Vailala Purari Investment Limited as representative of the 124 Incorporated Land Groups within the Vailala TRP Area, James Hariva Lohoro, Ere Kilavi Incorporated Land Group within the Vailala TRP Area, Kore Evere, Laula Meahu Incorporated Land Group within the Vailala TRP Area, Jimmy Mearo, Haora Incorporated Land Group within the Vailala TRP Area, Kilala Karikara, Avoila Clan Incorporated Land Group within the Vailala TRP Area, Joe Mere, Kao Haruipi No 2 Incorporated Land Group within the Vailala TRIP Area, Fred Lauara, Harupi Incorporated Land Group within the Vailala TRP Area and Papua New Guinea Forest Authority, Michael Ogio, Minister For Forest and Frontier Holdings (2004) N2594

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 07 July 2004
• Citation: (2004) N2594
• Court: National Court
• Year: 2004
• Judgement Number: N2594

Full Title: Vailala Purari Investment Limited as representative of the 124 Incorporated Land Groups within the Vailala TRP Area, James Hariva Lohoro, Ere Kilavi Incorporated Land Group within the Vailala TRP Area, Kore Evere, Laula Meahu Incorporated Land Group within the Vailala TRP Area, Jimmy Mearo, Haora Incorporated Land Group within the Vailala TRP Area, Kilala Karikara, Avoila Clan Incorporated Land Group within the Vailala TRP Area, Joe Mere, Kao Haruipi No 2 Incorporated Land Group within the Vailala TRIP Area, Fred Lauara, Harupi Incorporated Land Group within the Vailala TRP Area and Papua New Guinea Forest Authority, Michael Ogio, Minister For Forest and Frontier Holdings (2004) N2594

National Court: Davani J

Judgment Delivered: 7 July 2004

1 PRACTICE AND PROCEDURE—Application for leave for Judicial Review—Execution of Deed of Settlement and Release—Notice of Discontinuance filed

2 PRACTICE AND PROCEDURE—Effect of Deed of Settlement and Release on existing proceedings—proceedings brought to an end—institution of fresh proceedings

3 Pryer v Gribble [1875] LR 10 Ch App 534, Smythe v Smythe [1887] 18 2BD 544, Caltex (Overseas) Ltd v Douglas Charles Dent [1978] PNGLR 411, Green v Rozen [1955] 2 All ER 797, Siaman Riri v Simion Nusai (1995) N1375, Karl Paul v Aruai Kispe, The Regional Manager, PNG Forest Authority—Lae (2001) N2085, NCDC v Yama Security Services Pty Ltd (2003) SC707 referred to

Ruling (Application for leave for judicial review)

___________________________

N2594

IN THE NATIONAL COURT OF

JUSTICE AT WAIGANI

PAPUA NEW GUINEA

OS NO. 566 OF 2003

BETWEEN:

VAILALA PURARI INVESTMENT LIMITED as representative of the 124 Incorporated Land Groups within the Vailala TRP Area

First Plaintiff

AND:

JAMES HARIVA LOHORO

Second Plaintiff

AND:

ERE KILAVI Incorporated Land Group within the Vailala TRP Area

Third Plaintiff

AND:

KORE EVERE

Fourth Plaintiff

AND:

LAULA MEAHU Incorporated Land Group within the Vailala TRP Area

Fifth Plaintiff

JIMMY MEARO

Sixth Plaintiff

AND:

HAORA Incorporated Land Group within the Vailala TRP Area

Seventh Plaintiff

AND:

KILALA KARIKARA

Eighth Plaintiff

AND:

AVOILA CLAN Incorporated Land Group within the Vailala TRP Area

Ninth Plaintiff

AND:

JOE MERE

Tenth Plaintiff

AND:

KAO HARUIPI NO. 2 Incorporated Land Group within the Vailala TRIP Area

Eleventh Plaintiff

AND:

FRED LAUARA

Twelfth Plaintiff

AND:

HARUPI Incorporated Land Group within the Vailala TRP Area

Thirteenth Plaintiff

AND:

PAPUA NEW GUINEA FOREST AUTHORITY

First Defendant

AND:

MICHAEL OGIO, MINISTER FOR FOREST

Second Defendant

AND:

FRONTIER HOLDINGS

Third Defendant

Waigani: Davani, .J

2004: 10th June

7th July

R. Pato for the Plaintiff/Applicants

W. Frizzell for the third Defendant

PRACTICE AND PROCEDURE – Application for leave for Judicial Review – Execution of Deed of Settlement and Release – Notice of Discontinuance filed

PRACTICE AND PROCEDURE – Effect of Deed of Settlement and Release on existing proceedings – proceedings brought to an end – institution of fresh proceedings

Cases cited

Pryer v. Gribble [1875] LR10 Ch App 534

Smythe v. Smythe [1887] 18 2BD 544;

Green v. Rozen [1955] 2 All ER 797;

Caltex (Overseas) Limited v Douglas Charles Dent [1978] PNGLR 411

Green v. Rozen [1955] 2 All ER 797;

Siaman Piri & Anor v Simon Nusen & Ors N1375 (1995)

Karl Paul and Aruai Kispe and the Regional Manager – PNG Forest Authority, Lae and PNG Forest Authority N2085 delivered on 17.4.01

National Capital District Commission v. Yama Security Services Pty Ltd SC 707 of 2002

Halsburys Fourth Edn. Vol. 137

Ritchies Supreme Court Procedure (NSW)

RULING

(Application for leave for judicial review)

7th July, 2004

DAVANI, J: I have Notice of Motion before me filed by the plaintiffs on 15th April, 2004 seeking various orders which are that;

1. Leave be granted to join various entities and person as plaintiffs;

2. Leave be granted to amend Originating Summons and Statement of Claim to include new plaintiffs and details of their material circumstances as applicants for judicial review;

3. That these amended pleadings then be served upon defendants or their lawyers;

4. That the application for leave to seek judicial leave should then proceed thereafter.

The orders sought in relation to joining and amending were granted by the motions court on 5th April, 2004. The application for leave for judicial review proceeded on 10th June, 2004 and was adjourned for my decision.

At the hearing of the application to join plaintiffs, Mr Frizzel for the defendants mentioned in court that a Notice of Discontinuance had been filed by the plaintiffs on 21st April, 2004 and that at that time the plaintiffs were represented by Stevens Lawyers. I informed counsel that the issue of whether the Notice of Discontinuance should remain can be argued at the hearing of the application for leave for judicial review.

It was not until after I adjourned for my ruling on the application for leave for judicial review that, on perusing the file, I noted that the Notice of Discontinuance was filed, relying on the terms of a Deed of Settlement and Release which was executed on 5th February, 2003 (the ‘Deed’) by the plaintiffs representative and the third defendant, Frontier Holdings Limited. The Deed referred to proceedings in the National Court described as WS No. 820 of 2003 and OS 566 of 2003. These present proceedings are OS 566 of 2003. I set out in full the terms of the Deed because they are very pertinent to the continuation or not of the application for judicial review. This document reads;

“DEED OF SETTLEMENT AND RELEASE

This deed of settlement and release is made on the 5th day of February, 2003.

BETWEEN : VAILALA AND PURARI INVESTMENTS LIMTIED care of PO

Box 662, Port Moresby, National Capital District, (hereinafter referred to as “Vailala’).

AND : FRONTIER HOLDINGS LIMTED of PO Box 102, Port Moresby, National Capital District (hereinafter referred to as “Frontier”).

WHEREAS:

A. Vailala issued proceedings in the National Court known as WS No. 820 of 2003 against Frontier and others in respect of timber permit number TP2-16 (“TP 2-16.) held by Frontier.

B. Vailala issued proceedings in the National Court known as OS No. 566 of 2003 against Frontier and others seeking judicial review of an extension in 2002 of TP 2-16.

C. Vailala and Frontier have agreed to settle their differences as hereinafter provided and Vailala has agreed to release Frontier from all claims howsoever described in respect of TP 2-16.

WITNESS:

1. Owners of land by custom

Vailala and its directors agree to exercise its and their best endeavours to assist Frontier in respect of conflicts arising between owners of land in the timber permit area and the landowner companies certified pursuant to clause 4.4.1 of the TP 2-16.

2. National Forest Authority review

Vailala will exercise its best endeavours to assist Frontier in conducting awareness programmes in the timber permit area in respect of the proposed National Forest Authority review of the terms and conditions of TP 2-16 and a proposed new project agreement in respect of the operations of Frontiers in and about the permit area and in the carrying out of the permit conditions.

3. Discontinuance

Vailala shall within seven days hereof:-

(a) shall instruct its lawyers to file notices of discontinuance of proceedings known as WS No. 820 of 2003 and OS No. 566 of 2003; and

(a) make application to the Registrar of Companies for deletion of Vailala from the registrar of companies pursuant to the Companies Act 1997.

4. Costs

Each party agree to bear their own costs of and incidental to discontinuance of proceedings pursuant to clause 3 (a).

5. Release

Vailala hereby releases Frontier from all claims, actions and demands howsoever arising now or in the future in respect of the subject matters of WS No. 820 and OS No. 566 of 203.

6. Proceedings bar

Vailala and Frontier agree that this deed of settlement and release may be pleaded in bar to any further litigation of proceedings known as WS No. 820 of 2003 and OS No. 566 of 2003 and in respect of the subject matter of the release hereby given by Vailala to Frontier.

Executed as a deed.

The Common Seal of

VAILALA AND PURARI INVESTMENTS LIMITED

was hereunto affixed by authority of the Board of Directors”

(common seal affixed)

The Common Seal of Frontier Holdings Limited was hereunto affixed by authority of the Board of Directors”

(common seal affixed)

It was on that basis then and pursuant to clause 3 of that Deed, that the third defendants lawyers filed the Notice of Discontinuance.

I will deal firstly with the issue of the Notice of Discontinuance because I consider it...