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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) No. 05 OF 2020
BETWEEN
BARRICK (NIUGINI) LIMITED
Plaintiff
AND
STANLEY NEKITAL in his capacity as the Registrar of Tenements
First Defendant
AND
JERRY GARRY as Chairman and representing all other members of the MINING ADVISORY COUNCIL
Second Defendant
AND
MINERAL RESOURCES AUTHORITY
Third Defendant
AND
ON. JOHNSON TUKE, MP as MINISTER FOR MINING
Fourth Defendant
AND
HON. JAMES MARAPE, MP as Chairman and representing all other members of the NATIONAL EXECUTIVE COUNCIL
Fifth Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant
AND
MINERAL RESOURCES ENGA LIMITED
Seventh Defendant
AND
HON. DAVIS STEVEN, MP as Attorney General and nominal defendant on behalf of the Head of State
Eighth Defendant
Waigani: Kandakasi DCJ
2020: 30th July
2020: 05th August
MEDIATION – Whether orders for mediation were made? – What constitutes an order of mediation? - applications for revocation, set aside or variation of orders for mediation – factors for consideration – change in circumstances – National Court Act ss. 7B (1), Rules Relating to the Accreditation, Regulation and Conduct of Mediators rr.4 and 5.
The Court made an order for the parties to explore the prospects of resolving this matter through mediation on specified dates pending its trial with dates also already fixed. That followed a formal application for mediation orders filed by the Plaintiff and the Court had earlier directed the parties to resolved the matter by their direct negotiations or failing settlement, it will make orders for meditation. The parties failed to resolve the matter. That caused the Court to specifically direct the parties to return to the Court with a draft order for mediation, working from a draft order circulated by the Plaintiff. On the return of those orders, the parties failed to produce a draft order on account of the Defendants not agreeing with draft orders for mediation. On the Defendants request, further time was allowed for them to file and serve formal applications to allow the matter to remain in the trial track. The Court granted that application and gave specific time frames within which the intended applications should be filed. The Defendants again failed to comply with those orders and failed to file their intended formal applications by the next return date. Following a fully contested hearing of the Plaintiff’s application, orders for mediation were made. A formal minute of the orders presented the next day by the Plaintiff omitted certain parts of the orders actually made. By reason of that, the formal signing off and endorsement of the orders were yet to take place. Meanwhile, the Court appointed mediator became unavailable on the dates fixed for mediation and raised that issue with the parties. On that indication, the Defendants filed applications, to have the mediation orders revoked, terminated or varied. They argued that the case presents a number of critical legal issues that needs to be determined first prior to any mediation. The Plaintiff argued that a mediation order was made not withstanding the formal minutes not being signed and formally entered and the issue of whether or not the matter should be mediated was determined. Hence, it argued the common law principle of res judicata arises and argued for new dates for mediation with a deferral of the trial.
Held:
(a) a decision and or an order is made as of the date of its pronouncement or making and not when a formal minute of the orders are entered;
(b) for purposes of service and or enforcement of orders however, there must be a formal entry and minute of the orders;
(c) where the order is for parties in a proceeding to take steps to expedite a disposal of the matter through trial or through an alternative process, a lack of a formal minute and entry is no valid reason for a failure to or for a refusal to take the required and necessary steps to comply and comply with the orders.
(a) the subject matter of the proceedings is appropriate for mediation;
(b) a mediator is available to mediate in the matter and is so appointed;
(c) mediation is conducted and concluded by the mediator and reported back to the Court within the time fixed by the Court:
Rendel Rimua v. Simon Ekanda (2011) SC1094.
7. In this case, a complete mediation order was made in that it provided for and:
(a) appointed a mediator;
(b) the payment of mediation service fees under Schedule 3 of the ADR Rules;
(3) set the dates for the various steps to be taken and in particular fixed the dates for the commencement and conclusion of the mediation;
(4) specified who should be attending and participate in the mediation and that each person attending should have the necessary power and authority to make decisions bind each of the parties;
;
(5) where a board of the Plaintiff, Third and Seventh Defendants and or the National Executive Council (NEC) is required to make the final decision those authorities were required to be on standby to consider and make the required decisions;
(6) specified the venue and facilities required and provisions that need to be made for the mediation;
(7) required the parties with the assistance of the mediator to settle the facts and issues for trial if the parties fail to fully resolve the matter through mediation; and
(8) fixed a date for the return of the matter to court after mediation.
Cases Cited:
Rendel Rimua v. Simon Ekanda (2011) SC1094.
Koitaki Plantations Ltd v. Charlton Ltd (2014) N5656.
PNG Ports Corporation Ltd v. Canopus No 71 Ltd (2010) N4288.
Hargy Oil Palm Ltd v. Ewasse Landowners Association Inc (2013) N5441.
Alex Awesa v. PNG Power Limited (2014) N5708.
Able Construction Ltd v. W.R. Carpenter (PNG) Ltd (2014) N5636.
Robmos Ltd v. Fredrick M Punangi (2017) N6585.
NCDC v. Yama Security Services Pty Ltd (2003) SC707.
Henry Torobert v. Mary Torobert (2012) SC1198.
Able Construction Ltd v. W.R. Carpenter (PNG) Ltd (2014) N5636.
Wood v. Watking (PNG) Pty Ltd [1986] PNGLR 88.
Jimmy Maladina v. The State (2015) SC1572.
Lord & Co Ltd v. Timothy Inapero (2009) SC1042.
Lucas Dekena v. Nick Kuman (2018) SC1744.
Thomas Barry v. Joel Luma (2017) SC1639.
Mainland Holdings Ltd v. Stobbs (2003) N2522.
Ekepa v. Gaupe (2004) N2694.
O’Neill v. Eliakim (2016) SC1539.
John Illius v. Chris Bias (2018) N7618.
South Pacific – PNG - Seafoods Co Ltd v. The NEC (2017) N6888.
Nibson Kanen Nibabe v. Jack Soli (2017) N6886.
Kanga Kawira v. Kepaya Bone (2017) N6802.
Roger Meckpi v Luke Fallon (2017) N6708.
Wantok Gaming Systems Ltd v. National Gaming Control Board (2014) N5809.
Alex Awesa v. PNG Power Limited (2014) N5708.
Counsel:
Mr. D. Wood, A. Edo and L. Evore, for the Plaintiff
Mr. N. Saroa, for the First, Third and Fourth Defendants
Mr. L. Kandi, for the Fifth Defendant
Mr. T. Tanuvasa, and for the Second, Sixth and Eight Defendants
Mr. G. Geroro, for the Seventh Defendant
05th August, 2020
1. KANDAKASI DCJ: On 21st July 2020, the Court made orders in this proceeding for the parties to explore resolution of the issues presented by mediation. The next day I appointed myself as the mediator. By three different notices of motions formally filed on 27th July 2020, the defendants are seeking orders for a revocation, set aside or variation of the mediation orders.
Parties arguments
2. The Defendants claim there has been a change in circumstances due to the mediators none availability for mediation on the fixed dates and the presentation of the following determinative legal question:
(a) Has the Special Mining Lease (SML) over Porgera Gold Mine (Gold Mine) dated 12th May 1989 expired on 17th August 2019 upon expiry of the Mine Development Contract?
(b) Does the Judgment of Thompson J dated 02nd August 2019, in OS No. 422 of 2019 adjudged that the Plaintiff had an unconditional right to renewal of the SML over the Gold Mine upon its expiry?
(c) Is this proceeding competent given that the Plaintiff is acting unilaterally to issue and pursue this proceeding without the support and endorsement of the joint venture partners operating the Gold Mine?
(d) Can the Plaintiff maintain this proceeding after having commenced conciliation proceedings at the International Centre for Settlement of Investment Disputes (ICSID) in the United States of America?
3. Additionally, the First, Third and Fourth Defendants claim no mediation orders were made by reason of the formal minutes of the orders not being settled, sealed and entered. These Defendants go on to argue that, this entitles the Defendants to ask this court to revisit the mediation orders and have them terminated or set aside or not to make any orders for mediation in view of the questions presented.
4. The Plaintiff is opposing all of the applications. In so doing, it argues that the court has in fact made orders for mediation after having heard all the parties and before that, putting them on notice that the Court will make mediation orders if the parties fail to resolve this matter by their direct negotiations. The parties failed to resolve the matter and the Court correctly ordered mediation. In so arguing, the Plaintiff points out to the fact that the orders were made despite the Defendants raising the questions they claim warrants judicial determination first. That attracts the common law doctrine of res judicata.
Issues for determination
5. Based on the parties’ arguments, this Court is presented with the following questions to resolve:
(1) Did the Court make orders for mediation on 21st July 2020?
(2) Subject to an answer to the first issue, has there been a change in circumstance that warrants a revisit of the mediation orders and have them revoked, terminated or varied?
(3) Does this case present the following alleged determinative legal questions:
(i) Has the Special Mining Lease (SML) over Porgera Gold Mine (Gold Mine) dated 12th May 1989 expired on 17th August 2019 upon expiry of the Mine Development Contract?
(ii) Does the Judgment of Thompson J dated 02nd August 2019, in OS No. 422 of 2019 adjudged that the Plaintiff had an unconditional right to renewal of the SML over Gold Mine upon its expiry?
(iii) Is this proceeding competent given that the Plaintiff is acting unilaterally to issue and pursue this proceeding without the support and endorsement of the joint venture partners operating the Gold Mine?
(iv) Can the Plaintiff main this proceeding after having commenced conciliation proceedings at the International Centre for Settlement of Investment Disputes (ICSID) in the United States of America?
(d) Are the Defendants at liberty to raise issues they raised during the hearing that led to the mediation orders?
6. I will deal with each of these issues in the order they are presented, starting with the first issue first.
(1) Did the Court make orders for mediation on 21st July 2020?
7. As a matter of fact, the Court did make orders on 21st July 2020 for mediation. Hence, the answer to the question factually, is yes. Contrary to that fact, the First, Third and Fourth Defendants argument is that, since those orders were not perfected, by a formal settlement of the orders with their sealing and formal entry, no orders were made. The Defendants referred to the decision in Rendel Rimua v. Simon Ekanda (2011) SC1094, per Injia CJ (as he then was). In that case, Mr. Rimua applied for leave to appeal against a decision I made to refer a number of PNG LNG related matters for resolution by mediation. The question of whether the orders for mediation were made was also a question before the Supreme Court.
8. To answer the question before it, the Court commented upon the legislative scheme for mediation under the National Court Act (Chp. 38) and the Rules Relating to the Accreditation, Regulation, and Conduct of Mediators (ADR Rules) as follows:
“....First, the scheme of s 7B of the Act is that a mediation order is the sole foundation upon which mediation is conducted by a Mediator. A mediation order is based on three basic conditions having been met, as follows:
(a) The subject matter of the proceedings is appropriate for mediation: s 7B(1)(a), (2) the Act; Rule 5(1),(2) & (3) of Mediation Rules.
(b) A mediator is available to mediate in the matter and is so appointed: s 7B (3) of the Act; Rules 6 and 7 of Mediation Rules.
(c) Mediation is conducted and concluded by the Mediator and reported back to the Court within the time fixed by the Court: s 7B (4) of the Act; Rule 9 of Mediation Rules.
10. For purposes of formulating and issuing a mediation order, the Court may issue such directions or orders including appropriate orders for the costs of the mediation, as are necessary to determine those three basic terms of the mediation order: s 7B(4) of the Act. Those directions or orders form part of terms of the mediation order. An order for mediation once made should identify the proceedings the subject of mediation, the Mediator appointed by the Court and his or her fees and stipulate a time frame for the conduct and completion of mediation: Rule 5 (4). Section 7A-7E of the Act do not prescribe the form and content of a mediation order. However Mediation Rules, r 5 (3) & (4) prescribes the matters to be considered and determined which are then captured in the prescribed form of a Mediation Order appearing in Schedule 2 Form 3. Amongst other things required by s 7B to be spelt out in the mediation order, Form 3 requires specific matters to be set out. Those matters include insertion of the court file reference, description and title of the Court proceedings, the Mediator’s name and the commencement and completion dates of the mediation. There is no suggestion by the parties in the present case that the form and content of the mediation order in Form 3 is inconsistent with the provisions of s 7B of the Act. I too find that Form 3 is consistent with the requirements of a mediation order stipulated in s 7B of the Act.
11. Upon the making of a mediation order, the Mediator takes control of the conduct of the mediation at an appropriate venue outside of the Courtroom and on a date and time set by the Mediator: Section 7C(1) of Act; Rule 9 (3) of Mediation Rules. The mediation is conducted in private and all communications entered into by the parties in the course of the mediation are privileged; s 7C(2) of Act. The mediator enjoys immunity from suit in respect of the conduct of mediation: s 7C(3) of Act. The Court awaits a report on the conclusion of the mediation. If the mediation fails the matter goes to litigation: s 7D(4) of Act. If the mediation is successful and a mediated settlement is reached, the parties may submit the settlement for endorsement by the Court that issued the mediation order: s 7C (3) of the Act.
12. In a case where the parties consent to the trial judge being appointed as a mediator, that does not relieve the Court from the necessity of a mediation order and compliance with the rules of conduct of the actual mediation including fixing an appropriate venue and time for the conduct of the mediation. This is necessary to draw a clear demarcation between the judge’s adjudicative function and mediation function in the matter to which the mediator has appointed himself or herself as a mediator.”
9. The Court then went through the record of the proceedings in the National Court to ascertain if any order confirming with the legislative scheme was made. From that exercise, the Court found that although there were references to an order for mediation being made, there was no order on record that confirmed with the legislative scheme because, for example, some of the cases, the parties were yet to be identified and confirmed, costs of the mediation and the dates for the conduct of the mediation were not fixed by the Court. The Court than answered the question presented in the following terms:
“This Court is faced with a situation where there is no mediation order in place in accordance with Form 3 because its terms are still not finalized. In the circumstances, it cannot be said that an order for mediation exists which can properly be the subject of an appeal. An appeal brought in respect of an interlocutory judgment under s14 (3) of the Supreme Court Act is premised on the existence of an interlocutory judgment or order as such. In the instant case, no such order exists. Parties and the Court below should be well advised to work out the precise terms of the mediation order on a case by case basis which in the end result should produce a mediation order for every case...”
10. I agree with the then Chief Justice’s summation of the legislative scheme for referral of cases to mediation. To these I add that, Part IIA of the National Court was added in 2008 by the National Court Amendment Act 2008 (Number 4 of 2008) and the ADR Rules were promulgated in 2010. Most importantly, I have commented upon the main driver of these legislative changes in a number of cases as in Koitaki Plantations Ltd v. Charlton Ltd (2014) N5656 and other cases[1] as follows:
“Driven by a desire to overcome the problem of backlogs and to ensure delivery on the wish to resolve conflicts expeditiously at less costs in a timely manner, ADR and in particular mediation were introduced. This started in the United States in 1975 and eventually spread throughout the world. In our jurisdiction, ADR and mediation found their way into legislation such as s. 22B of the District Courts Act (Chp.40) and the National Court Act (Chp. 38) as amended. Pursuant to s. 7E of the National Court Act the ADR Rules were promulgated. Since their inception, ADR and mediation began and continue to deliver on the desire that led to their introduction so much so that the world was persuade to accept them. As I observed in Koitaki Plantations Ltd v. Charlton Ltd, ... and elsewhere, because of that good result:
‘...the courts and governments all over the world are calling for the use of mediation as a preferred form of dispute resolution,
given its benefits. Many countries have now gone further and required mandatory mediation either prior to the issuance of proceedings or before any trial
takes place in court. In our case, the effect of r. 4 of the ADR Rules as already noted presupposes mediation unless the court otherwise
determines on the application of a party. The imperative therefore is for disputing parties to explore prospects of out of court
settlement and where possible settle through their direct negotiations and failing any settlement there, through mediation in ‘good
faith’’.”
(Emphasis supplied)
11. I have also noted in those cases that, the Supreme Court at the highest in our country, has spoken in favour of the ADR and mediation
in recent times. This started with the decision of the Supreme Court in NCDC v. Yama Security Services Pty Ltd (2003) SC707 where the Court said:
“Indeed, there is a fast developing trend in modern courts including our own, to move away from court litigation and encourage alternative ways of settling civil disputes. Courts nowadays increasingly and actively foster, encourage and even facilitate parties to negotiate, mediate, and settle claims before the courts using alternative dispute resolution (ADR) techniques and mechanisms. The benefits of ADR are many and these include a win-win situation for both parties, reduces unnecessary litigation time, expense and costs, and maintains amicable long term business and social relationships between parties. Indeed notions of negotiation, mediation and compromise of disputes is a long-standing traditional custom in all traditional societies in this country and our courts should be able to tap into this valuable custom and develop ADR procedures which are appropriate to our own circumstances.”
12. Nine years later, the Supreme Court had reason to repeat its support for more use of mediation and other forms of ADR in its decision in Henry Torobert v. Mary Torobert (2012) SC1198. There the Court said in the context of a matrimonial proceeding:
“A dispute over matrimonial property by its very nature lends itself to negotiation, mediation and settlement. We have in PNG through recent amendments to the National Court Act and the making by the Judges of the ADR Rules 2010 embraced the concept of alternative dispute resolution and put it increasingly into practice. We consider that these practices should be adopted by the Supreme Court which has the power under Sections 6(2), 8(1)(e) and 16(c) of the Supreme Court Act to exercise the powers available to the National Court (William Moses v Otto Benal Magiten (2006) SC875). This includes the power to order parties to attempt settlement and, in the event of a failure to settle, to order mediation. Those are the type of orders that we will seriously consider making here. A dispute over matrimonial property by its very nature lends itself to negotiation, mediation and settlement. We have in PNG through recent amendments to the National Court Act and the making by the Judges of the ADR Rules 2010 embraced the concept of alternative dispute resolution and put it increasingly into practice. We consider that these practices should be adopted by the Supreme Court which has the power under Sections 6(2), 8(1)(e) and 16(c) of the Supreme Court Act to exercise the powers available to the National Court (William Moses v Otto Benal Magiten (2006) SC875). This includes the power to order parties to attempt settlement and, in the event of a failure to settle, to order mediation. Those are the type of orders that we will seriously consider making here.”
13. Two years after the Supreme Court decision I gave thought to the question of what kinds of cases or questions are inappropriate for mediation. That was in the case of Able Construction Ltd v. W.R. Carpenter (PNG) Ltd (2014) N5636. The aim of that exercise was to assist and enable litigants and their lawyers to be proactive around and expedite the referral of cases to mediation or trial or both without unnecessary delay. At paragraph 18 of the judgment, I made the following statement and listed the kinds of cases or questions inappropriate for mediation:
“This worldwide focus on mediation is not surprising as mediation is suitable for all cases. The only exception to this would be cases in which mediation is inappropriate because:
14. I then went on to comment upon the duty of lawyers in each case in the light of the developments and reasons for introducing and promoting ADR and in particular mediation. Specifically, I said:
“The sum effect of all these is that, a lawyer is now more duty bound than ever before to take all steps necessary to have a client’s case resolved within a reasonable time and at less costs. That duty is imposed by the lawyers Professional Conduct Rules 1989 and the relevant and applicable legislation which includes the relevant provisions of the National Court Act and the ADR Rules that were enacted thereunder. Unless a case falls in the category of questions or cases inappropriate for resolution by ADR and or mediation, lawyers are bound both by their professional conduct rules as well as the relevant legislation and the various judicial pronouncements from both the Supreme and National Courts to take all steps necessary to resolve their client’s cases more readily out of court. A lawyer who fails in his or her duty without good reason would be guilty of misconduct as a lawyer and undoubtedly attract unto oneself, personal liability for costs and interests unnecessarily forced on the client by their conduct.”
15. The above legal position can be summed up and what that means for parties and their legal representatives in a matter before the Court as follows:
(1) Given the benefits of earlier resolution of proceedings, the world has come to accept mediation and other forms of ADR which as seen courts worldwide adopting and applying these forms of dispute resolution from as early as 1975 with beginnings in the USA;
(2) These developments have been adopted into PNG through Parliament’s enactment of the National Court Act, the District Court Act and other legislation,[2] the ADR Rules and the various decisions of the National and Supreme Courts;
(3) Unless a question or a matter of the type listed in paragraph 18 of the judgment in Able Construction Ltd v. W.R. Carpenter (PNG) Ltd (supra), reproduced at paragraph 12 above, is presented, rr. 4 and 5 of the ADRs presupposes mediation for all cases filed in the National Court;
(4) The presumption for mediation can be given effect to by an order for mediation on the agreement of the parties or on the Court’s own motion under s. 7B (2) and r. 5 (1) (2) of the ADR Rules subject to the considerations under r. 5(3) of the ADR Rules;
(5) When an application for leave to overcome the presumption in favour of mediation is presented, the Court will take into account the factors listed under r. 5 (3) of the ADR Rules to determine whether or not to grant the leave sought;
(6) The obligation is on a party who does not want mediation and wishes to avoid mediation or remove the presumption in the ADR Rules and allow for a matter to remain in the trial track to apply under r. 4 (1) of the ADR Rules for leave and upon consideration amongst others of the factors listed in r. 5 (3), the Court will decide whether or not granted that application.
(7) The above legislative provisions and the judgements of both the Supreme and National Courts, provides a process for lawyers to discharge their duties and obligations under Rule 8 (7) and 15 (4) (b) and (d) of the Professional Conduct Rules 1989.
16. Given the above clear legal position, the parties and their lawyers should, preferably on the first occasion they are before the Court or on the occurrence of the other two events listed in r. 4 (a) and (b) of ADR Rules, come prepared to assist the Court in addressing and determining the question of referring the matter for resolution by mediation. If the parties and their lawyers duly discharge their duties and responsibilities, they would enter into meaningful communications with their opponents and attend Court ready with draft mediation order or for leave to remain in the trial track. Unless an application for leave under r. 4 (1) is to be made, the parties should enter into discussions and settle earlier on upon a draft order for mediation. The draft order should be in terms of Form 3 in the ADR Rules or a more elaborate one expanding on Form 3 in terms of any of the three pro forma mediation orders recommended by the ADR Division of Court. If the parties with their lawyers did that, the Court could make the orders on the first occasion of a matter going before the Court, and thereby assist and enable the parties to have their matter disposed of promptly. Unfortunately, most of the parties are failing to discharge this duty.
17. The parties and their lawyers’ failure to do what is required of them has given rise to a practice that has developed where the Court or one of the parties are raising the need for the parties to explore the prospects of settling their matters through their direct negotiations within a given time frame and failing settlement, the parties and their lawyers being tasked to return to the Court with draft consent orders that addresses the three most important provisions referred to in Rimua v. Ekanda (supra) and make other relevant provisions for the efficient and effective commencement and conclusion of mediation for the Court’s consideration and endorsement. If all is in order, the Court is making the orders. However, where they are not in order, the Court is appropriately varying the draft orders produced by the parties and is making orders for mediation. Where the parties are failing in both respects, the Court is either adjourning with requirements for the parties with their lawyers to return on the next adjourned date with draft consent orders for mediation addressing all the key aspects per Form 3 of the ADR Rules or as may be expanded or make such other orders.
18. In this case, the Plaintiff filed a notice of motion on 10th June 2020. Upon the matter coming to Court on the first occasion after its filing and later followed by the notice of motion and all other subsequent appearances in Court, with the latest on 20th July 2020, the parties were directed to have the matter resolved by their direct negotiations or failing that, return with draft mediation orders for the Court’s endorsement. On each occasion, the Court repeatedly indicated that, it would refer the matter for resolution by mediation unless the parties settled the matter by their direct negotiations or the Defendants make a case under any of the issues or kinds of cases listed at paragraph 18 of the decision in Able Construction Ltd v. W.R. Carpenter (PNG) Ltd (supra). The parties were given more than sufficient time and reminders to either settle the matter or produced a draft consent order for mediation. The Plaintiff produced a draft order for mediation, to which the Defendants failed to meaningfully respond in a timely manner. The Court therefore, gave the Defendants one more opportunity on 20th July 2020 and adjourned the matter overnight. Upon return of the matter to Court the next day, the Defendants had still not meaningfully responded. Also, they did not file any application for leave under r.4 (1) of the ADR Rules with supporting affidavits despite the Court’s directions for them to do so on their indications. The Defendants asked for more time which the Court refused and proceeded to hear the parties. Following a fully contested hearing, the Court came to a decision to refer the matter to mediation and made appropriate orders for mediation. The orders did the following:
(1) appointed a mediator;
(2) provided for the payment of mediation service fees under Schedule 3 of the ADR Rules;
(3) set the dates for the various steps to be taken and in particular, fixed the dates for the commencement and conclusion of the mediation;
(4) specified who should be attending and participate in the mediation and that each person attending should have the necessary power and authority to make decisions binding each of the parties;
(5) where a board of the Plaintiff, Third and Seventh Defendants and or the National Executive Council (NEC) is required to make the final decision, those authorities were required to be on standby to consider and make the required decisions;
(6) specified the venue and facilities required and provisions that need to be made for mediation;
(7) requiring the parties with the assistance of the mediator to settle the facts and issues for trial if the parties fail to fully resolve the matter through mediation; and
(8) fixed a date for the return of the matter to court after mediation.
19. Formal draft minutes taken out by the Plaintiff and produced in Court the next day for the Courts consideration and endorsement, missed a few aspects falling under items (4) and (5) above. Consequently, the Court deferred endorsement of the draft orders until that which was missing was included. Before that could happen, the Defendants filed their notices of motion.
20. Going by the records as noted above, unlike the case in Rimua v. Ekanda (supra), in this case, a complete set of orders for mediation was made incorporating the essential components for such an order. There was nothing left to be filled in later. The only issue was that, the formal minutes not signed, sealed and formally entered.
21. It is settled law that, what matters, is the pronouncement of a judgment or order. Formal minutes follow the judgment or orders once made. Time runs from the date of the pronouncement of the judgment or order for purposes, for example of appeals and all other purposes. These points were clearly made by the Supreme Court in Wood v. Watking (PNG) Pty Ltd [1986] PNGLR 88. There, the Court had to amongst others, deal with an argument around when does the time for the purposes of appeals and s. 17 of the Supreme Court Act run. The Court said:
“It simply means 40 days from the date the judgment was pronounced ...
It is our view that the phrase ‘... after the date of judgment’ in s 17, and in particular the word ‘judgement’, should not be interpreted in accordance with O 12, r 3 because a section in an Act should not be interpreted by a provision in a rule, a piece of delegated legislation. We consider that O 12, r 3 sets out when a judgment or order takes effect for the purposes stated in the National Court Rules only and not generally. Under O 12, not all judgments and orders need to be entered, which means being typed, signed and sealed by the Registrar and filed, see rr 15, 20 and 21. Entry is authorised in certain cases and in certain cases it is not required, see rr 10, 14 and 17. Entry is authorised where, for example, the order is to be served on a person (r 18 (1) (b) ), or where the order is to be enforced (r 18 (1) (c)). The wording of those subrules makes it clear that entry has to be made where the order ‘is to be served’ or ‘is to be enforced’; in other words entry is an essential preliminary to serving or enforcement. Not so with subr (d) where the wording is different.
...
That wording [in O.12, r.18 (a)] suggests that entry is required where there is an appeal, but that the entry need not necessarily be before the lodging of the appeal. If it was intended that entry should precede an appeal, the wording should have read: ‘An order shall be entered ... where an appeal is to be filed.’ ...
We are firmly of the view that entry of a judgment is not an essential preliminary to the lodging of an appeal under the Supreme Court Act, neither does the failure to enter the judgment mean that the appeal period does not run.”
22. Since the decision in Wood v. Watking, the question of when time for appeals or reviews against a decision of the National Court runs, has become settled. Time runs from the date of the pronouncement of the decision, be it in the form of a judgment or order of the Court. Of course, the only exceptions would be cases in which an Act of Parliament expressly provides to the contrary. Recent confirmation of that position can be found in several recent decisions of the Supreme Court such as the one in Jimmy Maladina v. The State (2015) SC1572; Lord & Co Ltd v. Timothy Inapero (2009) SC1042 and Lucas Dekena v. Nick Kuman (2018) SC1744.
23. As can be seen clearly, from the foregoing authorities, a formal minute and its entry is necessary if it is to be served and or enforced. This would be applicable for instance in the case of urgent interim injunctive orders that may have to be served on persons other than the parties in a proceeding. For the parties in a proceeding, they would have been in court when the judgment or orders are pronounced except, in ex parte proceedings, they would have to take the appropriate steps and comply. There would be no need for a formal minute to be taken out and served on one of the parties by the other. This makes sense, especially where proceedings before the Court needs to progress to its finality at the earliest possible without any unnecessary delay along the way. In recent times, a number of lawyers and their clients have been taking the position that, if no formal minutes are taken out and entered, they are excused from any compliance. The kinds of orders I am speaking of here are the direction type orders for parties to take certain steps to progress matters to enable expedited resolution through their direct negotiations or through mediation facilitated negotiations or by trial.
24. I also note that, Order 12, r. 8 of the National Court Rules is relevant but neither of the parties referred to that provision of the rules. The rule provides for a revisit of orders made by the Court. It relevantly states:
“8. Setting aside or varying judgement or order. (40/9)
(1) The Court may, on terms, set aside or vary a direction for entry of judgement where notice of motion for the setting aside or variation is filed before entry of the judgement.
(2) The Court may, on terms, set aside or vary a judgement —
(a) where the judgement has been entered pursuant to Order 12 Division 3 (default judgement); or
(b) where the judgement has been entered pursuant to a direction given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the direction; or
(c) when the judgement has been entered in proceedings for possession of land pursuant to a direction given in the absence of a person and the Court decides to make an order that the person be added as a defendant.
(3) The Court may, on terms, set aside or vary an order —
(a) where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order; or
(b) where notice of motion for the setting aside or variation is filed before entry of the order.
(4) In addition to its powers under Sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgement) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.
(5) This Rule does not affect any other power of the Court to set aside or vary a judgement or order.”
(Emphasis supplied)
25. In Thomas Barry v. Joel Luma (2017) SC1639 (per Kirriwom, Yagi and Ipang JJ), discussion this provision and summarised it as follows:
“15. It is clear from a reading of the whole of the provisions of Rule 8 that there is general power, albeit discretionary, vested in the National Court to set aside or vary a direction for entry of judgment or order. It is, however, also important to note that such power can be exercised only when an application (notice of motion) is filed “before entry of judgment” but this requirement may be dispensed with in appropriate circumstances under Order 1 Rule 7. Where the relief under Order 1 Rule 7 is not sought and or granted, there is no power to be exercised.
16. Sub-rule (1) grants a general power; however, the conditions for the exercise of the power are specific and are provided under Sub-rule (2). There are only 3 conditions; firstly, in cases where a default judgment is entered under Division 3 of Order 12, or, secondly, in cases where a judgment has been entered ex parte, or, thirdly, in cases where judgment has been entered in proceedings relating to land.
17. Sub-rule (4) whilst making provision for additional or supplementary powers, at the same time, provides two caveats or exceptions to the general power. It specifically says that there is no power to set aside or vary a judgment or order for “dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.”
18. The reason in our view is simple. The process for setting aside or varying an order is without question an interlocutory process. Sub-rule (1) expressly provides for that....”
(Emphasis supplied)
26. As this judgment makes it clear, the power to set aside or vary an order, is vested in the National Court by O.12 r. 8 (1). That power is available in the settings provided for in the next two subrules, (2) and (3) but not in cases where the judgement or order finally disposes of a matter in dispute between the parties or the proceedings are dismissed.[3] Subrule (2) specifies the circumstances in which that power can be exercised. The next provision, subrule (3) which the Supreme Court did not mention, is in similar terms as subrule (2). It provides for two further settings in which the power to set aside orders can be exercised. The first is in cases, where the orders sought to be set aside were made in the absence of a party, in cases other than those provided for under subrule (2). The second is in cases where the motion or application for set aside is filed before the orders sought to be set aside or varied are formally entered. I am of the view that this provision covers all other orders, the subject of any revocation, set aside or variation application not already covered in subrules (2) and (3) (a).
27 Even though the provisions, of O.12, r. 8 were not drawn to my attention and relied upon by the First, Third and Fourth Defendants, I remind myself that this Court has the power to revisit its orders under O. 12, r. 8 (1) and (3) (b) of the National Court Rules. This is the case on account of the formal minutes of the mediation orders not been formally entered.
28. Further, I note that specifically in the case of mediation orders, Rule 5 (6) of the ADR Rules also allows for revocation or variation of mediation orders. This provision in clear terms states:
“The Court may revoke or vary an order for mediation at any time but before the conclusion of the mediation.”
29. The question then is, in what kinds of settings can the Court’s power under O. 12, r. 8 (1) and (3) (b) of the National Court Rules and Rule 5 (6) of the ADR Rules be exercised. All parties argue that the power to set aside or vary the Court’s earlier orders is possible only if there is a change in circumstances from those that may have prevailed at the time of the orders for mediation. Those arguments give rise to the second issue for determination. I thus, turn to a consider of that issue now.
(2) Has there been a change in circumstance that warrants a revisit of the mediation orders and have them revoked, terminated or varied?
30. As already noted, the Defendants submit that there has been a change in circumstances since the mediation orders were made. Essentially, they point to two main events. These are firstly, the mediator not being available to conduct the mediation on the fixed dates. Secondly, they point to the Plaintiff having initiated conciliation proceedings at the ICSID in the United States.
31. On the other hand, the Plaintiff relies on the decision in Mainland Holdings Ltd v. Stobbs (2003) N2522, Injia DCJ (as he then was) where his Honour, aside from noting the parties’ arguments, said:
“In my view, the trial Court has wide discretionary powers to control the management of the case until its substantive disposition. In terms of its interlocutory proceedings, the Court has wide powers to grant or refuse to grant, vary or set aside, dissolve or discharge an interlocutory order either on application by an interested party or upon its own motion, in a wide range of situations including change in relevant circumstances which render the continuation of the order no longer necessary or appropriate. It is also in the Court’s discretion to vary or discharge an interlocutory order, where the conditions, if any, stipulated in the order have been met and it is no longer necessary or appropriate to sustain the order. Further, it is in the discretion of the Court to vary or discharge an interlocutory order if it is subsequently discovered by the Court that the interlocutory order was founded on wrong principle.
In the exercise of its regulatory jurisdiction, the Court also has wide discretion to protect itself or its process from abuse by parties aggrieved by its earlier order, seeking to have a second opportunity to re-argue the case in order to reverse its earlier decision. In cases where the earlier interlocutory order is subject of an appeal, the Court should be reluctant to engage in any deliberations on the facts and law which would or is likely to interfere or usurp the review powers of the appellate Court to review findings of fact or law. This is particularly so when a second judge is invited to vary or discharge an interlocutory order of the first judge.”
32. The Plaintiff also relies upon the decision of Cannings J in Ekepa v. Gaupe (2004) N2694. There, His Honour adopted and applied the above decision and relevantly asked a number of questions and answered them as follows at pp. 33 to 35:
“1. Has there been any change in circumstances since the previous orders were made, which render their continuation unnecessary or inappropriate?
This is the most telling consideration, according to Injia DCJ. If there has been a material change in circumstances, that substantially increases the applicant’s chances of having the earlier order dissolved or varied. In Mainland Holdings Kirriwom J had granted an interim order allowing the contract of employment of the first defendant, Mr Stobbs, to be extended for 90 days. That was on the pretext that his continued presence in the company as group general manager was necessary to help save a grain crisis affecting the operations of the Niugini Tablebirds business. After he obtained the injunction, Mr Stobbs went on two weeks holiday. The grain crisis was solved. So the plaintiffs went back before the National Court and argued, successfully, that there had been a material change in circumstances. The interim orders of Kirriwom J were dissolved.
Have they been behaving themselves? Are the hands of the person who is benefiting from the earlier order, still clean? (Bearing in mind the maxim that those who come to a court of equity must have ‘clean hands’.) If the party who obtained the interim injunction behaves badly, this is something that weighs in favour of dissolving the earlier order.
In Mainland Holdings Injia DCJ concluded that the beneficiary of Kirriwom J’s order – Mr Stobbs – had behaved irresponsibly. Having got the order he wanted, he went on a holiday spree to New Zealand. He deserted the company at a time of deepening crisis. His hands were no longer clean. That made it clear that the interim injunction should be dissolved.
3. Are there previously undisclosed relevant facts, which have been discovered since the interim orders were made?
If there are, those facts can be taken into account. But they do not deserve the same weight, as where there is a material change in circumstances after the interim order was made. Injia DCJ explained the reason for previously undisclosed facts not deserving too much weight, in Mainland Holdings, at pages 3-4. If the Court allows its discretion to be too broad, it will encourage unsuccessful parties to go back to the Court with new arguments or facts that should have been aired the first time around. It can also encourage ‘Judge-shopping’. Injia DCJ stated:
‘In the exercise of its regulatory jurisdiction, the Court also has wide discretion to protect itself or its process from abuse by parties aggrieved by its earlier order, to have a second opportunity to re-argue the case in order to reverse its earlier decision. In cases where the earlier interlocutory order is subject of an appeal, the court should be reluctant to engage in any deliberations on the facts and law, which would or is likely to interfere or usurp the review powers of the appellate court to review the findings of fact or law. This is particularly so when a second judge is invited to vary or discharge an interlocutory order of the first judge.’
In Mainland Holdings Injia DCJ indicated that this is something that might be taken into account. But it is not a very weighty consideration. I infer from what his Honour said that it should only be where the Court has made a clear error of law in the course of making its earlier interim order, that the exercise of discretion entailed in the granting of the earlier order should be interfered with.
The above four considerations are the principles emerging from Mainland Holdings. To those I would add the following two considerations. They were not an issue in Mainland Holdings. But they deserve illumination in view of Mr Mawa’s submission on res judicata and issue estoppel, and Mr Manase’s submission on breach of good faith.
5. Were the grounds relied on to support the setting aside or variation of the interim order, argued before the Court when it granted
the earlier order? Or did the party wanting to set aside or vary the earlier order have the opportunity to raise those grounds?
If yes is the answer to either of these queries, the Court should be reluctant to set aside or vary the earlier order. In this way the Court will give effect to the principles underlying the doctrines of res judicata and issue estoppel.
This is a very important consideration, which focuses on the conduct of the party which obtained the original interim injunction. If it deliberately misled the Court, this will be a factor weighing heavily in favour of setting aside the interim injunction.”
33. Based on these authorities, the Plaintiff submits that the Defendants’ affidavits sworn on 27 July 2020, neither raises any new issues or disclose new facts, nor do they advance a case that the order for mediation should be revoked. Proceeding on that basis, the Plaintiff argues further that, what the defendants are attempting to do is impermissibly re-litigate the issue of mediation which was determined by the Court on 21st and 22nd July 2020 and these issues have reached res judicata or issue estoppel. The decision in O’Neill v. Eliakim (2016) SC1539 (Kandakasi, Hartshorn & Kassman J), is cited to support that submission. There, the Court speaking of the concept of res judicata said:
“28. In Herman Gawi v PNG Ready Concrete (1983) unnumbered, unreported, Bredmeyer J. reproduced the following passage from The Doctrine of Res Judicata by Spencer-Bower and Turner 1969 2nd ed p1, as in his view it stated the law clearly and succinctly:
‘In English jurisprudence a res judicata, that is to say a final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the cause or matter in litigation and over the parties thereto, disposes once and for all of the matters decided, so that they cannot afterwards be raised for re-litigation between the same parties or their privies. The effect of such a decision is twofold. In the first place, the judicial decision estops or precludes any party to the litigation from disputing against any other party thereto in any other litigation, the correctness of the earlier decision in law and fact. The same issue cannot be raised again between them, and this principle extends to all matters of law and fact which the judgment decree or order necessarily established as the legal foundation or justification of the conclusion reached by the Court. In the second place, by virtue of the decision the right or cause of action set up in the suit is extinguished, merging in the judgment which is pronounced. Transit in rem judicatam. The result is that no further claim may be made upon the same cause of action in any subsequent proceedings between the same parties or their privies.’
29. That res judicata is concerned with causes of action that are the same, as distinct from issues that are the same is demonstrated by the following:
a) in the Australian High Court decision of Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 at [17]:
‘17. The distinction between res judicata (in England called “cause of action estoppel”) and issue estoppel was expressed by Dixon J. in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, at p 532 in these terms: “in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.” (at p597)’
[and then at [20]:
“The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which is merged into judgment on a prior proceeding.”
34. Finally, the Plaintiff submits that, because the defendant’s affidavits do not advance any arguments to justify the revocation of the mediation orders this Court cannot revoke or vary the orders for mediation. The Plaintiff also submits that, if the Defendants are aggrieved by the mediation orders, they have the option of an appeal to the Supreme Court, if they consider there is a legal basis to challenge that decision. At the same time, the Plaintiff quickly points out that, there is no basis for any possible appeal.
35. There are couple of critical or import factors, a consideration of which will help determine the second issue. The first factor is that, the both the decisions in the Mainland Holdings v. Stobbs and Ekepa v. Gaupe, did not concern orders that were yet to be formalised and entered. Instead, the relevant orders had been already entered by the time the applications were made. There was therefore no issue on that in those cases.
36. Secondly, both cases concerned interim restraining orders. Section 14 (3) (b) (ii) of the Supreme Court Act (Chp. 37) provides for appeals arising out of judgment or orders either granting or refusal of an application for interim restraining orders as of right whilst all other interlocutory judgments or orders will have to be with leave of the Court. This means in my view that, once the National Court has come to a decision on an interim injunction application it, would have no jurisdiction to revisit such an order, unless it is one that is capable of being revisited. Orders that could easily fall in that category are those that are returnable or a fixed date, or are to last on or up to a particular date, or urgent interim ex parte orders and or orders conditional on certain events or things happening or not happening. Neither of the cases discussed this point of law. In Mainland Holdings v. Stobbs, Injia DCJ, noted:
“The injunctive order is the subject of an appeal and an application for stay filed in the Supreme Court at Waigani, both of which are pending determination. As to the proper approach to be adopted by this Court in assuming jurisdiction in this matter in the light of the pending appeal, I accept the position taken by both parties that the National Court has jurisdiction to vary or dissolve an interlocutory order notwithstanding an appeal and application for stay has been filed against the same order, which are pending hearing. There is extensive authority in support of this proposition, some of which have been cited by counsel.”
37. His Honour then went on to reason as he did and eventually decided to lift the interim restraining orders in the case, then before him. In short, His Honour reasoned:
“In summary, there were two basis upon which Kirriwom J granted the order – that is the “grain crisis” and the continued survival of the plaintiff company. On the evidence and information placed before me, I am satisfied that since the injuctive (sic) order, significant changes in relevant circumstances have taken place which render the continuation of the order no longer relevant, neccesary (sic) or appropriate. I have found that the grain crisis has been resolved with the import of sufficient quantity of grain. And Mr. Stobbs’ conduct has been detrimental to the continued well-being and survival of the company.”
38. In Ekepa v. Gaupe, after having failed in one earlier application Mr. Gaupe, applied again for a set aside interim restraining orders. Against that application, Mr. Ekepa claimed the doctrine of res judicata as applying and was a bar to his opponent’s application. After considering a couple of authorities on point, Cannings J, held:
“None of the above cases has addressed the question of whether res judicata or issue estoppel apply when the earlier court proceedings do not involve a final determination of the dispute between the parties. I infer from that – and this is borne out by the emphasis on the finality of the court’s earlier order – that res judicata and issue estoppel have no direct application if all that the earlier court has done is make an interim order.”
39. Thirdly, I note that in both cases, the Court applied the principles governing a revisit of interim orders on the basis of changed circumstances. In Mainland Holdings v. Stobbs, the court found there were change in circumstances that warranted a revisit and set aside of the orders. Accordingly the earlier orders were revoked. In Ekepa v. Gaupe, the Court found that none of the 6 factors it set out and discussed were met such that, it found Mr. Gaupe did not make out a case for a revisit and set aside of the interim restraining orders.
40. Fourthly, I noted in the present case, the orders sought to be revoked, set aside or varied are mediation orders made under s. 7B (2) of the National Court Act and Rules 4 and 5 of the ADR Rules. Rule 5 (6) specifically states that:
“The Court may revoke or vary an order for mediation at any time but before the conclusion of the mediation.”
41. This I note is broader and unrestricted compared to O. 12, r. 8 of the National Court Rules, which require applications for set aside or variation of earlier orders prior to a formal entry of the orders. This is the case for very good reason. Rule 9 (3) of the ADR Rules require mediations to commence and conclude within 2 calendar months from the date of the appointment of the mediator. This reflects the whole purpose of introducing mediation and ADR as part of the Court’s case management process or tools. The aim is to ensure, there is no delay of proceedings on account of a mediation order. Indeed, Rule 5 (5) (a) provides against any automatic stay of proceedings on account of a mediation order.
42. In a perfect world, all parties to any proceeding referred for resolution by mediation would faithfully take all of the necessary steps and ensure the mediation does take place in accordance with the orders of the Court. That would see to timely compliance and return of the matters to the Court on the appointed dates after mediation upon which, the matters would conclude there and then, if parties agree to resolve all of their issues. If not, the matters would be the subject of appropriate directions and would be progressed to a hearing possibly on facts and issues settled by and at mediation. This would see an expedited trial and disposal of matters, thereby confirming to the claim that, mediation enables expedited resolution of disputes, bring about lasting outcomes at less costs to the parties and free up the Court’s limited time. Unfortunately, we live in an imperfect world. For all manner of reasons, Court ordered mediations may be either frustrated by matters beyond the parties’ control or the deliberate acts of any or all of the parties. Already we have a number of instances in which parties have been found to have acted in bad faith: See for example the decisions in Koitaki Plantations Ltd v. Charlton Ltd & Or (supra).[4] In some cases, the parties and the mediator could be making very good progress and genuinely require more time to complete the process. In other cases, the parties and the mediator may need to overcome some hurdles, such as funding and other logistical arrangements, the clearance of which, could enable the mediation to proceed. Give, these kinds of eventualities, it was necessary to have included in the ADR Rules the provisions of Rule 5 (6).
43. In addition to the forgoing factors, in this case, the Defendants point out to two events that constituted change in circumstances within the meaning of the decision in Ekepa v. Gaupe. The first of the two is the non-availability of myself as the mediator to conduct the mediation on the dates initially fixed, namely, 27th – 30th July 2020. This was forced upon me by the fixing of a Judges Consultative Meeting (JCM) for 30th July 2020 on short notice on 25th July 2020. As I chair two judicial committees and lead other tracks and developmental programs, I was required to prepare reports to table at the JCM. I needed the remaining days before 30th July 2020 to attend to a preparation of the various reports in time for presentation at the JCM. Parties were immediately informed of this intervening event and were asked to appear in Court and address the Court on what to do with the mediation on the next available date, which was the 27th July 2020. In my view, this was a change in circumstances that was beyond the parties or the mediator’s control. With the mediator thus not becoming available, the mediation orders as of necessity required a revisitation by the parties and the Court to at least, if not anything else, fix new dates for the mediation. That had to be under the shadow of the trial looming. The 12th – 14th August 2020 have been fixed for trial of this matter.
44. The next change in circumstance in my view, was the revelation by the Defendants of the Plaintiff having commenced, conciliation proceedings with the ICSID, after the issuance of this proceeding and the mediation orders. The Plaintiff respond with submissions that those proceedings were commenced under a separate contractual agreement, namely the Placer Porgera Sales Agreement (PPSA) dated 13th September 1996. It goes on to argue that, this proceeding and the mediation orders concern a public law matter and there is no overlap between the two separate proceedings. Further, it submits that the ICSID proceeding seeks consensus resolution of certain legal rights and claims. Arguments on this development caused the Court to ask if the Mine Development Contract (MDC), the subject of this proceeding has any dispute resolution clause. The answers to that question took me to clause 22 which provides for resolution of all disputes between the parties by arbitration. This was not a fact clearly drawn to the Courts attention well before or at the time of the Court making the orders for mediation. All parties were under a duty to draw this fact to the attention of the Court and they all failed to do so. On this revelation, the Defendants submitted that this raises the question of whether this proceeding are competent and the Court’s jurisdiction has been correctly invoked. In response, the Plaintiff submits this proceeding are not based on contract but public administrative law. Whether, the Plaintiffs or the Defendants are right on this point is a question that will have to be determined by reference to the relevant law on point.
45. I will now turn to the third and fourth questions and deal with them as one.
(3) Does this case present determinative legal questions and are the Defendants entitled to raise this issue?
46. The arguments based on the presentation of the questions listed in the Fifth Defendants motion which I have paraphrased and stated at paragraph 4 above, as a reason to revisit the mediation orders and have them set aside, revoked or varied can not be sustained. This is for the simple reason that the Defendants were given ample time to formally make their application to take this matter out of mediation. They always had the relevant facts and the basis to raise those issues, which they failed to do. Further, the Court fully heard the parties on 21st and 22nd July 2020 and made a decision to refer this matter for resolution pending the arrival of the trial dates. The Defendants failed to adduce any evidence as to why or how they were prevented in their endeavours to bring the relevant evidence and present their full arguments against any referral to mediation when the Court was dealing with the question of referral to mediation. Apart from the Plaintiff commencing, ICSID proceedings, the Defendants presented the very arguments they presented before me in support of their respective motions when I heard them on the 21st July 2020 before the decision leading to the mediation orders.
47. There must be finality in litigation, the sooner the better: See Thomas Barry v. Joel Luma (supra). Public policy demands that be the case. All the parties in any proceeding and the Courts are under an obligation in the interest of serving justice to ensure that, finality is reached without unnecessary delays. That obviously means, parties making sure and they do not engage in repeat applications or arguments while the Court remains vigilant and ensures not to allow parties to reagitate an issue previously argued and determined by a Court. The National Court presently, as a huge backlog problem, because amongst others, the parties and the Courts alike are allowing all sorts of interlocutory applications and arguments to be presented and, in some instances, repeat applications and arguments. The Court and the nation can ill afford going forwards and backwards and hence, unnecessarily delay and increase costs in court proceedings. The parties are under a duty to put all their evidence and arguments on the first occasion of a hearing of a substantive or interlocutory issue. It should follow therefore in this case that, the Defendants who raised their arguments at the hearing that led to the mediation orders, are not entitled to reagitate those arguments and seek to have the mediation orders revoke, set aside or varied.
48. In end I am satisfied that only one event constitutes a change in circumstances, such that the mediation orders must be revisited. That event concerns myself as the appointed mediator becoming unavailable on the dates fixed for mediation. This necessarily requires a revisit of the mediation orders. The revisit can only be to vary the mediation orders to allow for new dates on which the various steps that were to be taken under the mediation orders, can be taken. Before the Court makes such variation orders, it needs to take into account the fact that, the trial in this matter has been fixed and the parties are well prepared to proceed with the trial on the confirmed dates, 12th – 14th August 2020. That is Wednesday to Friday next week. Mediation was ordered pending the trial in the hope that, the mediation exercise would be concluded by 30th July 2020. Unfortunately, as already noted this did not happen due to no fault of the parties or myself as the appointed mediator. All parties took all steps necessary, including meeting of certain expenses by the Plaintiff to secure the venue and other facilities required for the mediation. The Plaintiff argues for a change of the trial dates to allow for mediation to take place first. The Defendants oppose any changes to the set trial dates, arguing their claimed determinative legal issues need to be first determine.
49. Order. 16, r. 5 (4) of the National Court Rules, require substantive judicial review applications to be fixed for hearing within 21 days from the grant of leave for review. Leave in this matter was granted on 05th June 2020. The 21 days from that date fell on 26th June 2020. Given a number of interlocutory matters and a large number of affidavits and other documents filed by the parties and the need to settle upon an index of the documents that should be in a review book, it was not possible to fix the trial date before or shortly after that date. Also, the Court had a tight schedule. Hence the earliest convenient time for all parties and the Court initially was the last week in July, which subsequently got changed to 12th – 14th August 2020 with the consent of all parties as they were all not ready before then. Now they are all ready for the trial. Having due regard to the provisions of O.16, r. 5(4), the parties’ preparedness and the Court having a busy scheduled all the way to September 2020, I am disinclined to vacating the trial dates to accommodate mediation. I am also of the view that, if there is any merit in the Defendants claim of the existence of a number of determinative legal questions, the trial will give the parties the opportunity to deal with those issues first and if need be, go back to mediation after those hurdles are cleared. In this regard, I note all the Defendants are committed to returning to mediation to address and resolve a number of issues regardless of which way the decision on the substantive review goes. Those issues are outline at paragraph 4 of his affidavit by the Chair of the State Negotiating Team, Mr. Isaac Lupari sworn on 27th July 2020 as, (1) the parties residual obligations under clause 19 of the MDC, (2) commercial arrangements between parties for a re-opening of the Porgera Mine under a new SML, and (3) legacy issues relating to resettlement of the customary owners of the SML. In these circumstances, I consider it appropriate that any new dates for mediation should be left to be fixed by the Court after the trial and if thereafter the parties agree to submit to mediation.
Decision and formal orders
50. Based on the foregoing reasons, I have come to a decision and make the following orders:
(1) The notices of motions document numbers 182 and 186 in the Court file for a revocation or termination of the mediation orders by the First, Third, Fourth and Seventh Defendants are dismissed.
(2) The motion by the Fifth Defendant for a variation of the mediation orders of 21st and reaffirmed on 22nd July 2020 is granted only in respect of setting new dates for the various events or steps to be taken under the mediation orders.
(3) The new dates for mediation shall be fixed in consultation with the parties after the trial upon the parties agreeing to go to mediation.
(4) The trial dates fixed for the 12th -14th August 2020 are reconfirmed.
(5) Costs of the motions dismissed by term 1 of these orders, are ordered against First, Third, Fourth and Seventh Defendants to be taxed, if not agreed.
________________________________________________________________
Ashurst Lawyers: Lawyers for the Applicant
Nelson Lawyers: Lawyers for the First, Third & Fourth Defendant
M.S. Wagambie Lawyers: Lawyers for the Fifth Defendant
Solicitor General: Lawyers for the Second, Sixth &Eight Defendants
Geroro Lawyers: Lawyers for the Seventh Defendants
[1] PNG Ports Corporation Ltd v. Canopus No 71 Ltd (2010) N4288; Hargy Oil Palm Ltd v. Ewasse Landowners Association Inc (2013) N5441; Alex Awesa v. PNG Power Limited (2014) N5708; Able Construction Ltd v. W.R. Carpenter (PNG) Ltd (2014) N5636 and Robmos Ltd v. Fredrick M Punangi (2017) N6585, to name a few.
[2] Such as ss. 333 (d) and 334 of the PNG Constitution and s. 118 of the Organic Law on Provincial and Local-level Governments.
[3] See also my decisions in James Aiwasi v. Monty Derari – Oro Provincial Administrator & Ors (2017) N6602; Harry Tovon v. Carl Malpo (2016) N6240; Thomas Babia v. Mr. Pepi Kimas (2009) N3940 and most recently in Geosite Management Ltd v. Hon. Havila Kavo & Ors (2020) N8439.
[4] Other cases on bad faith at mediation include: John Illius v. Chris Bias (2018) N7618; South Pacific – PNG - Seafoods Co Ltd v. The NEC (2017) N6888; Nibson Kanen Nibabe v. Jack Soli (2017) N6886; Kanga Kawira v. Kepaya Bone (2017) N6802; Roger Meckpi v Luke Fallon (2017) N6708; Wantok Gaming Systems Ltd v. National Gaming Control Board (2014) N5809; Alex Awesa v. PNG Power Limited (2014) N5708
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