High court upholds appeal by fishing firm against 3 decisions

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THE Waigani Supreme Court has upheld an appeal by a fishing company against three decisions by a lower court which refused their bid to dismiss a proceeding filed by villagers in Madang who instituted liability proceedings against it for disturbing their customary fishing areas.
A three-man bench, comprising of judges Les Gavara-Nanu, Derek Hartshorn and Colin Makail, held that the primary judge had erred in his exercise of the court’s discretion and quashed National Court orders made on Nov 5, 2019.
RD Fishing Ltd had appealed against the exercise of discretion by the primary judge in the three judgements, which are concerned with a representative action.
The grounds of appeal alleged that the primary judge erred in using the court’s discretion to refuse to dismiss the proceeding because it was non-compliant with representative proceeding requirements.
The respondent, Hamilton Masai, acting on behalf of the traditional inhabitants of Kanam village and Sek Island along north coast road, Madang, submitted that the primary judge had not erred in his use of the court’s discretion.
They argued that representative proceedings could be filed by one or more persons and that the National Court proceeding was valid.
In the proceeding, they pleaded that RD Fishing Ltd by its fishing operations had interfered with their customary fishing rights, their travelling routes and their use and enjoyment of the waters of Vidar Bay.
On Sept 26, 2019, the primary judge had refused the first application to dismiss and ordered that the company rectify the proceeding.
Oct 21, 2019, the primary judge refused the second application.
On Nov 5, 2019, the primary judge again refused to dismiss the proceedings and declared that only those who had signed an authority to act would be regarded as plaintiffs in the proceeding.
The bench ruled that the company, on two previous occasions, had been given sufficient opportunity to rectify the proceeding but did not without any good reason.
The bench stated that the primary judge did not give proper weight to that fact regarding the respondent.
The bench held that the company failed to comply with the court order to rectify the proceeding because there was a specific finding to that effect by the court.