Greg Walker and Barrick (PNG) Ltd and Porgera Womens Association Inc v Total Cleaning Services Ltd (2020) SC1924

• Jurisdiction: Papua New Guinea
• Judge: Batari, David and Kariko, JJ
• Judgment Date: 28 February 2020
• Citation: (2020) SC1924
• Docket Number: SCA No 153 of 2014
• Court: Supreme Court
• Year: 2020
• Judgement Number: SC1924

Full Title: SCA No 153 of 2014; Greg Walker and Barrick (PNG) Ltd and Porgera Womens Association Inc v Total Cleaning Services Ltd (2020) SC1924

Supreme Court: Batari, David and Kariko, JJ

Judgment Delivered: 28 February 2020

SC1924

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 153 OF2014

GREG WALKER

First Appellant

BARRICK (PNG) LIMITED

Second Appellant

PORGERA WOMENS ASSOCIATION INC.

Third Appellant

V

TOTAL CLEANING SERVICES LIMITED

Respondent

Waigani: Batari, David and Kariko, JJ

2019: 28th October

2020: 28th February

PRACTICE AND PROCEDURE –interim mandatory injunction –applicable principles –not available when act to be restrained already occurred – notice of motion must be for interlocutory orders only – grant of relief not applied for nor addressed by parties - grant of injunction adversely affecting a non-party – breach of natural justice

Cases Cited:

Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853

Gogl Naru Resource Owners Association Inc v Jant Ltd (2011) N4472

Leytrac Pty Ltd v State [1982] PNGLR 148

Maginde v The State (2016) SC1521

Mataio v August (2014) SC1361

Mediang v Ramu Nico Management (MCC)Ltd (2011) SC 1144

NCDC v Central Provincial Government (2015) SC1429

NCDC v Yama Security Services Pty Ltd (2003) SC707

William Duma v. Eric Meier (2007) SC898

Yama Group of Companies Ltd v PNG Power Ltd (2005) N2831

PNG Deep Fishing Ltd v Luke Critten & Ors (2010) SC 1126

Legislation:

ADR Rules

National Court Act Ch.38

National Court Rules

Counsel:

Mr R Bradshaw, for the First and Second Appellants

Mr G Goiye, for the Third Appellant

Mr P Kak, for the Respondent

JUDGMENT

28th February, 2020

1. BY THE COURT: Pursuant to the grant of leave, two separate appeals were filed challenging interlocutory orders granted by the National Court at Waigani on 3rd December 2014. The first and second appellants filed the first appeal while the third appellant filed the other.

2. Both appeals were heard together.

Background

3. The relevant background facts giving rise to the National Court proceedings are not in dispute.

4. The second appellant (Barrick) is the operator of the Porgera Gold Mine (the Mine) in Enga Province, and as is the case with other operators of major investments in this country, spin-off benefits and businesses are offered to local landowners as first-priority. This is consistent with general government policy and under relevant agreements including the Mining Development Contract entered into between Barrick and the State.

5. The first appellant is the Executive General Manager of Barrick at the Mine.

6. The respondent (Total Cleaning) is a local landowner company.

7. Total Cleaning known previously under two different names commenced providing janitorial and cleaning services (the Services) at the Mine site in 1989.

8. On 31st July 2005, Barrick and Total Cleaning entered into a contract (the Contract) for Total Cleaning to provide the Services for a term of 3 years.

9. Upon the expiration of the term on 31st July 2008, Total Cleaning’s engagement continued on a month- to-month basis.

10. On 20th May 2013, Barrick invited tenders for the provision of the Services and Total Cleaning responded with a bid.

11. By letter dated 5th May 2014, Barrick advised the respondent that it had decided not to accept any of the bids submitted under the tender process and instead it would manage the Services “in-house”.

12. By letter dated 13th October 2014 to Total Cleaning, Barrick gave notice of termination of the Services provided by the respondent effective 28th November 2014. This was notwithstanding Barrick’s acknowledgement that Total Cleaning had performed the Services satisfactorily.

13. In the meantime, Total Cleaning lobbied local support for it to continue providing the Services. Letters of support were received from landowner groups including the Porgera Landowners Association, and some community leaders.

14. On 16th November 2014, Barrick and the third appellant (Porgera Women’s Association) entered into a Memorandum of Understanding for the Association to provide the Services.

15. The employment of Porgera Women’s Association prompted Total Cleaning to file proceedings WS No. 1472 of 2014– Total Cleaning & House Keeping Services Limited v Greg Walker and Barrick (Niugini) Limited on 26th November 2014.

16. In its Statement of Claim, Total Cleaning seeks a number of relief including:

· declaration that Barrick’s letter of termination of its engagement is unlawful and unenforceable; and

· permanent injunction against Barrick from terminating the engagement.

17. On filing its Writ, Total Cleaning also filed a notice of motion principally seeking:

· an interim injunction staying the execution of Barrick’s letter of termination; and

· an interim injunction against Barrick from interfering with Total Cleaning in its delivery of the Services.

18. Prior to the hearing of the applications, Total Cleaning ceased providing the Services on 28th November 2014, while Porgera Women’s Association commenced its engagement the next day.

19. The notice of motion was heard on 3rd December 2014 and determined in favour of Total Cleaning.

Appealed decision

20. In reaching his decision, the learned trial Judge firstly referred to the general government policy that local landowners shall be given priority in the award of spin-off businesses relating to major investment projects. His Honour viewed the termination of Total Cleaning’s engagement as contrary to the intent of that policy, and he noted that Barrick’s decision was against the strong support given by other landowners including the Porgera Landowners Association for Total Cleaning to continue providing the Services.

21. His Honour then mentioned Bougainville and the crisis that followed government’s failure to properly address landowners concerns in respect of the mine there, before he remarked:

“Terminating a landowner company successfully providing a service just because the company wants to make a change for what it calls an economic decision, spells the risk of all infrastructure going down, government resources being stretched to the limit.” (Our emphasis)

22. The trial Judge forecasted that the actions of Barrick would lead to civil unrest and lawlessness similar to what occurred in Bougainville, and considered that damage as a result of such unrest would be significantly greater than the damages that may be suffered by Barrick and the Porgera Womens’ Association if the injunction was not granted. He was therefore inclined to issue the injunction sought.

23. His Honour also considered the contract Barrick had with Total Cleaning as “… not just an ordinary contract; it ties in with government policy, it ties in with a greater agreement that it is a part of. So, in order for a change in a subsidiary agreement such as this, the main basis on which the subsidiary is dependent must be changed not unilaterally but by mutual agreement of the parties.” (Our emphasis)

24. This led his Honour to conclude that the Contract could only be changed after a review of the relevant heads of agreement concerning the operations of the Mine (the Mining Review), which review was then pending.

The appealed orders

25. The Minute of the orders filed by the respondent states:

1. The Plaintiff is granted injunction orders against the Defendants;

2. Unless the Defendant is able to cause the calling of a Mining Review within this month, the substantive matter shall go for mediation;

3. Pro-forma mediation orders can be obtained from the ADR Centre and completed before the return of this matter;

4. Matter returns on 19/12/14;

5. Time is abridged.

26. The full terms of the orders, confirmed by the transcript of proceedings, read:

1. Interim injunction granted to restrain the defendants from giving effect to its decision to terminate the plaintiff company in the provision of the services they were providing.

2. The defendants to take every step to ensure that the mining review takes place and addresses, amongst others, this particular matter before the end of the month.

3. If by or before 19th December, no meaningful step is taken to have the mining review conducted and completed before the end of the month, then parties shall return to court on the 19th for mediation orders to be issued for mediation to take place in the New Year 2015.

4. For the purpose of any mediation order, parties shall take hold of the pro-forma orders presently being used by the ADR services for parties to complete before returning to the court for its endorsement.

5. Abridgement of time to take place upon signing of the orders.

Grounds of Appeal

27. The grounds of appeal filed by the first and second appellants state:

(a) The Learned Judged erred in law and fact in making the order that the Plaintiff is granted injunction orders against the Defendants when the acts which the Respondent...