SC1157

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 84 OF 2011

BETWEEN:

LOUIS MEDAING and 1083 others
Appellants

AND:

RAMU NICO MANAGEMENT (MCC) LIMITED
First Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

AND:

DR WARI IAMO 
in his capacity as the Director of the Environment
Third Respondent

Waigani: Sakora, Gabi and Hartshorn JJ.
2011: 14th & 23rd September

Second application for an interim injunction

Facts:

The appellants apply for an interim injunction to restrain the disposal of mine waste or tailings into the sea, pending the determination of their appeal. A previous application was dismissed and this court refused to set aside the dismissal.The first respondent applies to stay or dismiss the appellants' application as an abuse of process. The second and third respondents oppose the appellants' application.

Held:

A second application for an interim injunction made without having set aside this court's refusal to set aside its dismissal of the first application, is an abuse of the process of the court. 

Cases cited:

Papua New Guinea cases
 
Don Polye v. Jimson Papaki & Ors (2000) SC637
Mainland Holdings Ltd v. Stobbs (2003) N2522
Akepa v. Gaupe (2004) N2694
Timothy Lim Kok Chuan v. Simon Goh Say Ben (2004) N2538
Pius Nui v. Senior Sergeant Mas Tanda (2004) N2765 
Telikom PNG Ltd v. ICCC (2008) SC906 
Tarsie v. Ramu Nico Management (MCC) Ltd (2009) N3987 
Tamali Angoya v. Tugupa Association Inc. (2009) SC978
Rimbao v. Pandan (2011) SC 1098

Overseas Cases

D. A. Christie Pty Ltd v. Baker [1996] 2 VR 582 
Nominal Defendant v. Manning [2000] NSWCA 80 

Counsel: 

Ms. T. G. Twivey, for the Appellants
Mr. I. R. Molloy and Mr. C. Posman, for the First Respondent
Mr. T. Tanuvasa, for the Second and Third Respondents 

23rd September, 2011

1. SAKORA J: I have had the advantage of perusing and considering the joint judgment of my brothers, and, having come to the same conclusions, and substantially for the same reasons, I do not have anything to add. I would dismiss the application for interim injunction with costs.

2. GABI and HARTSHORN JJ: The appellants apply for an interim injunction to restrain the disposal of mine waste or tailings into the sea, pending the determination of their appeal. The first respondent applies to stay or dismiss the appellants' application as an abuse of process. The second and third respondents oppose the appellants' application.

3. We consider the first respondent's application first as if it is successful, it will determine the appellants' application.

4. There are three grounds relied upon by the first respondent for its contention that the appellants' application is an abuse of process. They are: that leave was not obtained by the appellants to amend their application, their initial application and amended application are defective, and the appellants are not able to apply a second time for the relief they seek, particularly when this court has refused to set aside its dismissal of the appellants' first application.

5. As success on any of these grounds would be determinative, it is not necessary for their consideration to be in any order. We consider the last ground first, that is, whether it is an abuse of process for the appellants to apply a second time for relief, when this court has refused to set aside its dismissal of the appellants' first application.

6. On 19th August 2011 this court dismissed the appellants' application for an interlocutory injunction when the appellants' lawyer failed to attend as directed by the Chief Justice (dismissal order). The injunction sought was in similar terms to that now applied for by the appellants. On 2nd September 2011 this court refused the appellants' application to set aside the dismissal order (set aside refusal). 

7. The first respondent submits that this court will not entertain a second or subsequent application for an interlocutory order except in limited circumstances and cites and relies upon numerous decisions of the National Court. It also relies upon the decision of this court in Telikom PNG Ltd v. ICCC (2008) SC906. It is further submitted that it is an abuse of process to make multiple applications for the same relief.

8. The appellants submit that they are entitled to make the same application again, the dismissal order was not made after a hearing on the merits of the application and as to the set aside refusal, it was not necessary to have the dismissal order set aside. The only reason the set aside application was made it is submitted, was because of an adverse order as to costs. Further, it is submitted that the National Court decisions cited all concern applications that had been heard on their merits and that Telikom (supra), concerns multiple proceedings and not multiple interlocutory applications.

8. It is the case that a court will permit a second interlocutory application for similar relief in certain limited circumstances: Mainland Holdings Ltd v. Stobbs (2003) N2522; Akepa v. Gaupe (2004) N2694; Timothy Lim Kok Chuan v. Simon Goh Say Ben (2004) N2538; Pius Nui v. Senior Sergeant Mas Tanda (2004) N2765; Tarsie v. Ramu Nico Management (MCC) Ltd (2009) N3987. We also refer to two Australian authorities, which are persuasive in this jurisdiction: D. A. Christie Pty Ltd v. Baker [1996] 2 VR 582, a decision of the Victorian Court of Appeal and Nominal Defendant v. Manning [2000] NSWCA 80, a decision of the New South Wales Court of Appeal.

9. In this instance however, the appellants are not merely making a second interlocutory application for similar relief after their first application was dismissed. They are making a second application, notwithstanding that this court has already made an order refusing to set aside its dismissal of the first application.

10. The appellants submit that it was not necessary to have the dismissal order set aside and the only reason they made the application to set aside was because of an adverse costs order. Putting aside whether this submission is correct and notwithstanding that it raises the question amongst others, of why an application to set aside the dismissal order was made as opposed to an application to set aside the costs order only, the fact remains that there is in place an order of this court refusing to set aside the dismissal order which is in respect of the interlocutory relief for which the appellants now apply.

11. The appellants do not apply to set aside the set aside refusal and so by making the present application, the appellants are disregarding an order of this court and treating it as though it has no effect and does not exist. We are of the view that what the appellants are attempting is an abuse of the process of this court. The appellants' application should be dismissed on this ground.

12. If the appellants' application is not so dismissed, the only further evidence filed in support of the present application for an injunction concerns a direction hearing and service or otherwise of the amended application. There is no further evidence in support of the application for instance as to a significant change in circumstances or as to the circumstances concerning the dismissal order and the set aside refusal such that would warrant this second application for an interlocutory injunction being entertained by this court. For this additional reason, the appellants' application should be dismissed as being an abuse of process of the court.

13. We refer to this court's authority in this regard as discussed in Don Polye v. Jimson Papaki & Ors (2000) SC637, Tamali Angoya v. Tugupa Association Inc. (2009) SC978 and Rimbao v. Pandan (2011) SC 1098. 

14. Given the above it is not necessary to consider the other submissions made on behalf of the parties.

15. We mention however, as to the interim injunction sought, that we note that evidence has been given on behalf of the first respondent that the first respondent will not be in a position to be able to make any discharges about which the plaintiff makes complaint, until at least 10 October 2011. Notwithstanding that this is not an undertaking given on behalf of the first respondent, there is no evidence that previous estimations given as to the first respondent's capacity to make such discharges have not been given in good faith. In such circumstances, and given that we understand that the substantive appeal is to be heard on the 3rd and 4th October 2011, we are not satisfied that the interim injunction sought by the plaintiff is necessary.

Orders

16. The Orders of the Court are:

a)	the application of the appellants filed 2nd September 2011 and the amended application of the appellants filed 9th September 2011 are dismissed.

b)	the costs of the respondents of and incidental to the applications are to be paid by the appellants.
___________________________________________________________
Twivey Lawyers: Lawyers for the Appellants 
Posman Kua Aisi Lawyers: Lawyers for the First Respondent 
Solicitor-General: Lawyer for the Second and Third Respondents