Tigam Malewo and Robert Demutt and Hens Guimben on their behalf and on behalf of Tama, Amisan and Daventem Clan Members and Dick Domki, Nong Korek, Norman Bonben and Silo Kondomo on their behalf and on behalf of Brulla Genho, Daupka and Kimka Clan Members v Keith Faulkner, Managing Director, Ok Tedi Mining Limited and Ok Tedi Mining Limited and PNG Sustainable Development Programme Company and BHP (PNG) Limited and The Independent State of Papua New Guinea and Inmet Mining Corporation and BHP Billiton Limited, (2009) SC960

• Jurisdiction: Papua New Guinea
• Judge: Batari J, Mogish J, Cannings J
• Judgment Date: 13 March 2009
• Docket Number: SCA NO 122 0F 2007
• Court: National Court
• Judgement Number: SC960

Full Title: SCA NO 122 0F 2007; Tigam Malewo and Robert Demutt and Hens Guimben on their behalf and on behalf of Tama, Amisan and Daventem Clan Members and Dick Domki, Nong Korek, Norman Bonben and Silo Kondomo on their behalf and on behalf of Brulla Genho, Daupka and Kimka Clan Members v Keith Faulkner, Managing Director, Ok Tedi Mining Limited and Ok Tedi Mining Limited and PNG Sustainable Development Programme Company and BHP (PNG) Limited and The Independent State of Papua New Guinea and Inmet Mining Corporation and BHP Billiton Limited, (2009) SC960

National Court: Batari J, Mogish J, Cannings J

Judgment Delivered: 13 March 2009

SC960

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 122 0F 2007

TIGAM MALEWO AND ROBERT DEMUTT

AND HENS GUIMBEN ON THEIR BEHALF AND ON BEHALF

OF TAMA, AMISAN AND DAVENTEM CLAN MEMBERS

First Appellants

AND

DICK DOMKI, NONG KOREK, NORMAN BONBEN

AND SILO KONDOMO ON THEIR BEHALF AND ON BEHALF

OF BRULLA GENHO, DAUPKA AND KIMKA CLAN MEMBERS

Second Appellants

V

KEITH FAULKNER,

MANAGING DIRECTOR, OK TEDI MINING LIMITED

First Respondent

OK TEDI MINING LIMITED

Second Respondent

PNG SUSTAINABLE DEVELOPMENT PROGRAMME COMPANY

Third Respondent

BHP (PNG) LIMITED

Fourth Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Respondent

INMET MINING CORPORATION

Sixth Respondent

BHP BILLITON LIMITED

Seventh Respondent

Waigani: Batari J, Mogish J, Cannings J

2008: 2 October;

2009: 13 March

PRACTICE AND PROCEDURE – proper mode of commencement of proceedings in the National Court – whether originating summons disclosed a reasonable cause of action – whether proceedings were frivolous, vexatious or an abuse of process – requirements for commencement of representative actions.

The appellants (then the plaintiffs) commenced proceedings in the National Court, seeking declarations, damages and other orders against the respondents – the owners and operators of a mine, and associated parties – due to alleged environmental damage. The National Court entirely dismissed the proceedings before trial, on various grounds, including use of an originating summons, when the proper mode of commencement was a writ of summons; the plaintiffs were not properly identified and failed to disclose their authority to represent other people; the originating process failed to disclose a reasonable cause of action; the proceedings were frivolous, vexatious and an abuse of process. The appellants appealed on 12 grounds.

Held:

(1) All grounds of appeal were dismissed as the appellants failed to demonstrate that the primary Judge made any significant errors of law.

(2) The primary Judge properly ruled, amongst other things, that:

· the appellants used an originating summons, when the proper mode of commencement was a writ of summons;

· the plaintiffs were not properly identified and failed to disclose their authority to represent other people (said to number about 13,000 individuals);

· the originating summons failed to disclose a reasonable cause of action;

· the proceedings were frivolous, vexatious and an abuse of process.

(3) The appeal was accordingly dismissed and the appellants’ lawyers were ordered to pay the respondents’ costs.

Cases cited

The following cases are cited in the judgment:

Eliakim Laki and 167 Others v Maurice Alaluku and Others (2002) N2001

Gabriel Apio Irafawe v Yauwe Riyong (1996) N1915

Kiee Toap v The State and Others (2004) N2766

Kumagai Gumi Co Ltd v National Provident Fund Board of Trustees (2006) SC837

New Britain Palm Oil Limited and Others v Vitus Sukuramu (2008) SC946

PNG Forest Products v The State [1992] PNGLR 85

Simon Mali v The State (2002) SC690

South Pacific Post v Nwokolo [1984] PNGLR 38

Theresa’s Pty Ltd and PNGBC v Rio Vista Pty Ltd [1998] PNGLR 283

APPEAL

This was an appeal against a decision of the National Court to entirely dismiss proceedings commenced in the National Court.

Counsel

C S N Narokobi, for the appellants

I Molloy, for the 1st, 2nd, 5th and 6th respondents

R Lindsay, for the 3rd respondent

D Wood, for the 4th and 7th respondents

13 March, 2009

1. BY THE COURT: The appellants are customary landowners in the Ok Tedi River area of Western Province. They commenced proceedings in the National Court, seeking declarations, damages and other orders against the respondents – the owners and operators of the Ok Tedi copper mine, and associated parties – due to alleged pollution of the river and surrounding ecosystems. They are appealing against a decision of Justice Davani to entirely dismiss those proceedings before trial.

2. Her Honour gave a number of reasons for upholding motions by the respondents (then the defendants) for dismissing the proceedings, including:

· the appellants (then the plaintiffs) used an originating summons, when the proper mode of commencement was a writ of summons;

· the plaintiffs were not properly identified and failed to disclose their authority to represent other people (said to number about 13,000 individuals);

· the originating summons failed to disclose a reasonable cause of action;

· the proceedings were frivolous, vexatious and an abuse of process.

3. The appellants rely on 12 grounds of appeal to argue that the decision to dismiss the proceedings should be quashed and the matter remitted to the National Court for trial.

GROUND 1: NOT CONSIDERING AN APPLICATION BY THE APPELLANTS FOR DIRECTIONS, WHICH SHOULD HAVE BEEN HEARD BEFORE THE MOTIONS FOR DISMISSAL WERE HEARD

4. The appellants argue that they filed an application for directions regarding the conduct of the proceedings before the respondents filed their motions for dismissal of the proceedings. Their application should have been heard first. If that were done, the proceedings would not have been dismissed.

5. It is correct that application for directions, filed on 22 May 2007, pre-dated the filing of the respondents’ motions. However, there is no rule of law or procedure that motions or applications have to be dealt with on a first-come-first-served basis. The primary Judge noted that the appellants’ motions were raising fundamental, preliminary issues about whether the proceedings were properly before the court. The appellants’ applications sought a variety of orders, none of which raised the sort of threshold issues the respondents were raising through their motions for dismissal.

6. Her Honour did not err by deciding to hear the respondents’ motions first.

Ground No 1 is dismissed.

GROUND 2: NOT RULING ON AN OBJECTION BY THE APPELLANTS TO AN AFFIDAVIT, WHICH WAS RELIED ON TO SUPPORT THE RESPONDENTS’ MOTIONS FOR DISMISSAL

7. The appellants argue that her Honour did not rule on an objection to an affidavit by Robin Moaina, General Manager, Corporate Relations, Ok Tedi Mining Ltd (OTML). He deposed amongst other things that the area in which the appellants live or have traditional lands are unaffected by waste or discharge from the Ok Tedi mine. The appellants objected on the grounds that there was no evidence that Mr Moaina was authorised to speak on behalf of OTML and that his evidence was irrelevant as customary land ownership was not in issue in the proceedings. The appellants say that the respondents relied on Mr Moaina’s affidavit when arguing their motions, so it was an error for her Honour to uphold the motions while their objection to the affidavit was pending.

8. We agree that her Honour did not rule on the objection. However, in the circumstances this did not amount to an error of law as the depositions in Mr Moaina’s affidavit were largely irrelevant to the issues to be determined by the respondents’ motions for dismissal of the proceedings.

Ground No 2 is dismissed.

GROUND 3: RULING THAT THERE WAS NO REASONABLE CAUSE OF ACTION AND THAT THE PROCEEDINGS WERE FRIVOLOUS, VEXATIOUS AND AN ABUSE OF PROCESS

9. The appellants argue that her Honour erred in ruling under Order 12, Rule 40(1) of the National Court Rules that the amended originating summons filed on 29 March 2007 (which we refer to in this judgment as ‘the originating summons’) failed to disclose a reasonable cause of action and that the proceedings were frivolous, vexatious and an abuse of process.

10. Order 12, Rule 40(1) states:

Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) no reasonable cause of action is disclosed; or

(b) the proceedings are frivolous or vexatious; or

(c) the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

11. The appellants argue that her Honour erred, in particular, by:

· failing to properly consider that the claims for relief in the originating summons provided relevant facts giving rise to valid causes of action;

· failing to properly exercise the discretion to dismiss the proceedings as there has to be clear evidence that there was no reasonable cause of action etc and the respondents failed to provide such evidence;

· not being satisfied of all three grounds in Order 12, Rule 40(1);

· failing to examine each of the three grounds in Order 12, Rule 40(1).

Failure to properly consider claims for relief?

12. Mr Narokobi referred to paragraph 1...