|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Fiji |
IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION
HBC No. 4 of 2011
BETWEEN
FIJI COMMERCE COMMISSION of Level 1, Garden City, Raiwai (herein "the Applicant")
APPLICANT
AND
FIJI RUGBY UNION of Rugby House, 35 Gordon Street, Suva (herein "the Respondent")
RESPONDENT
Appearances: Mr K.Shah for the Applicant
Mr Richard Naidu with Ms Nehla Basawaiya for the
Respondent
Date of Hearing: 25 January, 2011
Date of Judgment: 03 March, 2011
Judgment of: Justice A.L.B.Brito-Mutunayagam
JUDGMENT OF THE COURT
The Applicant in its Statement of Claim dated 4th January,2011,states inter alia that;
The Affidavit of Mahendra Reddy, Chairperson of the Fiji Commerce Commission states that the Commission during the course of its enquiry and investigations found and established that the Respondent's decision to lower the lottery ticket price to $10 was unfair and contravened Sections 75,76,77(1)(e),83(1) and 85(1) of the Commerce Commission Decree 2010. The Affidavit also states that the Applicant by letter dated 1st January,2011, requested the Respondent to show cause as to why they should not be penalized for allegedly breaching the said provisions of the Commerce Commission Decree 2010.
Interim Reliefs sought
The Applicant seeks an Order;
The Respondent, by its Affidavit in Response of its Chief Executive Officer disputes that the Commission found and established any breaches of the Commerce Commission Decree. The Respondent denies that it is going ahead to distribute the prizes and states that it is awaiting the Applicant's response to its lawyer's letter dated 4th January,2011.The Respondent has annexed to its Affidavit in Response several documents including a copy of the license granted to organise the lottery, a copy of its application for leave to apply for judicial review together with the Affidavit in support in HBJ Action No 1 of 2011, which states inter alia that;
4.1. At the hearing, Counsel for the Applicant submitted that the Respondent had breached Sections 75, 76, 77 (1) (e), 83(1) and 85(1) of the Commerce Commission Decree 2010, read with the definitions in the Interpretation provision of the relevant words and phrases "Business", "Consumer", "trade or commerce", "goods" and "services", and that the Commerce Commission had the power to give directions to the Respondent.
It was further submitted that a person who purchased a lottery ticket for $ 20 had a right to participate in the draw held on the same day on the same terms as a purchaser of a lottery ticket for $10.
Counsel for the Applicant conceded to Court that Section 85(1) of the Commerce Commission Decree is not applicable.
4.2. Counsel for the Respondent provided a detailed Outline of his submissions at the hearing and submitted as follows:
- (a) the Commerce Commission has no jurisdiction to issue directives to the Respondent.
- (b) a lottery is regulated under the Gaming Decree 2009, and not the Commerce Commission Decree.
- (c) the Applicant has failed to demonstrate that there is a serious question to be tried in terms of the guideline laid down in American Cyanamid v. Ethicon Ltd [1975] UKHL 1; [1975] 1 All E.R. 504 for the grant of an interim injunction. In support of the contention that there is no serious question to be tried, it was submitted that the Applicant had not demonstrated how the alleged breaches of the stated provisions of the Commerce Commission Decree are made out.
- (d) a lottery is not a matter in "trade or commerce" nor a "Business".
- (e) the Applicant appears to be claiming that consumers have suffered loss, which the Commerce Commission Decree will compensate.
- (f) an undertaking as to damages has not been offered by the Applicant.
- (g) an interlocutory injunction is granted to preserve a position before a trial of a substantive matter in which final orders can be made, and that no valid substantive relief has been sought.
The license in respect of the lottery in issue had been granted to Viliame Gavoka, to organise a ticket lottery on behalf of the Fiji Rugby Union. It is expressly stated therein that the license is subject to the Gaming Decree 2009 "and any other law that may affect the conduct of the gaming activities authorised by this License".
It is also provided as a Special Condition that the license "shall be governed by and construed exclusively under the laws of Fiji".
Section 10(5) of the Gaming Decree 2009 provides that the licensing authority may attach to a license "such conditions as the licensing authority things fit."
Accordingly, other laws that affect the conduct of gaming activities warrant consideration.
6.1. The relevant provisions of the Commerce Commission Decree read as follows:
75. (1) A person shall not, in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
75(2) Nothing in this Division shall be taken as limiting by implication the generality of subsection (1)
76. (1) A person shall not, in trade or commerce, in connexion with the supply or possible supply of goods or services to person(in this section referred to as the customer), engage in conduct that is, in all the circumstances, unconscionable.
76. (2)Without limiting the matters to which regard may be had for the purpose of determining whether a supplier has contravened subsection (1) in connection with the supply or possible supply of goods or services, regard may be had to –
(a) the relative strengths of the bargaining positions of the supplier and the customer;
(b) whether, as a result of conduct engaged in by the supplier, the customer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier;
(c) whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services;
(d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer ( or person acting on behalf of the customer) by the supplier in relation to the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and
(e) the amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from person other than the supplier. ..................................
77 (1) A person shall not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connexion with the promotion by any means of the supply or use of goods or services-
e) represent that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits they do not have;
83.(1) A person shall not, engage in conduct that is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose or the quantity or any goods.
It is evident that the ambit of Sections 75,76,77 and 83(1) are far reaching.
6.2 Section 4 –Interpretation
The phrases "trade or commerce" and the words "goods", "services" and "Business" are ascribed enlarging definitions in the Interpretation section. The use of the word "includes" in the definitions connotes that the matters listed are not exhaustive.
6.2.1 "Trade or commerce" includes any business or professional activity.
The following cases have addressed the matter of "trade or commerce".
In Bevanere Pty Ltd v Lubidineuse [1985] FCA 134; [1985] 59 ALR 334,the Federal Court of Australia held that the sale of a cosmetic clinic by a company which was not engaged in the business of selling such assets was a transaction in trade or commerce under the Trade Practices Act 1974.
The Court stated at page 339:
"In our opinion the activities of the appellant in and about conducting and selling the clinic fall well within the confines of "trade" or "commerce". As Deane J said in Re Ku-ring-gai Co-operative Building Society (No. 12) Ltd [1978] FCA 50; (1978) 36 FLR 134 at 167; [1978] FCA 50; 22 ALR 621 at 648-9, the terms "trade" and "commerce" are not terms of art and are of the widest import".(emphasis mine)
It was also held that it was not necessary that a corporation must engage in multiple transactions of a similar kind for it to be engaged in trade and commerce.
In News Ltd v Australian Rugby Football League Ltd ([1996] FCAFC 870; 1996) 64 FCR 410, the question arose whether two rugby leagues and clubs were engaged in trade or commerce. The Court stated at page 580:
"In our view, at the relevant times, the league and ARL were engaged in trade and commerce. They derived substantial sums of money from sponsorships; they derived income from exploiting merchandising rights; ... and they sold television rights... .
The clubs were also engaged in trade and commerce. They hired grounds; they obtained money from the public at home games, and they sold sponsorships. .......
In our opinion, it is not possible to sever the activities of the clubs and the League and ARL in the manner for which the respondents contended. It is true that the game of rugby league is at the centre of the activities of the League and ARL and of the clubs. But the game is played on grounds from which income is derived; and it is the vehicle for obtaining sponsorship and other sources of revenue. The playing of rugby league generates the interest of the media and it is that interest that leads to the League deriving income from the sale of television and broadcasting rights.Merchandising rights can be characterised in the same way." (emphasis mine)
Counsel for the Respondent cited decisions of the High Court of Australia for the proposition that a lottery is not a matter in trade or commerce .These cases were concerned with inter state lottery transactions under the Lotteries and Art Unions Act of New South Wales, and in that context it was held that gambling is not trade, commerce or intercourse within the meaning of Section 92 of the Australian Constitution.
6.2.2 "Business" includes a business not carried on for profit.
Lord Diplock in Town Investments v. Department of Environment [1977] UKHL 2; [1978] AC 359 at pg 383 defined the word "business" as follows;
"....The word "business" is an etymological chameleon; it suits its meaning to the context in which it is found. It is not a term of legal art and its dictionary meanings, as Lindley I.J. pointed out in Rolls v. Miller (1884)27 Ch.D.71, 88, embrace "almost anything which is an occupation, as distinguished from a pleasure – anything, which is an occupation or duty which requires attention is a business." (emphasis mine)"
6.2.3 "Services includes any rights (including rights in relation to, and interests In real or personal property) benefits, privileges, accommodation or facilities that are, or are to be, provided, granted or conferred in trade or commerce and without limiting the generality of the foregoing,includes the rights benefits,privileges and facilities that are, or are to be provided, granted or conferred under-
(a) a contract for or in relation to-
................
iv. the provision, or making available for use, of facilities for amusement, entertainment, recreation or instruction; or
v. the conferring of rights, benefits or privileges for which remuneration is payable it the form of a royalty, tribute, levy or similar exaction;".
6.2.4 " Goods include any article, product or thing which is the subject of trade and commerce and includes:
a) ships, aircraft and other vehicles
b) animals, including fish;
c) minerals, trees and crops, whether on, under or attached to land or not;
d) gas and electricity; and
e) any component part of goods"
6.3 On a construction of the above definitions, the conduct of a lottery would constitute a matter in "trade or commerce" read with the definition "Business"; and the right to participate in a lottery would be encompassed within the definition of "services".
6.4 Powers of the Commerce Commission.
Section 15 of the Commerce Commission Decree sets out the functions and powers of the Commission.
Sub-section (h) enables the Commerce Commission "to receive and consider complaints concerning matters affecting or likely to affect the interests of consumers or persons negotiating or considering the acquisition of goods or services as consumers and, if the Commission is of the opinion that such action is warranted, to investigate the complaints and take such action on behalf of the consumers or persons negotiating including legal proceedings to in respect thereof as seems proper to the Commission"; and sub-section (i) "to investigate fraudulent or deceptive practices in relation to matters that affect or are likely to affect the interests of consumers or persons negotiating or considering the acquisition of goods or services as consumers and to take such action in respect of the practices as seems proper to the Commission."
Section 15(4) confers power on the Commerce Commission "to do all things necessary or convenient to be done in connection with, or incidental to, the performance of its functions".
Accordingly, in my view, the above provisions empowers the Commerce Commission to give directions to the Respondent.
In American Cyanamid v. Ethicon Ltd [1975] 1 All E.R.504 at page 510 Lord Diplock enunciated the first guideline to be considered in the granting of an injunction as follows:
"The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried.
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 claim of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial."
On the basis of the affidavits filed and the arguments put forward by Counsel for the Applicant and Respondent on the applicability of Sections75,76 and 77 of the Commerce Commission Decree read with the definitions in the Interpretation clause thereto, I am satisfied that there is a serious question to be tried with respect to the rights of persons who purchased the lottery ticket for $ 20 to participate in the draw vis a vis the persons who bought a ticket for the same lottery at $10.
At this stage, I am not satisfied that the right to participate in a draw falls within the definition of "goods" and correspondingly of the applicability of Section 83, as this provision relates to conduct in goods.
In American Cyanamid v. Ethicon Ltd [supra] Lord Diplock stated;
"......the governing principle is that the court should first consider whether if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction, he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant's continuing to do what was sought to be enjoined ... If damages in the measure recoverable at common law would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory injunction should normally be granted, however strong the plaintiff's claim appeared to be at that stage.." (emphasis mine)
Lord Pearce in Stratford and Son Ltd v Lindley [1965] AC 269, at pg 331 outlined the way in which a Court should approach a case as follows:
" If (the plaintiffs have made out a prima facie case for an interlocutory injunction),there are strong reasons which makes this a case for maintaining the status quo until the trial. First, if there is no injunction, very great damage will be done. Secondly, the damage will be irreparable since the defendants admittedly cannot pay the damages if they lose the case.
Thirdly, an injunction will not cause any damage to the defendants. If it turns out the plaintiffs have no remedy, the only inconvenience that the defendants will have suffered is a delay of some months in implementing their scheme"... (emphasis mine)
The Chief Executive Officer of the Respondent, in its Affidavit in support of its application for leave to apply for judicial review (annexed to the Affidavit in Response filed in these proceedings) has on oath stated that it does not have money to make refunds to purchasers of lottery tickets at $20.In the circumstances, I am not satisfied that damages as a remedy would be adequate .
The balance of convenience in my view, is therefore clearly in favour of maintaining the status quo. McCarthy P while explaining the objective of an interim injunction in Northern Drivers Union v. Kawau Island Ferries Ltd [1974] 2 NZLR 617 at 620 and 621, stated:
"The purpose of an interim injunction is to preserve the status quo until the dispute has been disposed of on a full hearing. That being the position, it is not necessary that the court should have to find a case which entitle the applicant to relief in all events: it is quite sufficient if it finds one which shows that there is a substantial question to be investigated and that matters ought to be preserved in status quo until the essential dispute can be fully resolved:..".
I consider this to be a proper case to exercise the Court's discretion to grant injunctive relief and to maintain the status quo.
Counsel for the Respondent submitted that an undertaking as to damages has not been provided by the Applicant.
In F.Hoffman-La Roche & Co. A.G. and Others v Secretary of State for Trade and Industry [1974] 2 All ER 1128 at p 1153,Lord Diplock stated;
"I agree therefore with all your Lordships that the practice of exacting an undertaking in damages from the Crown as a condition of the grant of an interlocutory injunction in this type of law enforcement action ought not to be applied as a matter of course, as it should be in actions between subject and subject, in relator actions, and in actions by the Crown to enforce or to protect its proprietary or contractual rights. On the contrary, the propriety of requiring such an undertaking from the Crown should be considered in the light of the particular circumstances of the case."
F.Hoffman-La Roche & Co. A.G. and Others v Secretary of State for Trade and Industry was applied by the House of Lords in Kirklees M.B.C.v Wickes Building Supplies Ltd [1993] AC 227 and Hoffmann J in Director General v Tobyward Ltd [1989] 2 All ER 266 at page 272, where it was stated;
"There is, however, an established exception to which effect was given in the Hoffmann-La Roche case, namely that when the Crown is seeking an interlocutory injunction in an action in which it is attempting to enforce the law the usual practice is that no cross-undertaking is required. ...Whatever one may say about the policy in question it is, in my judgement, well established. I must therefore ask myself two questions. First, is this a law enforcement action? There is no right for anybody else to take proceedings to enforce the regulations, and the director has no remedy except the injunction which is sought here. It seems to me therefore that this is plainly a law enforcement claim...."
The Commerce Commission is a statutory authority of the State and is seeking to enforce the provisions of the Commerce Commission decree. Accordingly, I hold that it is not required to give an undertaking as to damages.
Counsel for the Respondent submitted that the statement in the affidavit of Dr Reddy that the "Commission during the course of its enquiry and investigation found and established that the Respondent's decision to lower the ticket to $10 ...was unfair", does not meet the requirements of Order 41 Rule 5 (2) of the High Court Rules, for the reason the source of information has not been disclosed. This matter, as submitted by Counsel for the Applicant, can be testified to by the deponent, as it was a matter within his knowledge as Chairman of the Commission.
It was also contended that two other statements in the affidavit of Dr Reddy are inadmissible as evidence in terms of Order 41 Rule 5 (2).The statements are with respect to the Commission's jurisdiction to enforce and administer the breached provisions of the Commerce Commission Decree and that it was brought to the attention of the Commission that the prizes were to be distributed despite orders given by the Commission. In Savings Bank v. Gasco B.V. [1984] 1W.L.R. 271 at page 282, it was stated:
"Rule 5(2),by its including statements of information or belief, plainly allows the adduction of hearsay .It also allows a statement of belief, that is to say, an opinion; but in its context that belief must be that of the deponent, and such statements will have no probative value unless the sources and grounds of the information and belief are revealed."
I hold that the aforesaid two statements are inadmissible for the reason that the sources of information are not revealed. The Court has not relied on these statements and as a result, there has not been a miscarriage of justice.
The Applicant has also sought an Order to declare that the actions dated 30th December,2011, are in contravention of Sections 75,76,77 (1) (e),83(1) and 85 (1) of the Commerce Commission Decree 2010.
Counsel for the Respondent submitted a Court has no jurisdiction to make an interim declaration pending a hearing and cited in support R v IRC ex p. Rossminster Ltd [1980]AC 952 at pg1027 (followed in Kabara Development Corporation Ltd v Attorney General of Fiji [2004] FJHC 202) wherein Lord Scarman stated;
"Under existing law only a final and conclusive declaration may be granted by a court...For myself, I find absurd the posture of a court declaring one day in interlocutory proceedings that an applicant has certain rights and upon a later day that he has not."
I hold that the application for an interim declaration is misconceived.
For the aforesaid reasons, I make Orders as follows:
A.L.B.Brito-Mutunayagam
JUDGE
03 March, 2011
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2011/139.html