clr/1986/1986_3_460.pdf

(1)of Cap. Π 6 on the 31.8.85 and the renewal was published in the Official Gazette on the 20.12.85 in accordance with s. 59 of the same Law. Held,

(1)Administrative action which has as its primary purpose the regulation of private rights comes within the domain of private law.

(2)There seems to be some analogy between registra­ tion under s. 56 of Cap. 116 and registration of a trade 20 460 5 10 15 3 C.L.R. Photiades v. Republic mark, which was held to be a matter in the domain of public Law. 5 10 15

(3)In the light of the foregoing, and of the provisions of sections 56, 59, 60 and 61 and all other relevant considerations and as at present advised—subject to any further arguments to be advanced when dealing with the merits of the case—the decision challenged by the first motion of relief comes within the domain of public Law.

(4)As regards the administrative action challenged by the second motion of relief it appears that it is closely connected with, and related to, the subject-malter of the first motion of relief and, therefore, cannot be treated as not coming within the domain of public law.

(5)In the light of all the circumstances the third motion of relief refers to an action primarily in the domain of private law. Recourse to proceed only as regards the first and second motions of relief. 20 Cases referred to: HUKyriacou v. HjiApostolou, 3 R.S.C.C. 89; Vatana v. The Republic, 3 R.S.C.C. 91; The Greek Registrar of Co-operative Societies v. Nicolaides

(1965)3 C.L.R. 164; 25 The Republic v. M.D.M. Estate Developments Ltd.

(1982)3 C.L.R. 642; Ethnikos v. K.O.A.

(1984)3 C.L.R. 831; I.W.S. Nominee Co. Ltd. v. The C.L.R. 582; 30 Republic

(1967)3 Merck v. The Republic

(1972)3 C.L.R. 548; The Company Carlo Erba Spa. v. The 3 C.L.R. 427. 461 Republic

(1977)Photiades v. Republic (13SS) Preliminary Objection. Preliminary objection by Counsel for the respondents an-.i interested parties to the effect that the acis and decision complained of by the applicant could not be challenged by means of this recourse under Article 146 of the Constitu5 tion, because they do not come within the domain of public law but they are within the domain of private law. Chr. Triante.fyllidcs, for the applicant. R. Gavrielkles, Senior Counsel of the Republic, for the respondents. 10 Chr. Clerides, for the interested parties. Cur. adv. villi. TRIANTAFYLLIDES P. read the following decision. At this stage of the present proceedings I am dealing with the opposition of counsel for the respondents and for the interested 15 parties to the continuance in force of a provisional order which I made ex parte on the 10th February 1986. Counsel for the respondents and for the interested parties have raised the preliminary objection that the administrative acts and decisions complained of by the applicant could not 20 be challenged by means of this recourse, under Article 146 of the Constitution, because they do not come within the domain of public law, but they are within the domain of private law. By virtue of claim 1in the motion for relief the applicant 25 challenges, in effect, the administrative action taken by respondent 2—who comes under respondent 1—in relation to the registration, under section 56

(1)of the Partnership and Business Names Law, Cap. 116, of the disputed by the applicant renewal, for a period of five years, of the partner- 30 ship "Photos Photiades &Co.". A certificate was issued by respondent 2, under the aforesaid section 56

(1), on the 31st August 1985, and the renewal of the partnership for five years was published by respondent 2, in accordance with section 59 of Cap. 116, 35 462 3 C.t.R. Photiades v. Republic Triantafyftides P. in the Fifth Supplement to the Official Gazette of the Republic, on the 20th December 1985. 5 ld 15 20 25 30 It is well settled that administrative action which has as its primary purpose the regulation of private rights corner within the domain of private law. and not of public iaw, and cannot be challenged by a recourse under Article 14b of the Constitution (see, in this respect, inter aiia, the cases of Hadjikyriacou v. Hadjiapostolou, 3 R.S.C.C. 89, Valathi v. The Republic, 3 R.S.C.C. 91, The Greek Registrar of Cooperative Societies v. Nicolaides,

(1965)3 C.L.R. 164, 170-172, The Republic v. M.D.M. Estate Developments Ltd.,

(1982)3 C.L.R. 642 and Ethnikos v. KO.A., (1984J 3 C.L.R. 831). The aforementioned sections 56 and 59 of Cap. 116 read as follows: "56.

(1)On receiving any statement made in pursuance of this Law the Registrar shall, if satisfied that the provisions of this Law have been complied with, cause the same to be filed and registered and he shall send by post or deliver to the firm or person from whom such statement shall have been received it certificate in the prescribed form on the registration thereof.

(2)The certificate or a certified copy of such registration shall be kept exhibited in a conspicuous position at the principal place of business of the firm, individual or corporation, and, if not kept so exhibited, every partner in the firm or the individual or the corporation, or any officer thereof, as the case may be. shall be liable to a fine not exceeding twenty pounds." "59. Every entry made by the Registrar on the register under the provisions of this Law shall be published in the Gazette." 35 Furthermore there should be borne in mind that section . 60 of Cap. 116 provides for inspection by "any person" of documents filed and registered by respondent 2; and, also, 463 Triantafyilides P. Photiades v. Republic

(1986)that section 61 of Cap 116 makes default in registration :m offence punishable on summary conviction. It is useful to point out, too, that there seems to exist some analogy between registration under section 56 of Cap. 116 and registration of a trade mark, which was held to be 5 a matter in the domain of public law (see, inter alia, in this respect, l.W.S. Nominee Co. Ltd. v. The Republic,

(1967)3 C.L.R. 582, Merck v. The Republic,

(1972)3 C.L.R. 548 and The Company Carlo Erba Spa v. The Republic,

(1977)3 C.L.R. 427). In the light of the foregoing, and of all other relevant considerations, 1 have reached the conclusion—for the purposes of this hearing regarding the continuance in force of the provisional order made by me on the 10th February 1986, and as at present advised, and subject to any further 15 arguments to be advanced by the parties when I will be dealing with the merits of this case—that the administrative action of respondent 2 which is challenged by claim 1 in the motion for relief in the present recourse ought not to be treated as having as its primary purpose the regulation of 20 private rights, and, therefore, it does not come within the domain of private law, but it is within the domain of publiclaw, since its primary object is the promotion of a public purpose., namely to ensure proper administration and to protect the rights of the general public in the public interest. 25 As regards the administrative action which is challenged by means of claim 2 in the motion for relief in this recourse, it appears, from the material before me, and, particularly from the affidavit of respondent 2, dated 14th February 1986, that it is closely connected with, and related to, the 30 subject-matter of claim 1 and, at the present stage, I cannot treat such action as not coming within the domain of public law, too, and as not being properly challenged by means of the present recourse under Article 146 of the Constitution. As regards the administrative action complained of by 35 means of claim 3 in the motion for relief in this recourse I think that, in the light of all the circumstances of the present case, as they emerge from the material before me, it is clear that respondent 4, who comes under respondent 3, has acted, as an administrative organ, primarily in the domain 40 464 10 3 C.L.R. Photiades v. Republic Triantafyilides P. of private law and, therefore, claim 3 in the motion for relief has to be dismissed as not coming within the ambit of the jurisdiction of this Court under Article 146 of the Constitution. 5 This recourse can, therefore, be proceeded with only as regards claims 1 and 2 in the motion for relief. Order accordingly. 465