Hitron Limited v The Independent Consumer and Competition Commission (2011) N5278

• Jurisdiction: Papua New Guinea
• Judge: Yagi J
• Judgment Date: 08 November 2011
• Court: National Court
• Citation: (2011) N5278
• Docket Number: OS (JR) NO. 365 OF 2011
• Year: 2011
• Judgement Number: N5278

Full Title: OS (JR) NO. 365 OF 2011; Hitron Limited v The Independent Consumer and Competition Commission (2011) N5278

National Court: Yagi J

Judgment Delivered: 8 November 2011

N5278

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

OS (JR) NO. 365 OF 2011

BETWEEN:

HITRON LIMITED

Plaintiff

AND:

THE INDEPENDENT CONSUMER AND COMPETITION COMMISSION

Defendant

Waigani: Yagi J

2011: 2nd & 8th November

PRACTICE AND PROCEDURE – inter parte hearing – whether order obtained ex parte should be discharged – principles discussed and applied – stay of investigation – nature of investigation administrative – no strong arguable case – overall interest of justice against stay – stay order discharged.

Cases Cited:

Green & Co Pty Ltd (Receiver Appointed) v Green [1976] PNGLR 73

Barker v The Government of Papua New Guinea, Davis and Bux [1976] PNGLR 340.

Leo Hannet & Anor v ANZ Banking Group (PNG) Ltd (1996) SC505

Pastor Johnson Pyawa v CR Andake Nunwa (2010) N4143

Pinggah v Elias (2005) N2850

Sausau v Kumgal and PNG Harbours Board (2006) N3253

National Executive Council and Luke Lucas v. Public Employees Association [1993] PNGLR 264

Rimbink Pato v Anthony Manjin & Others (1999) SC 622

Zachary Gelu & 2 Others v Sir Michael Somare & 2 Others (2008) N3526

Royale Thompson v Sylvester Kalaut & 5 Others (2011) N4265

Hon. Patrick Pruaitch MP v Chronox Manek (2010) N4149

Counsel

F. Griffin, for the Plaintiff

E. Anderson, for the Defendant

RULING

8th November, 2011

1. YAGI J: This is a ruling on the question whether the interim injunctions issued by the Court on 5th July 2011 should be extended or discharged. The injunctive orders were made ex parte and therefore an order was made for an inter parte hearing.

2. The substantive proceeding concerns an application for a review of certain decisions by way of directions issued by the Independent Consumer and Competition Commission (ICCC) to Hitron Limited (Hitron). It is commenced under Order 16 of the National Court Rules.

3. Hitron is a private company involved in the supply of television programmes through wireless technology commonly known as Multi-channel Multi-point Distribution Service or MMDS.

4. ICCC is a statutory body whose primary function and responsibility, amongst others, is to regulate certain goods, services and industries in the country. It also has the power to investigate complaints and enforce compliance with the laws relating to market conduct.

5. On 30th June 2011, Hitron commenced proceedings against ICCC seeking a number of orders in the nature of certiorari and prohibition to prevent ICCC to carry out its statutory function and responsibility.

6. On 5th July 2011 Hitron successfully applied and was granted leave for review by the Court. Upon grant of leave Hitron also successfully obtained a number of interim injunctive orders from the Court. In effect these orders restrained ICCC its servants, agents and officers from enforcing the directions issued to Hitron by ICCC, the subject of this proceeding.

7. When the Court granted the interim orders, it also ordered Hitron to serve all documents on ICCC. An order was also made for both parties to appear before the Court on 14th July 2011 at 9.30 am for an inter parte hearing. The hearing has been adjourned on a number of occasions and eventually it came before me. I heard both parties through their respective legal representatives and reserved.

Facts

8. On 21st February 2010, ICCC received a complaint of improper market conduct against Hitron. The complaint was made by Community Colour Television (CCTV), a private company also involved in the supply of television programmes. The complaint was in writing in the form of a letter. The complaint was generally in relation to alleged undue pressure exerted by Hitron on distributors of overseas television programmes resulting in CCTV sustaining loss to its supply of television programmes and hence business.

9. On the basis of the complaint, ICCC instituted an inquiry or investigation into the complaint under s. 6(e) of the Independent Consumer and Competition Commission Act 2002 (the Act). On 26th March 2010 ICCC wrote and requested Hitron to provide certain information and documents concerning the complaint.

10. On 21st April 2010, ICCC received further information and supporting documents from CCTV in relation to the complaint.

11. A meeting was convened on 27th May 2010 between Hitron and ICCC as part of the investigation process. Although the deliberations were in respect to the complaint generally, some of the specific matters requested by ICCC in its letter of 26th March 2010 was not addressed or discussed in the meeting.

12. ICCC continued in its efforts to follow up on these outstanding requests by email and correspondence. These were made on 31st May 2010 and 4th June 2010. It appears Hitron’s position is that it is unable to fully comply with these requests until further and better particulars or specifics are provided by ICCC.

13. By a letter dated 7th June 2010, Hitron through its lawyer, Young & Williams Lawyers, advised ICCC that the information it provided to ICCC are confidential and therefore must be treated as such within the meaning of s. 131 of the Act. This position was reiterated by Hitron’s lawyer in another letter to ICCC dated 14th June 2010.

14. On 14th December 2010 ICCC wrote to Hitron’s lawyer giving assurance that all information and documents supplied by Hitron would be treated as confidential and where disclosure is necessary and in the public interest Hitron will be given an opportunity to make representation prior to the release of such information and documents. In the same letter ICCC also asserted its powers under s. 128 of the Act and directed that Hitron produce a number of documents and information not later than 4.00 pm on 10th January 2011. The time line was later extended to 4th February 2011 at Hitron’s request.

15. On 27th January 2011 Hitron’s lawyer wrote to ICCC and amongst other things complained about the failure by ICCC to furnish a copy of the complaint and provide a response to the specific matters it requested.

16. Between February and June 2011, disagreements developed between Hitron and ICCC concerning the provision of the letter of complaint and other information and documents.

17. Hitron therefore commenced this action.

Issues

18. I deduce from the arguments presented that the following issues arise for determination:

1. Whether the order of 5th July 2011 should be extended or discharged.

2. Whether the order of 5th July 2011 was irregularly obtained.

19. The second issue is a procedural issue and is raised by ICCC.

Law

20. The law relating to setting aside an order that has been irregular obtained is clear. Where an order has been irregularly obtained, it must be set aside as a matter of course. see Green & Co Pty Ltd (Receiver Appointed) v Green [1976] PNGLR 73 and Barker v The Government of Papua New Guinea, Davis and Bux [1976] PNGLR 340.

21. The principle was reaffirmed by the Supreme Court in Leo Hannet & Anor v ANZ Banking Group (PNG) Ltd (1996) SC505 where the Court stated that:

“The Courts in Papua New Guinea have quoted authorities from England as well as Australian States on this issue. The most often quoted authority on this issue is Anlaby v Praetorius (1888) 20 QBD 764 which stands for the proposition that if a judgment is entered irregularly, the defendant is entitled to set it aside ex debito justitiae (as required in the interests of justice). This principle was approved in Green & Company Pty Ltd v Green [1976] PNGLR 73; Smeeton v Davara House Pty Ltd [1979] PNGLR 324; Page P/L v Malipu Balakau [1982] PNGLR 140. This authority is also referred to in Bank of South Pacific v Spencer [1983] PNGLR 239.”

22. With regard to the law on injunctions this is also settled. Injunction is an equitable relief and therefore the Court’s power to grant such a relief is discretionary. The purpose of an injunction is essentially to prevent occurrence of a certain act or event so that status quo is maintained or preserved until the substantive dispute between the parties is determined by the Court.

23. A leading case authority on the point in this jurisdiction is Robinson -v- National Airlines Commission [1983] PNGLR 476. The Court in Robinson case in discussing the principles adopted and applied the common law principles enunciated in a leading decision of the House of Lords in American Cyanide Company v. Ethicon Limited (1975) 1 All ER 594. The principles in the Robinson case has been cited with approval by the Supreme Court in a number of cases: see Craftworks Nuigini Pty Ltd v. Allan Mott (1997) SC 525 and Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853.

24. It has been stated that no hard and fast rules can be laid down when dealing with interlocutory injunctions. In Pastor Johnson Pyawa v CR Andake Nunwa (2010) – N4143 Makail J made the following statement:

“In Robinson -v- National Airlines Commission [1983] PNGLR 476, Andrew, J observed that interlocutory...