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Tarsie v Ramu Nico Management (MCC) Ltd [2010] PGNC 143; N4141 (24 September 2010)

N4141

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS NO 202 OF 2010

EDDIE TARSIE FOR HIMSELF AND IN HIS CAPACITY AS WARD
COUNCILLOR OF WARD 3, SAIDOR LOCAL-LEVEL GOVERNMENT
First Plaintiff

FARINA SIGA, FOR HIMSELF AND IN HIS CAPACITY AS WARD
SECRETARY OF WARD 3, SAIDOR LOCAL-LEVEL GOVERNMENT
Second Plaintiff

PETER SEL
Third Plaintiff

V

RAMU NICO MANAGEMENT (MCC) LIMITED
First Defendant

MINERAL RESOURCES AUTHORITY
Second Defendant

DR WARI IAMO
IN HIS CAPACITY AS DIRECTOR OF ENVIRONMENT
Third Defendant

DEPARTMENT OF ENVIRONMENT AND CONSERVATION
Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Madang: Cannings J
2010: 23, 24 September

PRACTICE AND PROCEDURE – application by a person to be added as a plaintiff to proceedings already commenced – National Court Rules, Order 5, Rules 2, 8, 11, 13.

A person who was not a party to proceedings, which the plaintiffs commenced six months previously, applied for an order that he be added to the proceedings as a plaintiff, in a representative capacity. The application was opposed by the defendants, and also by the plaintiffs, who in a separate motion sought leave to discontinue the proceedings. The application was brought under the National Court Rules, Order 5, Rules 2, 8, 11 and 13.

Held:

(1) The appropriate rule under which an application of this nature should be brought is Order 5, Rule 8.

(2) To order that a party be added as a party the court must first be satisfied that the applicant (a) "ought to have been joined as a party"; or (b) "is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on". If (a) or (b) is satisfied, the court has a discretion to exercise: whether to order that the applicant be added as a party.

(3) Here, it cannot properly be said that the applicant ought to have been joined as, although he appears to have a similar interest in the subject matter of the proceedings to that of the plaintiffs, his inclusion as a party was not necessary to sustain the proceedings.

(4) It is not necessary that he be joined in the proceedings as, in view of the pending application by the plaintiffs for leave to discontinue the proceedings and the expressed consent of the defendants to that application, there were no longer any matters in dispute in the proceedings.

(5) Neither of the prerequisites in Order 5, Rule 8 was satisfied and therefore the application must fail.

(6) If the court had been persuaded that either (a) or (b) was satisfied it would still, as a matter of discretion, refused the application as, although it was a genuine application in that the applicant appeared to have a bona fide interest in the subject matter of the proceedings and did not clearly lack locus standi to seek the relief being sought by the plaintiffs and provided a satisfactory explanation for the apparent delay in making the application, it would defeat the interests of justice to allow the application when it is opposed by all parties, including the plaintiffs and the applicant, though purporting to act in a representative capacity, had not complied with the normal requirements for commencing representative proceedings.

(7) The application was accordingly refused and the question of costs was reserved.

Cases cited

The following cases are cited in the judgment:

AGC (Pacific) Ltd v Sir Albert Kipalan & Ors (2000) N1944
Knight v McCann-Erickson Supreme Court of NSW, No 1050 of 1991, 26.08.91
Ramu Nico (MCC) Ltd v Tarsie SCA 40/2010, 16.07.10
Rickard Constructions v Moretti [2004] NSW SC1041
Tigam Malewo v Keith Faulkner (2009) SC960
Tozer v The State [1978] PNGLR 150
Umapi Luna Pakomeyu v James Siai Wamo (2004) N2718

Counsel

T Nonggorr & R William, for the applicant
D Steven, for the plaintiffs
C Scerri QC, G Gileng & C Posman, for the first defendant
A Mana, for the second defendant
I M Molloy & T Tanuvasa, for the third, fourth & fifth defendants

24 September, 2010

1. CANNINGS J: This is a ruling on an application by Louis Medaing ("the applicant") to be added and/or substituted as a plaintiff to the proceedings. He brings the application on his own behalf and on behalf of the Medaing families of the Tong Clan and the Sawang families that make up the Ongeg Clan. He says that these clans own land in the Basamuk area of Madang Province, where the refinery for the Ramu Nickel Project is located.

2. The proceedings he seeks to join are civil proceedings, WS No 202 of 2010, the plaintiffs commenced in March 2010. They were seeking amongst other things a permanent injunction to restrain the first defendant, Ramu Nico Management (MCC) Ltd ("MCC"), from committing the tort of nuisance. The plaintiffs were claiming that the nuisance would be constituted by the unauthorised environmental damage caused by the dumping of tailings into Astrolabe Bay by a deep-sea tailings placement system.

3. An application for Mr Medaing to be joined as a plaintiff was filed by the plaintiffs on 13 September 2010, eight days before the date set for the start of the trial, 21 September 2010. On the eve of the trial, 20 September 2010, the plaintiffs gave notice to their then lawyers, Nonggorr & William, (who are also Mr Medaing's lawyers) that they were terminating their services and that they would be applying for leave to discontinue the proceedings. An application for leave to discontinue was filed on 22 September 2010 and was heard after the hearing of Mr Medaing's application, on 23 September 2010.

WHAT IS THE APPROPRIATE RULE?

4. Mr Medaing's application is founded on four Rules in Order 5 (parties and causes of action) of the National Court Rules:

• Rule 2 (joinder of parties generally);
  
• Rule 8 (addition of parties);
  
• Rule 11 (further conduct of proceedings);
  
• Rule 13 (representation; current interests).
  

5. I uphold the submission of Mr Molloy, counsel for the third, fourth and fifth defendants, that only one of these rules is directly relevant, in the sense of being the source of power for the court to make the sort of order that Mr Medaing is seeking. That rule is Rule 8(1).

6. Rule 2 is concerned with joining parties as co-plaintiffs at the commencement of proceedings. It is not relevant to an application to add a person as a plaintiff after commencement of proceedings.

7. Rule 11 is a facilitative rule. It clarifies the sort of orders that the court may make if it makes an order under other rules, including Rule 8.
It does not by itself authorise the court to order the addition of a party.

8. Rule 13 lays down guidelines as to when it is appropriate for a person to commence and/or continue proceedings in a representative capacity. It is not a rule that prescribes the circumstances in which a person may be added as a party.

9. The application can only properly be determined by considering the elements of Order 5, Rule 8(1).

ORDER 5, RULE 8(1): ADDITION OF PARTIES

10. It states:

Where a person who is not a party—

(a) ought to have been joined as a party; or

(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on,

the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.

11. Rule 8(1) operates in this way. To order that a party be added as a party the court must first be satisfied that the applicant:

(a) "ought to have been joined as a party"; or

(b) "is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on".

12. If (a) or (b) is satisfied, the court has a discretion to exercise: whether to order that the applicant be added as a party. If neither (a) nor (b) is satisfied, the court has no power under Order 8(1) to order the addition of a party.

OUGHT MR MEDAING HAVE BEEN JOINED AS A PARTY?

13. It cannot properly be said that Mr Medaing ought to have been joined as, although he appears to have a similar interest in the subject matter of the proceedings to that of the plaintiffs, his inclusion as a party has not, until very recently, been regarded as necessary to sustain the proceedings. He says he is a customary landowner in the Basamuk area. He agrees that he is in dispute with other people from that area who claim customary ownership of the same land. He appears on the face of it to be the sort of person who could have been joined as a plaintiff at the commencement of the proceedings. However, his omission from the proceedings has had no effect on the continuation or sustainability of the proceedings.

Rule 8(1)(a) is therefore not satisfied.

IS MR MEDAING A PERSON WHOSE JOINDER IS NECESSARY?

14. The precise question to ask for the purposes of Rule 8(1)(b) is whether Mr Medaing is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on.

15. It is at this point that the intentions of the parties as to the future conduct of the proceedings are critical. The plaintiffs have filed a motion seeking leave to discontinue the proceedings. In addition, the defendants have, through statements made by their counsel from the bar table during the hearing of the present application, expressed their consent to the motion and indicated that no order for costs will be sought against the plaintiffs. The proceedings, WS No 202 of 2010, have therefore, for present purposes, been settled. In a practical and real sense, and in the relevant sense, for the purposes of Rule 8(1)(b), notwithstanding that the proceedings remain on foot, there are no matters in dispute in the proceedings. If there are no matters in dispute it cannot be necessary for Mr Medaing or anyone else to be joined.

Rule 8(1)(b) is therefore not satisfied.

16. As neither of the prerequisites in Order 5, Rule 8(1) is satisfied, Mr Medaing's application must fail. However, as the matter of discretion was addressed at length I will indicate how it would have been exercised in the event that I had been persuaded that either Rule 8(1)(a) or 8(1)(b) applied.

DISCRETION

17. There are several factors that would have weighed in favour of Mr Medaing.

1. This was a genuine application by a person who claims on reasonable grounds to be a customary landowner in the Basamuk area. I am not impressed by the argument that he should be regarded merely as a 'disputing claimant' to customary land.
   
2. I am satisfied that Mr Medaing has a genuine interest in the subject matter of the proceedings and has displayed a genuine concern – shared by many other people in the Basamuk area – for the environmental impact of the deep-sea tailings placement system. He does not clearly lack locus standi to prosecute the cause of action and seek the relief that form the subject matter of the proceedings. His interests and the questions of law and fact he wants to agitate are very similar to those of the plaintiffs (Umapi Luna Pakomeyu v James Siai Wamo (2004) N2718).
   
3. Allowing Mr Medaing to be added now would reduce the risk of similar proceedings being commenced by him or some other person in the future (AGC (Pacific) Ltd v Sir Albert Kipalan & Ors (2000) N1944).
   
4. I am not satisfied that Mr Medaing was an unreliable witness. He was cross-examined at length by the defendants' counsel and his integrity as an applicant and a witness was left untrammelled.
   
5. Mr Medaing gave an adequate explanation for his application not being made until first, on 13 September, when it was made by the plaintiffs, and then, on 21 September, when he filed the application in his own name. There was no undue delay in making the application.
   

18. Against those factors, however, are some weighty considerations.

1. None of the parties supports the application; and, most significantly, the plaintiffs don't support it – they actively oppose it. The attitude of existing parties to the joinder of new parties is critical, as is the risk of prejudice to existing parties (Tozer v The State [1978] PNGLR 150, Rickard Constructions v Moretti [2004] NSWSC 1041).
   
2. The plaintiffs' wish and intention is to discontinue the proceedings entirely. They are the ones who commenced the proceedings and their wish and intention as to the future course of the proceedings should be given priority over the wish and intention of a person who wants to join the proceedings.
   
3. Granting the application would amount to a reconstruction or resurrection of a case that the parties wish to bury; and such a scenario should be avoided (Knight v McCann-Erickson Supreme Court of NSW, No 1050 of 1991, 26.08.91).
   
4. Mr Medaing has brought the application in a representative capacity: on his own behalf and on behalf of two families of two clans. He has not, however, complied with the procedural requirements for commencement of proceedings in a representative capacity, recently summarised by the Supreme Court in Tigam Malewo v Keith Faulkner (2009) SC960:
   
   • 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.
     

I do not accept Mrs Nonggorr's submission that these requirements are restricted to proceedings in which the primary relief sought is other than damages. They apply to all proceedings in which a plaintiff wishes to prosecute a matter in a representative capacity. The failure to comply with them is not by itself fatal to Mr Medaing's application. It is, however, a factor that works strongly against the exercise of the discretion in his favour.

5 Finally the court must consider all the circumstances of this case and the need to bring certainty into the future of the Ramu Nickel Project. The court granted an interim injunction at the start of these proceedings, the effect of which has been to introduce an element of uncertainty into the future of the project. The decision to grant the interim injunction was made for good reasons, as demonstrated by the decision of the Supreme Court in Ramu Nico (MCC) Ltd v Tarsie SCA 40/2010, 16.07.10. However, at all stages of the proceedings I have emphasised that the court was aware of the impact of its decisions and the court's desire and the need to have the trial expedited. If Mr Medaing were at this late stage to be joined as a plaintiff there would inevitably be a further delay. There would be further uncertainty as to the future of the project. That would not be in the public interest. Nor would it advance the interests of justice. The people who commenced these proceedings have settled their dispute with the defendants. If Mr Medaing wants to commence fresh proceedings he is at liberty to do so.

19. I would have concluded that the second group of factors outweighed the earlier group. I would have exercised my discretion by refusing the application.

CONCLUSION

20. Neither of the prerequisites in Order 5, Rule 8(1) is satisfied, so the application must be refused. If either of them had been satisfied the court would still have decided as a matter of discretion to refuse the application.

ORDER

(1) The application by the applicant filed on 22 September 2010 to be added and/or substituted as a plaintiff, is refused.

(2) The question of costs is reserved.

(3) Time for entry of this order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Ruling accordingly.
____________________________

Nonggorr William Lawyers: Lawyers for the Applicant
Stevens Lawyers: Lawyers for the Plaintiffs
Posman Kua Aisi Lawyers: Lawyers for the First Defendant
Allens Arthur Robinson Lawyers: Lawyers for the Second Defendant
Solicitor General: Lawyer for the Third, Fourth and Fifth Defendants