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G.R. Logging Ltd v Green Wood PNG Ltd [2021] PGNC 350; N9172 (27 January 2021)

N9172

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 114 OF 2020 (COMM)

BETWEEN
G.R. LOGGING LIMITED
First Plaintiff

AND
BENSON APINANUNG, MICHAEL AVOLIO,
WILLIAM BEKO, MICHALE BENO,
CLEMENT GLENGIO, DAVID MALAI,
MICHAEL SISIL, ANDREW TAKMAP,
ALPHONSE YAKIO, CLEMENT KAPAN
Second Plaintiffs

-V-

GREEN WOOD PNG LIMITED
Defendant

Waigani: Rei, AJ
2021: 27^th January.

PRACTICE AND PROCEDURE – notice of motion – motion seeking orders to lift or dissolve interim interlocutory restraining order – Plaintiffs failure to invoke jurisdiction of court - where a party seeks ex-parte injunctive orders the onus is on him to bring to the attention of the presiding Judge on materials relevant to the application including the relevant and precise legal authority he relies on to seeking orders - Notice of Motion of the Plaintiff filed 6^th January 2021 is dismissed and the order of 18^th January 2021 is lifted – cost awarded to defendants

Cases Cited:

Independent Public Business Corporation of Papua New Guinea –v- MVK & Others (2010) N6584
Sioti Banuf and Lavoi Nodai –v- Poliamba Pty Ltd [1990] PNGLR 276
Telikom PNG Ltd –v- ICCC & Digicel (2007) N3143
Chief Collector of Taxes –v- Bougainville Company Ltd (2007) SC853
Niutech Building & Civil Contractors Limited –v- Wood Star Builders Limited (2020) N8682

RULING

27^th January, 2021

1. REI AJ: This is a ruling based on the Notice of Motion filed by the Defendant Green Wood Ltd on 19^th January 2021 seeking to have the interim interlocutory restraining order lifted or dissolved granted by this Honourable Court on the 18^th of January 2021.
   
2. The Defendant seeks to lift that order pursuant to Order 12 Rule 12 (8)(3)(a) of the National Court Rules (“NCR”).
   
3. It should be noted that a ruling was made on the 18^th of January 2021 having the effect that were an ex-parte application is being made, it should be heard ex-parte and the party affected by the ex-parte order(s); if granted, will have his opportunity to address the Court on whether the interim injunctive order(s) granted ex-parte should continue to flow or not.
   
4. Although Mr. Muga, counsel for the Defendant was heard on the 18^th of January 2021, I refused considering his submissions on the basis that it being an “ex-parte” application.
   
5. Mr. Muga then filed this Notice of Motion seeking to lift or dissolve the interim injunctive order granted on that date 18^th January, 2021.
   
6. In moving that Notice of Motion, Mr. Muga briefly made submission on two preliminary issues.
   
7. The first argument is that the Notice of Motion filed by the Plaintiff on 6^th January 2021 is incompetent as it does not plead the relevant provisions of the National Court Rules which confers jurisdiction’s authority to grant the interim injunction.
   
8. He goes onto say that the proper provisions of the National Court Rules upon which the Plaintiffs should have relied on is Order 12 Rule (1) & Order 12 Rules 8 (3) (a) of the National Court Rules. The Plaintiffs did not do so.
   
9. The second argument he raised is that no undertaking as to damages was filed with respect to the current Notice of Motion filed on that same date 6^th January 2021.
   
10. The Defendant through counsel therefore maintains that the Notice of Motion filed on the 6^th January 2021 which replaced the earlier Notice of Motion filed on 3^rd September 2020, leave having granted to do so and was so withdrawn be dismissed and the interim injunction granted on 18^th January 2021 be lifted or dissolved.
    
11. The Defendant relies on the cases of Independent Public Business Corporation of Papua New Guinea –v- MVK & Others (2010) N6584 (per Hartshorn J) and Sioti Banuf and Lavoi Nodai –v- Poliamba Pty Ltd [1990] PNGLR 276 (Sheehan J) for the first leg of his argument.
    
12. In Sioti Bauf and Lavoi Nodai –v- Poliamba Pty Ltd [1990] PNGLR 276, Sheehan J said:
    

“......a party seeking to obtain an interim injunction, ex-parte, is under an obligation to demonstrate utmost good faith and to bring to the attention of the court all facts material to the applicant’s right to injunction as well as any material which could be put in favour of the defendant. He has a duty to make a full and proper discloser .......”

13. Following on from this case authority it is clear that where a party seeks ex-parte injunctive orders the onus is on him to bring to the attention of the presiding Judge on materials relevant to the application including the relevant and precise legal authority he relies on to seeking orders.
    
14. The rules promulgated in the National Court Rules are in place for the proper administration of justice and the rule of fairness. They ought to be followed unless it is demonstrated to the Judge reasons why the rules of court were not complied with when filing the court documents, especially in the cases involving ex-parte applications for an interim injunction.
    
15. The Defendant also made submissions that no undertaking as to damages was filed prior to or at the time the ex-parte application was made.
    
16. This irregularity was indeed brought to the attention of Mr. Furigi, counsel for the 1^st Plaintiff and some of the 2^nd Plaintiffs at the ex-parte stage.
    
17. No step(s) was taken by the Plaintiffs to cure this shortcoming before the matter returned on the 19^th January 2021 for inter parte hearing.
    
18. The Plaintiff did not take any reasonable steps to file that document to advance its cause prior to 21^st January 2021.
    

19. No assurance was given on the 19^th January 2021 whether the Plaintiff will file that document bearing in mind that it is a pre requisite for a granting of an interlocutory injunctive order that a properly given undertaking as to damages is provided: Telikom PNG Ltd –v- ICCC & Digicel (2007) N3143 & Chief Collector of Taxes –v- Bougainville Copper Ltd (2007) SC853.

20. Whilst the Defendant remains adamant that conditions precedent to the making of an interim restraining order be complied with, the Plaintiff has vigorously pursued the course that I exercise my discretion as a Judge to allow the interim injunction to continue. The Plaintiff did not give assurance as to whether an undertaking to damages will in any event be filed.

21. The issue therefore is whether I should exercise my discretion to allow the interim injunctive orders to continue.

22. Following the reasons for judgment in the case of Niutech Building & Civil Contractors Limited –v- Wood Star Builders Limited (2020) N8682 per Anis J, I refuse to exercise my discretion to allowing the interim injunction granted on 18^th January 2021 to continue.

23. The Defendant is serious that no steps were taken by the Plaintiff to cure that defect until the matter came up for an inter parte hearing on 21^st January, 2021.

24. Even if I am to allow the injunctive order to continue, there are reasons that do not favour the continuation of the injunctions.

25. It was noted from the submissions of counsels that:

(i) Similar proceedings was filed in OS(JR) No. 44 of 2020 seeking the judicial review of the decision of the PNG Forest Authority, in the grant or otherwise of TP No. 14-4.
(ii) A decision on a stay application made before His Honour Miviri J, is to be made on 8^th February 2021.
(iii) That all parties involved in the present case are involved in that proceeding,
(iv) Mediation to be held in the due course to hopefully conclude the matter.
(v) All issues before this court are also before His Honour Miviri J.
(vi) That contempt charges should have been laid against the persons who execute the matter and logging agreement as it is alleged that they are not proper officers of the Plaintiff company by an order of His Honour Makail J, dated the 24^th day April, 2020.

26. Even if I may not be correct in my assessment of the facts and issues on this case, the main thrust of the dispute is the granting of TP No. 14-04.

27. I note the Plaintiffs assertion that circumstances have changed in that the people who executed the marketing and logging agreement dated the 14^th of November 2016 are not the proper officers of the Plaintiff company, but the fact remains that TP No. ‘14-04’ connects all the parties.

28. That being the case, the Plaintiffs should have taken contempt proceedings against those people they claim are not proper officers of the 1^st Plaintiff company rather than issuing fresh proceedings.

29. In the circumstances of this case, I refuse to exercise my discretion to continue the interim injunction granted on 18^th January 2021 as the exercise of discretion by a Judge should not be done arbitrarily and should be done within the framework of the law.

30. I therefore order that the Notice of Motion of the Plaintiff filed 6^th January 2021 is dismissed and the order of 18^th January 2021 is lifted.

31. Costs are awarded to the Defendants.

Ordered accordingly.
_______________________________________________________________
Mr. Furigi and Mr. Tape: Lawyers for the First & Second Plaintiffs
Mr. Mel Muga: Lawyers for the Defendant