Malewo v Faulkner [2009] PGSC 3; SC960 (13 March 2009)

SC960

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 122 0F 2007

TIGAM MALEWO AND ROBERT DEMUTT
AND HENS GUIMBEN ON THEIR BEHALF AND ON BEHALF
OF TAMA, AMISAN AND DAVENTEM CLAN MEMBERS
First Appellants

AND

DICK DOMKI, NONG KOREK, NORMAN BONBEN
AND SILO KONDOMO ON THEIR BEHALF AND ON BEHALF
OF BRULLA GENHO, DAUPKA AND KIMKA CLAN MEMBERS
Second Appellants

V

KEITH FAULKNER,
MANAGING DIRECTOR, OK TEDI MINING LIMITED
First Respondent

OK TEDI MINING LIMITED
Second Respondent

PNG SUSTAINABLE DEVELOPMENT PROGRAMME COMPANY
Third Respondent

BHP (PNG) LIMITED
Fourth Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Respondent

INMET MINING CORPORATION
Sixth Respondent

BHP BILLITON LIMITED
Seventh Respondent

WAIGANI: BATARI J, MOGISH J, CANNINGS J
2 OCTOBER 2008; 13 MARCH 2009

Practice and procedure – proper mode of commencement of proceedings in the National Court – whether originating summons disclosed a reasonable cause of action – whether proceedings were frivolous, vexatious or an abuse of process – requirements for commencement of representative actions.

The appellants (then the plaintiffs) commenced proceedings in the National Court, seeking declarations, damages and other orders against the respondents – the owners and operators of a mine, and associated parties – due to alleged environmental damage. The National Court entirely dismissed the proceedings before trial, on various grounds, including use of an originating summons, when the proper mode of commencement was a writ of summons; the plaintiffs were not properly identified and failed to disclose their authority to represent other people; the originating process failed to disclose a reasonable cause of action; the proceedings were frivolous, vexatious and an abuse of process. The appellants appealed on 12 grounds.

Held:

(1) All grounds of appeal were dismissed as the appellants failed to demonstrate that the primary Judge made any significant errors of law.

(2) The primary Judge properly ruled, amongst other things, that:

- the appellants used an originating summons, when the proper mode of commencement was a writ of summons;

- the plaintiffs were not properly identified and failed to disclose their authority to represent other people (said to number about 13,000 individuals);

- the originating summons failed to disclose a reasonable cause of action;

- the proceedings were frivolous, vexatious and an abuse of process.

(3) The appeal was accordingly dismissed and the appellants’ lawyers were ordered to pay the respondents’ costs.

Cases cited

The following cases are cited in the judgment:

Eliakim Laki and 167 Others v Maurice Alaluku and Others (2002) N2001
Gabriel Apio Irafawe v Yauwe Riyong (1996) N1915
Kiee Toap v The State and Others (2004) N2766
Kumagai Gumi Co Ltd v National Provident Fund Board of Trustees (2006) SC837
New Britain Palm Oil Limited and Others v Vitus Sukuramu (2008) SC946
PNG Forest Products v The State [1992] PNGLR 85
Simon Mali v The State (2002) SC690
South Pacific Post v Nwokolo [1984] PNGLR 38
Theresa’s Pty Ltd and PNGBC v Rio Vista Pty Ltd [1998] PNGLR 283

APPEAL

This was an appeal against a decision of the National Court to entirely dismiss proceedings commenced in the National Court.

Counsel:

C S N Narokobi for the appellants
I Molloy for the 1st, 2nd, 5th and 6th respondents
R Lindsay for the 3rd respondent
D Wood for the 4th and 7th respondents

BY THE COURT: The appellants are customary landowners in the Ok Tedi River area of Western Province. They commenced proceedings in the National Court, seeking declarations, damages and other orders against the respondents – the owners and operators of the Ok Tedi copper mine, and associated parties – due to alleged pollution of the river and surrounding ecosystems. They are appealing against a decision of Justice Davani to entirely dismiss those proceedings before trial.

Her Honour gave a number of reasons for upholding motions by the respondents (then the defendants) for dismissing the proceedings, including:

- the appellants (then the plaintiffs) used an originating summons, when the proper mode of commencement was a writ of summons;

- the plaintiffs were not properly identified and failed to disclose their authority to represent other people (said to number about 13,000 individuals);

- the originating summons failed to disclose a reasonable cause of action;

- the proceedings were frivolous, vexatious and an abuse of process.

The appellants rely on 12 grounds of appeal to argue that the decision to dismiss the proceedings should be quashed and the matter remitted to the National Court for trial.

GROUND 1: NOT CONSIDERING AN APPLICATION BY THE APPELLANTS FOR DIRECTIONS, WHICH SHOULD HAVE BEEN HEARD BEFORE THE MOTIONS FOR DISMISSAL WERE HEARD

The appellants argue that they filed an application for directions regarding the conduct of the proceedings before the respondents filed their motions for dismissal of the proceedings. Their application should have been heard first. If that were done, the proceedings would not have been dismissed.

It is correct that application for directions, filed on 22 May 2007, pre-dated the filing of the respondents’ motions. However, there is no rule of law or procedure that motions or applications have to be dealt with on a first-come-first-served basis. The primary Judge noted that the appellants’ motions were raising fundamental, preliminary issues about whether the proceedings were properly before the court. The appellants’ applications sought a variety of orders, none of which raised the sort of threshold issues the respondents were raising through their motions for dismissal.

Her Honour did not err by deciding to hear the respondents’ motions first.

Ground No 1 is dismissed.

GROUND 2: NOT RULING ON AN OBJECTION BY THE APPELLANTS TO AN AFFIDAVIT, WHICH WAS RELIED ON TO SUPPORT THE RESPONDENTS’ MOTIONS FOR DISMISSAL

The appellants argue that her Honour did not rule on an objection to an affidavit by Robin Moaina, General Manager, Corporate Relations, Ok Tedi Mining Ltd (OTML). He deposed amongst other things that the area in which the appellants live or have traditional lands are unaffected by waste or discharge from the Ok Tedi mine. The appellants objected on the grounds that there was no evidence that Mr Moaina was authorised to speak on behalf of OTML and that his evidence was irrelevant as customary land ownership was not in issue in the proceedings. The appellants say that the respondents relied on Mr Moaina’s affidavit when arguing their motions, so it was an error for her Honour to uphold the motions while their objection to the affidavit was pending.

We agree that her Honour did not rule on the objection. However, in the circumstances this did not amount to an error of law as the depositions in Mr Moaina’s affidavit were largely irrelevant to the issues to be determined by the respondents’ motions for dismissal of the proceedings.

Ground No 2 is dismissed.

GROUND 3: RULING THAT THERE WAS NO REASONABLE CAUSE OF ACTION AND THAT THE PROCEEDINGS WERE FRIVOLOUS, VEXATIOUS AND AN ABUSE OF PROCESS

The appellants argue that her Honour erred in ruling under Order 12, Rule 40(1) of the National Court Rules that the amended originating summons filed on 29 March 2007 (which we refer to in this judgment as ‘the originating summons’) failed to disclose a reasonable cause of action and that the proceedings were frivolous, vexatious and an abuse of process.

Order 12, Rule 40(1) states:

Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) no reasonable cause of action is disclosed; or

(b) the proceedings are frivolous or vexatious; or

(c) the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

The appellants argue that her Honour erred, in particular, by:

- failing to properly consider that the claims for relief in the originating summons provided relevant facts giving rise to valid causes of action;

- failing to properly exercise the discretion to dismiss the proceedings as there has to be clear evidence that there was no reasonable cause of action etc and the respondents failed to provide such evidence;

- not being satisfied of all three grounds in Order 12, Rule 40(1);

- failing to examine each of the three grounds in Order 12, Rule 40(1).

Failure to properly consider claims for relief?

Mr Narokobi referred to paragraph 1 of the amended originating summons as an example of how the originating summons sufficiently disclosed a cause of action. Paragraph 1 states that the appellants were claiming:

A declaration that the defendants and their servants and or agents including but not limited to Directors Shareholders conduct whether direct or indirect, commencing on or about January 1980 in discharging mining operations waste material including but not limited to rock, material chemicals, and or metal including but not limited to heavy toxic metals known as lead, copper, cyanide, mercury into the 38.5 kilometres sections of Ok Tedi River known as Ok Mani junction down to Ok Brim junction and adjoining lands, water course owned and used from time immemorial by Plaintiffs was and continues to be amount to:

(i) Deliberate and purposeful or that Defendants have known or ought reasonably have known or foreseen with substantial certainty that adverse consequence would result from such conduct to the plaintiffs who’s land adjoins the Ok Tedi River, and depended on the river and its clean waters, sand, soil,, gravel, fish and other aquatic life and surrounding environment, flora and fauna for their livelihood;

(ii) Polluting Ok Tedi River and flood plains with hazardous and destructive chemicals and waste caused or likely to be of serious danger to all forms of aquatic life in the river and the surrounding ecosystem and the Plaintiffs including risks, lives and health.

(iii) Unreasonable interference or denial of Plaintiffs peaceful use or enjoyment of Ok Tedi River waters in that the waters were and are likely to be poisonous, unclean and dangerous and that such conduct is interference and continues to be interference since the mine commenced, now and in the future. Plaintiffs are consequently denied their customary riparian rights including but not limited to the following rights:

i. Fishing for subsistence and commercial profit.

ii. Place fish traps to catch shrimps, prawns, eels.

iii. Hunting crocodiles.

iv. Extract clay for customary purposes including body paint for singsing ceremony.

v. Extract sand, stones and gravel for domestic case.

vi. Traditional ceremonial purposes.

vii.Washing including washing of sago and root crops.

viii. Safe drinking and washing water.

ix. Cooking.

x. Supply of safe drinking water for animals.

xi. Transport of persons and building materials.

xii. Irrigation of crops.

xiii. To replenish and augment top soils on the flood plains.

xiv. Supply of safe and clean portable water for domestic purposes.

(iv) Violation of Plaintiffs rights and interests in law, common law and underlying law. [sic]

Mr Narokobi submitted that the claim for relief in paragraph 1 of the originating summons adequately sets out relevant facts which give rise to a cause of action.

We disagree. Besides the poor grammar (which makes it difficult to make sense of what is being claimed), this paragraph is defective as it seeks, in effect, a four-pronged declaration without disclosing the legal basis or justification for the court making such a declaration. As Cannings J pointed out in Kiee Toap v The State and Others (2004) N2766 whenever a person brings a case to court, the originating document must demonstrate that the plaintiff has a cause of action. The document must clearly set out:

- the legal ingredients or the elements of the claim; and

- the facts that support each element of the claim.

If the plaintiffs originating document does that, there is a reasonable cause of action. If not, it does not disclose a reasonable cause of action. If we apply that test to paragraph 1, it fails to demonstrate that there is a clear legal basis underlying the claim for a declaration. The plaintiffs are seeking four declarations without spelling out the legal ingredients or the elements of the cause of action. It is not until towards the end of the originating summons, in paragraph 34, that some indication is given of what the causes of action might be: the plaintiff claims an order that the first and third respondents are guilty of:

(i) Private nuisance

(ii) Public nuisance

(iii) Trespass

(iv) Breach of absolute and or reasonable duty of care

(v) Violation of domestic and international law.

These claims are, in themselves, rather vague. What does "breach of absolute and or reasonable duty of care" mean? "Violation of domestic and international law" is tantamount to saying that something is unlawful. But, how and why is it unlawful? Subparagraphs 34(iv) and (v) clearly do not disclose any cause of action. They are so vague as to be meaningless. Subparagraphs 34(i), (ii) and (iii) do, at least, refer to recognisable causes of action. Private nuisance, public nuisance and trespass are torts. But subparagraphs 34(i), (ii) and (iii) do not relate in any discernable way to any of the preceding paragraphs, least of all paragraph 1.

We agree with the primary Judge that the originating summons does not demonstrate that it has a clear legal basis. It is not sufficient for an originating process to merely seek a number of declarations and orders, containing numerous disputed allegations of fact, without any identifiable structure. The originating summons consists of 37 numbered paragraphs and most of them are in the same form as paragraph 1. The 37 paragraphs considered both individually and collectively fail to set out a framework to allow an understanding of what the claim is about and how liability is asserted.

We also agree with the primary Judge that where there are multiple defendants, the originating process must demonstrate what each particular defendant has done which is said to give rise to liability against that defendant. Her Honour pointed out that that was another reason the originating summons was defective. It was seeking remedies against some defendants who did not operate the Ok Tedi mine without distinguishing their role and conduct from other defendants who did operate the mine.

Failure to properly exercise discretion?

Mr Narokobi submitted that the respondents failed to provide evidence of a lack of a reasonable cause of action.

We reject that submission. The evidence is provided by the text of the originating summons. There is no need for any other evidence. The task of the National Court when it hears a motion to dismiss proceedings on the ground that no reasonable cause of action is disclosed is to focus on the document that has been filed. If it is so vague as to leave a reasonable reader of the document guessing as to what the cause of action is, it will have failed to disclose a reasonable cause of action. The Judge hearing the motion will have a discretion whether to dismiss the proceedings or perhaps give directions to the plaintiff to amend the originating process. In the present case, the primary Judge correctly focussed on the amended originating summons, carefully considered it, and quite reasonably formed the opinion that it failed to disclose a reasonable cause of action. Her Honour then exercised her discretion to dismiss the proceedings. There was no need for any further evidence to be before her Honour.

Failure to be satisfied of all three grounds?

Mr Narokobi submitted that, for proceedings to be dismissed under Order 12, Rule 40(1), the National Court must be satisfied as to all three grounds of dismissal that it provides for: (a) no reasonable cause of action, (b) frivolous or vexatious and (c) abuse of process. In support of that proposition he cites the decision of Sevua J in Theresa’s Pty Ltd and PNGBC v Rio Vista Pty Ltd [1998] PNGLR 283.

Sevua J did not say that the court needs to be satisfied of (a), (b) and (c). His Honour said the opposite: a defendant must establish one of (a), (b) or (c). We agree with Sevua J. We dismiss Mr Narokobi’s argument that each of (a), (b) and (c) had to be satisfied.

If we had upheld the argument, it would have held no sway as her Honour, in fact, found that each of (a), (b) and (c) were satisfied.

Failure to examine each of the three grounds?

Mr Narokobi submitted that her Honour failed to examine each of the three grounds in Order 12, Rule 40(1) before dismissing the proceedings.

That is not the case. Her Honour gave separate attention to the issues of whether the proceedings:

- disclosed a reasonable cause of action, under the headings "no cause of action" and "whether there is a reasonable cause of action", at paragraphs 34 to 39 and 52 to 56 of the written judgment (2007) N3357;

- were frivolous or vexatious, under the heading "are the proceedings frivolous or vexatious?", at paragraphs 57 and 58 of the written judgment (2007) N3357;

- were an abuse of process, under the heading "are the proceedings an abuse of the processes of this court?", at paragraphs 59 and 60 of the written judgment (2007) N3357.

Ground No 3 of the appeal is therefore dismissed.

GROUND 4: FAILING TO RECOGNISE CLEARLY PLEADED STATUTORY AND COMMON LAW CLAIMS

The appellants argue that her Honour erred in dismissing the proceedings "when paragraphs 1, 5, 7, 8, 9, 10, 11, 12, 23 and 27 clearly pleads statutory and common law claims giving rise to causes of action or likely causes of action" [sic]. It is asserted that these particular paragraphs plead discrete statutory or common law causes of action.

We have already commented on paragraph 1 when dismissing ground No 3 of the appeal. It falls well short of the standard required. As for paragraph 5, it claims:

A declaration that Defendant did not have an environmental plan or met other legal requirements and therefore breached and continues to breach the laws and public policy of Papua New Guinea including the Environment Act 2000, relevant international Agreements, the National Goal No 4 of the Constitution, National Resources and Environment, Public Health Act and will continue to do so in one form or another 300 years from ceasing of the Mines’ operations. [sic]

We do not accept Mr Narokobi’s contention that paragraph 5 discloses a clear statutory claim. It is not good enough just to say ‘Defendant did not have an environment plan or met other legal requirements’ etc. Such statements beg too many questions: Which defendant? What law states that an environmental plan was required? An environmental plan regarding what? What public policy? What is the legal basis of that public policy? What sections of the Environment Act are relied on? What sections have been breached? By which defendants? How? When? Where?

The lack of detail as to the nature of the claim means that there is no identifiable cause of action (PNG Forest Products v The State [1992] PNGLR 85). The lack of particularity does not facilitate an orderly and rational pre-trial procedure that would allow the real issues to be identified (Gabriel Apio Irafawe v Yauwe Riyong (1996) N1915).

We need not go on. Paragraph 5 is clearly defective. We say the same thing for paragraphs 7, 8, 9, 10, 11, 12, 23 and 27. They are all vague claims which fail to disclose any clear legal basis.

We dismiss ground No 4.

GROUND 5: DISMISSING THE PROCEEDINGS FOR FAILURE TO COMPLY WITH A PROVISION OF THE NATIONAL COURT RULES (ORDER 8, RULE 33) WHICH WAS IRRELEVANT AND INAPPLICABLE

The appellants argue that her Honour erred by dismissing the proceedings for failure to comply with Order 8, Rule 33 of the National Court Rules. This rule provides that where a claim is made by a plaintiff for damages for breach of duty and the damages claimed include damages in respect of the death of any person or in respect of personal injuries, full particulars of the claim must be provided, eg the date and place of birth of each plaintiff, particulars of the injuries alleged to have been sustained by each plaintiff, details of each item of special damages claimed. Mr Narokobi submits that the rule only applies to proceedings commenced by writ of summons. It does not apply to proceedings commenced by originating summons.

In a sense, Mr Narokobi is right. Order 8, Rule 33 does not apply to proceedings commenced by originating summons. But we agree with her Honour that these proceedings should have been commenced by writ of summons.

One of the reasons for this is that the appellants were, firstly, claiming damages for breach by the respondents of duties of various sorts and, secondly, the damages claimed included damages in respect of the death of or personal injuries to various persons. If a claim for damages has those two characteristics, Order 4, Rule 2(1)(c) of the National Court Rules applies: the proceedings must be commenced by writ of summons, unless Order 4, Rule 2(3) applies.

Order 4, Rule 2(3) says that where the plaintiff desires to apply for a declaration of right, an immediate injunction, an immediate appointment of a receiver or immediate orders for preservation of property, Order 4, Rule 2(1)(c) does not apply.

In this case Order 4, Rule 2(1)(c) applies. Firstly, there are numerous references in the originating summons to alleged breaches of duty by the respondents (eg paras 5, 7, 8, 12, 14, 15 and 16). Secondly, damages are sought for death and personal injury. For example, in paragraph 13 the appellants claim:

A declaration that as a direct result of First, Second and Fourth Defendants as well as Seventh Defendant or indirectly by the balance of the Defendants, conduct, pollution and poisoning by chemicals associated heavy in Ok Tedi River is so egregious that it has caused, continue to cause and likely to cause deaths, skin irritations, sores and diseases of threatened Plaintiffs and animal lives and health. [sic]

In paragraph 35 the appellants claim:

An order that Plaintiff are entitled to remedies in law and equity including compensatory and punitive damages ... [sic]

Order 4, Rule 3 does not apply. Although in some parts of the originating summons the plaintiffs are arguably seeking a declaration of right or an immediate injunction, we consider that such claims are incidental to the primary remedies which are being sought: exemplary damages of US$3.75 billion (in paragraph 29) and compensatory and punitive damages (paragraph 35).

Clearly the proceedings had to be commenced by writ of summons. That being the case, Order 8, Rule 33 of the National Court Rules had to be complied with. Her Honour made no error of law when dismissing the proceedings for failure to comply with that rule.

Ground No 5 is dismissed.

GROUND 6: FAILING TO CONSIDER EACH PARAGRAPH OF THE ORIGINATING SUMMONS BEFORE RULING THAT THE WHOLE ORIGINATING SUMMONS OFFENDED AGAINST THE NATIONAL COURT RULES

The appellants argue that her Honour erred by not considering each paragraph of the amended originating summons. If her Honour had considered each paragraph, amendments could have been ordered under Order 8, Rule 50.

We do not agree that her Honour did not consider each of the paragraphs. It is evident from her carefully reasoned judgment that her Honour did consider each of the paragraphs. It was not necessary to expressly analyse each paragraph and expressly expose its defects.

We agree that Order 8, Rule 50 allows the court at any stage of proceedings, whether commenced by writ of summons or by originating summons, to order that any document in the proceedings be amended. This can be done on application by a party or on the court’s own motion. However, we do not agree that her Honour erred by not invoking Order 8, Rule 50. Her Honour, for good reasons, which she amply articulated, was of the view that the originating summons was fatally flawed. At paragraph 59 of the judgment, after finding that the proceedings were an abuse of process, she commented:

No amount of amendment can cure the serious procedural anomalies raised.

We agree with her Honour. The originating summons was beyond redemption. Ordering amendments would have been a pointless exercise.

Ground No 6 is dismissed.

GROUND 7: REFUSING TO ALLOW THE APPELLANTS TO FILE EVIDENCE OF THE AUTHORITY THEY HELD TO REPRESENT OTHER CLAN MEMBERS

The appellants argue that her Honour refused, erroneously, to allow them to file affidavits that would have clarified their authority to represent other clan members. If those affidavits had been considered, the proceedings would not have been dismissed.

This issue is addressed at paragraphs 25 to 27 of the written judgment where her Honour points out that under Rule 12(2) of the Motions (Amendment) Rules 2005 all affidavits on behalf of parties who are opposing motions must be filed by 2.00 pm on the day before the hearing of the motion. If that requirement is not met, leave must be granted by the court to file and serve the affidavits in court. Mr Narokobi wanted to file two affidavits but did not make his intentions clear until after the respondents had completed their submissions. Her Honour ruled that Rule 12(2) was not complied with and that the appellants failed to apply for leave to file and serve the affidavits in court. We consider that her Honour correctly refused to consider the affidavits.

Ground No 7 is dismissed.

GROUND 8: RULING THAT THE MODE OF COMMENCEMENT OF THE PROCEEDINGS (ORIGINATING SUMMONS) WAS WRONG

The appellants argue that her Honour erred by ruling that the mode of commencing the proceedings was wrong.

Her Honour expressed the view that, because of the likelihood that many of the allegations of fact in the originating summons would be disputed by the respondents, it was inappropriate to commence the proceedings by originating summons. We agree with her Honour on that point. Order 4, Rule 3(b) of the National Court Rules provides that proceedings "in which there is unlikely to be a substantial dispute of fact" are amongst those which are appropriate to be commenced by originating summons. The corollary of that rule is that if – as here – there is likely to be a substantial dispute of fact, it is not appropriate to commence the proceedings by originating summons. However, we acknowledge that the Rules give a plaintiff a wide discretion as to which mode of commencement to use. Order 4, Rule 3(1) states:

Except in the case of proceedings which by these Rules or by or under any Act are required to be commenced by writ of summons, proceedings may be commenced either by writ of summons or by originating summons as the plaintiff considers appropriate.

Order 4, Rule 2 dictates the types of proceedings which must be commenced by writ of summons. It prescribes four types of proceedings. Proceedings in which there is likely to be a substantial dispute of fact are not one of those four types. So we find some merit in Mr Narokobi’s submission that, to the extent it was ruled that it was mandatory in the present case for the proceedings to be commenced by writ of summons because there was likely to be substantial disputes of fact, her Honour erred.

However, we do not consider the error of law to be significant, as there other features of the proceedings that dictated that they had to be commenced by writ of summons. We have already mentioned one of them in our discussion of ground No 5 above. The appellants were claiming damages for breach by the respondents of various duties and the damages claim included damages in respect of the death of or personal injuries to various persons. Therefore Order 4, Rule 2(1)(c) applied and the proceedings had to be commenced by writ of summons.

Another feature of the proceedings is that the appellants were making claims for relief or remedy (principally damages) for various torts, such as private nuisance, public nuisance and trespass. Under Order 4, Rule 2(1)(a) such proceedings must be commenced by writ of summons.

Ground No 8 is dismissed.

GROUND 9: RULING THAT THE APPELLANTS’ CLAIM WAS A PERSONAL INJURIES CLAIM AND FAILING TO RECOGNISE THAT IT WAS AN ENVIRONMENTAL DAMAGE CLAIM

The appellants argue that her Honour erred by categorising the proceedings as a personal injuries claim and failing to recognise that the proceedings were in the nature of an environmental damage claim.

We have already decided in our determination of ground No 5 above that her Honour properly ruled that the rules about personal injury claims applied in this case. A significant part of the originating summons claims damages for death and personal injuries. So there was no incorrect categorisation of the claim by her Honour.

Her Honour did not fail to recognise that the appellants were attempting to make an environmental damage claim. Her Honour did not say ‘this is a personal injuries claim, it is not an environmental damage claim’. Clearly the originating summons was seeking damages for different sorts of injuries allegedly suffered by the appellants due to the actions of the respondents. Some of those injuries were personal injuries and some can be regarded as environmental damage. Her Honour made no errors of law in the manner contended for by the appellants.

Ground No 9 is dismissed.

GROUND 10: RULING THAT THE APPELLANTS HAD TO COMPLY WITH RULES FOR INDORSEMENT OF REPRESENTATIVE ACTIONS, WHEN SUCH RULES ONLY APPLY TO PROCEEDINGS COMMENCED BY WRIT OF SUMMONS

The appellants argue that her Honour erred by invoking Order 4, Rule 20 of the National Court Rules. This rule requires that before a writ of summons is issued it must be indorsed with a statement of the capacity in which the plaintiff sues, if the plaintiff sues in a representative capacity. Mr Narokobi submits that that rule only applies to proceedings commenced by writ of summons. These proceedings were commenced by originating summons.

Our response to this argument is similar to our response to the argument in ground No 5 concerning Order 8, Rule 33. In a sense, Mr Narokobi is right. Order 4, Rule 20 does not apply to proceedings commenced by originating summons. But we agree with her Honour that, for a number of reasons, these proceedings should have been commenced by writ of summons. So it was quite proper to invoke Order 4, Rule 20 to demonstrate the flaws in the originating summons.

Ground No 10 is dismissed.

GROUND 11: RELYING ON PREVIOUS SUPREME COURT AND NATIONAL COURT CASES, IN WHICH THE FACTS WERE MATERIALLY DIFFERENT FROM THE PRESENT CASE

The appellants argue that her Honour erred by relying on the decision of the Supreme Court (Hinchliffe J, Sakora J, Batari J) in Simon Mali v The State (2002) SC690 and the decision of the National Court (Sevua J) in Eliakim Laki and 167 Others v Maurice Alaluku and Others (2002) N2001 and failed to consider Order 4, Rules 3 and 31 and Order 5, Rule 3 of the National Court Rules.

It is correct that her Honour relied on those decisions to demonstrate the need, in this case – as it was filed as a representative action – for the names of all intended plaintiffs to be included in the originating process. Her Honoured cited the following passage from Mali’s case, where the Supreme Court stated:

... in all actions or proceedings of a representative nature, all the intended plaintiffs must be named and duly identified in the originating process, be it Writ of Summons, Originating Summons or Statement of Claim endorsed on a writ. In this respect, pursuant to the Rules ..., each and every intending plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them. There are good reasons for this, one being where costs of the litigation are concerned, if awarded against the plaintiffs. Some of the problems or consequences in a representative action are anticipated in the various sub-rules under Order 5, Rule 13 National Court Rules (representation: current interests).

Her Honour noted that in Laki’s case Sevua J imposed the same sort of procedural requirement:

Although Eliakim Laki said he was filing a claim on behalf of 167 others who are named in the amended schedule of the writ, he did not produce an authority to the court to show that he was authorised by the claimants to file proceedings as a class representative of the 167 others. The court held that he should not represent the others without a proper authority.

Her Honour took the view, based on those decisions, that the following procedural requirements apply to representative actions:

- all intended plaintiffs must be named in the originating process;

- each and every intended plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them;

- any person in whose name proceedings are commenced and who claims to represent other intended plaintiffs must produce an authority to the court to show that he was authorised by them to file proceedings as a class representative.

Those requirements were not complied with in this case.

Her Honour considered that the source of such procedural requirements lies in Order 5, Rule 13, which states:

Where numerous persons have the same interest in any proceedings the proceedings may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them. [Emphasis added.]

Her Honour indicated that the italicised words – "unless the court otherwise directs" – give the court an overriding discretion to prevent representative proceedings, otherwise validly commenced, from continuing. In exercising that discretion the court has the power to impose the sorts of procedural requirements outlined in Mali’s case and Laki’s case.

We agree with her Honour’s interpretation of Order 5, Rule 13(1). We also agree that the procedural requirements outlined in Mali’s case and Laki’s case apply to all representative actions, irrespective of their nature. Mr Narokobi submitted that both those cases were police raid cases and the facts should be distinguished from the present case, which is an environmental damage case. But that is not correct. Eliakim’s case was a representative action by West New Britain blockholders. It was not a police raid case. Even if it was a police raid case, the principles it stands for would still apply to the present case.

As for the rules that Mr Narokobi submitted the primary Judge should have regard to, we do not agree that her Honour failed to consider them.

Order 4, Rule 3 indicates the type of proceedings in which the plaintiff may choose between a writ of summons and an originating summons as the mode of commencement. We explained in our determination of ground No 8 that her Honour did consider that rule.

Order 4, Rule 31 provides amongst other things that "the court shall give such directions as are convenient for the just, quick and cheap disposal of the proceedings". It is a general rule applicable to proceedings commenced by originating summons. Her Honour did not err by not expressly considering this rule.

Order 5, Rule 3 states that where a plaintiff claims relief to which any other person is jointly entitled, all persons so entitled shall be parties to the action and any of them who do not consent to being joined as a plaintiff shall be made a defendant. We fail to see how her Honour erred by not considering this rule.

Ground No 11 is dismissed.

GROUND 12: FAILING TO DEVELOP THE UNDERLYING LAW

The appellants argue that her Honour erred by failing to develop the underlying law. They base this argument on her Honour’s asking Mr Narokobi for copies of the decision of the Supreme Court of Victoria, Australia, in an environmental class action in the 1990s by landowners affected by the operation of the Ok Tedi mine.

We reject this submission as there were no underlying law issues before the court. Such issues may arise if the grievances that the appellants were trying to agitate in the originating summons eventually make it to trial. However, underlying law issues must be carefully pleaded in accordance with the Underlying Law Act 2000 (New Britain Palm Oil Limited and Others v Vitus Sukuramu (2008) SC946). Here, no underlying law issues were raised in the originating summons.

Her Honour was applying conventional rules of practice and procedure as prescribed by the National Court Rules. It is not appropriate to invoke the underlying law to alter or amend those Rules (South Pacific Post v Nwokolo [1984] PNGLR 38, Kumagai Gumi Co Ltd v National Provident Fund Board of Trustees (2006) SC 837).

Her Honour did not dismiss the proceedings because she considered that the nature of the appellants’ grievances, being based on alleged environmental damage to their land and resources and associated personal injuries, gave them no chance of success. Her Honour dismissed the proceedings because of failure to comply with conventional rules of practice and procedure. The originating summons, as drafted, gave them no chance of success. Her Honour did not fail to appreciate the nature of the appellants’ grievances. She made no error in failing to develop the underlying law.

Ground No 12 is dismissed.

CONCLUSION

We have dismissed all the grounds of appeal. It follows that the appeal must be dismissed. The orders of the National Court remain intact, so the entire National Court proceedings remain dismissed.

This does not mean that the appellants are without a remedy. We agree with the learned primary Judge that it is open to the appellants to recommence the action, provided it is in a proper form, and compliant with the National Court Rules.

As to costs, we note that her Honour ordered costs against the appellants’ lawyers, Narokobi Lawyers, rather than the appellants themselves. The reasons for this were that the respondents’ lawyers had advised Narokobi Lawyers in detail of the defects in the originating summons and requested that the proceedings be discontinued and that it was unlikely that the appellants themselves, being villagers, had the means to pay the respondents’ costs. We agree that that is a fair and proper approach to take to the question of costs and will make the same sort of order for the purposes of the Supreme Court proceedings.

ORDER

(1) The appeal is dismissed.

(2) The orders of the National Court are confirmed;

(3) Narokobi Lawyers shall pay the costs of these proceedings to the respondents on a party-party basis, to be taxed if not agreed.

Judgment accordingly.

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Lawyers for the appellants: Narokobi Lawyers
Lawyers for the 1st, 2nd, 5th and 6th respondents: Allens Arthur Robinson Lawyers
Lawyers for the 3rd respondent: Gadens Lawyers
Lawyers for the 4th and 7th respondents: Blake Dawson Lawyers