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Pulie Anu Timber Company Ltd v Barton [2020] PGNC 387; N8589 (15 October 2020)

N8589

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 44 OF 2020 (IECMS)

BETWEEN:
PULIE ANU TIMBER COMPANY LIMITED
Plaintiff

AND:
FAITH BARTON, In her capacity as Chairperson of the National Forest Board and for and on Behalf of the Board.
First Defendant

AND
HON. SOLAN MIRISIM Minister for Forests
Second Defendant

AND
PAPUA NEW GUINEA FOREST AUTHORITY
Third Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

AND
G.R. LOGGING LIMITED
Fifth Defendant

Waigani: Miviri J
2020: 09^th September

PRACTISE & PROCEEDURE – Judicial Review & appeals – Application for Leave – Section 155 (4) Constitution – National Court Rules Order 16 Rules 3, 4, 5 & 6 – Application of Procedure Section 86 Forestry Act 1991– Failure of Compliance – Locus Standi – Delay – Arguable case – Internal process Forestry Act breached by defendants – materials sufficient – balanced discharged –leave granted – cost follow event.

Cases Cited

Innovest Ltd v Pruaitch [2014] PGNC 288; N5949

Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303
Counsel:

T. Tape, for Plaintiff
P. Yom, for Third Defendant
A. Furigi, for Fifth Defendant

RULING

15^th October, 2020

1. MIVIRI, J: The plaintiff seeks leave for judicial review pursuant to Order 16 rules 3 (1), and (2) of the National Court Rules (“the Rules”) by its originating summons filed 1^st September 2020 against the decision of the National Forest Board made by way of a recommendation to the Second defendant to cancel the Timber permit of the Plaintiff/applicant TP No. 14-04, Pulie Anu, in the Kandrian District, West New Britain Province. That decision granted the timber permit to the fifth defendant.
   
2. The originating summons Paragraphs 2, 3 and 4 have been removed with the leave of court after application, they relate to interim restraint and will comprise separate proceedings. They will not be the subject of this proceedings: Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). The plaintiff has supported with Statement pursuant to Order 16 Rule 3 (2) (a) of the Rules, his affidavit verifying together with his affidavit in support all dated the 1^st September 2020. A further affidavit is that of Michael Beno sworn 30^th August 2020 filed the 1^st September 2020.
   
3. These detail that the Plaintiff Pulie Anu Timber Company is registered under the Companies Act as a Company and currently Timber Permit Holder TP No. 14-4. Pulie Anu, Kandrian District, West New Britain Province. A stop work notice dated the 22^nd August 2020 was issued under hand of Paul Avia purportedly signed by shareholders and Directors of the fifth defendant G. R. Logging Limited. Prompting the plaintiff through the chairman Michael Beno who confirmed that form 153 recommendation by the Board to the Minister on Proposed cancellation of Timber Permit signed by the first defendant to the second defendant for the cancellation of permit TP No. 14-04 held by plaintiff to be given to G.R. Logging Limited. It is annexure “G”. Also uncovered was form 147 Cancellation of Timber Permit by Minister signed by the second defendant on the 29^th July 2020 with a form 118A Timber Permit Extension or Renewal of the term. Effectively the First, Second, and Third defendants have cancelled the timber permit TP No. 14-04.
   
4. It is clear from this evidence that the plaintiff has more than sufficient interest in the matter. And is indeed seriously affected by the decision as Timber Permit Holder TP No. 14-4 has been removed from its domain without giving it an opportunity to be heard in its removal. Particularly as to compliance with section 86 (1) (b) as to whether or not it has failed to comply with any of the Conditions of the timber permit. In my view that requires notification as to the way how it has been seen to have failed in the compliance of the conditions under the timber permit. What comprise these conditions and how it has been seen to not comply. And of being given an opportunity to explain its non-compliance of the same. Pulie Anu the applicant has standing or locus standi because it is seriously affected by the decision taken to have its timber permit cancelled. Because with it goes the income that the company generates from the harvest of the timber. It is not just a light matter as it will and has affected the operations of the company fundamentally and therefore compliance with the provisions of the Forestry Act make it underlying reflecting her locus standi in it. Particularly section 86 (3) where the managing director of the National Forest Service is to give notice as here where it is intended to cancel a timber permit and the reasons as to why cancellation under section 86 (3) (a). And the requirement of section 86 (3) (b) within 14 days of being served to make representation as to why the timber permit should not be cancelled. And by section 86 (4) an opportunity should be accorded to Pulie Anu Timber Company to be heard. If these have been complied and the Minister has considered all can he cancel the timber permit. Because any reason will be conveyed in writing to the National Forestry Board who will consider it after which it will make recommendations based to the Minister who shall consider and where appropriate shall cancel the timber permit.
   
5. It is clear the evidence led has not demonstrated compliance by the defendants and therefore the balance tilts in favour that the plaintiff has locus standi as it has been seriously affected by the actions of the defendants. This ground is made out in favour of the plaintiff.
   
6. There is no undue delay in bringing forth this action for leave satisfying order 16 rule 4 of the National Court Rules. This proceeding was filed 1^st September 2020 against the decision of the National Forest Board made by way of a recommendation to the Second defendant to cancel the Timber permit of the Plaintiff/applicant TP No. 14-04, Pulie Anu, Kandrian District, West New Britain Province on the 29^th July 2020. It is just a month after that decision effecting and there is no inordinate delay in accordance with Order 16 rule 4 of the Rules. This ground is satisfied on the required balance in favour of the plaintiff.
   
7. There is an arguable case prima facie made out on the balance in favour of the plaintiff. Because it neither challenges the process that there were no investigations nor was it given the right to be heard in its defence. The processes under the Forestry Act were not followed by the Defendants respectfully. There was therefore prima facie error of law to cancel the timber permit TP No. 14-04, held by Pulie Anu land Owner Company for the People of Pulie Anu. This ground has been satisfied prima facie.
   
8. Section 86 Forestry Act 1991 shows a process in which the permit as is the case here is not cancelled without the permit holder being given an opportunity to be heard as to why his permit should not be renewed. That is the internal process binding the plaintiff with the defendants and which compliance has been lacking in the discretion of the defendants. The plaintiff has a cause of action for its non-compliance and satisfies that internal process has been exhausted and therefore the turn here is with jurisdiction not without. This ground is satisfied on the required balance and satisfies prima facie for grant.
   
9. The grounds for the grant of Leave has been tilted in favour of grant given all set out above considered in the light of Asakusa v Kumbakor, Minster for Housing [2008] PGNC 39; N3303 (10 April 2008). Accordingly, leave is granted to the plaintiff to judicially review the actions of the defendants in the cancellation of his timber permit number TP No. 14-04.
   
10. The orders of the court are.
    
    • (1) The application of the plaintiff is granted.
    • (2) Leave is granted for judicial review of the decision of the defendants in cancelling the timber permit TP No. 14-04 held by the plaintiff.
    • (3) Costs will follow the event forthwith.

Orders Accordingly.

__________________________________________________________________

Kandawalyn Lawyers: Lawyer for the Plaintiff Applicant

Office of the Solicitor General: Lawyer for the Third Defendants

Furigi Lawyers: Lawyers for the Fifth Defendants