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Malewo v Ok Tedi Mining Ltd [2016] PGNC 540; N8368 (25 April 2016)

N8368

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1298 OF 2014

BETWEEN:
TIGAM MALEWO on her own behalf and on behalf of 870 (Schedule 1) Tama Clan Members; ROBERT DEMUT on his own behalf and on behalf of the 505 (Schedule 2) Amisan Clan Members; HENS GUIBEN on his own behalf and on behalf of the 805 (Schedule 3) Daventem Clan Members; DICK DOMKI on his own behalf and on behalf of the 269 (Schedule 4) Brulla Clan Members; NONG KOREK on his own behalf and on behalf of the 368 (Schedule 5) Genho Clan Members; NORMAN BONBEN on his own behalf and on behalf of the 123 (Schedule 6) Daupka Clan Members; and SILO KONDOMO on his own behalf and on behalf of the 53 (Schedule 7) Daupka Clan Members; all of North Fly District, Western Province
First to Seventh Plaintiffs

AND:
OK TEDI MINING LTD
First Defendant

AND:
HENRY NIGEL PARKER – General Manager Ok Tedi Mining Ltd
Second Defendant

AND:
BHP BILLITON PNG SERVICES LIMITED (In liquidation)
Third Defendant

AND:
PNG SUSTAINABLE DEVELOPMENT LIMITED
Fourth Defendant

AND:
HON JOHN PUNDARI as Minister for Environment & Conservation
Fifth Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Hartshorn J.
2015: 25^th May
2016: 25^th April

PRACTICE AND PROCEDURE- Application to dismiss proceeding- grounds of dismissal among others include not meeting the preconditions for instituting proceedings in a representative capacity -intending plaintiffs have not given their requisite authority - those authorities purportedly given are not legitimate as many of the signatures are the same or are duplicated - lawyers for the plaintiffs do not have and are unable to obtain the requisite authority to bring this proceeding – application to dismiss proceedings upheld - proceedings dismissed - Order 5 Rule 13 and Order 12 Rule 40 (1) (a), (b) and/or (c) National Court Rules

Cases Cited:

Eliakim Laki v. Maurice Alaluku, Secretary Department of Lands [2000] PNGLR 392
Simon Mali v. Independent State of Papua New Guinea [2002] PNGLR 15
Tigam Malewo v. Keith Faulkner (2009) SC960
Louis Medaing v. Ramu Nico Management (MCC) Ltd (2010) N4158
Wilfred Mamkuni v. Ly Cuong-Long and Jant Ltd (2011) N4674
Nae Ltd v. Curtain Bros Papua New Guinea Ltd (2015) N6124

Counsel:

Mr. B. Meten and Mr. C Narokobi, for the Plaintiffs
Mr. K. Imako, for the First and Second Defendants
Mr. M.M. Varitimos QC and Mr. J. Brooks, for the Third Defendant
Mr. M. Mukwesipu, for the Fourth Defendant
Mr. J. Waine, for the Fifth and Sixth Defendants

25^th April, 2016

1. HARTSHORN, J. This is a decision on an application for amongst others, that this proceeding be dismissed. It is made by the third defendant, supported by the other defendants and is opposed by the plaintiffs. The application is made pursuant to Order 5 Rule 13 and Order 12 Rule 40 (1) (a), (b) and/or (c) National Court Rules and the inherent jurisdiction of this Court.

Background

2. The plaintiffs’ purport to be amongst others, members and representatives of various clans that own customary land and have customary entitlement to the use of the waters of the Ok Tedi River. The plaintiffs’ assert alleged pollution of the Ok Tedi River and its floodplains and that this has caused damage to the environment and injury to the persons the plaintiffs’ purport to represent.

Application to dismiss

3. The third defendant contends that the proceeding should be dismissed as:

a) the mandatory preconditions that have to be met to bring a representative proceeding have not been met. As:

i) each and every intending plaintiff has not given instructions, in writing, to their lawyer to act for them; and

ii) the persons in whose name the proceeding is commenced, and who claim to represent the other intending plaintiffs’ have not produced an authority to show that they were authorised by the other intending plaintiffs to file this proceeding as a class representative;

b) the statement of claim is prolix, emotive, ambiguous and confusing;

c) the pleading in the statement of claim offends well established and basic principles of pleading and the specific requirements of the National Court Rules as to pleading;

d) it is an abuse of process.

4. The plaintiffs’ contend that the proceeding should not be dismissed as amongst others:

a) the pleading in the statement of claim does plead reasonable causes of action in nuisance, trespass, negligence, breach of various enactments and violation of customary rights. The pleading is not so deficient that it warrants dismissal.

b) the plaintiffs are entitled to bring this proceeding as Davani J in the previous National Court proceeding at paragraph 60, and the Supreme Court in its conclusion, stated that it is open to the plaintiffs to recommence their action provided it is in a proper form and complies with the National Court Rules;

c) the plaintiffs have now filed authorities to comply with, and have now complied with the requirements to bring a representative proceeding.

Whether representative requirements complied with

5. Order 5 Rule 13 (1) National Court Rules provides for representative actions and is as follows:

“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”.

6. In Simon Mali v. Independent State of Papua New Guinea [2002] PNGLR 15, the Supreme Court stated amongst others, that in all actions or proceedings of a representative nature, all of the intended plaintiffs must be named and duly identified in the originating process and pursuant to Order 5 Rule 8 National Court Rules, each and every intending plaintiff must give specific instructions evidenced in writing to their lawyers to act for them. Tigam Malewo v. Keith Faulkner (2009) SC960 confirmed the representative principles stated in Simon Mali v. State (supra).

7. Further, 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. Other authorities on point include: Eliakim Laki v. Maurice Alaluku, Secretary Department of Lands [2000] PNGLR 392; Louis Medaing v. Ramu Nico Management (MCC) Ltd (2010) N4158 and Wilfred Mamkuni v. Ly Cuong-Long and Jant Ltd (2011) N4674.

8. In this instance, at the end of the statement of claim are pages that are described as Schedules. There are seven of them. They purport to contain the names of the persons that the seven named representative plaintiffs purport to represent. The lists of names in the Schedules do not contain any signatures.

9. At the hearing of this application, I allowed the plaintiffs to file in court the affidavit of Mr. Camillus Narokobi of Narokobi Lawyers. The affidavit was sworn on the day of the hearing of the application. I allowed the affidavit to be filed on the basis that I would determine what weight if any should be given to the evidence contained therein. This was because of the non-compliance with Order 4 Rule 49 (12) (2) National Court Rules and the lack of any opportunity for the defendants to respond to the affidavit. Mr. Narokobi gives evidence in the affidavit of amongst others, the purported plaintiffs’ authorities, that he swears that he believes have satisfied the requirements of Order 5 Rule 13 National Court Rules, by annexing them to his affidavit.

10. The relevant annexure contains seven Schedules similar to those at the end of the statement of claim. Schedule One contains 857 names whereas Schedule one to the statement of claim contains 870 names. There are five signatures. There is no indication on the Schedule one document that the persons named therein are authorising anything. It is merely a list of names.

11. Schedule 2 contains 150 names and signatures whereas Schedule 2 in the statement of claim contains 505 names. At the beginning of the schedule to the document it is stated that “The Leader Signed Expressly Authories (sic)” Robert Demut, to represent the subject Clan, but it does not state specifically what it is that Robert Demut is authorised to do. Further, many of the signatures appear to be the same or are duplicated.

12. Schedule three contains approximately 690 names whereas Schedule three to the statement of claim contains 805 names. There are 208 signatures many of which appear to be the same or are duplicated. At the beginning of Schedule three there is a purported “Authority to Act” clause. That clause does not refer to the third defendant BHP Billiton PNG Services Limited or the fifth defendant, Hon John Pundari. It does refer to BHP (PNG) Ltd and Inmet Ltd which are not defendants in this proceeding. They were defendants in the previous National Court proceeding OS 718 of 2006. Given the incorrect reference to the defendants, this would appear to indicate, as submitted by the third defendant, that this document relates to another proceeding or the previous proceeding and cannot be taken as authorities to act for this proceeding.

13. Schedule four contains 221 names and signatures, whereas schedule four of the statement of claim contains 269 names. Apart from three signatures, all of the signatures are identical. It is merely a list and there is no indication that the persons in the list authorised anything.

14. Schedule five contains 368 names and signatures. Schedule 5 of the statement of claim contains 368 names. Apart from four of the signatures all of the signatures are identical. It is merely a list and there is no indication that the persons in the list authorised anything. It is dated September 2007.

15. Schedule six has 203 names whereas schedule 6 in the statement of claim only has 123 names. There are 123 purported signatures many of which are the same or duplicated. Schedule six is similar to schedule three in that some defendants are not named and other entities are named - indicative of other proceedings.

16. Schedule seven has 203 names and 53 signatures whereas schedule seven in the statement of claim has only 53 names. Many of the signatures are the same or appear to have been duplicated and there are many crosses instead of signatures. There is no indication as to whether these crosses represent a person who cannot write, or whether that is a person’s mark or whether that name is supposed to be deleted. Schedule seven is similar to schedules three and six in that some defendants are not named and other entities are named - indicative of other proceedings.
Consideration

17. In this instance, it is not the case that each and every intending plaintiff has given specific instructions evidenced in writing to their lawyer to act for them. Those that purportedly have, appear to be referring to other proceedings. Most of the intending plaintiffs do not appear to have authorised anything. Further, those intending plaintiffs who have purportedly authorised a person to represent them have not authorised that person to issue this proceeding.

18. Given the above discrepancies and that:

a) the representative requirements are mandatory;

b) this is the second attempt by the same lawyers to file proceedings for the same intending plaintiffs’ after the first proceeding was dismissed, such dismissal being confirmed by the Supreme Court;

c) the lawyers for the plaintiffs should be well aware of the representative requirements given the prior National Court proceeding and the subsequent Supreme Court proceeding;

d) the lawyers for the plaintiffs have had at least five years to obtain the correct instructions and authorities;

this court is entitled to form the view that the intending plaintiffs have not given their requisite authority, that those authorities purportedly given are not legitimate, as many of the signatures are the same or are duplicated, and that the lawyers for the plaintiffs do not have and are unable to obtain the requisite authority to bring this proceeding. In such circumstances, purportedly issuing a proceeding with authority when no proper authority is given is in my view manifestly unfair to the defendants and an abuse of process. I refer in this regard to my decision of Nae Ltd v. Curtain Bros Papua New Guinea Ltd (2015) N6124. Such a proceeding should never be instituted as it brings the administration of justice into disrepute. I concur with the submission of the third defendant that the abuse here, is compounded, as this is the second time such a proceeding has been improperly and incompetently instituted by each of the plaintiffs by the same lawyers.

19. Further, the court has an overriding discretion to prevent representative proceedings, otherwise properly commenced from proceeding. This is provided for in Order 5 Rule 13 National Court Rules. This was recognised by Davani J in the previous National Court proceeding and confirmed by the Supreme Court at para 63 Malewo v. Faulkner (supra). Given the factors stated in the above paragraph, I am satisfied that in this instance the court should exercise its discretion to prevent this proceeding from continuing further.

20. Consequently this proceeding should be dismissed. Given this, it is not necessary to consider the other submissions of counsel. As I am satisfied that Narokobi Lawyers do not have the proper authority to bring this proceeding they also should be liable for the costs of the defendants.

Orders

21. It is ordered that:

a) This proceeding is dismissed;

b) The costs of the defendants’ of and incidental to this proceeding shall be paid by the seven named representative plaintiffs and Narokobi Lawyers;

c) Time is abridged.
_____________________________________________________________
Narokobi Lawyers: Lawyers for the Plaintiffs
Allens Lawyers: Lawyers for the First and Second Defendants
Ashurst Lawyers: Lawyers for the Third Defendants
Gadens Lawyers: Lawyers for the Fourth Defendant
Office of the Solicitor General: Lawyers for the Fifth and Sixth Defendants