Arawe Logging Pty Ltd v The State
Dispute over allocation of logging rights
Logging companies mentioned in this document:
Papua New Guinea Law Reports - 1988-89
[1988-89] PNGLR 216 - Arawe Logging Pty Ltd v Thomas Krokio, 30 Others, The State, and Minister for Forests
[1988-89] PNGLR 216
N751
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
ARAWE LOGGING PTY LTD AND
THOMAS KROKIO AND 30 OTHERS
V
THE INDEPENDENT STATE OF PAPUA
NEW GUINEA AND MINISTER FOR
FORESTS
Waigani
Brunton AJ
2 June 1989
9 June 1989
21 June 1989
PRACTICE AND PROCEDURE - Declaratory relief - Claim against State -
Appropriate parties - Proper defendant State rather than Minister.
Held
Where a person makes a claim against the State seeking declaratory relief, it is
sufficient to name the State as defendant without naming a particular Minister,
whether by office or in person: the order itself binds the State, its servants or
agents.
Cases Cited
Dent v Thomas Kavali [1981] PNGLR 488.
Mudge v Secretary for Lands [1985] PNGLR 387.
Motion
This was the hearing of a motion on notice to dissolve an interim injunction.
Counsel
I Molloy and R C Gunson, for the first and second plaintiffs.
M J J Jalina and Z G Gelu, for the first and second defendants.
Cur adv vult
21 June 1989
BRUNTON AJ: The plaintiffs commenced their action by originating summons filed
on 19 May 1989, seeking declarations in relation to a timber rights purchase and a
timber permit which had been issued in respect of the Arawe Timber Rights Purchase
area, in West New Britain. An amended originating summons was filed on 8 June
1989. By notice of motion dated 19 May 1989 the plaintiffs sought ex parte
injunctions against the first and second defendants from dealing in any way with the
timber resource under dispute. The same day Andrew AJ made orders that the State
was to be restrained from granting or issuing a timber permit to any company,
person or entity other than the first plaintiff until the return date of the order. The
first and/or second defendants were to be restrained from entering into negotiations
or dealing in any way with a proposed contractor or the servants or agents of any
proposed contractor and in particular with a company called Cakara Alam (PNG) Pty
Ltd until the return date of the order. The service of the order was to be substituted
and effected on the first and second defendants by service on the Secretary for
Department of Forests or the Secretary for Justice. The order was returnable before
the court on 2 June 1989 at 9.30 am. By notice of motion on 30 May 1989 the State
and the Minister for Forests sought to dissolve the ex parte interim injunction
ordered by Andrew AJ. Further, the defendants sought to dismiss the whole of the
proceedings including the injunction and the originating summons and they sought
costs. On 2 June, by consent, the matter was stood over to a chambers hearing on 9
June 1989, and directions were made that the evidence-in-chief of the parties be
reduced to affidavit form, and be filed before 13 June; that affidavits in reply be filed
before 20 June; that each party was to give notice to the other party of those
deponents required for cross-examination before 16 June, and that the hearing of
the matter was to commence on 21 June. Each party was at liberty to apply on three
days notice; the injunctions granted on 19 May 1989 and continued on 2 June 1989
were to be continued until the hearing of the action.
[His Honour then considered in a manner not calling for report the issues raised on
the application including locus standi, whether there was a serious question to be
determined and the balance of convenience and continued:]
SUMMARY
It is my view that the first and second plaintiffs in this action have locus standi in
that the second plaintiffs are property-owners in the land over which the timber
permits and the Timber Rights Purchase Agreement have been issued. The first
plaintiff, a company, was an applicant for a timber permit and this gives it a sufficient
interest to dispute the issue of the timber permit over this resource to another
company. The issues of law that are raised by this case are in my view genuine
issues of law that raise serious questions. It is not for me to decide those questions
one way or another, merely to say that they are bona fide issues that could be tried.
On the balance of convenience as to whether or not the interim injunction should
stay in place until this matter is finally settled by the courts, I am of the view that no
action should be taken over this resource until the legal issues have been
adjudicated upon. In my view the harvesting of this forest resource can wait a few
weeks or a few months more until the law has been settled. The trees will not run
away. However, if they are cut down they are lost forever. The fourth of the National
Goals and Directive Principles in the Constitution calls for wise use to be made of our
natural resources. Certainly, it would be unwise at this stage to go ahead and start
harvesting this resource without the legal issues that have been raised being
properly resolved. Further, I am concerned that the special attachment of the people
to cleared land would result in activities such as rioting or damage to property, if the
people saw logging going ahead without an authoritative pronouncement from the
courts. This is not a case where machinery is on the ground and money has already
been spent in putting in infrastructure such as roads and buildings. Work is yet to
begin. In my view the balance of convenience is that the present situation should be
held for a little longer while these important legal issues are determined.
ISSUES RAISED BY THE DEFENDANTS
The defendants raised two procedural defects in the originating summons to this
matter. First, the defendants said that the first defendant had been misnamed. The
defendant said that the first defendant had been named as “Independent State of
Papua New Guinea by its Department of Forests”. I agreed with the first defendant in
this matter, and struck out the words “by its Department of Forests”. The defendants
objected to my striking out those words, but when I asked Mr Jalina for the State to
address me on how his clients had been prejudiced by these additional words, or
how they would be prejudiced by my striking them out, I received no satisfactory
answer. Mr Jalina merely relied on his written submissions that the plaintiffs had
more than ample time and opportunity to rectify this defect, and had not taken steps
to rectify it, that the proceedings appeared to be rushed, and therefore that the
plaintiffs should bear the consequences, including having the court strike out the
originating process because it was defective. In my view it would be quite
inappropriate for me to strike out what is an important action for such a trivial
reason.
The second procedural defect which Mr Jalina raised was that the second defendant
had been named as “The Minister for Forests”. Mr Jalina relied upon the Supreme
Court decision, Mudge v Secretary for Lands [1985] PNGLR 387, per Kidu CJ, at 388.
In that case the Chief Justice said that:
“In law only a person (a human being of age), or a corporate person (an
incorporated body) can sue or be sued in a court.”
In that case the appellant should have proceeded against the occupant of the office
of the Secretary for Lands. If the principle in Mudge is to be applied in this case then
it would be necessary to name Mr Karl Stack as being the second defendant.
P W Young in his book Declaratory Orders, 2nd ed (1984), par 1006 at 94 says:
“In view of the theory that the Crown is immune from suit in its own court
there has been a tendency to seek declarations and injunctions against the
responsible Minister. Just how proper this course is has never been decided
and in more recent times the question has really become academic as in most
jurisdictions there is specific legislation on the subject.”
In the 4th ed of de Smith’s Judicial Review of Administrative Action (1980) at 511,
the learned authors say:
“Problems have arisen in connection with actions by subjects against the
Crown and its servants. If a Crown servant personally commits, or orders or
authorises the commission of a tort, the plaintiff may sue him in his private
capacity for damages and for a declaration that his act was invalid,
notwithstanding that the act may have been done in the course of Crown
duty. If, however, the wrongful act is not a tort, but is merely an unlawful act
done or demand or order made by or on behalf of the Crown through the
instrumentality of one of its servants, it may well be thought to be contrary to
principle to award a declaration against the Crown servant in his private
capacity. Nonetheless, several cases in which actions for declarations were
brought against Ministers in their private capacities in respect of non-tortious
but allegedly unlawful acts have appeared in the law reports. In these cases
the plaintiffs were seeking what were in substance declarations against the
Crown. Before the Crown Proceedings Act 1947 an action for a declaration
(except on a petition of right) could not have been brought against the Crown
as such. An appropriate defendant would have been either the Attorney-
General or, in certain special cases, a government department or an officer of
the Crown sued in his official capacity.
The right of action for damages and a declaration against the individual
tortfeasor was, in general, preserved by the Crown Proceedings Act. But
under the Act it became possible to bring an action for a declaration against
the Crown by instituting civil proceedings against the appropriate authorised
government department.”
The lists of authorised Departments are published by the Civil Service Department
under s 17(1) of the Crown Proceedings Act 1947 (UK).
In the United Kingdom all proceedings against the Crown are instituted against the
appropriate authorised Government Departments, or if none of the authorised
Government Departments is appropriate, or the person instituting the proceedings
has any reasonable doubt whether any, and if so which, of those Departments is
appropriate, against the Attorney-General: Halsbury’s Laws of England (4th ed), vol
11, par 1420 at 754. This is so because the Crown Proceedings Act 1947 (UK), s
17(1), allows the Treasury to publish a list specifying the several Government
Departments which may sue or be sued.
There is no equivalent provision in the legislation of Papua New Guinea.
Under the Claims By And Against The State Act (Ch No 30), s 2, it is provided that a
person making a claim against the State in contract or in tort may bring a suit
against the State in respect of the claim in any court in which such a suit may be
brought as between other persons. The problem here is that this section is confined,
on its face, to actions in contract or in tort.
Before the passing of the United Kingdom Crown Proceedings Act 1947, the only
methods by which redress might be sought against the Crown in the courts, was by
way of petition of right, which was dependant on the grant of the Royal fiat by suits
against the Attorney-General for a declaration, or by actions against Ministers and
Government Departments which had been incorporated or declared liable to suit by
statute: see Halsbury, par 1401 at 743. Leaving aside those specific Government
Departments or entities which were entitled to sue and be sued by statute, the
common law recognised only two ways of suing the Crown. The first was by petition
of right in which case the plaintiff needed a Royal fiat to proceed. Secondly, there
was a suit by way of declaration against the Attorney-General.
Papua New Guinea has never had an Attorney-General. It seems inappropriate for
this particular rule of common law to have been received into Papua New Guinea in
its direct form. During pre-Independence times the appropriate person to name in a
declaration against the Crown would have been the Secretary for Justice. Under s
156(1)(a) of the Constitution the Principal Legal Adviser to the National Executive is
one of the Law Officers of Papua New Guinea; and under s 156(2) an Act of
Parliament shall make provision for and in respect of that office. The Principal Legal
Adviser Act (Ch No 54) says:
“If the Minister for Justice is a fully admitted practitioner he is the Principal
Legal Adviser to the National Executive. If the Minister is not a qualified
lawyer then the Principal Legal Adviser to the National Executive is the
Secretary for Justice.”
The question then arises whether a person making a claim against the State and
seeking a declaration can sue the State directly or whether that person should sue
the Principal Legal Adviser. The Claims By and Against The State Act, s 2, reads:
“A person making a claim against the State in contract or in tort may bring a
suit against the State in respect of the claim in any court in which such a suit
may be brought as between other persons.”
The history of the declaration shows that it is not an action in tort or in contract. The
declaration was never a creature of common law; it came into English proceedings by
way of Scottish Civilian Law. It first infiltrated its way into the law of equity after
1852, although there are cases in the books before 1852. The traditional common
law position had always been that courts would not make a declaration without
granting consequential relief: see generally Chs 1 and 3 of P W Young, Declaratory
Orders. The English Chancery Procedure Act 1852, s 50, and amendments to the
English and Australian Rules of Court removed this objection. The English Rules of
Court 1883, O 25, r 5, stated:
“no action or other proceeding shall be open to objection on the ground that a
merely declaratory judgment or order is sought thereby, and the Court may
make binding declarations of right, whether or not an consequential relief is
or could be claimed.”
Under the Rules of the Supreme Court Queensland (Adopted), O 4, r 11, was in
similar terms to the 1883 English Rule. The power of the Supreme Court and the
National Court to make declarations is now contained in s 155(4) of the Constitution:
Dent v Thomas Kavali [1981] PNGLR 488 at 490-491, per Bredmeyer J.
The procedural aspects of declaratory judgments are dealt with under O 16 of the
National Court Rules. There are two methods of bringing an action for a declaration
under the rules. The first is under O 16, r 1, subr 2, whereby an application for a
declaration may be made by way of an application for judicial review. However, an
action for a declaration may also be brought by writ of summons under O 16, r 9,
subr 5. The applicant for leave to apply for judicial review must give notice of the
application to the Secretary of Justice not later than two days before the application
is made, and must at the same time lodge with the Secretary copies of the
statement and every affidavit used in support, see O 16, r 3. The rules do not
stipulate whether or not declarations sought against the State or State bodies must
be actually brought against the Secretary for Justice. In short, there appears to be
no statutory provision that indicates who is to be named as a party to an action
when a declaration is sought in respect of the exercise of a discretion by an officer, or
agent of the State. I use the words “an officer” here to include a Minister. Under our
present law the Principal Legal Advisor to the National Executive does not play the
same role as the Attorney-General in the United Kingdom, and I do not think it is
appropriate, when apparently a plaintiff seeks a declaration in respect of an action of
a Minister, that it should be the Secretary for Justice who is named as the defendant. It is my view, that it is sufficient when seeking a declaration merely to name the State as a defendant without naming a particular Minister, whether by naming his office, such as “Minister for Forests”, or by naming the Minister in person, such as “Karl Stack, Minister for Forests”. I believe this to be so because of the nature of the declaratory action itself. A declaration is an action that will authoritatively inform and bind responsible Ministers of the State to what the law is on a matter which concerns them as Ministers. The declaratory order merely has to be made against the State and its servants and agents. That in my view is enough, because if a Minister or a public servant, or a servant or agent of the State proceeds in a manner contrary to the declaratory order, the courts will grant an injunction against the person concerned. That being so, it is my view that it is not necessary to name the Minister for Forests at all in these proceedings. I think there is additional merit in such a procedure because it avoids bringing the judicial arm of government into direct conflict with the executive arm of government in the person of a Minister. In addition, to name the Minister personally, in my view is inappropriate where the Minister has been performing a function granted to him by statute. Further complications may arise if a Minister is named in proceedings and for some reason he leaves that ministerial office, as following a cabinet reshuffle, general election, or for other cause. I have decided that the interim injunction should stay in place as there are bona fide legal issues to be adjudicated, and for that reason I will not grant the application to dismiss the whole of the action. The costs of this hearing go to the plaintiff. Interim injunction continued Lawyers for first and second plaintiffs: Blake Dawson Waldron. Lawyer for first and second defendants: State Solicitor.
