N4044

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 322 OF 2007 (JR)

BETWEEN:

RAPHAEL LOOWA & OTHERS
Plaintiffs

AND:

NATIONAL FOREST BOARD & OTHERS
Respondents

Waigani: Injia, DCJ
2008: 19th May

INJUNCTION – application for interim orders restraining defendant from dealing with fifth defendant Samas Ltd - question arises as to how Samas Ltd was granted a Timber permit, in the face of another order restraining the defendants from negotiating with Samas – events overtaking substantive application and interim orders no longer relevant - timber permit being duly granted - defendants entitled to act in accordance with terms and conditions set out in permit - application dismissed - O 16 r 3 (8)(a) of the National Court Rules

Cases Cited

No cases cited

Counsel:

P Mambei, for plaintiffs
A Mac Donald, for first, second, third and fourth defendants
K Iduhu, for the 5th defendant

19th May, 2010 

1. INJIA, DCJ: This is the plaintiffs’ application for interim orders made under O 16 r 3 (8)(a) of the National Court Rules. The primary order sought is an order that "the restraining orders of the 8th of August 2007 be revisited and interpreted fully and extended to include restraining the defendants, their agents, servants or assigns from any dealing with Samas Ltd concerning any activities including logging in the Aitape Lumi Forest Management Area (FMA) and arrangements under the Timber Authority for agricultural and road building be stopped until application for judicial review is determined pursuant to Order 16 r 3 (8)(a) of the National Court Rules". The plaintiff also seeks further interim mandatory injunction that the machinery brought in by Samas Ltd as project developer, to commence the timber project, and launched by the Minister for Forest on 20th March 2008, be locked up in the log pond yard pending the determination of the substantive review. The defendants contest the application. Various affidavits have been filed by all the parties and relied upon. Counsel made extensive submissions, both oral and written, last week and I reserved my ruling to today. I have considered those submissions.

2. The background of this application is as follows. The plaintiffs represent four incorporated landowner groups. On 8th May 2007, the NFA Board (NFAB) decided to include Samas Ltd in negotiations between the State and landowners of the project area to enter into a FMA, which would, amongst other requirements under the Forest Act, form the basis for the issue of a Timber Permit. Samas Ltd was an interested developer for the project. The plaintiffs opposed that decision. On 12th June 2007 the plaintiff filed an application for leave to apply for judicial review under O 16 r 3 of the National Court Rules. On 13th June 2007 the plaintiff applied for and was granted interim orders ex parte, restraining the 1st, 2nd & 3rd defendants "from continuing with negotiation with Samas Ltd in respect of the Aitape Lumi Consolidated Forest Management Area (FMA)." On 19th June 2007, the defendants applied to set aside those orders and an order to that effect was made ex parte. On 8th August 2007 the Court decided to grant leave to apply for judicial review. In the same decision the Court set aside the order of 19th June 2007 and reinstated the interim orders of 12th June 2007. The relevant part of the order states that "the interim orders of the 13th June 2007 not to do certain things are restored pursuant to Order 16 Rule 3 (8) of the National Court Rules".

3. Whilst the substantive application was pending hearing, the negotiations were concluded, a FMA was entered into and Samas Ltd was granted a Timber Permit on 14th November 2007. Pursuant to this Permit, Samas Ltd moved in machines and equipment into the area to carry out infrastructural developments and conduct logging operations. On 30th March 2008, the equipment and machinery were launched at a public ceremony which was officiated by the Minister for Forest. An earlier attempt to move a motion by the plaintiffs on the day of the ceremony to halt the ceremony was abandoned. The plaintiff filed the present application seeking the orders I have referred to earlier.

4. The question arises as to how the defendants managed to conclude the negotiations and Samas Ltd was granted a Timber permit, in the face of the order of 13th June 2007. This is explained by the General Manager of NFA Mr Brown Kiki in his affidavit sworn on 19th March and filed on 26th March 2008. He says immediately after the interim order of June 13th 2007 was set aside, the negotiations proceeded and were completed and Samas Ltd was selected as the preferred developer. The selection was subsequently approved by the NFAB before the interim order was set aside on 8th August 2007. The defendants lawyers attempted to seek clarification from Sakora J as to His Honour’s order of 8th August 2007 restoring the earlier interim orders, as to whether it covered the issue of a timber permit, to which they did not receive a response. The lawyers then advised the defendants that the orders did not prevent the issue of a timber permit. Based on this advice, the Timber permit was recommended by NFAB and issued by the Minister. 

5. Since the grant of the Timber Permit, the plaintiffs have amended the OS, Statement and or Notices of Motion. None of those amendments seek to challenge the granting of the timber permit that has been issued already. Mr Mambei’s contention is that that decision will be challenged later. The present proceedings adequately challenge the breach of mandatory procedure for conducting and concluding negotiations prescribed by the Forest Act which if quashed by this Court on review will pave the way for the issue of the timber permit to be quashed too. The plaintiff is content with making the present application in the context of the challenge to the negotiation process. 

6. I accept the defendants’ submissions that events have overtaken the purpose of the substantive application and the interim order of 13th June 2007 and the further interim orders sought in this application are no longer relevant. The defendants, in particular Samas Ltd, is entitled to develop the project pursuant to the Timber Permit issued to it. Pursuant to the terms of the permit, it is entitled to bring in machines and equipment to construct infrastructural facilities and harvest timber. The validity of that Timber Permit is not challenged in these proceedings. If it were challenged in any judicial review proceedings, proper application of the sort made in this application would have to be made in such proceedings. Also in those proceedings, it would be open to the plaintiff to challenge all decisions that were made in the entire process commencing with the negotiations for FMA, conclusion and approval of the same by the appropriate body and the steps taken to grant the timber permit. 

7. The application before the Court seeks orders clarifying the interim order made on 13 June 2007 and restored on 8th August 2007. Such clarification should have been sought by the plaintiff before the judge who granted that order. To me the order is not vague and require no interpretation or clarification. The order is specific about Samas Ltd being excluded from the negotiations that were in progress. The orders sought now do not come within the ambit of that order. 

8. It is arguable whether the defendants breached the Court orders of 8th August which restored the interim order of 13th June 2007. The issue could be properly raised and considered in a motion for punishment for contempt or in any judicial review proceedings which challenge the grant of the timber permit.

9. On the face of the evidence before me, the timber permit was duly granted and the defendants are entitled to act in accordance with the terms and conditions set out in that permit, which includes the actions being taken now by the defendants, in particular Samas Ltd, which the plaintiff complains of. Samas Ltd has brought in and commissioned equipment and machines to commence the project and I would think, with the backing of other landowners. I am not sure if the plaintiffs represent a sufficient number of landowners and who have sufficient financial resources to honour their undertaking as to damages even if the interim orders sought were granted but they failed in the substantive application for judicial review, 

10. For these reasons, I consider the plaintiff’s application to be misconceived and without basis. Having reached this conclusion, it is unnecessary to consider and determine the other procedural and others addressed in the submissions of all parties. 

11. The formal orders I make are as follows:

1.	The plaintiff’s Amended Notice of Motion filed on 27th March 2008 and Notice of Motion filed on 12th May 2008 are dismissed.

2.	Costs of the Motions shall be in the cause of the substantive matter.

3.	The substantive matter is adjourned to 2nd June 2008 for directions.

4.	The time for entry of this order is abridged to the time of settlement by the Registrar which shall take place forthwith.

____________________________________
Mambei Lawyers: Lawyer for the Plaintiff
Posman Kua Aisi Lawyers: Lawyer for the 1st, 2nd, 3rd, & 4th Defendants
Fairfax Legal Group: Lawyer for the 5th Defendants