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East New Britain Provincial Government v Papua New Guinea Forest Authority [2019] PGNC 380; N8129 (11 November 2019)

N8129

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 285 OF 2018

BETWEEN:
EAST NEW BRITAIN PROVINCIAL GOVERNMENT
First Plaintiff

AND:
WILSON MATAVA
Second Plaintiff

AND:
PAPUA NEW GUINEA FOREST AUTHORITY
First Defendant

AND:
DAVID DATOANA in his capacity as Chairman of the NATIONAL FOREST BOARD
Second Defendant

AND:
VANIMO JAYA LIMITED
Third Defendant

AND:
LOBOT LOTU, HOSEA KUNAM, JOHN SURUGA AND THOMAS TURANA as Customary Landowners of the Dengnenge B Resources Area, Open Bay, Lassul Inland Baining Local Level Government, East New Britain Province
Fourth Defendant

Kokopo: Susame, AJ
2019: 6 September, 11 November

NOTICE OF MOTION – Application for dismissal of Proceedings- Order 12, Rule 40 (1) (a), (b) and (c) and Order 8 Rule 27 (1) (a) (b) and (c) - Grounds relied on – proceeding frivolous, vexatious and abuse of process
Cases Cited:

Anderson Aigiru v Electoral Commission (2002) SC687
PNG Forest Products Pty Ltd & Another v The State & Genia [1992] PNGLR 85
Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 (28 March 2008)

Counsel:

Ms. J Marubu, for the Plaintiffs
No Appearance, for First & Second Defendants
Ms. Emily Dauma, for the Third Defendant
No Appearance of the Fourth Defendant.

DECISION

11^th November, 2019

1. SUSAME AJ: By a notice of motion filed on 19 August 2019 fourth defendant sought to dismiss the entire proceedings, OS 285 of 2018 pursuant to Order 12, Rule 40 (1) (a), (b) and (c) and Order 8 Rule 27 (1)(a) (b) and (c) of the National Court Rules (NCR) as being frivolous, vexatious, for abuse of process of court and for disclosing no reasonable cause of action.
   
2. Motion is supported by affidavit of Emily Dauma sworn on 5 September 2019. (Document 126)
   
3. Motion was opposed by the plaintiffs for reasons I will refer to a bit later on. First let me set out the basic facts.
   

Facts

4. Bit of background, in OS proceedings N0. 285 of 2018 filed on 7 May 2018 plaintiff sought the following declaratory orders:
   
5. That the National Forest Authority Board cannot make any recommendations to the Minister for Forest to extend or renew a Timber Permit until and unless the Provincial Forest Management Committee has submitted a report to the National Forest Board pursuant to s 78 (3) (4) of the Forestry Act.
   
6. That the extension or renewal of Timber Permit No. 15-53 Dengnagi and Simbali TRP project Area made on 29 August 2017 in favour of the third defendant was done in contravention of section 78(3)(4) of the Forestry Act.
   
7. That the extension or renewal of Timber Permit No. 15-50 of Loi TRP project area made 29 August 2017 in favour of the third defendant was done in contravention of section 78(3)(4) of the Forestry Act.
   
8. That the extension of Consolidated Dengnagi & Simbali TRP, TP No. 15-53, and Loi TRP, TP No.15-50 both issued on 29 August 2017 are null and void and of no effect.
   

Contentions

9. The grounds relied on for dismissal of proceedings are:
   
   1. No reasonable cause of action is disclosed
   2. Proceeding is frivolous
   3. Proceeding is vexatious
      
10. No reliance was made on the common law principal of res judicata which is a complete defence. Under the rules of pleading the defence must be specifically pleaded in the notice of motion if it is to be relied on. (Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 (28 March 2008) ).That defence had not been pleaded and no arguments heard. On this point. Therefore it will not be considered.
    
11. Reasons are found at paragraphs 9, 10 and 11 of Emily Dauma’s affidavit sworn on 5 September 2019. The Originating Summons seeks to nullify TP 15-50 and TP 15-53 referred to in OS proceeding No. 997 of 2017. That issues on sections 137 and 78 of the Forestry Act have been addressed and discussed in OS No.997 of 2017. This court cannot determine the issues already presented before another court of equal jurisdiction. These matters should have been consolidated to avoid duplication at that time. The same issues have been dealt with resulting in permits TP 15-50 and TP15-53 being nullified.
    
12. Ms. Dauma was making reference to Justice Anis judgment in OS No. 997 of 2017 delivered on 14 August 2019. The same issues cannot be raised in the current proceeding for which plaintiff is seeking declaratory orders as they have been decided by the court in the earlier proceeding. Ms. Dauma made no reference to case authorities in support of her argument.
    
13. Ms. Marubu in opposing the motion relies on her affidavit in response sworn and filed on 5 September 2019. (Document 124). In paragraphs 2 and 3 of her affidavit she made reference to issuance of permit TP15-50 Loi TPR project area and TP15-53Dengnagi (or Dengnenge) Simbali TRP project area. Plaintiffs question the legality of issuance of or extension of the permits under sections 78 and 137 of the Forestry Act 1991. That permits TP 15-50 and TP 15-53 have been declared null and void by decision of Justice Anis in proceeding OS 997 0f 2017 delivered in August 2019. Additional arguments were made orally.
    

Ruling

14. Firstly, in their respective affidavits counsels made reference to correspondences that were exchanged for possible discontinuance of proceedings. Plaintiffs were willing to discontinue proceedings conditional upon defendant paying their costs. That was not resolved hence the motion was progressed in court.
    

Law

15. Three grounds were relied on for dismissal of entire proceeding by authority of Order 12, Rule 40 (1) (a), (b) and (c) and Order 8 Rule 27 (1) (a) (b) and (c).
    
16. These are:
    
    1. No reasonable cause of action is disclosed
    2. Proceeding is frivolous or vexatious
    3. Proceeding is an abuse of the process of the court
       
17. The grounds are procedural and they relate to abuse of process of court. In other if in words if any or all three of the above grounds are established court may exercise discretion to dismiss proceeding for abuse of process. (Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC906 (28 March 2008).
    
18. Each of grounds are distinct and should not be lump together. The rational of the Rules is well-articulated in the book “Civil Procedure in the National Court” by Sir Salamo Injia, CJ and Gregory Lay J in their discussions on each specific Rule of NCR. I endorse their discussions of O8 R27 (1)(a)(b) &(c) and O12 R40(1) (a) (b) & (c) at pages 173 & 281. I quote in particular the learned authors discussions at page 281:
    

“Each of the ground under Rule 40 are alternative grounds which should be specifically pleaded in the notice of motion as a distinct ground. They should not be lumped together. The Constitutional right to be heard cannot lightly be set aside;

• The Rules provide a safeguard against abuse of process,
• The object of the Rule is to stop cases which are obviously frivolous or vexatious or unsustainable;
• A claim may be frivolous if it is obvious that it cannot possibly succeed and is bound to fail;
• A claim is vexatious if it is a sham, cannot succeed, and amounts to harassment of the other party;
• To disclose a cause of action there must be pleaded all the facts it will be necessary for a plaintiff to prove in order to support his right to judgment;
• A statement of claim or defence (as the case may be) must therefore clearly plead all legal elements and facts (not evidence) giving rise to the form of action.”
  

19. In my view the onus is on the applicant to demonstrate or establish each of the grounds relied on the balance of probabilities for an order seeking dismissal of proceeding. Otherwise a “plaintiff should not be driven from judgment seat unless the case is unarguable.” (PNG Forest Products Pty Ltd & Another v The State & Genia [1992] PNGLR 85, Anderson Agiru v Electoral Commission (2002) SC687, Hinchcliffe J, Jalina J, Batari J)
    

No reasonable cause of action

20. No arguments were advance in support of this ground. Ms. Marubu’s arguments have been considered.
    
21. I find that there are no ambiguities, or deficiencies in the pleadings, pleadings are not lacking in particulars. The declaratory reliefs sought are clear and precise. Plaintiff’s claim is that the timber permits issued by the first and second defendant to the third defendant contravened sections 78 (3) (4) of Forestry Act and is null and void.
    
22. This ground is dismissed.
    

Frivolous, Vexatious & Abuse of process

23. These three ground will be decided together. The grounds were relied on following the court decision in OS No. 997 of 2017 proceeding.
    
24. Questions: Is this proceeding bound to fail, is the proceeding a sham and cannot succeed and amount to an abuse of process of the court in that relief sought had been judicially determined?
    

Parties in both Proceedings

25. I have had the benefit of reading the judgment of the court by Anis J in OS No. 997 of 2017 which I will rely on in deciding the issues.
    
26. Vanimo Jaya Limited and Papua New Guinea Forest Authority were defendants in OS No. 997 of 2017 and are defendants in the current proceedings except that plaintiffs are different. Dengnenge Resources Development Ltd and Dengnenge Land Group Inc., were plaintiffs in OS No. 997/2017 whereas East New Britain Provincial Government and Wilson Matava in his capacity as Chairman of the Provincial Forest Management Committee are the plaintiff in the current proceeding.
    
27. Nonetheless, the main issue in both proceeding relates to legality of permits issued by PNG Forest Authority through the National Forest Board to Vanimo Jaya Limited (defendants) in regard to two TRP project areas, the is, under permits TP 15-50 of Loi TPR project area and TP 15- 53 of TP15-53 Dengnagi (or Dengnenge) Simbali TRP project area. Pleadings in OS No. 997/2017 alleged that permits issued contravened sections 46, 78 (1), 136 and 137 (1)(b) & (1C) of the Forestry Act while the current proceeding alleged breach of section 78 (3) (4) of the Act.
    
28. The primary or substantive relief sought in both proceedings are basically the same.
    
29. Declaration that the two permits issued for the named TRP project areas are null and void and have no legal effect.
    

Consolidation of Proceedings

30. It was argued by Ms. Dauma that this is court cannot determine the issues already presented before another court of equal jurisdiction. The matters should have been consolidated to avoid duplication at that time.
    
31. That point was argued by the first defendant in OS No.997 of 2017 proceeding in paragraph 4 (lines 6 to 9) at page 4 of judgment. In paragraph 13 at page 6 Anis J was of the view both proceedings should have been consolidated but it was raised pretty late.
    
32. I share the same view with his honour. Considering the pleadings the main issue and primary relief sought in both OS proceedings were same. For convenience either plaintiffs in both proceedings or if not plaintiffs in the current proceeding should have applied for consolidation of proceedings and all their interest heard. The main issue involved compliance of or non-compliance of provisions of the Forestry Act with regard to issuing of timber permits and that reliefs sought though worded differently were similar.
    
33. That said though events have progressed and OS No. 997 of 2017 heard and determined. Basically court had declared that timber permits TP 15-50 and TP 15-53 issued by PNG Forest Authority (Second Defendant) to Vanimo Jaya Ltd (First Defendant) were in breach of section 46, 78, 137 (1) & 137 (1C) of the Forestry Act, hence they were null and void.
    

Current Proceeding

34. Plaintiffs interest in the whole saga arise from section 74 (3) (4) of the Act.
    
35. Section 78 reads:
    

“78. Extension or renewal of timber permit.

(1) The holder of a timber permit may apply to the Board for Extension or renewal of the term of the permit.

(2) An application under Subsection (1) shall –

(a) be in the prescribed from; and

(b) be accompanied by the prescribed fee; and

(c) be lodged with the Managing Director.

(3) The Board shall obtain from the Provincial Forest Management

Committed a report on –

(a) the social acceptability of the holder of the timber permit in the project area; and

(b) the performance of the holder of the timber permit in carrying out the operations authorized by the timber permit; and

(c) the amount of forest resources available in the vicinity of the project area in accordance with sustained yield management practices.

(4) Where the report required under Subsection (3) are satisfactory, the Board shall recommend to the Minister that an extension or renewal of the term be granted to the holder of the timber permit and the Minister may grant such extension or renewal.”

36. The Board is the “National Forest Board” as defined in section 2 of the Act.
    
37. The provision is explicitly clear. Grant of extension or renewal of timber permit to a permit holder is subject to preconditions in Subsection (3) & (4).
    
38. Before an application for extension or renewal is lodged it is mandatory for the National Forest Board to first obtain from the Provincial Forestry Management Committee of which the Provincial Administrator is the Chairman a report of those matters prescribed in sub paragraphs (a) (b) (c).
    
39. If reports are satisfactory, the Forestry Board shall recommend to the Minister for extension or renewal of the term is granted to the permit holder. There upon Minister may grant such extension or renewal. Without the input of the Provincial Forest Management Committee the National Forest Board is precluded from making recommendations to the Minister for extension or renewal of the timber permit.
    
40. Plaintiffs, because of their mandatory obligations imposed by law, would have an interest in the issues regarding granting of extension or renewal of timber permit by the first and second defendants to the third defendant. Plaintiffs are important players in the grant of timber permits in the Province.
    
41. In his judgment Anis J considered sections 46, 78 137 (1) & 137 (1C) of the Act. In his detail discussions of the provisions no discussions were had on the role of the Provincial Forest Management Committee under s 78 (3). In the end result His Honour found the provisions have been breached. However, there was no finding of fact if PNG Forest Authority Board had obtained a report from the Provincial Forest Management Committed based on which recommendations were to be made to the Minister for grant of extension or renewal of timber permit as stipulated under Subsection (4).
    

Primary Relief

42. Relief sought in the current proceedings and OS No.997 of 2017 are somewhat similar. Had proceedings been joined or consolidated plaintiffs in the current proceeding would have been heard of their interest and role they play by s78 (3) of the Act. All parties would have been heard and issues would have been decided. That did not occur and this proceeding is being decided on its own merits. Few issues may arise but two that come clearly to my mind are:
    
    1. Whether Provincial Forest Management Committee has an important role to play for extension or renewal of timber permits?
    2. Is so whether the plaintiffs had their input in providing the necessary report to the PNG Forest Authority Board as required under s 78(3) of the Act?
       
43. These two issues remain unresolved and perhaps other issues that may, pop up at the trial.
    
44. Of the foregoing discussions I hold that the current proceeding is not frivolous or vexatious to amount to an abuse of process of the court. As far as I am concerned plaintiffs as interested party have a substantial interest on issues regarding extension or renewal of timber permits concerning timber or forestry projects in the Province. I will not allow plaintiffs to be easily removed from the litigation seat and denied the constitutional right to be heard.
    
45. Accordingly, application for dismissal is refused.
    
46. The Court orders as follows:
    
    1. Motion is dismissed.
    2. Cost will follow the event.
    3. Applicant/third defendant to pay respondent/plaintiffs’ cost to be taxed if not agreed.
    4. OS No. 285 of 2018 to be properly litigated. Fixture of trial date to be obtained when the matter returns to court in the next civil sitting of National Court at Kokopo.
    5. Time for entry of judgment is abridged to the time of settlement by the Assistant Registrar which shall take place forthwith.

________________________________________________________________
Marubu Lawyers: Lawyer for the Plaintiffs/Respondents
Nelson Lawyers: Lawyer for the Third Defendant/Applicant