Boni v Tolukuma Gold Mines Ltd [2009] PGSC 25; SC1005 (4 December 2009)

SC1005

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 116 of 2006

SIMON FILLOY BONI by himself and the other one hundred and twenty-one (121) individual members of the Inai-Obebiara and Sufalana clans of Yaloge village
First Appellant

AUBO SOLA by himself and the other twenty-eight (28) individual members of the Yumu-Humula clan of Yaloge village
Second Appellant

JOE BAGORO by himself and the other seventy-nine (79) individual members of the Ivida, Samakuma, Balai and Inaiya clans of Inaina village
Third Appellant

JOE BULIDA by himself and the other one hundred and five (105) individual members of the Simalolo clan of Inaina village
Fourth Appellant

HENRY MONA by himself and the other fifty-five (55) individual members of the Balukuma-Urukai clan of Inaina village
Fifth Appellant

ANDREW AIA by himself and the other fifty-four (54) individual members of the Egesa clan of Inaina village
Sixth Appellant

WASANA BOTI by himself and the other twenty-eight (28) individual members of the Inaya-Biabina clan of Inaina village
Seventh Appellant

KORA EVESA by himself and the other twenty-nine (29) individual members of the Hokuma clan of Inaina village
Eighth Appellant

MATHEW HALLA by himself and the other twenty-eight (28) individual members of the Yumumadena clan of Kasabadina village
Ninth Appellant

PAUL MATHEW by himself and the other one hundred and forty-two (142) individual members of the Yagamara, Mana and Koga clans of Didibuna village, Camp 5 & 48
Tenth Appellant

MICHAEL MONGO by himself and the other twenty-seven (27) individual members of the Ivida-Yumu clan of Wama village
Eleventh Appellant

V

TOLUKUMA GOLD MINES LIMITED
First Respondent

HEVI-LIFT (PAPUA NEW GUINEA) LTD
Second Respondent

ORICA (PAPUA NEW GUINEA) LIMITED
Third Respondent

Waigani: Cannings J, Gabi J, Ellis J
2009: 4 December

JUDGMENT

PRACTICE AND PROCEDURE – exercise of discretion to dismiss proceedings – alleged non-compliance with order to file amended statement of claim

Cases cited:

There are no cases cited in the judgment.

Counsel:

Mr A Baniyamai, for the 8th appellant
Mr P Fereaka, for the remaining appellants
Mr G Poole. for the 1st respondent

1. BY THE COURT: This is an appeal from a decision made by the National Court (Kandakasi J) on 20 September 2006 to dismiss the appellants’ action against the 1st respondent in proceedings numbered WS 287 of 2006 and WS 288 of 2006 and order that the appellants pay the first respondent’s costs of those proceedings.

2. The appeal revolves around a direction made on 9 August 2006 that the appellants file an amended statement of claim by 16 August 2006.

3. It was the appellants’ case that an attempt was made to file an amended statement of claim on 16 August 2006 but that the registry would not permit filing because the court file was not available. It appears that the amended statement of claim was filed on 17 August 2006.

4. The substantive proceedings involve well over 1,000 villagers seeking damages as a result of a 1 tonne (1,000 kg) container of sodium cyanide falling from a helicopter while being transported to a gold mine with consequences which do not require elaboration. It is alleged that the 3rd respondent supplied the sodium cyanide which was said to have been dropped from a helicopter operated by the 2nd respondent while on its way to the 1st respondent’s gold mine.

5. This court is of the view that the orders made on 20 September 2006 should be set aside for a number of reasons.

6. First, the court is satisfied that there was an attempt to file an amended statement of claim on 16 August 2006 and that should be regarded as sufficient compliance in the circumstances. The court takes judicial notice of the fact that there are, from time to time, instances where the Registry is reluctant to permit documents to be filed when the court’s file is not available and that it is not an uncommon situation for the absence of the file in the Registry being due to the file being in a judge’s chambers.

7. Secondly, the form of the orders made on 9 August 2006 is not clear.

8. Thirdly, a reading of the transcript of the hearing on that day suggests that the order made for the filing of an amended statement of claim was not self-executing in that dismissal of the proceedings as against the 1st respondent was not said to be the automatic result of a failure to comply with the 16 August 2006 deadline. The judge who heard the matter on 9 August 2006 did say that if the amended statement of claim was not filed "I will order the dismissal of the proceedings". However, such words leave for a future occasion the exercise of the discretion. As to the exercise of that discretion, the judge earlier noted that when "a party has come into the doors, the court should be slow to drive it out of the courtroom. Rather, the court should facilitate, where possible, a hearing and determination on the substantive merits of this claim as opposed to procedural success".

9. Fourthly, it is relevant to the exercise of the discretion to dismiss proceedings to consider the nature and circumstances of the case and the consequences of dismissal. In the present case there is no doubt that some villagers suffered significantly as a result of 1,000 kgs of sodium cyanide being spilled. The questions which that incident gives rise to include which villagers suffered, who was legally responsible for the incident and what loss and damages was suffered. For those issues to be cast aside, even as against one of the parties alleged to be either partly or wholly responsible, because an amended pleading was filed a day late is an exercise of the discretion so unreasonable as to warrant appellate intervention, especially when it appears that attempts were made to file the relevant documents within the time given for compliance. To the extent that there may be said to be a doubt as to what occurred on 16 August 2006 and why, this court is of the view that such doubt should be resolved in favour of the appellants.

10. For those reasons, the orders of the court will be as follows:

1 Appeal allowed.

2 Set aside Orders made by the National Court on 20 September 2006.

3 Costs of the appeal are to be costs in the cause in the National Court.

4 The proceedings numbered WS 287 of 2006 and WS 288 of 2006 are to be re-listed in the National Court for directions on or before Friday 19 February 2010.

Appeal allowed.

__________________

Baniyamai Lawyers: Lawyer for the 8th Appellant
Tiare Lawyers: Lawyer for the remaining Appellants
O’Briens: Lawyer for the 1st Respondent