Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Belford v Neville [1993] PGNC 18; N1172 (18 May 1993)

N1172

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

W.S. 183 of 1993

BETWEEN:

JAMES BELFORD
Plaintiff

AND:

TIMOTHY NEVILLE
Defendant

WAIGANI: SHEEHAN, J
1993: 18 MAY

Forestry Act - functions of Forest Authority - Minister to consult Authority on guidelines for industry - allegation of non - consultation - Ex parte application for temporary injunctive relief.

Mr. E. Anderson for the Plaintiff

DECISION

This ex parte application for interim orders relates to issues arising in the formulation policy for the regulation of and future conduct of the forestry in Papua New Guinea.

Under the Forestry Act 1991 the Papua New Guinea Forest Authority is constituted and given wide ranging duties and responsibilities to oversee "the management, development and protection of the Nations forest resources..." in Papua New Guinea. The National Forest Board "manages the affairs and exercises the powers of the Authority".

By s 47 of the Act the Forest Authority is required to cause to be drawn up a National Forest Plan to provide a detailed statement of how the National and Provincial Governments intend to "manage and utilize the country's forest resources" (s 47(i)). That plan is to consist of, inter alia, "National Forestry Development Guidelines prepared by the minister (of Forests) in consultation with the Board and endorsed by the National Executive Council" s 47(2)(e)(i) (emphasis added).

In the application before the Court, claim is made and supported by affidavit that it is the Minister's intention to bypass the Authority, and not to properly consult with it. While it is true that on 30th April 1993, on very short notice (2 days) the Minister placed before the National Forest Board part only of his proposed National Forestry Development Guidelines no time was given for serious consideration of the part disclosed and the Minister has since refused to disclose other essential parts of it. He has also refused further opportunity for the Board to give appropriate consideration of the whole proposal. It is claimed that the position adopted by the Minister in bypassing the provisions of Forestry Act precludes the Authority from exercising its statutory function and can and will have serious consequences.

This action has been commenced by the Plaintiff both as an individual claiming a personal interest, as a member of the Forestry Industry, a member of the Forestry Industry Association and as a sitting member of the National Forest Board.

In answer to the Courts concern that the Board itself had taken no action, the Plaintiff pointed put that while the Board had met at short notice on the 30th April to hear the Minister's proposals it was bound by its own procedures in the calling of a meeting to formally consider its position in this matter. Fourteen days notice must be given and that had left it too little time to act. The Plaintiff on behalf of the Forestry Industry Association has in fact called for such a meeting to take place as soon as may be and that Association also supports the Plaintiff in this application.

He also pointed out that at the meeting of 30th April the Board in fact kept no minutes and passed no resolutions concerning the incomplete draft produced before it. He also advised that notice of the Minister's intention to proceed to lay the Guidelines before the NEC without further consultation, was only confirmed yesterday hence this urgent application.

The essential reasons for hearing an application ex parte is because of an alleged urgency to protect an interest. But any application for restraining orders pursuant to such an application must follow strict rules. Those rules provide that an applicant must establish that he has sufficient interest - a legitimate interest to protect. He must show that he has an arguable case, not necessarily an indisputable right but a claim that should be heard. If those issues are established the Court must then be satisfied that the balance of convenience lies in granting orders in restraint (in this case maintaining the status quo prior to the supposed consultation) rather than taking no action and letting matters proceed to a conclusion. That raises the possibility that if the Plaintiff were to succeed at the hearing of this action the Court might then be called on to strike down the Defendants initiatives as being contrary to law.

The Court when hearing an ex parte application always keeps in mind that it is hearing one side only. It must not and does not - make any final decision on the issues. It acts, if at all, only if convinced, that on the information before it there is an urgent need to make a temporary order to maintain the status quo.

I am satisfied that even though the National Forest Boards position may still be equivocal, - i.e. it might or might not subsequently approve the Minister's incomplete draft. It might or it might not receive subsequent information from the Minister, consider, it and accept it. But whatever subsequently occurs, the Plaintiff has I believe, at least at this stage, the status as a member of the Forestry Industry Association and the National Forest Board to seek that the provisions of the Forestry Act are complied with.

As to whether there is an arguable case; the assessment to be made by the Court in ex parte motions can only be made from the nature of the claim lodged and the evidence before the Court.

To my mind the essential elements of this claim at this stage on the information before the Court are, the contention that there has not been proper consultation with the National Forest Board; that only a partial disclosure of the proposed Guidelines have been made to the Board; a contention that is confirmed in part by the advice to the members of the Forest Board dated 28 April 1993.

That reads:

"Certain sections of the Guidelines have been deleted has they contain sensitive political initiatives which the Minister wishes to announce in Parliament.......

Until the Minister and the NEC have approved them (Guidelines) there should not be regarded as a public document and kept confidential".

The Guidelines forwarded to the Board members and tabled at the meeting of the 30th April 1993 has a six (6) page section (relating to forest revenue) missing.

There is also an assertion that the Minister intends to proceed on these partially disclosed Guidelines without further disclosure to the Board and without further consultation. That seems to me to constitute at least an arguable case on the part of the Plaintiff that the statutory procedures are not being followed and the interests of Authority are to be ignored.

The remaining issue is whether on the balance of convenience, injunctive orders should issue. The Court here must always bear in mind the nature of the interest the Plaintiff claiming ex parte seeks to protect. It must also be reasonably sure that the orders sought will indeed hold the status quo and are necessary to protect the legitimate interests of the applicant till a proper inter-party determination of the dispute can be made.

I believe that the balance does lie in granting temporary orders at this stage. The Board and its members have a statutory function protected by law. Of course any restraints on the Minister preventing him from proceeding with conduct of his duty under the Forestry Act to be occasioned by such orders must not be oppressive. They must be of as short duration as possible. The status quo should only be held long enough to enable the Minister to respond to these proceedings.

Accordingly there will be orders that:

1. An injunction is issued restraining the defendant from placing any proposed National Forestry Development Guidelines not fully disclosed to nor considered by the National Forest Board pursuant to Section 47(2)(a)(i) of the Forestry Act, 1991 before the National Executive Council for endorsement pursuant to s 47 of the Act until Thursday 20th May 1993.
   
2. That Court may be approached at any time prior to that by any party.
   
3. That time is abridged.
   

------------------------------------------------------------------------------------------------------------

Lawyer for the Plaintiff: Gadens Ridgeway