N7412

PAPUA NEW GUINEA 
[IN THE NATIONAL COURT OF JUSTICE]

  WS NO 14 of 2014

BETWEEN: 
PASTOR STEVEN BAGARI & six others whose 
names appear in the schedule ‘A’ to this Writ
First Plaintiffs

AND:
GEDI DABU – President of Kiwai Local Level Government
Second Plaintiff

AND:
BENZES KUDI ALUSI – President of Oriomu Bituri Local Level Government
Third Plaintiff

AND:
HON. JAMES MARAPE, Minister for Finance
First Defendant

AND:
SCHADRACH HIMATA, Secretary for Mining
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
OK TEDI MINING LIMITED
Fourth Defendant

AND:
PNG SUSTAINABLE DEVELOPMENT LIMITED
Fifth Defendant

AND:
OK TEDI DEVELOPMENT FOUNDATION LIMITED
Sixth Defendant

AND:
BANK SOUTH PACIFIC 
Seventh Defendant

AND:
 ANZ BANK LIMITED
Eighth Defendant

          Waigani: Hartshorn J.,
                     2017: 14th September,
        2018: 1st May

Whether substantive orders sought in notices of motion should be granted 
         
Cases cited: 

John Momis v. Attorney General (2000) PNGLR 109 (N1951)
NCDC v. Yama Security Services Pty Ltd (2003) SC707
William Duma v. Eric Meier (2007) SC898
PAC–LNG International Ltd v. SPI (208) Ltd (2014) N5681
Rei Logona v. Meissy Roaveneo (2016) SC1498

Counsel:

Mr. W. Mininga, for the Plaintiffs
Mr. J. Sioni, for the First, Second and Third Defendants
Mr. A. Mana, for the Fourth Defendant
Ms. J. Nigs, for the Fifth Defendant
Mr. K. Manua, for the Seventh Defendant

1st May, 2018

1. HARTSHORN J: This is a decision on two contested applications that seek amongst others, the withdrawal of the proceeding and various substantive orders. The plaintiffs, pleaded as being amongst others, individual persons and representatives of villages within the South Fly area of Western Province, and two Presidents of Local Level Governments, together with the first, second and third defendants, the Minister for Finance, Secretary for Mining and the State (applicants), make the applications, and the fourth defendant, Ok Tedi Mining Limited (OTML) opposes them. The applicants rely upon Order 12 Rule 1 National Court Rules.

Background

2. The plaintiffs’ claim substantively, declaratory relief to the effect amongst others, that certain Community Mine Continuation Agreements (CMCA’s) are unenforceable, null and void and are of no effect, that the continuous dumping of mine waste and tailings into the Ok Tedi and Fly River systems is in breach of the Mining and Environment Acts and is unlawful, that certain trust deeds and trust bank accounts are null and void and that certain trust funds are payable to the plaintiffs and others. In addition, orders are sought that certain compensation funds are paid to the plaintiffs and that a permanent injunction issue against OTML from operating the Ok Tedi mine until a proper waste dump or tailings dam is constructed and built to contain its waste and tailings.

Status of proceeding

3. This court granted ex parte interim orders on 24th January 2014. These orders were varied on 13th February 2014. On 28th February 2014 this court stayed the interim orders of 24th January 2014 and amended paragraph 6(b) of those orders. The stay order was unsuccessfully appealed to the Supreme Court by the plaintiffs. On 11th December 2016, the orders of this court made on 24th January 2014 as varied, were dissolved.

These applications

4. The applicants seek the withdrawal of the proceeding and certain substantive orders as they submit amongst others that:

a)	Certain Ok Tedi Mining agreements provide amongst others, that an additional 10% share acquired by the State in OTML would be held 	with the intention that the benefit of those shares would accrue to the people of Western Province;

b)	The then Minister for Mining and Petroleum, as provided for in the certain agreements, made a non-justiciable determination on 16th April 2007 conferring rights upon CMCA Region Communities of Western Province (CMCARCWP), but the determination was not fully 	implemented;

c)	Ok Tedi Fly River Development Foundation Ltd was incorporated as a result of the Ministerial Determination, for the CMCARCWP;

d)	Funds, assets and dividends to which CMCARCWP is entitled should be transferred to Ok Tedi Fly River Development Foundation Ltd, and 	other funds should be applied for the benefit of Non CMCA Region People in Western Province;

e)	The substantive relief is the same as that sought in the statement of 	claim.	

5. OTML opposes the applications as amongst others:

a)	Almost all of the orders sought are substantive. Substantive orders should not be sought by way of a notice of motion. That substantive orders are being sought by way of notice of motion is an abuse of process;

b)	The substantive orders sought are not the substantive orders claimed 	in the statement of claim;

c)	The substantive orders sought are based upon causes of action that the plaintiffs may have had but which are now statute barred.

Consideration

6. It is conceded by counsel for the applicants that almost all of the proposed orders sought are substantive in nature. This court is requested however, to exercise its discretion and grant the orders as they are consented to by the principal parties to this proceeding.

7. OTML submits that the substantive orders should not be sought by way of a notice of motion. 

8. Order 4 Rule 49(9) National Court Rules is as follows:

“9. Motions for interlocutory matters only

Except as otherwise expressly provided in the National Court Rules, Motions shall
be for relief on interlocutory matters only and not for the substantive relief claimed
in the originating process.”

9. In Rei Logona v. Meissy Roaveneo (2016) SC1498, the Supreme Court stated at [59]:

“59.	It is now settled law that a Notice of Motion is for interlocutory reliefs (sic) only. Motions should not be utilized to obtain substantive reliefs (sic). This is made clear by the terms of Order 4 Rule 49 (9) of the National Court Rules and Gabriel Yer v. Peter Yama, (2009) SC 990.
……….
61.	In Gabriel Yer v. Peter Yama (2009) SC 990, the Court stated: 

“45. In the Supreme Court judgment of John Momis and Ors v. Attorney General, NEC and The State [2000] PNGLR 109, Kapi, DCJ, held that in a case where a Plaintiff has commenced proceedings by Originating Summons under Order 4, Rule 3 of the National Court Rules, it is an abuse of process of the Court for the Plaintiff to seek substantive reliefs (sic) by way of an interlocutory application in a Notice of Motion. The matter must proceed to trial for proper determination of the issues. That principle in John Momis’ case (supra) is now promulgated into that Motions Amendments Rules in rule 5(2) (f) and makes it mandatory that a “party shall not and the judge shall not make any order in terms of the substantive relief sought in the originating process.”

10. The Supreme Court then referred to my decision in PAC–LNG International Ltd v. SPI (208) Ltd (2014) N5681 in which I observed that Order 4 Rule 49 (9) National Court Rules mirrors the position taken by the Supreme Court in NCDC v. Yama Security Services Pty Ltd (2003) SC707 and William Duma v. Eric Meier (2007) SC898 which approved the National Court decision in John Momis v. Attorney General (2000) PNGLR 109, N1951.

11. Further, the Supreme Court in Duma v. Meier (supra) at [18] stated that as the appellant had been seeking substantive orders in an interlocutory application, this constituted an abuse of process.

12. In this instance, as almost all of the orders sought in the notices of motion of the applicants’ are for orders that are substantive in nature, and as the applicants are not relying on any other National Court Rules that, “… otherwise expressly …” provide, and Order 12 Rule 1 does not; Order 4 Rule 49(9) National Court Rules does not provide a discretion to this court to grant the substantive orders sought. Further, this court is bound by the Supreme Court decisions to which I have referred concerning this particular issue, including that making an application for substantive orders in a notice of motion is an abuse of process.

13. Consequently, the relief sought in the notices of motion of the applicants should be refused. Given this it is not necessary to consider the other submissions of counsel.

Orders

14. It is ordered that:

a)	All of the orders sought in the notice of motion of the plaintiffs’ filed 26th July 2017 and in the notice of motion of the first, second and third defendants filed 1st August 2017 are refused;

b)	The costs of the fourth defendant of and incidental to the two said notices of motion shall be paid by the plaintiffs and the first, second and third defendants;

c)	Time is abridged.

_____________________________________________________________
Young & Williams Lawyers:  Lawyers for the Plaintiffs                                      
Twivey Lawyers:  Lawyers for the First, Second and Third Defendants             
Allens Lawyers:  Lawyers for the Fourth Defendant                                           
Dentons Lawyers:  Lawyers for the Fifth Defendant                                           
Bank South Pacific Ltd: Lawyers for the Seventh Defendant