N8643
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 449 OF 2019

BETWEEN:
DOUBLE FIELD (PNG) LIMITED
Plaintiff

AND:
HONOURABLE SOLAN MIRISIM, MINISTER FOR FORESTS
First Defendant

AND:
PAUL SAI’I AS CHAIRMAN OF NATIONAL FOREST BOARD
Second Defendant

AND:
PAPUA NEW GUINEA FOREST AUTHORITY
Third Defendant

Waigani: Miviri J
2020: 22nd September, 11th November

PRACTICE & PROCEDURE – Judicial Review & appeals – Motion to dismiss proceedings – Order 16 13 (13) (2) (a) (b) NCR – Materials filed do not warrant –Balance not discharged – dismissal refused – Costs in cause.

PRACTISE & PROCEEDURE – Judicial Review & appeals – Motion for Leave to amend Originating summons & Statement in support – Order 8 Rule 50 (1)  NCR – Materials filed warrant – Amendment to determine real issues raised –Balance discharged – Leave granted to amend as pleaded –  Costs in cause.

Cases Cited:

Telikom PNG Ltd v Independent Consumer & Competition Commission [2008] PGSC 5; SC906 
Bore v Malaisa [2013] PGNC 93; N5274 
Takori v Yagari [2008] PGSC 3; SC905 
Rimua v Ekanda [2011] PGSC 12; SC1094
New Guinea Company Ltd v Thomason [1975] PNGLR 454

Counsel:

I. Sheppard, for Plaintiff /Applicant
S. Sakarias, for Defendants

					RULING 
 11th November, 2020
1.	MIVIRI, J: This is the ruling of the court on two motions filed firstly of the 1st June 2020 pursuant to Order 8 Rule 50 (1) of the National Court Rules (NCR) that leave be granted to the plaintiff to amend the statement filed pursuant to Order 16 Rule 5 and the Originating summons filed on the 3rd of July 2019 in the form of the Amended Statement and amended originating summons annexure to the affidavit of Hii Yii Luk sworn 20th March 2020.

2.	Secondly Notice of motion of the 5th June 2020 pursuant to Order 16 Rule 13 (13) 2 (a) and (b) of the Judicial Review (Amendment) Rules 2005 the proceedings be summarily dismissed for want of prosecution. I will deal with this motion first as its determination will pave way if it is upheld no need to deal with the amendments sought. But if dismissed than to deal with the motion by the Plaintiff to amend his statement and originating summons.

3.	The motion to dismiss is supported by the affidavit of Robert Leo sworn 2nd April 2020 filed 05th June 2020. He is the principal of the firm Leo Lawyers and acts for the defendants. He made enquiries and noted from the court file the following documents letter of the 2nd July 2019 by Ashurst Lawyers to registry requesting an urgent hearing date annexure “A” to his affidavit. Index to the court file OS 449 of 2019 annexure “B”, Copy of the Registrar’s referral Form annexure “C”, the originating summons filed the 03rd July 2019, the statement pursuant to order 16 rule 3 (2) (a) of the National Court Rules filed the 03rd July 2019 by Ashurst Lawyers, including notice of motion of the 03rd July 2019, notice of application for Judicial review to the Secretary for Justice by the plaintiff also of the 03rd July 2019, undertaking as to damages dated the same. 

4.	An affidavit sworn the 2nd of July 2019 filed 03rd July 2019 by one Hii Yii Luk including for service deposed by Rocky Madi sworn and filed the 08th July 2019, a second one of this witness sworn the 10th July 2019 and a third one of this witness filed also of the same date. And a further affidavit yet again of this witness sworn and filed the 11th July 2019. A Court Order dated 11th July 2019 which is an interim restraining order taken out by the plaintiff restraining the defendants their servants or agents from granting or attempting to grant a forest Clearing Authority, timber permit or licence with respect to the Maimai Large Scale Integrated Agro Forestry Project to any other party apart from the plaintiff pending the determination of the plaintiff’s application for leave to apply for Judicial Review. And adjournment of the proceedings to 18th July 2019 for hearing of the application for leave to apply for judicial review and the plaintiff through its lawyers shall inform the State Lawyers of these orders. 

5.	And in response to this Notice of Intention to Defend has been filed 18th July 2019 by the in house lawyers per Seri Mitige for the first, second and third defendants. And on the 5th June 2020 when formal notice of appearance was made by Leo lawyers they also filed a Notice of motion for dismissal of the proceedings. Immediately prior to this it would appear from the Notice of intention to defend that the in house lawyers per Seri Mitige was acting for the defendants.

6.	Is there any good reason for this inactivity on the file? In this regard the plaintiff has sought reliance on the affidavit of Hii Yii Luk director of the plaintiff company sworn 20th March 2020 filed the 1st June 2020. He refers to his earlier affidavit sworn of the 2nd of July 2019 filed the 03rd July 2019 court document number 06. And deposes that he is aware that on the 12th July 2019 interim orders were granted by Justice Gavara-Nanu particulars set out above. And also that the plaintiff has not yet applied for leave for Judicial review. 

7.	And the explanation is that certain events have occurred since the 12th July 2019 necessitating the need for amendment to the current proceedings which include that on the 12th June 2019 the second defendant signed a resolution to approve the forest clearing authority for the Maimai Large Scale Integrated Agro Forestry Project application by the Plaintiff. Approval was given subject to two requirements to be met within six months of the issue of the FCA. And this included that the plaintiff was to seek amendment to the environment permit and to enter into a landowner’s project agreement.

8.	And by letter dated the 28th August 2019 a true copy annexure “A” the second defendant advised the plaintiff that the Forest Clearing Authority number 10-06 (FCA) had been issued with respect to the Project. A copy of which is attached to the letter indicating that it had been issued on the 25th June 2019. And it was also requested by this letter for the plaintiff to provide performance bond of K495, 000.00 from a commercial bank in Papua New Guinea. Further it stated that the plaintiff had to amend the environment Permit and also negotiate with the landowners company Nuku Resources to formulate a project agreement within 6 months of 28th August 2019 date of the issuance of the approval.

9.	And in response to this by letter dated the 2nd September 2019 the plaintiff provided the bank guarantee true copy is annexure “B” with the bank guarantee attached. Between 3rd and 23rd September 2019 emails were exchanged between employees of the plaintiff and one Magdalene Maihua Director Projects Allocation of the third defendant concerning an amendment to the FCA 10-14 in view of what she described as a threat by the previous owner of the FCA 10-06 to commence legal proceedings against the third defendant and annexure “ C” are these emails with a letter dated the 03rd September 2019 by the plaintiff to the Resource Allocation Director concerning the change of number of the FCA. And on the 27th September 2019 the second defendant executed the amended FCA TP 10-14 annexure “D” although not sent to the Plaintiff copy was obtained from the Chairman of the Second defendant. And annexure “E” letter dated the 16th December 2019 plaintiff lodged the amended Bank Guarantee. And in or about February 2020 plaintiff learned from sources within the third defendant that the newly constituted second defendant headed by Faith Barton Keene as chairman had met and amongst other resolutions had passed to cancel FCA 10-14 without notice to the Plaintiff to award it to Green Horizon Limited. 

10.	And as a result of this turn of events the plaintiff understands and believes that the forest clearing Authority originally issued as FCA 10-06 on 25th June 2019 was amended and reissued as FCA 10-14 on 27th September 2019 and cancelled in or about February 2020 without prior notice to the Plaintiff and accordingly amendments were required to the current proceedings to seek review of the decision by the First Defendant to cancel the Plaintiff’s Forest Clearing Authority and the decision of the Second Defendant, if any, to recommend to the First Defendant cancellation of the Plaintiff’s Forest Clearing Authority on the grounds set out in the proposed amended Statement copy annexure “F” together with the amended originating summons annexure “G”.

11.	When an action is instituted there must be finality to it and litigation as a whole. It cannot be stagnant or left dwindling in the foyer of the Court or mushroomed in one form here and in another form there. There ought to be finality and not contagiousness in litigation: Telikom PNG Ltd v Independent Consumer & Competition Commission [2008] PGSC 5; SC906 (28 March 2008). There is no doubt that a defendant or defendants as here are put to anguish incurring logistics time and man hours including court time on an action instituted. And where it has been shown by material relied on that serious abuse has eventuated because a proceeding filed is dormant and not acted upon such have been the subject of dismissal and the record of published judgments will evidence for instance: Bore v Malaisa [2013] PGNC 93; N5274 (24 July 2013). 

12.	It sets out that account should be taken of matters such as the nature and extent of the failure to comply, whether there is good explanation for it, how have the parties and the lawyers conducted since the institution of the proceedings and whether it is in the interest of justice to accord dismissal as applied. In my view this is pertinent consideration because no party should be summarily derailed from the judgement seat without proper consideration due as the courts will be slow to so grant: Takori v Yagari [2008] PGSC 3; SC905 (29 February 2008). The reason is simply if there is a genuine cause of action instituted, justice ought and must be delivered in time but only one of the factors of many to consider including reasons as to why there is non- attendance or action on the proceedings instituted.

13.	On the converse the Plaintiff must be put on notice that Court Orders and Directions must be complied with because non-compliance is being disrespectful to the court and is at the peril of the offending party as here: Philip v Tiliyago [2019] PGSC 17; SC1783 (3 April 2019). But that is not the case here because the reasons that are expounded by the affidavit material relied on by the plaintiff set out that not only was the matter acted in court but outside of court. This is encouraged because the parties to a dispute must take ownership of it and try without the bounds of the court room to settle it. That is the trend encouraged by the court with the new rules of Court relating to Mediation and settlement, the National Court Mediation Rules 2010 (Mediation Rules), excerpt of is Rimua v Ekanda [2011] PGSC 12; SC1094 (19 April 2011). 

14.	And the particulars of the affidavit of Hii Yii Luk sworn 20th March 2020 filed the 1st June 2020 bears this as set out above. There is activity outside of the court even though there is not much in court uncovered by the affidavit of Robert Leo set out above with the annexure. It does not equate that these action outside the court room should be ignored. Because what happens outside of the court room towards the eventual settlement of the dispute is important and fundamental and must be encouraged. It will not sum that the plaintiff has done nothing necessary and prudent to the proceedings if the court record are solely to be relied on as maintained by the registry, and the activity outside pertinent is ruled out giving effect to dismissal as prayed here.

15.	For these reasons the motion to dismiss is denied with costs in the cause.

16.	As for the amendment having considered the contents of the affidavit of Hii Yii Luk sworn 20th March 2020 filed the 1st June 2020 there is no doubt it will assist in the determination of the real issues that must be addressed to arrive at justice due to whosoever by the evidence and the law in this proceedings. No prejudice will be caused given the facts set out above. Because it is a discretionary matter within the court and the facts set out determine that this is exercised judicially in favour of grant, because the real questions posed will be determined from the leave to amend: New Guinea Company Ltd v Thomason [1975] PGNC 18; [1975] PNGLR 454 (23 December 1975). The motion of leave to amend the originating summons and the Statement in support for leave for judicial review is granted as pleaded.

17.	The formal orders of the court are: 

(1)	The application of the plaintiff /applicant for leave to amend the originating summons and the statement in support is granted forthwith.

(2)	The amendment to both originating summons and the statement in support are granted in the terms of the draft of each document attached to the affidavit of Hii Yii Luk sworn 20th March 2020 filed the 1st June 2020 as annexure “F” and “G”.

(3)	The matter will be formally mentioned in court at the directions hearing of this court on Monday 23rd of November 2020 at 9.30am for directions.

(4)	Costs will follow the event forthwith.
Orders accordingly.
 _________________________________________________________________
Ashurst Lawyers: Lawyer for the Plaintiff/Applicant		
Leo Lawyers: Lawyer for the Defendant