Eddie Tarsie v Ramu Nico Management (MCC) Ltd

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 24 August 2010
• Citation: (2010) N4097
• Court: National Court
• Year: 2010
• Judgement Number: N4097

Full : WS No 202 of 2010; Eddie Tarsie for himself and in his capacity asWard 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) N4097

National Court: Cannings J

Judgment Delivered: 24 August 2010

N4097

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: 20, 24 August

INJUNCTIONS – interim injunctions – application to discharge – whether change in circumstances and conduct of parties warrants discharge of injunction.

The first defendant applied to set aside an interim injunction previously granted by the National Court, their principal contention being that there has been a significant change in circumstances, which has completely altered the balance of convenience and that the conduct of the plaintiffs has led to an undue delay in starting the trial.

Held:

(1) The question of whether to discharge an interim injunction is a matter of discretion, to be exercised after taking account of various considerations, including whether there has been a material change in circumstances and whether the subsequent conduct of the parties warrants the interim injunction being set aside.

(2) There has been no material change in circumstances and the delay in commencement of the trial has not been proven to be the fault of the plaintiffs.

(3) Insufficient reasons had been advanced to discharge the injunction so the application was refused.

Cases cited

The following cases are cited in the judgment:

Gobe Hongu Ltd v National Executive Council and Others (1999) N1920

Mainland Holdings Ltd v Stobbs (2003) N2522

Mark Ekepa v William Gaupe (2004) N2694

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

Tarsie v Ramu Nico (MCC) Ltd (2010) N3986

Tarsie v Ramu Nico (MCC) Ltd (2010) N3987

Counsel

R William, for the plaintiffs

C Scerri QC & G Gileng, for the first defendant

A Mana, for the second defendant

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

24 August, 2010

1. CANNINGS J: This is a ruling on an application by the first defendant, Ramu Nico Management (MCC) Ltd (“MCC”), to discharge an interim injunction I granted in this court on 19 March 2010. The injunction states:

The defendants and their associates, agents and employees and persons for whom they are jointly or severally responsible shall 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 – including, without limiting the generality of the foregoing, all coral blasting or popping of dead or live coral and laying of pipes – and shall not carry out directly or indirectly any such work, pending determination of the substantive proceedings.

2. The application is supported by the third, fourth and fifth defendants – the Director of Environment, the Department of Environment and Conservation and the State – and opposed by the plaintiffs. The second defendant, the MRA, neither supports nor opposes the application.

3. An interim injunction is a court order that by its nature can be discharged or varied at the discretion of the court that granted it. 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).

4. The application to discharge the injunction is based on two grounds. First, that there has been a significant change in circumstances, which has completely altered the balance of convenience. Secondly, that the conduct of the plaintiffs has led to an undue delay in starting the trial.

CHANGE IN CIRCUMSTANCES

5. MCC says that there are two material changes in circumstances: they are undertaking not to discharge tailings through the deep sea tailings placement system (DSTP) until determination of the proceedings or further order of the court and there is an increasingly urgent need to commence work on the DSTP before the onset of the wet season.

Undertaking not to discharge tailings

6. This undertaking was given in two ways. First, by MCC’s counsel, Mr Scerri, from the bar table, during the hearing. Secondly it was given in writing by MCC under its company seal, signed by its Executive Director and Executive Vice-President, Mr Gu Yu Xiang, in a document tendered in court after the close of submissions, over the objections of the plaintiffs’ counsel, Mr William.

7. Mr William submitted that neither undertaking should be acted on, the first because it was not given by the company and the second as it came too late.

8. I agree that an undertaking by counsel is not sufficient. The general practice in PNG for the purposes of applying for an injunction is that an undertaking as to damages must be given by the applicant, not by the applicant’s counsel (Gobe Hongu Ltd v National Executive Council and Others (1999) N1920). The court should therefore insist that any undertaking given by a party for the purposes of supporting an application to discharge an injunction be in writing and be given by the applicant, not its lawyer. I consider that MCC has satisfied this requirement. It has remedied this defect in the undertaking by tendering the document signed by Mr Xiang, notwithstanding that it was not tendered until after the close of submissions.

9. I consider that the undertaking can be accepted at face value. I say that as there has been no suggestion that since the injunction was granted on 19 March 2010 MCC has disobeyed it. MCC properly approached this court for clarification of the effect of the injunction, a motion that I ruled on, on 2 April (Tarsie v Ramu Nico (MCC) Ltd (2010) N3986). MCC also properly applied to set aside the injunction, a motion that I ruled on, on 14 April (Tarsie v Ramu Nico (MCC) Ltd (2010) N3987). MCC appealed to the Supreme Court against the injunction, an appeal which was dismissed on 16 July (Ramu Nico (MCC) Ltd v Tarsie SCA 40/2010, 16.07.10). All of these steps to clarify or lessen the effect of the injunction have been lawfully taken, and have involved no abuse of process. So I will treat the undertaking as having been made in good faith.

10. MCC argues that the undertaking is a significant change in circumstances as the principal apprehended harm that the injunction is intended to prevent – and the purported unlawful harm that the plaintiffs rely on to support their cause of action – is the discharge of waste into the sea.

11. I accept that this is a change in circumstances. However, by itself, it does not justify a discharge of the injunction as the injunction on its terms was directed at preventing amongst other things environmental harm likely to be caused by coral blasting or popping of dead or live coral and laying of pipes. The undertaking is a change in circumstances to be weighed in the balance with the other matter relied on by MCC, the need to commence construction quickly.

Urgent need to commence work on the DSTP before onset of wet season

12. MCC argues that they need to commence construction of the DSTP immediately. If they cannot start immediately, the DSTP will not be able to be constructed until April next year, at the end of the next wet season. Their Design and Construction Manager, Dr George Shou, deposes in affidavits that the only significant construction work yet to be completed for the Ramu Nickel project is the...