Ken Norae Mondiai and PNG Echo Forestry Forum Inc and John Danaiya v Wawoi Guavi Timber Company Limited and Papua New Guinea Forest Authority (2007) N3120

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 16 March 2007
• Citation: (2007) N3120
• Docket Number: OS (JR) NO 259 OF 2006
• Year: 2007

Full Title: OS (JR) NO 259 OF 2006; Ken Norae Mondiai and PNG Echo Forestry Forum Inc and John Danaiya v Wawoi Guavi Timber Company Limited and Papua New Guinea Forest Authority (2007) N3120

National Court: Lay J

Judgment Delivered: 16 March 2007

Facts

The Plaintiffs seek leave for judicial review, inter alia, of a decision the Second Defendant’s Board took on 20 December 2005 to settle, in favour of the First Defendant, proceeding brought by the First Defendant for mandamus to force the Second Defendant to grant to it a Timber Resource Area known as Kamula Doso, as an extension to the First Defendant's existing Timber Permit.

Held:

1. There was no delay in bringing the application in respect of the 20 December 2005 decision;

2. There was no other administrative remedy available to the plaintiffs;

3. On the evidence there was an arguable case that it was unlawful for the Second Defendant to proceed with the decision of the 20 December 2005, prima face in the absence of a National Forest Plan which provided for Kamula Doso and the annual permissible cut of timber. It is also arguable the decisions to extend the period to which the National Forest Plan relates without addition of further data required by s47 are ultra vires the powers of the Board of the Second Defendant;

4. To test for "sufficient interest" in O16 r 3(5) of the National Court Rules it is necessary to examine the relationship of the Plaintiffs to the nature of the breaches of law alleged;

5. The nature of the breaches of law alleged failure by the Board of the Second Defendant to fulfil its duty to produce a National Forest Plan based on a National Forest Inventory and deal with it as required by s48 of the Forestry Act, and the allocation of forest resources not in accordance with the plan contrary to s54 of the Forestry Act;

6. Each of the plaintiffs has sufficient interest in the lawful allocation of forest resources and thus sufficient interest for the purposes of National Court Rules O16 r 3(5) as the First Plaintiff is a director of the Second Defendant with statutory duties; the Second Plaintiff was recognised in s10 of the Forestry Act and the Third Plaintiff is an owner of land in the Timber Permit area sought to be joined with Kamula Doso.

7. Leave to proceed granted.

Cases Cited

Papua New Guinea Cases

N1595 Steamships Trading Co Ltd v Garamut Enterprises Ltd; Papua New Guinea Pilots Association v Director of Civil Aviation and National Airline Commission trading as Air Niugini [1983] PNGLR 1; Ombudsman Commission v Dohonue [1985] PNGLR 348; NTN Pty Ltd v Board of the PTC, PTC and Media Niugini Pty Limited [1987] PNGLR 70; Kekedo v Burns Philp (PNG) Limited [1988-89] PNGLR 122; Diro v Ombudsman Commission of Papua New Guinea [1991] PNGLR 153; Application of Demas Gigimat [1992] PNGLR 322; Ila Geno, Paul Lawton and Florian Mambu v Independent State of Papua New Guinea [1993] PNGLR 22; N856 Ex parte application of Eric Gurupa; N1226 Mark Kove v Secretary Department of West New Britain Province; In the matter of the Ex Parte application of Poka Biki, [1995] PNGLR 336; Application of Evangelical Lutheran Church of Papua New Guinea by Evangelical Lutheran Church of Papua New Guinea Superannuation Fund [1995] PNGLR 276; N1895 Silas Mareha v The Chairman—Redundancy Monitoring Committee & Ors,

Overseas Cases

Inland Revenue commissioners v National Federation of Self Employed and Anor [1982] 1 AC 617; Council of Civil Services Unions v Minister for the Civil Service [1984] 3 ALL ER 935

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1. LAY J.: The plaintiffs, ex parte, seek leave to proceed with an application for judicial review of some seven steps and four decisions taken by the Second Defendant in the allocation of a timber rights purchase area (TRP) known as Kamula Doso in the Western Province. Principally what the plaintiff seeks to have reviewed is a decision of the Second Defendant's Board made on 20 December 2005 to settle proceedings OS 557/2006 which are proceedings between the First and Second defendants. The translation of that settlement into an order of the Court is the subject of a separate appeal in the Supreme Court (SCM No. 3 of 2006).

2. The matter first came before me on 19 May 2006. Then the application of John Danaiya to be joined as a party was allowed and the application of the defendants to be heard on the leave application refused. Subsequently on 4 July 2006, in the application of the Ombudsman Commission to be joined as a party was refused.

3. The plaintiff's case is supported by the affidavit of Ken Norae Mondiai, sworn 18 April 2006.

4. A great deal of the contents of this affidavit is inadmissible, being based on reports of...