Unreported National Court Decisions
N1638
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 415 OF 1996
BETWEEN:
SEAL (PNG) PTY LIMITED - First Plaintiff
And:
MONARCH INVESTMENTS PTY LIMITED - Second Plaintiff
And:
RIVERGOI NO 6 PTY LIMITED - Third Plaintiff
And:
SUPERINTENDENT OF MOTOR TRAFFIC - First Defendant
And:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA - Second Defendant
Waigani
Doherty J
15 August 1997
27 August 1997
12 September 1997
14 September 1997
24 October 1997
Decision
CIVIL - meaning of public street - application for exemption from registration of vehicles.
The 3 plaintiffs sought declarations that (1) the areas in which they logged timber were not “public streets” and (2) declaration that use of particular equipment does not constitute driving a motor vehicle on a public street.
Held:
(1)      “Public street” has no fixed or uniform meaning in statute and its meaning must depend on the context in which it is used.
(2)      “Public street” is not limited to mean highways or roads accessible to motor vehicles and pedestrians it may include: areas where entry is dependent on a fee; a road limited only to invitees of the owner.
(3)      It does not include an area restricted to holders of passes where entry is refused is refused to persons not holding passes.  The area in which the Plaintiffs logged was a public street.
(4)      Exemptions of individual vehicles must first be bought under S. 110 Motor Traffic Act Ch. 243 before the Courts inherent jurisdiction can be invoked.
Counsel:
Mr Frizzell for the Plaintiffs
Mr Rolpagarea for the Defendants
24 October 1997
DOHERTY J:  The 1st, 2nd and 3rd Plaintiffs (hereinafter the plaintiffs) jointly sought declarations by way of an originating summons filed on the 24th September, 1996 that certain Timber Rights Purchase areas and Local Forest Areas in Manus Province were not public streets pursuant to s.1 Motor Vehicle Act Ch 243.
The Solicitor General filed notice of Intention to Defend and the matter was listed for hearing on 15th August 1997.  At the hearing the Plaintiffs sought to amend the proceedings to seek other declarations on the basis that the amended declarations would clarify the issues between the parties and avoid further proceedings.  This was strenuously opposed by Mr Rolpagarea who submitted, inter alia, the matter was an abuse of process as the plaintiffs had not complied with the exemption application procedures in the Motor Traffic Act, that affidavits etc had been filed and effectively the pleadings were closed.  The amendment was allowed and matter stood over for hearing.  By consent submissions were filed.
The amended proceedings sought 22 declarations and an application for an order for exemption from registration of certain vehicles under the Motor Traffic Act.  The declarations are in two broad categories, the original 3, now amended to specify the area in question, each plaintiff seeks a declaration for the area Court is working in.  The first declaration is typically worded:
1.       A declaration that an area known as the West Manus Timber Rights Purchase Area as defined in Timber Permit 18-2 dated 2 May 1988 (“TP 18-2”) is not a public street pursuant to Section 1 of the Motor Traffic Act Ch. 243.
Declarations 4-22 seek declarations that specific machinery being worked at named sites does not constitute driving a motor vehicle upon a public street within the meaning of the Motor Traffic Act.  The vehicles or machinery are described by name and the work they are used in, the 1st Plaintiff seeks 8 declarations for equipment, the 2nd plaintiff 6 declarations and the 3rd plaintiff 4 declarations.  Each declaration relates to a specific job and covers one to 9 pieces of equipment.  Typical examples are declaration 5 and 13:
5.       A declaration that the use by the First Plaintiff of one Caterpillar 930 wheel bucket loader for loading gravel for road construction in TP 18-2 does not constitute driving a motor vehicle upon a public street within the meaning of that phrase in the Motor Traffic Act.
13.     A declaration that the use by the Second Plaintiff of three Caterpillar D6D and nine Komatsu D7OLE to snig out logs from the felling site to the bush log landing in Manus West LFA does not constitute driving a motor vehicle upon a public street within the meaning of that phrase in the Motor Traffic Act.
The order applied for seeks exemption from registration for the vehicles in paragraphs 4 - 21 inclusive under the Motor Traffic Act.
Each of the plaintiffs filed affidavits and submissions.
It is not in dispute that the Plaintiffs operate as logging companies in 3 timber permit areas in Manus Province and the equipment that is the subject of declarations 4-22 is used in those operations.  The operations are not in an urban area, 2 (those of 2nd and 3rd plaintiffs) were approved dealings under the repealed Forestry (Private Dealings) Act Ch 217 and the other (the 1st Plaintiffs operation) under the Forestry Act Ch 216(repealed).
Mr Vincent Wong manages all 3 plaintiff companies.  He filed an affidavit with the original process.  Each Plaintiff has entered into contracts either by way of a Timber Permit and Logging & Marketing Agreement (1st plaintiff in 1988) or a Dealings and Logging and Marketing Agreement (2nd and 3rd plaintiff in 1991) to harvest logs.
The contracts provide, inter alia, a minimum and maximum volume of logs to be harvested and oblige the plaintiff to build and maintain specified infrastructure such as a wharf, rural health clinic, accommodation, sawmills and “construct, upgrade and maintain all roads, bridges and crossings required for its purposes at its own cost” or “construct and upgrade all roads, bridges and crossings required for its purposes wholly at its own cost”.  Roads are also to be build and maintained between specified points.  Each states that the defendant shall not interfere with use of land in the timber permit area by its customary owner.
In course of the plaintiffs operations they use loaders, tractors, graders, jinkers, tracked vehicles, trucks and land cruisers.  Mr Wong says:
6.       Each of Seal, Monarch and Revergoi conduct their logging operations in the same manner that is to say:
(a)      Tracked vehicles make tracks or roads through the virgin forest area; and
(b)      Tracked vehicles haul felled trees to roughly cleared areas known as bush log ponds; and
(c)      Wheel skidders are sometimes used to haul felled logs to the bush log pond areas; and
(d)      Trucks known as jinkers are loaded with logs at the bush log pond areas and those logs are carried down the logging tracks to an export area and wheeled loaders are used to load the jinkers at the bush log ponds and unload the jinkers at the export area log ponds; and
(e)      Graders are used to maintain the logging tracks made by the tracked vehicles and used by the wheeled vehicles; and
(f)      Toyota landcruisers are used to ferry personnel around the timber operations on the logging tracks.
Whilst the plaintiffs are working at harvesting logs the roads bridges and tracks they build become accessible for use to their employees, customary landowners and public servants.  There is no suggestion of any restriction to these groups only and no evidence others are prevented or precluded from using the roads.
The defendant filed affidavits in reply from:
(1)      An Officer of the Dept of Works and Transport saying the registration of the plaintiffs vehicles expired on 15th May 1996 and have no been renewed.  He lists 41 vehicles.  The plaintiffs list 48 vehicles, including the 41 unregistered; and
(2)      Forestry officers who travel to the logging sites as part of their duties supervising logging operations.  Mr Paulo says he travels on roads, tracks and bridges constructed by the contractors (viz the plaintiffs).
Mr Tagamasau, the operations divisional manager for the Papua New Guinea National Forest Authority who has to ensure compliance by all logging companies with their contracts and laws also filed evidence.  He too travels on roads, tracks and bridges built by logging companies or contractors.  He does not refer specifically to the plaintiffs operations.
The 1st Defendant filed an affidavit in reply to the amended proceedings stating his duty to issue permits to motor vehicles on application and payment of prescribed fees and insurance.  He is empowered to exempt vehicles from registration.  He has not received any application from any plaintiff to exempt any of their vehicles within their logging areas from registration.
As a result of these affidavits and the amended proceedings Mr Wong filed a further affidavit stating the Plaintiffs hold public liability insurance which extends to those logging vehicles not insured with Motor Vehicles Insurance Trust and producing photos of the various vehicles the subject of the proceedings some of which have tracks and some wheels and tyres.
Both counsel submit that the facts are not disputed and it is agreed the logging tracks, roads and bridges built by the plaintiffs are used by and accessible to their own employees, public servants and customary owners.  It is also uncontested that the vehicles and equipments used by the plaintiffs come within the definition of a motor vehicle.
The defendants make what I consider a preliminary procedural objection.  They point to the power vested in the 1st defendant to exempt vehicles from registration by s.110 and s.11 of the Motor Traffic Act.  s. 110 (1) empowers the 1st defendant to exempt an owner or driver of a motor vehicle from provisions of registration, the exemption can be for a single trip or a specific period and can specify routes etc set out in s. 110 (2).  S. 11 permits the 1st defendant to exempt primary producers or motor vehicle dealers from registration of a vehicle.
The defendants submit that there is no evidence that any applications for exemption were made to the 1st defendant and the plaintiffs should exhaust their administrative avenues before seeking orders or declarations from the Courts.  They submit failure to do so amounts to an abuse of process.  They made a similar submission when the plaintiff applied to amend the originating proceedings.  They rely on Kekedo v Burns Philip & Others [1988-89] PNGLR 122 and cite at p. 127:
“Parliament has, on the basis of the public policy considerations that I have alluded to, which can be inferred, deliberately enacted a statutory administrative remedial option which although it is not exclusive and does not necessarily oust the supervisory constitutional jurisdiction of the superior courts, as general rule, should be exhausted before recourse is had to the Courts.”
The Supreme Court held that the administrative avenues and procedures should first be exhausted before the National Courts inherent jurisdiction is invoked.
The plaintiff in reply agree they have not made any application under s. 11 Motor Traffic Act Ch 243 and submit they could not as they could not present “a route or routes” for purposes of such a permit.  It is clear on the facts the plaintiffs are not motor vehicle dealers.  I have insufficient evidence to rule on whether they are primary producers.
The plaintiff do not refer at all to s. 110 of Motor Traffic Act and I infer from Mr Wong’s affidavit and that in para 3 of the 1st defendants affidavit that no application has been made for exemption under s. 110 Motor Traffic Act Ch 243.  Instead the plaintiff say to determine whether or not their vehicles are registrable requires an examination of the definition of a public street.
They make no reply on the question of the courts jurisdiction.
I consider there is merit on the submissions of both parties.  The jurisdiction to grant exemption is vested in the 1st defendant.  The plaintiff should first apply to him under s. 110 before they can invoke any court review of the 1st defendants statutory powers.  However the 1st defendant’s statutory powers are to exempt and the exemption must specify the public streets to be traversed.  The wording of s. 110 (2) (c) imposes a mandatory provision to stipulate the public streets.  There is an intention to protect public streets (s. 110 (2) (e) (iii) & (iv), s. 110 (4)).  If there is no public street then s. 110 is not operative.
I consider the court is entitled to consider and rule upon the definition of a public street in s. 1 Motor Traffic Act Ch 243 and rule if it applies to the area logged by the plaintiff.  If it is a public street the plaintiffs are obliged to seek exemption from the 1st defendant before coming to the Court, in this I am bound by the Supreme Court ruling in Kekedo v Burns Philip (supra).
Public street is defined in s. 1 as:
“Public Street:
a street, road, lane, thorough fare, footpath, bridge or place:
(a)      that is open to or used by the public; or
(b)      to which the public have or are permitted to have access, whether on payment of a fee or otherwise.”
I am not referred to any interpretation of this provision in our jurisdiction.
The plaintiff deals with the interpretation at length, the defendant says the issue is whether or not the public is allowed to use or permitted to have access to the roads, bridges, tracks, footpaths constructed by the plaintiffs.
The entry of forest inspectors into the area is provided for by Cl. 10 of the Timber Rights Purchase permit entered into by 1st plaintiff and Cl. 11 of the 2nd plaintiff and Cl. 15.2 of the 3rd plaintiff permits.  I consider this is a contractual and statutory obligation imposed on the plaintiff and entry unto the land by timber inspectors or others designated for purposes of inspection does not constitute entry by members of the public.  I disagree with the submission by the counsel for the defendants at p. 23 of his submission.
The plaintiff refers to numerous overseas precedents where statutory definitions of public road similar or the same as our own were considered and interpreted.
The case law shows a public road can include one whose owners considered was a private road and one where there was no designated highway over it.
The Plaintiff refers to numerous precedents from other jurisdictions, which are not binding but are most informative on the process and interpretation adopted.  A comprehensive review of the case law was made in the case Montgomery v Loney [1959] NILR 171.
A reading of Montgomery v Loney [supra] and the review of case law therein together with definitions e.g. from Australia make it clear that the term “public road” has no fixed or uniform meaning when used in statutes (O’Connor v Synott (1902) 36 ILTR 239).  As stated at p. 191 of Montgomery v Loney [supra] the Courts have not been able to formulate any precise or exhaustive definition which would apply to every case and (at p. 176) the true significance must depend on the context in which the words are used.  Hence the definition in the instant case is one applicable only to the Motor Traffic Act Ch. 243, its uses in other legislation whilst helpful are, not binding.
The Motor Traffic Act and its regulations is a code dealing with all aspects of driving vehicles and safety standards for pedestrians, passengers and drivers.  Provisions range from the criminal offence of driving under the influence of liquor, licensing of vehicles, both public and private of drivers, setting speed limits determining standards of safety and vehicles for pedestrians, vehicle drivers and their passengers.  Hence the laws are not limited only to licensing, there is an emphasis on safety.  Mr Rolpagarea for the defendants, submits that the Court must find for the 1st defendant since the licensing of vehicles is a revenue raising provision for the State and such legislation is to be interpreted in favour of the State.  I do not agree.  The legislation is intended to protect the community and revenue raising measures are intended for that end, not general revenue.
When construing and interpreting the words “public road” must be seen in the context of the protective legislation that it forms part of.  The review of the cases show clearly that “public road” is not limited a sealed highway which any motorist cyclist or pedestrian can travel upon.  Montgomery v Loney [supra] itself dealt with the status of a forecourt to a petrol filling station (where the respondent had been found drunk in charge of a lorry).  The forecourt was only used by motorists who stopped for fuel and occasionally other people buying cigarettes.  In reviewing the cases the Court noted from such precedents as Thomas v Dando [1951] 2 KB 620 where an unpaved area in front of a shop between the shop and the road was held not to be a public road, it was once separated off and was a forecourt.  Similarly an enclosure at the back of an hotel away from the parking area and reached through a gateway was not a public place in Elkins v Cartlidge [1947] 1 All ER 829.  In contrast Bugge v Taylor [1941] 1 KB 198 - the forecourt of an hotel open to the highway at 2 sides was a “road to which the public had access”.
Places not normally open to the public could become “public roads” or “places to which the public had access” e.g. in R v Collinson (1931) 23 Cr. App. R 49 a field used for parking on condition of payment during a horse race meeting; Paterson v Ogilvy [1957] SCJ 42 a private field used for grazing sheep converted into a parking area on payment of a fee during the Highlands Show was “a road or other public place”.  The Court there noted a distinction between a place to which a limited section of the public could enter and one to which there was a general invitation to enter.  It is clear that payment of a fee for entry does not preclude a place being considered “a public place” or “a place to which the public has access” or “a public road”.
This contrast comes out clearly in Buchanan v Motor Insurers Bureau [1955] 1 All ER 607.  In that case people wanting to go into the dock area of the Port of London Authority needed a pass - anyone else would be refused entry.  It was not a public road or a place to which the public had access.  In the instant case the forestry officials visit the area in the course of their employment but there is no suggestion they require any special pass or permission to enter.  In contrast the landmark decision of Harrison v Hill [1932] a road up to farmhouse used only by people invited to the farmhouse or those going there for business was held to be a road to which the public had access.
The case law makes clear that “public road” is not restricted to those roads to which the public have access as of right, or highways that the public have an absolute right of entry.  They can include places restricted to paid entry or business places used only by those going there for a business purpose provided it is not restricted by issue of a permit.
The public must be interpreted as the public at large or a substantial section of them and without any sort of limitation or qualification.  People allowed to enter private property, not as members of the public but in some way personal to themselves (e.g. the person coming to read the Water Board or the Electricity Commission meter) do not change a private area into a public street, or place to which the public has access.  Pass holders or employees gaining access to their work do not make a private area into one accessible by the public.
I apply this to the facts before me.  The Forestry Authority officers visit but as I have noted in course of their employment, they cannot automatically be treated as “public”.  Apparently traditional landowners have access, so do the employees of the Plaintiff.  But there is no evidence of any restriction on others, no barrier, no pass required, no limited access presented.  What appears to distinguish the Plaintiff’s areas are their remoteness and the lack of proper sealed highways.  I can find no restriction that takes that remoteness further and converts it into a private road.  Remoteness and lack of easy facility to access do not per se mean they are not public roads.  Something more restricted is required and I cannot find it on these facts.
Accordingly declarations 1, 2 and 3 are refused.  I agree with Mr Rolpagarea’s submission, as I have already stated, applications for individual exemptions must be made under S. 110 Motor Traffic Act to the 1st defendant.  The remaining declarations are refused.
Costs are awarded to the 1st and 2nd defendants to be taxed if not agreed.
Lawyers for the Plaintiffs: Warner Shand Lawyers
Lawyers for the Defendants: Solicitor General