Arawe Logging Pty Ltd v Thomas Krokio and 30 Others, The Independent State of Papua New Guinea and Minister for Forests [1988-89] PNGLR 216

• Jurisdiction: Papua New Guinea
• Judge: Brunton J
• Judgment Date: 21 June 1989
• Citation: [1988-89] PNGLR 216
• Court: National Court
• Year: 1989
• Judgement Number: N751

National Court: Brunton J

Judgment Delivered: 21 June 1989

N751

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ARAWE LOGGING PTY LTD AND THOMAS KROKIO AND 30 OTHERS

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA AND MINISTER FOR FORESTS

Waigani

Brunton AJ

2 June 1989

9 June 1989

21 June 1989

PRACTICE AND PROCEDURE — Declaratory relief — Claim against State — Appropriate parties — Proper defendant State rather than Minister.

Held

Where a person makes a claim against the State seeking declaratory relief, it is sufficient to name the State as defendant without naming a particular Minister, whether by office or in person: the order itself binds the State, its servants or agents.

Cases Cited

Dent v Thomas Kavali [1981] PNGLR 488.

Mudge v Secretary for Lands [1985] PNGLR 387.

Motion

This was the hearing of a motion on notice to dissolve an interim injunction.

Counsel

I Molloy and R C Gunson, for the first and second plaintiffs.

M J J Jalina and Z G Gelu, for the first and second defendants.

Cur adv vult

21 June 1989

BRUNTON AJ: The plaintiffs commenced their action by originating summons filed on 19 May 1989, seeking declarations in relation to a timber rights purchase and a timber permit which had been issued in respect of the Arawe Timber Rights Purchase area, in West New Britain. An amended originating summons was filed on 8 June 1989. By notice of motion dated 19 May 1989 the plaintiffs sought ex parte injunctions against the first and second defendants from dealing in any way with the timber resource under dispute. The same day Andrew AJ made orders that the State was to be restrained from granting or issuing a timber permit to any company, person or entity other than the first plaintiff until the return date of the order. The first and/or second defendants were to be restrained from entering into negotiations or dealing in any way with a proposed contractor or the servants or agents of any proposed contractor and in particular with a company called Cakara Alam (PNG) Pty Ltd until the return date of the order. The srvice of the order was to be substituted and effected on the first and second defendants by service on the Secretary for Department of Forests or the Secretary for Justice. The order was returnable before the court on 2 June 1989 at 9.30 am. By notice of motion on 30 May 1989 the State and the Minister for Forests sought to dissolve the ex parte interim injunction ordered by Andrew AJ. Further, the defendants sought to dismiss the whole of the proceedings including the injunction and the originating summons and they sought costs. On 2 June, by consent, the matter was stood over to a chambers hearing on 9 June 1989, and directions were made that the evidence-in-chief of the parties be reduced to affidavit form, and be filed before 13 June; that affidavits in reply be filed before 20 June; that each party was to give notice to the other party of those deponents required for cross-examination before 16 June, and that the hearing of the matter was to commence on 21 June. Each party was at liberty to apply on thre days notice; the injunctions granted on 19 May 1989 and continued on 2 June 1989 were to be continued until the hearing of the action.

[His Honour then considered in a manner not calling for report the issues raised on the application including locus standi, whether there was a serious question to be determined and the balance of convenience and continued:]

SUMMARY

It is my view that the first and second plaintiffs in this action have locus standi in that the second plaintiffs are property-owners in the land over which the timber permits and the Timber Rights Purchase Agreement have been issued. The first plaintiff, a company, was an applicant for a timber permit and this gives it a sufficient interest to dispute the issue of the timber permit over this resource to another company. The issues of law that are raised by this case are in my view genuine issues of law that raise serious questions. It is not for me to decide those questions one way or another, merely to say that they are bona fide issues that could be tried.

On the balance of convenience as to whether or not the interim injunction should stay in place until this matter is finally settled by the courts, I am of the view that no action should be taken over this resource until the legal issues have been adjudicated upon. In my view the harvesting of this forest resource can wait a few weeks or a few months more until the law has been settled. The trees will not run away. However, if they are cut down they are lost forever. The fourth of the National Goals and Directive Principles in the Constitution calls for wise use to be made of our natural resources. Certainly, it would be unwise at this stage to go ahead and start harvesting this resource without the legal issues that have been raised being properly resolved. Further, I am concerned that the special attachment of the people to cleared land would result in activities such as rioting or damage to property, if the people saw logging going ahead without an authoritative pronouncement from the courts. This is not a ase where machinery is on the ground and money has already been spent in putting in infrastructure such as roads and buildings. Work is yet to begin. In my view the balance of convenience is that the present situation should be held for a little longer while these important legal issues are determined.

ISSUES RAISED BY THE DEFENDANTS

The defendants raised two procedural defects in the originating summons to this matter. First, the defendants said that the first defendant had been misnamed. The defendant said that the first defendant had been named as "Independent State of Papua New Guinea by its...