Aro Investments Pty Ltd v Fly River Provincial Government [1997] PGNC 4; N1519 (6 February 1997)

Unreported National Court Decisions

N1519

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 35 “B” OF 1997
BETWEEN
ARO INVESTMENTS PTY LTD - PLAINTIFF
AND
FLY RIVER PROVINCIAL GOVERNMENT - 1ST DEFENDANT
AND
ANDREW I TEMU - 2ND DEFENDANT

Waigani

Sevua J
5-6 February 1997

PRACTICE AND PROCEDURE - Injunction - Application to set aside - Not available when the act to be restrained has already occurred.

PRACTICE AND PROCEDURE - District Court Order - Application to set aside - S.25 District Court’s Act - District Court may set aside - Appeal against District Court order is appropriate relief.

Held

1. As the plaintiff’s contract to supply and deliver to the first defendant, the services known as Daru Town Garbage & Sanitation Contract had already been terminated, an injunction is not available.

2. Section 25 of the District Court’s Act gives the plaintiff the right to have an ex-parte order set aside in the District Court.

3. The plaintiff’s proper course of action would be by way of an appeal to the National Court pursuant to s.219 of the District Court’s Act.

4. The plaintiff’s application is dismissed.

Cases Cited

Leytrac Pty Ltd v The State [1982] PNGLR 148

Counsel

R Saulep for Plaintiff

6 February 1997

SEVUA J: The plaintiff has made this application seeking two orders. Firstly, it seeks to restrain the first and second defendants their servants and agents from interfering with the right of the plaintiff to supply and deliver to the first defendant the services provided in the contract between the plaintiff and the first defendant known as the Daru Town Garbage and Sanitation Contract. And secondly, it seeks an order that the Daru District Court orders made on 3rd February, 1997, be set aside on the basis that the District Court had no jurisdiction.

The brief facts are as follows. The plaintiff and the first defendant entered into a contract on 4th March, 1986, whereby the plaintiff would provide removal services for refuse and night soil in the town of Daru and such services would be paid for by the first defendant. Pursuant to Clause 6, the contract was for three years but was renegotiated on 4th March, 1987, for a further three years, commencing that date.

At the expiration of the contract, it was not renewed, however, the plaintiff continued to provide the services and the first defendant continued to pay for such services. There is evidence that the contract had lapsed on 31st September, 1994, following a six months extension from 1st April, 1994. I cannot follow how this came to be, but that is the evidence before me.

On 2nd April, 1996, the second defendant wrote to the plaintiff and amongst other things, informed the plaintiff that, “in the meantime alternative arrangements for the provision of Garbage and Sanitation Services are being investigated, including the calling of new tenders”.

On 2nd November, 1996, a tender was called by the Western Province Supply and Tenders Board. On 14th January 1997, the second defendant formally advised the plaintiff that its bid for this tender was unsuccessful. On 16th January 1997, the second defendant, in his capacity as Chairman of Western Province Supply and Tenders Board formally advised the plaintiff, amongst other things, that a new contract was being executed with the new contractor, and the new contractor shall commence these services on 1st February 1997 whilst the plaintiff’s interim contract would lapse on close of business, 31st January, 1997. Since that letter, correspondence have been exchanged between the plaintiff and its lawyers and the defendants, subsequently leading to these proceedings.

On 3rd February 1997, the Daru District Court ordered firstly, that the plaintiff was to relinquish the sanitation pans to the new contractor, Regs Services forthwith, and secondly, that the Police Station Commander is to assist Regs Services to enter the plaintiff’s premises to physically remove the sanitation pans and deliver them to the premises of Regs Services. Apparently, the plaintiff had refused to deliver pans and other equipment to the first defendant following the latter’s request on 16th January, 1997, hence the District Court proceedings.

Counsel for the plaintiff has made two submissions. Firstly, he submitted that the plaintiff was entitled to a notice of termination of the contract and since the defendants had not given proper notice to terminate the contract, the plaintiff is entitled to continue with the contract. His second submission is that, the Daru District Court has no jurisdiction to entertain this matter because, he submitted, the contract was worth more than K100,000.00, therefore that Court did not have jurisdiction. This Court notes that, in the substantive proceedings which are on foot, the plaintiff is seeking various declarations and injunctions including the restraining order it is seeking in paragraph 1 of its notice of motion now before me.

With respect to counsel, I consider that the whole application is misconceived and should be refused.

Firstly, the contract which the plaintiff seeks to rely on had already expired in September 1994. There was no renewal so the services including the payment for such services were being rendered on an ad hoc and interim basis. The plaintiff knew that a tender was being proposed and it knew this because the second defendant had advised in its letter of 2nd April 1996. There is no provision in the contract governing the giving of notice of termination, but in my view, the plaintiff had been aware as early as April 1996, that the defendants were reviewing the contract including the calling of a new tender.

Even if the Court finds that proper notice was not given to the plaintiff, and I am not determining this issue now, I consider that its remedy is in damages in lieu of notice or for breach of contract not an injunction. The plaintiff, in my view, cannot come to this Court and seek what is tantamount to specific performance in the manner it has done in this action. Here the defendants have awarded a contract to a new contractor following a public tender which effectively severed the plaintiff’s services. The new contract was to have commenced on 1st February 1997, but it could not because, sanitation pans and other equipment are currently being withheld by the plaintiff. So, as far as the defendants are concerned, the plaintiff, as at 31st January 1997, was no longer, the contractor.

The so called ‘plaintiff’s right’ to supply and deliver to the first defendant the services known as Daru Town Garbage and Sanitation Contract has been terminated and to seek an order to restrain an act which has already occurred is inappropriate and contrary to the legal principle which is well established. I refer to Leytrac Pty Ltd v The State [1982] PNGLR 148 in which the Court held:

“where an act intended to be restrained has already occurred an injunction to restrain is not available: an alternative remedy by way of declaration may be available.”

In my judgment therefore, the plaintiff is not entitled to the relief it now seeks.

Secondly, the plaintiff seeks to have the Daru District Court order of 3rd February, 1997 set aside. I am not aware if that order was granted following an exparte application. If it was then, s.25 of the District Courts Act gives the plaintiff the right to have it set aside by way of an application to the District Court. If the order was granted after a full hearing, then I consider that the plaintiff’s relief is not what it is now seeking from this Court.

In my view, the plaintiff’s proper course of action would be an appeal to the National Court pursuant to s.219 of the District Courts Act. That is a statutory right of the plaintiff, as it is obvious that the plaintiff is aggrieved by the order of the said District Court. I consider that the plaintiff’s application before me, in so far as it relates to the second relief it is seeking, is tantamount to an abuse of the process of the Court and this Court has power to prevent its process being abused. Since the plaintiff is obviously aggrieved by the decision of the District Court, it should have appealed against that decision, to this Court. The procedure employed by the plaintiff is inappropriate, mischievous and contrary to the provisions of the District Court’s Act.

For these reasons, I refuse the plaintiff’s application and order that this application be dismissed.

Lawyer for Plaintiff: Pato Lawyers