Wamena Trading Limited v Civil Aviation Authority of Papua New Guinea (2006) N3058

• Jurisdiction: Papua New Guinea
• Judge: Lay J
• Judgment Date: 10 May 2006
• Court: National Court
• Citation: (2006) N3058
• Docket Number: OS NO.848 OF 2005
• Year: 2006
• Judgement Number: N3058

Full Title: OS NO.848 OF 2005; Wamena Trading Limited v Civil Aviation Authority of Papua New Guinea (2006) N3058

National Court: Lay J

Judgment Delivered: 10 May 2006

N3058

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO.848 OF 2005

WAMENA TRADING LIMITED

Plaintiff

V

CIVIL AVIATION AUTHORITY OF PAPUA NEW GUINEA

Defendant

WAIGANI: Lay J

2006: 3 and 10 May

PRACTICE AND PROCEDURE– exparte injunction – application to set aside – considerations

PRACTICE AND PROCEDURE – exparte injunction – whether interim injunctive relief must be pleaded before it can be obtained

STAMP DUTIES ACT – s 19 – admission of unstamped document into evidence

CLAIMS BY AND AGAINST THE STATE ACT – whether the Civil Aviation Authority is “the state” for the purposes of s 5 of the Claims By and Against the State Act.

Cases Cited

SCR 1 of 1998; Reservation Pursuant to s 15 of the Supreme Court Act SC 672; Kemp Ada v Lin Wen Beau & Ors [1996] PNGLR 172; SCR No. 9 of 1990; Application by the Principle Legal Adviser Bernard M. Narokobi [1991] PNGLR 239; The National Housing Corp. v. Vicki John N2770; Mainland Holdings Ltd v Paul Stobbs N2522; National Housing Corp. Yama Security Services Pty Ltd N1985; Mark Ekepe v William Gaupe N2694; Sioti Bauf and Lovoi Nadai v Poliamba Pty Ltd [1990] PNGLR 278; Golobadana No 35 Ltd v Bank of South Pacific Limited N2309; Craftworks Niugini Ltd v Allan Mott SC 525; Milton McMahon & Louis Aitsi v Port Moresby Real Estate Pty Ltd [1986] PNGLR 208; Putput Logging Pty Ltd v Philip Ambolis [1992] PNGLR 159; Wahgi Security Services Pty Ltd v John Tenlon and Western Highlands Provincial Government Suspension [1994] PNGLR 136; Spirit Haus Ltd v Robert Marshall N2630; Jay Mungo Pty Ltd v Steamships Trading Co. Ltd (1995) PNGLR 129; Acting Public Prosecutor v Uname Aumone [1980] PNGLR 510; Rowland and Angela Chang, trading as Red Rose Restaurant v Aviat Social and Sporting Club (Lae) Inc. N913; Hollington v Hewthorn [1943] KB 587; Mesulam Tomalana v Rabaul Pharmacy [1991] PNGLR 65; AGC Pacific Ltd. v Woo International Pty Ltd [1992] PNGLR 100; Ume More v University of Papua New Guinea [1985] PNGLR 401; Siskina (Cargo Owners) v Distos SA [1975] AC 210; Films Rover International Ltd. v Cannon Film Sales Ltd. [1987] 1 WLR 670; Mount Hagen Airport Hotel Pty Ltd v Gibbs & Anor [1976] PNGLR 216; Mount Hagen Urban Local Level Government v NHC (WS 1194 of 2002, unreported decision of Mogish J 20 April 2004); Okam Sakarius v Chester N2355; Albert Areng v Gregory Babia N2895.

Counsel

D. Stevens, for the Applicant Defendant

P. Parkop, for the Respondent Plaintiff

Facts

The Plaintiff claimed it had entered into three (3) lease agreements with the Defendant in 2001 for premises at Jacksons Airport each for a period of ten (10) years. By letter sent to the Plaintiff by the Defendant in August 2005, the Defendant demanded that the Plaintiff vacate the premises. The Plaintiff immediately commenced proceedings for declarations as to the existence of the leases and an order for quiet enjoyment thereof and obtained an ex parte injunction preventing its eviction. In April 2006 the Defendant applied to set aside the injunction.

Held

1. Pursuant to the Evidence Act s 19, neither party could produce in evidence the unstamped lease documents;

2. There was other sufficient evidence on the existence of the leases to establish an arguable case for the Plaintiff;

3. The various submissions of the Defendant, as indicated below, could not succeed:

a. the non-disclosure to the Court granting the interim injunction of an injunction granted to the Plaintiff against the Defendant in OS 252 of 1999, in 1999, was not relevant as the injunction related to different lease agreements and had expired at the time of the application.

b. the non-disclosure to the Court granting the interim injunction of a 1999 conviction of the Plaintiff of two (2) counts of trading as a foreign enterprise without certification contrary to the provisions of Investment Promotion Act s 28 was irrelevant;

c. that the Public Accounts Committee had requested a review of the granting of the leases was not a relevant matter which should have been disclosed to the Judge on the ex parte application;

d. an interim injunction is not a cause of action and therefore does not need to be pleaded before the Court can grant the relief;

e. the undertaking as to damages was sufficiently executed by the General Manager of the Plaintiff because he was the directing mind and will of the Plaintiff;

f. the Defendant is not the State for the purposes of the Claims by and Against the State Act s 5 and consequently a notice pursuant to that section was not required;

1. The balance of convenience favours the Plaintiff because damages is not an adequate remedy, the Plaintiff is in the premises paying rent, the Defendant points to no pecuniary loss if the Plaintiff remains in the premises, the best course is that which does least damage and in this case that is to maintain the status quo.

2. Delay by a party affected by an interim order, in applying to set aside is ordinarily a factor against interfering with the order; delay by a party enjoying an interim injunction, in proceeding with its action is a factor against continuing the interim order; neither delay taken into account as not raised by counsel;

3. Application to dissolve the injunction and dismiss the proceedings refused orders for matter to proceed by way of pleadings with directions.

1. LAY J: By an Originating Summons filed on 2 September 2005, the Plaintiff seeks declarations that there are valid and legally binding lease agreements between the Plaintiff and the Defendant over three (3) concessions or premises situated at Jackson’s International Airport, Port Moresby.

2. On 12 September 2005, by ex parte application, the Plaintiff obtained orders preventing the Defendant from evicting the Plaintiff from the premises. Those orders have been extended from time to time by further applications, some made in the absence of the Defendant. On 3 April 2006, in the absence of the Defendant, the court ordered that those orders be extended until the matter is determined at the substantive hearing.

3. The Defendant now applies by motion originally filed on 14 March 2006, then amended and re-filed on 6 April 2006 to set aside the order and also to dismiss the proceedings for failing to comply with the provisions of s 5 of the Claims by and Against the State Act.

4. The Plaintiff’s evidence is that it was issued with the concessions in 1998 for a period of three (3) years and in 2001 the three (3) lease agreements were renewed for a period of ten (10) years to 2012 with an option to renew every three (3) years during the term of the lease the total term not to exceed ten (10) years (sic). The Plaintiff asserts it has complied with every term of the agreements and has not defaulted. By letter dated 29 August 2005, the Defendant instructed the Plaintiff to “……to vacate these premises effective today (29 August 2005)”. The Plaintiff estimates that, if it is forced out, its damages would exceed K600,000 and it does not believe that the Defendant is in a position to pay damages of that order. The Plaintiff is a nationally owned company. No undue influence was used to obtain the leases and it was unaware that Damarish Kaminiel, its Director, was the wife of Anthony Simitab, an officer of the Defendant and it never dealt with him directly. In WS 252/1999, the Court ordered permanent injunctions preventing the Defendant from evicting the Plaintiff until its leases expired.

5. The evidence for the Defendant is that none of the leases is registered with the Registrar of Titles and none of the leases has been stamped. No notice of proceedings has been given to the Solicitor General pursuant to s 5 of the Claims by and Against the State Act. Anthony Sumitab, an officer of the Defendant and husband of Damarish Kaminiel was actively involved in the issues surrounding the grant of the leases in his capacity as Principal Business Development and Concessions Officer. There is no record of him informing the management of the Defendant of his wife’s involvement in the Plaintiff. Clause 1.19 of the leases requires the Plaintiff to observe all Acts of Parliament, rules and regulations. The Plaintiff’s undertaking for damages is not signed by an officer of the Plaintiff. On 5 December 1999, Salika J found the Plaintiff guilty on two (2) counts of being a foreign enterprise trading without certification contrary to s 28 of the Investment Promotion Act.

Submissions

6. The Applicant Defendant’s submission is that having regard to the Civil Aviation Act 2000 s 8, 19 and 34, it is clear that the Defendant is an instrumentality of the State whose finances are derived from the State and which is subject to policy directions of a Minister of the State. Counsel relied on SCR 1 of 1998 ; Reservation Pursuant to s15 of the Supreme Court Act SC SC672; and Kemp Ada v Lin Wen Beau & Ors [1996] PNGLR 172 (Andrew J.) for the proposition that a statutory body is the State if it is subject to policy directions of a Minister; and is not the State...