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Lau Lava Ltd v Minister of Labour Commerce and Industries [2004] TongaLawRp 45; [2004] Tonga LR 303 (27 August 2004)

IN THE SUPREME COURT OF TONGA

Lau Lava Ltd

v

The Minister of Labour Commerce and Industries anors

Supreme Court, Nuku'alofa
McElrea J
CV 599/2004

27 August 2004; 27 August 2004

Practice and procedure – application for interim relief – dismissed

The Plaintiff company was granted an export licence in February 2001 for the export to Japan of Sato-imo taro, also known as Japanese taro. The licence was a letter of 16 October 2001 headed up "re: application for exclusive license (5 years) for export of sato-imo taro [to] Japan" The letter showed that the Plaintiff's request was approved by the Minister subject to four conditions. The Plaintiff's complaint was that within the five year period the Minister granted another export licence for the same product to the same market namely Japan, so that the Plaintiff's licence was no longer an "exclusive" licence. That second licence was granted in February 2004 to the Third Defendant. The Plaintiff claimed it had made an extensive commitment to the development of the Japanese market for this particular specialist product and has outlaid in cash some $250,000 to that end, and that this investment would be virtually worthless if another competitor was allowed to operate in that market. The Third Defendant argued that they would suffer irreparable damage if it was prevented from exporting the crop it had grown. The plaintiff applied for interim relief.

Held:

1. The order sought would prevent the third defendant from loading on board any ship any crop of sato-imo taro where the destination was Japan. That was in effect a permanent order and would prevent the export of the 172 tonnes of taro which is ready for export. Such crop if not exported now would have to be sold locally, and the evidence was that it would be sold at a considerable loss.

2. There was no cause of action pleaded against the third and fourth defendants. The law did not allow its coercive powers of injunction to be used against parties who were not said to have committed any wrong, civil or criminal, whatsoever.

3. The Court concluded that the balance of convenience favoured the public of Tonga and its exporting reputation, as well as the commercial interests of the Third Defendant, rather than the interests of the Plaintiff. The balance of convenience factors lay against the granting of any interim relief.