Stanis Leda for himself and on behalf of the Uguge clan of Buluma and Mai villages v Stettin Bay Lumber Company Limited and Active Forest Limited (2011) N4542

• Jurisdiction: Papua New Guinea
• Judge: Kawi, J
• Judgment Date: 04 May 2011
• Court: National Court
• Citation: (2011) N4542
• Docket Number: WS NO 662 of 2007
• Year: 2011
• Judgement Number: N4542

Full Title: WS NO 662 of 2007; Stanis Leda for himself and on behalf of the Uguge clan of Buluma and Mai villages v Stettin Bay Lumber Company Limited and Active Forest Limited (2011) N4542

National Court: Kawi, J

Judgment Delivered: 4 May 2011

N4542

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 662 OF 2007

BETWEEN:

STANIS LEDA for himself and on behalf of

the Uguge clan of Buluma and Mai villages

Plaintiffs

AND:

STETTIN BAY LUMBER COMPANY LIMTIED

First Defendant

AND:

ACTIVE FOREST LIMITED

Second Defendant

Kimbe: Kawi, J

2010: 6th August

2011: 4th May

CIVIL PRACTICE AND PROCEDURE – Claim for damages based on alleged negligence resulting in continuing pollution of a creek – plaintiff purportedly suing in a representative capacity – Legal requirements for suing in a representative capacity – Plaintiff failed to satisfy the requirements of suing in a representative capacity – plaintiff can only represent himself and not his clan members – Claim for cause of action being time barred – cause of action not time barred – Alleged pollution is continuously occurring and continuing claim is therefore not time barred – State Lease – creek located and flows through a property owned and registered to the defendant – Ownership of the creek now vested in the defendants – plaintiff has lost all rights over the creek including so-called riparian rights over the use of the creek - Former customary rights which were once vested in the plaintiff are now converted to a right to receive monetary compensation – As plaintiff has no more rights over Nalu Putu, the claim for damages is hereby dismissed.

Brief Facts

The plaintiff purporting to represent members of his clan instituted legal action against the defendants claiming damages for pollution to a creek. The plaintiff claimed that the creek was once used for washing, cooking, fishing and contained magical herbs and customary rituals were held in the creek. However the defendants ‘logging operations have polluted the creek to such an extent that the creek is no longer being used as it once was. In an action for damages for pollution caused to the creek by the operations of the defendants:

HELD

(1) The legal requirements for suing in a representative capacity are set out in Order 5 rule 3 of the National Court Rules. It requires the plaintiff to:

a) name all plaintiffs and have them duly identified in the Writ of Summons;

b) Each and every intending plaintiff must have their written consent, by way of an Authority to Act Form, duly filed in court.

(3) Furthermore the plaintiff has not shown by relevant pleadings and evidence in support, that his Uguge clan members are numerous such as to warrant a representative action. He has not even shown by relevant pleadings and evidence that the relief claimed is in its nature beneficial to them all or that the Uguge clan members have a “common Interest”. Neither has Stanis Leda produced evidence to show that all the numerous people he purportedly represents have a common grievance. In summary than, the requirements for suing in a representative capacity are these:

(a) All interested persons intending to be plaintiffs must be duly identified and have their names included in a schedule attached to the Writ of Summons or the Originating Summons as the case may be.

(b) The written consent of the interested persons intending to be plaintiffs must be filed in Court by way of an Authority To Act Form.

(c) The parties to be represented must be numerous.

(d) They must all have the same interest in the proceedings.

(f) They all have a common grievance.

(g) The relief (s) sought is in its nature beneficial to them all.

(3) As the plaintiff failed to satisfy the legal requirements for acting in a representative capacity, he cannot represent his Clan Members. He can only represent himself in the proceedings.

(4) The alleged pollution of the creek is not a one-off incident. It is a continuing pollution. Damage for alleged negligence resulting in the pollution of the creek is not time barred under Section 16 of the Fraud and Limitations Act.

(5) The said creek allegedly polluted is located in the land owned by the defendant. This land is a registered State lease identified as Portion 1668, Fourmil Megigi, Talasea, West New Britain. Upon registration the defendant has acquired an indefeasible title to the property. The creek Nalu Putu is now owned by the defendants.

(6) The defendants have now acquired exclusive rights and possession of the creek to the exclusion of everyone including the plaintiff.

(7) The plaintiff has now lost all rights to use the creek for washing, fishing, drinking and other uses including the right to use creek for customary performance of magical rituals. These rights which were once vested in the plaintiff are now converted into a right to receive compensation, compensation either in monetary terms or compensation in kind.

(8) The claim for damages arising from the alleged pollution to the creek is hereby dismissed with costs to the defendants.

Cases cited;

Papua New Guinea Cases

Simon Mali & Ors –v– The State, SC 690

Tau Gumu –v– PNG Banking Corporation (2001) N288

Makt & Co. Ltd –v- Knight SS Co. Ltd [1910] 2 KB 1021

Smith –v- Cardiff Corporation [1954] 1QB 210

Mudge and Mudge –v- Secretary for Lands [1985] PNGLR 387

Overseas Cases

Counsel

Mr Robert Awalua, for the Plaintiff

Mr Kenneth Imako, for the Defendants

4th May, 2011

1. KAWI J: The plaintiff instituted legal proceedings against the defendants claiming damages for alleged negligence resulting in pollution and environmental damage caused to a creek traditionally known as “Nalu Putu”.

1. AGREED FACTS

2. From the Statement of Agreed and disputed Facts and Issues for trial filed by the plaintiff on the 22nd September 2009, I gather the following undisputed facts as well as disputed facts:

a) The defendants are logging companies who are engaged in logging operations. They are based at Buluma along the Hoskins Highway.

b) A creek traditionally known as “Nalu Putu” flows through the area in which the defendants carry on their logging operations. The head waters of Nalu Putu is located right in the middle of the area of operations of the defendants.

c) The defendants came into operations on the land and established its business in 1976. As part of its business operations it built six fuel depots in the sea and these fuel depots are connected to the storage tanks on the land.

d) To enable the refuelling, hoses are then connected with pins to the main tunnel to the storage tanks and the ships use those hoses to refuel from them.

3. DISPUTED FACTS

4. The following facts are disputed by the defendants and they form the basis of a number of issues which I will refer to later. These facts are:-

1) The lead plaintiff Mr Stanis Leda is a member of the Uguge Clan of Buluma and Mai villages. He instituted these proceedings on his own behalf and behalf of members of his Uguge Clan of Buluma and Mai villages.

2) The area which the defendants operate on to carry on their logging operations as well as store their logs is a State lease.

3) The defendants are continuing to dump industrial waste into Nalu Putu.

4) Nalu Putu is polluted and unfit for human consumption or for any other human use.

5) The defendants took advantage of the plaintiff’s illiteracy and started dumping industrial waste into Nalu Putu.

6) The defendants allow leakage from the storage tanks and refuelling hoses into Nalu Putu.

7) The Second defendant has been negligent in allowing chemical from the log treatment to flow into Nalu Putu.

5. ISSUES

6. A number of issues arise for consideration and these are:

1) Whether the lead plaintiff Mr Stanis Leda has been properly authorised by the members of his Uguge clan of Buluma and Mai villages to represent them in this action?

2) Whether or not the land on which the river is located and flows – through is a State lease ?

3) Whether or not the cause of action is time barred pursuant to Section 16 of the Fraud and Limitations Act?

4) Whether or not the creek Nalu Putu is in a polluted state?

5) Whether or not Nalu Putu has been polluted by the negligent actions of the defendant companies?

7. DETERMINATION OF ISSUES

1) Whether the lead plaintiff Mr Stanis Leda has been properly authorised by members of his Uguge clan of Buluma and Mai villages to represent them in this proceedings.

7. There is no doubt that this appears to be a class action in which Stanis Leda purports to represent members of his Uguge Clan. In a representative action the parties to be represented must be numerous and they must have the same interests in the proceedings. As to what number of persons will be regarded as numerous will depend on all the...