Eddie Tarsie for himself and in his capacity as Ward 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) N4005

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 11 May 2010
• Citation: (2010) N4005
• Docket Number: WS NO 202 OF 2010
• Year: 2010

Full Title: WS NO 202 OF 2010; Eddie Tarsie for himself and in his capacity as Ward 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) N4005

National Court: Cannings J

Judgment Delivered: 11 May 2010

PRACTICE AND PROCEDURE—whether the court should make orders for decision of certain questions separately from other questions, before trial—National Court Rules, O10, r21 (order for decision).

The first defendant, supported by other defendants, applied under O10, r21 of the National Court Rules for orders that there be a decision by the court on two questions arising in the proceedings, before the trial.

Held:

(1) Examples of circumstances in which it would be appropriate to order that there be a decision on questions before a trial are where there is a preliminary question of fact or law that is critical to the disposition of the proceedings, so that if decided one way, it will necessarily dispose of the proceedings; where resolution of separate questions may result in early resolution of the proceedings or by narrowing the disputed issues, avoid additional expenses or delay; where issues are clearly separable; or where a liability issue can be determined ahead of the final assessment of damages (MAPS Tuna Ltd v Manus Provincial Government (2007) SC857).

(2) The two proposed questions are not preliminary questions that are critical to disposition of the proceedings. Nor are they likely to result in early resolution of the proceedings. The questions which the defendants propose for prior determination are too interwoven with the facts to make it efficacious to have them determined separately prior to the trial. The application was accordingly refused.

Cases cited

The following cases are cited in the judgment:

Papua New Guinea Cases

MAPS Tuna Ltd v Manus Provincial Government (2007) SC857; New Britain Oil Palm Ltd v Vitus Sukuramu (2008) SC946; Eddie Tarsie v Ramu Nico Management (MCC) Ltd (2010) N3960; Eddie Tarsie v Ramu Nico Management (MCC) Ltd (2010) N3986; Eddie Tarsie v Ramu Nico Management (MCC) Ltd (2010) N3987; Timothy Lim Kok Chuan v Simon Goh Say Beng (2004) N2753; Vitus Sukuramu v NBPOL (2007) N3124

Overseas Cases

Allen v Gulf Oil Refining Ltd [1981] AC 1000; Saki v Ross Mining (Solomon Islands Ltd) [1999] SHBC 61

Counsel

11 May, 2010

1. CANNINGS J: The first defendant, Ramu Nico Management (MCC) Ltd (“MCC”), has applied for orders that there be a decision by the court on two questions arising in the proceedings, before the trial. Their application is supported by all other defendants but opposed by the plaintiffs. This is a ruling on the application.

ORDER 10, RULE 21

2. The application is made under O10, r21 (order for decision) of the National Court Rules, which states:

The Court may make orders for—

(a) the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings; and

(b) the statement of a case and the question for decision.

THE TWO QUESTIONS

3. The defendants want the court to decide:

1 Whether an activity that was permitted by an approval, permit or licence under the Environmental Planning Act Chapter No 370 (the repealed Act) that:

(a) had not commenced at the time the Environment Act 2000 came into force on 1 January 2004; and

(b) was an activity that would constitute an offence under the...