence shall be in such form, and may contain such terms and conditions as the Minister may determine.

(4) In granting a Licence under this Part, the Minister may require the licensee to pay a premium for the issue of the Licence or such annual fee, rent or royalty as the Minister may determine."

By section 7, a Licence "shall be subject to such conditions as may be endorsed therein and shall, unless sooner revoked or suspended, be valid for a period not exceeding twelve years from the date of the granting or issue of such Licence" or such shorter period as may be specified in the Licence.

By section 9 of the Decree, the Minister has the power to "suspend or revoke a Licence" where he is satisfied of the existence of one of the specified grounds, namely:

-the licensee has failed to pay an amount specified in the Licence;

-the licensee has failed to comply with the provisions of the Decree;

-the licensee is no longer a fit and proper person to hold the Licence;

-the licensee no longer has the financial, technical and management capabilities necessary to operate the broadcasting station;

-the licensee has failed to comply with a direction given by the Minister;

-the licensee has failed to comply with the conditions specified in the Licence;

-"it is advisable in the public interest, for a special reason, to do so".

Before suspending or revoking a Licence the Minister must give a notice of his intention, and allow the licensee to show cause why the Licence should not be suspended or revoked.

The Applicant's Licence:

I repeat briefly what I said at the beginning: In 1994, the Applicant was granted a television broadcasting licence ("the Licence"). The final form of that Licence was submitted to the Applicant under cover of a letter from the Respondent's Department dated 5 January, 1995. The Licence, by clause 20, was deemed to come into effect on 1 July, 1994.

The operative part of the grant of the Licence is in the following terms:

"Pursuant to section 4 of the Television Decree... there is hereby granted to Fiji Television Limited ("the company") a Licence to establish, operate and maintain a television broadcast system for the purpose of providing by means of that system television broadcast services to any and all points within Fiji."

The terms "broadcast matter" and "television station" have the same definitions in the Licence as they do in the Decree: clause 1.

I have already set out clause 2.

Clause 16, which is referred to in clause 2.1, provides that the Minister may revoke the licence and any permission conferred on the licensee by the Licence in any of the following events:

-the winding-up of the licensee;

-the unauthorised transfer by the licensee of the Licence or any of the permissions granted under the Licence;

-the contravention of the Licence, and the licensee has failed to rectify such contravention after notice in that regard.

The exclusive nature of the Licence for commercial broadcasting is reinforced by the provisions of Clause 10, which provides that nothing in the Licence shall affect the Government's right to establish or cause to be established and operated any television system for:

-any Government purposes of a non-commercial nature, and

-experimental purposes of a temporary nature.

Clause 3 provided for the payment by the Applicant of an annual Licence fee. This Licence fee is subject to adjustment - Clause 3.2.

The services to be provided by the Applicant under the Licence were set out in Clause 4 in the following terms:

"The Company shall provide one national free-to-air service and up to a maximum of four pay television channels."

Injunctive Relief:

On 2nd June 1997, the Applicant filed its application for leave under Order 53 of the Rules of the High Court to apply for Judicial Review of the Respondent's decision purporting to revoke the exclusivity of the Applicant's Licence. At a brief interim hearing before me on 4th June, 1997 the learned Acting Solicitor-General very sensibly in my view informed me that the grant of leave would not be opposed. In my view this is realistic because I consider that this is an appropriate case for the grant of leave.

Pending the hearing and determination of the Judicial Review proceedings, a date for which has not yet been fixed, the Applicant seeks interlocutory injunctive relief to restrain the Respondent from issuing or granting or giving effect to a decision to grant any Licence under the Decree to any person other than the Applicant.

Although I suggested to counsel that, because leave was not opposed, I would grant a stay of the Respondent's announced intention to issue another licence to Fiji Vision Limited, the Applicant preferred to proceed with its motion for an interim injunction and as that course was open to it, I did not demur.

As usual when Mr. Howard and the Acting Solicitor-General appear in this Court I found their submissions to me which occupied a whole day most helpful.

Mr. Howard first submits that this Court has jurisdiction to grant injunctions, including interim and interlocutory injunctions against Ministers and other officers of the State in judicial review proceedings - Kaisiepo v. Minister of Immigration Judicial Review No. HBJ0025 of 1995S - unreported decision of Pain J. of 8th February 1996. In that case Pain J. followed the benchmark decision of the House of Lords in M. v. Home Office [1993] UKHL 5; (1993) 3 ALL E.R. 537, (1993) 3 WLR 433, in which the House of Lords made it clear that injunctions, both final and interim, have always been and still are available against Ministers and officers of Government empowered in their own names, although as Lord Woolf, who delivered the major speech on behalf of his brother Law Lords, said at p.564 (1993) 3 ALL E.R., p.463 (1993) 3 WLR:

"The fact that, in my view, the court should be regarded as having jurisdiction to grant interim and final injunctions against officers of the Crown does not mean that that jurisdiction should be exercised except in the most limited circumstances. In the majority of situations so far as final relief is concerned, a declaration will continue to be the appropriate remedy on an application for judicial review involving officers of the Crown. As has been the position in the past, the Crown can be relied upon to co-operate fully with such declarations."

The question I have to decide is whether the facts of this case as they are so far known constitute "most limited circumstances", to enable the Applicant to be granted the relief it seeks.

It was submitted to me by counsel for the Respondent that this Court should exercise great care in following M. v. Home Office on the ground that the Court should exercise the power given to it only in extreme circumstances because, he alleged, the grant of injunction is peculiar to immigration, and in particular to deportation cases and should be used as a last resort.

I consider that statement too wide because although M. v. Home Office was an immigration case and urgent in the sense that an attempt was made, unsuccessfully as it transpired, to prevent deportation of M. from England to Zaire, I do not read the House of Lords saying in its decision that its parameters were to be so constrained.

Although in practice both here and in England and no doubt elsewhere immigration cases will generally be those calling for urgent injunctive relief, nevertheless I consider there is no justification for so limiting the decision in M.

Since the House of Lords pronounced its judgment in American Cyanamid v. Ethicon Limited [1975] UKHL 1; (1975) A.C. 396 the decision has been recognised in common law countries where decisions of the House of Lords are followed as setting out the guidelines which are to be followed by Courts in deciding whether or not to grant interlocutory injunctions. These are that the Court must:

(a) be satisfied that there is a serious question to be tried; and

(b) to determine where the balance of convenience lies.

It has been said that the real significance of the decision in American Cyanamid was that whereas previously a party seeking injunctive relief would fail if he could not establish a prima facie case, the House of Lords swept away this requirement and held that, in the case of prohibitory injunctions, an Applicant need establish only a real possibility of success, and not a probability. As the learned authors of Snell's Equity 29th Edition 1990 remarked at p.661:

"This meant that the balance of convenience, which had always been an important factor, became decisive in many more cases, since the initial hurdle in the plaintiff's path had been lowered."

Lord Diplock who delivered the judgment of the House said at (1975) A.C. 406:

"The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff's need for such protection must be weighed against the corresponding need for the defendant to be protected against the injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at trial. The court must weigh one need against the other and determine where the 'balance of convenience lies'."

Whilst in Francome v. Mirror Group Newspapers Ltd. (1984) 1 WLR 892 at p.898, Lord Donaldson M.R. said the phrase "balance of convenience" was unfortunate and he preferred the expression "balance of justice" because the business of the courts is justice, not convenience, nevertheless for practical purposes there is probably little difference. He then said, "We can and must disregard fanciful claims by either party".

In his submission Mr. Nand argued that in public law cases such as the present, the wider public interest needs to be weighed against that of narrow private individual rights and he referred me to the statement of Mr. Clive Lewis in his book Judicial Remedies in Public Law 1992 at p.205 that:

"There is doubt as to the applicability of the American Cyanamid test to public law disputes as they are not like ordinary litigation. The Courts need to balance not only the interests of the immediate parties to the application but also the wider public interest in the matter.

Doubt has also been cast on the applicability of American Cyanamid to cases where the dispute is one of law not facts. The rationale underlying the case is that disputed questions of fact ought not be resolved at the interlocutory stage......... Lord Diplock also stated that difficult questions of law should not be determined at the interlocutory stage. Most judicial review applications involve questions of law and cross examination is in any event rare. The Courts may therefore be less reluctant to come to a view on the merits of the case on the basis of affidavit evidence alone at an interlocutory stage in a review application."

I note here that Mr. Lewis' book was published in 1992 before the decision in M. v. Home Office.

In the 6th Edition of his "Administrative Law" at p.588 Sir William Wade refers to the English Crown Proceedings Act 1947 which is identical with the Crown or State Proceedings Act 1978 Cap. 24 of Fiji and criticises the fact that the Act forbids an injunction being granted against the Crown but allows the Court to make an order declaratory of the rights of the parties. It had been held in R. v. Inland Revenue Commissioners exp. Rossminster Ltd [1979] UKHL 5; (1980) A.C. 952 that the Act authorises only a definitive order corresponding to a final injunction and not an interim order corresponding to an interim injunction. Sir William Wade says:

"There seems to be no necessity for this narrow interpretation of the Act which is contrary to its policy of putting the Crown on the same footing as a private litigant."

The Applicant submits that there is a serious question to be tried and again, with commendable candour, Mr. Nand on p.7 of his written submission states:

"In the present case it is without doubt that there are serious questions of law to be tried, which should done at the substantive hearing, after the Court has had an opportunity of hearing the views of the Minister for Information, Broadcasting, Television and Telecommunications."

He then says that once directions are given by this Court for the substantive hearing, the Minister will file an affidavit giving his reasons. This as I said at the beginning

has now been done and the Minister gives his reasons in paragraph 7 of his affidavit. He first says that after receiving Fiji Television's submissions, he took all relevant facts into consideration and in particular the Fair Trading Decree of 1992. He then says:

"The Fair Trading Decree as the name suggests is designed to promote fairness in all trading practices. I am informed by my legal counsel that the exclusive nature of the licence is in breach of section 27 of the Fair Trading Decree. I took fully into account the submissions of Fiji Television Limited weighing as a value judgment the commercial interests of Fiji Television against the Government's policy considerations and its impact on the wider public interest. In making my decision as the Minister responsible, I took into account all relevant matters pertaining to the issues to be considered. That in making my decision, I took into account that the policy is designed to attract investment, and restrictions such as exclusive licences would send wrong signals to potential investors. Furthermore, since the licence itself is in breach of the Fair Trading Decree, its continuation in that form would again send the wrong signals to potential investors, that the Fiji Government is not serious about enforcing its own legislation. With such matters in mind I revoked the exclusivity provision contained in paragraph 2.2 of the Television licence."

I agree that these are serious issues but in my opinion the list should be much longer. In my opinion this case gives power to raise for example the principle of unconscionability in that it seems arguable to me at least that here the Court is entitled to consider the conscience of the Respondent. In Campbell Discount Co. v. Bridge (1961) 1 Q.B. 445 at 459 the Court said that it was not part of the role of the Court to dissolve or vary contracts thought to be harsh on the basis of so-called equitable principles. It has been said that its role is to prevent the Defendant (in this case I substitute Respondent) from insisting on his strict legal rights, when owing to his behaviour it would be unconscionable or inequitable to allow him to do so - Taylors Fashions Ltd. v. Liverpool Trustees Co. (1982) 1 Q.B. 133 at pp 151, 152, 155 per Oliver J. (as he then was).

Another serious question appears to me to be the apparent incongruity of the Respondent through its previous Minister granting the Applicant a Licence and accepting all fees payable thereunder even until now and then asserting, as the present Minister now does, that from the very beginning the Licence contravened the Fair Trading Decree.

If the Court is later to accept the Minister's claim that the Licence is contrary to the Decree then it seems that the only inference the Court can draw is that at all times, at least until the Minister's letter of 23rd May 1997, the Respondent condoned such breach and arguably did nothing to dissociate itself from what it now claims is a clear breach of the law.

The Acting Solicitor-General submits, quoting dicta by Lord Denning M.R. and Geoffrey Lane L.J. in Smith v. Inner London Education Authority (1978) 1 ALL E.R. 411 that public bodies should not be prevented from exercising public law powers unless the applicant can establish that the person or body is acting unlawfully. In the same case Browne L.J. said at p.422 that where the defendant is a public authority performing duties to the public one must look at the balance of convenience more widely and take into account the interests of the public in general to whom these duties are owed.

I agree with respect but in my judgment the general public also has an interest in seeing that Ministers of State behave fairly at all times and not unreasonably. It seems to me arguable that the public here may consider that the Minister's

decision in revoking the Applicant's Licence contradicts that principle. It would appear that until the Minister's letter of 23rd May nothing had been heard of the Fair Trading Decree as far as this Licence was concerned.

In NTN Pty Ltd. v. The State (1986) PNGLR 167 at 176 the late Chief Justice of Papua New Guinea Kidu C.J. said:

"I am astounded that the State, after entering into a contract which is very clearly worded, would now renege on it."

It is true that the facts of this case are different from those in NTN Pty Ltd but it seems to me at least arguable that the Respondent and the Government of Fiji is attempting to do here the very thing which Sir Buri Kidu condemned in NTN.

It is also curious at least in my view that Papua New Guinea with a population of 4.9 million at its last census should have only one commercial television station whereas it is proposed that Fiji with a population of only 770,000 should be seriously considering having two such stations.

When during argument I suggested to Mr. Nand that in the circumstances of this case it may have been prudent even if he were not legally bound to do so, for the Minister to have warned the public that the Government was about to invoke the Fair Trading Decree when the Applicant announced its intention to make a share issue to the public, Mr. Nand replied that in his view the onus was not on the Minister but on the company itself. This may be true and of course I make no final decision at this stage, but given the fact that the Minister must be regarded as the guardian of the public interest, it appears somewhat strange - 17 -

that the Minister should say nothing to the public as its guardian when he must have known that the Applicant was going to make a share issue.

The Respondent submits that this Court should be very wary in making any finding, even an interim one, which questions the Minister's discretion based on public policy and he reminds me of my decision in State v. Governor of Reserve Bank of Fiji ex-parte Reddy's Enterprises Limited - unreported judgment of Byrne J. of 29th November 1990 subsequently upheld by the Supreme Court. I make two comments on this. First as I pointed out in argument the facts and the circumstances in the Reddy's Enterprises case were noticeably different from those in the instant. In Reddy's Enterprises the Governor of the Reserve Bank was concerned to retain as much currency in Fiji as possible as a consequence of the military coups of 1987 which I likened to the position in England in 1947 following the Second World War.

As a general principle it must be accepted that the Courts will normally not interfere in matters regarding government policy but it seems to me arguable that the Courts may question the timing of the assertion and implementation of government policy in particular cases.

In paragraph 7 of his affidavit previously quoted the Minister says:

"Since the licence itself is in breach of the Fair Trading Decree, its continuation in that form would again send the wrong signals to potential investors, that the Fiji Government is not serious about enforcing its own legislation."

That may be true but I may be pardoned for wondering whether wrong signals to potential investors might not also be given if they were to come to know that this Government entered into a licence agreement granting exclusive rights to one person when it must have known that to do so contravened the Fair Trading Decree, yet less than 3 years later the Government alleged that not only the person to whom it granted the licence but also itself were at all times acting in breach of the Decree.

Finally there is a particularly important serious question to be tried in my view in addition to those I have so far identified namely the fact that it appears by his letters of 18th April and 23rd May 1997 that the only basis on which the Respondent has purported to revoke the exclusivity of the Licence is by relying on Section 8 of the Decree. However Section 8 on its face only empowers the Respondent to "vary or revoke any of the conditions upon which the licence is granted...... or impose further conditions".

The Applicant submits that the exclusive quality of the Licence is not a "condition upon which the Licence" was granted, and is therefore not susceptible to revocation under Section 8. It is submitted that the word "condition", when used in contract law is often synonymous with the word "term", and the two are often used interchangeably. In the Decree, however it is submitted there is clear differentiation between the two words, they are both used in Section 4(3) yet Section 8 refers only to condition. In Wallis Son & Wells v. Pratt & Haynes [1911] UKLawRpAC 21; (1910) 2 K.B. 1003 at 1012 Fletcher Moulton L.J. said that condition and term "go so directly to the substance of the contract or, in other words, are so essential to its very nature that their non-performance may fairly be considered by the other party as a substantial failure to perform the contract at all". The Applicant says that it intends to argue at the trial that the word "condition" under Section 8 is used in this sense, i.e. it refers to the terms of performance imposed on the Applicant by the Licence, breach of which would give rise to a right in the Respondent to move for termination or, as here, "revocation" of the Licence.

It is contended that this interpretation is reinforced by the following words in Section 8, namely that the Minister has the power unilaterally to impose further conditions. Therefore, it is submitted the grant of exclusivity is not a "condition" and cannot be revoked by Ministerial order.

I agree that this too is a serious question requiring further debate at the trial.

Other such questions and issues are set out on pages 9 and 10 of the Respondent's written submission such as,

(a) whether there is any evidence to show that the exclusivity provision in the licence was what led to the company establishing a television service in Fiji when it was the Government's intention at the time to set up a television service with or without an exclusive licence;

(b) there is no evidence that $2m in capital was subscribed by the public and that the exclusive nature of the licence was what caused the public to subscribe;

(c) that the potential loss to the public will be millions of dollars as claimed by the Applicant.

The remaining question is whether the Applicant would be adequately compensated by an award of damages if I were to refuse its application for an interim injunction. The material before me persuades me that arguably it would not. I am presently of the view that it may be impossible even to calculate such damages. The Applicant submits that if a competitor television station is allowed to operate the Applicant will most likely have to withdraw from the pay television market in which case the likely loss of value to individual shareholders on their shares cannot be adequately compensated by an award of damages or even calculated at this time. There is nothing in the present material to persuade me that the Respondent will suffer any loss if I preserve the status quo pending trial.

It will be noted that the Minister in his letter of 23rd May stated that he did not see the need to meet with the Chairman of the Applicant to discuss the question of compensation because he said:

"I do not propose to make any payment in that respect."

He may be right (he certainly appears very confident) but again in my view this is yet another serious question which must be tried.

For these reasons I consider the Applicant is entitled to the interim relief which it seeks in its Notice of Motion of 3rd June 1997. I therefore order that pending the determination of the application for Judicial Review the Respondent be restrained from issuing or granting or giving effect to a decision to grant any licence under the Television Decree, 1992 to any person except the Applicant. Costs of this application will be in the cause.

JOHN E. BYRNE
JUDGE

Legislation and authorities referred to in judgment:

Crown or State Proceedings Act Cap. 24.

Fair Trading Decree No. 25 of 1992.

Television Decree No. 35 of 1992.

American Cyanamid v. Ethicon Limited [1975] UKHL 1; (1975) A.C. 396.

Campbell Discount Co. v. Bridge (1961) 1 Q.B. 445.

Francome v. Mirror Group Newspapers Ltd. (1984) 1 WLR 892.

Kaiseipo v. Minister of Immigration Judicial Review No. HBJ0025 of 1995S - unreported judgment of Pain J. of 8th February 1996.

Clive Lewis - Judicial Remedies in Public Law 1992.

M. v. Home Office [1993] UKHL 5; (1993) 3 ALL E.R. 537, (1993) 3 WLR 433.

NTN Pty Ltd. v. The State (1986) PNGLR 167.

R. v. Inland Revenue Commissioners ex-parte Rossminster Ltd. [1979] UKHL 5; (1980) A.C. 952.

Smith v. Inner London Education Authority (1978) 1 ALL E.R. 411.

State v. Governor of Reserve Bank of Fiji ex-parte Reddy's Enterprises Limited - unreported judgment of Byrne J. of 29th November 1990.

Snell's Equity 29th Edition 1990.

Taylors Fashions Ltd. v. Liverpool Trustees Co. (1982) 1 Q.B. 133.

Wallis Son & Wells v. Pratt & Haynes [1911] UKLawRpAC 21; (1910) 2 K.B. 1003.

Wade's Administrative Law 6th Edition 1988.

The following additional authorities were citied in argument:

De Falco v. Crawley Borough Council (1980) 1 Q.B. 460.

Evans Marshall & Co. v. Bertola (1973) 1 WLR 349.

Films Rover International Ltd v. Canon Film Sales Ltd (1987) 1 WLR 670.

Hubbard v. Vosper (1972) 2 Q.B. p.84.

New Law Journal 18th September 1982 article by Sir William Wade p. 1275.

R. v. Kensington and Chelsea Royal Borough Council ex-parte Hammell (1989) Q.B. 518.

Sierbein v. Westminster City Council (1987) 86 L.G.R. 431 C.A.

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