N3986

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

POMMERN INCORPORATED LAND GROUP NO 12591
Fourth Plaintiff

SAMA MELAMBO FOR HIMSELF AND AS CHAIRMAN OF
POMMERN INCORPORATED LAND GROUP NO 12591
Fifth 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

Kimbe: Cannings J
2010: 2 April

INJUNCTIONS – orders in nature of interim injunctions – motion seeking clarification of effect of previous order.

A defendant company restrained from doing certain things by an order in the nature of an interim injunction granted by the National Court sought, by motion, a declaration that an activity it proposed to undertake would not contravene the interim injunction. The motion was opposed by the plaintiffs.

Held:

(1)	It is appropriate for a party affected by a court order to come back to the court seeking clarification of the order before engaging in conduct or undertaking an activity that may be perceived as a breach of the order.

(2)	Here, the activity proposed to be undertaken by the first defendant was not such that it is reasonably likely to amount to a breach of the court order; and it was appropriate to make a declaration to that effect, such a declaration being a clarification, not a variation of the existing order.

Cases cited

The following cases are cited in the judgment:

Newsat Ltd v Telikom PNG Ltd (2008) N3673
Ome Ome Forests Ltd v Ray Cheong (2002) N2289

Counsel

R William, for the plaintiffs
G Gileng, for the first defendant
L Kandi & R Gwaibo, for the second, third, fourth & fifth defendants

2 April, 2010

1. CANNINGS J: This is a ruling on a motion seeking clarification of a previous court order. That order, which I made in Madang on 19 March 2010, arose out of the following events.

2. The first defendant, Ramu Nico Management (MCC) Ltd – ("MCC") is the developer of the Ramu Nickel Project in Madang Province. The plaintiffs say that they represent customary landowners who are concerned about the proposed method of tailings disposal from the project, known as a deep sea tailings placement system. MCC plans to lay a 1 kilometre offshore pipeline on the sea bed, and pump mine wastes out to sea.

3. On 4 March 2010 the plaintiffs commenced proceedings in the National Court at Madang, by a writ of summons and statement of claim, in which they are seeking permanent injunctions to restrain MCC from committing various alleged nuisances arising from its mining activities.

4. On 12 March 2010 they applied, by motion, for a number of orders, including interim injunctions, in relation to the proceedings. The motion was opposed by MCC and other defendants, the Mineral Resources Authority, the Director of Environment, the Department of Environment and Conservation and the State.

5. On 19 March 2010, I handed down a ruling on the plaintiff's motion, refusing some of the orders that they were seeking but granting an interim injunction in the following terms:

The defendants and their associates, agents and employees and persons for whom they are jointly or severally responsible shall cease all preparatory or construction work on the Ramu Nickel Mine deep sea tailings placement system that involves directly or indirectly damage or disturbance to the offshore environment – including, without limiting the generality of the foregoing, all coral blasting or popping of dead or live coral and laying of pipes – and shall not carry out directly or indirectly any such work, pending determination of the substantive proceedings.

MCC'S POSITION

6. MCC want the effect of the 19 March injunction clarified. They want to start preparatory work on the 1 kilometre pipeline immediately as this will mitigate the losses they say that they are incurring on a daily basis because of the 19 March injunction. They say that the preparatory work will involve no damage or disturbance to the offshore environment; thus they will not breach the court order by undertaking this activity.

7. MCC has applied by a motion filed on 29 March 2010 for an order that the proposed work, referred to in an affidavit by the project manager of the deep sea tailings placement system, Dr George Shou, "does not contravene the interim injunction granted on 19 March 2010".

8. Dr Shou says that the pipeline will consist of 12-metre individual lengths welded together. MCC wants to start fabrication of the pipeline, using a welding machine stationed on shore, 24 metres above the high-water-mark. As the weld is completed concrete ballast will be attached to the pipe on shore at about 6 metres above the high-water-mark. When a weld is completed the pipe will be lifted by crane to clear the ground and a boat will pull the pipe out to sea. The pipe including the ballast will then float. Dr Shou says that the pipes and ballast will be clearly visible during the day. Flashing lights will be attached to warn boats in darkness.

9. As to the composition of the pipes and ballast, Dr Shou deposes:

The pipe is made of plastic. The ballast is constructed of concrete. They have no toxicity. Neither individually nor in combination will the pipe and ballast cause any damage or disturbance to the offshore environment. Their presence floating on the water will have no greater impact on the offshore environment than any other object floating on the surface of the sea.

10. Dr Shou says that what MCC is proposing does not involve laying the pipeline, only its fabrication.

OTHER DEFENDANTS' POSITION

11. Mr Kandi and Ms Gwaibo, representing all defendants other than MCC, indicated that the other defendants – all State agencies or the State itself – generally support MCC's position.

THE PLAINTIFFS' POSITION

12. The plaintiffs oppose the motion. They say there is no good reason for this sort of order to be made. The 19 March injunction is clear and unambiguous and what MCC is doing is inviting the court to do the work of State agencies whose job it is to allow or prohibit the sort of activities it proposes to undertake. Mr William, for the plaintiffs, also argued that the sort of activity proposed to be undertaken is inherently risky. The welding work, though proposed to be carried out onshore, may have a flow-on effect on the offshore environment. The floating of pipes on the sea will inevitably be an environmental hazard. Further, MCC is really seeking a variation of the 19 March injunction in the guise of a clarification and this should not be allowed to happen as MCC has already filed a motion, which has been set down for hearing in Madang on 12 April 2010, asking the court to discharge or vary the injunction.

ISSUES

1	Does the Court have jurisdiction to clarify its own orders?

2	Would the Court be exceeding its jurisdiction by making the order sought?

3	Are there too many risks involved in the proposed activity?

4	Is MCC seeking a variation of the 19 March injunction?

5	Should an order be made?

1 CAN THE COURT MAKE AN ORDER CLARIFYING AN EARLIER ORDER?

13. The National Court has no specific or express power to make the sort of order that MCC is seeking. Mr Gileng, for MCC, refers to the general provisions of Order 12, Rule 1 of the National Court Rules and Section 155(4) of the Constitution. I consider that they are sufficient sources of authority.

14. The court has recognised in previous cases that it is appropriate for a party affected by a court order to come back to the court seeking clarification of the order before engaging in conduct or undertaking an activity that may be perceived as a breach of the order (Ome Ome Forests Ltd v Ray Cheong (2002) N2289, Newsat Ltd v Telikom PNG Ltd (2008) N3673).

15. I consider that MCC is taking a proper approach and acting in good faith by seeking an order clarifying the effect of the 19 March injunction.

2 WOULD THE COURT EXCEED ITS JURISDICTION BY MAKING THE ORDER SOUGHT?

16. Mr William contended that MCC, by asking for this sort of order, appears to be asking the National Court to do the work of State agencies whose job it is to regulate its proposed activities under legislation such as the Mining Act and the Environment Act. He submitted that the Court would be exceeding its jurisdiction by making this sort of order.

17. I reject this argument. The focus of today's hearing has been to ascertain whether, if MCC goes ahead with what is outlined in Dr Shou's affidavit, MCC will be acting in breach of the 19 March injunction. The Court is not immediately concerned, today, with whether the proposed activity has statutory approval. That sort of issue will, I expect, be at the forefront of the court's consideration in the substantive proceedings – i.e. at the trial of the statement of claim. But for today's proceedings, I detect no risk of any excess of jurisdiction on the court's part.

3 ARE THERE TOO MANY RISKS INVOLVED IN THE PROPOSED ACTIVITY?

18. If the affidavit of Dr Shou is accepted at face value, the answer to this question is no. Dr Shou was not asked by the plaintiffs to attend today's proceedings for cross-examination; and I propose to accept what he deposes to at face value. Mr William attempted to rely on an affidavit by an Australian scientist, who apparently has another view as to the environmental risks entailed in Dr Shou's proposal. However, I ruled that the affidavit could not be relied on as the defendants were served with it too late. No competing opinion is therefore before the court.

19. I do not think there are too many risks apparent in what Dr Shou proposes to warrant the conclusion that the proposed activity will amount to a breach of the 19 March injunction.

4 IS MCC SEEKING A VARIATION OF THE 19 MARCH INJUNCTION?

20. No. I reject Mr William's argument on this issue. MCC is not asking me to vary the terms of the 19 March injunction; and I have no intention of doing so. As Mr William pointed out, the question of whether the terms of the 19 March injunction should be varied – and whether the injunction should be dissolved – will be addressed at the hearing in Madang on 12 April next.

5 SHOULD AN ORDER BE MADE?

21. I reiterate that I am satisfied that the motion has been brought by MCC in good faith. No abuse of process is apparent. MCC is doing what the courts have in other cases suggested that parties should do if they are in doubt about the effect of a court order or if they want to remove doubt about whether what they want to do will breach a court order.

22. I am satisfied that the activity proposed to be undertaken by MCC is not such that it is reasonably likely to amount to a breach of the court order. It is therefore appropriate to make a declaration to that effect, such a declaration being a clarification, not a variation of the 19 March injunction. 

23. I will grant an order generally in the terms sought, but, for the avoidance of doubt, remind everyone: if in the course of undertaking the proposed activity MCC does any work that involves directly or indirectly damage or disturbance to the offshore environment, it may expose itself to a charge of contempt of court.

ORDER

(1)	It is declared that the proposed work, entailing fabrication and floating of pipes and related work, referred to in the affidavit of Dr George Shou filed on 1 April 2010, does not contravene the interim injunction granted on 19 March 2010.

(2)	The question of costs is reserved.

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

Ruling accordingly.

__________________________________________________________________
Nonggorr William Lawyers: Lawyers for the Plaintiffs 
Posman Kua Aisi Lawyers: Lawyers for the First Defendant 
Solicitor-General: Lawyer for the Second, Third, Fourth & Fifth Defendants