Belford v Neville [1993] PGNC 54; [1993] PNGLR 381 (18 May 1993)

PNG Law Reports 1993

[1993] PNGLR 381 - James Belford v Timothy Neville 

[1993] PNGLR 381

N1172

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JAMES BELFORD

V

TIMOTHY NEVILLE

Waigani

Sheehan J

18 May 1993

ADMINISTRATIVE LAW - Forestry Act - Functions of Forest Authority - Minister to consult Authority on guidelines for industry - Allegation of non-consultation - Ex parte application for temporary injunctive relief.

Facts

The plaintiff sought through an ex parte application an injunction to restrain the defendant from placing any proposed National Forestry Development Guidelines not fully disclosed to, or not seriously considered by, the National Forest Board, pursuant to s 47(2)(c)(i) of the Forestry Act 1991, before the National Executive Council for endorsement pursuant to s 47 of the Act.

Held

Any application for restraining orders pursuant to an ex parte application must follow strict rules. These rules provide that an applicant must establish that he has a sufficient interest, an arguable case, and that the balance of convenience lies in granting the relief. Since the applicant satisfied all these requirements, temporary orders were granted.

Counsel

E Anderson, for the plaintiff.

18 May 1993

SHEEHAN J: This ex parte application for interim orders relates to issues arising in the formulation of policy for the regulation and future conduct of, the forestry industry in Papua New Guinea.

Under the Forestry Act 1991 No 30 of 1991, the Papua New Guinea Forest Authority is constituted and given wide ranging duties and responsibilities to oversee "the management, development and protection of the Nations forest resources..." in Papua New Guinea. The National Forest Board "manages the affairs and exercises the powers of the Authority".

By s 47 of the Act, the Forest Authority is required to cause to be drawn up a National Forest Plan to provide a detailed statement of how the national and provincial governments intend to "manage and utilize the country's forest resources" (s 47(1)). That plan is to consist of, inter alia, "National Forestry Development Guidelines prepared by the Minister (of Forests) in consultation with the Board and endorsed by the National Executive Council" (s 47(2)(c)(i)).

In the application before the Court, a claim is made and supported by affidavit that it is the Minister's intention to bypass the Authority, and not to properly consult with it. On 30 April 1993, on very short notice (two days), the Minister placed before the National Forest Board part only of his proposed National Forestry Development Guidelines. No time was given for serious consideration of the part disclosed, and the Minister has since refused to disclose other essential parts of it. He has also refused further opportunity for the Board to give appropriate consideration of the whole proposal. It is claimed that the position adopted by the Minister in by passing the provisions of Forestry Act precludes the Authority from exercising its statutory function and can, and will, have serious consequences.

This action has been commenced by the plaintiff both as an individual claiming a personal interest, as a member of the forestry industry, a member of the Forestry Industry Association, and as a sitting member of the National Forest Board.

In answer to the Court's concern that the Board itself had taken no action, the plaintiff pointed out that, while the Board had met at short notice on 30 April to hear the Minister's proposals, it was bound by its own procedures in the calling of a meeting to formally consider its position in this matter. Fourteen days' notice must be given, and that had left it too little time to act. The plaintiff, on behalf of the Forestry Industry Association, has in fact called for such a meeting to take place as soon as may be possible and that Association also supports the plaintiff in this application.

He also pointed out that at the meeting of 30 April, the Board, in fact, kept no minutes and passed no resolutions concerning the incomplete draft produced before it. He also advised that notice of the Minister's intention to proceed to lay the guidelines before the NEC without further consultation was only confirmed yesterday; hence this urgent application.

The essential reasons for hearing an application ex parte is because of an alleged urgency to protect an interest. But any application for restraining orders pursuant to such an application must follow strict rules. Those rules provide that an applicant must establish that he has sufficient interest - a legitimate interest to protect. He must show that he has an arguable case, not necessarily an indisputable right but a claim that should be heard. If those issues are established, the Court must then be satisfied that the balance of convenience lies in granting orders in restraint (in this case maintaining the status quo prior to the supposed consultation) rather than taking no action and letting matters proceed to a conclusion. That raises the possibility that if the plaintiff were to succeed at the hearing of this action the Court might then be called on to strike down the defendant's initiatives as being contrary to law.

The Court, when hearing an ex parte application, always keeps in mind that it is hearing one side only. It must not - and does not - make any final decision on the issues. It acts, if at all, only if convinced that, on the information before it, there is an urgent need to make a temporary order to maintain the status quo.

The National Forest Board's position may still be equivocal. It might or might not subsequently approve the Minister's incomplete draft, it might or might not receive subsequent information from the Minister, consider it, and accept it. But whatever subsequently occurs, the plaintiff has, I believe, at least at this stage, the status as a member of the Forestry Industry Association and the National Forest Board to ensure that the provisions of the Forestry Act are complied with.

As to whether there is an arguable case, the assessment to be made by the Court in ex parte motions can only be made from the nature of the claim lodged and the evidence before the Court.

To my mind, the essential elements of this claim, at this stage, on the information before the Court are the contention that there has not been proper consultation with the National Forest Board and that only a partial disclosure of the proposed guidelines has been made to the Board. The latter point is confirmed, in part, by the advice to the members of the Forest Board dated 28 April 1993.

That reads:

"Certain sections of the Guidelines have been deleted as they contain sensitive political initiatives which the Minister wishes to announce in Parliament...

Until the Minister and the NEC have approved them (Guidelines) they should not be regarded as a public document but kept confidential".

The guidelines forwarded to the Board members and tabled at the meeting of 30 April 1993 had a six page section relating to forest revenue missing.

There is also an assertion that the Minister intends to proceed on these partially disclosed guidelines without further disclosure to the Board and without further consultation. That seems to me to constitute at least an arguable case on the part of the plaintiff that the statutory procedures are not being followed, and the interests of the Authority are being ignored.

The remaining issue is whether, on the balance of convenience, injunctive orders should issue. The Court here must always bear in mind the nature of the interest the plaintiff claiming ex parte relief seeks to protect. It must also be reasonably sure that the orders sought will, indeed, hold the status quo and are necessary to protect the legitimate interests of the applicant until a proper inter-party determination of the dispute can be made.

I believe that the balance does lie in granting temporary orders at this stage. The Board and its members have a statutory function protected by law. Of course, any restraints on the Minister preventing him from proceeding with his duty under the Forestry Act, to be occasioned by such orders, must not be oppressive. They must be of as short a duration as possible. The status quo should only be held long enough to enable the Minister to respond to these proceedings.

Accordingly there will be orders that:

N2>1.       An injunction is issued restraining the defendant from placing any proposed National Forestry Development Guidelines not fully disclosed to or considered by the National Forest Board pursuant to s 47(2)(c)(i) of the Forestry Act 1991, before the National Executive Council for endorsement pursuant to s 47 of the act until Thursday 20 May 1993.

N2>2.       The Court may be approached at any time prior to that by any party.

N2>3.       Time is abridged.

Lawyer for the plaintiff: Gadens Ridgeway.