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Kemben v Nan Jiang (PNG) Holdings Ltd [2018] PGNC 43; N7113 (11 January 2018)

N7113

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1270 of 2013

BETWEEN:
REX NEAPUKALI KEMBEN
for himself and on behalf of YOMBON
PATRICK, WIN TANGUPAE, and
SANDALU KEMBAIO, Principal Land
Owners of Mining Lease # ML153
Plaintiffs

AND:
NAN JIANG (PNG) HOLDINGS
LIMITED
Defendant

Waigani: Hartshorn J.
2018: 11^th January

Application for enforcement pursuant to Rule 12 ADR Rules

Counsel:

Mr. T. Tape, for the Plaintiffs

11^th January, 2018

1. HARTSHORN, J. This is a decision on an application to enforce a mediation.
   
2. I allowed the application to be made in the absence of representation of the defendant as I was satisfied that the defendant had satisfactorily been notified of the hearing date and time of the application. This is by virtue of the affidavit of service of Rex Neapukali. The defendant was notified by letter posted to the defendant’s postal address as disclosed in the Companies Office company extract for the defendant, and by advertisement in the Post Courier newspaper.
   

Background

3. It is pleaded that the plaintiffs are customary landowners of an area the subject of an alluvial mining lease in Kombiam, Enga Province. They allege that environmental damage has been caused by the activities of the defendant company and amongst others damages are sought. Summary judgment was entered against the defendant on 5^th March 2014 with damages to be assessed.
   

This application

4. In their notice of motion filed 11^th December 2014 (notice of motion) the plaintiffs seek enforcement of the mediation agreement dated 6^th September 2014 (mediation agreement), that existing restraining orders be continued, costs, and that time be abridged. The plaintiffs do not seek the relief contained in paragraph 3 of the notice of motion.
   
5. Application is made pursuant to Rule 12 ADR Rules which is as follows:
   

“12. Enforcement.

(1) Where in the course of a mediation, the parties agree on a resolution of all or part of the proceedings, the agreement shall be written down and signed by or for each party.

(2) Any party to a mediation conducted by a mediator may apply to the Court for an order giving effect to an agreement reached during the mediation by:

(a) notice of motion if the proceedings are current; or

(b) Originating Summons if the proceedings have been concluded.

(3) Subject to sub rule (2) an agreement reached during the mediation shall have the same force and effect, and may be enforced in the same manner, as if it were an agreement reached otherwise than during a mediation.”

6. The plaintiffs seek an order that the mediation agreement being enforced “whereby:
   

a) Pursuant to items 4 and 13 of the Mediation Agreement, Rex N. Kemben’s Gravel Royalty and Campsite Rental in the sum of K772,000.00 be paid by the Defendant.

b) Pursuant to item 5 of the Mediation Agreement, Mr. Tape’s legal costs of K 77,230.00 be paid by the Defendant.

c) Pursuant to item 10 of the Mediation Agreement, the Environmental Damage assessment filed and served in terms of two valuation reports in the sum of K 7,056,857.00 be paid by the Defendant.

d) Pursuant to item 7 of the Mediation Agreement, the Defendant to pay K 445,400.00 to Kwoekam Development Corporation Limited based on submission of outstanding costs submitted to the Defendant’s Lawyers.”

7. From a perusal of the mediation agreement, the clauses or items of the mediation agreement referred to in the orders sought do not specifically provide for the orders sought. An example is in regard to the third order sought. The third order sought is to the effect that the Defendant pay K7,056,857.00. Clause 10 of the mediation agreement is as follows:
   

“Any additional environmental damages or claims/issues to be itemised and forward (sic) to the Defendant.”

8. Clause 10 does not provide that the defendant pay the amount sought in the third order.
   
9. I am not satisfied that the wording of Rule 12 ADR Rules permits this court to make an order giving effect to an agreement reached during a mediation, with wording that departs from the wording in the said agreement.
   
10. If an order giving effect to an agreement is breached, then either party may sue on that order, but in my view the wording of Rule 12 ADR Rules does not give this court the jurisdiction to make a substantive order using wording that is not contained in an agreement reached during a mediation.
    
11. Consequently, as all of the orders sought in paragraph 1 of the notice of motion consist of wording that is not specifically contained in the mediation agreement, the relief sought in paragraph 1 of the notice of motion is refused.
    
12. As to the relief contained in paragraph 2 of the notice of motion, it seeks that an order of restraint contained in an order of this court dated 2^nd April 2014 be continued until the terms of the orders sought in the notice of motion are complied with. I have not granted the orders sought in paragraph 1 of the notice of motion. However, on the assumption that the restraining orders presently remain in force, it is not necessary for me to make any further order concerning the restraining orders.
    

Orders

13. The formal Orders of the Court are:
    

a) The relief sought in paragraph 1 of the notice of motion of the plaintiffs filed 11^th December 2014 is refused;

b) No order is made in regard to the relief sought in paragraph 2 of the said notice of motion;

c) The relief sought in paragraph 3 of the said notice of motion was not considered;

d) No order as to costs;

e) Time is abridged.
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Kandawalyn Lawyers : Lawyers for the Plaintiffs