Aro Investments Pty Ltd v Fly River Provincial Government and Andrew I Temu

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 06 February 1997
• Citation: (1997) N1519
• Court: National Court
• Year: 1997
• Judgement Number: N1519

National Court: Sevua J

Judgment Delivered: 6 February 1997

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...