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Exxonmobil PNG Ltd v Au [2019] PGNC 483; N8758 (14 May 2019)

N8758

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 886 OF 2018

BETWEEN:
EXXONMOBIL PNG LIMITED
Plaintiff

AND:
STEVEN AU
First Defendant

AND:
DAVID HAYABE
Second Defendant

Waigani: Hartshorn J
2019: 8^th March, 14^th May

INJUNCTIONS – trial - plaintiff seeks orders to permanently restrain the defendants and their associates and tribesmen from entering within 100 metres of the fenced area for Well Pads A and B at Petroleum Development License 8 (PDL 8), Angore, and entering within 100 metres upon any work site of Exxonmobil or its contractors at PDL 8 Angore, causing or setting up blockades, intimidating and harming Exxonmobil’s employees and its contractors and their respective employees – principles of grant of injunction discussed – circumstances require the grant of a permanent injunction – injunction granted to the Plaintiffs – defendants and their tribesmen permanently restrained from entering the plaintiffs operational sites

Cases Cited:

Ume More v. UPNG [1985] PNGLR 401
Michael v. Marus (2008) N3374
Sam Samoua v. Aces Ventura Ltd (2013) N5325
Finance Corporation Ltd v. The State (2014) N5682

Counsel:

Mr. M. Tumul, for the Plaintiff

Oral decision delivered on
14^th May 2019

1. HARTSHORN J: This is a decision on the relief that is sought in the originating summons of the plaintiff filed 30^th November 2018. In the originating summons, the plaintiff Exxonmobil PNG Limited seeks damages and a permanent injunction restraining the defendants, Steven Au and David Hayabe and amongst others their tribesman, from amongst others, entering within 100 metres of the fenced area for Well Pads A and B at Petroleum Development License 8 (PDL 8), Angore, and entering within 100 metres upon any work site of Exxonmobil or its contractors at PDL 8 Angore, causing or setting up blockades, intimidating and harming Exxonmobil’s employees and its contractors and their respective employees.

2. I allowed the hearing of the originating summons to proceed in the absence of the defendants or their lawyers as I was satisfied that the defendants had been served properly by substituted service as ordered by this court with all court documentation and had been notified of the substantive hearing date and time. I note also that the defendants have not filed a notice of intention to defend or any other documentation in this proceeding.

Background

3. The background as claimed and submitted by Exxonmobil is that it is the operator of the PNG LNG Project. This Project is an integrated development for the commercialisation of gas in the Hela, Southern Highlands and Western Provinces of Papua New Guinea, from the Hides, Angore and Juha gas fields. The PNG LNG Project is the biggest and presently most important project in the history of Papua New Guinea and thus a project of national importance.

4. Gas from the said gas fields and other areas is transported by pipeline to the Hides Gas Conditioning Plant, where it is treated before being sent by a 700km pipeline to the LNG plant near Port Moresby. There it is converted into liquid form, ready for shipping.

5. The events which give rise to these proceedings occurred within the area covered by PDL8 which relates to what is known as the Angore Gas Field. There are over 300 clans of people in this area.

6. There are two well pads situated within PDL8, namely Well Pad A (WPA) and Well Pad B (WPB).

7. The areas of WPA and WPB are fenced and various Exxonmobil equipment and buildings are located within each of the fenced areas including employee accommodation and offices. From time to time various drilling activities are carried out at these Well Pads.

Security incidents

8. The affidavit evidence filed on behalf of Exxonmobil, unchallenged and un-rebutted shows that since November 2017 to and including November 2018 there have been at least six significant security incidents at PDL8 and these have become more frequent and serious.

9. The defendants are locals from the Angore area of Hela Province and they participated in at least three of the incidents on 25^th May, 21^st June and 10^th October 2018.

10. The evidence shows that the defendants have unlawfully destroyed Exxonmobil’s property and have intimidated its employees and contractors by the threat of physical violence and the use of firearms. This has resulted in Exxonmobil ceasing its operations at WPA and WPB and work on the construction of the tie in pipeline at PDL8, which Exxonmobil is lawfully authorised to undertake.

ExxonMobil submissions

11. Exxon Mobil submits that it is entitled to damages for the loss suffered as a result of the unlawful activities of the defendants but as the defendants are local landowners with no apparent financial ability to pay damages, the awarding of damages to Exxonmobil would serve no useful purpose.

12. These unlawful activities are being undertaken to exert pressure upon the Government by the defendants to meet the landowners demands for payment of moneys to which they claim to be entitled.

13. As a result of the unlawful activities, Exxonmobil completely ceased work in PDL8 on the 27^th November 2018. Exxonmobil submits that it has already suffered substantial loss and will suffer further substantial loss if the defendants unlawful conduct continues or is repeated.

14. Exxonmobil seeks to permanently restrain the defendants from repeating their actions.

15. Exxonmobil submits that the National Court has power to grant permanent injunction orders according to the principles of equity. The power of the Court to grant such orders involves a wide discretion, but must be exercised judicially.

16. Exxonmobil cites amongst others the cases of Ume More v. UPNG [1985] PNGLR 401 and my decision of Finance Corporation Ltd v. The State (2014) N5682, in regard to the ordering of a permanent perpetual injunction.

Consideration

17. Exxonmobil has rights conferred by its petroleum development licence pursuant to s. 59 Oil and Gas Act 1998. This includes the right to carry on such operations and undertake such works that are necessary to explore, extract and sell or dispose of petroleum, including the construction and operation of flow lines, gathering lines and water lines.

18. Section 59 Oil & Gas Act is supplemented by s.110 of that Act. Section 110 specifies activities which are permitted in order to exercise the rights conferred by s. 59 of the Act. Section 110 grants to Exxonmobil the right to enter and occupy any land within the licence area.

19. In addition to the rights granted by ss. 59 and 110 of the Act, PDL8 grants Exxonmobil certain rights in order to fulfill its obligations under the licence, including the right to construct Well Pads, use roads and carry on its business operations in the PDL8 area.

20. In any event, irrespective of the above, the defendants have no right to damage and destroy the property of Exxonmobil and to intimidate its employees and contractors or to prevent Exxonmobil from using public roads and conducting its operations in PDL8.

21. Exxonmobil’s causes of action are the torts of trespass of property and trespass of the person being the unlawful damage and destruction of its property and the unlawful intimidation of its employees and its contractors by the threat of physical violence, with the intent of disrupting or causing them to cease work.

22. I am satisfied on the unchallenged and unrebutted evidence that the elements of the tort of trespass of property as set out in Sam Samoua v. Aces Ventura Ltd (2013) N5325 have been made out in regard to the actions of the defendants. In addition, the elements of the tort of trespass of a person as set out in Michael v. Marus (2008) N3374 have also been made out in regard to the actions of the defendants. Both of these cases were relied upon on behalf of Exxonmobil.

23. Further, I am cognisant of the power of this court to grant an injunction for tortuous injury as cited by Exxonmobil in Halsbury’s Laws of England 5^th Edition (2010) Vo 94 [475] where it is relevantly stated:

“There is a discretion... to grant injunctions compelling persons to do or restraining them from doing acts where otherwise the claimant will suffer, or continue to suffer, wrongful injury for which an award of damages will not adequately compensate him. A restrictive (or prohibitory) injunction may be perpetual or of an interim character and may be granted where injury has already been caused and will otherwise continue, or where it has not yet been caused but is imminently threatened. The court has jurisdiction to award damages either in addition to or in substitution for an injunction and even where the injury is only threatened.”

24. I am satisfied, as submitted by Exxonmobil, that the defendants have no lawful authority or justification for damaging Exxonmobil’s property or intimidating its employees and those of Exxonmobil’s contractors, by threats of physical violence. In addition to the civil consequences, the defendants actions contravene the criminal law and cannot be justified.

25. Furthermore, I concur with the submissions of Exxonmobil that the evidence evinces the conclusion that the defendants are persons who either instigate or encourage others to participate in such incidents and if the defendants are not restrained by this court, they will continue to repeat their wrongful acts and will encourage others to engage in such wrongful acts.

26. A further consideration in whether to grant a permanent injunction is whether damages are a sufficient remedy. In Snell’s Equity by P Baker and P J Langan, 29^th Ed, London Sweet & Maxwell, pp 647 and 648, it is stated:

“The very first principle of injunction law is that prima facie you do not obtain injunctions to restrain actional wrongs for which damages are the proper remedy. No injunction will be granted where an illegal act has been done in the past but there is no intention of repeating it, or no scope for repeating it, or where the injury can be adequately compensated by money. but an injunction may be granted if an award for damages would be useless, e.g. because the defendant is a pauper.”

27. Exxonmobil has already suffered damages in excess of millions of Kina from the destruction of its property at WPA and WPB and the deferral of work in PDL8, will have a further significant flow-on adverse financial impact. It is not practical for Exxonmobil to be compensated in damages and it is unlikely that the defendants, who are local landowners, would have the financial ability to do so.

28. There mere awarding of damages would not be an adequate remedy.

29. The defendants will not suffer any damage as a consequence of the injunction being issued. Exxonmobil has provided an undertaking as to damages in any event.

30. I agree with the submission of Exxonmobil that in the context of this case, the overall interests of justice favour the grant of a permanent injunction given that on the evidence before the court, it will suffer serious damage if the order it seeks is not granted.

31. The defendants have violated Exxonmobil rights and continue to be a threat. Given the difficulty with effecting personal service upon them, it may be inferred that the defendants are deliberately avoiding service of court documents. Looked at objectively, this may be taken to mean that the defendants still present a threat and have a hostile attitude towards Exxonmobil and its operations in PDL8.

32. I am satisfied that Exxonmobil has properly made out to the requisite standard, that it is entitled to the relief that it seeks in its originating summons.

Orders

33. The Court orders that:

a) The relief sought in paragraphs 1 (a) – 1 (d), 2 and 3 of the originating summons is granted;

b) Time is abridged.
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Allens: Lawyers for the Plaintiff