[TRIANTAFYLLIDES, P.] Dec. 6 c T c IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION CONSULTANTS LTD. v CYPKVS C.T.C. CONSULTANTS LTD., Applicants, and TOURISM ORGANISATION THE CYPRUS TOURISM ORGANISATION, Respondent. (Case No. 283/76). Provisional Order—Rule 13 of the Supreme Constitutional Court Rules, 1962—Principles applicable—Discretion of the Court— Public interest—Flagrant illegality—Contentions ΟΛ ιο existence of—Even assuming that they are really arguable and they raise issues to be tried they cannot be treated as establishing existence 5 of any flagrant illegality as would enable applicants to claim the provisional order appliedfor—Moreover applicants will suffer no irreparabledamage if the provisional order is not granted—Appli cation refused. Administrative Law—Practice—Recourse for annulment—Early date of trial—Applicationfor provisional order—It shouldnot be taken for granted that whensuch order is appliedfor and refused then an early trial is the indispensable or inevitable alternative. By means of a recourse, filed on November 13, 1976, the applicants sought the annulment of the decision of the respon- 15 dent to assign, after a competition for the purpose, the prepara tion of the plans for a tourist development project, to the inte rested day; on the same date they filed an application, under rule 13 of the Supreme Constitutional Court Rules for a provi sional order suspending the effect of the sub judice decision 20 pending the determination of the recourse; and they, also, sought an early date of trial of the recourse. In support of the application for a provisional order appli cants submitted that this was a case where there existed flagrant illegality of the sub-judice decision; and they argued, in this 25 respect, that the said decision has been influenced by erroneous considerations; that it was reached without due inquiry and that there occurred procedural irregularities and misapplication 390 10 of the rules applicable to the competition which preceded such decision. Held, {after stating the principles governing the making of a provisional order—vide pp. 393-394 post). 5 ΙΟ
(1)That at this stage this Court does not have to,and should not decide about the validity of the contentions concerning flagrant illegality; that assuming that they are really arguable and that they raise serious issues to be tried, they still cannot be treated as establishing the existence of any flagrant illegality, as would enable the applicants to claim a provisional order. 20
(2)That this is not a case in which the applicants will suffer, if noprovisional order is made,damage which will be irreparable, in the sense that it cannot be adequately estimated in terms of - money, for the purposes of Article 146.6 of the constitution, in case they, eventually, succeed to annul the decision of the re spondent, which is the subject matter of the present recourse; and, that, in the light of all the aforementioned considerations, taken cumulatively together, this Court has reached the con clusion, in the exercise of its discretionary powers, that the provisional order applied for should be refused. 25
(3)That this is not a case where, in view of its nature, it is necessary to expedite specially the proceedings; and that it should not be taken for granted that whenever a provisional order is applied for and refused then an early trial is the indispensable or inevitable alternative. j5 Applicationrefused. Cases referred t o : Aspri and The Republic, 4 R.S.C.C, 57; Georghiades (No. 1) v. The Republic,
(1965)3 C.L.R. 392; 30 Leonida v. The Republic
(1965)3 C.L.R. 553; lordanou (No. 1) v. The Republic
(1966)3 C.L.R. 308; Cyprus Industrial and Mining Co. Ltd., (No. 2) v. The Republic,
(1966)3 C.L.R. 474; Artemiou (No. 2) v. The Republic,
(1966)3 C.L.R. 562; 35 lordanou (No. 2) v. The Republic,
(1966)3 C.L.R. 696; • - lordanou (No. 3) v. The Republic,
(1966)3 C.L.R. 705; Vassiliades v. The Republic
(1966)3 C.L.R. 708; Markantonis v. The Republic,
(1966)3 C.L.R. 714; 391 1976 Dec. 6 C.T.C. CONSULTANTS LTD. v. CYPRUS TOURISM ORGANISATION Dec. 6 C.T.C. CONSULTANTS LTD. v. CYPRUS TOURISM ORGANISATION Kouppas v. The Republic
(1966)3 C.L.R. 765; Galazi v. The Minister of Education,
(1967)3 C.L.R. 577; HadjiKyriakou and Others (No. 1) v. The Council of Ministers and Another
(1968)3 C.L.R. 1; Sepos v. The Presidential Election Returning Officer
(1968)3 5 C.L.R. 82; Georghiou (No. 1) v. The Republic
(1968)3 C.L.R. 401; Constantinidou v. TheRepublic
(1968)3 C.L.R.651; Goulelis v. The Republic
(1969)3 C.L.R. 583; Pavlou and Another v. The Republic
(1971)3 C.L.R. 120; Georghiades v. The Republic
(1971)3 C.L.R. 309; 10 Papadopoullou and Others v. The Republic
(1971)3 C.L.R. 317; Sofocleous v. The Republic
(1971)3 C.L.R. 345; Miltiadous and Others v. The Republic
(1972)3 C.L.R. 341; Cleanthous (No. 2)v. The Republic
(1972)3 C.L.R. 376; 15 Lanitis Bros Limited (No. 1) v. The Central Bank of Cyprus
(1974)3 C.L.R. 160; Papadopoullos v. TheRepublic
(1975)3 C.L.R. 89; The Bar Association of Nicosia andOthers v. TheRepublic,
(1975)3 C.L.R.
- 20 Application for a provisional order. Application for a provisional order suspending the effect of the decision of the respondent to assign the preparation of the plans of a tourism development project to the interested party pending the determination of a recourse against the validity of 25 such decision. Chr. Kitromilides, for the applicants. N. Charalambous, Counsel of the Republic, with M. Yiangou (Mrs.), for the respondent. Cur. adv. vult. 30 The bllowing decision was delivered b y : TRIANTAFYLLIDES, P.: The applicants have filed the present recourse o n November 13, 1976,seeking, in effect, the annulment of the decision of the respondent to assign, after a competition for the"purpose, the preparation of the plans for a tourism de- 35 velopment project, in the area known as "Dasoudhi" in Limassol, t o P A C Ltd (referred to hereinafter as the "interested party"). 392 5 The applicants have on the same date filed an application, under rule 13 of the Supreme Constitutional Court Rules, for a provisional order suspending the effect of the subjudice decision pending the determination of the present recourse; they are, also, seeking an early date of trial of this recourse. On November 22, 1976, the respondent undertook,on its own initiative, to suspend any further action in thematterpendingthe decision of the Courtas regards theapplication for a provisional order. 10 On November 25, 1976, the opposition of the respondent to the application for a provisional order was filed. To the affidavit in support thereof there have been attached a number of relevant documents to which there is no need to refer in a de tailed manner, at this stage, but the contents of which I have 15 considered, together with all the other material before me, for the purpose of deciding whether or not to make the provisional order applied for by the applicants. The hearing of the appli cation for such an order took place on November 30, 1976, and I have reserved my decision until today. ι 20 25 30
- 40 The making of a provisional order under rule 13, above, in volves the exercise of judicial discretion on the basis of the cir cumstances of the particular case and in the light of the prin ciples which should guide an administrative Court when dealing with such an application; such principles have been expounded, and applied in, inter alia, the following cases: Aspri and The Republic, 4 R.S.C.C. 57, Georghiades(No. 1) v. The Republic,
(1965)3 C.L.R. 392, Leonida v. The Republic,
(1965)3 C.L.R. 553, lordanou (No. 1) v. The Republic,
(1966)3 C.L.R. 308, Cyprus Industrial and Mining Co. Ltd., (No.2) v. The Republic,
(1966)3 C.L.R. 474, Artemiou (No.2) v. The Republic,
(1966)3 C.L.R. 562, lordanou (No. 2) v. The Republic,
(1966)3 C.L.R. 696, lordanou (No. 3) v. The Republic,
(1966)3 C.L.R. 705, Vassihadesv. The Republic,
(1966)3 C.L.R. 708, Markantonis v. The Republic,
(1966)3 C.L.R. 714, Kouppasv. The Republic,
(1966)3 C.L.R. 765, Galaziv. The Minister of Education,
(1967)3 C.L.R. 577, HadjiKyriakou and Others (No. 1) v. TheCouncil of Ministers and Another,
(1968)3 C.L.R. 1, Seposv. ThePre sidential Election Returning Officer,
(1968)3 C.L.R. 82, Geqrghiou (No. 1) v.^The Republic,
(1968)3 C.L.R. 401, Constantinidou v. The Republic,
(1968)~3 C.L.R. 651, Goulelisv. The Re public,
(1969)3 C.L.R. 583,PavlouandAnother v. The Republic, 393 1976 Dec. 6 C.T.C. CONSULTANTS LTD. v. CYPRUS TOURISM ORGANISATION 1976 Dec. 6 C.T.C CONSULTANTS LTD. v. CYPRUS TOURISM ORGANISATION
(1971)3 C.L.R. 120, Georghiades v. The Republic,
(1971)3 C.L.R. 309, Papadopoullou and Others v. The Republic,
(1971)3 C.L.R. 317, Sofocleous v. The Republic,
(1971)3 C.L.R. 345, Mihiadous and Others v. The Republic,
(1972)3 C.L.R. 341, Cleanthous (No. 2) v. TheRepublic,
(1972)3 C.L.R. 376, Lanitis 5 Bros. Limited (No. 1) v. The Central Bank of Cyprus,
(1974)2 C.L.R. 160, Papadopoullos v. The Republic,
(1975)3 C.L.R. 89, The Bar Association ofNicosiaand othersv. The Republic,
(1975)3 C.L.R. 24. On the strength of thematerial before me I do accept that the 10 tourism development project in question has to be proceeded with urgently in the public interest; and this is a factor to which I have had to pay due regard because, in considering whether to grant or refuse a provisional order in an administrative recourse, such as the present one, it has always to be borne in mind that 15 the public interest should as a rule, prevail over the private interest of any individual. The main ground on which the applicants have based their submissions in support of the application for such an order is that this is a case where there exists flagrant illegality of the 20 subjudice decision. I have considered all arguments which have been put forward in this respect, such as that the said decision has been influenced by erroneous considerations, that it was reached without due inquiry and that there occurred procedural irregularities and misapplication of the rules applicable to the 25 competition which preceded such decision. At this stage I do not have to, and I should not, decide about the validity of the above contentions; assuming, however, for the moment, that they are really arguable and that, therefore, they raise serious issues to be tried, they still cannot, in my opi- 30 nion, be treated as establishing the existence of any flagrant illegality, as would enable the applicants to claim a provisional order suspending the taking of effect of the subjudice decision. Moreover, I cannot accept that this is a case in which the applicants will suffer, if no provisional order is made, damage 35 which will be irreparable, in the sense that it cannot be adequately estimated in terms of money, for the purposes of Article 146.6 of the Constitution, in case they, eventually, succeed to annul the decision of the respondent, which isthe subject matter of the present recourse. 40 394 In the light of all the aforementioned considerations, taken cumulatively together, I have reached the conclusion, in the exercise of my relevant discretionary powers, that the provisional order applied for by the applicants should be refused. 5 Ihaveconsidered, exabundanticautela, whether itisrequired, in the interests ofjustice, to make such a provisional order not until the determination ofthe case—as sought by the applicants —but temporarily, for a shorter period of time, as was done in the cases of lordanou (No.2) and Kouppas, supra, but I do not 10 think that there exist in the present instance such special circumstances (as in the said two cases) which would justify my adopting that course. Regarding the request of the applicants for an early date of trial, all I need say in this respect, on this occasion, is that it is 15 expected that the Opposition will befiledas soon as possible, within the time prescribed under the relevant Rules; and then thiscasewilltakeitsnormalcourse. Thisisnotacasewhere,in view of its nature, it is necessary to expedite specially the proceedings;and it should not betaken for granted that whenever a 20 provisional order is applied for and refused then an early trial is the indispensable or inevitable alternative. Application refused. 395 1976 Dec. 6 CT.C CONSULTANTS LTD. v. CYPRUS TOURISM ORGANISATION