Unreported National Court Decisions
N580
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
O.S. 1 OF 1987
BETWEEN
TELEPAGE PTY LTD
PLAINTIFF
AND
POST & TELECOMMUNICATION CORPORATION
DEFENDANT
Waigani
Wilson J
9 February 1987
11 February 1987
13 February 1987
PRACTICE AND PROCEDURE - interlocutory relief - injunction - principles applicable - applicant must show a high probability that damage will occur and that such damage not compensable - where no actual damage demonstrable applicant must show that action sought to be restrained will cause imminent and substantial damage.
Cases Cited
Mt Hagen Airport Pty Ltd -v- Gibbes and Anor [1976] PNGLR 216
Robinson -v- National Airlines Commission [1983] PNGLR 476
Royal Insurance Co Ltd -v- Midland Insurance Co Ltd [1908] 26 PC 95
WILSON J:  This is an application by the plaintiff for an order restraining the defendant from proceeding with setting up and promoting a paging service.
The application is interlocutory in nature as there are substantive proceedings where the plaintiff is claiming similar permanent orders, declarations and other orders in an originating summons. Those proceedings have been set down for hearing on 23 to 25 March 1987. This application came before me initially on Monday, 9 February when I ordered abridgement of the time required for service of the Notice of Motion to allow the matter to be heard on 11 February 1987. The defendant was served and appeared to contest the plaintiff’s application.
Telepage Pty Ltd (“Telepage”) commenced trading on 1 February 1985. This followed a period of discussion and negotiation with PTC, the appropriate authority. In granting approval for a wide-area paging service, PTC wrote to Telepage on 10 August 1984. This letter is Annexure ‘D1’ to Mr Kelson’s affidavit. Telepage asserts that this letter sets out the terms to which PTC was bound and claims that as PTC is now entering the market through an agreement with PNG Paging, PTC is in breach of the terms of the letter and other terms agreed orally between the parties.
Telepage argues that the proposed PTC/PNG Paging operation will effectively drive it out of the market and thereby allowing PTC to “assume sole control of wide area paging in this country”. It also says that, this being the case, the requirement for ample notice stipulated in the letter has not been satisfied.
Telepage says that at the time it entered the market its discussions with PTC were on the basis that PTC would only be in the market if it, PTC, was going to take over the market. This would result in Telepage selling out to PTC and maybe assisting in the setting up of the PTC paging system. Telepage says that 12 months was the period agreed as “ample notice” and that during such a period it would have time to get its own commercial house in order.
Over the past week it has come to Telepage’s notice that PTC and PNG Paging were setting up a service and publicity had been commenced. According to the information available it appears that such a service will not be operational till May 1987. Telepage claims that the very fact of promoting this service is damaging its business and it requires protection against such damage between now and the date of hearing, as little as five weeks away.
Mr Kelson asserts that PTC/PNG Paging will be able to under cut him and he will lose customers. He has not lost any yet. He says he is unsure of what PTC Policy will be to his company. There is no evidence of policy change towards his company, nor is there any suggestion that PTC has told him that his approval to operate is terminated.
PTC’s agreement with PNG Paging was not before the court. It does appear that PNG Paging approached PTC with a proposal and PTC’s involvement flowed from that initiative. Whether PTC (leaving aside Telepage’s interpretation) is intending to assume sole control of wide area paging in this country is unclear. It may be that there will be competition. An interpretation of this issue will no doubt be made on the substantive proceedings, but at this stage, and for the purpose of this application, I would categorize the case of Telepage to the construction it alleges as not of overwhelming strength or to put it another way, on the information before me, the opposite construction could be just as readily accepted, that is it is intending to be in competition in the market place.
I am in no way determining that issue, but raise the difficulty because of the requirement for notice which would flow on in view of the circumstances should it be that PTC is intending to take sole control of paging services.
Telepage bases its application on three grounds:
(1)      Breach of conditions in the letter of 10 August 1984.
(2)      Breach of tendering procedures.
(3)      Breach of statutory powers - i.e. that PTC is acting ultra vires.
In respect to ground 2 and 3, without making any final determination on these issues which are raised in Telepage’s substantive action, I consider them to be irrelevant to the present application. My basis for so treating them is the evidence that no tender has been let, that it may be that no tendering process is necessary and that the actions of PTC have not gone far enough for the issue to be properly raised, on this application.
My consideration therefore, as I plainly indicated to counsel during the hearing is limited to ground 1.
I have been referred to the two leading PNG authorities of Mt Hagen Airport P/L v Gibbes and anor [1976] PNGLR 216 and Robinson v. National Airlines Commission [1983] PNGLR 476. I am of the view that these two cases properly set out the matters which should exercise my mind in considering the merits of this application.
Of primary importance is that in such an application a plaintiff must show a high probability that injury will take place and that such injury is not compensable, or will be of such magnitude that it should be prevented. If there is no actual damage, as in this case at this stage, then the court must be satisfied by proof of imminent damage and there should be proof that the apprehended damage will, if it materializes, be very substantial. In Royal Insurance Co Ltd v Midland Insurance Co Ltd [1908] 26 RPC 95 at 97COZENS - HARDY MRset out a useful statement of this principle as follows:
“The Court has to draw an inference from all the circumstances of the case; ex hypothesi you cannot prove actual damages, but the plaintiff takes upon himself the burden of proving that it is reasonably certain that what the defendant is threatening and intending to do will cause imminent and substantial damage to the plaintiff.”
On the evidence before me the plaintiff has not satisfied this burden. Should the likelihood or fact of damage to the plaintiff subsequently increase or materialize then it would be entitled to renew its application.
I am not satisfied, as I would need to be if I granted this application, that the plaintiff would be unable to remedy whatever loss it may incur through damages. It appeared to me that Mr Kelson is a knowledgeable businessman who is alert to trends in his company’s operation and any losses which are attracted and attributable to his assertions about the impact of the PTC/PNG Paging moves, should be quantifiable. For example (1) lost customers (2) decline in new business.
It appears to me that the plaintiff’s application, while based on understandable commercial concerns is premature because of the lack of imminent damage to the plaintiff, or the plaintiff’s lack of capacity at this stage to prove that imminent damage.
The substantive issues are to be tried in just over five weeks and whatever service is being proposed by PTC/PNG Paging will not be operational until May 1987. Should the plaintiff be successful in those proceedings then I consider that monetary damages will be able to satisfy any injury he is able to demonstrate to the court which may have flowed from the defendant’s action. Should there be a delay between hearing the substantive matter and judgement then the plaintiff may apply to the trial judge who is likely to be in a good position at the end of the evidence to exercise his discretion on such an interim restraining order if applied for by the plaintiff.
It is apparent from what I have set out that I refuse the plaintiff’s application.
The defendant’s costs of this application are to be borne by the plaintiff.
Lawyer for Plaintiff: K. Kara & Associate
Counsel: G. Shepherd
Lawyer for Defendant: Steeles
Counsels: J. Steele W. Stollery