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Flyniu Airlines Ltd v HRH Prince Ata [2004] TongaLawRp 73; [2006] Tonga LR 5 (8 September 2004)

IN THE SUPREME COURT OF TONGA

Flyniu Airlines Ltd anor

v

HRH Prince 'Ulukalala Lavaka Ata anors

Supreme Court, Nuku'alofa
Webster CJ
CV 575/2004

8 September 2004

Practice and procedure – review of injunction – injunction rescinded

The plaintiffs applied for a review of the injunction granted on 17 August 2004 in view of the Court's decision earlier that day to join the other domestic airline, Peau 'o Vava'u Ltd as third defendant. The injunction had quashed the order of the Minister revoking the second plaintiff's Foreign Air Operators Certificate. The defendants challenged whether there was a serious issue to be tried.

Held:

1. A serious question to be tried was one for which there is some supporting material, of which the outcome is uncertain -- see Cayne v Global Natural Resources plc [1984] 1 All ER 225 (CA) 237.

2. The aim of the serious issue test was to avoid the court having to consider difficult questions of law or fact at the interlocutory stage. It was no part of the court's function at the interlocutory stage of litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend, nor to decide difficult questions of law which called for detailed argument and mature considerations -- American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 (HL).

3. The intervention of Peau 'o Vava'u had made a material difference and had changed the overall picture. Peau 'o Vava'u could suffer financial loss if the injunction were continued while the plaintiffs could suffer financial losses (albeit unspecified) if the injunction was to be responded. To decide between those two alternatives was a truly difficult balance for the court to make but there were other factors that had affected the balance of convenience. The second plaintiff had taken no steps to appeal against the Minister's revocation order and the plaintiffs had not provided supporting evidence of the adequacy of their undertakings as to damages.

4. The injunction which had quashed the order of the Minister was rescinded.

Cases considered:

American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 (HL)

Cayne v Global Natural Resources plc [1984] 1 All ER 225 (CA)

Klissers Farmhouse Bakeries Ltd v Harvest Bakeries Ltd [1985] 2 NZLR 140 (CA)

Counsel for plaintiffs: Mr Edwards
Counsel for first defendant: Mr Gudsell, Mr Nielsen and Mr Havea
Counsel for second defendant: Miss Fukofuka
Counsel for third defendant: Mr Waalkens QC

Ruling

This was a hearing in open court on 6 September 2004 to consider a review of the injunction granted by the Court on 17 August, in view of the Court's decision earlier that day to join the other domestic airline, Peau 'o Vava'u Ltd as 3rd defendant. That injunction quashed the order of the 1st defendant, now the Minister, revoking the 2nd plaintiff's Foreign Air Operators Certificate [FAOC].

The purpose of this hearing was only to review the issue of the injunction in relation to the revocation of the FAOC and not for any wider purpose. In view of the public importance of this whole matter, it has to be understood that this is only an interim or temporary ruling, which does not affect the full hearing of the plaintiffs' case.

There was no suggestion that the applicable law was any different in substance from that set out in the Court's previous written ruling dated 20 August.

Mr Waalkens QC made submissions for Peau 'o Vava'u in relation to the question of whether there is a serious issue to be tried, ie one for which there is some supporting material, of which the outcome is uncertain: per Cayne v Global Natural Resources plc [1984] 1 All ER 225, 237 (CA). Mr Gudsell also made detailed submissions for the Minister on the question of whether there was a serious issue to be tried, including a detailed analysis of certain aspects of the history of the matter from a chronological point of view; and Miss Fukofuka for the Kingdom supported these.

While I carefully noted and considered all those submissions and those of Mr Edwards for the plaintiffs in response, I do not consider that it is helpful to set them out here in greater detail nor to express any detailed views on them (even in a preliminary fashion) at this stage, largely because they may involve matters still at issue when the substantive hearing of this application comes before me. The House of Lords was clear in American Cyanamid Co v Ethicon Ltd [1975] 1 All ER 504 (HL) that the aim of the serious issue test was to avoid the court having to consider difficult questions of law or fact at the interlocutory stage. It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend, nor to decide difficult questions of law which call for detailed argument and mature considerations: American Cyanamid.

On the material now before me, which is probably still incomplete, but which has to include the fact that the plaintiffs did not actually apply to be a single operator, I consider that it is now a more open question whether the plaintiffs have a real prospect of success, though I still think that the outcome is uncertain. However I stress that if that touches on issues which will be before the Court at the substantive hearing, those are still open issues for the Court then and I have an open mind on them.

But in relation to the other factors described in the American Cyanamid case and other authorities as having to be considered in an application for an interlocutory injunction, I consider that the intervention of the 3rd plaintiff, Peau 'o Vava'u, has made a material difference and has changed the overall picture.