Unreported National Court Decisions
N1396
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 130 OF 1995
BETWEEN:
PANSAT COMMUNICATION PTY LIMITED - Plaintiff
And:
JOHN MOMIS - First Defendant
And:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - Second Defendant
And:
POST AND TELECOMMUNICATIONS CORPORATION - Third Defendant
Waigani
Sheehan J
8 December 1995
RADIO COMMUNICATIONS ACT - grant of licences - application for injunctive relief.
Counsel:
Mr G Sheppard for the Plaintiff
Mr D Hill for the Defendants
8 December 1995
SHEEHAN J:  The Plaintiff claims to be the holder of valid licences issued by the State enabling it to establish a cellular telephone network in Papua New Guinea.  The application now before the Court seeks following orders:
“That pending trial or further order, the defendants, whether by themselves, their officers, employees, agents, ministers, or however otherwise:
(a)      be restrained from using, licensing, interfering with or otherwise dealing with in any manner whatsoever...the specified frequency ranges which have been allocated by the State to Pansat; and
(b)      be required to ensure that the specified frequency range remain unencumbered and that Guard Bands be set up which would enable Pansat to operate a mobile phone network in the specified frequency ranges free from interference from other systems, such guard bands to be outside the specified frequency ranges.”
On 12 April this year an order in  similar terms was made by Sawong, J to protect licences granted to the Plaintiff by the Minister of Information and Communication in June of 1993.  However on 9th June 1995 Sawong, J rescinded his April order of injunctive relief holding that the Ministerial grant of licence was not valid and that only the PTC Board was authorised under the Radiocommunication Act (ch 152) to issue such licences.
This fresh application for injunctive relief is brought about on grounds that information not known to the Plaintiff at the time that the former injunction was set aside, has now been discovered.  This showns that the Board of PTC did in fact issue licences to Pansat in August 1994, and though its subsequently revoked them in September of that year, it did so without authority under the Radiocommunication Act and without affording Pansat the opportunity to be heard.
In reply Counsel for the Defendant submitted that this application brought no new material before the Court on which to base an application for an injunction.  The issue of licences by the PTC Board had been disclosed at the June hearing and had been rejected by Sawong J.  He said that it was and in plain that the PTC Board subsequently revoked any grant of licence to the Plaintiff in its September meeting.  That was notified to the Plaintiff by the letter of General Manager of PTC on 7th October 1994.
This submission does not really square with the decision of Sawong J nor the submissions made to him by Counsel for Defence at that time.  The record shows that it was then submitted that the evidence made available by the Plaintiff to support its contention of formal grant by the Board, at its very highest consisted of no more than: (1) what the PTC said in correspondence to the Plaintiff; and (2) the purported issue to Pansat of seven subsidiary operating licences.
On the evidence before this Court I am satisfied that the Plaintiff Pansat applied to the Department the appropriate regulatory body for licences to established cellular telephone system.  It was granted licences by the Minister though these subsequently were ruled invalid by the National Court.  Since the ministerial there is evidence that the Plaintiff grant has been granted licences by the PTC Board itself on two occasions.  The Board has subsequently purportedly revoked those grants but, as the Plaintiff contends - without there being any opportunity to be heard.
The State, the PTC Board, the Department - overall, the regulatory authority for the granting of the Radiocommunication Licences has granted the Plaintiff’s application on three occasions.  Apart from the ruling of the Court on the invalidity of the licence issued by the Minister, the remaining licences have been rescinded without explanation.  This history of grant and take away, has been followed by the regulatory authority authorising its own PTC applicant to pursue and develope the very network that the Plaintiff company had sought to establish.
Counsel for the Plaintiff says that the issues on which it bases the application for injunctions are:
“a.      Whether the Board resolution to grant licences  amounted to the grant of licences.
b.       Whether the Board has any power to revoke any licences.
c.       Whether the PTC Board - if it has the power to revoke licences - can do so without giving the licensee the right to be heard.
d.       Whether the regulations under the Radio Communication Act are validly interpreted by substituting “Board” for “Minister” such that the Minister licensing power is removed notwithstanding the express word of the regulations.”
I am satisfied that on those matters the Plaintiff has established that it has an arguable case.
The Plaintiff contends that under these circumstance it is appropriate that the Court should grant the injunctions sought.  Notwithstanding the grant authorising the PTC to establish a network using the same frequencies allocated to the Plaintiff, that operation is not yet off the ground.  An injunction therefore will not prejudice the PTC subsidiary and will have affect the preserving the status quo pending the resolution of these matters between the parties.  Because there are no cellular phone system operating in PNG there can be no hardship claim by the PTC that is not also affecting the Plaintiff.  In any case the Plaintiff has made the necessary undertaking as to damages to cover the situation should it not succeed at trial.
Counsel for the Defendants argues the balance of convenience lies in refusing  the injunctions since the PTC network operations are “well underway”.  In any case the whole of the spectrum available for cellular phones is not wholly taken up by the PTC system.
While I have found the Plaintiff has an arguable case I am not satisfied that it is appropriate that  injunctions should issue.  On the evidence before the Court it is not obvious that rights in the Plaintiff will be irrevocably lost if orders are not made or that there will be a loss to the Plaintiff, not recoverable in the form of damages.  In the event the Plaintiff succeeds at trial, it would seem that the very orders that he now seeks as well as damages will likely follow.  Accordingly the application for injunctive relief is declined.
Lawyer for the Plaintiff: Maladina Lawyers
Lawyer for the Defendant: Allens Arthur Robinson Lawyers