3 C.L.R. ...... ν , . , . 1988July 19, - , ,Λ , • [MALACHTOS, J.] INTHE MATTER OFARTICLE 146OFTHECONSTITUTION ; > · : . , . . ; ANDREASVLACHOS,• ' · * . . ' . ' ι Applicant, v. THE REPUBLICOFCYPRUS,THROUGH MINISTRY OFFINANCEAND/OR DIRECTOR OFCUSTOMSDEPARTMENT,· Respondents. ;' • i ' ' ! " ' (CaseNo. 527/88), Provisional order—The prerequisites for granting it—Flagrant illegality— Irreparabledamage—Flagrantillegalitymilitatesstronglyinfavour ofmak ing theorder, evenifirreparabledamagehas not beenproved—Generally, pecuniarylossis notconsideredas irreparabledamage. The facts of this case appear suffientiy in thejudgment of theCourt. Provisionalordergrantedexpartedischarged. No orderas to costs. • Casesreferredto: : , Aspri v. The Republic, 4 R.S.C.C. 57;" ' Georghiades v. TheRepublic
(1965)3 C.L.R! 392; Prokopiou and Others v. TheRepublic
(1979)3 C.L.R.
- Application; Application by Counsel for applicants for a direction of the Courtmaking absolute aprovisional order suspending thedeci sionof therespondents by which'the licencefor importation and useof adutyfree motorcarwould beterminatedon 30.6.
- * 1501 Vlachos v. Republic
(1988)C.Melas withA. Christofidou(Miss), for the applicant. S.Matsas, for the respondent. MALACHTOS.J.gave thefollowing decision.In viewof the natureofthiscase Ishall proceed todeliverjudgment forthwith. The applicant in this recoursefiled on 22.6.88 thepresent recourseclaiming: 5 1. Adeclaration of thecourtthattheactand/ordecision of therespondent authority, which is contained in a letter dated 2.6.88, addressed tothe applicant, and bywhich hisclaim for exemption from import duty of his motor car was dismissed, should bede- 10 clared nullandvoid andof nolegal effect whatsoever. 2. Adeclaration of the court that the omission and/or refusal of therespondent toaccept theclaimof theapplicant for exemption from import duty of his motor car, is null and void and without legal effect whatsoever and whatever has been omitted should havebeenperformed, and 15 3. Adeclaration of the court bywhich theactand/ordecision of the respondent, which came to the notice of the applicant on 8.6.88 and by which he was given a licence to use his vehicle free of import duty up to 30.6.88, should be declared null and 20 void andofnolegaleffect whatsoever. Atthesametimetheapplicant applied andobtained aprivisionalordertotheeffect that(
- a)the decision of therespondent dated 2.6.88 by which the licence for importation and use of aduty free motor car-would be 2 ^ terminated on 30.6.88, was suspended till further order of this court, and (
- b)it was also ordered that the payment of import duty for the motorcarunder No.D461HYH isalso suspended till further or1502 3.C.L.R. Vlachos v. Republic derof thiscourt. . , f Jvt , Malachtos.J. 4 * . ' 'J . ' . . Ί . Theorderwas madereturnableon2.7.88andcounselfor the respondent onappearing onthatdate stated thatheopposesthe application,and so theapplication was adjourned to 18thJuly, 1988,for hearing.In themeantinethe.oppositiontotheorderbe ingmade.absolutewas filed togetherwiththerelevantaffidavit in supportthereof."Duetothecontinuationof hearingof Reyisional JurisdictionAppeals Nos.610 and612on 18.7.88thehearingof thisapplicationwas shifted for today. ,, N. ' 10 Thebasisof thecaseof theapplicant,which appearsintheaf_ fidavit in support'of his application,is that he has an arguable case,thatthereis flagrant illegality onthepartof the respondent authorityandthatif theprovisional orderisrefused, therewillre sultirreparabledamagetohim. , · . 15 Theprinciples onwhich aprovisional orderis grantedandis madeabsolute, are stated inaconsiderable numberof casesdecided by this Courtbeginning with thecase ofAspriv.TheRe public, 4 R.S.C.C.57, Georghiades v. TheRepublic
(1965)3 C.L.R.392,uptothecase of Gedeon Prokopiou andOthersy. TheRepublic
(1979)3C.L.R.686where all thesecases are enu merated.In thecase ofProkopiou, (supra),atpage 691,thefol lowingisstated: 20 \25 ™ "Itisclearfrom theabove thatanapplicantinorderto suc ceedinanapplicationfor aprovisional orderunderrule 13 of theSupremeConstitutionalCourtRules, 1962, must showto theCourtthathisapplication is likely toprevail onthe merits and thatthenonmakingof theorderwillcausehimirreparable t damage.Itgoeswithoutsayingthatflagrant illegalityof an ad ministrativeactmilitatesstrongly tothemakingof aprovisionalordereven thoughirreparabledamages hasnot beenproved. As itappearsfromLouis L.Jaffee on'Judicial Controlof Ad ministrative Actions' the above principles are accepted in . AmericanJurisprudencemore clearly. In.Chapter 18underthe headingof Temporary Judicial Stays of AdministrativeAction 1503 Malachtos J. Vlachosv.Republic
(1988)Pending Juidical Review'of thisbook,atpage689,itis stated that: Despite'the silenceorvariantwordingofapplicable statutes permitting stays ' upon good cause shown' or upon 'a finding' of irreparable 'damage',thepowerremains adiscretionary and 5 equitable one to be exercised according to tradinional standards.TheDistrict of Columbia Circuit,with anextensiveexperienceinmotionsfor stays,hasattempted tocastthemintoa formula in Vigninia Petroleum Jobbers Assn. v.FPC (259F. 2d 921 (D.C.Cir. 1958)), which has since been widely re- 1 0 ferred tointhelowerfederal Courts.The applicant must show 1)that he isvery likely to prevail on the merits; 2) that if he shouldprevail on themeritshe will suffer irreparable injury if the stay is not granted; 3) that theother parties will not suffer harm;and4)that thepublicinterest will not beharmed."' ^ From the material placed before mein the present case it can neither besaid that there exists aflagrant illegality on thepart of the administrative authority, afeature militating strongly to the makingof theorder absolute northat theclaim of theapplicant is sounfounded as to lead the court to the conclusion that it is not 20 proper inany case togrant theprovisional order applied for. The merits ofthe case,therefore, cannot have adecisiveeffect on the outcomeof thepresent application. Coming to the question of irreparable injury, it is clear from theaffidavits in support of theapplication and opposition that the ~< injury alleged by the applicant is only pecuniary loss which is generally recoverable. In Recourse for Annulment of the Greek Council of State by Tsatsos, 3rd edition, page 428, paragraph 255, weread: "Pecuniary loss is generally recoverable. In some cases, however,pecuniary lossisconsidered asirreparable ifitisgoingtoendanger acommercial business ortheabilityof providingthemeansof supportof theapplicant. Furthermore,incases where the extent of the damage in conjunction with the 1504 30 3C.L.R. Vlachosv.Republic MalachtosJ. conditionsunder which the injured party is living, doesnot confertheabovecase,thepecuniarylossmayamounttoirreparableinjury iftheperson whoisliabletopayisinsolvent,or thedamagethatwillresultfromtheexecutionoftheadministrativeact,cannotbeascertained." Inthepresentcasethissituationdoesnotarise. Forthereasons stated above,I havereached theconclusion that the provisional order, which was made on the 25.6.88 shouldnotremaininforceanditisherebycancelled, OnthequestionofcostsImakenoorder. Therecoursetotakeitsusualcourseandisadjourned to3rd September,1988at9a.m.formention. Opposition tobefiled within,15daysas.from todayandany replythereto,withinonemonththereafter:· Orderaccordingly. 1505