Tzen Pacific Ltd v Pouru [2016] PGSC 68; SC1550 (20 May 2016)

SC1550

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 14 OF 2013

TZEN PACIFIC LIMITED
Appellant

V

KANAWI POURU, as the Managing Director of Papua New Guinea Forest Authority and National Forest Service; and member of the National Forest Board
First Respondent

JOSEPH LELANG,THOMAS PAKA, MOSES GAWI, JOSEPHINE GENA, BONNY NINAI, DR. WARI IAMO, BOB TATE & ANDA AKIVI as members of the National Forest Board
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

INNOVEST LIMITED
Fourth Respondent

ARIA VANU TIMBER COMPANY LIMITED
Fifth Respondent

Waigani : Sakora J, Kariko J & Poole J

2013: 13^thDecember

2016: 20^th May

CONTEMPT – disobedience of restraining order –interpretation of expression “whosoever otherwise”- whether order restrained National Forest Board from discharging its statutory duties and obligations – whether order breached – whether order clear and unambiguous

JUDICIAL REVIEW – originating process – relief sought shall be included in the notice of motion applying for judicial review – one ground of review upheld - exercise of discretion whether to grant relief – relief sought not arising from

Cases cited:
Dale Christopher Smith v Minister for Lands (2009) SC973
MisionAsiki v ManasupeZurenuoc (2005) SC797
PaiasWingti v Kala Rawali (2010) N3982)
Peter Makeng v Timbers (PNG) Ltd (2008) N3317
Ross Bishop and Ors v Bishop Bros Engineering Pty Ltd and Ors [1988-89] PNGLR 533
Simon Opa v Hans Gima (2008) N3343
TimbaniLongai v Steven Maken (2008) N4021

Legislation:
National Court Rules
Supreme Court Act

Counsel:
Mr F Griffin, for the Appellant
Mr I Shepherd, for the first and second Respondents
MsAWaviha, for the fourth Respondent
Mr G Kaore, for the fifth Respondent

JUDGEMENT

20^th May, 2016

1. KARIKO J & POOLE J: His Honour Sakora, J being unavailable, this decision is delivered pursuant to section 3 of the Supreme Court Act.

2. Tzen Pacific Limited (Tzen Pacific) has appealed against the decision of the National Court at Waigani given on 25^th April 2013 in judicial review proceedings OS (JR) No. 715 of 2010 - Tzen Pacific Limited v Kanawi Pouru & Others - whereby the trial Judge upheld only one ground of the application for judicial review and refused the relief sought (the Decision).

Background

3. Tzen Pacific was granted a licence by the PNG Forests Board on 22^nd February 2010 to engage in forest industry activities in Aria Vanu Block 3LFA project area in West New Britain Province. On 30^th August 2010 the Minister for Forests cancelled that licence and then on 18^th October 2010 the PNG Forests Board granted a licence to Innovest limited (Innovest), the respondent.

4. In the National Court, Tzen Pacific sought judicial review of the Board’s decision to grant the licence to Innovest and asked the Court to have that licence quashed and instead declare that Tzen Pacific’s licence as still valid. Tzen Pacific also sought damages.

Grounds of appeal

5. There notice of appeal contains five grounds of appeal (A-E) that we have renumbered as Grounds 1-5 for convenience. We discuss each of the grounds except for the first two grounds which are dealt with together as we consider they relate to the same issue.

Grounds 1 and 2

The first two grounds of appeal concern to the question of whether the grant of the licence to Innovest was an act done in contempt of an earlier injunctive order of the Court. The grounds read:

Ground 1:

The Learned Trial Judge erred in mixed fact and law in holding (at pages 13 and 14 of his published decision) that the Court Order made in proceedings WS No. 560 of 2010 (restraining inter alia the Fifth Respondent and its directors from giving effect to notices of termination and interfering with the Appellant’s logging operations) (which was later concluded on 2 March 2012 by Orders made by the Supreme Court in Tzen Pacific Ltd v. Peter Puana &Ors – SCA No. 17 of 2011), did not prevent the First and Second Defendants from granting a licence to the Fourth Defendant, when such finding was contrary to the in breach of the Court Orders in WS No. 560 of 2010 and SCA No. 17 of 2011 that restrained the Aria Vanu Timber Company Ltd and “whosoever otherwise” from giving effect and force to the termination of the logging marketing agreement between the Appellant (and/or Cakara Alam (PNG) Ltd) and Aria Vanu Timber Company Ltd.

Ground 2:

The Learned Trial Judge erred in mixed fact and law in holding (at page 13 of his published decision) that the Court Order made in proceedings WS No. 560 of 2010 did not prevent the First and Second Defendants from granting a licence to the Fourth Defendant because the National Forest Board was not a party to proceeding WS No. 560 of 2010, when the National Forest Board was aware of the existence of such Court Order and was legally bound not to breach or assist a party breach such Court Order

6. The appellant contended that the learned trial Judge erred in not finding that the grant of the licence by the PNG Forests Board to Innovest was in contempt of a restraining order issued by his Honour Kanadakasi, J on 19^th May 2010 in proceedings WS No 560 of 2010, a court action filed by Tzen Pacific against Aria Vanu Timber Company and its directors. His Honour ordered that“the defendants, their agents, servants or whosoever otherwise are restrained forthwith from threatening, disturbing, interfering and preventing the plaintiff from conducting its logging operations within the Aria Vanu Block 3 Project in West New Britain Province (conducted pursuant to the logging and marketing agreement between the second defendant and Cakara Alam (PNG) Ltd dated 6 June 2003) until further order”(our underlining).

7. The appellant submitted that even though the restraining order was not directed at the Forest Board, once the Board became aware of the order it was obliged not to aid and abet a breach of that order by granting the licence to Innovest.

8. In addressing this argument in the National Court, the trial Judge said:

“32. I consider that the order did not on its terms prevent the Board from discharging its statutory powers, functions, duties and responsibilities. Neither the Board nor any of the authorities with decision making power under the Forestry Act was a defendant in WS No 560 of 2010. Though the order was directed generally to “whosoever otherwise” which literally could include all persons even those who were not parties to the proceedings, the main purpose of the order was to restrain the conduct of the defendants, ie Aria Vanu Timber Company and the company’s directors, and their agents and servants, presumably including the customary landowners who were allegedly guilty of unlawful interference with the plaintiff’s logging operations. A court order, like any legal document, must be interpreted in the context of all the court’s orders and the reasons given for making the orders and the circumstances in which the order was made (PaiasWingti v Kala Rawali (2010) N3982). Putting this order in the context of the allegations in the statement of claim and the purpose of the proceedings it is clear that it was not intended to prevent the Board from discharging its statutory powers, functions, duties and responsibilities. It did not prevent the Board granting a licence to Innovest.”(Our underlining)

9. We agree with his Honour’s observations. We accept the obiter dicta expressed in PaiasWingti v Kala Rawali (supra) that it is permissible when interpreting a court order to consider the reasons provided by the court for making the order and the circumstances in which it was made. We also note that a requisite element to be proven beyond reasonable doubt on a charge of civil contempt or disobedience of a court order is that the order is clear and unambiguous; Ross Bishop and Others v Bishop Bros Engineering Pty Ltd and Others [1988-89] PNGLR 533. While the obvious argument is that the expression “whosoever otherwise” applies to all persons at large,
it could equally be accorded the interpretation applied by the trial Judge. If there is ambiguity in giving meaning to the expression “whosoever otherwise”, the contempt charge cannot be sustained.

10. The bottom line is that we are unable to see how the discharge of a statutory duty, namely the issue of a licence, could amount to a breach of the restraining order. Put another way, we are unable to find that the grant of the licence to Innovest gave effect and force to the termination of the logging marketing agreement between Tzen Pacific and/or Cakara Alam (PNG) Ltd) and Aria Vanu Timber Company Ltd and thereby interfered with Tzen Pacific’s logging operations within the project area. Tzen Pacific’s licence to conduct logging operations was cancelled some six weeks prior to the grant of the licence to Innovest.

11. Accordingly we dismiss Grounds 1 and 2 of this appeal.

Ground 3

12. In the third ground of appeal, Tzen Pacific claims that the trial Judge wrongly refused to consider certain relief sought in the review. The ground reads:

Ground 3:

The Learned Trial Judge erred in mixed fact and law in holding (at pages 15 and 16 of his published decision) that the relief sought was not properly sought, when the Appellant had filed an application for judicial review, which was properly before the Honourable National Court (Amended Notice of Motion for Judicial Review filed 20 May 2011 – court document No. 27), and that the other relief sought was part of the relief sought and claimed by the Appellant in the Amended Order 16 Statement filed on 25 March 2013 (following the grant of leave by the National Court on 22 March 2013), which the Appellant was entitled to claim and seek under Order 16 Rule 6(1) of the National Court Rules 1983 (as amended) and the Appellant relied on and moved with its application for judicial review.

13. The appellant argued that the trial Judge erred in deciding that he would not consider the further relief sought in the amended O16 r3(2)(a) statement that were not included in the notice of motion applying for judicial review. After noting at [36] of his judgment that leave was only obtained to amend the statement and not the notice of motion, the trial Judge said:

“The notice of motion is the process by which a plaintiff seeks relief, not the statement and not the originating summons by which leave for review is obtained (Peter Makeng v Timbers (PNG) Ltd (2008) N3317, Timbani Longai v Steven Maken (2008) N4021). The plaintiff is confined to the relief that was sought in its amended notice of motion under Order 16, Rule 5 filed on 20 May 2011, which covers only the relief numbered 1, 2, 6 and 7 in the list of remedies sought in the amended Order 16, Rule 3(2)(a) statement.”(Our underlining)

14. In our opinion, the trial Judge stated the law correctly. The two cases cited are judgments by his Honour Injia, DCJ (as he then was). In Makeng’s case his Honour provides an instructive discussion on the proper procedure in judicial reviews and wherein he explains that upon leave being granted for judicial review, a motion seeking substantive relief under O16 r5(1) should be filed and served which motion may also seek a stay order or other interim relief. The motion filed pursuant to O16 r5 (1) is the mode of proceedings for an application for judicial review. Otherwise, the interim relief may be applied for in a separate motion. His Honour emphasized in Longai’s case that the motion filed under to O16 r5(1) is the basis upon which the Court assumes jurisdiction to deal with an application for judicial review.

15. It follows therefore that relief sought by the appellant was restricted to those contained in the notice of motion filed under O16 r5(1). We find that the primary judge did not err as alleged in Ground 3 of the appeal and we dismiss that ground.

Ground 4

16. The fourth ground of appeal reads:

Ground 4:

The Learned Trial Judge erred in mixed fact and law in holding (at pages 15 and 16 of his published decision) that the decisions to cancel the Appellant’s licence and to grant the licence to Innovest Ltd were made in good faith and with good reasons, when these findings became irrelevant or should not or could not have been made after the Learned Trial Judge found that the procedure to cancel the Appellant’s licence (under section 97 of the Forestry Act) was not followed and complied with.

17. Tzen Pacific basically submitted that upon finding that the proper procedure in granting the licence to Innovest was not followed, his Honour was obliged to quash the decision to grant the licence to Innovest; quash the decision to cancel the appellant’s licence; and declare the appellant’s licence as still valid.

18. That argument arises from the following determination and reasoning by the learned trial Judge at [37] of his judgment:

“I decline to make any of those declarations or orders. It would be contrary to the interests of justice to do so. Though mistakes were made in the decision to cancel the plaintiff’s licence and the decision to grant the licence to Innovest – arising from the failure to ensure that the plaintiff was given an opportunity to be heard on the proposed cancellation of its licence – each licence was only of 12 months duration, and the licence to Innovest expired on 18 October 2011. Moreover, the decisions to cancel the plaintiff’s licence and to grant the licence to Innovest were made in good faith and for good reasons:

• there was evidence that the plaintiff had breached the conditions of its licence;
• the circumstances in which the plaintiff took an assignment of rights and obligations under the logging and marketing agreement to which the licences were connected were dubious and there is doubt over the validity of the assignments; and
• most importantly, the holder of the timber permit, Aria Vanu Timber Company, had lost confidence in the plaintiff and wanted Innovest to be granted a licence – and that remained the situation at the trial.”(Our underlining)
  

19. The first reason why his Honour determined it not appropriate to order the quashing of the decision to grant the licence to Innovest was that the licence had long since expired, in fact some 18 months earlier. In our view it follows that the orders sought consequential to quashing of the grant of the licence, was pointless.

20. In any case, if a plaintiff successfully establishes his grounds of a judicial review, he is not automatically entitled to the relief sought. He must make a case for a remedy, which is a matter of discretion; Mision Asiki v Manasupe Zurenuoc (2005) SC797, Dale Christopher Smith v Minister for Lands (2009) SC973.

21. His Honour decided that the over-arching consideration of interests of justice did not warrant the Court exercising its discretion in favour of granting the relief pleaded. His Honour properly listed the factors he took into account in considering the interests of justice. We find no error in his Honour’s approach.

22. We further note that the judicial review challenged the Minister’s decision to grant the licence to Innovest and not the earlier decision of the Board to cancel Tzen Pacific’s licence. Not having properly sought judicial review of the Board’s decision, we consider that it would have been improper for the Court to order the quashing of the Board’s decision and declare Tzen Pacific’s licence still valid.

23. We find no merit in the appellant’s submissions and dismiss Ground 4 of the appeal.

Ground 5

24. The last ground of appeal reads:

Ground 5:

The Learned Trial Judge erred in mixed fact and law in refusing (at pages 15 and 16 of his published decision) to make the declarations and orders sought by the Appellant with regard to its claim for damages, when:

1. the decision to cancel the Appellant’s licence was inter alia the subject of the application for judicial review as sought in the Appellant’s Order 16 Rule 3(2)(a) Statement amended with leave of the National Court;
   
2. no objection or cross-examination was made by the Respondents nor were particulars sought, to the Appellant’s tendering of evidence regarding its claim for damages.”
   

25. Tzen Pacific’s claim for damages was for loss of profits as a result of the cancellation of its licence. As the cancellation was not the subject of the judicial review, the trial Judge correctly refused to award the damages sought. His Honour explained at [38] of his judgment:

“... a statement of claim and particulars should normally be filed before an award of damages is considered. That has not been done and I see no reason to dispense with the requirements of the Rules in that regard.”

26. Pursuant to O16 r7 (1)(a), a claim for damages in a judicial review must be included in the O16 r3(2)(a) statement. The provisions of Order8 Division 2 apply to the statement, and O8 r29(1) specifically states that pleadings must contain relevant particulars. In the present case, the statement claimed damages but it did not provide any particulars. While the plaintiff quantified the damages in submissions that does not meet the mandatory requirement to provide particulars of damages claimed in the statement. In a claim for damages the plaintiff must properly plead the basis and details of his claim; Simon Opa v Hans Gima (2008) N3343.

27. The defendant has not demonstrated any error by the trial Judge in dealing with this issue. We dismiss Ground 5 of the appeal.

Conclusion

28. As all grounds of the appeal have been dismissed for lacking merit, this appeal fails and costs shall be awarded to the respondents (except the third respondent who did not appear at the hearing).

ORDERS

29. The Orders of this Court are:

(1) The appeal is dismissed.
(2) The decision of the National Court given on 25^th April 2013 in proceedings OS (JR) No. 715 of 2010 is confirmed.
(3) The appellant shall pay the first, second, fourth and fifth respondents’ costs of this appeal, to be taxed if not agreed.

Young & Williams Lawyers: Lawyer for the Appellant
Ashurst Lawyers: Lawyer for the first and second Respondents
Waviha Lawyers: Lawyer for the fourth Respondent
Kaore Lawyers: Lawyer for the fifth Respondent