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Pacific Transport Company Ltd v Latchan Express Services Ltd [1994] FJHC 156; Hbc0494d.94s (21 October 1994)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 494 OF 1994

Between

PACIFIC TRANSPORT COMPANY
LIMITED
Plaintiff

And

LATCHAN EXPRESS SERVICES
LIMITED
Defendant

Counsel: Mr. Lateef for Plaintiff

Hearing: 20th October 1994
Decision: 21st October 1994

DECISION OF PAIN J.
ON EX PARTE MOTION FOR
INTERLOCUTORY INJUNCTION

The Plaintiff operates a licensed bus service between Suva and Lautoka. The Plaintiff has issued a writ against the Defendant alleging that the Defendant is operating an unlicensed bus service over the same route. It is pleaded that this is causing loss to the Plaintiff. The Plaintiff seeks damages and an injunction to restrain the defendant from operating the unlicensed service.

The Plaintiff has applied ex parte for an interlocutory injunction "to restrain the Defendant, its servants or agents from operating under Road Service Licence 12/10/94 between Nadi Airport and Suva until further order of the Court".

The Plaintiff, as a trade competitor, does not allege any claim, as of right, to compel the Defendant to cease operating an unlicensed service. If the Defendant is operating an unlicensed service, then the Transport Control Board or the Police should prosecute or take other appropriate action under the Traffic Act.

The Plaintiffs standing is that of a civil litigant claiming that the Defendant is deliberately interfering with its business by unlawful means. This is a recognised cause of action. If it is proved, a successful Plaintiff would be entitled to damages and, in a proper case, an injunction.

Prima facie, the Plaintiffs affidavit shows that the Defendant is operating an unlicensed service. However this does not give the Plaintiff automatic entitlement to an ex parte interlocutory injunction. This is a civil proceeding and it is not the concern of the Court to be policing the Traffic Act or calling upon the Defendant to justify its conduct. The court must consider the application for an interlocutory injunction in terms of the Rules and in accordance with settled principles.

Under Order 29 rule 1(2) an interlocutory injunction can only be made on an ex parte basis if "the case is one of urgency and the delay caused by proceeding in the ordinary way would entail irreparable or serious mischief". That threshold requirement must be satisfied before the Court can entertain an ex parte application. The granting of ex parte injunction (even on an interim basis) is exceptional. As Megarry J. said in Bates v Lord Hailsham, of St. Marylebone & Ors. 1972 3 ALL ER 1019 (at page 1025) "an injunction is a serious matter and must be treated seriously..........Ex parte injunctions are for cases of real urgency, where there has been a true impossibility of giving notice of motion". Similar pronouncements have been made by the Courts in Fiji.

In this case there is not shown to be any urgency. The acts complained of have been going on for about 7 months. Moreover although the Plaintiff claims to be suffering financial loss this is not substantiated, quantified or estimated in any way. There is nothing to show that the delay in proceeding inter parties would cause serious or irreparable loss.

For these reasons, an interlocutory injunction should not be granted on an ex parte basis. This will not prevent the Plaintiff from proceeding inter partes if it so desires.

The ex parte application for an interlocutory injunction is refused.

JUSTICE D.B. PAIN

HBC0494D.94S