Francis Kunai v PNG Forest Authority

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 04 September 2018
• Citation: (2018) N7570
• Court: National Court
• Year: 2018
• Judgement Number: N7570

Full : WS. NO.1273 OF 2012; Francis Kunai for himself and on behalf of all 8 Jimi Timber Rights Purchase Agreement Holders as who are landowners and beneficiaries stated in the Schedule herewith and marked “A”(First Plaintiffs) and Komap Mapulgie Business Group (Second Plaintiff) and Kelly Kalit for himself and on behalf of all Waripi Timber Rights Purchase landowners and beneficiaries (Third Plaintiff) v Papua New Guinea Forest Authority (First Defendant) and Julius Pololi – The Public Curator of the Independent State of PNG (Second Defendant) and Simon Tosali – The Secretary for Department of Treasury (Third Defendant) and Steven Gibson – The Secretary for Department of Finance (Fourth Defendant) and The Independent State of Papua New Guinea (Fifth Defendant) and Mark Steward – As administrator and agents of the Palgei Timber Rights Purchases Landowners (Sixth Defendant) (2018) N7570

National Court: Kandakasi, J

Judgment Delivered: 4 September 2018

N7570

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS. NO.1273 OF 2012

BETWEEN

FRANCIS KUNAI for himself and on behalf of all 8 Jimi Timber Rights Purchase Agreement Holders as who are landowners and beneficiaries stated in the Schedule herewith and marked “A”

First Plaintiffs

AND

KOMAP MAPULGIE BUSINESS GROUP

Second Plaintiff

AND

KELLY KALIT for himself and on behalf of all Waripi Timber Rights Purchase landowners and beneficiaries

Third Plaintiff

AND

PAPUA NEW GUINEA FOREST AUTHORITY

First Defendant

AND

JULIUS POLOLI – The Public Curator of the Independent State of PNG

Second Defendant

AND

SIMON TOSALI – The Secretary for Department of Treasury

Third Defendant

AND

STEVEN GIBSON – The Secretary for Department of Finance

Fourth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

AND

MARK STEWARD – As administrator and agents of the Palgei Timber Rights Purchases Landowners

Sixth Defendant

Waigani: Kandakasi, J.

2017: 21st August

2018: 08th March

04th July

15th and 17th August

4th September

ALTERNATIVE DISPUTE RESOLUTION (ADR) – Med-arb – Defined – A combination of the process of mediation and arbitration by the same neutral third party as mediator and arbiter or adjudicator – Benefits and disadvantages of considered – Provided the neutral third party has the consent of all parties and can stay clear of the risks of using confidential information gathered in the mediation process and avoid coercing the parties it is a useful process to use given its benefits.

CLAIMS AGAINST THE STATE - Notice under s. 5 of the Claim by and Against the State Act – Specific defence – State obliged to take a clear position on compliance or noncompliance - State has duty to specifically plead the defence and the basis for the defence – Failure to so plead – State precluded from raising the issue and succeeding – Section 5 of Claims by and Against the State Act – Order 8, r.14 National Court Rules.

CONTRACT – Timber Rights Purchase (TRP) agreements – Treasury Investment of proceeds for landowners - Effect of – Loan to the extent that the principle plus all interest accrued on it will be paid to the investors – Principle and accrued interest not paid out at end of agreed period – No expressed agreement to continue or discontinue investment – Effect of – Relevant industry practice – Roll over of the investments on the same terms but on current prevailing interest rates – Ascertaining relevant exchange rate – Accepting and apply relevant rate established by Court judgments - Total amount due and payable should consist of principle with interests from the initial period of investment and further periods up to date of judgment.

COMMON LAW – Doctrine of estoppel by conduct or representation – Relevant elements or principles of – Essential element of acting on representation and suffering detriment not proven – Effect of allowing doctrine to applying would result in unjust outcome – Doctrine inapplicable.

EVIDENCE – Party in a position to adduce relevant evidence fails to do so – Evidence of relevant foreign exchange rate for a number of years and prevailing commercial interest rate - Effect of – Court at liberty to use whatever evidence adduce by the opposing side or other information available to the Court – Commercial interest rate found in judgments – Court can use rates found and established by judgments.

EVIDENCE – Matter in dispute in writing – Document speaks for itself – no extrinsic evidence permissible to contradict – Claim of privilege – No case as a matter of law or fact made out by party claiming privilege – Effect of – Document properly in evidence before the Court.

FINANCE & INVESTMENT – Investments by colonial government in foreign currency - Investments not paid out as and when due – Effect of – Roll over of – Terms and conditions of - Interest rates – Simple or compound interest rates – Parties agreement was for compound interests to apply – Current and prevailing commercial interest rates – Conversion of foreign currency - Currently prevailing conversion rates applied to convert from Australian Dollars to PNG Kina.

GOVERNMENT – National Executive Council (NEC) – NEC highest executive decision making body in the country – Has power to make all decisions for the good order and administration of the country in accordance with the law - Decisions of – Whether NEC has duty to seek and act only in accordance with the Attorney Generals (AG) Advice – Lack of any advice from the AG – Effect of – NEC decision is binding unless the NEC itself revokes or a court of competent jurisdiction sets it aside – All public organisations and public servants to give effect to NEC decision to allow for orderly running of the affairs of the country - Sections 8 (1) and (4) of the Attorney General Act 1989 (the AG’s Act.

INTERESTS – Types – Interest on damages and interest as damages – Two different matters – Interest as damages could attract interest on damages - Interest on damages entails an order that interest be paid upon award of damages – Interest as damages entails an actual award of damages – Interest as damages represents compensation for a wrongfully created loss of the use of money - Such interest is assessed wholly or partly by reference to the interest which would have been earned by safe investment of the money or which was in fact paid upon borrowings which otherwise would have been unnecessary or retired – Interest as damages awarded.

LOANS – Loans with the State – Applicable law – Loans and Securities Act – Requirements of – Unless the requirements of the Act are met no loan with the State can be created – Section 35 of Loans and Securities Act.

PRACTICE & PROCEDURE – Duty to proof – He who alleges must proof – Failure to – Allegation fails.

PUBLIC CURATOR – Powers and functions of – Whether subject to control or direction from any State department? – Duty owed to clients – Duty is to act in the client’s best interest – Clients interest not same as that of the State – Public Curators Act Chp.81.

SLIP RULE – Jurisdiction in the National Court – Principles governing – Purpose is to correct clear misapprehensions and consequential obvious errors or omission by the Court – Numerous calculations – Room for slip – Parties invited, and they assist in identification of slips – Corrections effected – Order 8 Rule 59 (1) of the National Court Rules.

Cases Cited

Papua New Guinea Cases

Peter Mangope vs. Rolence Maprik Haba (2015) SC1459

The State v. Moki Lepi (No 2) (2002) N2278

Curtain Bros (Qld) Pty Ltd v. The State [1993] PNGLR 285

Shell Papua New Guinea Ltd v. Speko Investment Ltd (2004) SC76

Koitaki Plantations Ltd v. Charlton Ltd (2014) N5656

Abel Constructions Ltd v. W.R. Carpenter (PNG) Ltd (2014) N5636

Hargy Oil Palm Ltd v. Ewasse Landowners Association Inc (2013) N5441

PNG Ports Corporation Ltd v. Canopus No 71 Ltd (2010) N4288

Toale Hongiri Incorporated Land Group & Ors v. Wolotou Incorporated Land Group & Ors (2014) SC1358

Polem Enterprises Ltd v. Attorney General of Papua New Guinea (2006) N2968

The State v. Zachary Gelu and Anor (2003) SC716

PNG v. Keboki Business Group Inc. [1985] PNGLR 369

Paul Kumba v. Motor Vehicle (PNG) Trust (2001) N2132

Fly River Provincial Government v. Pioneer Health Services Ltd (2001) SC705

Wahgi Savings and Loan Society Ltd v. Bank of South Pacific Ltd (1980) SC185

Joe Kerowa v MVIL (2010) SC1100

Rundle v. MVIT [1988] PNGLR 20

MVIL v. Sanage Kuri (2006) SC825

Andrew Posai v. Bevan Saile (2008) N3260

Sao Gabi & State v. Kasup Nate & Ors (2006) N4020

Tau Gumu v. Papua New Guinea Banking Corporation (2001) N2288

Jerry Kusa v. Steven Raphael (2008) N3304

Pija Grannies Ltd v. Rural Development Bank Ltd (2011) SC1327

Rimbunan Hijau (PNG) Ltd v. Ine Ibi & Ors (2017) SC1605

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