SC2163
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 25 OF 2020

AMANAB FOREST PRODUCTS LIMITED 
Appellant

V

PAUL SAI’I, GUNTHER JOKU, NOAH TAMBI, THERESA KAMU, JOSEPHINE GENIA, BOB TATE & JACOB AREMAN, 
AS MEMBERS OF THE NATIONAL FOREST BOARD 
First Respondent

PAPUA NEW GUINEA FOREST AUTHORITY
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA 
Third Respondent

PACIFIC GREEN FOREST LIMITED
Fourth Respondent

MINEP LIMITED
Fifth Respondent

MIDOWA LIMITED
Sixth Respondent

Waigani: Cannings J, Polume-Kiele J, Dowa J
2021: 26th, 28th October

PRACTICE AND PROCEDURE – judicial review – summary dismissal of application for judicial review, after granting of leave for judicial review and before hearing of application for judicial review – National Court Rules, Order 16, Rule 13(13)(2)(a) – appeal against summary dismissal. 

This was an appeal against the summary dismissal by the National Court of an application for judicial review of decisions of the National Forest Board, after the granting of leave for judicial review and before the trial of the application for judicial review. The primary Judge upheld a motion for summary dismissal by one of the defendants brought under Order 16, Rule 13(13)(2)(a) of the National Court Rules and dismissed the entire proceedings for being incompetent and frivolous and vexatious. The primary Judge ruled that (a) one of the decisions that was subject of review (to grant a forest clearing authority over 17,000 hectares of land within the appellant’s timber permit area) had been cancelled by the National Forest Board, and there was nothing left to review; and (b) the question of customary ownership of the 17,000 hectares of land (which area of land the National Forest Board had decided to excise from the appellant’s timber permit area) had been resolved by a Local Land Court in favour of landowners who had not been consulted when the timber permit was granted to the appellant. His Honour ruled that all issues surrounding the 17,000 hectares had been resolved by the Local Land Court, the decision of which had not been challenged, and therefore the issues were res judicata. The appellant appealed on three principal grounds, involving alleged errors of law by the primary Judge in finding: (1) that the proceedings were incompetent as there was nothing before the National Court to show that it lacked jurisdiction to hear and determine the application for judicial review; (2) that the decision of the Local Land Court rendered the issues before the National Court res judicata; and (3) that the application for judicial review was frivolous and vexatious. 

Held: 

(1)	Proceedings before a court can only be properly dismissed for being incompetent when the court determines, either on objection or of its own motion, that it has no jurisdiction. Here there was nothing before the National Court to demonstrate that it lacked jurisdiction. The first ground of appeal was upheld. 

(2)	The principle of res judicata can only be invoked to find that proceedings are frivolous or vexatious when it is clear that the issues in current proceedings have already been resolved between the same parties in previous judicial proceedings. Here the issues before the National Court were very different to those issues before the Local Land Court. Further, the parties were not the same. The primary Judge erred in finding that the National Court proceedings were res judicata vis-à-vis the Local Land Court proceedings. The second ground of appeal was upheld. 

(3)	Proceedings can properly be dismissed for being frivolous when they have no reasonable prospect of success, and for being vexatious when the proceedings are commenced for some ulterior or improper motive or amount to harassment of the defendant or are a sham. Here, it had been shown by the granting of leave that the appellant had an arguable case and nothing in the revelations that the forest clearing authority had been cancelled and that there had been a Local Land Court decision regarding the 17,000 hectares meant that the appellant’s case was hopeless or bound to fail. There was no evidence that the appellant was acting for an improper motive. The proceedings were neither frivolous nor vexatious. The third ground of appeal was upheld. 

(4)	The appeal was allowed and the decision of the National Court was quashed and the judicial review proceedings in the National Court were reinstated.

Cases Cited

The following cases are cited in the judgment:

Amanab Forest Products Ltd v Paul Sai’i & Others (2020) N8609
Coca Cola Amatil (PNG) Ltd v Marshall Kennedy (2012) SC1221
Kiee Toap v The State (2004) N2766
Napanapa Landowners Association v Gaudi Logae (2016) SC1533
Talibe Hegele v Tony Kila (2011) SC1124
Telikom PNG Ltd v ICCC (2008) SC906
Titi Christian v Rabbie Namaliu (1996) SC1583
Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185 

Counsel

R Bradshaw, for the Appellant
S Mitige, for the First & Second Respondents
T L Tape, for the Sixth Respondent

28th October, 2021

1.      BY THE COURT: The appellant, Amanab Forest Products Ltd, appeals against the summary dismissal by the National Court, constituted by Justice Miviri, of an application for judicial review of decisions of the National Forest Board, after the granting of leave for judicial review and before the trial of the application for judicial review. 

2.     His Honour upheld a motion for summary dismissal by one of the defendants (the sixth respondent in the appeal, Midowa Ltd) brought under Order 16, Rule 13(13)(2)(a) of the National Court Rules and on 23 October 2020 in OS (JR) No 264 of 2019 dismissed the entire proceedings for being incompetent and frivolous and vexatious (Amanab Forest Products Ltd v Paul Sai’i & Others (2020) N8609).

Order 16, Rule 13(13)(2)(a) states:

Any application for judicial review may be determined summarily for failing to comply with directions or orders issued under Order 16 of the National Court Rules or under these Rules or on any other competency grounds. 

3.     His Honour ruled that (a) one of the decisions that was subject of review (to grant a forest clearing authority over 17,000 hectares of land within the appellant’s timber permit area in Sandaun Province, to the fourth respondent, Pacific Green Ltd) had been cancelled by the National Forest Board, and therefore there was nothing left to review; and (b) the question of customary ownership of the 17,000 hectares of land (which area of land the National Forest Board had decided to excise from the appellant’s timber permit area) had been resolved by the Vanimo Local Land Court in favour of landowners who had not been consulted when the timber permit was granted to the appellant. His Honour ruled that all issues surrounding the 17,000 hectares had been resolved by the Local Land Court, the decision of which had not been challenged, and therefore the issues were res judicata. 

4.     The appellant appealed on four grounds, which in our view can be distilled into three principal grounds, involving alleged errors of law by the primary Judge in finding: 

(1) that the proceedings were incompetent as there was nothing before the National Court to show that it lacked jurisdiction to hear and determine the application for judicial review; 

(2) that the decision of the Local Land Court rendered the issues before the National Court res judicata; and 

(3) that the application for judicial review was frivolous and vexatious. 

GROUND 1: ALLEGED ERROR OF LAW IN FINDING THAT THE PROCEEDINGS WERE INCOMPETENT

5.     Proceedings before a court can only be properly dismissed for being incompetent when the court determines, either on objection or of its own motion, that it has no jurisdiction (Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185, Talibe Hegele v Tony Kila (2011) SC1124, Coca Cola Amatil (PNG) Ltd v Marshall Kennedy (2012) SC1221).The question of whether the proceedings are frivolous or vexatious is a different question to whether the proceedings are incompetent. 

6.    Here there was nothing before the National Court to demonstrate that it lacked jurisdiction. The first ground of appeal is upheld. 

GROUND 2: ALLEGED ERROR OF LAW IN FINDING THAT THE ISSUES BEFORE THE NATIONAL COURT WERE RES JUDICATA

7.     The principle of res judicata (the thing has already been decided) can only be invoked to find that proceedings are frivolous or vexatious when it is clear that the issues in current proceedings have already been resolved between the same parties in previous judicial proceedings (Titi Christian v Rabbie Namaliu (1996) SC1583, Telikom PNG Ltd v ICCC (2008) SC906, Napanapa Landowners Association v Gaudi Logae (2016) SC1533).

8.     Here the issues before the National Court (whether errors of law were made by the National Forest Board in its various decisions regarding the 17,000 hectares of land that were excised from the appellant’s timber permit and made the subject of a forest clearance authority) were very different to those issues before the Local Land Court (as to ownership of customary land). Further, the parties were not the same. 

9.     Mr Tape, for the sixth respondent, submitted that if we found that res judicata did not apply due to the parties in the judicial review not being involved in the Local Land Court, we should nonetheless find that the doctrine of issue estoppel should be invoked. That submission is misconceived. The issues before the Local Land Court were entirely different to those in the National Court. The doctrine of issue estoppel has no application here.

10.     We find, with respect, that the primary Judge erred in finding that the National Court proceedings were res judicata vis-à-vis the Local Land Court proceedings. The second ground of appeal is upheld. 

GROUND 3: ALLEGED ERROR OF LAW IN FINDING THAT THE PROCEEDINGS WERE FRIVOLOUS AND VEXATIOUS

11.     Proceedings can properly be dismissed for being frivolous when they are shown to have no reasonable prospect of success, and for being vexatious when the proceedings are commenced for some ulterior or improper motive or amount to harassment of the defendant or are a sham, which cannot possibly succeed (Kiee Toap v The State (2004) N2766).

12.     Here, it was shown by the granting of leave for judicial review that the appellant had an arguable case and nothing in the revelations that the forest clearing authority had been cancelled and that there had been a Local Land Court decision regarding the 17,000 hectares that had been part of the appellant’s timber permit, meant that the appellant’s case was hopeless or bound to fail. There was no evidence that the appellant was acting for an improper motive. The proceedings were neither frivolous nor vexatious. The third ground of appeal is upheld. 

CONCLUSION 

13.     We have upheld all grounds of appeal. The appeal must be allowed and the decision of the National Court quashed and the judicial review proceedings in the National Court reinstated. Costs will follow the event.

ORDER

(1)	The appeal is allowed.

(2)	The order of the National Court of 23 October 2020 in OS (JR) No 264 of 2019 is quashed.

(3)	The National Court proceedings, OS (JR) No 264 of 2019, are reinstated.

(4)	The Registrar shall forthwith refer those proceedings for mention and directions hearing regarding the trial of the application for judicial review before a Judge other than the primary Judge.

(5)	The first, second and sixth respondents shall pay the appellant’s costs of the appeal, on a party-party basis, which shall, if not agreed, be taxed.  
__________________________________________________________________
Bradshaw Lawyers: Lawyers for the Appellant 		
S Mitige: Lawyer for the First & Second Respondents
Kandawalyn Lawyers: Lawyers for the Sixth Respondent