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 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) N4142

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 24 September 2010
• Court: National Court
• Citation: (2010) N4142
• Docket Number: WS NO 202 OF 2010
• Year: 2010
• Judgement Number: N4142

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 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) N4142

National Court: Cannings J

Judgment Delivered: 24 September 2010

N4142

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

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: 23, 24 September

PRACTICE AND PROCEDURE – application by plaintiffs for leave to discontinue proceedings – National Court Rules, Order 8, Rule 61.

The plaintiffs, who commenced proceedings six months previously, applied to the court under the National Court Rules, Order 8, Rule 61 for leave to discontinue the whole of their claim for relief. The defendants consented to the application and did not seek costs.

Held:

(1) If a plaintiff wishes to discontinue proceedings and their application for leave to do so is made with the consent of all defendants, leave should generally be granted, it being in the interests of justice to encourage parties to reach an out-of-court settlement of their disputes.

(2) To refuse leave to discontinue would constitute a restriction on a plaintiff’s right to freedom based on law under Section 32 of the Constitution and the right to the full protection of the law under Section 37(1) of the Constitution; and such a restriction ought only be imposed in extreme circumstances.

(3) Leave was granted on terms that a notice of discontinuance be filed by each of the plaintiffs within three days and that the parties bear their own costs of the entire proceedings.

Cases cited

The following case is cited in the judgment:

Eton Pakui v The State (2006) N3001

Counsel

D Steven, for the plaintiffs

C Scerri QC, G Gileng & C Posman, for the first defendant

A Mana, for the second defendant

I M Molloy & T Tanuvasa, for the third, fourth & fifth defendants

24th September, 2010

1. CANNINGS J: This is a ruling on an application by the plaintiffs for leave to discontinue the proceedings, WS No 202 of 2010, which they commenced in March this year. They filed the application on 21 September 2010, which was the day set for the start of the trial.

2. Their application is based on Order 8, Rule 61(1)(c) (discontinuance) of the National Court Rules, which states:

A party making a claim for relief may discontinue proceedings so far as concerns the whole or any part of any claim for relief by him … at any time—with the leave of the Court.

3. All defendants consent to the application and do not seek costs against the plaintiffs.

4. This is a very late application and the court has been greatly inconvenienced by it. Eight sitting days were set aside for the trial. Other important cases have been pushed aside to make way for this case. A considerable amount of court time has been devoted to preparing for the trial. Be that as it may, there are two factors that work strongly in favour of granting the application.

5. First, if a plaintiff wishes to discontinue proceedings and their application for leave to do so is made with the consent of all defendants, leave should generally be granted, as it is in the public interest and it is in the interests of justice, to encourage parties to reach an out-of-court settlement of their disputes.

6. Secondly, to refuse leave to a plaintiff to discontinue would constitute a restriction on his right to freedom based on law under Section 32 of the Constitution and the right to the full protection of the law under Section 37(1) of the Constitution; and such a restriction ought only be imposed in extreme circumstances (Eton Pakui v The State (2006) N3001).

7. The present circumstances are unusual, special, exceptional and, to a degree, suspicious (what really has led to the plaintiffs sacking their lawyers on the eve of the trial and seeking leave to discontinue on the day of the trial – have they been intimidated? threatened? paid off? – these being the sorts of questions reasonable people will legitimately ask) but they are not sufficiently extreme to warrant the court forcing the plaintiffs to continue their case. I do not see any sufficient reason to refuse leave, so the application will be granted.

8. As for the terms on which leave should be granted I am tempted to impose...