Gobe Hongu Limited v The National Executive Council, The Independent State of Papua New Guinea, Barclay Bros (PNG) Limited and Southern Highlands Gulf Highway Limited (1999) N1920

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (1999) N1920
• Date: 08 June 1999
• Year: 1999

Full Title: Gobe Hongu Limited v The National Executive Council, The Independent State of Papua New Guinea, Barclay Bros (PNG) Limited and Southern Highlands Gulf Highway Limited (1999) N1920

National Court: Sevua J

Judgment Delivered: 8 June 1999

1 Civil—Practice and Procedure—Interlocutory Injunction—Application for—Proper principles reaffirmed.

2 JF Stratford & Son Limited v Lindley [1964] 3 All ER 102, American Cyanamid Co v Ethicon Ltd [1975] AC 396, Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers and Seamen's Union (1982) N393, Craftworks Niugini Pty Ltd v Allan Mott [1998] PNGLR 572, Haro Yamis v Viviso Seravo, Minister for Lands and Others (WS 713 of 1998, Unnumbered and Unreported judgment dated 9 November 1998), Norah Mairi v Alkan Tololo (No 1) [1976] PNGLR 59, Mt Hagen Airport Hotel Pty Ltd v Gibbes [1976] PNGLR 216, Mauga Logging Co Pty Ltd v South Pacific Oil Palm Development Pty Ltd (No 1) [1977] PNGLR 80 and Robinson v National Airlines Commission [1983] PNGLR 476 referred to

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Sevua J: The plaintiff, in its writ of summons filed on 17 May 1999; claimed contractual losses amounting to K337.5m, third party contractual losses, punitive damages, interest and costs. There is a amended writ of summons which was filed on 28 May, however, for the purpose of this judgment, it is not relevant because, the interim injunctive orders granted by this Court on 18 May, was in respect of the original writ. The amended writ was filed subsequent to the grant of interim injunction.

In essence, the plaintiff's claim alleged "breach of promise or undertaking" by the defendants. I have highlighted the words "breach of promise or undertaking" in this judgment because those were in the words of the plaintiff's counsel, and to this Court, they are pertinent. I will revert to this point later.

When this matter initially came before me on 18 May, the application for interim injunction was made ex parte. The interim orders were therefore granted ex parte. At the outset, I wish to reiterate one aspect of this application. When the application was made ex parte, I expressed my reservation about this application. I considered that, one of the fundamental principles in granting interim injunctions, the balance of convenience, did not favour the plaintiff then. I will address that issue later, now that the Court has had the benefit of full arguments and I will refer to counsel's submissions later.

The law on the grant of interim injunctions is clear and is well settled in our jurisdiction. There are many case laws on it which I do not intend to canvass. For my purpose, I may only cite a few of these authorities to highlight what I wish to emphasise in this judgment. I should, at this juncture, thank counsel for their assistance in preparing written submissions.

Counsel for the third defendant, Mr Lightfoot has argued several matters extensively, assisted by Mr Sheppard, counsel for the fourth defendant. These submissions are quite helpful, however, I do not propose to canvass all these arguments. Where necessary, I will refer to parts of these submissions including the plaintiff's counsel's submissions.

As I alluded to a little earlier, the law on interim injunctions has been settled in Papua New Guinea. An application for interim injunction is required to establish a number of matters to satisfy the Court before the Court grants an interim injunction.

The relevant principles, since the House of Lord's decision in JT Stratford & Son Limited v Lindley [1964] 3 All ER 102, are laid down in American Cyanamid Co v Ethicon Ltd [1975] AC 396, which has been adopted as part of the underlying law in this jurisdiction. These principles are set out by Kapi DCJ in Employers Federation of Papua New Guinea v Papua New Guinea Waterside Workers and Seamen's Union (1982) N393. The Supreme Court in Craftworks Niugini Pty Ltd v Allan Mott [1998] PNGLR 572 cited these principles. Those are the principles applicable to an application for interim injunction in this jurisdiction. I referred to these principles recently in Haro Yamis v Viviso Seravo, Minister for Lands and Others (WS 713 of 1998, Unnumbered and Unreported judgment dated 9 November 1998). I reaffirm those principles as the relevant principles applicable.

In JT Stratford (supra) the House of Lords stated the principle to be this: an applicant seeking an interlocutory injunction must establish a prima facie case. However, the House of Lords reconsidered that principle and expanded on it in American Cyanamid (supra) and since then, the principles have had good reception in this jurisdiction. Apart from Craftworks Niugini Pty Ltd v Allan Mott [1998] PNGLR 572, the following are some of the cases soon after Independence which adopted these principles: Norah Mairi v Alkan Tololo (No 1) [1976] PNGLR 59, Mt Hagen...