N351
PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

LEYTRAC PTY. LIMITED

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani
Kapi J

25 March 1982

INJUNCTIONS - Act intended to be restrained already occurred - Injunction not available - Alternative remedy by way of declaration.

Where the act intended to be restrained has already occurred an injunction to restrain is not available: an alternative remedy by way of declaration may be available.

Cases Cited:

Gerald Sidney Fallscheer v. Iambakey Okuk and Independent State of Papua New Guinea [1980] P.N.G.L.R. 101.

Notice of Motion

This was an application for an injunction to terminate a contract.

Counsel:

J. Everingham, by leave for the plaintiff.
A. Mullumby, for the defendant.
Cur. adv. vult.

25 March 1982

KAPI J: This is an application by way of notice of motion for a mandatory injunction against the Director of the Office of Forests.

The application was prompted by a letter dated 12th January, 1982, from the Director of Office of Forests to the General Manager of Leytrac Pty. Ltd. in effect nullifying the arrangement between the Department and the Company. As things stand, the arrangement between the parties was terminated as at the receipt of the above-mentioned letter. In the circumstances, an application for an injunction cannot be of any help to the applicant. The step has already been taken, an injunction can serve no useful purpose. I should point out that an action for an injunction should be commenced by way of writ of summons. See O. 57 r. 1 of the National Court Rules.

This is not to say that the applicant is left without any remedy. If the applicant considers that the termination of the letter of intent is unlawful for any reason, it may apply for a declaration that the termination was unlawful and is of no effect. If the applicant is successful, it will be reinstated to its previous position before the termination. The proper procedure to adopt in this regard is by way of writ of summons. (See O. 2 r. 1, O. 4 r. 11 and O. 5 r. 1.)

This procedure allows for pleadings on facts and the issues involved are crystallized. There may be legal issues which may set up as defence to the declaration sought by the applicant. This can be dealt with by way of demurrer under O. 29 of the Rules of Court. See also Gerald Sidney Fallscheer v. Iambakey Okuk and Independent State of Papua New Guinea [1980] P.N.G.L.R. 101.

The declaration in this motion has been simply put in the alternative to an application for injunction. I consider this to be unsatisfactory and will not deal with the issues which are not clearly pleaded. If the applicant wishes to take this course, it can issue proper proceedings.

However, if the applicant does not wish to take this course, it may institute proceedings for damages for wrongful termination of the letter of intent. I note that the applicant has already issued a writ of summons in this respect. (W.S. 145 of 1982, dated 24th February, 1982.)

In the end result, I dismiss the notice of motion with costs.

Application dismissed with costs.

________________________________________________

Solicitor for plaintiff: Warner Shand, Wilson & Associates.
Solicitor for defendant: B. O. Emos, Acting State Solicitor.