SCM No 21 of 2017, GR Logging Limited v David Dotaona, Chairman of the National Forest Board, & Tonou Sabuin, Jenny Viesami, Josephine Gena, Gunther Joku, Jacob Areman & Bob Tate, Members of the National Forest Board and Honourable Douglas Tomuriesa MP, Minister for Forests and PNG Forest Authority and the Independent State of Papua New Guinea and Pulie Anu Timber Company Limited and Matufi (PNG) Limited (2018) SC1690

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Collier J, Dingake J
• Judgment Date: 12 July 2018
• Court: Supreme Court
• Citation: (2018) SC1690
• Year: 2018
• Judgement Number: SC1690

Full Title: SCM No 21 of 2017, GR Logging Limited v David Dotaona, Chairman of the National Forest Board, & Tonou Sabuin, Jenny Viesami, Josephine Gena, Gunther Joku, Jacob Areman & Bob Tate, Members of the National Forest Board and Honourable Douglas Tomuriesa MP, Minister for Forests and PNG Forest Authority and the Independent State of Papua New Guinea and Pulie Anu Timber Company Limited and Matufi (PNG) Limited (2018) SC1690

Supreme Court: Cannings J, Collier J, Dingake J

Judgment Delivered: 12 July 2018

SC1690

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM NO 21 OF 2017

GR LOGGING LIMITED

Appellant

V

DAVID DOTAONA, CHAIRMAN OF THE NATIONAL FOREST BOARD, & TONOU SABUIN, JENNY VIESAMI, JOSEPHINE GENA,

GUNTHER JOKU, JACOB AREMAN & BOB TATE,

MEMBERS OF THE NATIONAL FOREST BOARD

First Respondents

HONOURABLE DOUGLAS TOMURIESA MP, MINISTER FOR FORESTS

Second Respondent

PNG FOREST AUTHORITY

Third Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Respondent

PULIE ANU TIMBER COMPANY LIMITED

Fifth Respondent

MATUFI (PNG) LIMITED

Sixth Respondent

Waigani: Cannings J, Collier J, Dingake J

2018: 27 June, 12 July

JUDICIAL REVIEW – leave requirements – whether a person can make a fresh application for leave for judicial review after an earlier application for leave for judicial review of the same decisions on the same grounds has been dismissed as an abuse of process – res judicata – need to establish whether first application was determined on its merits.

PRACTICE AND PROCEDURE – whether objection to competency of an appeal can be made without notice of objection to competency – appeals from orders under Order 16 (applications for judicial review) of the National Court Rules – Supreme Court Rules, Order 10, Rule 3(b)(ii) – need to annex certified copy of National Court order.

The appellant applied to the National Court for leave to seek judicial review of administrative decisions under the Forestry Act of the National Forest Board and the Minister For Forests regarding granting of a timber permit to the fifth respondent. Leave was refused on the ground that the application was an abuse of process as the appellant had engaged in a multiplicity of proceedings by filing another National Court proceeding challenging the same decisions. The appellant discontinued the related proceeding, then made a fresh application for leave for judicial review of essentially the same administrative decisions on the same grounds as those advanced in its first application. Leave was again refused, this time on the ground that the application for leave was res judicata, as the first application, which relied on the same cause of action as the second application, had been heard and determined. The appellant appealed against the second refusal of leave. At the hearing of the appeal the fifth respondent argued – without filing a notice of objection to competency – that the appeal was incompetent due to the appellant’s failure to comply with Order 10, Rule 3(b)(ii) of the Supreme Court Rules (the notice of motion by which the appeal is instituted is to have annexed to it a certified copy of the order appealed from).

Held:

(1) Leave to allow the fifth respondent to object to competency of the appeal was refused as no reason was offered as to failure to file a notice of objection to competency, the fifth respondent failed to follow the procedure for filing a notice of objection under Order 7, Rule 12 of the Supreme Court Rules and the basis on which it was claimed that the appeal was incompetent (failure to comply with Order 10, Rule 3(b)(ii)) was controversial. The appeal was therefore determined on its merits.

(2) The first refusal of leave for review was not final and on the merits of the case, such that the second application for leave was res judicata. Dismissal of proceedings for reasons other than determination of the substantive questions pertaining to the cause of action is not “final”, such that a subsequent claim pleading the same cause of action is res judicata.

(3) The appeal was allowed, the decision of the National Court was quashed and the application for leave for judicial review was remitted to the National Court for re-hearing.

Cases cited:

Papua New Guinea Cases

The following cases are cited in the judgment:

Amet v Yama (2010) SC1064

Anderson Agiru v The Electoral Commission (2002) SC687

Hegele v Kila (2011) SC1124

John Wanis Wek v Sobol Trading Ltd (2016) SC1535

Kuk v O’Neill (2014) SC1331

Leto Darius v The Commissioner of Police (2001) N2046

Louis Medaing v Minister for Lands & Physical Planning (2010) N3917

Madang Timbers Ltd v Kambori (2009) SC992

Mahuru v Hon Lucas Dekena (2013) N5305

Mountain Catering Ltd v Frederick Punangi (2013) SC1225

National Capital Ltd v Bakani (2014) SC1392

National Executive Council v Public Employees Association [1993] PNGLR 264

Nema v Rural Development Bank Ltd (2012) N5317

Nipo Investment Ltd v Nambawan Super Ltd (2017) SC1642.

O'Neill v Eliakim (2016) SC1539

Titi Christian v Rabbie Namaliu (1996) SC1583

Totamu v Small Business Development Corporation (2009) N3702

Yama v PNGBC Ltd (2008) SC922

Overseas Cases

Baines v State Bank of New South Wales (1985) 2 NSWLR 729

Blair v Curran (1939) 62 CLR 464

Davis v Gell (1924) 35 CLR 275

DSV Silo-und Verwaltungsgesellschaft mbH v Owners of the Sennar [1985] 2 All ER 104

Green v Weatherill [1929] 2 Ch 213

Hall v Nominal Defendant (1966) 117 CLR 423

Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993

Pople v Evans [1968] 2 All ER 743

Re May (1885) 28 Ch D 516

Rogers v Legal Services Commission of South Australia (1995) 64 SASR 572

Rogers v The Queen (1994) 181 CLR 251

APPEAL

This was an appeal against a decision of the National Court, refusing an application for leave to seek judicial review.

Counsel:

I Molloy & C Copland, for the Appellant

S Phannaphen, for the Fifth Respondent

12th July, 2018

1. BY THE COURT: By this notice of motion the appellant appeals the whole of a judgment of the National Court in proceeding OS (JR) No 116 of 2017 under Order 16 of the National Court Rules dismissing the appellant’s application for leave to apply for judicial review. The appellant seeks orders quashing the decision at first instance, granting it leave to apply for judicial review in proceeding OS (JR) No 116 of 2017, and costs.

2. Written submissions were filed on behalf of all parties except the fourth respondent which took no active role in these proceedings. Counsel for the appellant and fifth respondent also provided oral submissions at the hearing.

3. Counsel for the first to third respondents and counsel for the sixth respondent both arrived late to the hearing and sought leave to appear. The practitioners submitted that their tardiness was due to, inter alia, traffic congestion, late change of court room, and a perceived change of hearing time. We found these explanations unsatisfactory and refused leave for Counsel to appear. In the interests of justice, however, the Court has considered the written material filed on behalf of the first to third respondents and the sixth respondent in lieu of oral submissions by their respective Counsel.

BACKGROUND

4. At first instance the appellant sought leave to review three decisions relating to the issue of a timber permit to the fifth respondent on 25 November 2016 in Pulie Anu, an area in Kandrian District, West New Britain province. The decisions were:

(1) The grant of timber permit TP 14-04 to the fifth respondent by the Minister for Forests;

(2) The grant of an operating licence to the sixth respondent by the Chairman of the National Forest Board on 2 December 2016; and

(3) The approval of the sixth respondent’s three year Forest Working Plan on 16 February 2017.

5. Before the primary Judge the fourth respondent, the State, raised a preliminary point, namely that the application for leave was res judicata because this application had been made before Makail J on 9 February 2017 and leave was then refused. The appellant argued that Makail J had not considered the merits of the leave application, but had decided the proceeding on a technical issue, namely the multiplicity of proceedings. Makail J had refused leave on the basis that the application was an abuse of process. It is useful to examine the proceedings before Makail J before...