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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 285 OF 2018
BETWEEN
EAST NEW BRITAIN PROVINCIAL GOVERNMENT
First Plaintiff
AND
WILSON MATAVA in his capacity as Chairman of the East New Britain Provincial Forest Management Committee
Second Plaintiff
AND
PAPUA NEW GUINEA FOREST AUTHORITY
First Defendant
AND
DAVID DOTANOA in his capacity as Chairman of the NATIONAL FOREST BOARD
Second Defendant
AND
VANIMO JAYA LIMITED
Third Defendant
AND
LOBOT LOTU, HOSEA KUNAM, JOHNA SURUGA, KOPMAN ORIM and THOMAS TURANA as Customary Landowners of the Dengnenge and Loi Resources Areas,
Open Bay, Lassul-Baining Local Government
East New Britain Province
Fourth Defendants
Kokopo: Suelip AJ
2020: 6th March & 18th May
CIVIL - Practice and procedure - Notice of Motion seeking leave to discontinue proceeding - Order 8 Rule 61 (2) - Costs on a solicitor-client basis - Order 12 Rule 1 - Order 22 rule 65 (2)(d) - Cost of the application - decision of earlier separate proceeding on the same Timber Permits in issue - other unresolved issues raised by this Court earlier in this proceeding - utility of proceeding after separate proceeding has decided on the validity of the same Timber Permits
Held:
Cases Cited
Papua New Guinea Cases
Polye v. Papaki (2000) SC637
POSF Board v. Sailas Imanakuan (2001) SC 677;
Pambuai v Benjamin [2005] PGNC 55; N2897
Island Helicopter Services Ltd ta Islands Nationair v. Sagati [2008] PGNC 49;
PNG Aviation Services Pty Ltd v Geob Karri (2009) SC1002
Tarsie v. Ramu Nico Management (MCC) Ltd (2010) N4142;
Deep Sea Fishing v. Critten [2014] N5702;
Kruse v Geita [2015] PGSC 92; SC1849
Luke Lupia v. Exxon Mobil PNG Ltd & Nabor Drilling Ltd [2016] N6484;
Dengnenge Resources Development & Anor v. Vanimo Jaya Limited & 2 Ors (2019) N9750;
Overseas Cases
Sirois v. Centennial Pontiac Buick GMC and Genera/Motors of Canada Ltd (1988), 89 NB.R. (2d) 244
References
Forestry Act 1991
National Court Rules Ch No. 38
Counsel
Jacqueline Marubu, for the Plaintiffs
Seri Mitige, for the First & Second Defendants
Nelson Saroa, for the Third Defendant
Florian Cherake, for the Fourth Defendant
DECISION
18th May,2020
Background
Motion for discontinuance
'161. Discontinuance.
(l) A party making a claim for relief may discontinue proceedings so far as concerns the whole or any part of any claim for relief-by him--
(a) where the pleadings are not closed-without leave or consent; and
(b) where judgment has not been entered-with the consent of all other parties; and (c) at any time--with the leave of the Court.
Issue
9. The issue of course is whether cost of the proceeding should be awarded following the event where the plaintiff would be expected to pay the defendants' costs, or whether costs should be awarded against the defendants in favor of the plaintiff, or whether I should order each party to bear their own cost.
Discretion
Burden of proof
11. The plaintiff should have the burden to show why costs should not be awarded against it since it is the plaintiff that is seeking leave to withdraw, and as such and in the usual manner, cost would be awa11ded in favor of the defendants. The rationale behind this is that it is a plaintiff that has committed or dragged a defendant into the proceeding in the first place. In this case, 1 note that the plaintiff is also asking for cost to be awarded in its favor therefore, it also has the burden to show the exceptional circumstance or reason. If lam convinced or if there is prima facie evidence supporting the plaintiff's contentions, the burden will of course shift and the defendants would have to prove otherwise including their argument that each party should bear their own costs, If the ,plaintiff is unable to provide a valid or exceptional reason then the burden of proof shall remain un-shifted and ] may at this juncture consider whether to order cost to follow the event or otherwise order each party to bear their own costs.
Submissions
The Plaintiff
12. The plaintiffs filed their application seeking leave to discontinue this proceeding on 6 March 2020. They submit the following: -
(i) On l '8 August 2018, the plaintiffs caused a letter to the defendants requesting each of them to consent to the orders sought in the originating summons, failing which the plaintiffs would ask for costs on an indemnity basis, as the defendants did not seem to have a valid defence. This letter was sent three months after the proceedings were filed in May 20 I 8, and four days after the Court pronounced its judgment in OS No. 997 of 2017.
(ii) A second letter was sent to the defendants on 9 April 2019 advising the first and second defendants that the extension/renewal of the Timber Permits was done without foHowing the proper procedures. The plaintiffs also indicated then that it would ask for costs on indemnity basis. The plaintiffs' lawyer presented as evidence in her affidavit several "without prejudice" letters to prove its attempts to resolve the issue already determined in the other proceeding.
(ii) The plaintiffs say that the first and second defendants agreed that all defendants pay the plaintiffs" costs on a party/party basis in equal portions.
{iv) During the course of the proceeding, the third defendant filed an appeal and 3 Notices of Motion to dismiss this proceeding, all of which were dismissed. The fourth application filed by the third defendant to dismiss for want of prosecution is pending.
(v) There is no defence. The plaintiffs' continuous attempts for the defendants to sign consent orders to discontinue the proceedings for lack of a defence and in view of the earlier proceedings over the same timber permits were unsuccessful.
(vi) The continuous delay by the defendants, especially the third defendant when he filed an appeal and four Notices of Motion to dismiss the proceedings showed the defendants Jacked any defence.
(vii) The plaintiffs seek discontinuance due to the judgement of the other proceeding as the issues concern the exact same timber permits.
(viii) the plaintiffs therefore asks for costs on a solicitor/client basis against all the defendants.
The first and 'second defendants
(ii) The second defendant, in his wisdom varied the terms of the subject timber permits and Timber Rights Purchase (TRP) agreement to expire in 2019.
(m) No parties in this proceeding sought to join or consolidate this proceeding with the other proceeding.
(iv) The first and second defendant did not cause any delay in defending this proceeding.
(iv) The third defendant filed a Supreme Court appeal which was dismissed and caused delay.
(v) By a letter to the plaintiffs dated 10 February 2020, the first and second defendants agreed for the plaintiffs to discontinue the proceedings and for all defendants to pay costs equally. However, if the third defendant insists that only the first and second defendants pay the plaintiffs' costs then the third and fourth defendant should pay the plaintiffs' costs because the third defendant was not the original timber permit holder, and the fourth defendant supported the third defendant's application when they knew that the permits and TRP agreements have expired.
The third defendant
Thee fourth defendant
(i) They were joined as the fourth defendant on 8 March 2019.
(ii) There are unresolved issues for the Court to determine and these issues are:
(a) Whether the Provincial Forest Management Committee has an important role to play for extension or renewal of timber permits,
(b) If so, whether the plaintiffs· had their input in providing the necessary report to the PNG Forest Authority Board as required in Section 78(3) of the Act.
(iii) That the "without prejudice" correspondence annexed in the plaintiffs' lawyers affidavit sworn and filed on 26 February 2020 are privileged and should not be admitted as evidence to support their application for leave to discontinue.
(iv) The first and second defendants are the regulators of the forest ministry in Papua New Guinea and ought to perform their functions and responsibilities in accordance with the requirements and procedures of the Act, failing which they must be held responsible for their actions or inactions.
(v) By granting the extension/renewal to the third defendant without administering some of the mandatory steps pursuant to the Act, the · first and second defendants' should meet the costs of the proceedings for the plaintiffs and the third and fourth defendants'.
Consideration
Other matters of consideration
(i) The judgment of OS No. 997/17 delivered on 14 August 2019,
(ii) The delay in listing this matter for hearing, taking into account the vacation period,
(iii) The two unresolved issues in the ruling by Susame AJ on 11 November 2019, and whether these issues will affect or alter the
decision of OS No. 997/17 regarding the same timber permits in issue,
(iv) Whether the "without prejudice" correspondence are inadmissible.
(v) The party responsible for all the decision making of granting or refusing to grant Timber permits.
(vi) Prejudice to each party, and
(vii) Each parties attitude and conduct to progressing the proceeding to finality.
Summary
(i) Leave is granted to the plaintiffs to discontinue this proceeding.
(ii)Each party is to pay its own costs of the proceeding and cost of the application.
________________________________________________________________
Marubu Lawyers: Lawyers for the Plaintiffs
PNGFA In-house Lawyers: Lawyers for First and Second Defendants
Saroa Lawyers: Lawyers for Third Defendant
Cherake Lawyers: Lawyers for the Fourth Defendant
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URL: http://www.paclii.org/pg/cases/PGNC/2020/343.html