Khans Service Station Ltd v Nadi Town Council [2005] FJHC 536; HBC0253.2005 (19 September 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0253 OF 2005

BETWEEN:

KHANS SERVICE STATION LTD
PLAINTIFF

AND:

NADI TOWN COUNCIL
DEFENDANT

Messrs Yash Law for the Plaintiff
Messrs Babu Singh and Associates for the Defendant

Date of Hearing: 16 September 2005
Date of Judgment: 19 September 2005

INTERLOCUTORY JUDGMENT OF FINNIGAN J

In its substantive action commenced by Writ on 6 September 2005 the Plaintiff seeks substantial remedies against its Local Government Authority. It seeks to obtain most of those remedies as temporary relief by this interlocutory application in which it seeks 3 mandatory injunctions, 2 restraining injunctions and 3 declarations. If successful it will achieve as interim relief the removal of a median strip that presently it claims is reducing its business and the replacement of some parking meters that have been taken away by the Defendant. It will also have obtained 3 declarations that the Defendant had no legal right to do the things which caused the Plaintiff to file this action.

I have read every word of the Affidavits filed by each party and of the submissions filed by each Counsel. I have had oral submissions on 16 September 2005 and have considered them at length. Counsel for the Plaintiff mounts a detailed and forceful argument fully supported by a detailed affidavit with annexures and by cititations from certain statutes. He has fully explored the substantive law that in his submission governs the Defendant’s action in erecting street barriers and removing parking meters. He responds in detail to a claim in the Defendant’s affidavit that the Defendant is acting intra vires Reg. 53 of the Land Transport (Traffic) Regulations 2000. He extensively argues the law which the Plaintiff says applies including the Town Planning Act Cap 139, the Local Government Act Cap 125, the Public Health Act Cap 111, the Land Transport Act No. 35/1998, the Land Transport (Traffic) Regulations 2000 and the Constitution of Fiji. He addresses also briefly the principles for interlocutory relief. Counsel for the Defendant relies solely on those principles for interlocutory relief as set out in American Cyanamid Co –v- Ethicon Ltd [1975] UKHL 1; (1975) AC 396.

Counsel for the Plaintiff wishes to litigate in this interlocutory proceedings the issues raised by the Plaintiff, all being issues of law. There is no way the Court can give a fully considered judgment on the law in these interlocutory proceedings. The only matter the Court can decide is whether to grant any or all of the 8 powerful remedies sought by applying the principles for interlocutory applications, which both Counsel have acknowledged. (1) are there serious issues to be tried? (2) would damages be an adequate remedy for the Plaintiff if this interim relief is refused? And (3) if not what is the balance of convenience and if this is equal then the Court will tend to preserve the status co.

Clearly there are serious issues to be tried. The Plaintiff is attacking the very foundation of the Defendant’s actions. The Plaintiff itself may have to establish its own standing, e.g. in its complaint about the removal and replacement of parking meters. It proceeds on a claim of loss of profits but so far has produced no evidence. As well, the Defendant submits that the Plaintiff’s procedure is wrong and the writ action itself will be challenged. There is not yet any Statement of Defence.

Will damages be an adequate remedy?. The loss of profits alleged will have to be proved and if they have occurred and if they continue to occur they will be amenable to an award of compensatory damages. Plaintiff’s Counsels submits that the losses will go on to infinity or so long as the company exists. I cannot follow that. Profits are generally read in profit and loss accounts. Comparisons can be made. Losses can be calculated. It is a matter of evidence. The Plaintiff can be compensated by damages for proved losses.

So far the principles are against granting any of the interim relief sought. For completeness I consider the balance of convenience. In my view it favours continuation of the 3 month trial which the Plaintiff is attempting to stop. I am told it has less then 3 weeks to run after which the benefit to the wider community which the Defendant claims is already occurring will be assessed and the legal and practical aspects of the Defendant’s action properly evaluated. Likewise any losses that may be suffered by the Plaintiff. Any illegal harm to the Plaintiff can after that be compensated in damages. These proceedings can be prepared for hearing.

In my view the 3 Declarations sought could never have been granted by way of interlocutory relief. It was most unlikely that any order would be made in interim proceedings for re-instatement of parking meters. Neither could the Court in my view consider any of the other remedies without full litigation of the facts and argument of the law. I dismiss the application for all 8 Orders of Interim Relief.

Costs are assessed in favour of the Defendant. Its only actions have been to prepare and file an affidavit and brief submissions. I summarily assess quantum at $500.00.

D.D. Finnigan
JUDGE

At Lautoka
19 September 2005