| Fiji Islands - Trade Publicity Ltd v Shipbuilding (Fiji) Ltd - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO. 67 OF 1999
BN:
:
TRADE PUBLICITY LIMITED
Plaintiff
AND:
SHIPBUILDING (FIJI) LIMITED
Defendant
Mr. V. Kapadr the Plhe Plaintiff
Mr. W. Clarke for the Defendant
DECISION
(with detailed reasons later)
This is the plaintiff's motor an interlocutory mandatory injunction seeking an Order tder that the defendant do issue to the plaintiff
a 'contractors licence' to work on the slipway until such time as a final order is made in these proceedings.
The affidavits that I have used in considering this application are: (a) Affidavit in Support by Spencer Ah Sam, the Managing Director
of the Plaintiff company sworn and filed 17 February 1999, (b) an Affidavit in Reply of Jainoor Mallam, Slipway Manager of the defendant
company sworn and filed 25 February 1999 and (c) an Affidavit in Reply of Spencer Ah Sam sworn and filed 3 March 1999.
Both counsel appeared before me in Chambers and made lengthy submissions. I have also had the benefit of written 'Skeleton Submissions'
from Mr. Kapadia.
The facts relating to the matter are set out in paragraphs 2-6 of the said written Skeleton Submission in so far as they are relevant.
The plaintiff has been refused the issue of a 'contractors licence' for the use of the 'slipway' when many others have been granted
one.
Under clause 21.4 of the Terms and Conditions of use of defendant's slipway it is stated that the defendant will not 'unreasonably
withhold' consent to granting a licence applied for by a contractor.
The plaintiff maintains that the defendant has breached clause 21.4 and is also in breach of sections 27, 29, 32, 33 and 46 of the provisions of Fair Trading Decree 1992 as they relate to restrictive trade practices and is also an Offence under section 55 of the Decree concerning Unconscionable Conduct.
I have considered the submissions made by both sides and am of the view that the plaintiff needs the protection of the law.
An application for interlocutory injunction is not a trial on the merits. Granted that the defendant is a limited liability company
and it can operate its business as it likes, but the history of the use of the 'slipway' in this case is such that even after the
defendant took over the slipway, it is required to let the others use it. In doing so it should not 'unreasonably withhold' the granting
of a contractors licence although on its own terms and conditions. It has granted such licences to others but has withheld it in
the case of the plaintiff as a result whereof it is suffering damage and its 38 employees run the grave risk of losing their jobs
at which they have been for many many years until this incident.
I have been referred to a number of authorities on the grant or refusal of a mandatory injunction. (vide Hals. Vol. 24 4th Ed. parag 946 under the Caption Mandatory Injunctions, 'Injunctions' - a book by David Bean 5th Ed. p 19 et seq. under the head 2.4 Mandatory and quia timet injunctions).
I bear in mind that 'the power of granting mandatory injunctions must be exercised with the greatest possible care' (Hals. ibid. at para 946). In this case there are serious questions to be tried and the plaintiff stands to suffer irreparable damage if the injunction was
refused compared to any damage which the defendant is likely to suffer. In fact it does not appear that the latter will suffer any
damage. The balance of convenience will be in maintaining the status quo by allowing the plaintiff the use of the Slipway as hitherto
albeit on such terms and conditions as are applicable to all those other applicants who have been granted 'contractors licence' by
the defendant.
For these reasons on the facts and the authorities bearing on the subject of mandatory injunctions and applying the guidelines laid
down in the famous American Cyanamid case [1975] UKHL 1; (1975) 1 All ER 504, I will grant the application.
It is therefore ordered that the defendant do issue to the plaintiff a 'contractors licence' to work on the Slipway on the Terms and
Conditions it has laid down when considering applications for the use of the Slipway until such time as a final order is made in
these proceedings AND IT IS FURTHER ORDERED that the plaintiff proceed to prosecute this case with due diligence with liberty reserved
to the parties to apply generally. The costs are to be costs in the cause.
D. Pathik
Judge
At Suva
18 March 1999
Hbc0067d.99s
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/1999/12.html
