Rafflin and Others v Richard Gault Industries Pty Ltd, Kerawara Pty Ltd, East New Britain Provincial Government, Papua New Guinea Forest Authority and The Independent State of Papua New Guinea [1998] PNGLR 394

• Jurisdiction: Papua New Guinea
• Judge: Woods J
• Judgment Date: 03 November 1997
• Court: National Court
• Citation: [1998] PNGLR 394
• Year: 1998
• Judgement Number: N1640

Full Title: Rafflin and Others v Richard Gault Industries Pty Ltd, Kerawara Pty Ltd, East New Britain Provincial Government, Papua New Guinea Forest Authority and The Independent State of Papua New Guinea [1998] PNGLR 394

National Court: Woods J

Judgment Delivered: 3 November 1997

N1640

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WS 40/93 & OS 19/93

RAFFLIN & OS

PLAINTIFFS

V

RICHARD GAULT INDUSTRIES PTY LTD

FIRST DEFENDANT

KERAWARA PTY LTD

SECOND DEFENDANT

EAST NEW BRITAIN PROVINCIAL GOVERNMENT

THIRD DEFENDANT

PAPUA NEW GUINEA FOREST AUTHORITY

FOURTH DEFENDANT

THE STATE

FIFTH DEFENDANT

Kokopo

Woods J

11 August 1997

3 November 1997

FORESTRY — timber licence — nature of — rights to land — terms and conditions and reservations on Agricultural Leases.

TRESPASS — damages for unauthorised logging activities.

Counsel

P Harricknen & B Killian for the Plaintiffs

No appearances for the first, second, third and fourth defendants

Ms P Kiele for the fifth Defendant.

3 November 1997

WOODS J: The Plaintiffs in these actions are seeking certain declarations concerning the rights of the defendants to licence and conduct logging operations on their lands and they are also seeking damages for trespass and breach of the conditions of State Leases for quiet enjoyment.

The writ of summons seeks:

1. A declaration that the 1st and 2nd defendants are not entitled to enter the land and to carry on logging operations thereon.

2. A declaration that the 1st and/or 2nd defendants logging operations on the land was unlawful in respect of the 1st and 3rd plaintiffs since the grant of the State Leases and in respect of the 2nd plaintiff since the commencement of the logging operations.

3. An injunction to restrain the 1st and 2nd defendants by their servants and agents from entering and carrying on logging operations on the land.

4. An order that the 1st, 2nd, 3rd, 4th, 5th defendants give a full and accurate account of timber harvested from the land at all material times.

5. Damages against the 1st and 2nd defendants for trespass and/or conversion.

6. Damages against the 5th defendant in favour of the plaintiffs for breach of contract.

7. Interest.

Whilst the 1st and 2nd defendants did respond with pleadings early in this matter they have failed to continue with pleadings or appear at mentions over the past year or more in spite of being served with process and the court has been forced to accept that they are not interested in defending the claims.

The proceedings were discontinued against the 3rd defendant.

The 4th defendant has shown no interest in attending at the hearing of the matter.

One of the plaintiffs, Steven Rafflin, had settled his claim with the defendants and thereupon discontinued his claim.

The case briefly concerns the alleged trespass of logging companies namely the 1st and 2nd defendants onto the lands of the plaintiffs under a Timber Licence given by the State. The Plaintiffs were holders of State Leases for agricultural purposes, except for one plaintiff who was the customary owner of certain land. Most of the plaintiffs held State Leases which were granted under the Warongoi Cocoa Block Scheme which was a project planned by the Department of Primary Industry, the Provincial Government and the Agriculture Bank for the economic development of the area into cocoa production by way of smallholder blocks. The Plaintiffs had applied in the normal fashion under the Land Act for their blocks and in due course they were granted State Leases over the land and in most cases were granted loans by the Agriculture Bank for the development of their blocks. This therefore resulted in the State Leases being issued subject to mortgages to the Agriculture Bank. These State Leases were granted in March 1991, nd I refer here to Government Gazette G27 of 14 March 1991.

The State Leases were in the usual form of an Agricultural Lease under the Land Act Section 49 and issued on various dates between March and July 1991 and they contained the usual reservations implied in State Leases, which would be by virtue of Section 39 the reservations of minerals, and they included the usual style of terms and conditions for cultivation and development for in these cases cocoa, and a residential condition. There is no mention of any reservation of timber and of course any such a reservation would not make any sense as the Leases were leases to plant and grown certain tree crops.

In 1992 the then Minister for Forests granted a Timber Licence No 15-8 relating to the Warongoi Timber Area, East New Britain Province to the 1st Defendant. This timber licence purported to include the lands owned by the Plaintiffs. In 1993 the 1st and 2nd defendants entered the lands of the plaintiffs and cut down and removed trees. There was no separate consent from the plaintiffs for this action by the 1st and 2nd defendants. The defendants admitted in their Defence and Cross-Claim filed in July 1994 that they had a Timber Licence issued under the Forestry Act 1991 over the plaintiffs' lands. However they asserted that they were under no obligation to treat with the lessees or landowners. And the Department of Forests agreed in June 1993 that the subject Licence did purport to include the Agricultural Blocks, and refer here to a letter from the then Secretary of the Department of Forests dated 1st June 1993. The 1st and 2nd defendants relied on this Timber Licence to give them the right to enter onto the lnd the subject of these Agriculture leases and remove timber and further it appeared that the defendants relied on the terms of this Licence that they were in no way answerable to the plaintiffs as leaseholders of these Agriculture Leases but only answerable to the State and only had to pay any licence fees or royalty fees to the State or its Instrumentalities.

I note here that the 4th Defendant, the Papua New Guinea Forest Authority, is the successor to the responsibilities and obligations of the Department of Forests, note the Forestry Act 1991 and in particular section 140.

It is clear that all defendants agree that there was a Timber Licence granted over the lands owned by the plaintiffs and that under that Licence the 1st and 2nd Defendants entered onto the lands of the plaintiffs and removed trees and any payments for that Licence and for those trees was made to the State or its agent.

The first question is therefore how and by what right did the State grant a Licence to the 1st defendant to remove trees from the plaintiff's lands. The Plaintiff Rowan Kilian is the owner of some customary land and no-one has produced any document to prove that the State had acquired his land or any rights to his land for any purposes. I must note here that whilst the Timber Licence refers to a Timber Rights Purchase of 1952 there is no evidence before me to support any suggestion that this Purchase included this particular plaintiff or these lands belonging to this plaintiff. I must therefore find that the State had no right to grant a Licence over his land and therefore the 1st and 2nd defendants had no right to enter the lands of the Second Plaintiff and are therefore liable in trespass for any loss or damage done to the plaintiff's lands. The other Plaintiffs held properly issued and registered State Leases. There were the usual reservations of minerals. But there was no reservation of trees, and of coure such a reservation of trees would make nonsense of such a Lease as the lease was for the purpose of planting and cultivating certain specified trees. The land the subject of these leases was thereupon not Government land following the granting of the leases, note here the definition of Government Land in the definition section of the Land Act which makes it clear that land that is the subject of a State Lease is not Government Land.

Therefore the only right or authority the State had over these lands was by virtue of the terms and conditions imposed on the lease. The lawyer for the State refers to section 67 of the land Act for the power of the State to grant the Timber Licence but note that Section 67 only refers to such a right over Government Land, and these leases clearly take the land out of that category. The Lawyer for the State has submitted that these State Leases contained implied terms for the reservation of all trees to the State however has been unable to refer the Court to any particular section of the Land Act to support such a submission. As indicated above there is no such reservation on the Leases, nor is there any section of the Land Act which reserves such a right, and as I have already noted such reservation would make nonsense of any such a Lease being as it is a Lease to cultivate a certain type of tree.

I note that the Timber Licence makes reference to a Timber Purchase Agreement of 1952. However as the land has now been subdivided and granted under Agricultural Leases then there has been a further complete acquisition of customary land by the State which would supercede such a limited Timber Purchase and that therefore such Timber Purchase itself has been superceded and merged into the full State title to the land.

I find it extremely disturbing that there has been no help offered to the Court in this case from the Department of Forests or its...