Francis Kunai v PNG Forest Authority
Jurisdiction | Papua New Guinea |
Judgment Date | 04 September 2018 |
Citation | (2018) N7570 |
Year | 2018 |
Court | National Court |
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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