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Pansat Communications Pty Ltd v Momis [1995] PGNC 49; N1396 (8 December 1995)

Unreported National Court Decisions

N1396

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 130 OF 1995
BETWEEN:
PANSAT COMMUNICATION PTY LIMITED - Plaintiff
And:
JOHN MOMIS - First Defendant
And:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - Second Defendant
And:
POST AND TELECOMMUNICATIONS CORPORATION - Third Defendant

Waigani

Sheehan J
8 December 1995

RADIO COMMUNICATIONS ACT - grant of licences - application for injunctive relief.

Counsel:

Mr G Sheppard for the Plaintiff

Mr D Hill for the Defendants

8 December 1995

SHEEHAN J: The Plaintiff clai be the the holder of valid licences issued by the State enabling it to establish a cellular telephone network in Papua New Gui#160; The application now before the Court seeks following orders:

“That pendipending trial or further order, the defendants, whether by themselves, their officers, employees, agents, ministers, or however otherwise:

(a) ҈ st renedained from from using, licensing, interfering with or otherwise dealing with in any manner whatsoever...the specifiequennges have been allocated by the State to Pansat; and

(b) &#160 &#160 be r be required to e that that the specified frequency range remain unencumbered and that Guard Bands be set up which would enable Pansat to operate a mobile phetworthe sied frequency rany ranges free from interference from otherother syst systems, such guard bands to be outside the specified frequency ranges.”

On 12 April this year an order in similar ters made by SawonSawong, J to protect licences granted to the Plaintiff by the Minister of Information and Communication in June of 1993. However on 9th June 199ongawong, J rescinded his Aorder of injunctive relief lief holding that the Ministerial grant of licence was not valid and that only the PTC Board was authoriseer the Radiocommunication Act (ch 152) to issue such licencicences.

This fresh application for injunctive relief is brought about on grounds that information not known to the Plaintiff at the time that the former injunction was set aside, has now been discovered. This showns thatBoard of P of PTC did in fact issue licences to Pansat in August 1994, and though its subsequently revoked them in September of that year, it did so without authority under the Radiocommunication Act and without affording Pansat the opportunity to be heard.

In reply Counsel for the Defendant submitted that this application brought no new material before the Court on which to base an application for an injunction. The issue of licences b PThe PTC Board had been disclosed at the June hearing and had been rejected by Sawong J. He saat it was and in plai plain that the PTC Board subsequentlyked any grant of licence to the Plaintiff in its September mber meeting. That was notified to the Plaintiff by the letter of Ge Manager of PTC on 7th Octo October 1994.

This submission does not really square with the decision of Sawong J nor the submissmade to him by Counsel for Defence at that time. The The recorws that it w it was then submitted that the evidence made available by the Plaintiff to support its contention of formal grant by the Board, at its very highest consisted of no more than: (1) the PTC said in correspondepondence to the Plaintiff; and (2) the purported issue to Pansat of seven subsidiary operating licences.

On the evidence before this Court I am satisfied that the Plaintiff Pansat applied to the Department the appropriate regulatory body for licences to established cellular telephone system. It was granted licences e the Minister though these subsequently were ruled invalid by the National Court. Since the merial there is e is evidence that the Plaintiff grant has branted licences by the PTC Board itself on two occasions.&#ns. The Bhas subsequently purp purportedly revoked those grants but,he Plaintiff contends - wit- without there being any opportunity to be heard.

The State, the PTC Board, the Department - overahe regulatory authority fory for the granting of the Radiocommunication Licences has granted the Plaintiff’s application on three occasions. Apart from tling of the Cohe Court on the invalidity of the licence issued by the Minister, the remaining licences have been rescinded without explanation. This history oft and take take away, has been followed by the regulatory authority authorising its own PTC applicant to pursue and develope the very network that the Plaintiff company had sought to establish

Counsel for the Plaintiaintiff says that the issues on which it bases the application for injunctions are:

“a. Whether the Board resolution to grant licences amounted togrant of licencicences.

b. Whether the Board hys anerpower to revoke any licences.

c. ټ Whether the PTC BoaC Boarf it he poo revoke les - o so ut giving the licensee the right to be hebe heard.

d.&p>d. #160; &##160; Wh0; Whether tioder tdio Cdio Communicmunicationation Act Act are validly interpreted by substituting “Board” for “Minister” such that the ter ling pis removed nved notwithstanding the express word of thof the rege regulations.”

I am satisfied that on those matters the Plaintiff has established that it has an arguable case.

The Plaintiff contends that under these circumstance it is appropriate that the Court should grant the injunctions sought. Notwanding the grant authoauthorising the PTC to establish a network using the same frequencies allocated to the Plaintiff, that operation is not yet off the ground. An injunction therefore not prejudice the PTC subsisubsidiary and will have affect the preserving the status quo pending the resolution of these matters betwhe parties. Because there are nlular plar phone system operating in PNG there can be n be no hardship claim by the PTC that is not also affecting the Plaintiff. In any case the Plaintiff has made the necessary undertaking as to damages to cover the situation should it not succeed at trial.

Counsel for the Defendants argues the balance of convenience lies in refusing njunc since the PTC neTC neTC network operations are “well underway”. In any case the whf the sphe spectrum availabr cellular phones is not wholly taken up by the PTC system.

While I have found the Pthe Plaintiff has an arguable case I am noisfied that it is appropriate that injunctions shouldhould issue. On the evidence before the Court it is not obvious that rights in the Plaintiff will be irrevocably lost if orders are not made or that there will be a loss to the Plaintiff, not recole inform of damages.&ges. In the evhe Plaintiff succ succ succeeds at trial, it would seem that the very orders that he now seeks as well as damages will likely follow. Accordingly the applicatirn for injunctive relief is declined.

Lawyer for the Plaintiff: Maladina Lawyers

Lawyer for the Defendant: Allens Arthur Robinson Lawyers