Mussau Timber Development Pty Ltd v Santee Mangis, Kalip Salo, Samuel Smith, Smith Pennie, Laisies Lapan, Kenneth Tavau, Ragu Smith, Alwin Paol, Kaenty Karaty, Simeon Mansini and Associates [1994] PNGLR 1

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: [1994] PNGLR 1
• Date: 24 August 1990
• Year: 1994

Full Title: Mussau Timber Development Pty Ltd v Santee Mangis, Kalip Salo, Samuel Smith, Smith Pennie, Laisies Lapan, Kenneth Tavau, Ragu Smith, Alwin Paol, Kaenty Karaty, Simeon Mansini and Associates [1994] PNGLR 1

National Court: Jalina J

Judgment Delivered: 24 August 1990

1 Forestry—timber permit—subject to conditions—conditions not fulfilled—interference with logging operations—whether holder in lawful operation—logging operations only becomes lawful upon compliance with conditions—Forestry Act (Ch216)

2 Practice and procedure—notice of motion—order for preservation of property—order sought not in notice of motion—relief claimed should be pleaded—no proper amendment—prejudice to respondent—application refused—National Court Rules O14, r9 and r10

3 Practice and procedure—judgment and orders—property seized in blatant disregard of the law—continuous refusal to comply with police request—whether order for return of property available—order granted—a person should not be allowed to benefit from his criminal act

4 FORESTRY—Timber permit—Permit subject to conditions—Conditions not fulfilled—Interference with logging operations—Whether permit holder in lawful operation—Logging operations only become lawful upon compliance with conditions—Forestry Act (Ch216.

5 PRACTICE AND PROCEDURE—Notice of motion—Order for preservation of property—Order sought not in notice of motion—Relief claimed should be pleaded—No proper amendment—Prejudice to respondent—Application should be refused—National Court Rules O14 r9 and r10.

6 PRACTICE AND PROCEDURE—Judgment and orders—Property seized in blatant disregard of the law—Continuous refusal to comply with police request—Whether order for return of property available—Order granted—A person should not be allowed to benefit from his criminal act.

7 Ume More v The University of Papua New Guinea [1985] PNGLR 401, Crafter v Kelly [1941] SASR 237, London Passenger Transport Board v Moscrop [1942] 1 All ER 97; [1942] AC 332 and Pride of Derby and Derbyshire Angling Association Ltd v British Celanese Ltd [1953] Ch 149; [1953] 2 WLR 58; [1953] 1 All ER 179 referred to

Facts

The applicant, a timber company, was granted a timber permit to carry on logging operations on Mussau Island, New Ireland Province. On the expiration of the licence, the Minister for Forests granted an extension for nine months, subject to various conditions, including an undertaking to consider future extensions on compliance of those conditions. The applicant claimed that a number of villagers, including the respondents, trespassed on the campsite, threatened its workers, removed logging equipments and machinery to their village, and have refused to release the machinery. It was further claimed that as a result of the illegal acts of the respondents, cutting and export of timber had ceased and loss of earnings had been incurred. The respondents claimed that they were the landowners of the area of logging operation and were not getting any benefits from the exploitation of their resources.

The applicant sought a number of interlocutory orders, inter alia, to restrain the respondents from interfering with their operation and for the return of possession of their machinery, which the respondents forcibly seized. No substantial action was commenced or contemplated.

Held

On the preliminary issue of jurisdiction, the Court held that:

1. Under the National Court Rules, no substantial action was required in an application for the preservation of property. Where, however, the applicant is seeking an injunction to restrain the respondent from illegally or improperly interfering with its lawful operations or to recover property, the proceeding was not for the preservation of property and came within O14 r9 of the National Court Rules, which enabled the Court to make interlocutory orders only where the applicant intends to commence proceedings.

2. A party cannot obtain relief which has not been requested or sought in the pleadings; Ume More v The University of Papua New Guinea [1985] PNGLR 401 applied.

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Jalina J: The applicant seeks orders by way of notice of motion in the following terms:

"1. The respondents be...