James Geama, Koim Kopun, Meti Yongasep, Dickson Kiteng, Isaac Kwetok, Steven Toap, Anthony Tipiso, for themselves and on behalf of Part “A” Employees Beneficiaries of the OTML Shares in Success Scheme v OTML Shares In Success Limited and Ok Tedi Mining Limited (2010) N4269

• Jurisdiction: Papua New Guinea
• Court: National Court
• Date: 14 April 2011
• Citation: (2011) N4269
• Docket Number: OS 376 OF 2010
• Year: 2011

Full Title: OS 376 OF 2010; James Geama, Koim Kopun, Meti Yongasep, Dickson Kiteng, Isaac Kwetok, Steven Toap, Anthony Tipiso, for themselves and on behalf of Part “A” Employees Beneficiaries of the OTML Shares in Success Scheme v OTML Shares In Success Limited and Ok Tedi Mining Limited (2010) N4269

National Court: Hartshorn J.

Judgment Delivered: 14 April 2011

Deed of Settlement establishing scheme for the benefit of employees of OTML—whether scheme rules contrary to the purpose of the Deed—whether scheme rules contrary to law

Facts:

The OTML Shares in Success Scheme was established to provide benefits to employees of Ok Tedi Mining Ltd. Under the Scheme 50% of the benefit was to be distributed to management level employees and 50% to award employees.

The plaintiffs, who are award employees, have commenced this proceeding against the first defendant, the trustee under the Deed of Settlement that established the Scheme, and Ok Tedi Mining Ltd. They seek declaratory and other relief that amongst others, certain provisions of the Deed and the Scheme Rules are discriminatory and illegal, are unfair, unjust and an illegal acquisition of their right to property, and are harsh and oppressive and are not warranted by or are disproportionate to the requirements of the Deed. The defendants oppose the relief sought.

Held:

1. The plaintiffs’ submission to the effect that paragraph “A” of the recitals of the Deed takes precedence to other clauses in the Deed where there is a conflict, is based on an incorrect premise and is rejected.

2. The plaintiffs’ submissions that clause 4. 1 (b) Scheme Rules is manifestly unfair under the Fairness of Transactions Act,

Transactions with Natives Act 1958 and Employment Act are rejected.

3. The plaintiffs’ submissions that s4.1 (b) Scheme Rules is contrary to s41 Constitution as it is harsh or oppressive and is not warranted by or is disproportionate as between the employees is rejected.

4. The plaintiffs’ submission that s4.1 (b) Scheme Rules is contrary to s55 Constitution and is discriminatory is rejected.

5. The plaintiffs submission that s4.1 (b) Scheme Rules is contrary to s53 Constitution as it is unfair and unjust and an illegal acquisition of property is rejected.

Cases cited:

Papua New Guinea Cases

SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314; Tarere v ANZ Bank [1988] PNGLR 201; Max Umbu v Steamships Ltd (2004) N2738

Overseas Cases

Bailey v. Lloyd (1829) 5 Russ 330; Dawes v. Tredwell (1881) 18 Ch D 354; Ex Parte Dawes (1886) 17 QBD 275; Holliday v. Overton (1852) 14 Beau 467; Orr v. Mitchell [1893] AC 238; Leggott v. Barrett (1880) 15 Ch D 306; The Commissioner of Inland Revenue v. Raphael [1935] AC 96

4th April, 2011

1. HARTSHORN J: The OTML Shares in Success Scheme (SIS Scheme) was established to provide benefits to employees of Ok Tedi Mining Ltd (OTML). Under the SIS Scheme 50% of the benefit of the scheme was to be distributed to management level employees (Part B employees) and 50% was to be distributed to award employees (Part A employees).

2. The plaintiffs are Part A employees. They have commenced this proceeding against the first defendant, the trustee under the Deed of Settlement (Deed) that established the SIS Scheme, and OTML. They seek declaratory and other relief that amongst others, certain provisions of the Deed and the Scheme Rules are discriminatory and illegal, are unfair, unjust and an illegal acquisition of their right to property, and are harsh and oppressive and are not warranted by or are disproportionate to the requirements of the Deed. The defendants oppose the relief sought.

Clause 4.1 (b) Scheme Rules

3. The plaintiffs submit that clause 4.1 (b) Scheme Rules is not valid as it is contrary to the purpose of the Deed, is contrary to law as it is...