Ok Tedi Mining Ltd v Niugini Insurance Corporation and Others (No 2) [1988-89] PNGLR 425

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ
• Judgment Date: 04 October 1989
• Court: National Court
• Citation: [1988-89] PNGLR 425
• Year: 1989
• Judgement Number: N760

Full Title: Ok Tedi Mining Ltd v Niugini Insurance Corporation and Others (No 2) [1988-89] PNGLR 425

National Court: Kapi DCJ

Judgment Delivered: 4 October 1989

N760

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OK TEDI MINING LTD

V

NIUGINI INSURANCE CORPORATION AND OTHERS (NO 2)

Waigani

Kapi DCJ

21 September 1989

4 October 1989

PRACTICE AND PROCEDURE — National Court — Declaratory relief — Jurisdiction — Procedural objection to claim for — Where no consequential relief sought — Within discretion of court — Relevant considerations — Multiplicity of proceedings — Disposition of issues — Complex proceedings — Whether advisable in.

Held

(1) A procedural objection may now be made to a claim for a declaratory order on the ground that no consequential relief is sought.

Dent v Thomas Kavali [1981] PNGLR 488 at 490, considered.

(2) In determining whether such a procedural objection should be allowed, relevant discretionary considerations include whether allowing the claim would be encouraging multiplicity of proceedings and/or whether it would finally settle the real dispute between the parties.

(3) In order to keep the issues clear in a case which was complicated and likely to take a long time to complete, it was not advisable to deal with an additional claim for declaratory relief.

Cases Cited

Bruce v The Commonwealth Trade Marks Label Association (1907) 4 CLR 1569.

Dent v Thomas Kavali [1981] PNGLR 488.

Glasgow Navigation Co v Iron Ore Co [1910] AC 293.

Luna Park Ltd v The Commonwealth of Australia (1923) 32 CLR 596.

National Capital District Interim Commission v Bogibada Holdings Pty Ltd [1987] PNGLR 135.

Ok Tedi Mining Ltd v Niugini Insurance Corporation (No 1) [1988-89] PNGLR 355.

Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438.

Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368.

Taumaku Morea v Central Provincial Government [1978] PNGLR 415.

Motion

This was a motion on notice seeking, inter alia, to strike out parts of the statement of claim.

Editor's Note

See also Ok Tedi Mining Ltd v Niugini Insurance Corporation (No 1) [1988-89] PNGLR 355.

Counsel

R L Hunter QC with A J Sullivan, for the plaintiff.

I V Gzell QC with D R Cooper, for the defendants.

Cur adv vult

4 October 1989

KAPI DCJ: By a notice of motion filed on 13 September 1989 the applicant/defendants seek various orders. In this judgment I will deal with matters that have been contested by the parties.

PAR 16

The plaintiff filed an amended statement of claim on 4 May 1989. Clauses 16, 16a, 16b and 16c were contained in the statement of claim. In an earlier application, the defendants applied to have all the mentioned clauses struck out and to give liberty to the plaintiff to replead the issues. In making my ruling, I struck out cl 16a only of the statement of claim. (See Ok Tedi Mining Ltd v Niugini Insurance Corporationu (No 1) [1988-89] PNGLR 355.)

At the hearing of the application now before me (21 September 1989), the plaintiffs filed a further amended statement of claim. On this pleading, the plaintiff has repleaded the whole of cl 16. Under cl 16, the plaintiff has confined the nature of its claim to loss or damage to the dam at Ok Ma and claims the sum of K69,723,134. Under cll 16a to 16af of the statement of claim, the plaintiff repleaded the claim for reinstatement of a new dam at Lukwi. In respect of this latter claim, the plaintiffs claim a declaration that the insurance companies are liable to indemnify the plaintiff in respect of the replacement costs of building a tailings system at Lukwi or at such other location as may be approved or required by the State. It has been conceded by the plaintiff that the remedy with respect to reinstatement at Lukwi is confined to a declaration in relation to liability because at this stage they are not in a position to build, or not in a position to estimate the cost of, a replacement dam.

The defendants submit that I should strike out cll 16a to 16af on two bases. First, that the plaintiff repleaded the issue which was struck out in an earlier application. Secondly, that the plaintiff at this stage pleaded a hypothetical state of facts, that is to say, that the claim for reinstatement at Lukwi has not eventuated and therefore, the declaration sought is in essence seeking an advice from the court as to its position in a claim which is to take place in the future. The defendants rely on a number of cases: see Glasgow Navigation Co v Iron Ore Co [1910] AC 293 at 294, Bruce v The Commonwealth Trade Marks Label Association (1907) 4 CLR 1569 at 1570, Luna Park Ltd v The Commonwealth of Australia (1923) 32 CLR 596 at 600, Swift Australian Co (Pty) Ltd v South British Insurance Co Ltd [1970] VR 368 at 368-369. It is submitted that the plaintiff's new basis for a claim to a declaration is hypothetical. It seeks a declaration of entitlement to an indemnity in respect of capital costs which it may or maynot incur in the future, depending on what the Government of Papua New Guinea decides under the agreement.

The plaintiff concedes that the cost of...