N9171

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 114 OF 2020 (COMM)

BETWEEN
G.R. LOGGING LIMITED
First Plaintiff

AND
 BENSON APINANUNG, MICHAEL AVOLIO,
WILLIAM BEKO, MICHALE BENO, 
CLEMENT GLENGIO, DAVID MALAI,
MICHAEL SISIL, ANDREW TAKMAP,
ALPHONSE YAKIO, CLEMENT KAPAN
Second Plaintiffs

-V-                                                                                                                                                                                                                                                                                                                                                                                                                                                   

GREEN WOOD PNG LIMITED
Defendant

Waigani:  Rei, AJ
         2021: 14th January

DECLARATIONS – notice of motion seeking interim injunction to restrain the Defendant from carrying out any logging operations on the project site described as LFA Timber Permit No. 14-04 until further order – notice of motion also seeks declaratory orders – orders in the plaintiffs’ notice of motion granted – interim injunctive orders granted to the Plaintiffs according to the terms stated in the notice of motion

Cases Cited:
Papua New Guinea Cases

Robinson v National Airline Commission (1983) PNGLR 476
Ramu Nico Management (MCC) Limited Tarsi (2010) SC 1075
Chief Collector of Taxes Bougainville Copper Limited (2007) SC853
Overseas Cases

Craft Nugini Pty Ltd v Allan Matt [1997] ASC 525

Counsel:

Mr. Furigi & Mr. T Tape, for the Plaintiffs
Mr. M. Muga, for the Defendant

RULING

14th January, 2021

1.	REI AJ: The Plaintiff filed proceeding by way of an Originating Summons on the 6th day of January 2021 seeking declarations amongst others the proposed logging and marketing agreement (LMA) entered into between GR Logging Limited and Green Wood PNG Limited on the 14th November 2016 by the persons whose names appear on the Originating Summons are not Directors of GR Logging Limited therefore they did not have the standing to enter into the said LMA.

2.	The Plaintiff also filed a Notice of Motion on the 6th of January 2021 together with the supporting Affidavit of Michael Beno of the Plaintiff company also dated 6th January 2021 seeking interim injunction to restrain the Defendant from carrying out any logging operations on the project site described as LFA Timber Permit No. 14-04 until further order.

3.	The Notice of Motion of the Plaintiff was initially fixed for hearing on the 11th of January 2021 before his Honour Hartshorn J as an urgent ex parte application.

4.	His Honour adjourned the application to the 12th January 2021 for hearing by myself.

5.	When the matter came up for hearing on 12th January 2021, Counsel for the Defendant Mr. Meli Muga raised objections involving representations of the 1st and 2nd Plaintiffs by Mr. Furigi.

6.	It was then adjourned to the 13th of January 2021 so that Counsels for the 1st and 2nd Plaintiff, Mr. Furigi and Mr. Tape file relevant notices identifying which parties they represent in the application.  This being done, the Notice of Motion was heard on 13th January 2021.

7.	The Notice of Motion filed by the Plaintiffs seeks ex parte interim order to maintain the status quo until further order.

8.	Counsels who appeared to address the Court were Mr. Furigi for the 1st Plaintiff and some of the 2nd Plaintiffs.  Mr Tape represented two of the 2nd Plaintiffs; Michael Beno, Clement Kepan and Mr. Muga represented the Defendant.

9.	Prior to counsels making submissions, I asked whether Mr. Furigi and Mr Tape oppose the appearance of Mr. Muga as counsel for the Defendant since the matter involves an urgent ex parte order.  Both counsels indicated they did not oppose his appearance.

10.	I then advised counsels that as it is an ex parte application, only the lawyers for the Plaintiffs are to be heard.  Mr. Muga nevertheless did make submissions.  Hence the following ruling.

11.	In any ex parte application, the Defendant shall not be allowed to address the court as the National Court Rule require under Order 4 Rule 49(ii)(e) that should interim order(s) be granted, the matter returns to court on a fixed date to allow the Defendant to address the court as to whether the interim injunctive order continues to flow until further order and also an order that the Defendant or a party affected by the interim ex parte order is at liberty to apply upon giving notice.  Order 4 Rule 49(ii)(e) reads:

“Upon hearing the application, the Judge may make orders including:-

(i)	An order dispensing with requirements of service;
(ii)	An interim order which requirements of service;
(iii)	Service of the Order the Originating Process, Motion, Supporting Affidavit.  Undertaking as to Damages (where appropriate) and other documents filed in the proceedings, on or by a specified date;
(iv)	Giving “liberty to apply”;
(v)	Giving a specific return date, when the interim orders became returnable before the Motions Judge;
(vi)	Affidavit of service of the documents referred to in above”.

12.	This to my mind means that once an order is granted and; if the Defendant has serious issues to be raised regarding the interim ex parte order, the Defendant must file an application giving due notice to the Plaintiff of his objection so that the Plaintiff has reasonable opportunity to prepare and respond.  The Plaintiff should not be taken by surprise at the stage of ex parte application and dragged into technical arguments involved in the matter for which notice was not previously given.

13.	The purpose of an ex parte interim application involving the grant of interim injunction for the court to consider whether there is an arguable case which is likely to succeed at the trial.  The onus is on the Plaintiff to put all facts before the court to enable the grant or refusal of an interim order until the matter returns on a fixed date: Robinson v National Airline Commission (1983) PNGLR 476, Ramu Nico Management (MCC) Limited Tarsi (2010)SC 1075 , and Craft Nugini Pty Ltd verses Allan Matt [1997] ASC 525 as Chief Collector of Taxes Bougainville Copper Limited (2007)SC853.

14.	All other arguments including the arguments presented by the Defendant in this instance should be left to the application proper.  The Defendant will have his day in court to raise these issues after giving proper notice to the Plaintiffs by way of a Notice of Motion as to whether the interim injunctive order should be continued or dissolved.

15.	It is my view the submissions raised by learned counsel Mr. Muga be left to that stage.

16.	It is also my view that there are serious issues to be tried in the matter as a LMA is alleged to have been executed by persons who are not the proper officers, servants or agents of the plaintiff company.

17.	These issues involve amongst others, the engagement of a developer by the people who held themselves out as agents of the Plaintiffs who have been previously removed as directors of the 1st Plaintiff by an order of the National Court dated the 24th of April 2020.

18.	Furthermore, whether those people have express authority of the resource owners to act for and on their behalf in all matters involving the project, including the execution of the LMA.

19.	In my view, damages will not adequately compensate the resource owners as the very LMA under which it was engaged is under serious threat.

20.	While I appreciate the contentious matters raised by Mr. Muga of counsel for the Defendant, I think it is best to leave them to the time when this matter returns for hearing proper after the Defendant herein files an application giving prior notice of it to do so.

21.	With respect, I grant the interim orders as sought by the Plaintiffs in the following terms:-  

1.	That until further order, the Defendant by itself or its servants, or agents or associates or any other person(s) acting on their authority be restrained from:-

(a)	Until further Orders the Defendant by itself or its servants, agents and/or associates or any other persons acting on their authority whosoever be restrained from:-

i.	Moving into and occupying the Pulie Anu LFA Timber Permit No. 14-04 project area and to conduct any logging operations.
ii.	Issuing or applying any threats, intimidation, force or any other unlawful means whatsoever upon the First and Second Plaintiffs their servants, agents and or associates including but not limited to Pulie Anu Timber Company Limited and Cakara Alam (PNG) Limited.

2.	That the Defendant is at liberty to apply by way of filing a notice of motion seeking appropriate order(s).

3.	That the matter returns on the 21st January 2021 for further hearing

4.	That time is abridged. 

Ordered accordingly.
_______________________________________________________________
Mr. Furigi and Mr. Tape:	Lawyer for the First & Second Plaintiffs	
Mr. Meli Muga:  Lawyer for the Defendant