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Double Field (PNG) Ltd v Iduhu [2023] PGNC 393; N10549 (23 October 2023)

N10549

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 39 OF 2022


DOUBLE FIELD (PNG) LIMITED
Plaintiff


V
KEITH IDUHU AS CHAIRMAN OF THE NATIONAL FOREST BOARD
First Defendant


AND
PAPUA NEW GUINEA FOREST AUTHORITY
Second Defendant


AND
GREEN HORIZON LIMITED
Third Defendant


Waigani: Miviri J
2023: 11th, 20th & 23rd October


PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion 20th April 2022 – Motion One Year Five Months Old – Dismissal Striking Out Motion National Court Motions (Amendment) Rules 2005 Order 4 division 5 Rule 49(17) Order 16 Rule 13 (13) (2)(a)(b) NCR – Injunction – No Reasons Why Motion Moved after a Year & five months – No Arguable Cause Demonstrated – Damages Adequate Remedy –Balance of Convenience Does not Favour Grant – Undertaking as To Damages – Materials Insufficient – Want of Prosecution – Motion dismissed – Costs Follow Event.


Cases Cited:


Dupnai v Weke [2016] PGSC 43; SC1525

Gabe v Tolukuma Gold Mine Ltd [2018] PGSC 1; SC1648

Rimbunan Hijau (PNG) Ltd v Enei [2017] PGSC 36; SC1605

McHardy v Prosec Security and Communication Ltd [2000] PGSC 22; SC646


Counsel:


I. Sheppard, for Plaintiff /Applicant
M. Goodwin, for Third Defendant

RULING


23rd October 2021

  1. MIVIRI, J: This is the ruling on the Plaintiff’s notice of motion of 20th April 2022 pursuant to Order 16 Rule 3 (8) (b) seeking Stay of the “proceedings to which the application relates until the determination of the application or until the Court otherwise orders. Here interim relief as could be granted in an action begun by writ.” In the way it is worded it would appear that the interim relief here, stay injunction would be sought immediately after the grant of leave. Because the subject order is grant of leave to apply for Judicial review. Here this Court presided by Justice Dingake granted Leave for Judicial review on the 2nd August 2022.
  2. What is sought here is not following leave granted to the applicant/plaintiff. But a notice of motion filed by the Plaintiff to stay the proceedings that he has instituted. He relies on the affidavit of Ian Shepperd sworn of the 09th October 2023. Lawyer for the Plaintiff who has conduct of the subject proceedings. He reiterates the fact that this Court presided by Justice Gavara-Nanu orders restraining the Defendants from issuing the Timber Permit over the Maimai Large Scale Integrated Agro Forestry Project to anyone other than the plaintiff pending determination of the application for leave to apply for Judicial review.
  3. In that affidavit he details that on the 06th October 2023 he wrote to the First and Second defendants to indicate to them that there was a boundary dispute between the two FCAs that is, FCA No. 10-14 and FCA No. 10-13 which has been caused by the Defendants issuing the FCA 10-13 to the third defendants on the 23rd December 2019 whilst the restraining orders issued by Justice Gavara-Nanu remained in force. That is annexure (c) to his affidavit.
  4. These in my view do not comprise the reasons that this notice of motion has been outstanding on the record of the Court since it was filed of the 20th April 2022. What is set out by his affidavit could be the subject of the substantive motion yet to be moved bearing in mind and it is not clear in what way the subject application will assist the course of the applicant/plaintiff. Especially when the restraint sought is:
  5. The injunction would have made more sense if it was moved after being filed on the 20th April 2022. To allow the third defendant to carry on with its life detailed out by the affidavit of Dasmand Wei Ming Wong director of the third defendant sworn of the 31st July 2023 filed the 02nd August 2023 does not go the way pleaded by the Notice of Motion. In particular, the third defendant has substantial investment in the project area and the injunction if granted will have a negative impact because there are both local as well as foreign workers engaged the local community in the project area with defendants’ contractors will be impacted.
  6. And the evidence of Lawyer Ian Shepperd relied on set out above to move the motion do not show urgency in it. If it where the evidence is not there to sustain. It is not even substantiated that the plaintiff is suffering as a result of the continuity in the actions of the third defendants. Alternatively, it is not shown that damages would not be an adequate remedy if the application is granted. By the evidence of Dasmand Wei Ming Wong director of the third defendant set out above it would appear that the third defendant would suffer loss as it is clear by his evidence that it is operating in the area. In the case of the plaintiff that is not clear from the material submitted and relied on. This ground is not made out in favour of the plaintiff to advance his motion pleaded.
  7. Even if it were argued that there is arguable basis because leave was granted on that basis, the fact remains in the light of the determination on damages the balance of convenience would not lie in favour of the applicant plaintiff. He filed this motion on the 20th April 2022. On the 18th July 2022 it was mentioned in Court. On the 2nd August 2022 leave application was moved and secured. On the 04th October 2022 adjournment of the matter was made to the 04th November 2022 for the plaintiff to move the subject application now. On the 17th July 2023 the matter was mentioned in Court. That was a year and 2 months after the filing of the subject motion. On 21st August 2023 plaintiff advised the need to confirm the boundaries to the subject land with PNGFA. There was no mention of the current motion on that day. It was the same on the 11th September 2023 with the Plaintiff advising that it was yet to receive from the PNGFA information on the boundaries. The case was adjourned to the 04th October 2023, by then it was a year 5 months 14 days into the filing of the subject motion. When it returned on the 12th October 2023 it was a year 5 months 22 days since the filing of the subject motion. This is the record of the court in respect of this motion outstanding since being filed on the records of the Court. And it is the same evidence that has been replicated by Mr Wong director of the third defendant sworn of the 31st July 2023 filed of the 02nd August 2023, which has been corresponded to by the affidavit of Mr Balil affidavit filed of the 20th June 2023, setting out relevantly notes kept by the Associate of the 18th July, 2022, 02nd August 2022, 04th October 2022, and of the Court file index of the 20th June 2023.
  8. This is inordinate delay that will not enhance the motion in favour of the applicant plaintiff: Dupnai v Weke [ 2016] PGSC 43; SC1525 (19 August 2016). This is demonstration by the plaintiff that it is not genuine in the motion that it has filed since that day 20th April 2022. If it was it was drawing out injustice by the actions of the third defendant it was not moved with vigour with swiftness and within reasonable time. This is inordinate delay in the prosecution of the matter. Because the reasons why it is now moved after 1 years 6 months is not explained. It is not moved as in Gabe v Tolukuma Gold Mine Ltd [2018] PGSC 1; SC1648 (31 January 2018), proceedings reinstalled because the reasons for the matter not being prosecuted for seven years was good enough to but was not properly considered at first instance. Appeal was allowed and proceedings reinstalled into the records of the court to be heard.
  9. That is not the situation here, there are no reasons as to why it has been moved as it is now a year and six months. It is the application of the Plaintiff without the necessary evidence to sustain lacking, not the same for the third defendant which must be accorded against: Rimbunan Hijau (PNG) Ltd v Enei [2017] PGSC 36; SC1605 (25 September 2017). Importantly whether the plaintiff operates in that area where it is sought to prevent the operations of the third defendants by this motion. That is not before me. And it is the operations of the third defendant by its evidence that is before me. An injunction without the evidence is not arguable per se.
  10. And it remains in limbo because the National Court Motions (Amendment) Rules 2005 Order 4 Rule 49 (17) is explicit that “Dismissal/ Striking out of Motions:

The Court may of its own motion or upon application strike out or dismiss a Motion which is not prosecuted within one (1) month after it is filed or if it is adjourned twice.”


This notice of motion has been filed 20th April 2022. It is now one (1) year and six (6) months since being filed. If coupled with reading of the law in McHardy v Prosec Security and Communication Ltd [2000] PGSC 22; SC646 (30 June 2000) setting out the following: -


(i) Whether leave to appeal is required and whether it has been obtained;
(ii) Whether there has been any delay in making the application.
(iii) Possible hardship, inconvenience, or prejudice to either party.
(iv) The nature of the judgement sought to be stayed.
(v) The financial ability of the applicant.
(vi) Preliminary assessment about whether the Applicant has an arguable case on the proposed appeal.
(vii) Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure.
(viii) The overall interest of justice.
(ix) Balance of convenience.
(x) Whether damages would be sufficient remedy.”
  1. The aggregate would be that the third defendant has discharged that the notice of motion of the Plaintiff for Stay will be refused with costs. It is without merit because the materials relied on do not sustain in view of the law set out above. Accordingly pursuant to Order 4 Rule 49 (17) of the Rules the motion is outstanding for over a month breaching, it is now on the record of the proceedings, a year, and six months. It is inordinate and wanting of prosecution. It is by the application of the third defendant sustained dismissed pursuant to Order 16 Rule 13 (13) (2) (a) (b) of the Rules forthwith. Costs will follow the event if not agreed to be taxed.
  2. The formal orders of the Court are:

Orders accordingly.
_________________________________________________________________

Ashurst Lawyers: Lawyer for the Plaintiff/Applicant

Liria Lawyers & Forensic Services: Lawyer for the Defendant

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