Agutoi Trading Pty Ltd v National Capital District Interim Commission [1990] PNGLR 12

• Jurisdiction: Papua New Guinea
• Judge: Jalina AJ
• Judgment Date: 06 January 1990
• Court: National Court
• Citation: [1990] PNGLR 12
• Year: 1990
• Judgement Number: N798

Full Title: Agutoi Trading Pty Ltd v National Capital District Interim Commission [1990] PNGLR 12

National Court: Jalina AJ

Judgment Delivered: 6 January 1990

N798

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

AGUTOI TRADING PTY LTD

V

NATIONAL CAPITAL DISTRICT INTERIM COMMISSION

Waigani

Jalina AJ

3 January 1990

6 January 1990

INJUNCTION — Mandatory injunctions — Restoring things to former condition — Relevant principles — Probability of damages — Adequacy of damages — Costs of complying with order — Terms of order — Storekeeper's licence — Suspension unreasonable — Restoration ordered.

A trading company was notified of the suspension, for a period of three months, of its storekeeper's licence for breaches of conditions of the licence and notice of the suspension was advertised in two daily newspapers. The trading company was not previously notified of the alleged breaches of conditions nor had it been given an opportunity to refute the alleged breaches. On an application for a mandatory injunction lifting the suspension of the licence pending a proper determination of the matter;

Held

(1) A mandatory injunction, the purpose of which is to compel the restoration of things to their former condition, is an entirely discretionary remedy, taking into account all the circumstances of the case, and as to which the following considerations are relevant:

(a) whether the plaintiff has shown a very strong probability upon the facts of grave damage occurring to him in the future;

(b) that damages will not be a sufficient or adequate remedy if damage does occur in the future;

(c) the question of the cost to the defendant of complying with a mandatory order in relation to which a distinction is to be drawn between cases where the defendant has acted wantonly and unreasonably towards the plaintiff and cases where the defendant has acted reasonably, though in the event, wrongly.

Redland Brick Ltd v Morris [1970] AC 652 at 665-667, applied.

(2) A mandatory injunction, except in very exceptional circumstances, should be granted in such terms that the person against whom it is granted ought to know exactly what he has to do.

(3) In the circumstances, the defendant had acted wantonly and unreasonably in suspending the storekeeper's licence without giving it an opportunity to be heard, the suspension was likely to affect the goodwill and business operations of the plaintiff and might cause grave damage not otherwise anticipated, damages would not be an adequate remedy and the cost to the defendant of complying had not been shown.

(4) The defendant should be ordered to lift the suspension of the storekeeper's licence pending a proper hearing of the matter and final determination of the proceedings or the expiration of three months whichever should first occur.

Cases Cited

Leytrac Pty Ltd v The Independent State of Papua New Guinea [1982] PNGLR 148.

Redland Brick Ltd v Morris [1970] AC 652.

Robinson v National Airlines Commission [1983] PNGLR 476.

Specialist Centre Pty Ltd v The Independent State of Papua New Guinea [1988-89] PNGLR 22.

Motion

This was an application on notice seeking, inter alia, mandatory injunctions.

Counsel

I Kaur, for the applicant/plaintiff.

D Lambu, for the respondent/defendant.

Cur adv vult

6 January 1990

JALINA AJ: On Wednesday, 3 January 1990, in my first case after I was sworn in on 2 January 1990 as an Acting Judge of the National Court, I gave orders in favour of the plaintiff with brief oral reasons based on my notes of the proceedings. I had to do it that way as the court sittings on Thursday and Friday (4 and 5 January respectively) were cancelled due to the death of the late Governor-General, Sir Ignatius Kilage, and I was scheduled to depart on circuit to East New Britain on Saturday, 6 January. I now give my detailed reasons for the decision.

The facts of this case are that, on 28 December 1989, the defendant, through its Liquor Licensing Committee, wrote to the plaintiff giving notice of and, in fact, suspending its storekeeper's licence in respect of Section 3, Allotment 3, Badili. The letter, which was addressed to the Manager, is in the following terms:

"Dear Sir,

Subject: SUSPENSION OF STOREKEEPER'S LICENCE

You are hereby advised that your Storekeeper's Licence in respect of the premises situated at Section 3, Lot 3, Badili is suspended as of 28/12/89 at 1.00 pm for a period of three (3) months.

The reasons for the suspension are that you have breached the conditions of the Storekeeper's Licence set by the Licensing Committee of NCDIC.

The conditions breached are:

1. The Licencee shall not deliver beer to any premises other than duly licenced premises.

2. The licencee shall not sell more than two cartons of beer to any one person during any one day.

As Chairman of the Liquor Licensing Committee of NCDIC, I consider this a gross breach of the NCD Liquor Law. Therefore on this basis the Committee has ordered that your licence be suspended for a period of three (3) months.

Yours faithfully,

COMMISSIONER,

Liquor Licensing Commission."

On 2 January 1990, the plaintiff issued a writ of summons claiming damages. On the same day, it filed a notice of motion seeking the following orders and I quote:

"1. For a mandatory order that the defendant and its servants or agents lift the suspension of the plaintiff's Storekeeper's Licence in respect of Section 3, Allotment 3, Badili pending a proper hearing of this matter and the final determination of these proceedings.

2. For a mandatory injunction order that the defendant and its servants or agents immediately notify the South Pacific Brewery and other suppliers of the plaintiff that the said suspension has been lifted until further order.

3. For an injunction to restrain the defendant and its servants or agents from proceeding any further with the suspension of the said Storekeeper's Licence pending further order.

4. For an order that the defendant publish a retraction of the notification of the suspension of the said Storekeeper's Licence in the Post-Courier and the Niugini Nius.

5. That the defendant be ordered to pay the cost of this Application.

6. That the time for entry of this order be abridged to the time of settlement of the order by the Registrar which shall take place forthwith.

7. Such or further orders as the Court deems fit."

The case was argued before me that morning and lasted about an hour and I adjourned for decision that afternoon. It was a case which was not strongly contested by Mr Lambu for the defendant. I will deal with the defence case later. Ms Kaur, for the plaintiff, was a little more prepared although I would have liked her to have done a little better. For example, the plaintiff's storekeeper's licence, which the defendant is alleged to have suspended, was not produced or annexed to the affidavit filed by the plaintiff in support of this application.

In support of its application, the plaintiff has filed an affidavit sworn by one Paul Clowes, who is one of its directors. In the affidavit, Mr Clowes says that the plaintiff has not breached the conditions of its licence, that the defendant had not adduced any evidence in support of the allegations, that it had not been given any opportunity to refute the alleged breaches, that the defendant had published the suspension in the two daily newspapers and that such publication has affected, or is likely to adversely affect, its business and its goodwill in its business operations.

May I mention, in passing, that my perusal of the above letter from the NCDIC (which is annexure "A" to the affidavit of Paul Clowes) does not mention anything such as, a period of time within which the plaintiff would be allowed to reply to the alleged breaches before the defendant could suspend the licence. In fact, when I queried why the licence was mentioned in Mr Clowes' affidavit but not annexed to it, I was informed by Ms Kaur that it had not, in fact, been issued. All that the plaintiff had was a letter notifying the plaintiff to pay the licence fee. The plaintiff, it appears, has been trading on the basis of that letter. This obviously raises a serious question as to whether there is, in fact, a licence and what the conditions of such a licence are. If there was no licence, how was the plaintiff supposed to have breached its conditions? If there was a licence (but the conditions of such licence have not been brought to the notice of the plaintiff), how was the plaintiff supposed to know what conditios it had to comply with? Ms Kaur did not argue this point which is a crucial point in my view.

Ms Kaur (for the plaintiff) relied on Robinson v National Airlines Commission [1983] PNGLR 476, a well-known case in Papua New Guinea on interlocutory injunctions. She quoted to me a passage (at 480) where his Honour, Andrew J, referring to earlier decisions on interlocutory injunctions, said:

"The purpose of an interlocutory injunction is to preserve the status quo until the hearing of the main action 'where...