N8320
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 116 OF 2017

G.R. LOGGING LIMITED
Plaintiff

V
DAVID DOTAONA as Chairman for the National Forest Board and Mr. TUNGU SABUIN, Mrs JENNY VEISAMI, Ms. JOESPHINE GENA, Mr. GUNTHER JOKU, Mr. JACOB AREMAN and Mr. BOB TATE as members of the National Forest Board.
First Defendant

And
HONOURABLE DOUGLAS TOMERIESA MP as Minister for Forests
Second Defendant

And
THE PNG FOREST AUTHORITY
Third Defendant

And
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

And
PULIE ANU TIMBER COMPANY LIMITED
Fifth Defendant

And
MATUFI (PNG) LIMITED
Sixth Defendant

Waigani: Miviri J
2020: 19th May

PRACTICE & PROCEDURE – Judicial Review & appeals – Originating summons – Plaintiff Company application for Leave – discontinue proceedings – Company person in law – Directors not persons apart from Company – No application for Joinder – cost follow event.

Cases Cited:

Marape v O’Neil [2015] PGSC 65; SC1458
Alvi v Tepoka [2006] PGSC 39; SC1151
Tarsie v Ramu Nico Management (MCC) Ltd [2010] PGNC 144; N4142

Counsel:

A. Furigi, for Applicant
T. Tape, for Fifth Defendant 
No appearance First, Second, Third, Fourth & Sixth Defendants

RULING
 20th May 2020
1.	MIVIRI, J: This is the ruling of the Court on an application by notice of motion dated the 27th April 2020 filed by the Plaintiff logging company through its lawyers on record, Furigi Lawyers, per Andrew Furigi of counsel, that pursuant to Order 8 rule 61 (2) of the National Court Rules leave be granted it to issue Notices of Discontinuance of this proceedings. 

2.	The use of the term “may” under sub rule (2) denotes exercise of Judicial discretion which involves consideration of the facts pertaining. In this regard here the plaintiff relies on the affidavit dated the 27th April 2020 by Andrew Furigi of counsel who deposes that he is instructed by the plaintiff to act for them. And it is their instructions to him to seek leave to discontinue the proceedings. He enlightens that there is internal dispute within the company as to who are the validated legitimate office bearers. And this court presided by Justice Makail resolved by its decision of the 24th April 2020 in OS No. 836 of 2018 that Michael Beno led group of directors and shareholders were validly appointed and remained, who are the group instructing here. Which instruction are now the subject of this proceeding. 

3.	The other group led by one Paul Aivia disputing within the group engaged Simpson Lawyers through counsel Mr Ian Shepperd, sought to apply for an adjournment of the proceeding and also opposed this motion current. Plaintiff countered that they were not parties to this proceeding and could not maintain in the light of the decision of this court supra. 

4.	In my view that matter has been settled by this court by its decision supra. And in effect means they are not before the court. They are not parties to the proceedings and do not have rights of appearance without leave of court by an application to join in accordance with the rules. On the converse they were not initial parties as in Marape v O’Neil [2015] PGSC 65; SC1458 (29 September 2015) by Mathew Damaru and Timothy Gitua sixth and seventh respondents as parties to the appeal who were being sought to be removed by the other respondents. The Supreme Court there rejected the application reasoning that both were police officers initial in the charging of the suspect Paul Paraka and therefore were material to the threshold issue raised of using a civil proceeding to stop a criminal proceeding. The exercise of discretion by the National Court was proper and so their participation as parties named was proper and continued remaining.

5.	In the present that is not the case and the matter has not come by way of an application to joinder under Order 5 Parties and Cause of Action under Rule  2 or 3. It means the other group is not before the court, counsel in that matter in that regard representing is not properly before the court by the rules and the law. And this is cemented by the Judgement of this court set out above, firmed by Alvi v Tepoka [2006] PGSC 39; SC1151 (1 September 2006) that lawyers only act on instructions by the client. And it would be exercise in excess of authority where a lawyer acts as here in regard to the other group not before the court. Because this is a matter involving the Plaintiff company. In law that is the only legal person Section 16 of the Companies Act 1997, giving instructions here not the directors or any other person. Its opposition to the application for leave is not before the court in any form or manner. So, Mr Ian Shepperd of counsel there was not properly before the court as the company plaintiff instructing lawyer on record was Furigi Lawyers counsel hence counsel in court Mr Andrew Furigi.

6.	That was the ruling of this court when counsel Mr Ian Shepperd sought to be heard on the matter after a brief adjournment.

7.	For the defendants all are not before the court except the Fifth defendant who has not opposed the application. It means effectively the application is not opposed and should readily be given. Parties must be encouraged to solve their disputes between themselves amicably without the persistence to pursue in court always: Tarsie v Ramu Nico Management (MCC) Ltd [2010] PGNC 144; N4142 (24 September 2010). Encouraging parties to act in this way will ease the already congested list and time of the court to deal with matters that are really in dispute where there is no solution in the hands of the parties except by the court.   

8.	There is no reason apparent or identifiable to refuse the application for leave to discontinue. In total I am satisfied on the material that has presented by the plaintiff that leave be accorded to discontinue the proceedings. Counsel will take out the formal orders for the endorsement of the court as ordered.

9.	Accordingly, plaintiff’s motion for leave is granted. Because of the discussions set out above each party will bear its own costs.
Orders Accordingly.
__________________________________________________________________________
Furigi Lawyers: Lawyers for the Plaintiff/Applicant		
Kandawalyn Lawyers: Lawyers for Fifth Defendant