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GR Logging Ltd v Pulie Anu Timber Company Ltd [2018] PGNC 498; N7600 (26 April 2018)

N7600

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 487 OF 2017

BETWEEN:
G. R. LOGGING LIMITED
Plaintiff

AND:
PULIE ANU TIMBER
COMPANY LIMITED
First Defendant

AND:
MATUFI (PNG) LIMITED
Second Defendant

Waigani: Hartshorn J
2017: 7^th September
2018: 26^th April

Application to dismiss or stay the proceeding and for security for costs

Cases cited:

John Hiwi v. Rendle Rimua (2015) SC1460
Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317

Counsel:

Ms. C. Copland, for the Plaintiff
Mr. S. Phannaphen, for the First Defendant
Mr. J. Lome, for the Second Defendant

26^th April, 2018

1. HARTSHORN J: This is a decision on a contested application to dismiss the proceeding for being statute barred or to stay the proceeding until outstanding costs are paid by the plaintiff or for the plaintiff to give security for costs. It is brought by the second defendant and is supported by the first defendant.

Background

2. The plaintiff substantively seeks declaratory relief to the effect that a Deed of Assignment of a Timber Permit and any right in the Deed concerning the Pulie Anu Local Forest Area in Kandrian District, West New Britain Province, is null and void and of no force or effect. A permanent injunction is also sought.

This application
Dismissal

3. The second defendant submits that the proceeding is statute barred pursuant to s. 16(1) Frauds and Limitations Act 1988 as the plaintiff’s cause of action is based upon a Deed of Assignment executed on 17^th May 2010.

4. Putting aside, amongst others, issues as to what the plaintiff’s cause of action is and when it arose, the basis of the second defendant’s complaint is a Deed of Assignment.

5. The Supreme Court in John Hiwi v. Rendle Rimua (2015) SC1460 at [14] said that:

“We consider that any contract in the form of a deed is a specialty.”

6. Section 16(3) Frauds and Limitations Act 1988 relevantly provides that:

“...., an action upon a specialty shall not be brought after the expiration of twelve years commencing on the date when the cause of action accrued.”

7. Given this, there is clearly an argument that the Deed of Assignment dated 17^th May 2010 is not statute barred, by virtue of s. 16(3) Frauds and Limitations Act 1988. Consequently, the relief sought in paragraph (a) of the second defendant’s notice of motion is refused.

Stay

8. The second defendant submits that the plaintiff has filed three different proceedings challenging the same Deed in the National Court. One has been dismissed and two have been withdrawn. In these three proceedings, costs have been ordered against the plaintiff. Those costs are pending taxation and are yet to be settled. The plaintiff seeks a stay of this proceeding until the costs in the said three proceedings are paid.

9. The plaintiff relies upon Order 12 Rule 1 National Court Rules and s.155(4) Constitution. This Rule and Section should not be relied upon where there is a Rule that specifically gives jurisdiction to the court to grant the relief sought. Order 4 Rule 49(8) National Court Rules requires that all motions must contain a concise reference to the court’s jurisdiction to grant the orders being sought. In this instance the specific rules that give the court jurisdiction are Order 8 Rule 67 and Order 12 Rule 7 National Court Rules. Here though, those specific Rules have not been relied upon.

10. Further as to the reliance upon s. 155 (4) Constitution, I need do no more than reproduce the following passage from Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317, a decision of Injia DCJ (as he then was) in which in respect of s. 155 (4) Constitution, His Honour said that it:

“........is not the source of primary jurisdictional power. .........

Section 155 (4) confers jurisdiction on the Court to issue facilitative orders in aid of enforcement of a primary right conferred by law, whether such right be conferred by statute or subordinate legislation enacted under the enabling statute: SCR No. 2 of 1981 [1982] PNGLR 150 at 154, Uma More v UPNG [1985] PNGLR 401 at 402.”

11. Consequently, for the above reasons, the relief sought in paragraph (b) of the second defendant’s notice of motion is refused.

Security for costs

12. The second defendant’s application for security for costs suffers from the same inadequacies as its application for a stay. Order 14 Rule 25 National Court Rules should have been relied upon, but it has not been. Consequently the relief sought in paragraph (c) of the second defendant’s notice of motion is refused.

Orders

13. The formal orders of the Court are:

a) All of the relief sought in the notice of motion of the second defendant filed 27^th June 2017 is refused;

b) The second defendant shall pay the plaintiff’s costs of and incidental to the said notice of motion;

c) Time is abridged.
___________________________________________________________
Simpson Lawyers: Lawyers for the Plaintiff
Guardian Legal Services: Lawyers for the First Defendant
Jeffersons Lawyers: Lawyers for the Second Defendant