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Timbers (PNG) Ltd v Kambori [2010] PGNC 201; N4282 (2 June 2010)

N4282

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

OS 804 OF 2010

BETWEEN:

TIMBERS (PNG) LIMITED
Plaintiff

AND:

VALENTINE KAMBORI, WARI IAMO, BONNIE NINAI, AQUILA TUBAI, PHILIP UPEGUTO, KANAWI POURI, ANDA KIVI and ANTHONY HONEY as Chairman and Members of the NATIONAL FOREST BOARD
First Defendants

AND:

PAPUA NEW GUINEA FOREST AUTHORITY
Second Defendant

AND:

JOSEPH DORPAR, PASTOR TIMON DULA, AGATHA POKATAU, PETER MORRIS and KOLA KAPAK as Chairman and Members of the MADANG PROVINCIAL FOREST MANAGEMENT COMMITTEE
Third Defendants

AND:

MADANG TIMBERS LIMITED
Fourth Defendant

Waigani: Hartshorn J.
2010: 21st April,
: 2nd June

Application to Dismiss Proceeding

Facts:

The plaintiff, Timbers (PNG) Ltd (Timbers PNG), was granted a timber permit. The Supreme Court quashed the decision to grant the timber permit in a successful appeal brought by the fourth defendant, Madang Timbers Ltd (Madang Timbers).Timbers PNG then commenced this proceeding seeking declaratory and injunctive relief. Madang Timbers now applies to dismiss this proceeding on the ground that it is frivolous, vexatious and an abuse of process of the court pursuant to Order 12 Rule 40 National Court Rules and the inherent jurisdiction of this Court.

Held:

This proceeding is bound to fail if it was allowed to proceed to a substantive hearing, as this court will not and should not make an Order that conflicts with an existing Order of the Supreme Court and which would have the effect of overturning that Order. The proceeding is dismissed.

Cases Cited:
Papua New Guinea Cases

PNG Forest Products Pty Ltd v. The State [1992] PNGLR 85
Ronny Wabia v. BP Exploration Operating Co Ltd [1998] PNGLR 8
Kiee Toap v. The State (2004) N2731, N2766
Lerro v. Stagg (2006) N3050

Overseas cases

Port of Melbourne Authority v. Anshun Proprietary Limited [1981] HCA 45; (1981) 147 CLR 589
Tampion v. Anderson [1973] VicRp 32; [1973] VR 321
Tanning Research Laboratories Inc. v. O'Brien (1990) 169 CLR 332

Counsel:

Mr. I. R. Molloy and Mr. J. L. Shepherd, for the Plaintiff
Mr. R. Bradshaw, for the Fourth Defendant

2nd June, 2010

1. HARTSHORN J: The plaintiff, Timbers (PNG) Ltd (Timbers PNG), was granted a timber permit. The Supreme Court quashed the decision to grant the timber permit in a successful appeal brought by the fourth defendant, Madang Timbers Ltd (Madang Timbers).

2. Timbers PNG then commenced this proceeding seeking declaratory and injunctive relief for amongst others, that:

a) the decision and direction of the National Forest Board (NFB) that the Madang Provincial Forest Management Committee (MPFMC) enter into further negotiations with Timbers PNG, Madang Timbers and another proponent in respect of a proposed project agreement for Middle Ramu Block One FMA Project (Middle Ramu Project) was null and void;

b) further or alternatively, the MPFMC resolution and submission to the NFB of a final draft of a project agreement with Madang Timbers for the Middle Ramu Project was null and void;

c) an injunction restraining members of the NFB;

i) from considering a draft project agreement with Madang Timbers for the Middle Ramu Project;

ii) from executing an agreement on behalf of the Forest Authority with Madang Timbers in respect of the Middle Ramu Project;

iii) from recommending that the Minister for Forests issue a timber permit to Madang Timbers in respect of the Middle Ramu Project.

3. Madang Timbers now applies to dismiss this proceeding on the ground that it is frivolous, vexatious and an abuse of process of the court pursuant to Order 12 Rule 40 National Court Rules and the inherent jurisdiction of this Court as:

a) the injunction sought by Timbers PNG seeks to restrain the NFB from doing what the Supreme Court required it to do in paragraph 7 of its Order made on 27th November 2009 (paragraph 7 Order). This is contrary to s.155 (2) Constitution. Decisions of the Supreme Court cannot be overturned, reversed or displaced by an Order of the National Court.

b) the proceeding is an abuse of process as the subject decisions were part of the statutory process leading to the decision of the NFB that was quashed by the Supreme Court. Timbers PNG is estopped from now raising any issues concerning the 2 subject decisions as they should have been raised in the previous National and Supreme Court proceedings.

c) the proceeding is an abuse of process as amongst others, the grounds for alleging error of law and breach of natural justice are not pleaded or stated, the submission that NFB would have acted differently if it had understood the law is speculative and Timbers PNG is now seeking to achieve what it failed to achieve before the Supreme Court.

4. Timbers PNG opposes the application to dismiss. It submits that it is only in the clearest of cases that the court will summarily dismiss a proceeding and that this case does not fall into that category as amongst others:

a) it was not apparent that the NFB had acted on an erroneous understanding of the law until the Supreme Court made its decision and so there was no reason or obligation to raise this issue before the Supreme Court decision was given;

b) there is no procedure permitting a respondent in judicial review proceedings to make a cross claim;

c) the issues now raised by Madang Timbers are distinct from and not in conflict with the Supreme Court decision.

Effect on Supreme Court Order if injunction granted

5. I consider first whether the paragraph 7 Order would be affected if the injunction sought by Timbers PNG is granted. The injunction sought is set out in 2 (c) above.

6. The paragraph 7 Order is:

"Declare that the First Respondent (members of the NFB) shall consider the final draft project management agreement between The Papua New Guinea Forest Authority and Madang Timbers Ltd submitted by the Madang Provincial Forest Management Committee in respect of the Middle Ramu Block 1 Forest Management Area (being the document a copy of which is annexure B to the affidavit of Peter Hii sworn 12 September 2007) in accordance with section 72 (1) of the Forestry Act 1991."

7. From a perusal of the injunction sought and the paragraph 7 Order, I am satisfied that if the injunction was granted it would prevent the members of the NFB from complying with the paragraph 7 Order. This would result in a conflict between a Supreme Court Order and an Order of this court. The Supreme Court is the final court of appeal and review: s. 155 (2) Constitution. Its Orders cannot be overturned, reversed, set aside or displaced by an Order of this court: Schedule 2.9 Constitution.

8. If the injunction sought was granted, the effect would be the same as if the paragraph 7 Order had been overturned as the members of the NFB would not be able to comply with it.

9. Further, a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment. In Port of Melbourne Authority v. Anshun Proprietary Limited [1981] HCA 45; (1981) 147 CLR 589, a decision of the High Court of Australia, in the majority judgment it was said at pp 603-604 that:

"By "conflicting" judgments we include judgments which are contradictory, though they may not be pronounced on the same cause of action. It is enough that they appear to declare rights which are inconsistent in respect of the same transaction."

10. This is apparent in the later decision of the High Court of Australia in Tanning Research Laboratories Inc. v. O'Brien (1990) 169 CLR 332, that was relied upon by counsel for Timbers PNG. At p 346 the Court said:

"A plaintiff who has an unadjudicated cause of action which can be enforced only in fresh proceedings (Dudedu v. Yiboe [1961] 1 WLR 1040, at 1046) cannot be precluded from taking fresh proceedings merely because he could have and, if you will, should have counterclaimed on that cause of action in a forum chosen by the opposite party in proceedings in which the opposite party sued him. We do not read the majority judgment in Port of Melbourne Authority v Anshun Pty Ltd as holding the contrary, except in the case where the relief claimed in the second proceeding is inconsistent with the judgment in the first: see especially at 599-601. That is not the present case." (underlining mine)

11. Given the above, I am satisfied that this proceeding is bound to fail if it was allowed to proceed to a substantive hearing, as this court will not and should not make an Order that conflicts with an existing Order of the Supreme Court and which would have the effect of overturning that Order. In addition, on the authority of Anshun (supra) and Tanning (supra), Timbers PNG is estopped from bringing a matter which if it succeeds, would result in a judgment that is in conflict or is inconsistent with an earlier judgment.

12. In applications under Order 12 Rule 40 National Court Rules, proceedings have been held to be frivolous if the plaintiff would be bound to fail if the matter went to trial: Ronny Wabia v. BP Exploration Operating Co Ltd [1998] PNGLR 8, Kiee Toap v. The State (2004) N2731, N2766, Lerro v. Stagg (2006) N 3050 and Tampion v. Anderson [1973] VicRp 32; [1973] VR 321.

13. The power to dismiss proceedings which are amongst others, frivolous, is discretionary under Order 12 Rule 40. The court also has the inherent power to dismiss proceedings which are an abuse of its process: PNG Forest Products Pty Ltd v. The State [1992] PNGLR 85.

14. As I have found that the claim of Timbers PNG, if it proceeded to trial would be bound to fail and is frivolous, I order that it be dismissed.

15. Given the above it is not necessary for me to consider the other submissions of Counsel.

Orders

16. a) The proceeding is dismissed.

b) the plaintiff shall pay the costs of and incidental to the proceeding including the notice of motion of the fourth defendant filed on 9th March 2010 to the fourth defendant.

___________________________________________________
Blake Dawson: Lawyers for the Plaintiff
Young Wadau Lawyers: Lawyers for the Third Defendant
Bradshaw Lawyers: Lawyers for the Fourth Defendant