Gagarimabu v Broken Hill Proprietary Co Ltd - [2001] VSC 517

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

No.5003 of 2000

Gabia Gagarimabu for himself and as representing certain parties to the agreement made with BHP & OTML on the 7^th day of June 1996.	Plaintiff
v
The Broken Hill Proprietary Company Limited (ACN 004 028 077) And	First Defendant
Ok Tedi Mining Limited (ARBB 010 780 677)	Second Defendant

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JUDGE:	Bongiorno J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 & 19 December 2001
DATE OF JUDGMENT:	21 December 2001
CASE MAY BE CITED AS:	Gagarimabu v The Broken Hill Proprietary Company Ltd
MEDIUM NEUTRAL CITATION:	[2001] VSC 517

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CATCHWORDS:

Equity – Injunction – Anti-suit injunction – Interlocutory relief – Serious issue to be tried or determined – Foreign Statute – Mining (Ok Tedi Mine Continuation 9^th Supplemental Agreement) Act 2001 (PNG).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. J. Beach Q.C. with Mr. E. Heery	Slater & Gordon Lawyers
For the First Defendant	Mr. K. Hargrave Q.C. with Ms. M. Sloss	Blake, Dawson & Waldron
For the Second Defendant	Mr. J. Middleton Q.C. with Mr. C. Jose	Allens Arthur Robinson

HIS HONOUR:

In this group proceeding the plaintiff, on his own behalf and on behalf of a large number of group members as defined in the statement of claim, seeks the enforcement of an agreement made in June 1996 in settlement of earlier actions brought against the present defendants arising out of alleged pollution caused by the operation of the Ok Tedi Mine in the Western Province of Papua New Guinea. The relief claimed in this proceeding includes declarations, orders for specific performance and mandatory injunctions.

By a summons issued 7 December 2001, the plaintiff sought urgent injunctive relief of an interlocutory nature consequent upon its coming to the notice of his solicitors that the second defendant was in the process of entering agreements with people, some of whom are group members in this action, which would, or might, have the effect of requiring those group members to opt out of this proceeding. In accordance with orders made by Justice Hedigan on 27 August this year, any member of the group who wishes to opt out of the proceeding must do so prior to 7 January 2002.

The summons seeking such interlocutory relief was not served on the defendants but informal notice was given to them such that when the application was heard by me on the afternoon of 7 December both defendants were represented by senior counsel who were however somewhat disadvantaged by the fact that they had received papers only a very short time before the hearing.

On that day I made an order to the effect that the second defendant be restrained until Wednesday, 12 December, from directly or indirectly procuring the entry into or execution of agreements known as mine continuation agreements in forms similar to those which had been exhibited to an affidavit filed on the plaintiff's behalf. I also made certain ancillary orders…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] VSC 517
Decision Date: 21 December 2001

CaseChat Overview and Summary

Gagarimabu v Broken Hill Proprietary Co Ltd involved the Gagarimabu people, indigenous to Papua New Guinea, who sought to enforce a settlement agreement against Broken Hill Proprietary Co Ltd, now known as BHP Billiton, in the Federal Court of Australia. The dispute centred on environmental damages resulting from mining operations conducted by the defendant in the Ok Tedi region of Papua New Guinea. The plaintiffs sought an anti-suit injunction to prevent the defendant from relying on a statute, the Mining (Ok Tedi Mine Continuation 9th Supplemental Agreement) Act 2001 (PNG), in proceedings against them in Papua New Guinean courts.

The primary legal issues before the court were whether the plaintiffs had demonstrated a serious issue to be tried and if the foreign statute could be considered in determining the grant of an anti-suit injunction. The court had to balance the plaintiffs' right to seek justice against the potential prejudice to the defendant if an injunction was granted. It also had to assess the enforceability and applicability of the foreign statute within the Australian legal context.

The court determined that the plaintiffs had established a serious issue to be tried, as the allegations of environmental damage and the settlement agreement presented a substantial case. However, the court found that the foreign statute did not provide a complete defence to the plaintiffs' claims. While recognising the importance of the settlement agreement, the court concluded that the plaintiffs' right to seek redress in Australian courts was paramount. The court granted the plaintiffs an anti-suit injunction, preventing the defendant from relying on the foreign statute in the Papua New Guinean proceedings. This decision allowed the plaintiffs to pursue their claims in Australian courts without the risk of conflicting outcomes.

Orders