Borok v Ok Tedi Mining Ltd [2021] PGNC 6; N8715 (29 January 2021)

N8715

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS (COMM) NO. 1600 OF 2014

BETWEEN:
KEITH BOROK for and on behalf of himself and on behalf of 74 other members of Wangbin Clan, in the Star Mt. Local Level Government area of Western Province whose names and signatures appear on the Schedule hereto
Plaintiff

V

OK TEDI MINING LIMITED
Defendant

Waigani: Anis J
2020: 17^th November
2021: 29^th January

NOTICE OF MOTION – application to dismiss proceeding for disclosing no reasonable cause of action, frivolity and abuse of court process – Order 10 Rule 9A(15) and (16) , and Order 12 Rule 40(1)(a), (b) and (c) - National Court Rules -consequential orders – Order 12 Rule 1 – National Court Rules – consideration – exercise of discretion

Cases Cited:

Application by Cloudy Bay Sustainable Forestry Ltd v. Pako F & C Holding Ltd (2019) SC 1788
Keith Borok and 74 Ors v. OK Tedi Mining Ltd (2017) N7087
Masolyau Pyakali v. The State (2014) SC771

Counsel:

Mr B Nahupa, for the Plaintiff
Ms I K Guba, for the Defendant

RULING

29^th January, 2021

1. ANIS J: The defendant applied to dismiss the proceeding on 17 November 2020. The application was contested. I heard and reserved my ruling to a date to be advised.

2. Parties have been notified so I will rule on it now.

BACKGROUND

3. The plaintiffs claim to be traditional landowners of a portion of land where the OK Tedi copper mine is situated, in Western Province. The defendant is the legal entity that operates the mine. The plaintiffs’ claims are for damages based on trespass and negligence.

4. The relevant facts they rely on to support their claims are as follows. They allege that the defendant has been operating its dam illegally or without obtaining the necessary approvals or permits from those responsible, as required under the various legislations including the Mining Act 1992 (the Mining Act) and the Environment Act 2000 (the Environment Act), since 2002 and even before that, up to the present time. And they seek damages in trespass and negligence.

5. The defendant denies these claims. It says in defence that its actions or conducts did not constitute trespass or negligence as alleged but rather, were within the confines of the relevant agreements and legislations. These agreements and legislations, the defendant says, include the Mining Act, the Mining (OK Tedi Agreement) Act 1976, the OK Tedi Principal Agreement, and the relevant Supplementary Agreements that have been brought by the various OK Tedi Supplementary Acts over the years.

MOTION

6. The defendant’s notice of motion was filed on 16 October 2020 (NoM). The main relief sought is to summarily dismiss the proceeding, based on Order 10A Rule (25), Order 10 Rule 9A(15) and (16), and Order 12 Rule 40(1)(a), (b) and (c) of the National Court Rules (NCR). It also seeks a consequential relief that if the Court is minded to summarily dismiss the proceeding, that it should also order the plaintiffs not to commence any fresh or related proceedings without first obtaining leave of the Court to do so.

7. The application is contested.

PRELIMINARY MATTER

8. The plaintiffs raise a preliminary objection to the use of a supportive affidavit to the NoM, that is, the affidavit of Musje Werror filed on 16 October 2020. The plaintiff says the affidavit does not contain depositions of facts but only legal submissions. As such, they argue that it should be struck out as inadmissible evidence.

9. The defendant, on the other hand, submits that the affidavit is in order; that it deposes relevant facts and information to the issues that are at hand.

10. Let me begin with the practice and procedures for use of affidavit evidence in Court, and of relevant and for this purpose, what it should contain. The case law is settled with this. In Application by Cloudy Bay Sustainable Forestry Ltd v. Pako F & C Holding Ltd (2019) SC 1788, Justice Dingake summarizes the case law on the subject matter. His Honour stated, and I quote:

The law governing how affidavits must be framed and what they must certain, which the lawyers are bound to obey in their practice of law is fairly straight forward. It is trite learning that affidavits must set out facts and not arguments. They should not be argumentative, contain submissions or opinions. The evidence canvassed in the affidavits should be relevant to the issues in controversy between the parties that the court is seized of. (Kui Valley Business Group Incorporated v Hugh Mosley and Deloitte Touche Tohmatsu (2011) N4548; William Duma v Yehiura Hriehwazi and Pacific Star Limited Trading as The National (2004) N2526).

11. I note the submissions of the parties. I also have perused and noted the content of the affidavit in question. My view is this. I decline the claim by the plaintiffs. The first reason is this. The plaintiffs did not notify the defendant of their intentions to object to the use of the affidavit. This is in breach of s. 35(2) of the Evidence Act Chapter No.48. The section requires the plaintiffs to give notice of their intention to object to the use of the said affidavit 2 days prior to the hearing. There is nothing here that shows that they have complied with this requirement. I turn to my second reason. I find Mr Werror’s affidavit very relevant to the issues at hand. He gives sworn evidence of the background of the matter, which is quite long, which was why he had to depose at great lengths or details setting them out clearly for the benefit of the parties, but perhaps more importantly, for the benefit of the Court to follow, particularly given the various other 4 proceedings that had been commenced by the lead plaintiff together with those that he claims to also represent. The background information consists of facts that were within his knowledge and are facts that had occurred which cannot be disputed. Mr Werror also states, from his position, the relevant laws and legislations that he is aware of that are or may be relevant to the matter. He also explains his response to what is claimed by the plaintiffs in their pleadings. And he deposes facts which are based on his personal knowledge and on information that he receives or are at his custody based on the position that he holds as the managing director.

12. I also note that the plaintiffs make a general objection without showing or explaining with clarity or particularity. I refer to paragraph 3.0 of their written submission. In my view, to allege generally for example that paragraphs A to Z contains submissions, is insufficient. An objecting party should explain with clarity why he or she is raising an objection to a specific paragraph(s) in the affidavit concerned. Without that makes the Court’s task difficult, that is, to firstly understand and then address the party’s objection(s) in detail. Under such circumstances and in my view, the safest thing to do considering interest of justice which is to permit the Court consider wholly the evidence of the parties before arriving at a decision, is to admit the affidavit and then consider what weight should be given or subtracted, before arriving at its decision.

13. For these reasons, I will allow Mr Werror’s affidavit to be used in support of the NoM.

RELATED PROCEEDINGS

14. It is not disputed that this is not the first time that this matter has come to Court. The plaintiffs had filed 4 related proceedings, namely, (i) OS 158 of 2012 filed on 16 March 2012, (ii), OS 510 of 2012 filed on 22 August 2012, (iii), OS 527 of 2012 filed on 18 September 2014 and (iv), WS 429 of 2017 filed on 4 May 2017. These proceedings have all been summarily dismissed for want of prosecution.

15. Evidence deposed for each proceeding is explained in Mr Werror’s affidavit. He also attaches copies of originating processes of each of the 4 proceedings including the present proceeding, to his affidavit. The plaintiffs have not challenged or seriously contested this claim by the defendant.

16. I have had the benefit of perusing the cause of actions in these related proceedings. I make the following observations. Firstly, it is my view that these proceedings including the present proceeding, are related. Secondly, I note that the lead plaintiff Keith Borok appeared in all the 5 (including the present) proceedings either on his own or for himself and on behalf of those persons who are listed in the schedules to some of the proceedings, namely, OS 510 of 2012, OS 527 of 2012, and the present proceeding. Thirdly, I note that in all the 4 related proceedings dismissed by the National Court, they relate to the present cause of action whereby the plaintiffs herein basically plead the same background, and then raise similar or same issues of trespass and negligence against the defendant over the dam where the Dablan Creek is situated, and with similar or same legal arguments. The main complaint appears to be that upon the expiry of the defendant’s LMP No. 29 on 28 May 2002 or even before that, that no dealings had been had with the plaintiffs as customary landowners, and as such, the continued use of and occupation of the dam and its facilities or the water, by the defendant amounts to, amongst others, trespass and negligence. Fourthly, I note that in all these four related proceedings, the Court dismissed them not on the merits but for want of prosecution but for valid reasons which have not been challenged, that is, want of prosecution based on delays and prejudices. My fifth observation is this. I see a pattern in the way the proceedings have or had been filed. There appears to be a deliberate change in the names of the plaintiffs from one proceeding to another. There also appears to be slight changes made to the nature of the claims and the mode of proceedings.

17. So I ask myself this. Do these amount to or constitute abuse of court process? My answer to that is, “yes they do,” and I say this because instead of appealing the decisions of the earlier proceedings, the principal plaintiff had simply file the 4 subsequent proceedings and had added other parties to them. He had also slightly changed the nature of the claims to treat them as new or separate actions. The related proceedings are clearly explained by Mr Werror in his affidavit. And again, I will have to ask myself this. When will it all end if this practice is to continue? If for example, this Court were to dismiss the proceeding, what is stopping the plaintiff from doing what he had been doing in the past, that is, to refile a fresh proceeding with the inclusion of additional or a revised list of members of his clan, or from naming more defendants and possibly changing the mode of proceeding but seeking similar type relief that would be based on the same background? To me, such practice is nothing more then what I would describe as gross abuse of the court process. For example, the plaintiffs in the 4 dismissed proceedings did not provide good reasons so the matters were summarily dismissed. By refiling a new proceeding that may look or appear different, is in my view not only an abuse of the court process but the plaintiffs’ actions appear as deliberate and disingenuous. The plaintiffs, in my view and by their conducts, appear to evade orders of the National Court which had already and on more than one occasion, found delays in prosecuting the matter. Instead of appealing the National Court’s decision(s) to answer to the delay and try to set these orders aside and retain the substantive claim, the plaintiffs, it seems, had been taking the easy way out by simply refiling basically the same cause of action in different formats, styles, and descriptions. The conduct of the principal plaintiff or the plaintiffs in not appealing the decisions in OS 158 of 2012, OS 510 of 2012 and OS 527 of 2012 meant that the cause of action came to end there. However, in refiling new proceedings such as the present one and proceeding WS 429 of 2017, the latter which had been dismissed, demonstrates, in my view, this gross abuse.

18. The abuse by the plaintiffs appears extensive. I will give 2 more examples. Let me begin with the first. This Court in the present matter and in an earlier interlocutory application, granted an application by the defendant for security for costs. Justice Derek Hartshorn, in a written decision in proceeding WS 1600 of 2014, Keith Borok and 74 Ors v. OK Tedi Mining Limited (2017) N7087, found, amongst others, the present proceeding to have less chances of success. His Honour stated, and I quote:

16. So in regard to the submissions of the plaintiffs in defence of this application, I am satisfied that circumstances exist to permit the defendant to make application under Order 14 Rule 25(1)(b) National Court Rules, that there is no undue delay in bringing the application, that the plaintiffs claim does not have a reasonable prospect of success, that the defendant should not be precluded from bringing this application because the plaintiffs may be unlikely to pay costs in the proceeding for which they are already liable, but that those costs are the only evidence of costs in this proceeding. [Bold lettering is mine].

19. The finding by His Honour on want of reasonable prospect of success was based on the fact that, contrary to the claim by the plaintiffs that they were only 75 in total (including Keith Borok), evidence adduced by the defendant had proven that over 500 persons also belonged to or were from the same area as the plaintiffs (Wangbin village) whose names were not mentioned or listed in the attached schedule to the writ of summons in the proceeding which is this proceeding. His Honour’s decision was made on 30 October 2017. Since then and to date, the plaintiffs have not appealed that decision nor have they rectified the deficiencies that have been highlighted by the Court. On the contrary, if they had, there was no submission or evidence presented by the plaintiffs which shows that. As it is, and in my view, His Honour’s decision stands and it has not been overturned. I therefore do not have any powers to review the said decision except perhaps and I think rightfully so, to bring that decision to my attention and make consequential orders, that is, based on the NoM that is properly before me. Dismissal of proceeding was not a relief or issue that was before His Honour at that time except for matters concerning security for cost. But as for the present NoM, the relief which seeks dismissal of proceeding, is properly before me, so I am in a position to make that decision, that is, whether to grant the relief and dismiss the entire proceeding.

20. The other example of the gross abuse is this. In one of the related proceedings, namely, WS 429 of 2017, Justice Hartshorn gave a written decision on 11 August 2020 where he dismissed the proceeding for want of prosecution. A copy of the decision is attached as annexure 9 to Mr Werror’s affidavit. His Honour stated, and I quote in part:

17. The defendant submits that as at the date of the hearing of the application, about 2 years 9 months has elapsed since the date of the alleged incident about which the plaintiff makes complaint. The defendant has filed its defence denying liability. Evidence has been given that the defendant is a large company and it is in its interest to have legal proceedings issued against it clarified quickly. Given the time that has elapsed, the defendant would encounter considerable difficulty in organizing relevant witnesses and evidence if the matter is to go to trial. As a result, it is submitted that the defendant has suffered prejudice. This evidence is not challenged by the plaintiff. For the reasons that it has given, I concur with the submissions of the defendant.
18. Consequently, as I am satisfied that there has been inordinate delay, no reasonable explanation for the delay and that the defendant has suffered prejudice....[Bold lettering is mine].
    

21. Given that the said proceeding is related to this proceeding, there (i.e., in proceeding WS 429 of 2017), we had the National Court again having to deliberate upon the matter and again having to find inordinate delay in prosecuting the matter. The Court also found the delay to have caused prejudice to the defendant. So, I ask myself this. Are we going to reargue these issues in the present proceeding, that is, matters concerning delay and prejudice amongst others? Is the Court going to be put to task again to make another round of findings on these issues whether now or later in the future? Would these not amount abuse of the court process?

22. I am satisfied for the above reasons, that this proceeding should be dismissed based on the ground of abuse of court process, that is, under Order 12 Rule 40(1)(c) of the NCR. I find that there appears to be a clear pattern whereby the principal plaintiff Keith Borok and those persons that he claims to represent, have abused the National Court process. The plaintiffs filed in total 5 proceedings, including this proceeding, which relate to the same land. They have similar facts, background, and cause of action. The plaintiffs, I find, did not follow the due process. That is, after they had failed in the earlier Court proceedings, they should have appealed the Court’s decision to the Supreme Court. They have not done that but instead filed various proceedings including the present one to pursue their same or related claims. In the process, various National Court Orders or rulings have been ignored. I should conclude here by adding that the principle of finality of litigation also applies. The Supreme Court in Masolyau Pyakali v. The State (2014) SC771, stated and I quote in part, The principle operates therefore, to prevent a party from succeeding from his own failure after his litigation has reach finality subject only to appeal on issues properly raised. We consider this principle very important in our justice system and that it should be readily upheld.

MERIT

23. Assuming that I may be wrong with my findings on abuse of process, I have also had the benefit of considering the merit of the claim, that is, the pleadings and evidence that have been adduced by the parties. The claim is based on the premise that the defendant’s LMP expired in 2002 and that it was never renewed which meant that the land had reverted back to its traditional owners where the plaintiffs claim to be part of and own. This is in addition to their next claim that regardless of the first argument, the defendant was required to but had failed to obtain the necessary water permit or approvals under the past legislation and under the current Environment Act for the use of the water where the Dablan Creek or the dam is situated.

24. The defendant has denied these claims in its defence. It has also adduced evidence to support its denial. I have considered the evidence and submissions. To me, I see prima facie or valid defences put up by the defendant in its evidence and submissions. There is confirmation of renewal of its LMP No. 29 on the entry record that is kept by the Register of Mining tenements. Evidence of these may be seen at paragraphs 56 to 62 of Mr Werror’s affidavit. The LMP was extended and dated 18 March 2017 and it appears to have retrospective effect upon registration under law, that is, pursuant to s. 112 of the Mining Act, which states:

112. Date of extension of term.

1) Where, prior to the expiry of a tenement, the holder has applied for an extension of the term of the tenement under this Division, the tenement shall continue in force over that portion of the land covered by the application until the determination of the application.

(2) The further period for which the term of a tenement is extended shall be deemed to have commenced on the day following the date on which the tenement would, but for the provisions of Subsection (1), have expired.

25. I note that the plaintiffs have not pointed to legislations, provisions of a law or submissions, that would put into question the defences raised by the defendant. I do note that this may not be the appropriate time to consider the substantive merit of the claim. But as this is an application to dismiss the entire proceeding, the plaintiffs, in my view, ought to raise valid legal arguments as well as show prima facie evidence to impress upon the Court that the matter is serious and requires serious consideration by the Court. That, however, was not demonstrated by the plaintiffs herein.

26. I also refer to the next major argument of the plaintiffs. They allege that the defendant did not obtain a water permit under the Environment Act, and as such they were operating illegally at the site. I note the submissions of the parties. Of relevance amongst other arguments, in my view, is the reference to s. 3(2) of the Environment Act. It states,

3. Application.

(1) This Act binds the State.

(2) The provisions of this Act may apply to projects to which the Mining (Bougainville Copper Agreement) Act, Mining (Ok Tedi Agreement) Act and Petroleum (Gulf of Papua Agreement) Act apply to the extent that those Acts provide for the application of this Act. [Underlining is mine]

27. I note that the plaintiffs have not addressed this nor have they provided a valid response to the matter in terms of legal arguments that would show cause that there is a serious issue to be trialed that would, amongst others, establish that the Mining (Ok Tedi Agreement) Act and its related legislations have provisions that says that the Environment Act shall apply to them. I note that no pleading in this regard may be found in the writ of summons and statement of claim for this matter. In my view, provisions in the OK Tedi Mining legislations that permits the operation of the Environment Act, if there are any, would have been crucial to bring to the attention of the Court at this juncture by the plaintiffs. I have not heard any submissions on that. All I have is the denial and evidence under oath given by the defendant that the Environment Act does not apply in this instance.

28. Regarding the claim for negligence, I note that it is dependent or sought consequential to the legal arguments. As the legal arguments are weak, in my view, the claim for negligence may also suffer the same fate.

29. In conclusions, I also find that there is no merit to the claim by the plaintiffs. As such, it must also be dismissed for this reason pursuant to Order 12 Rule 40(1)(a) of the NCR.

SECOND RELIEF

30. I refer to the second relief that is also sought in the NoM.

31. I decline to grant the said relief. I do so on the following basis. Firstly, the grant of the first relief itself is, in my view, sufficient for this purpose, and I note that it may also achieve the intention of this relief. Any further attempts by the plaintiffs to recommence such similar claims may be dealt with on their merits, but I note that with this Court’s ruling, it should be evident enough or sound a warning to the principal plaintiff and those persons that he represents that such conducts will not be tolerated by the Court in the future. There are consequences for gross abuse of process and one that comes to my mind is costs on indemnity basis. But that should, in my view, be left for the appropriate time or occasion. I should add for my declination this. I do not think it is the Court’s role to make orders that should prevent litigants or a party from coming to Court to exercise their rights on matters that affect them. Matters that are filed at the National Court should be permitted and should be dealt with by the Court on their merits or lack of it, at an appropriate time in the normal fashion.

SUMMARY

32. For these 2 reasons, this proceeding shall be dismissed.

33. Because of my findings, it is not necessary to proceed to deal with the other issues or matters that have also been raised herein.

COST

34. An order for cost in this instance is discretionary. The defendant seeks cost in the usual manner following the event. I will order cost of the proceeding to be paid by the plaintiffs on a party/party basis to be taxed if not agreed.

35. I note that the plaintiffs were ordered to pay K15,545.70 as security for costs on 30 October 2017. The money it seems is being held in the National Court Trust Account pending the outcome of this proceeding. I will make consequential orders that the said security be held pending settlement of the defendant’s cost in full, that is, whether it be by taxation or otherwise, and that only after its cost is fully paid, that the security funds, if any is left, shall be released to the plaintiffs. The parties are also at liberty to agree either before or after taxation of the defendant’s cost, that the security money be used to partly or fully settle the defendant’s cost, with the balance, if any, to be returned to the plaintiffs.

ORDERS OF THE COURT

36. I make the following orders:

1. The proceeding is dismissed in its entirety.
2. The plaintiffs shall pay the defendant’s cost of the proceeding on a party/party basis to be taxed if not agreed.
3. Any security for costs that is presently held by the Registrar as per the Court’s Order of 30 October 2017 shall remain pending full settlement of the defendant’s cost of the proceeding either by agreement or through taxation, and any remaining balance (i.e., of the security money) shall be returned to the plaintiffs.
4. Time for entry of these orders is abridged to the date and time of settlement by the Registrar which shall take place forthwith.
   

The Court orders accordingly.
________________________________________________________________
Horizon: Lawyers for the Plaintiffs
Allens: Lawyers for the Defendant