Papua New Guinea Forest Authority v Concord Pacific Limited (2003)
Interlocutory decision on the appropriate mode of proceedings
Logging companies mentioned in this document:
N2423
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS. NO. 411 OF 2003
PAPUA NEW GUINEA FOREST AUTHORITY
Plaintiff
AND:
CONCORD PACIFIC LIMITED
First Defendant
AND:
PAISO COMPANY LIMITED
Second Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
WAIGANI: KANDAKASI, J.
2003: 6th and 8th August
PRACTICE & PROCEDURE – Appropriate mode of proceedings – Action seeking to
declare a deed of settlement null and void – Only issue whether the deed was entered into
under mistake of fact and is therefore null and void – Other issues such as estoppels and
damages are consequential on a determination of the main issue – Originating summons
appropriate mode – O.4 r.3 National Court Rules.
Cases Cited:
Koitaki Farms Limited v. Kemoko Kenge & Ors (09/07/01) N 2143.
Counsel:
Mr. I. R. Shepherd for the Plaintiff/Applicant.
Mr. J. Yagi for the Defendant/Respondents.
8th August 2003
KANDAKASI, J: I have before me an application by the plaintiff for the substantive
matter in these proceedings to be given an expedited hearing. This is because the World Bank
has given the plaintiff and therefore the Government of Papua New Guinea until 30th August
2003 to resolve the issues raised in these proceedings.
The World Bank is the supervising authority under a loan agreement with the State and the
International Bank of Reconciliation and Development dated the 20th of December 2001. It
was a condition of the loan agreement that the State would comply with recommendations of
the Independent Forestry Review Team (IFRT). The IFRT was extremely critical of the
Aiambak –Kiunga Project to which these proceedings relate, and World Bank directed the
plaintiff to comply with all of the relevant provisions of the Forestry Act. This includes a
determination of a validity of the Deed of Settlement dated 12th December 2002 ("the
Deed") between the plaintiff and the defendants before the 30th of August 2003. That is
consequential on an observation of the IFRT that the relevant Timber Authority (TA), 024
expired on the 18th of April 2000.
The first and second defendants take issue on the mode of proceedings chosen by the
plaintiff applicant. They argue through counsel, that the matter requires an examination and
resolution of a number of legal and factual issues based on the Deed. These are that TA.024
continued validly and the alternative the plaintiff is estopped from denying its validity as
they have relied on its validity and have suffered detriment. Hence, if the Deed is declared
null and void, they will sue for damages. These issues they argue require proper pleadings
and are therefore not appropriate to raise under an originating summons. Accordingly, they
have filed a motion seeking orders for these proceedings to continue on pleadings.
There is no specific argument by the first and second defendants against the need for this
matter to be given an expedited hearing. Also the first and the second defendants do not take
any issue on the question of, whether or not the Deed is valid, is a determinative issue. There
is also no dispute that other issues are dependent on a determination of the determinative
question.
So the only issue before me is, has the plaintiff chosen and used the correct mode of
proceedings?
As I said in Koitaki Farms Limited v. Kemoko Kenge & Ors (09/07/01) N 2143:
"Under our Rules, there are two modes of commencing most civil proceedings. The
exceptions to that are limited. They are miscellaneous proceedings for other
miscellaneous proceedings such as company wind ups and matrimonial or such other
causes where the Rules or an Act of Parliament allows for other modes of
commencing proceedings."
"The relevant provisions are Order 4 Rules 2(2) and 3(2). These provisions
respectively state that:
‘2. Where writ of summons required. (4/2)
(1) Proceedings shall be commenced by writ of summons —
(a) where a claim is made by the plaintiff for any relief or
remedy for any tort; and
(b) where a claim made by the plaintiff is based on an
allegation of fraud; and
(c) where a claim is made by the plaintiff for damages for
breach of duty (whether the duty exists by virtue of a
contract or of a provision made by or under an Act or
independently of any contract or any such provision),
and the damages claimed consist of or include
damages in respect of the death of any person or in
respect of personal injuries to any person in respect of
damage to any property; and
where a claim is made by the plaintiff for damages for a breach
of promise of marriage.’
‘3. Where Plaintiff may choose (4/3)
(2) Proceedings —
(a) in which the sole or principal question at issue is, or is
likely to be, one of the construction of an Act or of any
instrument made under an Act, or of any deed, will,
contract or other document, or some other question of
law; or
(b) in which there is unlikely to be a substantial dispute of
fact; or
(c) in which a person is authorised by an Act, regulation or
by these Rules to make an application to the Court or a
Judge with respect to a matter that is not already the
subject matter of a pending cause or matter, and no
other mode of making the application is prescribed by
that Act, or regulation or by these Rules, are amongst
those which are appropriate to be commenced by
originating summons unless the plaintiff considers the
proceedings more appropriate to be commenced by writ
of summons.’"
Depending on the nature of one’s claim and the issues it raises, the rules have given a
plaintiff an option to choose one of a number of modes of commencing proceedings before
this Court. It is clear from the provisions of Order 4 Rule 3(2) that where the proceedings
involve the construction of a deed, contract or any other document, it is appropriate to use
the Originating Summons process. This mode of proceedings can also be used where there is
unlikely to be substantial dispute of the relevant facts.
In the Koitaki Farm (supra) case, I found that the facts were not substantially in dispute. I
therefore found that the use of an Originating Summons was correct.
In the present case, the main issue for determination is the validity of the Deed of Settlement
between the parties. The plaintiff is claiming that the deed is invalid on the basis of a mistake
of fact as to the currency of TA. 024. This is a succinct question of mixed fact and law in my
view. It is a factual issue because the Court must be informed of the facts as to the parties’
knowledge of the fact of the expiry date of TA. 024. Then based on a finding of the relevant
facts, the Court will have to decide the consequence that should follow as against the validity
of the Deed. The other issues the first and second defendants raise can not be raised on their
own until the validity of the Deed is first resolved.
In these circumstances, I do not consider it appropriate that the proceedings should be
ordered to continue on pleadings. If so ordered, it will delay a determination of the
determinative issue and the Court may be made or caused to side track from staying focused
on the determinative issue. It may also involve the parties in unnecessary costs. A
determination of the issues presented in these proceedings will in my view help to decide
where they stand and the kind of steps they should take instead of taking all of the steps at
the same time, only to find some of them being rendered unnecessary upon a determination
of the determinative issue. Thus in my view, it is fair, reasonable and just to all of the parties
that the determinative issue be first resolved without wasting time and costs unnecessarily.
It is therefore fair, reasonable and justice to all the parties that the determinative issue to first
resolve without the wastage of time and costs quite unnecessarily.
For these reasons, I do not consider it appropriate that the proceedings should be allowed to
continue on pleadings. Accordingly, I order a dismissal of the application of the first and
second defendants.
This leaves me to decide whether or not to grant the plaintiff’s application. I note once again
that there is no issue on the basis for the application and the need for it. Besides, the parties
agreed that the determinative issue has to be first determined. In these circumstances, I
would grant the application of the plaintiff. But before I make the appropriate orders, I note
that simply ordering the matter to go before the Registrar to allocate a date for hearing will
not expedite the matter. I therefore propose to issue a number of directives to get this matter
to a stage of readiness for hearing well before the 30th of August 2003. The directions I
propose are the following:
The plaintiff to draft and forward to the defendants’ lawyers a draft statement of the
basis of its claim with full particulars and the relevant facts by Tuesday the
12th of August 2003.
The defendants’ lawyers to respond to the draft statement referred to above setting
out with full particulars its response including the facts they rely on by the
19th of August 2003.
The parties then agree on the final text of the statement by the 21st of August 2003
and the plaintiff file the statement with the Court by the same date.
The Parties then attend the Court on the 22nd August 2003 for a hearing of this
matter at 1:30pm. I have now consulted the parties and with their agreement, I issue directions in the terms proposed above. _________________________________________________________________________ Lawyers for the Plaintiff: Blake Dawson Waldron Lawyers Lawyers for the First and Second Lawyers: Yagi Lawyers
