Wawoi Guavi Timber Company Limited and Papua New Guinea Forest Authority v Ken Norae Mondia and PNG Eco Forestry Forum Inc and John Danaiya for Himself and on behalf of the Kuyule Netene and Debele Clans of the Kasua Tribe (2007) SC1028

• Jurisdiction: Papua New Guinea
• Judge: Injia, CJ
• Judgment Date: 16 October 2007
• Court: Supreme Court
• Citation: (2007) SC1028
• Docket Number: SCA NO. 22 OF 2007
• Year: 2007
• Judgement Number: SC1028

Full Title: SCA NO. 22 OF 2007; Wawoi Guavi Timber Company Limited and Papua New Guinea Forest Authority v Ken Norae Mondia and PNG Eco Forestry Forum Inc and John Danaiya for Himself and on behalf of the Kuyule Netene and Debele Clans of the Kasua Tribe (2007) SC1028

Supreme Court: Injia, CJ

Judgment Delivered: 16 October 2007

SC1028

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 22 OF 2007

Between:

WAWOI GUAVI TIMBER COMPANY LIMITED

First Appellant

And:

PAPUA NEW GUINEA FOREST AUTHORITY

Second Appellant

And:

KEN NORAE MONDIA

First Respondent

And:

PNG ECO FORESTRY FORUM INC.

Second Respondent

And:

JOHN DANAIYA FOR HIMSELF AND ON BEHALF OF THE KUYULE NETENE AND DEBELE

CLANS OF THE KASUA TRIBE

Third Respondent

Waigani: Injia, CJ

2007: 16th October

SUPREME COURT –appeal –application for leave to appeal from an interlocutory judgment granting leave to apply for judicial review – leave to appeal against grant of leave for judicial review necessary – whether applicant has shown there is prima facie case or an arguable case – no apparent or patent error shown in the manner in which the trial judge exercised his discretion on leave – application dismissed with costs to the respondents - s.14 Supreme Court Act, Order 16 rule 3 National Court Rules

Cases Cited:

Papua New Guinea Cases

Asakusa v Kumbakor (2008) N 3308

Baing v PNG Stevedores Pty Ltd (2000) SC 627

Boyepe Pere v Emmanuel Ningi (2003) SC 711,

Breckwoldt v Groyke [1974] PNGLR 106.

Don Polye v Jimson Sauk & Electoral Commission (1999) SC 651

Garamut Enterprises Ltd v Steamships Trading Company Ltd (1999) SC 625.

Ila Geno & Others v PNG [1993] PNGLR 22 at 24.

Island Helicopter Services Ltd trading as Islands Nationair v Wilson Sagati & others (2008) N 3340.

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122.

Matiabe Oberia v Police and the State (2005) SC 801

Olasco Niugini v Kaputin [1986] PNGLR 244 at 245

Peter Peipul v Pila Niningi, Unpublished judgment in SCR No. 89 of 1988 delivered on 8th May

Sir Julius Chan v Ombudsman Commission of Papua New Guinea [1999] PNGLR 240, Rimbink Pato v Anthony Manjin [1999] PNGLR 6

William Moses v Otto Magiten (2006) SC 875

Overseas cases

Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1981] 2 WLR 722

Counsel:

I Molloy with J Shepherd, for the First Appellant

J Haiara, for the Second Appellant

J Brooks, for the First and Second Respondents

S Chandele, for the Third Respondent

16th October, 2007

1. INJIA, CJ: This is an application for leave to appeal from an interlocutory judgment given by the National Court on 16 March 2007 in proceedings OS (JR) 259 of 2006 in which the Court granted the respondents leave to apply for judicial review under O16 r 3 of the National Court Rules (NCR). Leave to appeal under s 14 of the Supreme Court Act is necessary to appeal against grant of leave for judicial review: Garamut Enterprises Ltd v Steamships Trading Company Ltd (1999) SC 625.

2. The application is supported by several affidavits. The respondents contest the application. They rely on several affidavits. I have considered those affidavits and the submissions made by counsel representing the parties.

3. There is no contest on the relevant principles on grant of leave to appeal. I remind my self of the principles on grant of leave. The grant or refusal of leave to appeal is of course discretionary. The main test is whether the applicant has shown that there is a prima facie case or an arguable case that the decision was wrong and that substantial injustice will be done by leaving the erroneous decision un-revisited or unrevised on appeal. The Court is not determining the merits of the appeal itself. It will suffice if the Court is persuaded that the proposed appeal raises issues of law or mixed fact and law which are fairly arguable and require judicial discretion: Matiabe Oberia v Police and the State (2005) SC 801, Sir Julius Chan v Ombudsman Commission of Papua New Guinea [1999] PNGLR 240, Rimbink Pato v Anthony Manjin [1999] PNGLR 6, Baing v PNG Stevedores Pty Ltd (2000) SC 627, Boyepe Pere v Emmanuel Ningi (2003) SC 711, Breckwoldt v Groyke [1974] PNGLR 106. In civil appeals, which involve trial Judge’s exercise of discretion on a procedural matter within the Court’s jurisdiction, such as the interlocutory judgment given in this case, the test ought to be much higher than in appeals against other types of interlocutory judgments. A passage from the majority view in Chan v Ombudsman Commission is pertinent. I quote from page 258:

“So to obtain leave to appeal an interlocutory judgment, it is not simply a matter (of) asserting there is an arguable case; that there has been some error. It is not the case that every error will effect the outcome of the substantive proceedings. What must be shown is, not only that there is patent error, but that the error effects a party’s substantive rights or will prevent the proper determination of the issues.”

4. The grant of leave to apply for judicial review under NCR O16 r 3 is a special discretionary judgment in a civil matter within the Court’s jurisdiction. The error to be demonstrated must relate to the nature of the discretion exercised by the trial Court. In an application for leave to apply for judicial review under O16 r 3 of the National Court Rules, the applicant is required to demonstrate an arguable case under any of the recognized grounds on which judicial review relief is available: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. In an application under O16 r 3, the Court is not determining the merits of any application for judicial review. The Court simply forms an opinion on whether there are arguable or triable issues to warrant a full hearing on the merits, based on a quick perusal of the matters pleaded in the Statement filed under O 16 r 3 and the material placed before the Court in support of or in defence of the application for leave: R v Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1981] 2 WLR 722 at 739, 749; Olasco Niugini v Kaputin [1986] PNGLR 244 at 245; Ila Geno & Others v PNG [1993] PNGLR 22 at 24.

5. I apply these principles to the circumstances of this case.

6. The administrative decision for which leave was granted is certain decisions of the second appellant (NFB) made on 20th December 2005 in relation to the Kamulo Doso Forest Management Area (FMA). The decisions in respect of which judicial review was sought is pleaded in paragraph 2 of the Statement filed in support of the leave application in OS 259 of 2009 as follows:

“(a) The decision and resolutions of the National Forest Board and consequently the Papua New Guinea Forest Authority Board and consequently the Papua New Guinea Forest Authority made on or around 20 December 2005 in relation to the Kamulo Doso Forest Development Project as follows:

" (i) Pursuant to the resolution of Board Meeting No. 54 of 4 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 intentions to grant extension to Kamula Doso FMA in correspondences subsequent to 4 February 1999 resolution notice as confirming the invitation to the Developer.

(iii) WGTC submitted its application on account of Forestry Regulation Form 92 on 23 March 1999 pursuant to Section 64 (3) (amended) of the Act.

(iv) Resolved that by operation of or in accordance with Section 63 (1) of Interpretation Act Ch. No.2, the Board shall and does hereby determine and approve Wawoi Guavi Timber Company'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 Forests 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; and

( c) No order as to costs; and

(d) That the PNGFA lawyers be instructed accordingly.

(VII) that the Board directs the Acting Managing Director to negotiate and executes the terms of the Deed of Settlement & Release pursuant to Resolution (VI) above”.

7. It is not disputed that in OS (JR) 557 of 2004, WGTC sought leave under NCR, O 16 r 3 to apply for an order of mandamus to enforce a decision made by NFB on 4th February 1999 to grant an extension of Timber Permit issued to it. There is no dispute that the court proceedings in OS No. 557 of 2004 was settled by agreement of the parties (WGTC & NDB) and eventually discontinued in March 2006.

8. In OS (JR) No. 259 of 2006, filed on 20th April 2006, the respondents sought leave to apply for review of the whole of the decision made on 20th December 2005. According to the relief set out in paragraph 3 of the Statement, the certiorari and accompanying declaratory orders were sought to review NFB’s decision to settle OS No. 557 of 2004. However I note from the relief sought and grounds pleaded in support of...