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 (2010) N4127

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 October 2010
• Court: National Court
• Citation: (2010) N4127
• Docket Number: WS NO 1192 OF 2010
• Year: 2010
• Judgement Number: N4127

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 (2010) N4127

National Court: Cannings J

Judgment Delivered: 22 October 2010

N4127

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

Defendant

Madang: Cannings J

2010: 15, 22 October

INJUNCTIONS – interim injunctions – interim order sought to prevent preparatory or construction work on tailings placement system for a mine.

The plaintiff, representing himself and members of families who claim to have an interest in customary land, including sea waters, affected by a nickel mine being constructed by the defendant, commenced proceedings by writ of summons seeking a permanent injunction to restrain the defendant from committing an alleged nuisance arising from its mining activities, in particular constructing and operating a deep-sea tailings placement system. Shortly after filing and serving the writ, the plaintiff applied by motion for an interim order, pending determination of the substantive proceedings, that the defendant cease all preparatory or construction work on the proposed deep sea tailings placement system that involves directly or indirectly damage or disturbance to the offshore environment.

Held:

(1) The primary considerations to be taken into account when the court decides how to exercise its discretion whether to grant an interim injunction are: (a) are there serious questions to be tried and does an arguable case exist? (b) has an undertaking as to damages been given? (c) would damages be an inadequate remedy if the interim order is not granted? (d) does the balance of convenience favour the granting of the interim order? (e) do the interests of justice require that the interim order be made?

(2) If all considerations are in the affirmative it will generally be the case that an interim injunction should be granted. Failure to satisfy one or more of the criteria will work in favour of refusing the injunction.

(3) Here: (a) there are serious questions to be tried and the plaintiff has a serious, not merely speculative, case, with a real possibility of ultimate success; (b) an undertaking as to damages has been given; and (c) damages would be an inadequate remedy. Those factors favour granting the injunction.

(4) However: (d) the balance of convenience does not favour granting an injunction in the terms sought, in view of the relatively insignificant harm that would be caused between now and the trial, the commencement of which will be expedited; and (e) the interests of justice do not require that the injunction be granted, given the delay by the plaintiff in seeking it and the circumstances in which, in separate proceedings, similar claims by persons with similar interests to those of the plaintiff against the same defendant, were abandoned on the first day set for a trial.

(5) As two of the five considerations do not favour its granting, an injunction in the terms sought by the plaintiff was refused.

(6) However, as a matter of discretion, it was in the interests of justice, in the interim, to restrain operation (but not construction) of the deep-sea tailings placement system; and an injunction in those terms was granted accordingly.

Cases cited

The following cases are cited in the judgment:

Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853

Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878

Mainland Holdings Ltd v Stobbs (2003) N2522

Mark Ekepa v William Gaupe (2004) N2694

Medaing v Minister for Lands and Physical Planning (2010) N3917

Ramu Nico Management (MCC) Ltd & Others v Eddie Tarsie v Others (2010) SC1075

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

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

Tarsie v Ramu Nico (MCC) Ltd (2010) N4005

Tarsie v Ramu Nico (MCC) Ltd (2010) N4097

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

Tarsie v Ramu Nico (MCC) Ltd (2010) N4142

Counsel

T Nonggorr, for the plaintiff

I Molloy, G Gileng & C Posman, for the defendant

22 October, 2010

1. CANNINGS J: This is a ruling on an application by the plaintiff, Louis Medaing, for an interim injunction.

2. The plaintiff, acting on his own behalf and on behalf of certain members of two families, says that he is a customary owner of land in the Rai Coast area of Madang Province, who has customary rights over land in the vicinity of the Ramu Nickel Project and the sea waters of Astrolabe Bay. He is concerned about the proposed method of tailings disposal from the mine, known as a deep-sea tailings placement system (DSTP). He says that if the DSTP goes ahead the developer of the mine, Ramu Nico Management (MCC) Ltd (“MCC”), will be dumping 5 million tonnes of tailings per year into Astrolabe Bay, at a point 400 metres offshore, at a depth of 150 metres. He claims that this will cause great damage to the marine environment, which will amount to a common law nuisance. He also claims it will be an unlawful activity, as the serious environmental harm that will be caused is not authorised by the permits granted to MCC under the Environment Act.

3. On 24 September 2010 he commenced proceedings in the National Court at Madang, by a writ of summons and statement of claim, in which he is seeking a permanent injunction to restrain MCC from committing the nuisance which he claims would be constituted by disposing of the tailings in the sea. 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.

INJUNCTION SOUGHT

4. On the same day that he filed the writ, the plaintiff filed a notice of motion under which he seeks an interim injunction to restrain construction of the DSTP. It is that motion that is now before the Court.

5. The terms of the injunction the plaintiff seeks are:

That pursuant to Order 14, Rule 10 and Order 12, Rule 1 of the National Court Rules and Section 155(4) of the Constitution the defendant and its 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.

6. I granted an injunction in those terms, in this Court, on 19 March this year in separate proceedings, WS No 202 of 2010: Tarsie v Ramu Nico (MCC) Ltd (2010) N3960. That injunction remained in place until 24 September 2010, when it was discharged upon discontinuance of WS No 202 of 2010. The significance of this is that the issues raised by the present case are very similar to those in WS No 202 of 2010. The statement of claim in each case is similar, the causes of action pleaded are similar, the relief sought is similar. In fact, it could be said that the present proceedings are almost a carbon-copy of WS No 202.

7. The injunction of 19 March survived an appeal to the Supreme Court by the defendant, MCC, and other parties (Ramu Nico Management (MCC) Ltd & Others v Eddie Tarsie v Others (2010) SC1075: Davani J and Sawong J; Hartshorn J dissenting). The matters I took into account when deciding to grant the 19 March injunction were found to be correct, and the approach I took to the application and the exercise of discretion were also found to be valid. It follows that I should, and will, take the same matters into account when determining the present application. I will take the same approach as in WS No 202 and I will go about the task of determining...