Aloysius v China Harbour Engineering Company (PNG) Ltd [2023] PGNC 203; N10265 (5 May 2023)

N10265

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 437 OF 2019

BETWEEN
BUNI MORUA ALOYSIUS for himself and on behalf of 79 other Occupants of Portion 1189 of Laloki, Central Province (whose names are appended to the Writ)
Plaintiffs

AND
CHINA HARBOUR ENGINEERING COMPANY (PNG) LIMITED
First Defendant

AND
CHINA HARBOUR ENGINEERING COMPANY LIMITED
Second Defendant

AND
RUEL YUMUNA, in his capacity as the Managing Director of Climate Change Development Authority
Third Defendant

AND
CLIMATE CHANGE & DEVELOPMENT AUTHORITY
Fourth Defendant

AND
GUNTHER JOKU in his capacity as the Managing Director of Conversation & Environment Protection Authority
Fifth Defendant

AND
CONVERSATION & ENVIRONMNET PROTECTIONS AUTHORITY
Sixth Defendant

AND
HONOURABEL VERA MORI as Minister for Environment Conservation & Climate Changes
Seventh Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Eighth Defendant

Waigani: Linge AJ
2023: 16^th & 27^th February

CIVIL – assessment of damages - claims for damages for environmental damage- defendants moving onto property without plaintiffs’ consent – first and second defendants cause destruction to environment while constructing bridge – defendants liable for causing environmental damage to plaintiffs land – award of exemplary damages

The lead plaintiff settled on the Laloki land in 1980 and in 1986 title to the land was granted to his father Aloysius Morua. On the 22 June 2018 the plaintiff and his 3 siblings acquired the title as joint tenants. They and family and relatives live on the subject land and use the said land for gardening, poultry, piggery and other undertakings for marketing and for their daily subsistence. In January 2015, the first and second defendants moved on to the part of the property in the course of performing maintenance and reconstruction work on the Laloki Bridge, located outside of Port Moresby under contract from the State. The contract was undertaken by China Harbour Engineering Company Limited (CHECL) on behalf of both defendants. The plaintiffs claim environmental and other damages from the first and second defendants.

Held:
1. The first and second defendants are liable to the plaintiff for the environment damage caused by China Harbour Engineering Company Limited.

2. The first and second defendants entered the subject property without the consent or authority from the joint tenants including Morua Aloysius.

3. A substantive amount as exemplary damage will serve as a deterrence and as punitive against callous and reckless conduct unbecoming of companies undertaking public contracts.

Cases Cited:

Papua New Guinean Cases
Steven Naki –vs- AGC (Pacific) Limited (2006) N5015
Boyd Construction v Sister Elizabeth Koai (2017) N6702
Frank Onga v. The General Manager Engineering Management Pty Ltd
William Mel –vs-Coleman Pakalia (2005) SC790
Yooken Paklin v The State (2001) N2212
Albert Baine v The State (1995) N1335
Peter Wanis v Fred Sikiot and The State (1995) N1350
Yange Lagan and Others v The State (1995) N1369
Obed Lalip and Others v Fred Sikiot & The State (1996) N1457
Jonathan Mangope Paraia v The State (1995) N1343
MVIT v Tabanto [1995] PNGLR 214
Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274
Infratech Management Consultancy vs State (2018) N7368
Covec (PNG) Ltd v Kama (2020) SC1912
James Waisime v Auskoa Enterprises Limited (2019) N7727
Simon Mali & Ors v The State [2002] PNGLR 549

Overseas Cases
Livingston v Raywards Coal Co [1880] 5 App Cases 25
League Against Cruel Sports v Scott [1985] 2 All ER 489
Hall v Barclay [1937]3 All E.R 620

Counsel:
Mr. Nickson Kiuk, for the Plaintiff
No appearance by the First and Second Defendants

RULING

5th May, 2023

1. LINGE AJ: This is my ruling on Assessment of Damages following default judgment on 25 September 2020. The default judgment is against the first and second defendant. I conducted trial on assessment on the 27 February 2023 and this is my ruling.

Facts

2. The principal plaintiff Buni Morua Aloysius and his four (3) siblings namely, Lucas Aloysius, Lawrence Morua and Mary Morua are joint tenants of the property contained in the State lease described as State Lease Volume 101, Folio 87, Portion 1189, Granville Milinch, Fourmil of Port Moresby, National Capital District (herein after referred to as “the subject land”) on the 22 June 2018.

3. The principal plaintiff and his other family members and relatives live on the subject land. They claim to have permanent buildings, structures, and chattels. They also claim to use the said land for gardens, raised poultry, piggery and other undertakings for marketing and for their daily subsistence.

4. In January 2015, the first and second defendants signed a contract with the State for the maintenance and reconstruction work on the Laloki Bridge, located outside of Port Moresby, within the boundaries of Central Province. The contract was undertaken by China Harbour Engineering Company Limited (CHECL) on behalf of both defendants.

5. The plaintiffs claim that CHECL commenced work on the project without obtaining the necessary permits or license under the Environment Act 2000 nor undertook appropriate enquiries and investigations as required under the said Act and other applicable laws in PNG. In short CHECL did not adhere to the letter of the law prior to commencement of the work.

6. The first and the second defendants also encroached and trespassed on to the subject land and used the area as a dumping or disposal site for waste materials. CHECL also established a Quarry on the subject land to extract gravel, sand and rocks for their use in the project. As a result of their unlawful activities, the subject land was exposed to contamination and pollution.

7. The principal plaintiff and members of his family raised complaints and made representation to authorities including the Conservation and Environment Protection Authority (CEPA) resulting in a report produced by CEPA in August 2018 titled “Rapid Environmental Impact Investigation Report for Laloki Bridge Construction & Quarry Activity by China Harbour Engineering Company (CHEC)Ltd”. The principal finding of the report was that the first and second defendants had failed to obtain the relevant permits for civil works.

8. The plaintiffs then engaged Chem Clean Environmental Services Ltd which conducted an independent environmental survey and assessment on the subject land. In September 2018 it produced an Assessment Report which concluded in its findings that the first and second defendants caused damage to the environment by its operation estimated to be in the sum of K13, 981, 700.00.

9. Henceforth the plaintiffs made representations to the first and second defendants on the environmental damage claim but that was refused and instead the first and second defendants undertook to carry out environmental a clean-up. It turned out that this cannot be done as they did not have the valid permits. Clean up directives are only given to environment permit holders after project completion. The only recourse for the plaintiff was to file an environmental damage claim.

10. On the 18 April 2019 the plaintiff filed this proceeding against the first and second defendants who filed their Notice of Intention to defend on the 8 June 2019 but failed to file their respective defence.

11. The first and second defendants filed an application seeking dismissal of the proceedings for lack of standing of plaintiffs which was dismissed on 7 February 2020 by Kandakasi DCJ and ordered the plaintiffs to amend the original Statement of Claim. The Amended Writ of Summons was then filed on 6 March 2020 and served on the first and second defendants through their lawyers David & Co Lawyers, on 20 March 2020.

12. The first and second defendants did not file their defence to the Amended Statement of Claim. They have also failed to file any application seeking leave to file defence out of time.

13. The 3^rd, 4^th, 5^th, 6^th, 7^th and 8^th Defendants filed their defence through the Solicitor- General.
14. On or about 15 August 2020 the plaintiffs engaged an independent environmentalist, Thomas Takaku to review the Assessment done by Chem Clean Environmental Services Ltd. He affirmed their findings of environmental damage to the environment by the operation of the first and second defendants.

15. On the 25 September 2020, His Honour Kandakasi DCJ entered default judgment for the plaintiffs on liability with damages to be assessed, with other direction orders. The terms of the Court Order are as follows:

1. The Third to Eight Defendants are granted leave to withdraw their notice of motion filed on 17^th September 2020, by reason of which that motion was stands withdrawn as of today.
2. Costs of the withdrawn motion are ordered to be costs in the cause.
3. Judgment in Default of the First and Second Defendants’ defence with damages to be assessed.
4. The Costs of the Plaintiffs’ motion are ordered against the First and Second Defendants to be taxed.
5. The parties are required to have this matter resolved, for which purpose the Plaintiff shall forward a settlement proposal to the defendants by 30^th October 2020 to which the Defendants shall respond by 30^th November 2020.
6. Also, the Plaintiff shall draft and forward to the Defendants by 30^th October 2020 a Statement of the relevant facts and issues presented for resolution to which the Defendants shall respond to by 30^th November 2020.
7. The Statement of Facts and Issues shall be in the form of a table having three columns with the first one containing paragraph numbers, the second stating only the relevant facts chronologically guided by the questions of who said or did what to whom, when, where, how and manner and form and the consequences if any that followed but without stating any arguments, submissions, conclusions, opinions or the law, with the final column indicating where appropriate any disputed facts with a statement of the alternative narrative and concluded with a statement of the issues for resolution immediately below the table.
8. The parties shall meet in settlement conference by 4^th of December 2020 and discuss the matters in dispute between them in the substantive matter, have them resolved and incorporate the terms of settlement into a draft consent order for the Court’s endorsement.
9. Failing settlement, the parties shall settle the Statement of Facts and Issues and shall come ready to address the court on the matters in dispute between them for the court to consider and issue a binding opinion or refer the matter for resolution by mediation.
10. For the purpose of any mediation order, the parties shall come with a draft consent order with agreements on the mediator to be appointed, all fees payable and the dates for various steps to be taken including the actual mediation conference dates.
11. The matter will next return on 7^th December 2020 at 9:30am or soon thereafter.
12. Time for entry of these orders is abridged to take place forthwith upon the Court signing them.”
    

16. The plaintiff-initiated compliance measures relating to Terms 5 to 10 of the order of 25 September 2020 including a settlement proposal, draft Statement of the relevant facts and issues, arrangement to meet in settlement conference and consent mediation order. The affidavit evidence of Buni Morua Aloysius filed 21 February 2021, Doc. 63, deposed to total lack of interest by the first and second defendants and failure to attend meetings called and partake in mediation.

17. The lead plaintiff then engaged the services of environmental experts headed by Professor Chalapan Kaluwin, Dean of School of Natural & Physical Sciences at the University of Papua New Guinea. The experts undertook investigations, did on site test and scientific analysis as well as review the previous findings by CEPA and Chem Clean Environmental Services Ltd. In February 2021 the experts produced a Report under the Awab Environment and Conservation Services. The Report titled, “Laloki Bridge Quarry Extraction and Impact on Portion 1189 – A Post Impact Valuation and Assessment”. The Report is annexed to and is an integral part of Affidavit of Professor Kaluwin.
Evidence

18. The plaintiffs’ evidence is categorized into three (3):

(a) Ten (10) affidavits filed by the four (4) siblings: Buni Morua Aloysius, Lucas Aloysius, Lawrence Morua and Mary Morua.

(b) One affidavit each containing Reports of environmental assessment by the experts

(i) Professor Chalapan Kaluwin sworn, 1 July 2022, filed on 4 July 2022.

(ii) John Genolagani sworn on 1 July 2022, filed 4 July 2022.

(c) Thirty- six (36) affidavits filed by the permitted land users allegedly affected by the actions of the first and second defendants.
19. The first and second defendants did not file any affidavits in response to the plaintiffs’ affidavits nor for purposes of the substantive trial. There are no affidavits filed post amendment of the Writ of Summons. Only two affidavits were filed prior to the filing of the Amended Writ for the First and Second Defendants by:
(a) Wang Hao sworn & filed on 9 December 2019- Court Doc # 25.
(b) Xu Changfeng sworn & filed on 2 August 2019 - Court Doc # 12.

20. However, the First and Second Defendants filed their Notice of Objection and Cross- Examination on 7 October 2022. Whilst the Third to Eight Defendants did not file any notice to Cross-Examine the Plaintiffs.

Trial on Assessment

21. On the 27 February 2023 I proceeded to conduct the trial on assessment. Mr. Malis Minimbi appeared for the first and second defendants and made an application from the bar table for trial to be vacated. I refused the oral application in the interest of justice as the Notice of Hearing had been served on the first and second defendant. In refusing the purported application I intimated to Counsel that he has liberty to remain and to cross examine the plaintiff’s or raise issues with the plaintiff’s witness based on the notice of objection and cross examination already filed. Mr. Minimbi submits to the Court that his instructions only pertain to seeking vacation of the trial. He then sought leave of the Court and vacated the bar table.

22. Mr. Sopane of Davidson & Company Lawyers, the lawyer on record who was not at the bar table for the reason of not being duly registered to practice for 2023 at the time, also left the Court without seeking leave to appear.

23. Ms. Mesa appeared for the State and sought leave to file an affidavit and to also seek vacation of trial date, which I refuse. From the notation on file, it was apparent that the State ceased to be an interested party. She then sought leave and vacated the bar table.

24. Trial proceeded with the plaintiff calling two expert witnesses, 4 siblings who tendered 9 affidavits and 39 land users who had filed affidavits. There was no appearance by the first and second defendants and at the close of the trial on the 2 March 2023. I adjourn for seven (7) days for plaintiff to prepare for submission which I heard on the 9 March 2023.
Submission

25. Mr. Kiuk submits that the claim is for liquidated damage caused by the first and second defendants to the subject land area, jointly owned by the principal plaintiff and his 3 other siblings. The plaintiffs rely on three (3) assessments made by panels of experts. Two (2) of these, CEPA and Chem Clean Environmental Services Ltd concluded that damage was caused to the environment by the operation of the first and second defendants which they assessed to be in the sum of K13, 981, 700.00. The other, Awab Environment and Conservation Services concluded its assessment of the value taking into consideration all other factors is K 8, 034,000.00.
26. Counsel also submits on the trite principle applicable after entry of default judgment that the facts and the cause of action accruing thereto are presumed to have been proven. However, the Court is not by reason of the judgment barred from revisiting facts or the cause of action if they do not make sense or make the assessment of damages a futile exercise. He refers me to William Mel –v-Coleman Pakalia (2005) SC790.

27. He further submits that if the facts and the cause of actions as pleaded in the Statement of Claim are clear, reasonable and are in unambiguous terms, then there is no reason for this Court to revisit the issue of liability. Counsel cites Steven Naki v AGC (Pacific) Limited (2006) N5015, a case in which Justice Cannings summarized the trite principles for assessment of damages. The scheme of that ruling has been followed in subsequent cases like Infratech Management Consultancy vs State (2018) N7368. I enumerate these principles as:

“Principles for Assessment of Damages

12. The main principles to apply when the court is assessing damages can be summarized as follows:

(i) In a civil action, the purpose of an award of damages is to put the innocent party in the same position, as far as possible, as they would have been in if the wrongdoer had not committed the wrongful act (the breach of contract). (Livingston v Raywards Coal Co [1880] 5 App Cases 25.)

(ii) The plaintiff has the onus of proving his loss on the balance of probabilities. It is not sufficient to make assertions in a statement of claim and then expect the court to award what is claimed. The burden of proving a fact is upon the party alleging it, not the party who denies it. If an allegation forms an essential part of a person’s case, that person has the onus of proving the allegation. (Yooken Paklin v The State (2001) N2212, National Court, Jalina J.)

(iii) Corroboration of a claim is usually required, and the corroboration must come from an independent source. (Albert Baine v The State (1995) N1335, National Court, Woods J.

(iv) The principles of proof and corroboration apply even when the defendant fails to present any evidence disputing the claim. (Peter Wanis v Fred Sikiot and The State (1995) N1350, National Court, Woods J.)

(v) The same principles apply after default judgment is entered and the trial is on assessment of damages – even when the trial is conducted ex parte. A person who obtains a default judgment is not entitled as of right to receive any damages. Injury or damage suffered must still be proved by credible evidence. (Yange Lagan and Others v The State (1995) N1369, National Court, Injia J.)

(vi) If the evidence and pleadings are confusing, contradictory and inherently suspicious, the plaintiff will not discharge the onus of proving his losses on the balance of probabilities. It is conceivable that such a plaintiff will be awarded nothing. (Obed Lalip and Others v Fred Sikiot and The State (1996) N1457, National Court, Injia J.)

(vii) The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages. Where precise evidence is available the court expects to have it. However, where it is not, the Court must do the best it can. (Jonathan Mangope Paraia v The State (1995) N1343, National Court, Injia J.)

(viii) Where default judgment is granted, for damages to be assessed on a given set of facts as pleaded in a statement of claim, the evidence must support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded. (MVIT v Tabanto [1995] PNGLR 214, Supreme Court, Kapi DCJ, Hinchliffe J, Sevua J;

(ix) The court must be alert to vague claims, unsupported by corroborating evidence, as they might be false claims. The court must only uphold genuine claims. (Kolaip Palapi and Others v Sergeant Poko and Others (2001) N2274, National Court, Jalina J.).”

28. Mr. Kiuk submits that the core aspect in pleadings is not the prayer for relief but the main pleading in the body of the Statement of Claim. He submits in the present case that the following reliefs are pleaded substantially even though not stated in the prayer for relief at paragraph 27 of the Amended Statement of Claim.

29. The five (5) reliefs the plaintiffs claim under General Damages as per paragraph 27(b) are:

(1) Trespass - Pleaded at paragraph 18;
(2) Loss of Income – Pleaded at paragraph 20;
(3) Negligence – Pleaded at paragraph 23;
(4) Statutory breach – Pleaded at paragraph 24;
(5) Conversion and other losses – Pleaded at paragraph 25

30. In respect of these sub heads, Counsel submits that although there is foundation for the above reliefs in the Amended Statement of Claim, each is not cited in the prayer for relief. However, he submits that there is detailed pleading of the reliefs in the statement of claim. That in his pleadings Buni Morua provides the foundation for himself and the other claimants.
Consideration

31. This assessment of damages is conducted ex parte following default judgment. The claim is not tested in a trial. It is trite that the plaintiffs are not entitled as of right to receive any damages, he must still prove his loss. The Court’s role is to ensure that damage and injury claimed is proved by credible evidence: Yange Lagan and Others v The State (1995) N1369.

1. General Damages for Assessment

32. The plaintiff claims five (5) subheads of trespass, loss of income, negligence, statutory breach and conversion are included under “General Damages”. As part of my assessment, it is up to me to uncover whether these subheads are pleaded or sufficiently pleaded in the Statement of Claim. There is a plethora of case law that settled that individual causes or reliefs must be pleaded in the body of the Statement of Claim.

33. In John Etape [1994] PNGLR 596 it held: “12....it clear that unless there is foundation in a plaintiff’s pleadings, no evidence and damages or reliefs of matters not pleaded can be allowed. If, however, at the trial of a matter by the conduct of the parties, they have allowed evidence to be led and not objected to or no issue is taken on matters not pleaded being allowed in, can empower a trial court to grant such reliefs as the justice of the case warrants.

34. In Covec (PNG) Ltd v Kama (2020) SC1912, the Supreme at paragraph 18, stated, “In these circumstances, I find there was foundation in the pleadings and the learned trial Judge correctly found Covec committed the torts of trespass and conversion which entitled Kama to damages.”

35. In this case the Amended Writ of Summons the prayer for relief at paragraph 27 (b) is silent on the specific heads of claim under General damages as these are to” to be assessed.”

(a) General Damages for Trespass

36. Trespass to land is defined as the intentional and wrongful invasion of another’s real property. It involves the unjustifiable interference with land which is the immediate and exclusive possession of another. It is actionable per se without the claimant necessarily proving that he suffered harm, League Against Cruel Sports v Scott [1985] 2 All ER 489.
37. The owner of the property can maintain an action against any person who interferes with their right of ownership or possession, whether the invasion is by a person or by something that person has set in motion.

38. In this case the plaintiff pleads particulars of trespass in the Amended Writ of Summons at paragraph 18 (a) – (e). However, he had not included such in his prayer for relief.

39. It is trite learning that pleadings require the parties to plead facts in support of a claim or defence. Facts must be specifically alleged so that the opposite party is not surprised. This principle applies equally in cases of default judgment for damages to be assessed on a given set of facts as pleaded in a statement of claim. It is incumbent though on the plaintiff to adduce evidence to support the facts pleaded. No evidence will be allowed in support of facts that are not pleaded, MVIT v Tabanto [1995] PNGLR 214, (Supreme Court).

40. The evidence points to a fractured relationship between the plaintiffs and China Harbour Engineering Company (PNG) Limited and China Harbour Engineering Company Limited right from the beginning of the project. I find that their entry on to portion 1189, Laloki was without consent of the occupiers and as such constitute acts of trespass and conversion. It follows that their entry deprived the owners use and enjoyment of the land (gravel) a chattel, in a manner inconsistent with the rights of use, enjoyment and possession of the chattels by the owners.

41. Wang Hao, Commercial Manager of the first defendant deposed in his affidavit that they signed a ‘Gravel Extraction Agreement’ with Lucas Aloysius on the 19 January 2015. Xu Changfeng also deposed that on the 19 January 2015 they signed a Gravel Extraction Agreement with Lukas Aloysius to extract gravel from the land. However, in view of the failure by the first and second defendant to file their defence to the Amended Writ of Summons, I refuse to allow that evidence.

42. In Waisime v Auskoa Enterprises Limited (2019) N7727 His Honour Kandakasi J (then) held in part: “If the defendant first entered the land without any permission authority or consent of its owner, that amounts to an act of trespass.”

43 In awarding damages for trespass His Honour summarized in part: “ ... I consider an award of K50,000.00 is reasonable, to compensate for the act of trespass, the Defendants’ failure to acknowledge the fact that the Plaintiffs were the legal owners of the property upon being informed by the Plaintiffs, their failure to reason with the Plaintiffs and allow for an expedited vacation of the property without putting the Plaintiffs to the pain and trouble of getting them evicted by the force of a court order.”

44. The plaintiff argued seven (7) grounds for seeking the award of K 500,000.00. I dismiss outright five (5) as lacking judicial merit. Of the remaining two (2), I am satisfied that the first and second defendants entered the subject property or land (Portion 1189) without the consent or authority from the joint landlords being the Morua Aloysius four siblings.

45. The other ground of continuing trespass on the land by the operation of the quarry thereby causing pollution, contaminating the air, water and land. There is insufficient evidence of continuing trespass. I will make an award of K80,000.00 for trespassing.

(b) Loss of Income

46. There is no specific pleading on loss of income from the minerals, including gravel, rocks and soil. The Kaluwin Report does not specifically include any claim for the loss of income from the said minerals. Plaintiff submitted that it was included in the report by Chem Clean Environmental Services Ltd as a claim for the extraction of gravel and such minerals from the illegal quarry Gravel extraction & unpaid total royalty.

47. The land users who gave evidence deposed to the effect of the unlawful entry on to the said land by the first and second defendants. Their loss of income first and foremost was a result of land degradation that affects the quality of vegetables, cabbages, pawpaw and other market crops including piggery and poultry. However, this is not pleaded in the Statement of Claim nor is a prayer for relief.

48. The claim of loss of income appeared to focus on economic loss from operation of the quarry by the first and second defendant. Their claim is for the purported income the first and second defendants derived from operating the quarry from 2015 to 2017. The extraction of gravel and such minerals from the illegal quarry as loss of income or unpaid royalty was a conclusion reached by Chem Clean Environmental Services Ltd. Loss of income is not adequately pleaded as such in the Writ of Summons.

49. There is no evidence of any prior commercial excavation or use of a quarry in the said land. I affirm my rejection of the purported evidence of a Gravel Extraction Agreement’ deposed to by Wang Hao, the Commercial Manager of the first defendant it executed with Lucas Aloysius on 19 January 2015.

50. The Covec (PNG) Ltd v Kama (supra) case rejected the claim for loss income from gravel. I also reject the purported loss profits or income from the quarry claimed as unpaid royalty. However, I allow for subsistence production loss and informal market production income loss, which are specific claims captured under Environmental Damages.

(c) General Damages for Negligence

51. Negligence entails proving the elements of the tort which are: (i) duty of care, (ii) breach of duty, (iii) causation and (iv) remoteness. The principle of duty of care is one of the ‘neighbour principle’. A person owes a duty of care to another (a neighbour) [a person so closely and directly affected by my act], that he ought reasonably to have them in his contemplation as being affected when directing his mind to the acts or omissions in question. Put another way, if I can reasonably be expected to have foreseen that if I did not take care, the other would suffer injury or loss: Donoghue v Stevenson (1932) AC 562.

52. The plaintiff alleges the first and the second defendants owed a duty of care to the plaintiffs who have been living on the subject portion 1189 since the grant of an Agriculture Lease to Late Morua Aloysius in 1986.

53. I accept that the land area is adjacent to the project site and there was intense activity, extensive movement of labour and use of heavy machinery during the construction phase of the project. The project would have also involved heavy construction and engineering. Supposing the first and second defendants owe a duty of care to the plaintiffs, how was that duty of care breached and was there causation and remoteness. I find no evidence to link these activities to negligence. That is, the elements of negligence are not proven.

54. The pleading in the Amended Statement of Claim generally pleads non-compliance with the environmental laws, especially the Environment Act 2000. The plaintiff asserts that the entire project was deemed illegal and in breach of the mandatory provisions of the said Act. That the breaches to the Act and the first and second defendants’ unauthorized access and use of the plaintiffs’ land area for their use and purposes, is gross negligent on their part thus breaching the duty of care.

55. These are vague assertions. The tort of negligence is not established and there is nothing for my assessment under this subheading.

(d) General Damages for Statutory Breach

56. The plaintiff seeks general damages for statutory breach citing breaches of s. 4, 7, and 101 of the Environment Act 2000. By invoking these provisions, it seems to me that the plaintiff is seeking to gain monetary benefit from purported statutory breach where such breaches have their own remedies under the scheme of the particular statute.

57. The claim is vague, and I refuse to make any award under this subheading.

(e) General Damages for Conversion

58. The plaintiff contends that the minerals mined from the quarry were converted to goods or chattel in the form of sand, gravel or such for purposes of use by the first and second defendants. The plaintiff says he relies on the assessment by CCESL.

59. The legal principle of conversion entails putting a market value of the converted goods. In Hall v Barclay [1937]3 All E.R 620 Greer L.J. at 623 held:

“Measure of Damages for Conversion

“When you are dealing with goods which can readily be bought in the market, a man whose rights have been interfered with is never entitled to have to pay to buy a similar article in the market...”

60. The plaintiff contends that the claim for conversion is the same as claim of loss of income. I have considered and rejected the claim of loss of income and find no new evidence to rule otherwise here.

2. General Damages for Constitutional Breach

61. The plaintiff relies on paragraph 26 of the Amended Statement of Claim in which he pleads general breaches of statutory breaches, negligence, fraudulent and deceitful actions, conduct or omissions of the defendants severally or collectively are in breach of their constitutional rights.
62. These breaches allegedly pertain to:

(a) Section 36 – Freedom from inhuman treatment;
(b) Section 49 – Right to privacy;
(c) Section 53 – Protection from unjust deprivation of property.

63. Awards under the foregoing headings are usually granted in cases involving police brutality. The plaintiffs contend that their human rights have been violated as a result of the illegal actions of the first and second defendant causing environmental damage, deprivation of their right to use and benefit from their property and their privacy. I find this claim to be vague so refuse to grant any award.

3. Exemplary or Punitive Damages

64. Exemplary damages or punitive damages are awarded to express the court’s disapproval of the defendant’s conduct. It is never granted to compensate the claimant, nor even to strip the defendant of his profit.

65. The Supreme Court in Rimbunan Hijau (PNG) Limited v Ina Enei (2017) SC1605 in endorsing the National Court ruling stated: “The main purpose of awarding exemplary damages is dual in purposes. The first is to punish and the second is to deter the party against whom the award is made as well as others from engaging in future and further such conduct or behaviour.” In endorsing the trial court award of K150, 000.00 the Supreme Court expressed the view that such an award if not more was called for.

66. In Covec (PNG) Ltd v Kama (supra) the Supreme Court found no error on the part of the learned trial Judge in his award of exemplary damages that warrants any disturbance by the Supreme Court of the learned trial Judge’s exercise of discretion to award and order damages for exemplary damages. It affirmed the learned trial Judge award of K1, 000,000.00 for exemplary damages.

67. In the present case, the first and second defendants simply did not comply with the requirements for obtaining permits and regulatory compliances under the Environment Act 2000. They proceeded to commence work on the project in 2015 without satisfying the requirement for due process. Their blatant disregard for due statutory processes is inexplicable. Similarly, the first and second defendants showed total ignorance and blatant disregard of the effects of their action on the land and environment including its use as dumping site.

68. They also failed to enter into dialogue with the principal plaintiff to address the issues of trespassing and damage caused to the subject land. Even upon completing the project, failed to clear the place of any danger and harm to the community. They just left as they came and abandoned their waste everywhere.

69. I will make an award as exemplary damages against the first and second defendants. I am mindful and it is evidence that they are in the country continuing with the construction of other projects. A substantive amount of monetary damage will serve as a deterrence and punitive against callous and reckless conduct unbecoming of companies undertaking public contracts. I have assessed exemplary damage to be in the sum of K3 million.

4 Environmental Damage
70. Findings of environmental damage are contained in the assessments undertaken by environmental experts engaged by CEPA, Chem Clean Environmental Services Ltd and Awab Environment and Conservation Services.

71. The last report produced by renown environmental experts under the auspices of Awab Environment and Conservation Services is wholistic in its estimates and not exaggerated. Its compensation estimates take into account loss in major activities including subsistence production, informal market production, food security, land sustainable value. The Report titled “Laloki Bridge Quarry Extraction and Impact on Portion 1189 – A Post Impact Valuation and Assessment”, of the environment damage caused by China Harbour Engineering Company Limited is unchallenged.

72. The Supreme Court in Motor Vehicles Insurance (PNG) Trust v Pupune SC452 (14 December 1993), held that where evidence is led without objection, a Court is entitled to make findings on the basis of such evidence provided is within the general ambit of the Plaintiff’s claim.

73. In the Report by the CEPA it is confirmed that the first and second defendant had failed to obtain the Environment Permit for the roadworks project at Laloki. This failure is a statutory breach causing all the activities conducted at the project site to be deemed illegal.

74. In its conclusion, the Report at page 21 states, the claim of K 8, 034,000 encompasses a holistic approach covering environmental damages, economic and social costs and also the governance costs for the estimated period of impact during and after project activity ceased.

75. I will accept most of the finding tabulated in page 18 of the Report except assessment of Governance Value Lost and Resilience Value Lost. I assess the environment damage caused by China Harbour Engineering Company Limited at K4, 653, 740. 00.

Conclusion

76. This proceeding is instituted by Buni Morua Aloysius for himself and on behalf of 79 other occupants. He filed the proceeding on the 18 April 2019. The Amended Writ of Summons was filed on the 6 March 2020. Attached to the original Writ of Summons is a “Claimant List” of 79 persons. Order 5 Rule 8 of the National Court Rules requires consent of persons to be a joint plaintiff. In Simon Mali & Ors v The State [2002] PNGLR 549 the Supreme Court held inter alia that “in representative actions, the legal representatives are required by law to have the names of the plaintiffs included in a schedule (to the Writ) or for their written consents to be filed and these consents to be by way of an Authority to Act Form.”

77. Here there is no evidence of the 79 people having consented to being parties to the proceeding. Moreover, the Amended Writ of Summons is devoid of such a list. It means that Buni Morua did not have sufficient representative capacity and as such the claim is valid for him only and no other.

78. The other matter of concern is the legal right to make a claim in respect of a State Lease. The Lease Title shows that the principal plaintiff and his 3 siblings who are joint tenants, became registered as such on the 22 June 2018, 3 years after the cause of action arose in 2015. In short, he was not a legal title holder at the accrual of the cause of action. At best he has an equitable right of use being the son of the title holder. The principle of adverse possession is not available to him as it is not applicable in this jurisdiction.

Interest

79. The Plaintiffs claim interest at 8% on the final judgment amount.

Costs
80. The first and second defendants were recklessness, were in non-compliance of Court directions and Orders, failed to co-operate and involve in meaningful ADR and have not been truthful in adducing relevant evidence. Their action in this proceeding warrants an award of costs on an indemnity basis.

Order

81. The formal Order of the Court:

1 A sum of K4, 653,740 being for environmental damage.

2 General Damages:

(a) K80, 000.00 for trespass.

(b) K3, 000 000.00 for exemplary damages

3. Interest @ 8% on the judgement sum of K7,733, 740 million to be calculated from the date of commencement of the Project in 2015 to time of final settlement.

4 Costs on an indemnity basis against the first and second defendants.
5 Time is abridged to the time of entry of this order.

Ordered Accordingly
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Kiuk & Associates Lawyers: Lawyers for the Plaintiffs
Davidson & Company Lawyers: Lawyers for the First and Second Defendants