Chiu v Leonard Ng Chow Leung [2023] PGNC 457; N10604 (5 December 2023)

N10604

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 118 OF 2023

DANNY CHIU
First Plaintiff

And
KARRIDALE LIMITED [1-64964]
Second Plaintiff

V
LEONARD NG CHOW LEUNG
First Defendant

And
KULAWOOD LIMITED [1-88969]
Second Defendant

And
MS. FAITH BARTON CHAIRMAN PAPUA NEW GUINEA FOREST AUTHORITY
Third Defendant

And
PAPUA NEW GUINEA FOREST AUTHORITY
Fourth Defendant

Waigani: Miviri J
2023: 26^th October, 5^th December

PRACTICE & PROCEDURE – Judicial Review – Originating Summons –Order 16 rule 3 NCR – Leave for Judicial Review – Grant of FCA Large Scale forest Clearance for Commercial Agriculture & Other Land Development – Section 90A & 90B Forestry Act 1991 – Same Parties Same Issue Leave for Judicial Review – Decided On Merits – Res Judicata – Locus Standi – Arguable Cause – Delay In excusable Inordinate – Internal Avenues Exhausted –– Materials Same Considered Outright in Full On Merit – Res Judicata – In Law Cannot be reopened – Dismissed – Costs Follow Event On Indemnity Basis.

Cases Cited:

Aihi v The State (No 2) [1982] PNGLR 44
Telikom (PNG) Ltd v Rava [2018] PGSC 39; SC1694
GR Logging Ltd v Dotaona [2018] PGSC 34; SC1690
Papua New Guinea Forest Authority v Sukiri Investment Ltd [2021] PGNC 66; N8820
Pruaitch v Manek [2019] PGSC 123; SC1884
Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015
Opi v Telikom PNG Ltd [2020] PGNC 168; N8290

Counsel:

A. Kimbu, for Plaintiff
B. Kulumbu, for Third & Fourth Defendants

RULING

05^th December 2023

1. MIVIRI, J: This is the ruling on the originating summons of the plaintiff who seeks pursuant to Order 16 Rule 3 of the National Court Rules:
   
   • (i) Leave of the Court Pursuant to Order 16 Rule 3 of the National Court Rules, to apply for Judicial Review the decision of the Third Defendant through the Second Defendant in her capacity as the Chairman of the Board of the Papua New Guinea Forest Authority on the 17^th July 2018 and or on the 15^th November 2018 and or both decisions granting the First Defendant Kulawood Limited a Forest Clearing Authority [F1-160000174] described FCA4-01 pursuant to section 90B of the Forestry Act 1991 to carry out a large scale Forest Clearance for commercial agriculture or other land use development within the 30, 000 hectares of land area described and outlined in red on the map in Schedule 1 (the project area) subject to the Forestry Act 1991 and further subject to the terms and conditions of Forest Clearing Authority FCA4-01 one of which was for the holder (Kulawood Limited) to carry out the agriculture or other land use project in accordance with the approved land use development plan and the approved implementation schedule contained in the holder’s application for the FCA4-01.
     
   • (ii) Costs in the cause.
     
   • (iii) Such other orders in the discretion of the Court.
     
2. Leave for Judicial review is sought of a decision made on or about the 17^th July 2018, and or on the 15^th November 2018, and or both decisions granting the First Defendant Kulawood Limited a Forest Clearing Authority [F1-160000174] described FCA4-01 pursuant to section 90B of the Forestry Act 1991, to carry out a large scale Forest Clearance for commercial agriculture, or other land use development within the 30, 000 hectares of land area described and outlined in red on the map in Schedule 1 (the project area) subject to the Forestry Act 1991. That is the merit of the application on all fours square before this same Court presided by Justice Dingake in OS (JR) No. 101 of 2023 Karridale Limited (1-64964) First Plaintiff and Igor Gari In His Capacity as CHAIRMAN OF MILNE BAY PROVINCIAL FOREST MANAGEMENT COMMITTEE and further in his capacity as the ACTING PROVINCIAL ADMINISTRATOR OF MILNE BAY PROVINCE Second Plaintiff and MILNE BAY PROVINCIAL GOVERNMENT Third Plaintiff and KULAWOOD LIMITED (1-88969) & MS FAITH BARTON CHAIRMAN PAPUA NEW GUINEA FOREST AUTHORITY & PAPUA NEW GUINEA FOREST AUTHORITY. That action for leave was dismissed. It is the same parties, detailed here with the Director of the First Plaintiff in that action now named as first Plaintiff and Karridale Limited first plaintiff there, is now second plaintiff here. The same layout is inserted in the case of the First Defendant set out above, his director has been detailed now as first Defendant. The same issue raised in that originating summons is now the subject of this originating summons. The same subject decision in that originating summons is now pursued in this present originating summons.
   
3. What is the jurisdictional basis for this Judicial Review Court given, also a National Court like and the same in its jurisdiction as that composed by Justice Dingake, to deal with this very same issue raised there canvased out and determined on its merits fully with a written Judgement detailing there.
   
4. This is not the situation that was observed by the Supreme Court in Aihi v The State (No 2) [1982] PNGLR 44, so it will not qualify to be brought into this Court following. In essence it is not a case where the road to seek Justice has been denied by law. There the Supreme Court Act denied with the 40 days for appeal to be filed against the decision on Sentence imposed. Here that is clearly not so, because Leave premised at page 4 of that Judgement paragraph 14 was considered in the heading and individually. And the merit of the ground relied on was considered and determined. There was unexplained delay that forfeited the matter from proceeding any further, the other grounds having been satisfied. It means in effect the merits of the application for leave were considered. That is that the plaintiff has sufficient interest in the matter. He had an arguable case in the matter. And there were no internal process and procedure to accord remedies available to see out the matter. The fact of the matter was that the subject decision was made by the second defendant on the 17^th July 2018, and or 15^th November 2018 granting the subject FCA4-01 following section 90B of the Forestry Act 1991. Challenge to was mounted by the originating summons on the 21^st September 2023, some five years later. It was determined that it could not be opened and on the basis of which leave did not lie.
   
5. Not only that but the application after being heard on the 05^th October 2023 by this Court who reserved to consider, “On or about the 09^th October 2023, without any authority of this Court, the Plaintiffs filed a Notice of Motion and Supporting Affidavit that sought to explain the issue of delay ostensibly because of the questions the Court had posed to both Counsel in open Court.
   
6. I want to make it clear that the affidavit filed by the Plaintiff after the Court reserved its decision on the 05^th October 2023, was improper and I have not taken it into account in this ruling. What the Plaintiff did is contrary to the “cards on the table-face up” approach in modern civil procedure. It amounts to ambush. It is unacceptable. It has the potential to undermine the case of the Plaintiff.” Per Justice Dingake in OS (JR) No. 101 of 2023 (supra). It is really an abuse of process and cannot hold given.
   
7. As to what constitutes an abuse of process, the Court stated at [17] and [18]:
   

“17. In Pokia v Yallon (2014) SC1336 the Supreme Court at[20] stated: “An abuse of process will exist if a plaintiff commences more than one proceeding concerning the same cause of action. Such an abuse can be committed when two proceedings are conducted simultaneously regarding the same cause of action (Telikom PNG Ltd v ICCC (2008) SC906) or when the plaintiff loses one proceedings then comes back to court for a "second bite at the cherry" to prosecute the same cause of action (Anderson Agiru v Electoral Commission (2002) SC687).”

18. In our view, the processes of this Court have been improperly used by the applicants. As Gavara-Nanu, J noted in Michael Wilson v Clement Kuburam (supra) at [25]:“The types of abuses of process may vary from case to case but to establish an abuse of process there must be evidence showing that the processes of the court have been improperly used; or have been used for an improper purpose; or have been used in an improper way; or that such abuse of process have resulted in the right of the other party being denied, defeated or prejudiced: National Executive Council v. Public Employees Association [1993] PNGLR 264 and The State v. Peter Painke [1976] PNGLR 210.”Quoting from Telikom (PNG) Ltd v Rava [2018] PGSC 39; SC1694 (13 July 2018).

8. Here the applicant describes himself in the Statement in support pursuant to Order 16 Rule 3 (2) (a) a natural person of section 32, Allotment 75 Saraga Street Dogura road, 6-mile Port Moresby the Director and Shareholder of the second plaintiff. He is responsible for its affairs and operations. And the second plaintiff is a company also of that address registered under the laws of the Company relating. It is suing under its own name as a company. This is in effect the same persons both as plaintiff raising the same issue of trying to satisfy the elements necessary to secure leave for judicial review as was done there. The merits of what needs to be established and discharged to secure leave has been adequately canvassed from all frontiers necessary there in that Judgement set out above. The jurisdiction has been usurped such that there is nothing to draw to determine and consider this application. It has been duly considered judicially by its merits, so much so that there cannot be what is sign posted by GR Logging Ltd v Dotaona [2018] PGSC 34; SC1690 (12 July 2018) as warranting that the merits are yet to be gauged.
   
9. His honour went into the merits to come out with the decision that they satisfied all the other elements but fell short in delay. I resound here that it is not in accordance with Law to file further material, when the Court is in the midst of its determination after hearing all parties together with all relevant material which was conduct of counsel there. It is no different here because the decision has come out not in her favour. The procedure is for an appeal to the Supreme Court. Not to seek a rehearing on the same issue here again. It is not likened that the parties have not been heard, so that opportunity must be accorded: Papua New Guinea Forest Authority v Sukiri Investment Ltd [2021] PGNC 66; N8820 (14 May 2021). Instructions are firmed out to institute proceedings, not hatched to accommodate new set of events which the Court has showed by its decision initially. Amendments made in the parties do not change the fact that the same matter was decided on its merits before this Court. This is a case that is on all fours with Pruaitch v Manek [2019] PGSC 123; SC1884 (6 December 2019).
   
10. It is an abuse of the process of the court. It will have no foothold and will be dismissed in its entirety forthwith with costs to follow the event forthwith. I will order costs on an indemnity basis because this is a very clear position in law. This was determined on its merits. The next course was for Counsel to institute appeal to the Supreme Court. The conduct here is blameworthy as this is experienced Counsel who despite has resorted dwelling upon the Court and the parties unnecessary time and logistics. It will fall in similar circumstances and terms as Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015 (9^th February 2010), time has been unnecessarily wasted on a matter that is not open given the law and the facts set out above. It was bound to fail and indeed has failed here. The waste drawn to the detriment of the other side must be compensated on indemnity basis, because its effect is court time and logistics without the nexus due Justice. Liberty to pursue Justice is within the parameters of law given not without: Opi v Telikom PNG Ltd [2020] PGNC 168; N8290 (29^th April 2020). It follows that costs are against the applicant in favour of the defendants on an indemnity basis forthwith.
    
11. The formal orders of the Court are:
    
    • (i) The Notice of motion is without merit.
    • (ii) It is refused and dismissed forthwith.
    • (iii) Costs will follow the event in Indemnity basis forthwith.
      

Orders Accordingly.

__________________________________________________________________

Kimbu & Associate Lawyers: Lawyers for the Plaintiff/Applicant

Office of the Solicitor General : Lawyers for Third & Fourth Defendants