Ken Norae Mondiai and PNG Echo Forestry Forum Inc and John Danaiya v Wawoi Guavi Timber Company Limited and Papua New Guinea Forest Authority (2007) N3120

• Jurisdiction: Papua New Guinea
• Judge: Lay J
• Judgment Date: 16 March 2007
• Court: National Court
• Citation: (2007) N3120
• Docket Number: OS (JR) NO 259 OF 2006
• Year: 2007
• Judgement Number: N3120

Full Title: OS (JR) NO 259 OF 2006; Ken Norae Mondiai and PNG Echo Forestry Forum Inc and John Danaiya v Wawoi Guavi Timber Company Limited and Papua New Guinea Forest Authority (2007) N3120

National Court: Lay J

Judgment Delivered: 16 March 2007

N3120

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 259 OF 2006

BETWEEN

KEN NORAE MONDIAI

First Plaintiff

AND

PNG ECHO FORESTRY FORUM INC

Second Plaintiff

AND

JOHN DANAIYA

Third Plaintiff

AND

WAWOI GUAVI TIMBER COMPANY LIMITED

First Defendant

AND

PAPUA NEW GUINEA FOREST AUTHORITY

Second Defendant

Waigani: Lay J

2006: 19 May

2007: 16 March

Facts

The Plaintiffs seek leave for judicial review, inter alia, of a decision the Second Defendant’s Board took on 20 December 2005 to settle, in favour of the First Defendant, proceeding brought by the First Defendant for mandamus to force the Second Defendant to grant to it a Timber Resource Area known as Kamula Doso, as an extension to the First Defendant's existing Timber Permit.

Held:

1. There was no delay in bringing the application in respect of the 20 December 2005 decision;

2. There was no other administrative remedy available to the plaintiffs;

3. On the evidence there was an arguable case that it was unlawful for the Second Defendant to proceed with the decision of the 20 December 2005, prima face in the absence of a National Forest Plan which provided for Kamula Doso and the annual permissible cut of timber. It is also arguable the decisions to extend the period to which the National Forest Plan relates without addition of further data required by s 47 are ultra vires the powers of the Board of the Second Defendant;

4. To test for "sufficient interest" in O16 r 3(5) of the National Court Rules it is necessary to examine the relationship of the Plaintiffs to the nature of the breaches of law alleged;

5. The nature of the breaches of law alleged failure by the Board of the Second Defendant to fulfil its duty to produce a National Forest Plan based on a National Forest Inventory and deal with it as required by s 48 of the Forestry Act, and the allocation of forest resources not in accordance with the plan contrary to Section 54 of the Forestry Act;

6. Each of the plaintiffs has sufficient interest in the lawful allocation of forest resources and thus sufficient interest for the purposes of National Court Rules O16 r 3(5) as the First Plaintiff is a director of the Second Defendant with statutory duties; the Second Plaintiff was recognised in s 10 of the Forestry Act and the Third Plaintiff is an owner of land in the Timber Permit area sought to be joined with Kamula Doso.

7. Leave to proceed granted.

Cases Cited

Papua New Guinea Cases

N1595 Steamships Trading Co Ltd v Garamut Enterprises Ltd

Papua New Guinea Pilots Association v Director of Civil Aviation and National Airline Commission trading as Air Niugini [1983] PNGLR 1

Ombudsman Commission v Dohonue [1985] PNGLR 348

NTN Pty Ltd v Board of the PTC, PTC and Media Niugini Pty Limited [1987] PNGLR 70

Kekedo v Burns Philip (PNG) Limited [1988-89] PNGLR 122

Diro v Ombudsman Commission of Papua New Guinea [1991] PNGLR 153,

Application of Demas Gigimat [1992] PNGLR 322

Ila Geno, Paul Lawton and Florian Mambu v Independent State of Papua New Guinea [1993] PNGLR 22

N856 Ex parte application of Eric Gurupa,

N1226 Mark Kove v Secretary Department of West New Britain Province,

In the matter of the Ex Parte application of Poka Biki, [1995] PNGLR 336

Application of Evangelical Lutheran Church of Papua New Guinea by Evangelical Lutheran Church of Papua New Guinea Superannuation Fund [1995] PNGLR 276

N1895 Silas Mareha v The Chairman – Redundancy Monitoring Committee & Ors,

Overseas Cases

Inland Revenue commissioners v National Federation of Self Employed and Anor [1982] 1 AC 617

Council of Civil Services Unions v Minister for the Civil Service [1984] 3 ALL ER 935

Counsel

T. Nonngor, for the First and Second Plaintiffs

N. Kopunye, for the Third Plaintiff

16 March, 2007

1. LAY J.: The plaintiffs, ex parte, seek leave to proceed with an application for judicial review of some seven steps and four decisions taken by the Second Defendant in the allocation of a timber rights purchase area (TRP) known as Kamula Doso in the Western Province. Principally what the plaintiff seeks to have reviewed is a decision of the Second Defendant's Board made on 20 December 2005 to settle proceedings OS 557/2006 which are proceedings between the First and Second defendants. The translation of that settlement into an order of the Court is the subject of a separate appeal in the Supreme Court (SCM No. 3 of 2006).

2. The matter first came before me on 19 May 2006. Then the application of John Danaiya to be joined as a party was allowed and the application of the defendants to be heard on the leave application refused. Subsequently on 4 July 2006, in the application of the Ombudsman Commission to be joined as a party was refused.

3. The plaintiff's case is supported by the affidavit of Ken Norae Mondiai, sworn 18 April 2006.

4. A great deal of the contents of this affidavit is inadmissible, being based on reports of which the deponent is not the author or on information and belief, i.e. hearsay. One of the reports purports to be a report of the Ombudsman Commission but there is no provision in the Organic Law on the Ombudsman or the Evidence Act authorising me to take judicial notice of such reports.

5. Confining myself then to the areas in which the deponent appears to have personal knowledge as to the facts strictly relevant, from the material filed by the plaintiffs, I note the facts as follows.

6. The Second Defendant published a document entitled "National Forest Plan". This document was sent to the Minister who tabled it in Parliament in accordance with s 48 of the Forestry Act. A copy of that document is filed in the Parliamentary Library. It does not contain any reference to Kamula Doso. This document I later refer to as the NFP

7. Other documents also entitled National Forest Plan have been prepared and published by the Second Defendant which do refer to Kamula Doso. These documents have not been tabled in the National Parliament.

8. No National Forest Inventory, within the meaning ascribed by the Forestry Act has ever been prepared. The National Forest Plan is to be based on the National Forest Inventory. The NFP is confined to events and circumstances up to 2001. It contains no information, such as maximum allowable cut, for any year after that date.

9. The NFP was expressed by its terms to apply to the period 1996 to 2001. On 9 December 2002, the Board of the Second Defendant resolved "that the Board approves the currency of the National Forest Plan for 12 months subject to extensive consultation with Area Managers and Provincial Forest Officers on the finalisation of Provincial Forest Plans."

10. In 1997 the Second Defendant entered into a Forest Management Agreement (FMA) with persons purporting to represent the traditional landowners. A large number of the traditional landowners had formed incorporated land groups (ILG's). Subsequent examination of the FMA and comparison with the authorised signatures of the ILG’s showed some 38 ILG's consents had been endorsed by unauthorised persons. This required rectification which was attended to in 1999. The rectified document has not been approved by the Minister.

11. On 20 December 2005 the Second Defendant by its Board resolved as follows:

" (i) Pursuant to the resolution of Board Meeting No. 54 of 4 February 1999 Wawoi Guavi Timber Co. Ltd (WGTC) was "invited" to submit Project Proposals under Section 64 (3) (amended) of the Act.

(ii) the Board represented its intentions to grant extension to Kamula Doso FMA in correspondences subsequent to 4 February 1999 resolution notice as confirming the invitation to the Developer.

(iii) WGTC submitted its application on account of Forestry Regulation Form 92 on 23 March 1999 pursuant to Section 64 (3) (amended) of the Act.

(iv) Resolved that by operation of or in accordance with Section 63 (1) of Interpretation Act Ch. No.2, the Board shall and does hereby determine and approve Wawoi Guavi Timber Company's (WGTC) application pursuant to Section 64 (3) (amended) and not Forestry Amendment Act, 2000.

(V) Resolve that the Forestry Management Agreement (FMA) of October 1997 is valid and subsisting. However, the FMA has been rectified by the parties. The Minister for Forests shall be advised to sign the rectified FMA document.

(VI)The legal proceedings numbered OS No. 557 of 2004;-

Be settled out of Court (in the light of the overwhelming legal advice not in favour of success); and

That an appropriate Deed of Settlement and Release with an appropriate court order in the form of duly agreed terms be executed; and

No order as to costs; and

That the PNGFA lawyers be instructed accordingly.

(VI) that the Board directs the Acting Managing Director to negotiate and executes the terms of the Deed of Settlement & Release pursuant to Resolution (VI) above”.

12. On 9 March 2006, the second defendant by its managing director executed a deed of settlement which inter alia provided that the First and Second Defendants would:

“make no objections to an Order being made by the National Court of Justice of Papua New Guinea in terms of the draft order which is annexed hereto marked “A””.

13. The same day that the deed of settlement was signed the second and third defendants came before Injia DCJ...