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National Court of Papua New Guinea |
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
Cannings J
Madang: 24 August 2010
Waigani: 2 September 2010
PRACTICE AND PROCEDURE – discovery and inspection of documents – National Court Rules, Order 9, Rules 10 and 15 – whether the court should order defendants to produce documents for inspection.
The plaintiffs applied by motion for an order for production of various documents said to be in the possession, custody or power of the defendants. The first and second defendants opposed the motion on the grounds that the documents sought from them were the subject of a stay order in related Supreme Court proceedings, were irrelevant to the issues at the trial and were the subject of privilege. Other defendants opposed the motion on the ground they never refused to allow inspection or to provide copies of the documents sought from them; and in relation to the documents sought from the first and second defendants, the documents sought did not relate to a matter in question at the trial.
Held:
(1) There are five prerequisites to the court making an order for production of documents under Order 9, Rule 10(1) of the National Court Rules:
- (a) it must appear to the Court from any document filed in the proceedings that there are grounds for a belief that the document relates to a matter in question in the proceedings;
- (b) it must appear to the Court from any document filed in the proceedings that there are grounds for a belief that the document is in the possession, custody or power of a party;
- (c) the document is not "privileged" from production (Order 9, Rule 10(1));
- (d) there is no rule of law that requires that the document be withheld on the ground that its disclosure would be injurious to the public interest (Order 9, Rule 16);
- (e) the order must be "necessary" at the time it is made (Order 9, Rule 14).
(2) If all requirements are met, the court has a discretion to exercise: whether to order or not order production of the document for inspection.
(3) Here, the court was satisfied as to all requirements in respect of all documents sought by the plaintiffs and exercised its discretion by making an order for production generally in the terms sought by the plaintiffs.
Cases cited
PNG Cases
Ace Guard Dog Security Services Ltd v Lindsay Lailai (2003) N2459
Overseas cases
Home Office v Harman [1982] 1 All ER 532
Counsel
T Nonggorr, for the plaintiffs
C Scerri QC & G Gileng, for the first defendant
D Aikung-Hombhanje, for the second defendant
I M Molloy & T Tanuvasa, for the third, fourth & fifth defendants
2 September, 2010
1. CANNINGS J: This is a ruling on an application by the plaintiffs for an order requiring the defendants to produce certain documents. The application is brought by motion under Order 9, Rule 10(1) (order for production) of the National Court Rules.
2. The plaintiffs are also applying under Order 9, Rule 15 (default) for an order that in the event that any defendant defaults in complying with an order for production, their defence will be struck out and judgment entered for the plaintiffs. I will deal with this application first. It is ill conceived as Order 9, Rule 15 does not provide for such a peremptory order. The Rule only deals with the situation where a party is in default. The application for such an order is refused.
3. As for the application for production of documents, the plaintiffs seek three documents from the first defendant, two from the second and six from the third, fourth and fifth defendants. All defendants oppose the application.
DOCUMENTS SOUGHT FROM FIRST DEFENDANT
4. There are three:
5. The first defendant argues that the mine development contract is a commercial and confidential agreement between them and the State and is thus a privileged document. As to the memorandum of agreement and the compensation agreement(s), an order by the National Court for discovery of these documents in other proceedings has been stayed by the Supreme Court, so it would not be proper for the court to order their production in these proceedings. The first defendant also argues that none of the three documents are relevant to the issues in dispute in the present proceedings. All other defendants support the first defendant's position.
6. These arguments must be assessed in the context of Order 9, Rule 10(1), which states:
Where—
(a) it appears from a list of documents filed by a party under this Division that any document is in his possession, custody or power; or
(b) a pleading or affidavit filed by a party refers to any document; or
(c) it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceedings that there are grounds for a belief that any document relating to any matter in question in the proceedings is in the possession, custody or power of a party,
the Court may, unless the document is privileged from production, order the party—
(d) to produce the document for inspection by any other party at a time and place specified in the order; or
(e) to file and serve on any other party a copy of the whole or any part of the document, with or without an affidavit verifying the copy made by a person who has examined the document and the copy.
7. The particular provisions of Rule 10 that the plaintiffs seek to invoke are those italicised above. In summary: where it appears to the Court from any document filed in the proceedings that there are grounds for a belief that any document relating to any matter in question in the proceedings is in the possession, custody or power of a party the Court may, unless the document is privileged from production, order the party to produce the document for inspection by any other party at a time and place specified in the order.
8. There are two other Rules in Order 9 that have a direct bearing on determination of the plaintiffs' application.
9. Rule 14 (order only if necessary) states:
The Court shall not make an order under this Division for the filing or service of any list of documents or affidavit or other document, or for the production of any document unless satisfied that the order is necessary at the time when the order is made.
10. Rule 16 (public interest) states:
This Division [Division 9.1: Discovery and Inspection of Documents] does not affect any rule of law which authorizes or requires the withholding of any document on the ground that its disclosure would be injurious to the public interest.
11. The combined effect of these Rules and the approach of the courts in PNG to issues surrounding discovery and inspection of documents is, in my view, that for the plaintiffs to succeed, five requirements must be met:
(a) it must appear to the Court from any document filed in the proceedings that there are grounds for a belief that the document relates to a matter in question in the proceedings (Order 9, Rule 10(1));
(b) it must appear to the Court from any document filed in the proceedings that there are grounds for a belief that the document is in the possession, custody or power of a party (Order 9, Rule 10(1));
(c) the document is not "privileged" from production (Order 9, Rule 10(1));
(d) there is no rule of law that requires that the document be withheld on the ground that its disclosure would be injurious to the public interest (Order 9, Rule 16);
(e) the order must be "necessary" at the time it is made (Order 9, Rule 14).
12. The first requirement – that the document relates to a matter in question – should be interpreted in light of the approach to issues of discovery and inspection outlined by Sakora J in the leading case, Ace Guard Dog Security Services Ltd v Lindsay Lailai (2003) N2459: a document is discoverable when it is reasonable to suppose that it contains information which may – not which must – either directly or indirectly enable the party requesting it to advance its own case or to damage the case of its adversary.
13. As to which party bears the onus of satisfying the court of the prerequisites outlined above, the party seeking the order bears the onus on (a), (b) and (e). The party resisting the order bears the onus on (c) and (d).
14. If all requirements are met, the court has a discretion to exercise: whether to order or not order production of the document for inspection.
The mine development contract
(a) I am satisfied that there are reasonable grounds for believing that this document relates to a matter in question in the proceedings. It may be a relevant question of fact to be determined at the trial of the nuisance action whether the mine development contract obliges the developer of the mine, the first defendant, to compensate landowners for any environmental harm, particularly harm emanating from the deep sea tailings placement (DSTP) system. A determination of this fact will be relevant to the question of whether the environmental harm, if any, that will be caused by the DSTP system is an inevitable consequence of the activity authorised by the environmental permit. If the mine development contract makes no provision for compensation for that sort of environmental harm the plaintiffs may argue that the environmental harm was not foreseen at the time of the granting of the permit. They may argue that the permit was granted on condition that there would be no harm, and therefore that the harm that would be caused by operation of the DSTP system is not authorised by the permit. I consider therefore that it is reasonable to suppose that the mine development contract contains information which may directly or indirectly enable the plaintiffs to advance their case or to damage the defendants' case. Requirement (a) is satisfied.
(b) This requirement is straightforward as the mine development contract is referred to in a list of documents served by the first defendant on the plaintiffs.
(c) The first defendant asserts that the mine development contract is privileged as it is a commercial-in-confidence agreement between it and the State. I reject this submission as to be privileged from production a document must be protected by a legally enforceable privilege, such as legal professional privilege. It is not sufficient to assert that a document is 'confidential' or 'commercially sensitive'.
(d) The mine development contract is not a document that is protected by the doctrine of public interest immunity (formerly known as Crown privilege).
(e) I consider that it is necessary to order production of this document.
15. All five requirements have been met, so it becomes a matter of discretion. The State is a party to the agreement, and the State is the legal embodiment of the People of Papua New Guinea. It is reasonably arguable that the mine development contract is an "official document" for the purposes of Section 51 (right to freedom of information) of the Constitution. Equivalent documents for other large mining projects, such as Bougainville and Ok Tedi, are on the public record and have actually been incorporated into Acts of the Parliament. These things help convince me that it is in the interests of justice to order production of this document to the plaintiffs.
Memorandum of agreement and compensation agreement(s)
16. I consider that all five requirements have been met for the same reasons as for the mine development contract. It is a matter of discretion. The first defendant's argument that in related proceedings an order for discovery of the memorandum of agreement and compensation agreements has been stayed by the Supreme Court is pertinent. I have carefully considered the argument but I am not persuaded that it is a good or sufficient reason not to make an order for production in these proceedings. Documents obtained by a party as part of the pre-trial process of discovery can only be used by a party for the purposes of those proceedings. They cannot be used for any other purpose and certainly not in other proceedings (Home Office v Harman [1982] 1 All ER 532). I exercise the discretion in favour of ordering production of the documents.
DOCUMENTS SOUGHT FROM SECOND DEFENDANT
17. There are two:
18. It seems that these two documents are the same as the documents numbered (2) and (3) that are sought from the first defendant. The objections taken by the second defendant as to their production are the same as those taken by the first defendant. My assessment of the five requirements and my exercise of discretion is therefore the same. I will order the production of these documents by the second defendant.
DOCUMENTS SOUGHT FROM THIRD, FOURTH AND FIFTH DEFENDANTS
19. There are six:
20. The main ground of objection to production of these documents is that an order is not necessary as the third, fourth and fifth defendants have never refused to provide them. I do not think it is necessary to make a finding on that issue of fact. Even if it is accepted that there has been no refusal, I am satisfied that an order for production is in the circumstances necessary as this will alleviate any doubt about the obligation of the third, fourth and fifth defendants to make the documents available for inspection. The trial is due to commence on 21 September next. It is desirable, indeed necessary, to bring as much certainty as possible to bear on the nature and extent of each party's obligation to produce documents to other parties.
21. I am satisfied of all requirements and I will exercise my discretion by ordering production of all these documents.
ORDER
(1) The defendants specified in the Schedule below shall produce the documents specified in the Schedule for inspection by the plaintiffs by 10 September 2010 at the National Court, Madang, the exact time and place of inspection to be settled by the Assistant Registrar of the National Court, Madang, in consultation with the parties.
(2) The question of costs is reserved.
(3) Time for entry of this order is abridged to the date of settlement by the Registrar which shall take place forthwith.
SCHEDULE
| 1st defendant | 2nd defendant | 3rd, 4th, 5th defendants |
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Ruling accordingly.
__________________________
Nonggorr William Lawyers: Lawyers for the plaintiffs
Posman Kua Aisi Lawyers: Lawyers for the 1st defendant
Allens Arthur Robinson Lawyers: Lawyers for the Second Defendant
Solicitor-General: Lawyer for the Second, Third, Fourth & Fifth Defendants
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URL: http://www.paclii.org/pg/cases/PGNC/2010/134.html