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Bebi v Fox [2010] PGNC 158; N4017 (14 May 2010)

N4017

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS NO 204 OF 2010

BETWEEN

PETER BEBI
BOARD CHAIRMAN OF MOUNT HAGEN
EAGLES RUGBY LEAGUE CLUB
Plaintiff

AND

DON FOX
CHAIRMAN OF B-MOBILE CUP
First Defendant

AND

ANTHONY SMARE
OBSERVER OF B-MOBILE CUP & CHAIRMAN OF B-MOBILE LIMITED
Second Defendant

AND

SAMUEL BUKA
CHAIRMAN OF MT. HAGEN WANTOK
GAMING SYSTEMS KURI CLUB
Third Defendant

Mount Hagen: Makail, J
2010: 11th & 14th May

INJUNCTION: Interlocutory injunction - Discretionary - Principles of -Preservation of status quo - Inherent power - Constitution - Section 155 (4).

No cases cited:

Counsel:

Mr E. Wamp, for Plaintiff
Mr K. Peri, for the Defendants

INTERLOCUTORY RULING

14th May 2010

1. MAKAIL, J: By an amended notice of motion handed up to the Court on 11th May 2010, the plaintiff who is Board Chairman of Mount Hagen Eagles Rugby League club seeks inter-alia, an interlocutory injunction to stop the B-Mobile Cup rugby league competition from progressing, pending the determination of the substantive proceeding and an order that round one of the competition on Sunday 09th May 2010 be declared null and void or alternatively, an order that Mount Hagen Eagles Rugby League club be given points for each match not played in the competition as if it were a bye. The application is made pursuant to order 14, rule 10 of the National Court Rules. It is also made pursuant to section 155 (4) of the Constitution which is the National Court's inherent power to do justice in the circumstances of a case.

2. In the originating summons filed on 20th April 2010 and amended on 11th May 2010, the plaintiff seeks inter-alia, declaratory orders that the first defendant who is the chairman of the B-Mobile Cup and the Board of B-Mobile Cup recognize and accept Mount Hagen Eagles Rugby League club of the Western Highlands Province to participate in the 2010 B-Mobile Cup competition, and an order quashing the decision of the first defendant and the Board of B-Mobile Cup to recognize and accept the third defendant and Mount Hagen Wan Tok Gaming Systems Kuri club as replacement of Mount Hagen Eagles Rugby League club and its Board members.

3. Upon hearing Mr Wamp of counsel for the plaintiff and Mr Peri of counsel for the defendants and upon reading the various affidavits for and against the application, those affidavits being; affidavit of Peter Bepi sworn and filed on 28th of April 2010; supplementary affidavit of Peter Bepi sworn on 06th May 2010; affidavit of Don Fox sworn on 06th May 2010 and filed on 11th May 2010; and supplementary affidavit of Don Fox sworn on 10th May 2010 and filed on 11th May 2010, it is noted that the following facts are not in dispute; Mount Hagen Eagles Rugby League club applied to the first defendant and Board of B-Mobile Cup competition to participate in the competition. Each rugby league club including Mount Hagen Eagles Rugby League club intending to participate in the 2010 B-Mobile Cup competition was required to pay K90,000.00 to the first defendant and the Board of B-Mobile Cup to qualify to participate.

4. The deadline for rugby league clubs seeking to participate in the 2010 B-Mobile Cup competition was 08th April 2010. The Mount Hagen Eagles Rugby League club had no major sponsor but paid K90,000.00 by installments before the deadline of 08th April 2010. The first installment was K30,000.00, paid on 06th March 2010 by direct deposit to the bank account of "SP Cup Trust Account" and the second, K60,000.00 on 24th March 2010, again by direct deposit to "SP Club Trust Account" at BSP bank. Despite the payment of K90,000.00, the first defendant and Board of B-Mobile Cup refused its entry and participation in the competition resulting in it missing out on playing in round one on Sunday 09th May 2010. As a result also, it lost out on 2 competition points.

5. The dispute amongst the parties is over the K90,000.00 that must be paid by a major sponsor who would then have the "naming right" over the club it sponsors. The plaintiff claims that the payment of K90,000.00 is not subject to a major sponsor of a club but may be paid by anyone including the clubs themselves. On the other hand, the defendants argue that the K90,000.00 must be paid by a major sponsor who would have the "naming right" over the club as its major sponsor. For example, the third defendant's major sponsor is Wan Tok Gaming System Limited, a Mount Hagen based company of which the Mount Hagen Wan Tok Gaming Systems Kuri Club is named after.

6. It is also common ground amoungst the parties that although the proceeding was commenced on 28th April 2010 and the interlocutory application was intended to be heard before the start of the competition on Sunday 9th May 2010, it was not possible due to the Court running out of time on Friday 7th May 2010 to hear the application. The amended origination summons and the amended notice of motion upon which the application is being moved captures the change of circumstances so as to avoid any confusion or misunderstanding in relation to what the plaintiff and Mount Hagen Eagles Rugby League club seek before the Court.

7. From the above facts, it is obvious to me that there are two competing interests that I must weigh out before I make a decision. First there is the plaintiff's interest to participate in the 2010 B-Mobile Cup competition and secondly, there is the defendants' interest to allow the competition to remain uninterrupted following its commencement on Sunday 9th May 2010. These are essentially the competing interests that must be weighed up carefully before a decision is made. As the plaintiff seeks to stop the competition until his complaint for Mount Hagen Eagles Rugby League club to participate in the competition is heard and decided by the Court, the law places upon him and Mount Hagen Eagles Rugby League club the burden to establish to the satisfaction of the Court that;

1. There is a serious issue raised in the proceeding that requires proper determination at trial;
   
2. The balance of convenience favour the grant of an interlocutory injunction to preserve the status quo until the dispute is finally determined at trial; and
   
3. Damages would not be an adequate remedy to compensate the plaintiff for any loss.
   

I consider each below

8. The Court must be satisfied that there is a serious issue raised in the proceeding. There appears to be two issues raised from the evidence and submissions of the parties. First, whether or not it is a condition or requirement for entry and participation in the 2010 B-Mobile Cup competition for a rugby league club to have a major sponsor who would be responsible for the payment of K90,000.00 to the first defendant in order to have the "naming rights" over a club. None of the counsel were able to refer me to any law be it by-laws or constitution of the B-Mobile Cup competition providing for such a condition or requirement. If there are by-laws or a constitution governing and regulating this competition, it has not been put before me as a matter of evidence. If this condition or requirement originated from a decision of the Board of B-Mobile Cup, a copy of that decision has also not been put before me as a matter of evidence. So I do not know the authority for this condition or requirement.

10. However, there is evidence before me and I accept that, according to paragraphs 4-18 of the affidavit of the first defendant sworn on 06th May 2010 and filed on 11th May 2010, in order for the competition to be successful, each team must have a franchise owner or major sponsor. Having a franchise owner or major sponsor would ensure that a team has access to training facilities, maintenance of sporting grounds, purchase of sportswear and uniforms, funds to travel to other centres for games, medical attention, payment of basic player allowances, ability to make and generate revenue at their venues and so forth. There are also affiliation fees and the capacity of sponsors to maintain financial viability that can sustain a team in the competition over a long term and illustrate capacity to prove sound and long term management are a paramount importance as far as the competition is concerned. A sponsorship entailed a minimum of at least K300,000.00 and if a team has no major sponsor, it cannot participate in the competition.

11. In the present case, the plaintiff and Mount Hagen Eagles Rugby League club have no major sponsor for 2010. A major sponsor for them would be responsible for all those matters highlighted by the first defendant in his affidavit of which I have referred to above. As far as I can see, it is not a matter of paying K90,000.00 to the first defendant and the Board of B-Mobile Cup competition by any rugby league club and expect to participate in the competition. There is more to that; each club must have a major sponsor to ensure that their participation proceeds smoothly with adequate financial support and backing of a major sponsor. So it is not as simple as that as claimed by the plaintiff and I do not believe that the commitment of funds of K50,000.00 by the Western Highlands Provincial Government is sufficient to maintain the club for the 2010 session. It is no wonder the first defendant and the Board of B-Mobil Cup rejected the plaintiff and Mount Hagen Eagles Rugby League club entry into the competition and refunded the K50,000.00 to the Western Highlands Provincial Government.

12. Whilst it is true that there is no evidence of the legal basis of the condition or requirement for a club to have a major sponsor, hence it is arguable that such a requirement or condition should not be imposed on any club including the plaintiff and Mount Hagen Eagles Rugby League club, there is also force and merit in the contention of the defendants that there must be a major sponsor for each club including Mount Hagen Eagles Rugby League club to ensure that they enter and participate without encountering any financial problems. Hence, I am not persuaded the complaint by the plaintiff is a sufficient reason nor does it raise a serious issue for determination at trial.

13. The second issue is whether or not the Mount Hagen Eagles Rugby club should be the only club representing the Western Highlands Province in the competition and the third defendant should not be accepted and recognized as its replacement. This issue arises because it is one of the substantive relief being sought by the plaintiff: see paragraph 4 of the amended originating summons. On this issue, it is noted that Mr Wamp in his submission submits that the plaintiff and Mount Hagen Eagles Rugby League club do not dispute the entry and participation of the third defendant in the competition. Their concern is that, Mount Hagen Eagles Rugby League club should be the team to enter and represent the Western Highlands Province in the competition because it has always been the team that represented the Western Highlands Province. It was the pride of the Western Highlands Province. An example of its evidence as a formidable team for this province was when it made its way into the grand final in 2008 SP Cup competition which was the fore runner of the present competition only to loose in the grand final.

14. Be that as it may, I am not persuaded that this is the situation as the plaintiff attempted to persuade the Court to believe. First, as noted above one of the substantive relief the plaintiff seeks is to have the first and second defendants not to accept and recognize the third defendant as a team participating in the competition. So how can the plaintiff say that he is not disputing the entry and participation of the third defendant in the competition.

15. Secondly, there is no evidence to support Mr Wamp's submission that the Mount Hagen Eagles Rugby League club represents the Western Highlands Province in the competition nor can it be said that it should be the only team representing the province in the competition. In that regard, the Court notes and is also common knowledge that Port Moresby has two teams competing in the competition; one Stop N Shop Port Moresby City Vipers and the other Masta Mak Rangers. So, that submission has very little force when it comes to the Court assessing whether there is a serious issue to be tried. In the end, I am not persuaded that there are serious issues raised in this proceeding.

16. In relation to the balance of convenience test, I am not satisfied that circumstances favour the grant of an interlocutory injunction. I am not satisfied that the plaintiff will suffer irreparable damage if an interlocutory injunction is not granted because first, there is no evidence from either side that team participating in the competition represents the province it originates from. Therefore, Mr Wamp's urging of the Court to find that Mount Hagen Eagles Rugby League club represents the Western Highlands Province in the competition must fail.

17. There is a second reason and very important one too, in my view and that is, the competition has started; round one was on Sunday 09th May 2010 and all clubs registered in the competition including the third defendant participated. The commencement of competition and round one matches received full media coverage in the local newspapers as noted from annexure "C" to the supplementary affidavit of Don Fox sworn on 10th May 2010 and filed on 11th May 2010. Round two of the competition is expected to be played this coming weekend, in particular on Sunday 16th May 2010. According to paragraph 21 of the supplementary affidavit of Don Fox sworn on 10th May 2010 and filed on 11th May 2010, a lot of effort has been put in to ensure that the competition becomes a success which had matches schedule which had commenced on Sunday 9th May 2010 and would run for 22 weeks, the semi finals to be played on 19th and 26th September, finals on 03rd October and grand final on 10th October 2010.

18. In my view, the schedule is not only tight but well planned as much effort and planning by organisers of the competition had been put in to ensure that the competition starts and ends uninterrupted. If the competition is stopped especially after the first round of matches, I have not doubt in my mind that it would throw the schedule and the competition into disarray. Ultimately, it will be the rugby league fans, the die hard supporters of the clubs and the game of rugby league and the organizers of the competition and not forgetting the players of each club who will suffer. In short, there will be no competition until the plaintiff's complaint is resolved if the Court stops the competition today.

19. This leads me to the question of damages; whether damages would be an adequate remedy for the plaintiff. I am of the view that this consideration is not significant to the plaintiff because his interest is that they want to enter and participate in the competition. That is what it matters for the plaintiff and Mount Hagen Eagles Rugby club at this point in time and no amount of damages would make up for the loss of not participating in the competition. I consider this factor favours the plaintiff.

20. But in weighting all of these considerations up, I am not satisfied that the plaintiff has establish that a grant of an interlocutory injunction would cause no inconvenience and irreparable damage to the defendants and the competition as a whole. This is where the National Court exercising its inherent power under section 155 (4) of the Constitution would not grant an interlocutory injunction as it would cause injustice to the defendants. I would refuse the application for these two reasons.

21. There is a further reason for me to refuse the application and that is in relation to the order sought by the plaintiff that round one of the competition commenced on Sunday 09th May 2010 be declared null and void or alternatively, an order that the Mount Hagen Eagles Rugby League Club be given points for each match not played. I agree entirely with the submission of Mr Peri that these proposed orders are substantive in nature which would require proper determination at trial before they are granted. In other words, such orders can not be made at the interlocutory stages of proceedings like this case, because the Court will have not heard until arguments from both parties on the issues. For this reason, I refuse the proposed orders sought in paragraph 3 of the amended notice of motion.

22. Having refused the application for these reasons, I consider it not necessary to consider the submission of Mr Peri in relation to the jurisdiction of the Court with regard to the National Judiciary panel of the Papua New Guinea Rugby League in rule 9.1.2 of the Constitution of Papua New Guinea Rugby League.

23. In the end, I refuse the plaintiff's application by his amended notice of motion with costs to the defendants and the matter is adjourned for directions hearing on Monday 31st May 2010 at 9.30 am.

Ruling accordingly.

___________________________________
Kunai Lawyers: Lawyers for the Plaintiff
Warner Shand Lawyer: Lawyers for the Defendants