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
• Judge: Cannings J
• Judgment Date: 11 May 2010
• Court: National Court
• Citation: (2010) N4005
• Docket Number: WS NO 202 OF 2010
• Year: 2010
• Judgement Number: N4005

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

N4005

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 202 OF 2010

EDDIE TARSIE FOR HIMSELF AND IN HIS CAPACITY AS

WARD COUNCILLOR OF WARD 3,

SAIDOR LOCAL-LEVEL GOVERNMENT

First Plaintiff

FARINA SIGA, FOR HIMSELF AND IN HIS CAPACITY AS

WARD SECRETARY OF WARD 3,

SAIDOR LOCAL-LEVEL GOVERNMENT

Second Plaintiff

PETER SEL

Third Plaintiff

POMMERN INCORPORATED LAND GROUP NO 12591

Fourth Plaintiff

SAMA MELAMBO FOR HIMSELF AND AS CHAIRMAN OF

POMMERN INCORPORATED LAND GROUP NO 12591

Fifth Plaintiff

V

RAMU NICO MANAGEMENT (MCC) LIMITED

First Defendant

MINERAL RESOURCES AUTHORITY

Second Defendant

DR WARI IAMO IN HIS CAPACITY AS

DIRECTOR OF ENVIRONMENT

Third Defendant

DEPARTMENT OF ENVIRONMENT AND CONSERVATION

Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

Madang: Cannings J

2010: 7, 11 May

PRACTICE AND PROCEDURE – whether the court should make orders for decision of certain questions separately from other questions, before trial – National Court Rules, Order 10, Rule 21 (order for decision).

The first defendant, supported by other defendants, applied under Order 10, Rule 21 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

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

Tarsie v Ramu Nico (MCC) Ltd (2010) N3986

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

Timothy Lim Kok Chuan v Simon Goh Say Beng (2004) N2753

Vitus Sukuramu v New Britain Palm Oil Ltd (2007) N3124

Overseas Cases

Allen v Gulf Oil Refining Ltd [1981] AC 1000

Saki v Ross Mining (Solomon Islands Ltd) [1999] SHBC 61

Counsel

T Nonggorr, for the plaintiffs

C Scerri QC, I Molloy & G Gileng, for the first defendant

A Mana, for the second defendant

L Kandi, for the third, fourth & fifth defendants

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 Order 10, Rule 21 (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 Environment Act 2000,

is saved by the provisions of Section 136 of the Environment Act 2000?

2 Whether an activity to be commenced by the first defendant being the deposit of tailings into the Astrolabe and Basamuk Bays is lawful and does not constitute a public or private nuisance in circumstances where such activity is in compliance with the:

(a) Environment Act 2000; and/or

(b) approval, permit or licence given under a valid law?

GUIDELINES FROM PREVIOUS CASES

4. In MAPS Tuna Ltd v Manus Provincial Government (2007) SC857 the Supreme Court (Hinchliffe J, Gavara-Nanu J, Lenalia J) gave examples of when it would be appropriate to order that there be a decision on questions before a trial:

· 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.

· Where a liability issue can be determined ahead of the final assessment of damages.

5. The Supreme Court adopted the analysis of Order 10, Rule 21 undertaken by Gavara-Nanu J in Timothy Lim Kok Chuan v Simon Goh Say Beng (2004) N2753, where his Honour also gave examples of when it would not be appropriate to order that there be a decision on questions before a trial:

· Where the question proffered for separate determination involves the whole subject matter of the proceedings.

· Where the question involves alternative causes of action or defences.

· Where the question to be determined would require findings of fact on matters likely to be contentious on remaining issues in the proceedings.

· Where the question may involve the credibility of witnesses which is material to the remaining issues in the proceedings (and thus would require the question to be dealt with by another judge).

· Where the parties propose that the question be determined on the basis of limited agreed facts.

6. The above examples are not exhaustively prescriptive of the circumstances in which it would be appropriate, or inappropriate, to order that there be a decision on questions before a trial. They nevertheless provide useful guidelines. If the circumstances of a case seem to fit into one or more of the scenarios in the first list, the court should be inclined to make an order under Order 10, Rule 21. If the case seems to belong more in the second list, it will probably be inappropriate to make such an order.

SHOULD THE ORDERS BE MADE?

Defendants’ position

7. The defendants assert that the two questions they seek to pose are threshold questions of law that are critical to disposition of the proceedings, so that if decided one way, they will necessarily dispose of the proceedings. They propose, it appears, to argue both questions in the affirmative. As to question 1, it appears that they will argue that an activity permitted by a permit under the repealed Environmental Planning Act is saved by Section 136 of the Environment Act 2000, even if the activity had not commenced on 1 January 2004 and would constitute an offence under the Environment Act 2000. As to question 2, their argument apparently will be that if the deposit of tailings into Astrolabe and Basamuk Bays is in compliance with the Environment Act 2000 or an approval under a valid law, that activity will be lawful and will not constitute a public or private nuisance.

8. Mr Scerri, for MCC, submitted that resolution of these questions may well result in early resolution of the entire proceedings and avoid considerable additional expenses and delay. He submitted that the issues are clearly separable and that if the questions are decided in the manner they contend for, a trial on the facts will be unnecessary. He pointed out that the plaintiffs are, in addition to seeking a permanent injunction to prevent the defendants committing the alleged nuisances, seeking punitive damages, so this is a case in...