Mussau Timber Development Pty Ltd v Santee Mangis, Kalip Salo, Samuel Smith, Smith Pennie, Laisies Lapan, Kenneth Tavau, Ragu Smith, Alwin Paol, Kaenty Karaty, Simeon Mansini and Associates [1994] PNGLR 1

• Jurisdiction: Papua New Guinea
• Judge: Jalina J
• Judgment Date: 24 August 1990
• Court: National Court
• Citation: [1994] PNGLR 1
• Year: 1994
• Judgement Number: N920

Full Title: Mussau Timber Development Pty Ltd v Santee Mangis, Kalip Salo, Samuel Smith, Smith Pennie, Laisies Lapan, Kenneth Tavau, Ragu Smith, Alwin Paol, Kaenty Karaty, Simeon Mansini and Associates [1994] PNGLR 1

National Court: Jalina J

Judgment Delivered: 24 August 1990

N920

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MUSSAU TIMBER DEVELOPMENT PTY LTD

V

SANTEE MANGIS, KALIP SALO, SAMUEL SMITH, SMITH PENNIE, LAISIES LAPAN, KENNETH TAVAU, RAGU SMITH, ALWIN PAOL, KAENTY KARATY, SIMEON MANSINI, AND ASSOCIATES

Rabaul

Jalina J

25 July 1990

24 August 1990

FORESTRY — Timber permit — Permit subject to conditions — Conditions not fulfilled — Interference with logging operations — Whether permit holder in lawful operation — Logging operations only become lawful upon compliance with conditions — Forestry Act Ch 216.

PRACTICE AND PROCEDURE — Notice of motion — Order for preservation of property — Order sought not in notice of motion — Relief claimed should be pleaded — No proper amendment — Prejudice to respondent — Application should be refused — National Court Rules O 14 rr 9 and 10.

PRACTICE AND PROCEDURE — Judgment and orders — Property seized in blatant disregard of the law — Continuous refusal to comply with police request — Whether order for return of property available — Order granted — A person should not be allowed to benefit from his criminal act.

Facts

The applicant, a timber company, was granted a timber permit to carry on logging operations on Mussau Island, New Ireland Province. On the expiration of the licence, the Minister for Forests granted an extension for nine months, subject to various conditions, including an undertaking to consider future extensions on compliance of those conditions. The applicant claimed that a number of villagers, including the respondents, trespassed on the campsite, threatened its workers, removed logging equipments and machinery to their village, and have refused to release the machinery. It was further claimed that as a result of the illegal acts of the respondents, cutting and export of timber had ceased and loss of earnings had been incurred. The respondents claimed that they were the landowners of the area of logging operation and were not getting any benefits from the exploitation of their resources.

The applicant sought a number of interlocutory orders, inter alia, to restrain the respondents from interfering with their operation and for the return of possession of their machinery, which the respondents forcibly seized. No substantial action was commenced or contemplated.

Held

On the preliminary issue of jurisdiction, the Court held that:

1. Under the National Court Rules, no substantial action was required in an application for the preservation of property. Where, however, the applicant is seeking an injunction to restrain the respondent from illegally or improperly interfering with its lawful operations or to recover property, the proceeding was not for the preservation of property and came within O 14 r 9 of the Rules, which enabled the Court to make interlocutory orders only where the applicant intends to commence proceedings.

2. A party cannot obtain relief which has not been requested or sought in the pleadings; More v University of Papua New Guinea [1985] PNGLR 401 applied.

Cases Cited

Papua New Guinea case cited

More v University of Papua New Guinea [1985] PNGLR 401.

Other cases cited

Crafter v Kelly [1941] SASR 237.

London Passenger Transport Board v Moscrop [1942] 1 All ER 97; [1942] AC 332.

Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149; [1953] 2 WLR 58; [1953] 1 All ER 179.

Counsel

D Toll, for applicant.

S Tedor, for respondent.

24 August 1990

JALINA J: The applicant seeks orders by way of notice of motion in the following terms:

"1. The respondents be restrained from illegally or improperly interfering with the lawful operations of the applicant pursuant to Timber Permit No 16-29;

2. The respondents be ordered to return to the possession of the applicant, logging machinery seized forcefully by the respondents, their agents or assigns and presently held by the said respondents, their agents or assigns at Palakau village, Mussau Island;

3. The respondents be held jointly and severally liable for the costs of the proceedings;

4. Such further and other orders the court deems fit;

5. The time be abridged from the time of making these orders to the time of settlement by the registrar which shall take place forthwith."

The respondent has made a cross-claim, also by way of notice of motion, in the following terms:

"1. The cross-respondent and or its agents be restrained from carrying out any logging operations in the area covered by Timber Right permit No 16-29 until:

(a) full particulars showing compliance with the permit condition have been provided to this Court.

(b) Statement of account for the years 1985 to 1989 have been duly supplied to this Court.

2. That the cross-respondent provide to this Court details of the Agriculture Trust Fund.

3. That the cross-respondent provide to this Court details of royalty payments to landowners in the period 1985 — 1989.

4. That the General Manager, Mr Wilson Weight, be removed from the cross-respondent's employment pending proof of work permit to this Court.

5. That the cross-respondent convene an Annual General Meeting to elect a new Board of Directors within three (3) months at Palakau, Mussau Island, New Ireland Province.

6. That no machinery or logs be removed from the Mussau Island until orders (1), (2), (3) and (4) have been complied with.

7. That such other orders the court deems fit to impose.

8. That the time be abridged from the time of making these orders to the time of settlement by the registrar which shall take place forthwith."

The applicant is a timber company carrying on logging operations on Mussau Island, New Ireland Province, pursuant to Timber Permit 16-29. The permit was issued by the Minister for Forest for five years, commencing on 1 January 1985. That period expired on 1 January 1990. By letter dated 19 March 1990, the Minister for Forests granted an extension of the period of the permit for nine months. The letter is addressed to The General Manager, Mussau Timber Development Pty Ltd, PO Box 74, Rabaul, East New Britain Province. It says:

"RE: TIMBER PERMIT EXTENSION — MUSSAU TPP

This has reference to your discussion with the Secretary for Forests in his office on, 16 March 1990 on the above subject.

After considering all the information and advice available on the above, I have now decided that an extension of 9 months from the expiry of the previous TP be granted to your company on the following conditions:

1. That a new Forest Working Plan be submitted to this Department by the end of April, 1990.

2. That all the roading commitments be met by June, 1990.

3. That you meet the sawmilling requirement in the TP by June, 1990.

4. That henceforth all log returns be submitted and timber royalties paid on time.

5. That you provide a suitable ferrying system (a work boat) for the Mussau Islanders.

6. That the company submits for approval by the Department of a suitable logging and/or marketing contractor;

7. That the Company keeps a proper accounting of the Agriculture levy and utilises it for the good of the landowners.

8. That you establish suitable dialogue and maintain harmony with the landowners.

Any future extensions of the TP will depend on the compliance of the above conditions by the Company, resource availability and of course other TP conditions."

The letter was signed by the Forests Minister Hon K W Stack, CMG MP.

The applicant filed a number of affidavits in support of its application for interlocutory orders. From the affidavits, it says that at about 4 o'clock on 27 June 1990, a group of about ten men, including the respondents Kaenty Karaty, Smith Pennie, and Simeon Mansini, went to the applicant's bush camp approximately 5 km west of its base camp at Alumui, Mussau Island, and, after threatening Terry Girire, John Taili, Constable Salo, and three others, removed logging equipment and machinery to Palakau village. Palakau is some 15 km from the said bush camp. Constable Salo was nearly run over by vehicles as they were being driven by the respondents or their agents to Palakau village. The removal of the machinery was reported to Kavieng police, which went to Palakau village to repossess the machinery, but the respondents and others refused to release it.

The legal owner of the...