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Cakara Alam (PNG) Limited v Thomas Kong and Green Wood Limited (2019)

District Court decision upholding interim restraining orders

Logging companies mentioned in this document:

Concessions mentioned in this document:


                  DC4029
           PAPUA NEW GUINEA


       In the District Court of Justice


           DC NO: 330 OF 2018


                  Between


        Cakara Alam (PNG) Limited
            -First Complainant


         Pulie Anu Timber Limited
          -Second Complainant


                    And


Thomas Kong also known as Heng Siong Kong
              -First Defendant


         Green Wood PNG Limited
           -Second Defendant


         Grand Shine PNG Limited
             -Third Defendant


         Kimbe: AMANU Jasper

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                         2019; 14th January


CIVIL –Application to dismiss proceeding for abuse of court
process and disclosing no cause of action – National Court
injunctive orders on foot – whether defendants affected –
Defendants not parties to National Court Proceeding – District
Court should maintain status quo


PRACTICE & PROCEDURES – Whether Undertaking As to Damages
necessary to be filed in the District Court – No provision in the
District Court Act for Undertakings – discretion upon the Court –
Parties may seeking for damages if Restraining Orders discharged
and if damages incurred as a result of the restraining orders.


Legislations
Constitution of the Independent State of Papua New Guinea
National Court Rules
District Courts Act


Cases cited
Mugga Logging Company Pty Ltd vs. South Pacific Oil Palm
Development Pty Ltd (No.1) [1977] PNGLR 80
Kurt Reimann & Others vs. George Skell & Others (2001) N2093


Counsels
No Appearance for the Complainant/Respondents
Mr. Meli Muga for the Defendants/Applicants

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                          RULING

INTRODUCTION

1.J.AMANU This is my ruling in respect to the Defendants’

application by way of Notice of Motion filed on the 17th
December 2018 seeking the following orders:

  A. Pursuant to Section 43 of the District Court Act, the
     Applicants dispense with the requirement for service of this
     Notice of Motion and Affidavits and move this Notice of

     Motion on Thursday 20th December 2018 at 9:30am.




  B. Pursuant to Section 22 and Section 25 of the District Court:




     (a)   The interim restraining order made ex parte on 6th
       December 2018 in favour of the First Complainant and
       Second Complainant is set aside.




  C. Alternatively, pursuant to Section 22 of the District Court and
     Order 12 Rule 40 of the National Court Rules, these
     proceedings are dismissed for:

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    (a)    failure to disclose a reasonable cause of action;




    (b)    an abuse of court process.



  D. The First Complainant and Second Complainant pay the
    Defendants costs.




  E. Such further or other orders as this Honourable Court deems
    fit.


  F. Time for entry of these orders be abridged to the date of
    settlement by the Clerk of Court which shall take place
    forthwith.




FACTS

2. The Complainants instituted this proceeding against the
Defendants seeking orders that the Defendants compensate the
Complainants K8000. It was alledged that the Defendants have
detained certain Directors of GR Logging Limited and Pulie Anu
Timber Company Limited to oppose logging operation in Puli Anu
LFA area. This has caused inconvenience and frustration to the
Complainants.


3. On the 06th December 2018, the Complainants obtained
interim restraining orders against the Defendants pending the

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determination of the substantive issue. The restraining orders are in
the following terms:

  1. Pursuant to Section 22 of the District Court Act, Defendants
     be restrained in the interim from interfering in any manner or
     form including funding and/or influencing landowners or any
     dialogue with any of the landowners of Pulie Anu LFA No.
     14-4 including Directors and Shareholders of G.R. Logging
     Limited as well as directors and shareholders of the Second
     Complainant Company from disturbing the Complainants
     from their peaceful logging operations at Pulie Anu LFA No.
     14-4 and such disturbance includes funding, aiding or such
     other assistance to the landowners and directors and
     shareholders of G.R. Logging Limited to challenge the Timber
     Permit and licence of the Complainants.




  2. Pursuant to Section 22 of the District Court Act, the
     Defendants be restrained in the interim from interfering in
     any manner or form including funding and/or influencing
     landowners or any dialogue with any of the landowners of
     Pulie Anu LFA No. 14-4 including Directors and Shareholders
     of G.R. Logging Limited as well directors and shareholders of
     Second Complainant Company from disturbing the
     complainants from their peaceful logging operations at Pulie
     Anu LFA No. 14-4 and such disturbance includes funding,
     aiding or such other assistance to the landowners and
     directors and shareholders of G.R. Logging Limited to
     challenge the Timber Permit and the licence of the

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        Complainants.




  3. Pursuant to Section 22 of the District Court Act, the
        Defendants be restrained in the interim from interfering in
        any manner or from in respect of any dealing or dialogue
        with Papua New Guinea Forest Authority concerning the
        Pulie Anu LFA No. 14-4 including Directors and Shareholders
        of G.R Logging Limited as well as directors and shareholders
        of the Second Complainant Company in respect of any
        dealing or dialogue with Papua New Guinea Forest Authority
        concerning or relating to Pulie Anu LFA No. 14-4.


4. On the 17th December 2018, the Defendants filed this
application to set aside these interim restraining orders and to
dismiss the entire proceedings.

ISSUE

5. Base on counsel’s arguments, I find two issues as follows:

        1.     Whether the interim restraining orders be set aside and
             discharged for failure to file Undertaking as to Damages

        2.     Whether the entire proceeding be dismissed for abuse
             of process and disclosing no cause of action

6. This is an ex – parte hearing since the Complainants/
Respondents were not present although they are properly notified
and all court documents served.

LAW

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7. Below are the relevant laws considered.

8. Section 155 (4) of the Constitution provides that:


(4) Both the Supreme Court and the National Court have an
inherent power to make, in such circumstances as seem to them
proper, orders in the nature of prerogative writs and such other
orders as are necessary to do justice in the circumstances of a
particular case.

9. The District is a creature of the statute and it assumes its
jurisdiction from the District Courts Act.

10. Section 21 provides for civil jurisdiction.

(1) Subject to this Act, in addition to any jurisdiction conferred by
any other law, a Court has jurisdiction in all personal actions at
law or in equity where the amount of the claim or the amount or
value of the subject matter of the claim does not exceed–

(a) where the Court consists of one or more Principal Magistrates.–
K10,000.00; and

(b) where the Court consists of one or more Magistrates.–
K8,000.00.


(c - d)[15] [Repealed.]

(2) [Repealed.]

(3) Subsection (1) shall not be taken to limit the jurisdiction of
Courts in cases where, by any law, money, irrespective of amount,
may be recovered before a Court.

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(4) A Court has no jurisdiction in the following cases:–

(a) where the validity or effect of a devise or bequest or a
limitation under a will or settlement, or under a document in the
nature of a settlement, is in dispute;

(b) the infringement of trade names;

(c) an action for or in the nature of slander of title;

(d) an action for illegal arrest, false imprisonment or malicious
prosecution;

(e) for seduction or breach of promise to marry;

(f) when the title to land is bona fide in dispute.

(5) Subject to this section, a Court has jurisdiction when–

(a) the defendant, or one of two or more defendants, as the case
may be, is usually resident, or carries on business; or

(b) the cause of action wholly or partly arose; or

(c) the defendant has given an engagement or written promise to
pay a debt or sum at a specified place,

in the area for which the Court is constituted.

(6) A Court has jurisdiction under this section notwithstanding that
the defendant is not within the country, if the defendant is within a
State or a Territory of or under the authority of Australia.

(7) Subsection (6) applies whether the defendant has or has not
ever been resident in or carried on business in the country.

(8) For the purposes of Subsections (6) and (7), “defendant”

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means, where there are more defendants than one, a defendant
not within the country.

11. Section 22 provides for general ancillary jurisdiction:

Subject to this Act, a Court as regards a cause of action for the
time being within its jurisdiction, shall, in proceedings before it–

(a) grant such relief, redress or remedy, or combination of
remedies, whether absolute or conditional; and

(b) give the same effect to every ground of defence or
counterclaim, whether equitable or legal,

as ought to be granted or given in a similar case by the National
Court and in as full and ample a manner.

DEFENDANTS/APPLICANTS’ ARGUMENTS

12. In support of the application, Mr. Muga of counsel for the
Defendant relied on the Affidavit of Christine Copeland filed on 17
December 2018.

13. Mr. Muga made oral submission emphasising on two (2) main
points. Firstly, Undertaking As To Damages and secondly that there
is an injunctive order in place from National Court thus this
proceeding is an abuse of court processes.

14. Mr. Muga submitted that it is a requirement that the
Complainants should file Undertaking As to Damages in obtaining
restraining orders. Mr. Muga argued that the undertakings is not
filed, the interim restraining order should be discharged/dismissed.
It is a requirement in the National Court that in any application for
injunctive orders, undertaking as to damages must be filed.

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15. Mr. Muga submitted that all these are National Court
proceedings on foot and it is a gross abuse of court process that
Mr. Kua, counsel for the Complainant did not disclose this facts to
the court when making application for interim restraining orders.

ANALYSIS

16. I have perused the Affidavit of Christine Copeland in detail
and appreciated the evidence explaining conduct of National
Court proceedings. I agree that Mr. Kua failed to do that and I
appreciated that counsel have put forward these facts through
the affidavit of Christine Copeland. Upon perusal of the Affidavit I
note that the relevant National Court proceeding is OS (JR) NO.
116 of 2017. I have considered the injunctive orders granted on

18th October 2018 by His Honour Justice Gavara - Nanu. I have
not being provided with the Originating Summons to ascertain the
substantive orders sought in that proceeding.

17. This court (District Court) is creative of statute which is the
District Court Act. The Court assumes its jurisdiction from the Act
unless its jurisdiction is specifically provided for by other laws such
as Summary Ejectment Act.

18. Section 21 of the District Court Act gives civil jurisdiction and it
specifically provides monetary jurisdiction which is amount
totalling up to K10,000.00 be heard by Principal Magistrate and up
to K5,000.00 by a Magistrate. This court therefore invoked its
powers under Section 21 and 22 of the District Court Act and
granted interim restraining orders.

19. However, it is not specifically provided for in the District Court

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Act and I have not come across a National Court judgement nor
did Mr. Muga provide any to convince this court that in any
application for restraining orders in the District Court, Undertakings
must be filed. In the absence of such provisions and any case
authorities, I cannot discharge the interim restraining orders for
failure to file Undertakings. Undertaking as to Damages is not
mandatory requirement. It is discretion and it really depends on
the nature and merit of the case. The important requirement that
the Court should consider is whether there is a serious question to
be tried. The National Courts have invoke their powers under
Section 155(4) of the Constitution in granting injunctive orders
including considering whether Undertaking as to Damages are
required (see the case of Muga Logging Company Pty Ltd vs.
South Pacific Oil Palm Development Pty Ltd (No.1) [1977] PNGLR
80 and Kurt Reimann & Others vs. George Skell & Others (2001)
N2093). I was unable to use S.155(4) of the Constitution as it does
not apply to District Courts. I therefore invoked my powers under
Section 22 of the District Courts Act and above mentioned
National Court case authorities to grant the interim restraining
orders.


20. I am also of the view that, in the event the entire proceeding is
dismissed and restraining orders discharged, the defendants may
take recourse against the Complainants in appropriate courts for
damages incurred due to the existence of the restraining orders. I
therefore would not discharge the restraining orders because of
non-filing of Undertakings.

21. Order 2 of the Notice of Motion is refused.

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22. 11. According to the Injunctive Orders, I note, in essence as
follows;

   (a)     GR Logging Limited obtained the injunctive orders
      against Defendants restraining Pulie Anu Timber Company
      Limited, Matufi (PNG) Limited and its agents/servants from
      conducting any activities in the Pulie Anu LFA project site.

   (b)     PNG Forestry Authority and its agents/servants from
      taking any actions in respect to Pulie Anu LFA project.

23. The allegation in this District Court proceeding is that Thomas
Kong and his companies have allegedly interfered with the
Directors of GR Logging Limited and Pulie Anu Timber Company
Limited.

24. There is no mention of Thomas Kong and his companies nor
their interest in the above mention        National Court proceeding
therefore they are not affected in anyway by the National Court
injunctive orders.

25. So I ask myself why is Thomas Kong so interested in the Pulie
Anu LFA project and why is he not included in the National Court if
he has any interest in the said project?

26. All parties including Thomas Kong should respect the National
Court injunctive orders and refrained from any activities in respect
to the project until the National proceeding is fully dealt with.

27. I find that this matter should proceed to proper hearing to
determine whether the Defendants have interest and if so, are
they covered by the National Court injunctive orders. And
whether the allegation that Thomas Kong has detained the

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Directors can be substantiated? This is the crucial issue before this
Court.

28. Furthermore, according to the Affidavit of Thomas Kong filed

on 17th December 2018 at paragraphs 24 and 26 it is deposed
that the Defendants have Basic Project Agreement and Logging
and Marketing Agreement with GR Logging Limited. Why were
these facts not disclosed in the National Court so that the
injunctive orders may reflect to that extent. This is to show that the
Defendants do have interest in the Pulie Anu project. Therefore this
proceeding must proceed to trial proper.

29. Again, I must emphasis here that the Defendants are not
parties to the National Court proceeding and the National Court
injunctive orders may not necessary apply to them and therefore
this court, to maintain the status quo and to give effect to the
intention of the injunctive orders, should maintain the restraining
orders until the substantive issue is fully dealt with.

30. I therefore, I find that, with respect, there is no abuse of court
processes and there is a cause of action disclosed which needs
proper determination.

31. I refuse ground 3 of the Notice of Motion.

FORMAL COURT ORDER

     1.    The Defendants’ application is dismissed.

     2.    Costs be in the cause


     3.    The interim restraining order of 06th December 2018 is

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          further extended to 24th January 2019.

     4.     Parties shall file and serve any or further court
          documents.


     5.     The substantive matter is set for hearing on the 24th
          January 2019 at 9:30am.

________________________________________________________________

Counsel for the Complainant/Respondent: Kua Lawyers

Counsel for the Defendants/Applicants: Simpsons Lawyers

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