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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO 1192 OF 2010
LOUIS MEDAING
ON HIS OWN BEHALF AND ON BEHALF OF
THE MEDAING FAMILIES OF THE TONG CLAN
BEING NUJAR MASA, SEBMAM MANINA, ILOGO MEDAING,
GAMAO MEDAING, JOSALE MEDAING, HELMISH MEDAING,
JUNIS MEDAING, RACHEL MEDAING, CONSTIN SEBMAM,
KOGO MASA, BARAGEN MASA, LOUIS MEDAING (JUNIOR), SEMMY SOWO,
JOYCE MEDAING, MATHILDA IHAGA, BUDA DAMISE, HENRY JACOB
AND CHARLES BAGUGA
AND THE SAWANG FAMILIES THAT MAKE UP
THE ONGEG CLAN
BEING BAGUGA SAWANG, IDDU SAWANG, GIMAL BAGUGA,
GEORGE BAGUGA, WEBA SAWANG, KUMBONGA BARUK, JIMMY WILLY,
JUNIOR BARUK, MANGAN IDDU, GIGIBE WEBA, JAMES
WILLY, SADU MURUNGAI, PETER ANITANGO, BARUK ANITANGO,
JOHANES ANITANGO, NINGE WILLIAM, MONIKA WILLIAM, JANE GUMONG,
SAMUEL M MADE AND BOU JAKOBUS
Plaintiff
V
RAMU NICO MANAGEMENT (MCC) LIMITED
First Defendant
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
DR WARI IAMO IN HIS CAPACITY AS
DIRECTOR OF ENVIRONMENT
Third Defendant
Madang: Cannings J
2010: 12, 15 November
PRACTICE AND PROCEDURE – application by plaintiff to add plaintiffs – National Court Rules, Order 5, Rule 8.
The plaintiff applied under Order 5, Rule 8(1) of the National Court Rules for an order that 10 persons be added as plaintiffs. The application was opposed by the first defendant both on grounds that were specific to individual applicants and on general grounds. Specifically, the first defendant argued that, as to applicant (c), he wants to be joined in a representative as well as individual capacity but the rules for bringing representative actions have not been complied with, and, as to applicant (j) he has not given his consent to be added as a plaintiff, contrary to Order 5, Rule 8(2). Generally, the first defendant argued that none of the applicants had a sufficient interest in the proceedings as they were not customary owners of the land or sea that was the subject matter of the proceedings and, some of them were from places in the province far away from the relevant land and sea area.
Held:
(1) The specific grounds of objection were upheld. The application on behalf of applicant (c) was refused, to the extent that he proposed to be added in a representative capacity, as the rules for bringing representative actions have not been complied with. The application on behalf of applicant (j) was entirely refused as there was insufficient evidence of his consent.
(2) The general grounds of objection were dismissed as each of the applicants amply demonstrated that they are from coastal areas of the province and appear to have a genuine concern for the environmental effects of the deep-sea tailings placement system. Therefore they have a sufficient interest in the proceedings.
(3) Each applicant was considered to be 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” in that:
- he could have been properly joined as a plaintiff upon commencement of the proceedings;
- he would be capable of commencing fresh proceedings, prosecuting the same cause of action, in the event that the present proceedings are discontinued;
- he shares common interests with the existing plaintiff; and
- his addition as a plaintiff now avoids the prospects of a multiplicity of proceedings regarding the same cause of action.
(4) It was appropriate as a matter of discretion to uphold the application for addition of nine of the ten applicants, as individual plaintiffs.
Cases cited
The following cases are cited in the judgment:
AGC (Pacific) Ltd v Sir Albert Kipalan & Ors (2000) N1944
Donigi v The State [1991] PNGLR 376
Konze Kara v Public Curator of PNG (2010) N4048
PNG International Hotels Pty Ltd & Anor v The Registrar of Land Titles and Ors (2007) N2307
Rickard Constructions Pty Ltd v Moretti [2004] NSWSC 1041
Tarsie v Ramu Nico (MCC) Ltd (2010) N4141
Tigam Malewo v Keith Faulkner (2009) SC960
Umapi Luna Pakomeyu v James Siai Wamo (2004) N2718
Counsel
T Nonggorr, for the plaintiff
I Molloy & G Gileng, for the first defendant
D Steven & T Tanuvasa, for second and third defendants
15 November, 2010
1. CANNINGS J: This is a ruling on an application by the plaintiff, Louis Medaing, for an order that 10 persons be added to the proceedings as plaintiffs. The application is made under Order 5, Rule 8(1) of the National Court Rules.
2. On 24 September 2010 the plaintiff commenced proceedings, in which he is seeking a permanent injunction to restrain the first defendant, the developer of the Ramu Nickel Project, Ramu Nico Management (MCC) Ltd (“MCC”), from committing the nuisance which he claims would be constituted by disposing of mine tailings in the sea through the deep-sea tailings placement system (DSTP). He also seeks declarations that he and his family members must in future be consulted and informed on any matter concerning tailings disposal from the mine; that the DSTP is not a permitted activity under the Environment Act 2000; and that operation of the DSTP is in breach of that Act and is unlawful.
3. He filed the application which is now being ruled on – to add 10 plaintiffs – on 20 October 2010. The notice of motion actually proposed the addition of 11 plaintiffs, but the application in respect of the 11th person, Hon Belden Namah MP, has not been pursued.
4. The application is opposed by the first defendant both on grounds that are specific to individual applicants and general grounds. The second and third defendants neither support nor oppose the application.
THE APPLICANTS
5. It is convenient to refer to the ten proposed plaintiffs as ‘applicants’, even though, strictly speaking, the existing plaintiff, Louis Medaing, is the applicant. The ten applicants each say they are from various parts of Madang Province. They have each sworn an affidavit expressing the nature of their concern about the subject matter of the proceedings, in particular the environmental effects of the deep-sea tailings placement system. The applicants, and the places they say they are from, are:
(a) Terry Kunning, Mindere village, Basamuk area, Rai Coast District;
(b) Martin D Yagau, Songum village, Basamuk area, Rai Coast District – Ward 3 Councillor, Astrolabe Bay Local-level Government;
(c) Paul Kamang, on behalf of the Madang Landowners Association and the Maulong Tribe Land Group Incorporated, Morerang No 2 village, Yabob, Madang District;
(d) Bill Koi, Kranget Island, Madang District – Ward 1 Councillor, Ambenob Local-level Government;
(e) Tamlong Tab, Siar Village, Madang District;
(f) Kamanang Namur, Bilbil village, Madang District;
(g) Simon Sil, Riwo village, Madang District – Ward 6 Councillor, Ambenob Local-level Government;
(h) James Sungai, Kananam village, Bagabag Island, Sumkar District;
(i) Casper Angua, Ambana village, Bogia District; and
(j) Mark Avango, Dangale village, Manam Island, Bogia District.
ORDER 5, RULE 8(1): ADDITION OF PARTIES
6. 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.
7. Order 5, Rule 8(2) is also relevant. It states:
A person shall not be added as plaintiff without his consent.
8. As I pointed out in Tarsie v Ramu Nico (MCC) Ltd (2010) N4141, 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”.
9. If (a) or (b) is satisfied, and provided the applicant consents (for the purposes of Rule 8(2)) to being added as a plaintiff, 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, or the applicant does not consent, the court has no power under Order 8(1) to order his addition as a plaintiff.
OUGHT THE APPLICANTS HAVE BEEN JOINED AS A PLAINTIFF?
10. It cannot properly be said that any of the applicants ought to have been joined as, although they each appear to have a similar interest in the subject matter of the proceedings to that of the plaintiff, their inclusion as plaintiffs was not necessary for commencement of the proceedings.
Rule 8(1)(a) is therefore not satisfied.
THE QUESTION OF CONSENT
11. I will now deal with the requirements of Rule 8(2), as the first defendant specifically objects to the joinder of applicant (j), Mark Avango, on the ground that he has not consented to being added as a plaintiff. I uphold this objection as, although this applicant has sworn an affidavit expressing interest in the proceedings, it pre-dates the plaintiff’s notice of motion by which the application for addition of all plaintiffs is being made, and it is not stated clearly that he wishes to join the proceedings.
The application of Mark Avango will therefore be refused.
REQUIREMENTS FOR REPRESENTATIVE ACTIONS
12. The other specific ground of objection raised by the first defendant relates to applicant (c) Paul Kamang. He wants to be added as a plaintiff on his own behalf and on behalf of the Madang Landowners Association and the Maulong Tribe Land Group Incorporated, Morerang No 2 village, Yabob, Madang District. He says that he is president of the Madang Landowners Association and Chairman of Maulong Incorporated Land Group, that he represents more than 10,000 people who are customary landowners of land, reefs and seas in the Madang Lagoon area, which forms part of Astrolabe Bay and the Bismarck Sea. He says that the people of the Madang Lagoon area are worried that sea currents will bring the mine waste in their direction from Basamuk.
13. The specific objection is that Mr Kamang wants to be joined in a representative as well as individual capacity but that the requirements for bringing representative actions have not been complied with. Those requirements were recently summarised by the Supreme Court in Tigam Malewo v Keith Faulkner (2009) SC960:
14.I agree with Mr Molloy, for the first defendant, that these requirements have not been met. Mr Kamang’s application, to the extent that he seeks to join in a representative capacity, must therefore be refused. His application, to the extent to which it is made in his individual capacity, remains to be considered on its merits.
ARE THE APPLICANTS PERSONS WHOSE JOINDER IS NECESSARY?
15. The precise question now to ask, for the purposes of Rule 8(1)(b), is whether any of the applicants (a) to (i) 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.
16. The first defendant argues no. Mr Molloy emphasised that, of this group of nine, only two – applicants (a) and (b), Terry Kunning and Martin D Yagau – can conceivably be regarded as being customary landowners from the Basamuk area. Even then, it is not clear that they are genuine customary landowners whose interests stand to be affected by operation of the DSTP. As to the other seven, they are from different parts of Madang Province. There is insufficient evidence before the court on which it could be determined that their fears and concerns about environmental damage being caused by the DSTP are well founded. None of them has shown that he has any expertise to form an opinion about the prospect of sea currents bringing mine tailings anywhere near the seawaters in which he claims to have an interest. Mr Molloy, relying on the decision of the Supreme Court of New South Wales in Rickard Constructions Pty Ltd v Moretti [2004] NSWSC 1041, submitted that none of the applicants has shown that any of his legal rights would be directly affected by an order which might be made in the proceedings; that being the relevant test to apply. The joinder of none of them is necessary.
17. In my view, however, in the circumstances of Papua New Guinea and particularly in a case where customary landowners are concerned about the effect on their land and seawaters of a mining project, the test contended for by the first defendant, is too strict. The test – or at least one of the criteria the court should consider in determining whether the joinder of a person is necessary, is whether the applicant has a sufficient interest in the subject matter of the proceedings (Donigi v The State [1991] PNGLR 376). A sufficient interest is shown, at least in proceedings of the sort commenced by the plaintiff, where the applicant is able to show that he has common interests to those of the existing plaintiff and has a genuine and well-founded concern for the subject matter of the proceedings and is not a mere busybody or a potentially vexatious litigant. Each of the applicants (a) to (i) has satisfied these criteria. They do not have to be scientific experts to say that they have a genuine concern for the environmental impact of the DSTP. I am satisfied that they each have a sufficient interest in the case.
18. The question of whether joinder of a person is ‘necessary’ has been addressed in a number of previous cases, eg AGC (Pacific) Ltd v Sir Albert Kipalan & Ors (2000) N1944, Sakora J; Umapi Luna Pakomeyu v James Siai Wamo (2004) N2718, Kandakasi J; PNG International Hotels Pty Ltd & Anor v The Registrar of Land Titles and Ors (2007) N2307, Davani J; Konze Kara v Public Curator of PNG (2010) N4048, Hartshorn J. Having regard to the considerations highlighted in those cases, I consider that the following factors support the conclusion that the joinder of the applicants is necessary:
19. I conclude that each of the applicants (a) to (i) 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”.
DISCRETION
20. I see no good reason to exclude the applicants from the proceedings. I will exercise the discretion in Order 5, Rule 8(1) in favour of allowing the applicants to join as plaintiffs. As to costs, as the plaintiff’s application has not entirely succeeded, it is appropriate to allow the parties to bear their own costs.
ORDER
(1) The following persons shall be added as plaintiffs and described accordingly:
- (a) Terry Kunning, second plaintiff;
- (b) Martin D Yagau, third plaintiff;
- (c) Paul Kamang, fourth plaintiff;
- (d) Bill Koi, fifth plaintiff;
- (e) Tamlong Tab, sixth plaintiff;
- (f) Kamanang Namur, seventh plaintiff;
- (g) Simon Sil, eighth plaintiff;
- (h) James Sungai, ninth plaintiff;
- (i) Casper Angua, tenth plaintiff.
(2) The application to join the following persons is refused:
- (a) Paul Kamang on behalf of the Madang Landowners Association and the Maulong Tribe Land Group Incorporated; and
- (b) Mark Avango.
(3) The parties shall bear their own costs.
(4) 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 Plaintiff
Posman Kua Aisi Lawyers: Lawyers for the First Defendant
Stevens Lawyers: Lawyers for the Second & Third Defendants
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URL: http://www.paclii.org/pg/cases/PGNC/2010/175.html