Eddie Tarsie for Himself and in his capacity as Ward Councillor of Ward 3, Saidor Local-Level Government and Farina Siga, for Himself and in his capacity as Ward Secretary of Ward 3, Saidor Local-Level Government and Peter Sel and Pommern Incorporated Land Group No 12591 and Sama Melambo for Himself and as Chairman of Pommern Incorporated Land Group No 12591 v Ramu Nico Management (MCC) Limited and Mineral Resources Authority and Dr Wari Iamo in his capacity as Director of Environment and Department of Environment and Conservation and The Independent State of Papua New Guinea (2010)

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 14 April 2010
• Court: National Court
• Citation: (2010) N3987
• Year: 2010
• Docket Number: WS NO 202 OF 2010
• Judgement Number: N3987

Full Title: WS NO 202 OF 2010; Eddie Tarsie for himself and in his capacity as Ward Councillor of Ward 3, Saidor Local-Level Government and Farina Siga, for himself and in his capacity as Ward Secretary of Ward 3, Saidor Local-Level Government and Peter Sel and Pommern Incorporated Land Group No 12591 and Sama Melambo for himself and as Chairman of Pommern Incorporated Land Group No 12591 v Ramu Nico Management (MCC) Limited and Mineral Resources Authority and Dr Wari Iamo in his capacity as Director of Environment and Department of Environment and Conservation and The Independent State of Papua New Guinea (2009) N3988

National Court: Cannings, J

Judgment Delivered: 14 April 2010

N3987

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 202 OF 2010

EDDIE TARSIE FOR HIMSELF AND IN HIS CAPACITY AS

WARD COUNCILLOR OF WARD 3,

SAIDOR LOCAL-LEVEL GOVERNMENT

First Plaintiff

FARINA SIGA, FOR HIMSELF AND IN HIS CAPACITY AS

WARD SECRETARY OF WARD 3,

SAIDOR LOCAL-LEVEL GOVERNMENT

Second Plaintiff

PETER SEL

Third Plaintiff

POMMERN INCORPORATED LAND GROUP NO 12591

Fourth Plaintiff

SAMA MELAMBO FOR HIMSELF AND AS CHAIRMAN OF

POMMERN INCORPORATED LAND GROUP NO 12591

Fifth Plaintiff

V

RAMU NICO MANAGEMENT (MCC) LIMITED

First Defendant

MINERAL RESOURCES AUTHORITY

Second Defendant

DR WARI IAMO IN HIS CAPACITY AS

DIRECTOR OF ENVIRONMENT

Third Defendant

DEPARTMENT OF ENVIRONMENT AND CONSERVATION

Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

Madang: Cannings J

2010: 12, 14 April

INJUNCTIONS – interim injunctions – application to set aside – considerations to take into account when determining application to set aside interim orders.

The defendants applied to set aside an interim injunction previously granted by the National Court on various grounds, their principal contention being that in light of the true factual and legal situation there is no serious question for trial and the plaintiffs do not have an arguable case. In support of that contention the defendants argued that the interim injunction had been granted on an erroneous legal basis and relied on previously undisclosed material facts. Other contentions of the defendants included that the facts and legal issues on which they rely to set aside the interim injunction were not argued before the court earlier as they had no opportunity to do so; that the court was misled by the plaintiffs when it granted the interim injunction; and that a reconsideration of discretionary matters should result in the conclusion that the interim injunction be set aside.

Held:

(1) The National Court has power under the Constitution, Sections 163(2), 155(3)(a) and 155(4), and the National Court Rules, Order 8, Rule 8(4) to set aside its own interim orders.

(2) The question of whether to set aside an interim injunction is a matter of discretion, to be exercised after taking account of various considerations, in particular: whether there has been a material change in circumstances; whether the subsequent conduct of the parties warrants the interim injunction being set aside; whether there are any previously undisclosed material facts; whether the interim injunction was granted on an erroneous legal basis; whether the grounds being relied on to set aside the interim injunction were not relied on earlier as there was no opportunity to do so; whether the court was misled when it granted the interim injunction (Mainland Holdings Ltd v Stobbs (2003) N2522; Mark Ekepa v William Gaupe (2004) N2694).

(3) Here, the defendants validly raised significant legal arguments that deserve thorough consideration at trial but they were not sufficiently compelling to demonstrate that the interim injunction had been granted on an erroneous legal basis or that there were no serious questions to be tried or that the plaintiffs did not have a prima facie case. Likewise, the previously undisclosed facts relied on by the defendants were not such as to show that there is no serious question for trial.

(4) The other contentions of the defendants did not warrant the court in the exercise of its discretion in setting aside the interim injunction and the applications were refused.

Cases cited

The following cases are cited in the judgment:

Mainland Holdings Ltd v Stobbs (2003) N2522

Mark Ekepa v William Gaupe (2004) N2694

Tarsie v Ramu Nico (MCC) Ltd (2010) N3960

Tarsie v Ramu Nico (MCC) Ltd WS No 202 of 2010, 02.04.10 unreported

Counsel

T Nonggorr, for the plaintiffs

I Molloy & G Gileng, for the first defendant

D Aikung-Hombhanje ,for the second defendant

L Kandi for the third, fourth & fifth defendants

14 April, 2010

1. CANNINGS J: On 19 March 2010 I granted an interim injunction requiring the defendants to cease all preparatory or construction work on the Ramu Nickel Mine deep sea tailings placement system that involves directly or indirectly damage or disturbance to the offshore environment (Tarsie v Ramu Nico (MCC) Ltd (2010) N3960). That interim injunction was granted following an application by the plaintiffs who claim to be customary landowners or land groups in the Rai Coast area of Madang Province. They are concerned about the environmental impact of the Ramu Nickel Project, in particular the proposed method of tailings disposal. Their application was brought under proceedings in which they are seeking permanent injunctions to restrain the first defendant, Ramu Nico Management (MCC) Ltd (“MCC”) from committing various alleged nuisances arising from a deep sea tailings placement system. They say that even though MCC has an environment permit which purports to authorise the proposed deep sea tailings placement system, that permit was granted under the repealed Environmental Planning Act, and does not as a matter of law authorise the torts of private and public nuisance that will be committed if the deep sea tailings placement system is allowed to proceed.

2. MCC and the second defendant, the Mineral Resources Authority, have by separate notices of motion applied to the court to have the interim injunction set aside. They are supported by the other defendants: the Director of Environment, the Department of Environment and Conservation and the State. The two applications have been heard together as they are in almost identical terms. They are opposed by the plaintiffs.

3. On 2 April 2010 I upheld a motion by MCC which clarified the application of the interim injunction (Tarsie v Ramu Nico (MCC) Ltd WS No 202 of 2010, 02.04.10 unreported).

THE LAW ON SETTING ASIDE INTERIM INJUNCTIONS

4. The parties agree that the National Court has power under the Constitution, Sections 163(2), 155(3)(a) and 155(4), and the National Court Rules, Order 8, Rule 8(4) to set aside its own interim orders.

5. The parties also agree that the question of whether to set aside an interim injunction is a matter of discretion, to be exercised after taking account of various considerations, in particular: whether there has been a material change in circumstances; whether the subsequent conduct of the parties warrants the interim injunction being set aside; whether there are any previously undisclosed material facts; whether the interim injunction was granted on an erroneous legal basis; whether the grounds being relied on to set aside the interim injunction were not relied on earlier as there was no opportunity to do so; and whether the court was misled when it granted the interim injunction (Mainland Holdings Ltd v Stobbs (2003) N2522; Mark Ekepa v William Gaupe (2004) N2694).

ISSUES

6. What the parties do not agree on, and what has to be decided now, is whether after applying those relevant considerations the court should exercise its discretion by setting aside the interim injunction of 19 March 2010.

7. The defendants’ principal contention is that in light of the true factual and legal situation there is no serious question for trial and the plaintiffs do not have an arguable case. In support of that contention the defendants argue that the interim injunction was granted on an erroneous legal basis and that there are a number of previously undisclosed material facts that reveal fundamental flaws in the plaintiffs’ case. They also contend that many of the facts and legal issues on which they rely to set aside the interim injunction were not argued before the court earlier as they had no opportunity to do so; that the court was misled by the plaintiffs when it granted the interim injunction; and that a reconsideration of discretionary matters required to be taken into account by the court when it decides whether to grant an interim injunction should result in the conclusion that the interim injunction be set aside.

IS THERE A SERIOUS QUESTION FOR TRIAL?

8. The defendants argue that, though the court considered on 19 March that the plaintiffs had raised serious questions to be tried and had an arguable case, a more thorough consideration of this issue leads to the opposite conclusion: there is no serious question for trial and the plaintiffs are running a speculative case. The defendants base this principal contention on two propositions. First, that the interim injunction was granted on an erroneous legal basis. Secondly, that there are a number of previously undisclosed material facts that reveal fundamental flaws in the plaintiffs’ case.

Erroneous legal basis

9. The...