N8559

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 383 OF 2018 (COMM)

BETWEEN:
NIUGINI PILOTS
LIMITED
Plaintiff

AND:
PNG PORTS CORPORATION
LIMITED
Defendant

Waigani: Hartshorn J,
2018: 25th June, 2nd July

INJUNCTION - Contested application for interim injunctive relief 

Cases Cited:
Papua New Guinea Cases

Yama Group of Companies Ltd v. PNG Power Ltd (2005) N2831
Canopus No.16 Ltd v. Maisi Trust Co (2008) N3401
Mobil Oil New Guinea Ltd v. Yakainga Business Group (Inc) (2014) N6661
Talisman Energy Niugini Ltd v. Bismark Maritime Ltd (2015) N6800
Boochani v. State (2017) SC1566

Overseas Cases

American Cyanamid v. Ethicon [1975] AC 396
Films Rover International Ltd v. Canon Films Sales Ltd [1987] 1 WLR 670

Counsel:

Mr. N. Kopunye, for the Plaintiff
Ms. G. Kogora, for the Defendant

Oral decision delivered on
2nd July2018

1. HARTSHORN J: This is a decision on a contested application for interim injunctive relief. 

Background

2.The plaintiff, Niugini Pilots Limited (NPL) substantively seeks specific performance of certain clauses in a mediated agreement entered into between the parties and declaratory relief concerning amongst others, the powers and conduct of the defendant (PNG Ports) in relation to the provision and control of marine pilotage services in the ports of Papua New Guinea. Injunctive relief is also sought.

3. NPL provides marine pilotage services to shipping agents and ship owners at various ports in Papua New Guinea. 

This application 

4. NPL seeks an injunction to:

a)	restrain twenty-four employees, officers or agents of PNG Ports from restricting or preventing access to port and berthing facilities and declared ports and wharfs to NPL and its employed pilots; 

b)	restrain PNG Ports from contacting customers of NPL directly in relation to matters concerning the qualifications and licences of NPL’s employed pilots;

c)	restrain PNG Ports and its employees, officers and agents from operating as a Pilotage Authority. 

5. NPL submits that the relief sought should be granted as:

a)	it has a serious question to be tried. PNG Ports has on repeated occasions taken steps to interfere with NPL providing its services, notwithstanding that PNG Ports had agreed not to interfere with NPL’s operations, in Mediated Agreements. This has resulted in repeated delays in the pilotage industry resulting in the owners of vessels incurring substantive costs;

b)	an undertaking as to damages has been given;

c)	damages would not be an adequate remedy. This is because the actions of PNG Ports has a substantial impact on NPL’s business and the behavior of PNG Ports is anti-competitive;

d)	the balance of inconvenience and the interests of justice favour the injunctive relief being granted. 

6. PNG Ports submits that the relief should not be granted as:

a)	no cause of action can be ascertained from the material filed by NPL;

b)	damages are an adequate remedy. This is confirmed by NPL quantifying its alleged damages; 

c)	the balance of convenience favours the relief sought not being granted. 

Consideration 

7. From a perusal of the evidence filed on behalf of the parties, the main issue between the parties is concerning the use by NPL of trainee or unlicensed pilots. It is clear from the submissions made on behalf of PNG Ports that its position is that the essence of the dispute is that NPL wishes to employ and use pilots who are not licensed by the Maritime Safety Authority. PNG Ports regards this as illegal and tries to prevent NPL from so doing. It is the submission of PNG Ports that NPL is attempting to force PNG Ports to permit NPL to illegally use unlicensed pilots. 

8. In the most recent affidavit of Captain Max Stoessel sworn 22nd June2018, Captain Stoessel deposes amongst others, that:

“Since the date of commencement of these proceedings, all of NPL’s trainee pilots have now been granted Pilot licenses by the NMSA, except for one trainee pilot”

9. Now that the main reason for the dispute, particularly as far as PNG Ports is concerned, has been removed, the major complaint of NPL concerning PNG Ports actions against NPL’s operations has also been removed. 

10. Given this, and taking into account that the evidence filed on behalf of NPL and PNG Ports should now be considered having regard to the fact that all NPL’s pilots apart from one, are now licensed, I am not satisfied that NPL has sufficiently established that it has a serious question to be tried.  

11. Consequently the interim injunctive relief sought should be refused. I rely on the numerous authorities that have considered this issue since the seminal case of American Cyanamid v. Ethicon [1975] AC 396 and the decision in the Supreme Court case of Boochani v. State (2017) SC1566 which repeated the principles therein. 

12.If however, NPL has established a serious question to be tried, then the next consideration is whether damages are an adequate remedy.

13. It is the case that in Captain Stoessel’s affidavit filed 14th June 2018, Captain Stoessel quantifies the operational costs which it is claimed, NPL has incurred as a result of the actions of PNG Ports. That Captain Stoessel is able to quantify the majority of the damage claimed to be suffered by NPL is indicative that damages are on adequate remedy. 

14. If however, damages are not an adequate remedy, the next consideration is where does the balance of convenience lie? In this regard, I refer to the following statement ofHoffman J. in Films Rover International Ltd v. Canon Films Sales Ltd[1987] 1 WLR 670 at 680: 

“The principal dilemma about grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the Court may make the ‘wrong’ decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the Court should take whichever course appears to carry the lower risk of injustice if it turns out to have been “wrong’ in the sense I have described.” 

15. The principle contained within this passage has been affirmed in: Yama Group of Companies Ltd v. PNG Power Ltd (2005) N2831; Canopus No.16 Ltd v. Maisi Trust Co (2008) N3401; Talisman Energy Niugini Ltd v. Bismark Maritime Ltd (2015) N6800; and Mobil Oil New Guinea Ltd v. Yakainga Business Group (Inc) (2014) N6661.

16. Given that all but one of NPL’s pilots are now licensed, and PNG Ports concern of what it terms, “the illegal use of unlicensed pilots” has been removed, it is likely that PNG Ports alleged interference with NPL’s operations should significantly reduce, if not cease altogether. 

17.This, together with my view that a serious question to be tried has not been shown and that damages would be an adequate remedy, leads me to the conclusion that the lower risk of injustice if my decision turns out to be wrong, is to refuse the relief sought. 

18. Consequently, as I am not satisfied that NPL has established that it has a serious question to be tried; that damages would be an adequate remedy and that the balance of convenience does not favour the relief being granted, the relief sought by NPL should be refused. 

Orders

19.  It is ordered that:

a)	The relief sought in the Amended Notice of Motion of the plaintiff filed 19th June 2018 is refused;

b)	The costs of and incidental to the said Amended Notice of Motion are costs in the cause;

c)	Time is abridged. 
__________________________________________________________________
Kopunye Lawyers: Lawyers for the Plaintiff                                                       
Dentons PNG: Lawyers for the Defendant