N7947

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 264 of 2019

BETWEEN:
AMANAB FOREST PRODUCTS
Plaintiff

AND:
PAUL SAI’I, GUNTHER JOKU, NOAH TAMBI, THERESA KAMU, JOSEPHINE GENIA, BOB TATE and JACOB AREMAN as members of the NATIONAL FOREST BOARD
First Defendants

AND:
PAPUA NEW GUINEA FOREST AUTHORITY
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
PACIFIC GREEN TIMBER LTD
Fourth Defendant

AND:
MINEP LIMITED
Fifth Defendant

Waigani:    Gavara-Nanu J
2019:    11th & 22nd July

PRACTICE & PROCEDURE – Interlocutory application – Amended Notice of Motion – Whether leave required - Competency of the amended Notice of Motion – National Court Rules; Order 8 rr 50, 52 (3) and 53; Order 4 Division 5 (r 49 (16 and (17) – National Court Motions (Amendment) Rules, 2005– Relevant principles considered.

PRACTICE & PROCEDURE – Application for a stay and restraining orders – Relevant principles considered.

Cases Cited

Cal Exports Ltd v. Camp Administration Ltd (2009) SC1050
Graham v. Tonga [2013] PGNC 213; N5384
Nali Hole v. Allan Mana (2016) SC1538
McHardy v. Prosec Security and Communications Ltd [2000] PNGLR 279 
O’Neil v. Eliakim (2016) PGSC 40
Ramu Nico Management (MCC) Ltd v. Tarsie (2010) SC1075
Re Commercial Pacific Lumber Exports Pty Ltd [1971-72] PNGLR 178
Sam Koim v. Hon. Peter O'Neil & Ors (2014) N5694
Steamships Ltd v. North Fly Development Corporation Ltd (2015) N5999  
Telikom (PNG) Ltd v. Independent Consumer and Competition Commission & Anor SC906
The State v. Downer Construction (PNG) Ltd (2009) SC979
Tovon v. Malpo [2016] PGNC57; N6240

Counsel

E. Noki, for the Plaintiff
S. Mitige, for the First and Second Defendants 
P. Lowing with P. Andrews, for the Fourth Defendant
M. August, for the Fifth Defendant 

22nd July, 2019

1.	GAVARA-NANU J:	   On 7 May, 2019, the plaintiff was granted leave to seek review of the decision of the National Forest Board (first defendant) to excise or remove 17,000 hectares of land from Amanab Blocks 1-4 and Imonda Consolidated Forest Management Agreement Area, Sandaun Province; and to accept an application by the fourth defendant for a Forest Clearing Authority over the excised land;  and to grant a Forest Clearing Authority (FCA) No. 10-15 dated 28 September, 2018, to the fourth defendant for Walsa Integrated Agriculture Project.  

2.	In its Statement in Support, the plaintiff seeks among others, declarations that 17,000 hectares of excised land is in the area of land over which it holds a Timber Permit Authority, Forest Management Agreement, Forest Clearing Authority and a Project Agreement.  

3.	The plaintiff claims among others that the excision of the 17,000 hectares of land by the first defendant was done without it being consulted, thus it was done in breach of the principles of natural justice.  

4.	This application is made pursuant to an amended Notice of Motion filed on 20 June, 2019.  The amended Notice of Motion amends the original Notice of Motion filed on 20 May, 2019.  

5.	The plaintiff is seeking to stay the excision of the 17,000 hectares of land which forms part of the Amanab Blocks 1- 4 and Imonda Consolidated Forest Management Area, Sandaun Province and the grant of the (FCA) No. 10-15 on 28 September, 2019, to the fourth defendant over the excised land. 

6.	The plaintiff is also seeking to restrain the fourth defendant and its servants or agents from entering or engaging in any forest industry activity within the excised land.  

7.	Alternatively, the plaintiff is seeking an order that it and the fourth defendant refrain from engaging in any forest industry activity within the excised land and that they undertake a joint survey of the subject land to determine the area of land in which the fourth defendant is undertaking logging operations and that they pay for the cost of such survey in equal shares.  

8.	It is important to note that in the original Notice of Motion, the plaintiff was seeking only part of the second relief it is seeking in the amended Notice of Motion, viz; to restrain the fourth defendant and its servants or agents from engaging in any forest industry activity within the excised land and removing or disposing of any forest produce particularly logged timber. 

9.	The defendants have challenged the competency of the amended Notice of Motion on a number of grounds.  First, the original Notice of Motion should have been withdrawn, and leave should have been sought for the amended Notice of Motion.  Second, the plaintiff has failed to show that the fourth defendant is logging in the excised land.  Third, a surveyor’s report which the plaintiff relies on is flawed because the surveyor’s qualifications are in dispute and the survey was incomplete.  Fourth, the relief sought in the amended Notice of Motion are res judicata because they were already determined by David J, in another proceeding.  Fifth, the application suffers from an inordinate delay.  

10.	On the issue of leave for the amended Notice of Motion, the defendants relied on Order 8 r 50 of the National Court Rules and a decision of Ipang J, in Steamships Ltd v. North Fly Development Corporation Ltd (2015) N5999.  In that case, his honour relied on a decision of David J, in Graham v. Tonga [2013] PGNC 213; N5384, in which his Honour considered Order 8 r 50 (1) and rejected an amended Statement of Charge because leave was not obtained for the amended Statement of Change.  His Honour described the Statement of Charge as a “document” and held that it (amended Statement of Charge) fell within the terms Order 8 r 50 (1).   In Steamships Ltd v. North Fly Development Corporation Ltd (supra), Ipang J, followed the decision of David J in Graham v. Tonga (supra) and dismissed an amended Notice of Motion because leave was not obtained first under Order 8 r 50 for the amended Notice of Motion.  

11.	It is plain that Order 8 r 50 relates to substantive pleadings.  This is clear from the terms of Order 8 rr 52 (3) and r 53 of the National Court Rules.  The provisions of Order 8 r 50, which is in Division 4 should be read together with the rest of the rules in the Division to understand its true meaning. See, The State v. Downer Construction (PNG) Ltd (2009) SC979. 

12.	Incidentally, Order 16 r 3 (4) of the National Court Rules also provides that the Court may without prejudice to its powers under Order 8 Division 4 (r 50) allow amendments to be made to a Statement in Support by specifying different or additional grounds for relief or otherwise, on such terms as the Court may think fit. 

13.	The provisions of Order 4 Division 5 of the National Court Rules, which deal with motions, and the National Court Motions (Amendment) Rules, 2005 under Order 4 r 49, are silent on amendments to or amended notices of motion. 

14.	Notably, Order 4 r 49 (17) of the Motions Amendment Rules (2005), provides that the Court may on its own motion or upon application strike out or dismisses a motion which is not prosecuted within one month after it is filed or if it is adjourned twice.  This application does not fall within this rule, in any event, the defendants have not invoked the rule to either strike out or dismiss the amended Notice of Motion.

15.	With respect, I am unable to agree with the decision in Steamships Ltd v. Northern Fly Development Corporation Ltd (supra).  In my view, it is clear from the scheme of the relevant Rules that Order 8 r 50 relates to substantiative pleadings, thus it has no relevance to an amended notice of motion or a notice of motion for that matter.  Thus, I respectfully agree with the observations made by Kandakasi J (as he then was) in Tovon v. Malpo [2016] PGNC57; N6240, that the Rules do not prescribe any procedure for amendments to or amended notices of motion.  

16.	An amended notice of motion which seeks completely new relief from those in an original notice of motion clearly is an abuse of process. Thus, such amended notice of motion should be withdrawn and a fresh notice of motion should be filed for its relief.  But if an amended notice of motion is based on an original notice of motion and the relief sought in the amended notice of motion simply extend or enlarge the relief sought in the original notice of motion then, as long as the relief sought are properly before the Court the amended notice of motion is competent. This is one such case. See, Tovon v. Malpo (supra).

17.	The pertinent considerations the Court should have regard to when deciding the competency of an amended notice of motion are; whether it is an abuse of process and whether it would prejudice the respondent(s).  For example, where the amended notice of motion seeks completely new relief; or seeks substantive relief, or raises issues or seeks relief which are res judicata or sub-judice or is caught by Order 4 r 49 (16) and (17) of National Court (Motions) Amendment Rules, 2005, in which case it (amended notice of motion) may be struck out or dismissed for want of prosecution.    

18.	In this case, the amended Notice of Motion in my view does not fall within any of the above examples. The relief sought are an extension or an enlargement of the relief sought in the original Notice of Motion. The issues raised or the relief sought also arise out of or are related to the matters pleaded in the original Notice of Motion or to other matters which the parties are fully aware of, thus no prejudice is caused to the defendants.    

19.	The issue of res judicata has been raised specifically by the defendants as a ground of objection to the competency of the amended Notice of Motion, it is claimed that the relief sought in the amended Notice of Motion are same as those already determined by David J, in proceeding WS 245 of 2016.  In that proceeding, the plaintiff sought certain declarations and sought to restrain the fourth defendant from entering and trespassing into the land covered by the plaintiff’s Timber Permit and the fourth defendant to be further restrained from engaging in forestry activities within the plaintiff’s Timber Permit Area.  

20.	Notably, proceeding WS 245 of 2016 was filed and determined before this proceeding and the relief sought in WS 245 of 2016 were different from those sought in the amended Notice of Motion. The excision of the 17,000 hectares of land also occurred well after WS 245 of 2016 was determined.     

21.	In this proceeding the substantive relief claimed by the plaintiff challenges the validity of the excision of the 17,000 hectares of land by the first defendant.  The interlocutory relief sought in the amended Notice of Motion relate to the substantive relief, thus the relief sought in the amended Notice of Motion are clearly different from those which David J, determined in WS 245 of 2016.  Thus, it cannot be said that the decision of David J, in WS 245 of 2016 disposed of all the matters or issues that are raised in the amended Notice of Motion.  See Telikom (PNG) Ltd v. Independent Consumer and Competition Commission & Anor SC906.  Not only the issues raised in the amended Notice of Motion are different from those determined by David J, in WS 245 of 2016, but the parties are also different.  The argument by the defendants based on res judicata is therefore refused.  

22.	Other issues raised by the defendants relate to the credibility of the plaintiff’s survey report and the alleged failure by the plaintiff to prove that the fourth defendant is engaged in forestry related activities in the excised land. However, in my view, these are substantive issues and they should be dealt with at the substantive hearing.  

23.	In regard to delay, the plaintiff became aware of the excision of the 17,000 hectares of land sometime after the excision on 28 September, 2018.  To me this is a sufficient explanation for any delay, in any event, the issue has been determined at leave stage and notably since the grant of leave the circumstances have not changed. The issue therefore does not arise for determination. 
 
24.	For the foregoing reasons, I find that the amended Notice of Motion is competent.

25.	As to whether there is or are serious issues, there is evidence that when the plaintiff complained to the defendants about the fourth defendant being allowed into its Timber Permit Area, the plaintiff was assured by the Papua New Guinea Forest Authority that it would be fully consulted before any further permission could be given to the fourth defendant to engage in forestry activities in the area. But according to the plaintiff no consultations were held between the parties prior to the excision of the subject land. This clearly raises a serious issue regarding the validity of the excision of the subject land.  

26.	What then is the appropriate remedy or relief for the plaintiff?  The principles upon which a stay or a restraining order may be granted are settled in this jurisdiction. The leading case is McHardy v. Prosec Security and Communications Ltd [2000] PNGLR 279. See also Ramu Nico Management (MCC) Ltd v. Tarsie (2010) SC1075 and Sam Koim v. Hon. Peter O'Neil & Ors (2014) N5694.

27.	It is important to note that the purpose of a grant of a stay or a restraining order is to maintain the status quo and to protect the interests of the applicant and prevent prejudice. So, if an applicant's interests cannot be protected by a stay or a restraining order, then the application will have no basis and should be refused. See, Nali Hole v. Allan Mana (2016) SC1538; Re Commercial Pacific Lumber Exports Ltd [1971-72] PNGLR 178; Cal Exports Ltd v. Camp Administration Ltd (2009) SC1050; Gary Mc Hardy v. Prosec Security and Communication Ltd trading as Protect Security (supra) and O’Neil v. Eliakim (2016) PGSC 40.

28.	In my view, there are two overriding and determinative considerations which should guide the Court when deciding a stay or a restraining order viz; whether there is or are serious issues and whether damages would be an adequate remedy for the respondent should a stay or a restraining order be granted. Other considerations are consequential upon these two considerations. See, Sam Koim v. Hon. Peter O'Neil & Ors (supra).

29.	As to serious issues, there clearly are serious issues regarding the validity of the excision of the subject land.  

30.	In regard to damages and prejudice either party may suffer, the excision of the subject land was done years after the plaintiff had entered into Forest Management Agreement (1999) and Project Agreement over the subject land.  The plaintiff was also issued with a Forest Clearing Authority and a Timber Permit Authority over the subject land well before the excision of the subject land. In the circumstance, I find that it would be the plaintiff which will be seriously prejudiced and suffer damages if the relief sought are not granted. Furthermore, given the excised land area and the types of issues raised for substantive hearing, I do not think damages is a sufficient remedy for the plaintiff. See, Commercial Pacific Lumber Exports Pty Ltd (supra). In regard to the fourth respondent which is the other party likely to suffer damages, there is an undertaking as to damages filed by the plaintiff and there are no issues regarding the plaintiff's ability to pay damages, thus I consider damages should be adequate remedy for the fourth defendant.

31.	All these considerations therefore in my view tip the balance of convenience in favour of granting the relief sought.   

32.	In reaching this conclusion, I have also taken into account a strong and compelling evidence provided by the fifth defendant which clearly affirms or indicates that there is an overlap in the areas of land over which both the plaintiff and the fourth defendant currently have interest, particularly the excised land.  

33.	Thus, given that the validity of the decision of the first defendant to excise 17,000 hectares of land area from Amanab Blocks 1-4 and Imonda Consolidated Forest Management Area in Sandaun Province and to issue a Forest Clearing Authority to the fourth defendant over the said land, on 28 September, 2018, is a substantive issue for trial, I consider that the appropriate interim relief for the plaintiff is in terms of the second relief sought in the amended Notice of Motion. 

34.	The fourth defendant its servant or agents of whomsoever kind are therefore restrained from dealing with the excised land in whatsoever way and are further restrained from engaging in all activities of whatsoever kind relating to forestry and agriculture, including harvesting of timber and exporting logs, planting of crops of commercial nature or otherwise until this proceeding is fully determined by the Court.

35.	    Costs to be in the cause.  
_____________________________________________________________
Bradshaw Lawyers: Lawyers for the Plaintiff 
In-house Lawyers: Lawyers for the First and Second Defendants 
Leahy Levin Lowing Sullivan Lawyers: Lawyers for the Fourth Defendant
N. Smiley Lawyers: Lawyers for the Fifth Defendant