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Miriori v Rio Tinto Ltd [2025] PGNC 34; N11157 (28 February 2025)

N11157

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS 27 OF 2024 (COMM/IECMS)

MARTIN RONALD MIRIORI for himself and on behalf of the Class Members, including the Private Class Members listed in Schedule C
Plaintiff

V

RIO TINTO LIMITED
First Defendant

BOUGAINVILLE COPPER LIMITED
Second Defendant

WAIGANI: ANIS J
19, 28 FEBRUARY 2025

NOTICE OF MOTION – conditional application seeking leave to file additional affidavits – preliminary issue raised before the application objecting to various affidavits filed by the defendants – considerations – whether defendants’ 3 affidavits that were filed earlier should be permitted in regard to the 2 pending motions for dismissal – if so, whether leave should also be granted to the plaintiff to file his additional affidavits in response– exercise of court’s discretion - ruling

Cases cited

Cascade Apartments Ltd v. Patrick’s Transport Ltd and 1 Or (2024) SC2621
K K Kingston Ltd v Billy Tuckayo (2022) SC2189
Pacific Energy Aviation (PNG) Ltd v. PNG Air Ltd (2020) N8196

Counsel

Ron Webb KC & D Bidar for the plaintiff
I Molloy & A Paru for the first defendant
E Andersen & Dr. Henley D Katter for the second defendant

DECISION

1. ANIS J: I heard submissions from the parties on 19 February 2025 regarding objections to the use of certain affidavits and a motion for leave to allow certain affidavits to be tendered. I reserved my decision afterwards to a date to be advised.

2. Parties have been notified so I will rule on it now.

BACKGROUND

3. Briefly, the plaintiff has filed a class action against the defendants. He seeks various causes of actions including wrongful conduct, unlawful actions, human right violations or actions and negligence. Premised on the Amended Writ of Summons and Statement of Claim filed 25 June 2024 (AWoS), the claims relate to the Panguna Copper Mine which is located in the Autonomous Region of Bougainville. The claims appear to cover the impacts that the mine may have had on the people and environment there, going back as far as 1971. The pleadings in the AWoS is voluminous and I need not dwell further into them accept to state the facts as briefly as I can as I have.

STATUS

4. Returning before me for hearing on 19 February 2025 were 2 motions each filed by the first and second defendants. The motions seek similar relief which are to either stay or summarily dismiss the proceeding. The first defendant’s notice of motion was filed on 3 October 2024 whilst the second defendant’s notice of motion was filed a few days earlier on 1 October 2024 (the 2 dismissal applications). Both applications were set down for hearing for 2 days on the 19^th and 20^th of February 2025.

5. When the parties appeared before me on the first date of hearing on 19 February at 9:30am, the plaintiff informed the Court of another pending motion that he had filed which also had the return date of 19 February. The said motion was filed on 13 February 2025 (plaintiff’s NoM/motion for leave). The plaintiff seeks this main relief:

2. The Plaintiff be granted leave to rely on the following further affidavits at the hearing on 19 and 20 February 2025 of the notices of motion filed by the First Defendant and Second on 3 October 2024 and 1 October 2024 (collectively, the Motions), respectively:
   
   1. Affidavit of Daniel Bidar filed 5 February 2025 (Document NO. 107);
      
   2. Affidavit of Michael Goodwin filed 7 February 2025 (Document No. 114);
      
   100. Affidavit of James Fredrick Horatio Carpenter KC filed 10 February 2025 (Document No. 116); and
        
   4. Affidavit of Lachlan Wishart Leaf Armstrong filed 11 February 2025 (Document No. 117);
      

6. By general consensus, it was agreed that the Court will hear the preliminary objections raised by the plaintiff first, and in the event the Court refuses the objections, it will also make a determination on the plaintiff’s NoM.

7. With that understanding, the plaintiff was permitted to raise his objections as well as move his motion for leave, and the defendants provided their submissions in response.

OBJECTIONS

8. The context of the objections by the plaintiff is this. After the filing and service of the 2 dismissal applications, on 9 October 2024, His Honour Kandakasi DCJ issued directional orders for parties to prepare themselves for the hearing of the applications.

9. The relevant parts of the Court Order of 9 October may be summarised as follows: Term 2 sets the 2 dismissal applications down for hearing for 2 days on the 19^th and 20^th of February 2025. Term 5 required the defendants to file and serve any further affidavits in regard to the 2 dismissal applications by 16 October 2024. Term 6 of the Order required the plaintiff to file and serve any affidavits in reply to the 2 dismissal applications by 27 November 2024. Term 7 of the Order required the defendants to file and serve any affidavits in reply to the 2 dismissal applications by 18 December 2024. And term 8 of the Order required the parties to file and serve their respective submissions by 5 February 2025.

10. It is not disputed that the parties complied with the above stated terms of the Orders of 9 October.

11. The objections raised by the plaintiff concern 3 affidavits that have been filed by the defendants under term 7 of the Order of 9 October. These objected affidavits are set out as follows:

1. Affidavit of Nicholas Bacon KC, filed 18 December 2024 by the first defendant (Court Document No. 100);
2. Affidavit of Dawna Wright filed 18 December 2024 by the first defendant (Court Document No. 102); and
3. Affidavit of Daphanie Ipidari filed 17 December 2024 by the second defendant (Court Document No. 98).
   

12. The plaintiff argues, amongst others, that the evidence filed by the defendants raise new depositions of facts which should have been raised in their evidence in chief that had been filed. The defendants argue, amongst others, that the plaintiff’s objections are unfounded because of the fact that the affidavits were filed in accordance with or as per a Court issued direction which was the Order of 9 October. They also argue that the plaintiff has not filed any valid Notice of Objection under s.35 of the Evidence Act to raise his objections.

13. I note the submissions of the parties in this regard.

14. To assist me deliberate, I make the following observations:

• I observe that term 7 of the Order of 9 October did not set any limit or conditions on the type or manner of response that should be expected from the affidavits in reply by the defendants;
• The objected affidavits of the defendants appear to have been filed in compliance with or in accordance with the wordings of term 7 of the Order of 9 October;
• The Court Order of 9 October does not appear as absolute in the sense that there was no room for a party to seek clarity of the order; for example, an aggrieved party could apply for variations or extension of time;
• The plaintiff was not prevented from revisiting the order or to ask for time to file further affidavits in response;
• If clarity is required or there are ambiguities in the terms of the Court Order of 9 October, a proper process may be to bring an application in that manner before the same Judge that issued the order, to determine whether the 3 objected affidavits that were filed pursuant to term 7 of the Court Order of 9 October, were filed contrary to the said term thus should be struck out;
• I take into account the risk that exist where I may be acting outside or beyond the exercise of my discretion or purview, that is, if I am to consider and interpret an order that is made by another Judge of the National Court.
  

15. In regard to the objection premised on s.35 of the Evidence Act, I make these additional observations:

• The 3 objected affidavits of the defendants were not filed in accordance with the circumstance that is described in s.35; thus, s.35 therefore did not apply or could not have been breached by the plaintiff;
• The argument by the defendants that a notice of objection under s.35 of the Evidence Act was required first before the plaintiff may raise his objections to the use of their affidavits, is misconceived;
• The 3 objected affidavits of the defendants were filed pursuant to orders made by the Court on 9 October 2024; and I observe that such exercise of power is permitted by s.34 of the Evidence Act; see cases: K K Kingston Ltd v Billy Tuckayo (2022) SC2189; Cascade Apartments Ltd v. Patrick’s Transport Ltd and 1 Or (2024) SC2621;
• I observe that the parties, after or at the time of obtaining the Court Orders on 9 October, did not also ask the Court for Orders to file notices of objection; thus, they appear to have waived their rights to object to the use of affidavits; In Cascade Apartments Ltd v. Patrick’s Transport Ltd and 1 Or (supra), the Supreme Court stated in part, and I quote:
  

25. This issue, in my view, may be addressed this way: If a Court orders parties to file affidavits for trial pursuant to s. 34(1)(a), the parties may be deemed to have forfeited or waived their rights to object to the use of affidavits:

(i) unless the Court, in the exercise of its wide powers under s.34, whether together with or at some other time, also makes a specific order for parties to issue notice of intention to object to the use of affidavit(s); or [first category]

• As such, I observe that the plaintiff’s present objections may be baseless or misconceived;
• I also observe that the 3 objected affidavits of the defendants depose facts including expert opinions which appear directly relevant to the issues at hand, and they were directed at the evidence of the plaintiff which had been filed and served as per term 6 of the Court Order of 9 October.
  

16. When I take all the above considerations into account, I come to the conclusion that I must reject the plaintiff’s objections.

PLAINTIFF’S NOTICE OF MOTION

17. I now turn my attention to the plaintiff’s NoM.

18. Should I grant leave and permit the plaintiff to rely on his affidavits that were filed outside of the time periods set by the Court Order of 9 October? The plaintiff intends to use them as part of his evidence in response to the 2 dismissal applications.

19. I note the submissions of the parties in this regard.

20. Again, let me briefly set out the relevant context to this. The plaintiff asserts, amongst others, that the defendants’ responding affidavits that were filed as per term 7 of the Court Order of 9 October have raised new facts and matters that should have been included in their evidence in chief which had been filed earlier under term 5 of the Court Order of 9 October. As such, he assets that it is only fair if the Court rejects his objections and allows the defendants’ 3 affidavits, that he be allowed to rely on these further responding affidavits that he has now filed. He refers to the 4 affidavits that are identified in his motion which were filed outside the terms of the Court Order of 9 October, and he seeks leave of the Court to include them as part of his evidence to oppose the 2 dismissal applications.

21. The 4 affidavits are:

(a) Affidavit of Daniel Bidar filed 5 February 2025 (Document No. 107);

(b) Affidavit of Michael Goodwin filed 7 February 2025 (Document No. 114);

(c) Affidavit of James Fredrick Horatio Carpenter KC filed 10 February 2025 (Document No. 116); and

(d) Affidavit of Lachlan Wishart Leaf Armstrong filed 11 February 2025 (Document No. 117).

22. I think it is important to state at the outset that this is not a standard type motion hearing where the parties were required to observe the provisions under Division 4 of Order 4 of the National Court Rules. For example, this was not the case where the defendants had given 3 clear days’ notice in regard to their 2 dismissal applications, or where the plaintiff had to file responding affidavits by 2pm before the dates set for hearing, which would have constituted the minimum requirements as set-out under the motion rules. The situation was rather different, and as stated above, the 2 dismissal applications plus one other application, were set down or ordered for hearing as per the Court Order of 9 October. Allocation of special fixture of a motion of this nature is permitted under Order 4 Rule 49(14) of the National Court Rules. I think part of the reasons why directional orders had to be obtained was for administration purposes in general, but perhaps more importantly and given the complex nature of the matter, that sufficient time and specific dates had to be set to allow the parties to prepare themselves.

23. The plaintiff has urged this Court to exercise its discretion (i) judicially according to law and (ii) in the interest of justice. The 2 factors may be regarded as ‘litmus tests’ for a Court that is exercising discretion.

24. To assist or guide me in that regard, I make the following observations:

• I restate one of my earlier observations above concerning the Court Order of 9 October, that the terms did not set guidance or limitations on how the parties were to depose and provide their evidence in response;
• I also observed above that the Court Order of 9 October was not final and nor did it expressly prevent filing of further affidavits;
• I take into account the monetary value of the claim by the plaintiff which may amount to millions if not billions of Kina;
• I also take into account the fact that the 2 dismissal applications are substantive in nature and if granted, that may mean the end of the plaintiff’s claim; thus it may not be an unreasonable request or ask by the plaintiff to this Court to permit him to file all his material evidence to defend himself against the pending 2 dismissal applications;
• I refer to the case Pacific Energy Aviation (PNG) Ltd v. PNG Air Ltd (2020) N8196 which was cited by the first defendant and argued by the parties concerning its application; the considerations applied in the case were as follows, and I quote:
  

(i), whether the applicant has applied promptly, (ii), whether the applicant had sought an extension by consent, (iii), whether the applicant has provided a good explanation for not complying with the directional order, and (iv), whether there was any serious prejudice caused to such an extent that any further filing of affidavits should be refused.

25. In regard to the first requirement, I observe that the need for the plaintiff to file additional affidavits arose after it received the responding affidavits from the defendants, and in particular, the evidence from the defendants’ expert witnesses in mid-December 2024. There was then the Court vacation and the festive period; the plaintiff asserts he also had difficulties during these periods to secure affidavits from his expert witnesses. That said, I note that the plaintiff’s NoM was filed on 13 February 2025, which was 5 days before the dates that were set for the hearing of the 2 dismissal applications. I must say I could find either way on this requirement so I will leave it at that. In regard to the second requirement, given that there are oppositions to the plaintiff’s NoM, I will assume that no consent was or would have been forthcoming from the defendants. I therefore do not find this requirement applicable or would be of assistance to me. The third test is also not relevant for this purpose. This is not a situation where a party has failed to comply with a directional order, but rather, is a case where a party is seeking leave to file additional evidence after the parties have fully complied with directional orders issued. In regard to serious prejudice, the relevant prejudice argument that stands out to me in this instance is this:- the 2 dismissal applications are substantive in nature with detrimental consequences if they are granted, which is that the plaintiff’s case will be dismissed. If I disallow the plaintiff from calling or relying on his additional evidence now, then my action or discretion may not be considered as serving the best interest of justice;
    
    • The other observation not discussed but which I think is significant is, whether the intended evidence will assist or be beneficial to the Court. The intended expert evidence of the plaintiff appear to respond directly to the defendants’ expert witnesses’ evidence; I observe that the intended legal arguments appear directly relevant to a main central issue for argument which is Champerty and Maintenance; it appears that these expert evidence, including those already filed by the defendants, may assist the Court to properly consider the legal arguments that will be presented by the parties.
      

26. When I take all that into account, and in exercising my discretion, I am minded to grant relief 2 in the plaintiff’s NoM.

SUMMARY

27. In summary, I refuse the plaintiff’s preliminary objections against the 3 identified affidavits of the defendants. Secondly, I grant the plaintiff’s NoM to the extent that I will allow him to also rely on the additional affidavits filed, at the hearing of the 2 dismissal applications.

COST

28. An award of cost is discretionary. I am minded to award cost in regard to both matters to be awarded in favour of the defendants against the plaintiff, to be assessed on a party/party basis to be taxed if not agreed.

29. The main consideration I take into account is this. The time for the hearing of the defendants’ 2 dismissal applications was taken up by the objections and application of the plaintiff. Because of that, new dates must now be set for the 2 dismissal applications to be heard, which means that additional costs will be incurred by the defendants. I also make this award taking into account any short term prejudice that may have been suffered by the defendants.

ORDERS

30. I make the following orders:

1. The objections raised by the plaintiff in relation to the 3 affidavits filed by the defendants in accordance with term 7 of the Court Order of 9 October 2024, is refused.
   
2. Leave is granted to the plaintiff to rely on his following additional affidavits:
   

(a) Affidavit of Daniel Bidar filed 5 February 2025 (Document No. 107);

(b) Affidavit of Michael Goodwin filed 7 February 2025 (Document No. 114);

(c) Affidavit of James Fredrick Horatio Carpenter KC filed 10 February 2025 (Document No. 116); and

(d) Affidavit of Lachlan Wishart Leaf Armstrong filed 11 February 2025 (Document No. 117).

3. The plaintiff shall pay the defendants’ costs of the objections and application hearings, on a party/party basis which may be taxed if not agreed.
   
4. The defendants’ notices of motion filed 1 October 2024 and 3 October 2024 shall be allocated with new hearing dates.
   
5. Time for entry of these orders is abridged to the date and time of settlement by the Registrar of the National Court which shall take place forthwith.
   

The Court orders accordingly
________________________________________________________________
Lawyers for the plaintiff: Goodwin Bidar Nutley

Lawyers for the first defendants: Allens PNG

Lawyers for the second defendants: Dentons PNG