Louis Medaing on his own behalf and on behalf of the Medaing Families of the Tong Clan being Nujar Masa, Sebmam Manina, Ilogo Medaing, Gamao Medaing, Josale Medaing, Helmish Medaing, Junis Medaing, Rachel Medaing, Constin Sebmam, Kogo Masa, Baragen Masa, Louis Medaing (Junior), Semmy Sowo, Joyce Medaing, Mathilda Ihaga, Buda Damise, Henry Jacob and Charles Baguga and the Sawang Families that make up the Ongeg Clan being Baguga Sawang, Iddu Sawang, Gimal Baguga, George Baguga, Weba Sawang, Kumbonga Baruk, Jimmy Willy, Junior Baruk, Mangan Iddu, Gigibe Weba, James Willy, Sadu Murungai, Peter Anitango, Baruk Anitango, Johanes Anitango, Ninge William, Monika William, Jane Gumong, Samuel M Made and Bou Jakobus v Ramu Nico Management (MCC) Limited and The Independent State of Papua New Guinea and Dr Wari Iamo in his capacity as Director of Environment (2010) N4158

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 15 November 2010
• Court: National Court
• Citation: (2010) N4158
• Docket Number: WS NO 1192 OF 2010
• Year: 2010
• Judgement Number: N4158

Full Title: WS NO 1192 OF 2010; Louis Medaing on his own behalf and on behalf of the Medaing Families of the Tong Clan being Nujar Masa, Sebmam Manina, Ilogo Medaing, Gamao Medaing, Josale Medaing, Helmish Medaing, Junis Medaing, Rachel Medaing, Constin Sebmam, Kogo Masa, Baragen Masa, Louis Medaing (Junior), Semmy Sowo, Joyce Medaing, Mathilda Ihaga, Buda Damise, Henry Jacob and Charles Baguga and the Sawang Families that make up the Ongeg Clan being Baguga Sawang, Iddu Sawang, Gimal Baguga, George Baguga, Weba Sawang, Kumbonga Baruk, Jimmy Willy, Junior Baruk, Mangan Iddu, Gigibe Weba, James Willy, Sadu Murungai, Peter Anitango, Baruk Anitango, Johanes Anitango, Ninge William, Monika William, Jane Gumong, Samuel M Made and Bou Jakobus v Ramu Nico Management (MCC) Limited and The Independent State of Papua New Guinea and Dr Wari Iamo in his capacity as Director of Environment (2010) N4158

National Court: Cannings J

Judgment Delivered: 15 November 2010

N4158

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1192 OF 2010

LOUIS MEDAING

ON HIS OWN BEHALF AND ON BEHALF OF

THE MEDAING FAMILIES OF THE TONG CLAN

BEING NUJAR MASA, SEBMAM MANINA, ILOGO MEDAING, GAMAO MEDAING, JOSALE MEDAING, HELMISH MEDAING, JUNIS MEDAING, RACHEL MEDAING, CONSTIN SEBMAM,

KOGO MASA, BARAGEN MASA, LOUIS MEDAING (JUNIOR), SEMMY SOWO, JOYCE MEDAING, MATHILDA IHAGA, BUDA DAMISE, HENRY JACOB AND CHARLES BAGUGA

AND THE SAWANG FAMILIES THAT MAKE UP

THE ONGEG CLAN

BEING BAGUGA SAWANG, IDDU SAWANG, GIMAL BAGUGA, GEORGE BAGUGA, WEBA SAWANG, KUMBONGA BARUK, JIMMY WILLY, JUNIOR BARUK, MANGAN IDDU, GIGIBE WEBA, JAMES

WILLY, SADU MURUNGAI, PETER ANITANGO, BARUK ANITANGO, JOHANES ANITANGO, NINGE WILLIAM, MONIKA WILLIAM, JANE GUMONG, SAMUEL M MADE AND BOU JAKOBUS

Plaintiff

V

RAMU NICO MANAGEMENT (MCC) LIMITED

First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

DR WARI IAMO IN HIS CAPACITY AS

DIRECTOR OF ENVIRONMENT

Third Defendant

Madang: Cannings J

2010: 12, 15 November

PRACTICE AND PROCEDURE – application by plaintiff to add plaintiffs – National Court Rules, Order 5, Rule 8.

The plaintiff applied under Order 5, Rule 8(1) of the National Court Rules for an order that 10 persons be added as plaintiffs. The application was opposed by the first defendant both on grounds that were specific to individual applicants and on general grounds. Specifically, the first defendant argued that, as to applicant (c), he wants to be joined in a representative as well as individual capacity but the rules for bringing representative actions have not been complied with, and, as to applicant (j) he has not given his consent to be added as a plaintiff, contrary to Order 5, Rule 8(2). Generally, the first defendant argued that none of the applicants had a sufficient interest in the proceedings as they were not customary owners of the land or sea that was the subject matter of the proceedings and, some of them were from places in the province far away from the relevant land and sea area.

Held:

(1) The specific grounds of objection were upheld. The application on behalf of applicant (c) was refused, to the extent that he proposed to be added in a representative capacity, as the rules for bringing representative actions have not been complied with. The application on behalf of applicant (j) was entirely refused as there was insufficient evidence of his consent.

(2) The general grounds of objection were dismissed as each of the applicants amply demonstrated that they are from coastal areas of the province and appear to have a genuine concern for the environmental effects of the deep-sea tailings placement system. Therefore they have a sufficient interest in the proceedings.

(3) Each applicant was considered to be 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” in that:

· he could have been properly joined as a plaintiff upon commencement of the proceedings;

· he would be capable of commencing fresh proceedings, prosecuting the same cause of action, in the event that the present proceedings are discontinued;

· he shares common interests with the existing plaintiff; and

· his addition as a plaintiff now avoids the prospects of a multiplicity of proceedings regarding the same cause of action.

(4) It was appropriate as a matter of discretion to uphold the application for addition of nine of the ten applicants, as individual plaintiffs.

Cases cited

The following cases are cited in the judgment:

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

Donigi v The State [1991] PNGLR 376

Konze Kara v Public Curator of PNG (2010) N4048

PNG International Hotels Pty Ltd & Anor v The Registrar of Land Titles and Ors (2007) N2307

Rickard Constructions Pty Ltd v Moretti [2004] NSWSC 1041

Tarsie v Ramu Nico (MCC) Ltd (2010) N4141

Tigam Malewo v Keith Faulkner (2009) SC960

Umapi Luna Pakomeyu v James Siai Wamo (2004) N2718

Counsel

T Nonggorr, for the plaintiff

I Molloy & G Gileng, for the first defendant

D Steven & T Tanuvasa, for second and third defendants

15 November, 2010

1. CANNINGS J: This is a ruling on an application by the plaintiff, Louis Medaing, for an order that 10 persons be added to the proceedings as plaintiffs. The application is made under Order 5, Rule 8(1) of the National Court Rules.

2. On 24 September 2010 the plaintiff commenced proceedings, in which he is seeking a permanent injunction to restrain the first defendant, the developer of the Ramu Nickel Project, Ramu Nico Management (MCC) Ltd (“MCC”), from committing the nuisance which he claims would be constituted by disposing of mine tailings in the sea through the deep-sea tailings placement system (DSTP). He also seeks declarations that he and his family members must in future be consulted and informed on any matter concerning tailings disposal from the mine; that the DSTP is not a permitted activity under the Environment Act 2000; and that operation of the DSTP is in breach of that Act and is unlawful.

3. He filed the application which is now being ruled on – to add 10 plaintiffs – on 20 October 2010. The notice of motion actually proposed the addition of 11 plaintiffs, but the application in respect of the 11th person, Hon Belden Namah MP, has not been pursued.

4. The application is opposed by the first defendant both on grounds that are specific to individual applicants and general grounds. The second and third defendants neither support nor oppose the application.

THE APPLICANTS

5. It is convenient to refer to the ten proposed plaintiffs as ‘applicants’, even though, strictly speaking, the existing plaintiff, Louis Medaing, is the applicant. The ten applicants each say they are from various parts of Madang Province. They have each sworn an affidavit expressing the nature of their concern about the subject matter of the proceedings, in particular the environmental effects of the deep-sea tailings placement system. The applicants, and the places they say they are from, are:

(a) Terry Kunning, Mindere village, Basamuk area, Rai Coast District;

(b) Martin D Yagau, Songum village, Basamuk area, Rai Coast District – Ward 3 Councillor, Astrolabe Bay Local-level Government;

(c) Paul Kamang, on behalf of the Madang Landowners Association and the Maulong Tribe Land Group Incorporated, Morerang No 2 village, Yabob, Madang District;

(d) Bill Koi, Kranget Island, Madang District – Ward 1 Councillor, Ambenob Local-level Government;

(e) Tamlong Tab, Siar Village, Madang District;

(f) Kamanang Namur, Bilbil village, Madang District;

(g) Simon Sil, Riwo village, Madang District – Ward 6 Councillor, Ambenob Local-level Government;

(h) James Sungai, Kananam village, Bagabag Island, Sumkar District;

(i) Casper Angua, Ambana village, Bogia District; and

(j) Mark Avango, Dangale village, Manam Island, Bogia District.

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

6. 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.

7. Order 5, Rule 8(2) is also relevant. It states:

A person shall not be added as plaintiff without his consent.

8. As I pointed out in Tarsie v Ramu Nico (MCC) Ltd (2010) N4141, 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”.

9. If (a) or (b) is satisfied, and provided the applicant consents (for the purposes of Rule 8(2)) to being added as a...