Rafflin and Others v Richard Gault Industries Pty Ltd, Kerawara Pty Ltd, East New Britain Provincial Government, Papua New Guinea Forest Authority and The Independent State of Papua New Guinea [1998] PNGLR 394

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: [1998] PNGLR 394
• Date: 03 November 1997
• Year: 1998

Full Title: Rafflin and Others v Richard Gault Industries Pty Ltd, Kerawara Pty Ltd, East New Britain Provincial Government, Papua New Guinea Forest Authority and The Independent State of Papua New Guinea [1998] PNGLR 394

National Court: Woods J

Judgment Delivered: 3 November 1997

1 Forestry—timber licence—nature of—rights to land—terms and conditions and reservations on Agricultural Leases

2 Trespass—damages for unauthorised logging activities

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Woods J: The Plaintiffs in these actions are seeking certain declarations concerning the rights of the defendants to licence and conduct logging operations on their lands and they are also seeking damages for trespass and breach of the conditions of State Leases for quiet enjoyment.

The writ of summons seeks:

1. A declaration that the 1st and 2nd defendants are not entitled to enter the land and to carry on logging operations thereon.

2. A declaration that the 1st and/or 2nd defendants logging operations on the land was unlawful in respect of the 1st and 3rd plaintiffs since the grant of the State Leases and in respect of the 2nd plaintiff since the commencement of the logging operations.

3. An injunction to restrain the 1st and 2nd defendants by their servants and agents from entering and carrying on logging operations on the land.

4. An order that the 1st, 2nd, 3rd, 4th, 5th defendants give a full and accurate account of timber harvested from the land at all material times.

5. Damages against the 1st and 2nd defendants for trespass and/or conversion.

6. Damages against the 5th defendant in favour of the plaintiffs for breach of contract.

7. Interest.

Whilst the 1st and 2nd defendants did respond with pleadings early in this matter they have failed to continue with pleadings or appear at mentions over the past year or more in spite of being served with process and the court has been forced to accept that they are not interested in defending the claims.

The proceedings were discontinued against the 3rd defendant.

The 4th defendant has shown no interest in attending at the hearing of the matter.

One of the plaintiffs, Steven Rafflin, had settled his claim with the defendants and thereupon discontinued his claim.

The case briefly concerns the alleged trespass of logging companies namely the 1st and 2nd defendants onto the lands of the plaintiffs under a Timber Licence given by the State. The Plaintiffs were holders of State Leases for agricultural purposes, except for one plaintiff who was the customary owner of certain land. Most of the plaintiffs held State Leases which were granted under the Warongoi Cocoa Block Scheme which was a project planned by the Department of Primary Industry, the Provincial Government and the Agriculture Bank for the economic development of the area into cocoa production by way of smallholder blocks. The Plaintiffs had applied in the normal fashion under the Land Act for their blocks and in due course they were granted State Leases over the land and in most cases were granted loans by the Agriculture Bank for the development of their blocks. This therefore resulted in the State Leases being issued subject to mortgages to the Agriculture Bank. These State Leases were granted in March 1991, and I refer here to Government Gazette G27 of 14 March 1991.

The State Leases were in the usual form of an Agricultural Lease under the Land Act s49 and issued on various dates between March and July 1991 and they contained the usual reservations implied in State Leases, which would be by virtue of s39 the reservations of minerals, and they included the usual style of terms and conditions for cultivation and development for in these cases cocoa, and a residential condition. There is no mention of any reservation of timber and of course any such a reservation would not make any sense as the Leases were leases to plant and grown certain tree crops.

In 1992 the then Minister for Forests granted a Timber Licence No 15–8 relating to the Warongoi Timber Area, East New Britain Province to the 1st Defendant. This timber licence purported to include the lands owned by the Plaintiffs. In 1993 the 1st and 2nd defendants entered the lands of the plaintiffs and cut down and removed trees. There was no separate consent from the plaintiffs for this action by the 1st and 2nd defendants. The defendants admitted in their Defence and Cross–Claim filed in July 1994 that they had a Timber Licence issued under the Forestry Act 1991 over the plaintiffs' lands. However they asserted that they were under no obligation to treat with the lessees or landowners. And the Department of Forests agreed in June 1993 that the subject Licence did purport to include the Agricultural Blocks, and refer here to a letter from the then Secretary of the Department of Forests dated 1st June 1993. The 1st and 2nd defendants relied on this Timber Licence to give them the right to enter onto the land the subject of these Agriculture leases and remove timber and further it appeared that the defendants relied on the terms of this Licence that they were in no way answerable to the plaintiffs as leaseholders of these Agriculture Leases but only answerable to the State and only had to pay any licence fees or royalty fees to the State or its Instrumentalities.

I note here that the 4th Defendant, the Papua New Guinea Forest Authority, is the successor to the responsibilities and obligations of the Department of Forests, note the Forestry Act 1991 and in particular s140.

It is clear that all defendants agree that there...