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) N4141

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 24 September 2010
• Court: National Court
• Citation: (2010) N4141
• Docket Number: WS NO 202 OF 2010
• Year: 2010
• Judgement Number: N4141

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) N4141

National Court: Cannings J

Judgment Delivered: 24 September 2010

N4141

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 a person to be added as a plaintiff to proceedings already commenced – National Court Rules, Order 5, Rules 2, 8, 11, 13.

A person who was not a party to proceedings, which the plaintiffs commenced six months previously, applied for an order that he be added to the proceedings as a plaintiff, in a representative capacity. The application was opposed by the defendants, and also by the plaintiffs, who in a separate motion sought leave to discontinue the proceedings. The application was brought under the National Court Rules, Order 5, Rules 2, 8, 11 and 13.

Held:

(1) The appropriate rule under which an application of this nature should be brought is Order 5, Rule 8.

(2) To order that a party be added as a party the court must first be satisfied that the applicant (a) “ought to have been joined as a party”; or (b) “is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on”. If (a) or (b) is satisfied, the court has a discretion to exercise: whether to order that the applicant be added as a party.

(3) Here, it cannot properly be said that the applicant ought to have been joined as, although he appears to have a similar interest in the subject matter of the proceedings to that of the plaintiffs, his inclusion as a party was not necessary to sustain the proceedings.

(4) It is not necessary that he be joined in the proceedings as, in view of the pending application by the plaintiffs for leave to discontinue the proceedings and the expressed consent of the defendants to that application, there were no longer any matters in dispute in the proceedings.

(5) Neither of the prerequisites in Order 5, Rule 8 was satisfied and therefore the application must fail.

(6) If the court had been persuaded that either (a) or (b) was satisfied it would still, as a matter of discretion, refused the application as, although it was a genuine application in that the applicant appeared to have a bona fide interest in the subject matter of the proceedings and did not clearly lack locus standi to seek the relief being sought by the plaintiffs and provided a satisfactory explanation for the apparent delay in making the application, it would defeat the interests of justice to allow the application when it is opposed by all parties, including the plaintiffs and the applicant, though purporting to act in a representative capacity, had not complied with the normal requirements for commencing representative proceedings.

(7) The application was accordingly refused and the question of costs was reserved.

Cases cited

The following cases are cited in the judgment:

AGC (Pacific) Ltd v Sir Albert Kipalan & Ors (2000) N1944

Knight v McCann-Erickson Supreme Court of NSW, No 1050 of 1991, 26.08.91

Ramu Nico (MCC) Ltd v Tarsie SCA 40/2010, 16.07.10

Rickard Constructions v Moretti [2004] NSWSC 1041

Tigam Malewo v Keith Faulkner (2009) SC960

Tozer v The State [1978] PNGLR 150

Umapi Luna Pakomeyu v James Siai Wamo (2004) N2718

Counsel

T Nonggorr & R William, for the applicant

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

24 September, 2010

1. CANNINGS J: This is a ruling on an application by Louis Medaing (“the applicant”) to be added and/or substituted as a plaintiff to the proceedings. He brings the application on his own behalf and on behalf of the Medaing families of the Tong Clan and the Sawang families that make up the Ongeg Clan. He says that these clans own land in the Basamuk area of Madang Province, where the refinery for the Ramu Nickel Project is located.

2. The proceedings he seeks to join are civil proceedings, WS No 202 of 2010, the plaintiffs commenced in March 2010. They were seeking amongst other things a permanent injunction to restrain the first defendant, Ramu Nico Management (MCC) Ltd (“MCC”), from committing the tort of nuisance. The plaintiffs were claiming that the nuisance would be constituted by the unauthorised environmental damage caused by the dumping of tailings into Astrolabe Bay by a deep-sea tailings placement system.

3. An application for Mr Medaing to be joined as a plaintiff was filed by the plaintiffs on 13 September 2010, eight days before the date set for the start of the trial, 21 September 2010. On the eve of the trial, 20 September 2010, the plaintiffs gave notice to their then lawyers, Nonggorr & William, (who are also Mr Medaing’s lawyers) that they were terminating their services and that they would be applying for leave to discontinue the proceedings. An application for leave to discontinue was filed on 22 September 2010 and was heard after the hearing of Mr Medaing’s application, on 23 September 2010.

WHAT IS THE APPROPRIATE RULE?

4. Mr Medaing’s application is founded on four Rules in Order 5 (parties and causes of action) of the National Court Rules:

· Rule 2 (joinder of parties generally);

· Rule 8 (addition of parties);

· Rule 11 (further conduct of proceedings);

· Rule 13 (representation; current interests).

5. I uphold the submission of Mr Molloy, counsel for the third, fourth and fifth defendants, that only one of these rules is directly relevant, in the sense of being the source of power for the court to make the sort of order that Mr Medaing is seeking. That rule is Rule 8(1).

6. Rule 2 is concerned with joining parties as co-plaintiffs at the commencement of proceedings. It is not relevant to an application to add a person as a plaintiff after commencement of proceedings.

7. Rule 11 is a facilitative rule. It clarifies the sort of orders that the court may make if it makes an order under other rules, including Rule 8.
It does not by itself authorise the court to order the addition of a party.

8. Rule 13 lays down guidelines as to when it is appropriate for a person to commence and/or continue proceedings in a representative capacity. It is not a rule that prescribes the circumstances in which a person may be added as a party.

9. The application can only properly be determined by considering the elements of Order 5, Rule 8(1).

ORDER 5, RULE 8(1): ADDITION OF PARTIES

10. It states:

Where a person who is not a party—

(a) ought to have been joined as a party; or

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on,

the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.

11. Rule 8(1) operates in this way. To order that a party be added as a party the court must first be satisfied that the applicant:

(a) “ought to have been joined as a party”; or

(b) “is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on”.

12. If (a) or (b) is satisfied, the court has a discretion to exercise: whether to order that the applicant be added as a party. If neither (a) nor (b) is satisfied, the court has no power under Order 8(1) to order the addition of a party.

OUGHT MR MEDAING HAVE BEEN JOINED AS A PARTY?

13. It cannot properly be said that Mr Medaing ought to have been joined as, although he appears to have a similar interest in the subject matter of the proceedings to that of the plaintiffs, his inclusion as a party has not, until very recently, been regarded as necessary to sustain the proceedings. He says he is a customary landowner in the Basamuk area. He agrees that he is in dispute with other people from that area who claim customary ownership of the same land. He appears on the face of it to be the sort of person who could have been joined as a plaintiff at the commencement of the proceedings. However, his omission from the proceedings has had no effect on the continuation or sustainability of the...