Placer Dome (PNG) Ltd as Manager of the Porgera Joint Venture v Joshua Siapu Yako and members of the Wapini Sub-Clan (2011) N4961

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 03 May 2011
• Court: National Court
• Citation: (2011) N4961
• Docket Number: OS No.103 OF 2006
• Year: 2011
• Judgement Number: N4961

Full Title: OS No.103 OF 2006; Placer Dome (PNG) Ltd as Manager of the Porgera Joint Venture v Joshua Siapu Yako and members of the Wapini Sub-Clan (2011) N4961

National Court: David, J

Judgment Delivered: 3 May 2011

N4961

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS No.103 OF 2006

BETWEEN:

PLACER DOME (PNG) LTD as Manager of the PORGERA JOINT VENTURE

Plaintiff

AND:

JOSHUA SIAPU YAKO and members of the WAPINI SUB-CLAN

Defendants

Mt. Hagen: David, J

2011: 23 March & 3 May

MINING LAW – Porgera Special Mining Lease No.1– declarations sought that; plaintiff entitled to exclusive occupancy for mining and mining purposes of land in Special Mining Lease area under the provisions of Mining Act 1992; plaintiff entitled to carry on such operations and undertake such works as may be necessary or expedient for purposes of mining in Special Mining Lease area; Kulapi at Porgera was within the Special Mining Lease area – permanent injunctions sought to restrain defendants by themselves, their agents or otherwise from preventing or attempting to prevent or otherwise interfering with the plaintiff, its servants and agents from carrying out operations and undertaking works within the Special Mining Lease area and from intimidating or assaulting plaintiff’s servants or agents – reliefs sought granted.

Cases Cited:

PNG cases

Dent v Thomas Kavali (1981) PNGLR 488

National Capital District Interim Commission v Bogibada Holdings Pty Ltd and Continental Trading Pty Ltd (1987) PNGLR 135

Ok Tedi Mining Ltd v Niugini Insurance Corporation & Others (No.2) [1988-89] PNGLR 425

Donigi v The State [1991] PNGLR 376

Ramu Nico Management Limited (MCC) v Joe Koroma & Ors (2009) SC1046

Overseas cases

Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438

Hanson v Radcliffe Urban District Council Court of Appeal [1922] 2 CA 490

Other References cited

Michael A. Ntumy, Administrative Law of Papua New Guinea, Second Edition, CBS Publishers & Distributors

Counsel:

Mr. Robert Bradshaw, for the Plaintiff

Mr. Danny Gonol, for the Defendants

JUDGMENT

3 May, 2011

1. DAVID, J: INTRODUCTION: By originating summons filed on 16 February 2006, the Plaintiff claims a number of declarations and permanent injunctions. I set out the reliefs sought in full below:

“1. A declaration that as holder of the Porgera Special Mining Lease No.1 (the SML”), the Plaintiff is entitled under the provisions of the Mining Act 1992 to exclusive occupancy for mining and mining purposes of the land in respect of which the SML was granted.

2. A declaration that as holder of the SML, the Plaintiff is entitled under the provisions of the Mining Act 1992 to carry on such operations and undertake such works as may be necessary or expedient for the purposes of mining on the land in respect of which the SML was granted.

3. A declaration that the area of land described as Kulapi at Porgera, Enga Province, Papua New Guinea is within and part of the land in respect of which the SML was granted.

4. A permanent injunction restraining the Defendants by themselves or by their agents or otherwise from preventing or attempting to prevent or otherwise interfering with the Plaintiff and its servants and agents from carrying out operations and undertaking works on land, the subject of the SML.

5. A permanent injunction restraining the Defendants by themselves or by their agents or otherwise from intimidating or assaulting or otherwise interfering with servants or agents of the Plaintiff carrying operations and undertaking works on land, the subject of the SML.

6. Costs.

7. Such further or other orders as this Court deems appropriate.”

NOTICE OF INTENTION TO DEFEND

2. The Defendants filed their notice of intention to defend these proceedings on 24 February 2006.

EVIDENCE

3. The Plaintiff relies on the following documents:

1. Affidavit of Anthony Smare Kairar sworn and filed on 16 February 2006 (Exhibit “A”);

2. Affidavit of Anthony Smare Kairar sworn and filed on 8 March 2006 (Exhibit “B”);

3. Affidavit of Anthony Smare Kairar sworn on 20 March 2006 and filed on 5 September 2008 (Exhibit “C”);

4. Affidavit of Christopher Trainor sworn and filed on 8 March 2006 (Exhibit “D”);

4. The Defendants rely on the following documents:

1. Affidavit of Joshua Siapu Yako sworn on 5 October 2009 and filed on 12 October 2009 (Exhibit “1”);

2. Affidavit of Joshua Siapu Yako sworn on 3 March 2006 and filed on 6 March 2006 (Exhibit “2”);

3. Affidavit of Dee Yore sworn on 5 October 2009 and filed on 12 October 2009 (Exhibit “3”).

5. Exhibits “A” to “D” and “1” were admitted into evidence by consent.

6. Mr. Bradshaw said he had some objections in respect of parts of Exhibit “2”, but later said he would address them in his final submissions. The affidavit was admitted into evidence all at the same.

7. As to Exhibit “3”, there was an objection on the ground that it generally contained hearsay evidence hence inadmissible. No specific parts of the affidavit were referred to as offending the rule against hearsay evidence. Mr. Gonol on the other hand argued that the deponent was engaged by the Defendants as their consultant as they were illiterate and needed someone to assist them in relation to matters affecting them including a number of court cases they had with the Plaintiff. What he deposes to in the affidavit are matters that the deponent has come to know by reason of his personal involvement and experience with the Defendants in the subject matter and in any event the content was similar to the affidavit evidence of Mr. Yako he said. I accepted Mr. Gonol’s submission and allowed the document to be admitted into evidence basically on the ground that it addressed matters in dispute which were also addressed in the affidavit evidence of Mr. Yako and its admission was made subject to what weight, if any, should be given to it. Matters that are hearsay in nature have been disregarded.

8. The deponents of the various affidavits were not subjected to cross-examination.

OBJECTION TO LEGAL REPRESENTATION

9. Before the trial got underway, there was an objection to Mr. Gonol appearing for the Defendants at the trial on the ground that Mr. Gonol could not be both counsel and witness for the Defendants at the same time and his appearance at the trial was in direct contravention of the serious observation made by Davani, J on 30 March 2006 when ruling on two motions filed by the parties. One was filed by the Plaintiff seeking interim restraining orders to restrain the Defendants from preventing or attempting to prevent or otherwise interfering with the Plaintiff and its servants and agents from carrying out operations and undertaking works on land, the subject of the SML and the other filed by the Defendants seeking to transfer these proceedings, which were initially filed in Waigani, to Mt. Hagen. Mr. Gonol’s affidavits, one sworn on 3 March 2006 and filed on 6 March 2006 and the other sworn on 14 March 2006 and filed on 16 March 2006 were used by the Defendants during the interlocutory proceedings. Mr. Bradshaw informed the Court that he had written to Mr. Gonol on couple of occasions after the ruling and before the trial raising the issue, but Mr. Gonol had chosen to ignore Her Honour’s observation. He said that since Mr. Gonol’s affidavits were to be used at the trial, he should withdraw his services, but he had no objection to a lawyer from Mr. Gonol’s firm appearing for the Defendants.

10. The pertinent part of Davani, J’s observation that has given rise to the objection is contained at pages 11 to 12 of the written ruling where Her Honour said:

“In this case, Mr. Gonol, a lawyer, is giving evidence for and on behalf of his clients. He is also becoming involved as a litigant and may be called upon to be cross-examined. Mr. Gonol should immediately refrain from giving evidence for and on behalf of his clients because the court will not rely on that material. It is very unethical and compromises the lawyer’s position to a large extent. In fact Mr. Gonol should seriously consider withdrawing his services as the defendants’ lawyer. I say this relying on s.15 (15) of the Lawyers Professional Conduct Rules which states a lawyer shall withdraw from representing a client if it becomes apparent that he is likely to become a witness on a material question of fact and that he can withdraw without jeopardizing his clients interests.”

11. Mr. Gonol on the other hand argued that there was no reason for him not to continue representing his clients at the trial when his affidavits would no longer be relied on by the Defendants at the trial which was in compliance with Her Honour’s observation and in accordance with the principle that a lawyer cannot be both counsel and witness. He said if the Court were to uphold the objection, the trial would have to be vacated so as to enable him to brief another lawyer from his firm to act for the Defendants.

12. I accepted Mr. Gonol’s submission and ruled that the trial proceed with Mr. Gonol to continue to appear for the Defendants.

BACKGROUND AND UNCONTESTED FACTS

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