Kenn Norae Mondiai And PNG Eco Forestry Forum Inc v Wawoi Guavi Timber Co Ltd and Papua New Guinea Forest Authority and The Independent State of Papua New Guinea (2007) SC886

• Jurisdiction: Papua New Guinea
• Judge: Kapi C J, Davani & Lay JJ
• Judgment Date: 17 October 2007
• Court: Supreme Court
• Citation: (2007) SC886
• Docket Number: SCA No. 3 OF 2006
• Year: 2007
• Judgement Number: SC886

Full Title: SCA No. 3 OF 2006; Kenn Norae Mondiai And PNG Eco Forestry Forum Inc v Wawoi Guavi Timber Co Ltd and Papua New Guinea Forest Authority and The Independent State of Papua New Guinea (2007) SC886

Supreme Court: Kapi C J, Davani & Lay JJ

Judgment Delivered: 17 October 2007

SC886

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA No. 3 OF 2006

KENN NORAE MONDIAI

First Appellant

AND

PNG ECO FORESTRY FORUM INC

Second Appellant

AND

WAWOI GUAVI TIMBER CO LTD

First Respondent

AND

PAPUA NEW GUINEA FOREST AUTHORITY

Second Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Respondent

Waigani: Kapi C. J., Davani & Lay JJ.

2006: 27 June

2007: 17 October

SUPREME COURT RULES -Order 10 Appeal- Objection to competency – whether any provision for

SUPREME COURT RULES ORDER 11 R11 – adding appellant after 40 days – whether rule constrained by Supreme Court Act s17.

PRACTICE AND PROCEDURES – whether leave required for person not a party to appeal

LOCUS STANDI – meaning of “sufficient interest” National Court Rules 016 r.3(5).

Cases Cited

Papua New Guinea Cases

Jeffrey Balakau v. Ombudsman Commission of Papua New Guinea [1996] PNGLR 346

Kitogara Holdings Pty. Limited v National Capital District Interim Commission and others [1988-89] PNGLR 346

Bruce Tsang v Credit Corporation (PNG) Ltd [1993] PNGLR 112

Dinge Damana v The State [1991] PNGLR 144

SCM No. 6 Yanta Development Association and others v Piu Land Group Inc & Ors 8 March 2005 (Supreme Court, unnumbered, unreported)

Van der Kreek v Van der Kreek [1979] PNGLR 185

State v Kubor Earthmoving (PNG) Ltd [1985] PNGLR 448

Patterson Lowa v Wapala Akipe & Ors [1991] PNGLR 112

SC795 Gregory Manda v Yatala Ltd

Haiveta v Wingti (No.1) [1994] PNGLR 160

Emas Estate Development Pty Ltd v Mea & Ors [1993] PNGLR 215

Dillingham v Díaz [1975] PNGLR 262

In re Petition of M. T. Somare [1981] PNGLR 265

Ombudsman Commission v Donohue [1985] PNGLR 348

Overseas Cases

Cuthbertson v Hobart Corporation (1921) 30 CLR 16

Halabi v Westpac Banking corporation (1989) 17 NSWLR 26

In re Securities Insurance Company [1894] 2 Ch 410

British Launderers Research Association v Central Middlesex Assessment Committee [1949] 1 All ER 21

R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Limited [1982] AC 617 (House of Lords)

R v Inland Revenue Commissioners; Ex parte National Federation of self-employed And Small Businesses Limited (1980)Q.B.407 (Court of Appeal)

Australian Conservation Foundation Inc v The Commonwealth (1978-1980) 146 CLR 493

Onus v Alcoa of Australia (1982) 149 CLR 27

Environmental Defence Society Inc v South Pacific Aluminum Ltd (No. 3) [1981] 1 NZLR 216

Environmental Defence Society Inc v South Pacific Aluminum Ltd (No. 4) [1981] 1 NZLR 53

In Regina v. Horsham Justices ex parte Farquharson and another [1982] Q.B. 762

Facts

1. The Applicant John Danaiya applied after 40 days from the judgment appealed from to join this appeal as an appellant;

2. The First, Second and Third Respondents objected to the competency of the appeal.

Held

1. The provisions of Supreme Court Rules O.11 r.11 are confined by s.17 of the Supreme Court Act. An appellant cannot be joined after the expiry of 40 days from judgment;

2. There is no provision in the Supreme Court Rules for filing an objection to competency of an appeal under Order 10 and such objections should not be filed;

3. A person directly affected by an order of the National Court does not require leave to appeal solely because he was not a party to those proceedings;

4. To determine whether a person has sufficient interest for the purposes of National Court Rules Order 16 r3(5) the Court should ask

(a) Is the party complained about a public body

(b) Does that party have duties to perform at law; ie statutory duties?

(c) What is the nature of the alleged breach of duty; are they duties in law or do they fall within management or administrative guidelines for decisions to be taken within a lawful discretion?

(d) What is the Plaintiff’s relationship to the duties alleged to have been breached;

(i) are they merely busy bodies or

(ii) are they genuinely concerned

(iii) do they objectively point to some duty in law which (arguably at the leave stage) has not been observed?

Counsel

T. Nonggor with J. Holingu, for the First and Second Appellants

I. R. Molloy with J. Shepherd, for the First Respondent

R. Pato with J. Haiara, for the Second and Third Respondents

M. Cooke QC with M. Boni, for the Applicant Intervenor.

1. BY THE COURT: The First and Second Respondents have filed objection to the competency of the appeal and John Danaiya has applied to be joined as an appellant. Other applications were also filed which were stood over to be heard by a single judge.

2. We note at the outset that no leave has been sought or granted to adduce fresh evidence on the appeal and the evidence filed in support of the applications is not evidence on the appeal.

3. Secondly the Respondents dispute the truth of the relevant inferences of fact to be drawn from the evidence filed by the First and Second Appellants, although the Respondents have not at this stage filed evidence in rebuttal.

4. The background of the matter is that on 23 March, 1990, the First Respondent submitted an application to the Second Respondent for the Kamula Doso timber rights area in the Western Province to be awarded to it as a geographical extension to its existing timber permit for the Wawoi Guavi project.

5. The Kamula Doso timber rights area comprises three blocks of forest covering a total area of 791,000 ha, almost twice the size of the existing Wawoi Guavi Project. Block three of the Wawoi Guavi project has a common boundary with Block three of Kamula Doso. The balance of the two concessions are separated geographically by the Makapa logging project which is operated by an unrelated company.

6. At meeting No. 54 on 4 February, 1999, the National Forest Board resolved that the Kamula Doso Forest Management Area be an extension of the existing Wawoi Guavi timber project and directed the Managing Director of the Second Respondent to proceed to act on the Board's decision in accordance with Section 64 (3) of the Forestry Act.

7. The allocation of Kamula Doso lay in abeyance for some years. Then in October 2004 the First Respondent commenced proceedings OS No. 557 of 2004 seeking judicial review and mandamus orders to force the Second Respondent to implement its 4 February 1999 decision for the grant of Kamula Doso as a geographical extension of the Wawoi Guavi permit.

8. On the 20 December, 2005, the National Forest Board, the Board of the Second Respondent, resolved, inter alia, that:

i) pursuant to the resolution of Board Meeting No. 54 of 4th 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 intention to grant extension to Kamula Doso FMA in correspondences subsequent to 4th February 1999 resolution as confirming the invitation to the Developer.

III) WGTC submitted its application on account of forestry regulation form 92 on the 23rd of March 1999 pursuant to Section 64 (3) (amended) of the Act.

IV) resolved that by operation of law in accordance with section 63(1) of Interpretation Act chapter No. 2 the Board shall and does hereby determine and approve Wawoi Guavi Timber Co'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 Forest shall be advised to sign the rectified FMA document.

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

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

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

c. No order as to costs; and

d. That the PNGFA lawyers be instructed accordingly.

VII) that the Board directs that the Acting Managing Director to negotiate and execute the terms of the Deed of Settlement and Release pursuant to resolution (VI) above.

9. On the 9 March, 2006, the Second Respondent by its Managing Director signed a deed of settlement with the First Respondent. That deed of settlement provided inter alia that the Second Respondent would " make no objection 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 and marked annexure 'A'."

10. The parties came before the Deputy Chief Justice Sir Salamo Injia on the same day that the deed of settlement was executed by the parties. His Honour asked the parties whether there were any other interested parties such as resource owners or landowners who might be affected and was informed that "the order is not an order compelling the Forestry Authority to make a decision. That decision has already been made and that decision was made after due advertising and process under the Forestry Act."

11. Consequently the court made the orders sought by the First Respondent without a hearing on the merits and without objection by the Second Respondent which was represented by counsel, inter alia in terms that:

"An order in the nature of mandamus is hereby...