Louis Medaing and 1083 others (Appellants/Cross Respondents) v Ramu Nico Management (MCC) Limited (First Respondent/Cross Appellant) and The Independent State of Papua New Guinea (Second Respondent/Cross Appellant) and Dr Wari Iamo in his capacity as the Director of the Environment (Third Respondent/Cross Appellant) (2011) SC1144

• Jurisdiction: Papua New Guinea
• Judge: Davani, Hartshorn and Sawong JJ
• Court: Supreme Court
• Citation: (2011) SC1144
• Docket Number: SCA 84 OF 2011
• Year: 2011
• Judgement Number: SC1144

Full Title: SCA 84 OF 2011; Louis Medaing and 1083 others (Appellants/Cross Respondents) v Ramu Nico Management (MCC) Limited (First Respondent/Cross Appellant) and The Independent State of Papua New Guinea (Second Respondent/Cross Appellant) and Dr Wari Iamo in his capacity as the Director of the Environment (Third Respondent/Cross Appellant) (2011) SC1144

Supreme Court: Davani, Hartshorn and Sawong JJ

Judgment Delivered: 22 Decemberr 2011

SC1144

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 84 OF 2011

BETWEEN:

LOUIS MEDAING and 1083 others

Appellants/Cross Respondents

AND:

RAMU NICO MANAGEMENT (MCC) LIMITED

First Respondent/Cross Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent/Cross Appellant

AND:

DR WARI IAMO in his capacity as the Director of the Environment

Third Respondent/Cross Appellant

Waigani: Davani, Hartshorn and Sawong JJ.

2011: 4th & 5th October

22nd December

APPEAL AND CROSS APPEAL – CIVIL –CONSTITUTION s155(4) —orders contrary to existing law — CONSTITUTION s158 — trial judge not indicating proposal to make declaratory orders – National Court Rules O12 r1 – declaratory orders made not sought by parties – PRIVATE NUISANCE – essential elements –PUBLIC NUISANCE – essential elements – CONSTITUTION – National Goals and Directive Principles, non-justiciability – CONSTITUTION s25.

Facts

The First Cross Appellant owns and operates a nickel mine in Madang Province and has constructed a pipeline to dispose of tailings from the mine by deep sea tailings pipeline discharge (DSTP). The Appellant appeals against the refusal of the trial judge to grant a permanent injunction against the operation of the DSTP. The cross appellants appealed against the declaratory orders given by the trial judge that the cross respondents had established causes of action in private nuisance and public nuisance in respect of the operation of the DSTP, and that the DSTP’s operation will be contrary to National Goal No. 4 of the Constitution.

Held (Davani J dissenting)

1. Constitution s155(4) is not to be utilized to render a result that is inconsistent with an existing law; Hartshorn and Sawong JJ at [152],

2. By making declaratory orders that were not sought in the pleading of the cross respondents, that were not applied for during the trial and in respect of which no notice was given to the parties that it was contemplated that such orders were to be made, the trial judge fell into error, Hartshorn and Sawong JJ at [154];

2. An essential element of the cause of action of private nuisance is that there has been interference with the occupiers interest in the beneficial use of his land and that for the cause of action of public nuisance an essential element is interference with a public or common right. Further, in respect of public nuisance, the claimant must have incurred some particular or special loss over and above the ordinary inconvenience or annoyance suffered by the public at large; Hartshorn and Sawong JJ at [162];

3. The extent provided in Constitution s. 25(3) for the National Goals and Directive Principles to be heard or determined is in relation to whether a law can be reasonably enforced to give effect to or not derogate from the National Goals and Directive Principles. It is not provided in s.25(3) that the National Court can give an opinion or make a declaration as to whether a law or power conferred by a law is contrary to a National Goal; Hartshorn and Sawong JJ at [166];

4. For a court to interfere in a discretionary judgment of the National Court, it must be shown that the trial judge exercised his discretion upon a wrong principle, or allowed extraneous or irrelevant matters to guide or affect him, or has mistaken the facts or failed to take into account some relevant consideration, or that the decision is plainly unjust; Hartshorn and Sawong JJ at [173];

5. Appeal dismissed and cross appeal allowed.

Cases Cited:

Papua New Guinea Cases

B Fortunaso Ltd v. Bank of South Pacific Ltd [1992] PNGLR 275

Bean v. Bean [1980] PNGLR 307

Dent v. Kavali [1981] PNGLR 488

Government of Papua New Guinea v. Barker [1977] PNGLR 386

Lewis v.The State [1980] PNGLR 219

Pastor Johnson Pyawa v. CR Andake Nunwa (2010) N4143

Peter Makeng v. Timbers (PNG) Ltd (2008) N3317

PNGBC v. Jeff Tole (2002) SC694

Ramu Nico MCC PNG Ltd v Tarsie (2010) SC1075

Reference by Simbu Provincial Executives [1987] PNGLR 151

Rundle v. Motor Vehicles Insurance (PNG) Trust [1988-89] PNGLR 20

Tigam Malewo & anor v. Keith Faulkner & ors [2009] PGSC3, SC960

Overseas Cases

Barr & Ors v. Biffa Waste Services Ltd (No. 3) [2011] EWHC 1003

Ibeneweka v. Egbuna [1964] 1 WLR 219

Jan De Nul (UK) Ltd v. N. V. Royale Belge [2000] EWHC 71

Lister v. Hong [2006] NSWSC 1135

Pride of Derby and Derbyshire Angling Association Ltd v. British Celanese Ltd [1953] ch.149

Samal Holdings Pty Ltd v. Vhorns [1971] 1 NSWLR 192

Sedleigh-Denfield v. Callaghan [1940] AC 880

Legislation

Constitution

Customs Tarrif Act 1990

Environment (Permit Transitional) Regulation 2010

Environment Act 2000

Excise Tarrif Act, Chapter 107

Goods and Services Tax 2003

Other References

Clerk & Lindsell on Torts 11th Ed, Sweet & Maxwell, 1954,

Equitable Remedies, Injunctions and Specific Performance, Seventh Edition (1980), Spry

Halsburys Laws of England 4th Edition Volume 34 Butterworths 1997

Remedies of English Law, F H Lawson, Butterworths, 2nd Ed.

The Law of Nuisance, Murphy

The Laws of Torts John G Flemming Law Book Company 1977

Torts, The Laws of Australia, 2nd Ed, Thomson Law Book Co, 2007

Counsel:

Ms. T. G. Twivey and Ms. G. Topa, for the Appellants/Cross Respondents

Messrs C. Scerri Q.C., I. R. Molloy and G. Gileng, for the First Respondent/Cross Appellant

Mr. T. Tanuvasa, for the Second and Third Respondents/Cross Appellants

22nd December, 2011

1. DAVANI J (Dissenting): This is an appeal arising from decision of 26th July, 2011 in proceedings WS 1192 of 2010 filed in the National Court Madang, decision, delivered after a very lengthy trial.

2. The appellants appeal the part of the National Court’s decision that refused to grant a permanent injunction to restrain the Ramu Nico Management (MCC) Limited (‘Ramu Nico’) from allowing discharges into the sea through a deep sea tailings placement system (‘DSTP’).

3. All respondents oppose the appeal and also cross-appeal the Trial Judge’s findings in relation to Declarations he ordered, that the appellants had established causes of action in private and public nuisance and that the operation of the DSTP is contrary to National Goal No. 4 of the Constitution.

4. All respondents also cross-appeal on questions of facts.

Orders sought in appeals

5. The Notice of Appeal filed by Twivey Lawyers on 27th July, 2011 contains 20 grounds which seek the following orders;

- that the appeal be allowed;

- that the costs order was made that the parties bear their own costs;

- that the respondents shall not allow mine tailings or waste to be discharged into the sea through the DSTP or at all;

- that the respondents to pay the appellants’ costs of and incidental to the appeal, including that of the National Court;

- any other orders.

6. The Notice of Cross-Appeal filed on 5th September, 2011 by Posman Kua Aisi Lawyers contains 18 grounds and which seek the following orders;

- An order quashing the Declaratory Order made in the National Court that the cross-respondents have established a cause of action in private nuisance in respect of the operation of the DSTP;

- An order quashing the Declaratory Order made in the National Court that the cross-respondents have established a cause of action in public nuisance in respect of the operation of the DSTP;

- An order quashing the Declaratory Order made in the National Court that the operation of the DSTP will be contrary to National Goal No. 4 (National Resources and Environment) of the Constitution;

- The cross-respondents to pay the cross-appellants’ costs of the appeal and cross-appeal in the National Court;

- Any other orders the Court considers appropriate.

7. In this appeal, the cross-appellants include the Independent State of Papua New Guinea and Dr Wari Iamo in his capacity as the Director of Environment.

Grounds of Appeal

8. Both the Notice of Appeal filed by the appellants and the Amended Notice of Cross-Appeal filed by the cross-appellants outline several grounds which I summarise below.

(i) The Appeal

In summary, the appellant’s grounds of appeal, are that the Trial Judge erred;

(i) That because he had already found there to be causes of action in private and public nuisance, that the plaintiffs are entitled to an injunction;

(ii) When he refused to order a permanent injunction on the ground of unreasonable delay;

(iii) When he found that there would be no objection to the DSTP when there was clear community opposition to the project;

(iv) When he held that the operation of the DSTP was not unlawful even when there was already a finding in...