Ok Tedi Court Case 19 December 2001

Transcript Of Proceedings
Supreme Court Of Victoria, Civil Jurisdiction, Melbourne
Wednesday 19 December 2001, Before The Honourable Justice Bongiorno

b e t w e e n

GABIA GAGARIMABU Plaintiff
- And -
BHP BILLITON LTD Firstnamed Defendant
- And -
OK TEDI MINING LTD Secondnamed Defendant

MR J. BEACH QC, with MR E. HEEREY appeared on behalf of the Plaintiff.
MR K. HARGRAVE QC, with MS M. SLOSS appeared on behalf of the Firstnamed Defendant.
MR J. MIDDLETON QC, with MR C. JOSE appeared on behalf of the Secondnamed Defendant.

HIS HONOUR: Yes, Mr Beach?

MR BEACH (OFF MICROPHONE): Your Honour, I was addressing you late yesterday with (indistinct). One of the issues which is relevant to balance of convenience is the issue of either enforcement of the MCA's either in PNG or enforcement of the MCA's in Victoria. It might be said, Your Honour, if they're sought to be enforced and these arguments are good, that would provide an adequate defence to those enforcement proceedings at some later stage. But no injunction ought go today.

The defence (indistinct) that the MCA's have been entered into in contravention of s.33V or because there's no authority, or because they've been entered into in contempt of this court, you can all work it out later.

Can I explain why such an argument doesn't work. Let me deal first with the potential scenario of enforcement in PNG against the group members of the terms of the MCA's. If Ok Tedi Mining Limited were to take proceedings in PNG against a group member, an enforcement, there would be great doubt as to whether a defence to such a proceeding by a group member in PNG could involve the notions of contempt of this court, or the fact that the agreements were entered into in contravention of s.33V.

So if the MCA's were enforced in Victoria, we may have good defences in relation to contravention of s.33V or that these agreements have been entered into in contempt of this court. Your Honour would be applying a Victorian statute in the first instance or protecting your own processes in the second instance. But in relation to a PNG court where agreements were served upon in PNG, it's difficult to see how it would be a defence of a group member in a PNG proceeding that s.33V, which applies to a foreign courts process, or the contempt of court issue provided proceedings in PNG. So there would be significant if not grave doubts that we would have available to us similar defences that we have available here in terms of enforcement, to proceed in PNG.

HIS HONOUR: If the PNG court was considering one of these agreements, it would be simply applying domestic law, wouldn't it? The choice of law question would not even arise, would it?

MR BEACH: Exactly right, because the agreements were made in PNG, it would apply to statute.

HIS HONOUR: Yes.

MR BEACH: There would be no question of applying foreign law.

HIS HONOUR: At least that is if the PIL rules that PNG are the same as here, but I assume they are. Or in absence of proof to the contrary, one court would be required to assume they are.

MR BEACH: Yes. The second point, Your Honour, is that we say if our arguments are right, that these agreements have been entered into arguably in contempt of this court, that there should be no ability of OTML to even commence proceedings in PNG, because they'd be benefiting by their wrongdoing in being able to commence proceedings in PNG against us, or prosecuting proceedings in PNG against us.

It is not enough to say let Ok Tedi Mining Limited take proceedings in PNG and you might have these defences - which we say we wouldn't have in PNG - we say that we're entitled to restrain them from even commencing proceedings in the first place.

Your Honour will be well familiar with the jurisprudence of anti suit injunctions. Can I hand to Your Honour a copy of the High Court decision in CSR v. Signet Insurance Australia (1997) vol. 189 C.L.R. 345. I have copied some relevant extracts.

HIS HONOUR: Thank you.

MR BEACH: This case makes it clear that the equitable jurisdiction of this court - the domestic court - to grant anti suit injunctions is quite broad. But I want to take Your Honour to a few concepts. Can I take Your Honour first to p.372 which is the decision of the chief justice. He was in dissent on the ultimate result, but the principles that he expounded are similar to the principles expounded by the majority, which I'll come to shortly.

If Your Honour goes to p.372 under the heading "The anti suit injunction", there's a discussion by His Honour. It says: "Although a domestic court may hold it is not ... (reads) ... appropriate to avoid injustice." We say in this case it is appropriate because we would otherwise suffer an injustice.

At p.373 it's said: "In some cases the fact that ... (reads) ... only of those matters" - - -

HIS HONOUR: I've lost you.

MR BEACH: This is p.373, about .4 on the page.

HIS HONOUR: Yes.

MR BEACH: "In some cases the fact that ... (reads) ... than we would in the foreign court." So we have the reverse - and we would say the reverse principle applies. If we have more rights here - - -

HIS HONOUR: The defendant could say that it will not be vexed by the same defences in the foreign court?

MR BEACH: Yes.

HIS HONOUR: Or it can turn it the other way and say "We shouldn't be restrained from proceeding in New Guinea because there we won't be trammelled by allegations of contempt of court or a breach of s.33V"?

MR BEACH: No doubt, Your Honour. So the question is what does the justice of the situation require? How do these rights arise? What are the competing interests of justice and how is justice avoided?

Just going further down the page: "The question whether to issue ... (reads) ... necessary to avoid injustice." Then a passage out of Laker Airways is cited. Could I just take Your Honour to the second half of that passage. It says: "Furthermore, if under English law ... (reads) ... to the injunction seeker" - I say I'm the injunction seeker and I say we would have defences under s.33V in contempt. "That defence may be given ... (reads) ... action of non liability."

HIS HONOUR: Just read that again. "If under English law a defence ... (reads) ... available to the injunction seek." That defence - - -

MR BEACH: May be given anticipatory effect. So if I say I've got these defences, Your Honour can restrain the commencement of a proceeding. It's not the case that I'm left to running those defences if (indistinct) - Your Honour can take the prior step of actually enjoining the proceeding.

HIS HONOUR: You say that's your situation?

MR BEACH: Yes. 374, about .5 on the page: "But a jurisdiction to enjoin ... (reads) ... policy of the domestic law." The policy of the domestic law is s.33V here, and also protecting this court's processes, so you do have jurisdiction - putting aside whether you exercise it - to enjoin the prosecution of proceedings which in PNG might circumvent those two matters.

Now can I take you to the majority judgment beginning at p.389, towards the bottom of the page - the last three lines: "The question whether a dispute as to legal ... (reads) ... processes of other courts." We say we have both situations. We have certain legal or equitable rights here, either under s.33V or to pursue our claim. The other side of that passage, "Or a common injunction to protect the processes of the Chancery Court" - Your Honour has the power to protect your processes by interference by external processes.

HIS HONOUR: That's a reference to the injunctions issued traditionally by the Court of Chancery to protect it against its process against interference by the common law courts.

MR BEACH: That's so, Your Honour, yes. But equally it seems to apply to protect its processes against the processes of a foreign court - it's not for an Australian - a foreign court. It's to restrain litigants before this court - the domestic court - from invoking some other process to interfere or gain an advantage which wouldn't be available to it here.

At p.391, the last paragraph on the page: "The counterpart of the court's ... (reads) ... the grant of anti suit injunctions." Hence our case. We say we've invoked a process here in relation to the resolution of our claims, and you have the power by the grant of an anti suit injunction to take those processes.

The last line on that page: "Similar as Justice Gummow pointed ... (reads) ... proceedings pending in that court." We would say if there were proceedings in PNG against my clients enforcing the MCA's, that would interfere with their prosecution of their claims in this jurisdiction.

The court goes on to say: "The inherent power to grant anti ... (reads) ... exercise of legal rights." We would say here that any suit in PNG under the MCA would be an unconscious exercise of legal rights in the circumstances of this present case.

HIS HONOUR: Because it seeks to circumvent what's happening here.

MR BEACH: Yes. "If the bringing of legal proceedings involves ... (reads) ... no matter where they are brought." So assume for the moment, Your Honour, that under the PNG law, Ok Tedi Mining Limited has a perfect legal right to sue in PNG to enforce the MCA's, what this passage is saying is so what? If they have the legal right, but in the circumstances it involves an unconscientious exercise of it, then this court here can restrain the suit in PNG or restrain Tedi from suing PNG. Even though it might have a perfect legal right.

That might be a part answer to what Your Honour was asking me yesterday, which is once a PNG statute goes through, that's it. No, that isn't. It might give Ok Tedi Mining Limited certain legal rights and PNG in a vacuum, but it says nothing about this court's jurisdiction to grant equitable relief in the form of an anti suit injunction.

There are some more passages, Your Honour, at p.395.

HIS HONOUR: This is the majority - in fact it's the whole of the court except for chief justice.

MR BEACH: That's right, yes. Page 395, last paragraph: "The case is concerned with ... (reads) ... breach of comity by that court." I'd like to hear what Mr Middleton and Mr Hargreaves say, no doubt they'll start talking about comity, but if they do, that's modern answer to the grant of an anti suit injunction.

HIS HONOUR: Justice Hedigan, I think, quoted this in that judgment of his.

MR BEACH: Yes, that's right.

HIS HONOUR: Yes.

MR BEACH: At p.397 the court deals with interlocutory anti suit injunctions and makes the point essentially that an interlocutory anti suit injunction can in some sense be considered to be a final determination, because if you have a proceeding in this court and you're injuncted, a proceeding in a foreign court pending the hearing and determination of this proceeding, that essentially, logically has the effect of a final determination, because there proceeding here goes through to its end point.

So although it's interlocutory in nature, it has a final effect, because the proceeding in this court will go through till its end point. There'll be a judgment and then a res judicata would arise, so the effect of an anti suit injunction and in the hearing of determination of this ultimate proceeding would have the affect really of finally determining which of two courts the matter would be - - -

HIS HONOUR: Provided the foreign court gave effect to the res judicata.

MR BEACH: That's right, Your Honour, yes.

HIS HONOUR: May not.

MR BEACH: True.

HIS HONOUR: It may say - may take a different view of that.

MR BEACH: Yes.

HIS HONOUR: But might have a different PIL rule.

MR BEACH: Yes.

HIS HONOUR: For one thing, and it might also - applying these propositions backwards - might also say that the proceeding here - although it occurred - and resulted in a judgment is not something that ought to be recognised - - -

MR BEACH: Can I say this, Your Honour? I'm not asking for anti suit injunction, pending the hearing and determination of this proceeding. I'm just seeking an injunction up until the start of February, or whenever we can have a - essentially a proper hearing of these issues.

HIS HONOUR: Yes.

MR BEACH: So this passage here shouldn't be confused with the interlocutory injunction which I'm seeking, which is up until such time as the court can hear these matters properly - - -

HIS HONOUR: And deal with this issue. But if this - what you're seeking by your application - and I was going to have to come to this and I gave it some consideration last night - you're actually seeking a final determination in respect of the application of s.33B, aren't you?

MR BEACH: And the contempt issue - - -

HIS HONOUR: And the contempt issue - - -

MR BEACH: - - - and it's appropriate to do that by summons in the existing proceeding, according to the authorities.

HIS HONOUR: Yes.

MR BEACH: Particularly on the contempt issue. And also on the s.33V issue, because at the end of the day it's part and parcel of this whole group proceeding - - -

HIS HONOUR: But once that's determined - say you were successful on the s.33V issue - - -

MR BEACH: Yes.

HIS HONOUR: - - - and these agreements were entered into without the approval - although - that they were settlements and they were entered into without any proof from the court, that would determine essentially the validity of those agreements.

MR BEACH: No, because if you hold that s.33V applies, then you have to have an approval application - - -

HIS HONOUR: Yes.

MR BEACH: - - - so it says nothing about the underlying validity, it's more a temporal problem for enforcement of the agreements - - -

HIS HONOUR: Really a question of whether they require approval or not.

MR BEACH: Yes. Whereas the contempt issue and the lack of authority go fundamentally - in other words, even assuming that they're properly approved - that is, even assuming that s.33V applies and that they're approved by the court, the contempt issue and the authority issue still arise.

HIS HONOUR: Yes.

MR BEACH: Because you might say, "Well, they only bind those that actually consented, not those that have been forced to, consent so to speak, by what's happened in PNG." So you will have that, that's not a question.

HIS HONOUR: Yes.

MR BEACH: I had thought that at one stage - attractively - that if Your Honour today dealt with the s.33V issue, that might make the question of injunction unnecessary, but it wouldn't because you'd still need them to deal with - - -

HIS HONOUR: In relation to the earlier issues.

MR BEACH: Yes. But in any event, as I understand what Your Honour was saying to me yesterday, Your Honour is not even going to deal with it.

HIS HONOUR: I'm not inclined to - - -

MR BEACH: The s.33V issue - - -

HIS HONOUR: - - - in the three days before Christmas to try and write a definite judgment on s.33V. I think that is unrealistic.

MR BEACH: Yes. P.397, those paragraphs under the heading are really distinguishable from the present case in the sense that the interlocutory nature of the anti suit junction that we're seeking is really only up until some time in February, or whenever we can get it, in essence, a final hearing of these matters.

HIS HONOUR: Yes.

MR BEACH: Can I make one other point though, Your Honour, and this is at p.398, at about .6 on the page: "In cases where anti suit injunctions are ... (reads) ... any interest in the matter." Sir, in the CSR v. Signa case there were competing considerations as to whether the action proceeds in Australia, or the US action proceeds. But if I'm seeking an anti suit injunction to protect the processes of this court, or these proceedings in the prosecution of my claims in these proceedings, then you don't even get into that sort of balancing sort of - - -

HIS HONOUR: Well, there's no list (indistinct) in the PNG court.

MR BEACH: No. Now, two other matters in relation to whether Your Honour should grant a very limited form of anti suit injunction of these. If Your Honour goes to the affidavit of Mr Phillips, it's the first of - I think - three or four of them. This is his affidavit of 12 December.

HIS HONOUR: Yes.

MR BEACH: And if Your Honour goes to Exhibit CWP22.

HIS HONOUR: Have that.

MR BEACH: Now, this is a copy of the settlement agreement of 7 June 1996. Can I take Your Honour to Clause 7, which is the jurisdiction and governing law provision, 7.1 provides that proper law of the contract is Victoria. More importantly in 7.2: "Each party hereby irrevocably submits to the jurisdiction ... (reads) ... enforcement of this agreement." So you have an expressed contractual promise that any matter in connection with the enforcement of this agreement, parties, OTML and others have agreed to irrevocably submit to this jurisdiction.

HIS HONOUR: This is an agreement - this was the original - this is the - - -

MR BEACH: One we're suing on - - -

HIS HONOUR: - - - the subject matter of this action.

MR BEACH: Yes, exactly.

HIS HONOUR: That was executed - the parties to that included the defendants in this case.

MR BEACH: That's right, Your Honour. If Your Honour goes to the front page - - -

HIS HONOUR: Yes.

MR BEACH: BHP Pty Co Ltd, Ok Tedi Mining Ltd - - -

HIS HONOUR: Yes.

MR BEACH: Now, of course, what the - on our scenario, what the defendants - sorry, Your Honour. There is another document. If Your Honour goes to CWP23 these are the terms of settlement. There are actually two documents. And the terms of settlement contain a similar provision in Clause 10.2.

HIS HONOUR: What's the difference between these documents?

MR BEACH: They deal with different matters, Your Honour. The terms of settlement deal with the payment of certain amounts in Clause 4.2 to Slater & Gordon. And - - -

HIS HONOUR: These are called what? These have got a terms of settlement - - -

MR BEACH: Terms of settlement, yes - - -

HIS HONOUR: And what's the other document called?

MR BEACH: The other one is the full settlement agreement, which is - - -

HIS HONOUR: It's called the agreement of 7 June and this is a - - -

MR BEACH: Yes, that's right.

HIS HONOUR: - - - terms of settlement of 7 June. This is also part of this action.

MR BEACH: It's more the first document, Your Honour, the settlement and the provisions of Clause 5.2 of the first document that are sued upon in this proceeding.

HIS HONOUR: Yes.

MR BEACH: Your Honour, the point is this, under our hypothesis action in PNG under the MCA preventing these claims from going ahead on the basis of these releases would be a matter arising in connection with the enforcement of this 1996 agreement.

HIS HONOUR: What's the short reason for that?

MR BEACH: Well, we're trying to enforce the agreement in this jurisdiction. If they try to prevent us on our hypothesis from enforcing this agreement by taking proceedings in PNG, we would say that's broadly a matter in connection with the enforcement of this agreement. Relevantly to the exercise of Your Honour's discretion in terms of the anti suit injunction, if Your Honour bears in mind that the effect of a PNG action would be to prevent enforcement in this jurisdiction, or further prosecution by group members of the claims in this jurisdiction, we would say such a submission to the jurisdiction clause is relevant to the exercise of Your Honour's discretion as to whether - to grant us a limited form of anti suit injunction.

The other matter, Your Honour, about PNG proceedings is the practical reality that the plaintiff's lawyers are not in as good a position in terms of expense and time to defend proceedings in PNG. We don't get notice of what OTML are up to, Your Honour. Over the vacation there would be considerable practical problems in trying to defend proceedings in PNG.

Now, if we're seeking a limited form of injunction until February, there's hardly going to be any prejudice to OTML if proceedings were to be - they were to be restrained from taking proceedings in PNG over the vacation through until 5 or 12 February or whenever this matter can come before Your Honour.

HIS HONOUR: Does anyone know whether the PNG National Court takes a summer vacation? When does it operate?

MR BEACH: They've still got judges sitting at the moment, Your Honour, but I'm not sure about what the vacation arrangements are.

HIS HONOUR: Yes.

MR BEACH: So that's dealing with one half of the equation, which is potential enforcement in PNG. The other possibility, well, if they seek to plead the MCA as a defence in this proceeding, well we can deal with that defence in the fullness of time. Your Honour doesn't need to grant any injunction in relation to that scenario. We're not seeking to enjoin OTML from pleading whatever defences it likes, because it's a defence that can be worked out later. We're not seeking any injunction there. We're seeking an injunction restraining enforcement in PNG, or enforcing the MCA's by procuring opt out notices. That's really the vice in relation to - - -

HIS HONOUR: Just say that again.

MR BEACH: We are seeking an injunction restraining proceedings being taken in PNG, and I've already addressed Your Honour as to why that's justified for the short time frame.

HIS HONOUR: Yes.

MR BEACH: We're also seeking an injunction restraining OTML from giving effect to cause 13.1 of the MCA's and procuring any further opt out notices.

HIS HONOUR: 13.1 is the requirement that they opt out.

MR BEACH: Yes, by 7 January.

HIS HONOUR: So the injunction's sought to restrain OTML from encouraging - from doing what?

MR BEACH: No. From enforcing Clause 13.1. They can go off and do whatever they lawfully want to do - - -

HIS HONOUR: Do you mean enforcing by action?

MR BEACH: No, procuring from group members opt out notices by saying to them, "You have to opt out under Clause 13.1."

HIS HONOUR: Just let me go back to Clause 13.1.

MR BEACH: Yes. Now, of course OTML could give an undertaking to the court that they won't enforce the provisions of Clause 13.1, but I haven't heard any such - - -

HIS HONOUR: When you say "enforce" - - -

MR BEACH: Require group members to perform their obligations under Clause 13.1. That's the kernel of it.

HIS HONOUR: Yes. Well, 13.1 imposes an obligation on the communities - - -

MR BEACH: Yes.

HIS HONOUR: - - - to take such steps as are necessary to ensure, but on or before 7 January they execute and deliver opt out notices.

MR BEACH: Yes.

HIS HONOUR: Now, what part does OTML have in that?

MR BEACH: Only that it can take such a document to a particular village and say, "Your village presented in a signed disagreement."

HIS HONOUR: Yes.

MR BEACH: "Under Clause 13.1 you're obliged to file an opt notice. By the way, here it is" - - -

HIS HONOUR: That's why I use the term "encouraging" - - -

MR BEACH: Yes.

HIS HONOUR: - - - I mean, it would be - what are the actual Acts that you seek in Australia? Asking people to do it or - - -

MR BEACH: I suppose requiring - - -

HIS HONOUR: Giving them copies of the opt notice?

MR BEACH: No. It's probably an argument that they could give somebody an opt notice.

HIS HONOUR: Yes.

MR BEACH: But if they gave an opt out notice in the context of saying you have to sign the opt out notice because of Clause 13.1, that's the advice that I'm trying to restrain between now and February, simply the enforcement of Clause 13.1 - it may be that the minutes that I've handed to Your Honour don't perfectly reflect that concept, but that is - if Your Honour goes to the minutes of paragraph 3C.

HIS HONOUR: Yes, 3C, my minutes don't have a 3C. My minutes have a 4C.

MR BEACH: I'm sorry, Your Honour, 4C.

HIS HONOUR: Yes. From procuring the execution of any opt out notice by any group member.

MR BEACH: Yes. I'd have to say procuring, pursuant to Clause 13 of the MCA, so that could read, from procuring the execution of any opt out notice by any group member pursuant to the MCAs which have already been defined in paragraph 2.

HIS HONOUR: Yes. Procuring, that implies approaching someone and saying, "Sign this because you are contractually bound to do so under Clause 13.2."

MR BEACH: Yes.

HIS HONOUR: However, if they went to someone and said, "Sign this opt out notice" - - -

MR BEACH: That would raise a different issue that's not the subject of this particular application, but that may be in breach of what Justice Hedigan ordered, but I'm concerned more about enforcing Clause 13.1.

HIS HONOUR: Yes. So your first injunction is to, just to look at your minutes, you've got 4A, from enforcing against any group member either in this or in any other jurisdiction, any of the terms of the MCAs.

MR BEACH: Yes.

HIS HONOUR: But you don't need or want the words "in this jurisdiction" do you? That would tend to suggest that they couldn't plead it as a defence.

MR BEACH: No, I'm quite happy for them to plead it as a defence, Your Honour, I accept that.

HIS HONOUR: Wouldn't that necessarily involve deleting the words "in this or"?

MR BEACH: Yes, Your Honour.

HIS HONOUR: Because by counterclaim in this jurisdiction, they could seek enforcement.

MR BEACH: I accept that.

HIS HONOUR: Yes, they could.

MR BEACH: Yes. Our 4B is, I suppose, another way of dealing with 4A, but to inject more certainty. In other words, in a proceeding in PNG there are two possibilities. They could just take the MCA and sue for a declaration or specific performance of the MCA, or they may take a proceeding which is effectively an anti-suit injunction in PNG restraining a group member.

HIS HONOUR: Yes. Shouldn't the, just as a matter of drafting, shouldn't the present participle there, restraining, be the infinitive, it should be, to restrain, shouldn't it?

MR BEACH: Yes, Your Honour.

HIS HONOUR: Any group - so it's - that's an anti-suit injunction of a slightly different kind, it's an anti-suit injunction to prevent - - -

MR BEACH: OTML - - -

HIS HONOUR: OTML.

MR BEACH: - - - from suing group members.

HIS HONOUR: Yes. It's to stop OTML going to the Papua New Guinea court and saying, "I want an injunction against Gagarimabu and everyone else from continuing to sue us in the Victorian Supreme Court."

MR BEACH: Yes.

HIS HONOUR: Effectively, that would raise a real issue of - that would raise - that would be asking a Papua New Guinea judge to effectively not stop somebody coming into this court but having come into this court, stop them from continuing to proceed.

MR BEACH: Yes, that's right. No, again, OTML may undertake not to take such action between now and the start of February, (indistinct) anything to suggest that at this stage.

HIS HONOUR: Yes.

MR MIDDLETON: I just indicate, Your Honour, it hasn't been threatened. It hasn't been threatened that it would ever go to the New Guinea court, anything of the type.

HIS HONOUR: I understand that, Mr Middleton.

MR BEACH: We only ever hear about things after the event, Your Honour, because as Your Honour can see from the material, we only see things after the event when documents are executed or bills are before the Parliament.

HIS HONOUR: What is D, D is simply - - -

MR BEACH: Because there are still nine villages that haven't yet signed. Mr Scerri said on the last occasion there are nine villages that don't want to sign. I don't know what the evidence is about that, because in the affidavit of Mr Grech, his second affidavit, he just deposes again to what Mr Scerri told the court. But for all I know, OTML may seek to procure somebody to execute on behalf of that village, particularly if they take the attitude that they can pick one person and that one person could execute whatever people thought about the matters, so that's what 4D is designed to address, Your Honour.

HIS HONOUR: Yes.

MR BEACH: So enforcement of the MCA that might have an effect in this court, putting aside the PNG court proceeding scenario, enforcement could really only be procuring opt out notices under Clause 13.1, between now and 7 January, any other form of enforcement in this court of the MCA, Your Honour would have the power to deal with and to prevent or say that it's bad or that there's no available defence.

HIS HONOUR: Yes.

MR BEACH: So it's really going again back to the question of the procuring opt out notices, so if another 10,000 were to be procured over the next 19 days, we come to February and it's held that the MCAs are in contempt, entered into in contempt, Your Honour has two choices. Do you deal with the validity of those additional 10,000, 13,000 notices, and think of the logistical difficulties and us trying to address each one of those to find out why people executed them, or do you injunct that, stop them - - -

HIS HONOUR: Prevent if happening.

MR BEACH: Prevent it happening, but extend the opt out date later for a similar period of time that they've been injuncted from performing Clause 13.1 to put them back into the same position.

HIS HONOUR: The extension of time might though, might it not, if the opt out date remains as it is.

MR BEACH: Yes.

HIS HONOUR: And is subject only to a statutory power to be extended subsequently, might not that, of its own accord, create the sort of dissension that you say you're trying to avoid, because if there's no extension given to the opt out date now, you will have a situation where the opt out date remains 7 January and people will believe they have to opt out if they are going to, by 7 January and there will be - that, in itself - I mean, the idea that that date can later be extended in the exercise of a judge's discretion in this court is a sophisticated notion that might well be - and in any event, even leaving aside questions of sophistication, it's only a right to apply for an extension, it's nothing more than that, is it?

MR BEACH: I agree.

HIS HONOUR: It may be necessary, might it not, to extend the date now, to make it clear that the opt out period is still running, not just that it might be extended in the future. I will hear Mr Middleton obviously in this, but I just plant that seed as being.

MR BEACH: Yes. I suppose strategically, the longer an opt out period goes and more opportunity OTML has to procure people to sign opt out notices, whether they do so under Clause 13 or not, my only advice that I can get an injunction for at the moment is to restrain the operation of Clause 13, so if Your Honour extends the date generally through to February, it's given much more of a window to engage in other forms of behaviour than if Your Honour were to later - if my argument is right in February, then 7 January should have stayed and quite properly they shouldn't have been able to enforce Clause 13, so there's no need for an extension to the opt out date, and if I'm wrong, and they should have had the opportunity to procure signatures for those 20 days, then Your Honour can give them that window of opportunity when Your Honour holds that we're wrong in our arguments.

If you extend it now, they get a longer window, and they get a longer window that they might not be entitled to, because if my arguments are ultimately correct, the 7 January date should stay and they should not be entitled to enforce Clause 13.1.

HIS HONOUR: On the other hand, if the purpose in interlocutory injunction is to preserve the status quo, the status quo at the moment is that the opt out provisions have not expired, the opt out date has not been reached.

MR BEACH: True.

HIS HONOUR: That seems to me, on first blush, to be part of the status quo, that the status quo at the moment is that there's still 19 days or whatever it is left, still some time left, that there ought to still be some time left, if all we're doing is freezing all of this until February, but we'll deal with this perhaps if I get to the point of being about to grant the injunction.

MR BEACH: Yes.

HIS HONOUR: I think we could defer it for the moment.

MR BEACH: Yes. The only other thing that I'd say. I don't seek an injunction, freezing the opt out process. All I seek is an injunction freezing enforcement of Clause 13.1.

HIS HONOUR: Yes. But if Clause 13.1 can be enforced legally, then I can see an argument that the status quo involves at this point, involves there being an opportunity to opt out, but we can leave it to one side for the moment, because we haven't got to that point.

MR BEACH: The other aspect, I suppose, Your Honour, is the general aspect of confusion in the sense that we have the MCAs. The status on any view of the matter is arguable, you have some people wanting to pursue their rights in this court. You have the MCAs and the statute which seem to foreclose it. There seems to be some degree of confusion in relation to people's rights and how they're bound into an MCA, but Your Honour also appreciates that there's a constitutional challenge to the PNG legislation, so there's generally confusion.

HIS HONOUR: That constitutional challenge seems to be limited to what might be called the Castle ground, doesn't it?

MR BEACH: Yes, but there is a second ground that Your Honour, I think, articulated yesterday, I thought.

HIS HONOUR: That it could involve an improper delegation of legislation power.

MR BEACH: An improper delegation of legislation power.

HIS HONOUR: But I notice from having now read all the defendant's material, that the petition, if that's what it's called, or the originating process in the Supreme Court, specifies - I didn't look at the PNG constitution, but I assume that it's the acquisition on unjust terms provision.

MR BEACH: Acquisition on unjust terms, yes. That is the essential - - -

HIS HONOUR: The Castle point.

MR BEACH: There's also - yes, that's right. There's also a third limb which was the unequal treatment of citizens of PNG - - -

HIS HONOUR: That's being - so other grounds are being argued as well.

MR BEACH: Yes.

HIS HONOUR: Is that expected - does anyone know what will happen to that application.

MR BEACH: That was before the National Court yesterday, but it's been adjourned. Perhaps I might just get some instructions, Your Honour. Apparently the Chief Justice was trying to convene a Full Court to hear the matter in February.

HIS HONOUR: In February.

MR BEACH: In February, but it came on for directions yesterday.

HIS HONOUR: They must have a vacation.

MR BEACH: Yes.

HIS HONOUR: At least if the Financial Review is correct, we all stop work and don't do anything between now and February.

MR BEACH: What is happening in PNG, I suppose, Your Honour, demonstrates that before anything further happens, we can't prevent what's already gone on already in relation to enforcement of the MCAs or the opt out notices, we'll have to deal with that by other means, but that the status quo involves freezing the position at the moment until essentially this court can look at what's happening in relation to 33V and the contempt issue and the PNG court can consider the question of the statute. Unfortunately, it would be nice if the condition precedent in the MCA couldn't be waived by OTML, if the agreements could not come into force until the legislation was in force, then different issues would arise on the balance of convenience, but OTML have the capacity to waive.

HIS HONOUR: To waive that term. Yes, all right. Is there anything else now?

MR BEACH: So that deals with the enforcement issue, Your Honour. Now, can I deal with the only bit of evidence filed by OTML on the issue of balance of convenience, and it's again, an affidavit of Mr Phillips.

HIS HONOUR: Is this Mr Phillips' second affidavit is it?

MR BEACH: It's his first, Your Honour. It's fair to say that OTML doesn't really advance any argument of prejudice.

HIS HONOUR: Where are you looking?

MR BEACH: His affidavit of 12 December.

HIS HONOUR: Yes.

MR BEACH: Paragraph 29.

HIS HONOUR: Yes.

MR BEACH: His first point is not an argument of prejudice against OTML but rather prejudice to villagers. This is the second sentence. He says, "Obviously any delay will ... (reads) ... of communities." Their effect is the delayed payment for the short period of time, which I've already addressed to Your Honour.

HIS HONOUR: Yes.

MR BEACH: It's not a prejudice to OTML.

HIS HONOUR: But till prejudice to third parties would be - it's a relevant matter.

MR BEACH: It certainly is, yes. The statement that the overwhelming majority of communities have decided to subscribe, well we say that begs a fundamental factual issue, Your Honour, which we disagree with and Your Honour has seen our evidence about that.

HIS HONOUR: Yes.

MR BEACH: So we say it's based on a factual false premise in any event.

HIS HONOUR: But you would concede that there are some third parties who have, on any view, accepted the OTML position.

MR BEACH: Consented. Yes, I'd have to accept that.

HIS HONOUR: And those people will be inconvenienced.

MR BEACH: Delayed.

HIS HONOUR: Delayed in the sense of - - -

MR BEACH: Delayed. Contractually they could get their payments by the end of January, so they may be delayed until the end of February or March, if our arguments turn out to be wrong.

HIS HONOUR: Yes.

MR BEACH: And then it's said halfway down that paragraph, "For OTML, significant delays could cause disaffection." So again it's not prejudice to OTML, it's talking about disaffection of the affected communities. Well, that already exists today, the fact that I'm standing up here, Your Honour, is an indication that there is some disaffection as to what is going on. But the expression is significant delay. If we're talking about a delay of one month, we would not consider that to be a significant delay given that this is not all the compensation that has been received by group members, but only some incremental compensation.

HIS HONOUR: There are some disturbing allegations in some of the affidavits by OTML.

MR BEACH: Yes.

HIS HONOUR: Allegations on oath among others that the deputy governor of the western province who makes allegations of threatened violence, and there's another affidavit, I think where there's an allegation of a veiled threat of violence in one of the - at some meeting.

MR BEACH: We are not sure that - in any event - - -

HIS HONOUR: It's obviously something I can't determine, but the fact, the mere fact that such allegations are made, is itself indicative of - well, it's indicative of dissension arising beyond what might be tolerable. I mean, if indeed, this did degenerate into violence it would be a very serious matter, wouldn't it?

MR BEACH: That's precisely - - -

HIS HONOUR: Into actual violence.

MR BEACH: That's precisely so, but Mr Gagarimabu makes the point that it's more likely to descend into violence if people are committed to something that they don't want to, at least litigation of their rights, or pursing legal proceedings, gives them some pressure valve or outlet for expressing their particular point.

HIS HONOUR: Yes.

MR BEACH: To deny them that, which we say is the effect of the MCAs and the bill, is more likely to be productive of dissension than - - -

HIS HONOUR: Well, that's - yes. I mean, I can see the argument. So you say that paragraph 29 is really the paragraph where OTML puts up its case on balance of convenience.

MR BEACH: Balance of convenience, that's right, Your Honour. Can I deal with two other minor points in Mr Phillips' affidavit whilst I'm dealing with it, Your Honour. In paragraph 9 of Mr Phillips' affidavit, Mr Phillips refers to one agreement which apparently was executed not by clan leaders but by representatives of villagers. He refers to that in paragraph 9. And there's an explanation for that in Mr Styant-Browne's affidavit, which was filed on 14 December, Your Honour, and he deals with that in paragraph 6, where he makes the point that the agreement that Mr Phillips is referring to was essentially to set up the Alice River Trust - - -

HIS HONOUR: What's the Alice River Trust?

MR BEACH: It's a trust to receive a certain amount of compensation, but it was really the '96 settlement that established the package of 40 million kina for the Lower Ok Tedi. So he's making the point that the compensation arrangement, even though it's picked up again in the agreement that Mr Phillips referred to, was really dealing more with the setting-up of the Alice River Trust than anything else.

HIS HONOUR: What's your point about it?

MR BEACH: I had said to Your Honour that we take the position that it's only clan leaders, the combined members, and only if they all agree, and that's the position we took in 1996 in relation to the settlement agreement. Mr Phillips has exhibited a document which would seem to be exhibited for the purposes of demonstrating, "Hold on a moment, you're taking an inconsistent position because there's another document that was signed by four village representatives." We don't resile from our primary position but Mr Styant-Browne who negotiated that other agreement, explains that. But whatever the exceptions, Your Honour, that might have occurred in the past, we say there's a serious question to be tried on whether village members can be bound by representative or whether only clan leaders can bind clan members. The second minor point, Your Honour, in Mr Phillips' affidavit is in paragraph 14.

HIS HONOUR: Yes, this is the point - - -

MR BEACH: That's right, but you - a few points - you wouldn't deliver 30,000 notices. Some of the notices could be copied and you wouldn't assume that all 30,000 would go. As Mr Phillips would know from the previous application, that number was calculated to ensure that each particular family at least received a notice. So it wasn't indicative of the fact that a village rep could sign a notice on behalf of everybody, or a clan leader could sign a notice on behalf of everybody. That was the calculated number based on the notion that each family - so a father could sign on behalf of the children for example, each family would receive a particular notice.

The evidence for that, Your Honour, is found - - -

HIS HONOUR: Each family in the sense of nuclear family?

MR BEACH: Well - - -

HIS HONOUR: Or extended family?

MR BEACH: Household.

HIS HONOUR: Household. That may mean - - -

MR BEACH: I don't know what that means. Could I hand to Your Honour - and just tender for the purposes of this application - one of the OTML affidavits. This is the affidavit of Atimeng Buhupe of 25 May 2001.

HIS HONOUR: It's the same deponent who's sworn an affidavit - - -

MR BEACH: Yes, Your Honour.

HIS HONOUR: Yes.

MR BEACH: If Your Honour goes to paragraph - - -

HIS HONOUR: Just as a matter of interest. How big a town is Tabubil? I mean, it is thousands of people or hundreds or - - -

MR BEACH: It's a mine headquarters, so - - -

HIS HONOUR: Mine headquarters - - -

MR BEACH: - - - 10,000 - thousands.

HIS HONOUR: Or a small number of thousands.

MR BEACH: 12,000.

HIS HONOUR: Yes, all right, go on, yes.

MR BEACH: Paragraph 6(b) Your Honour.

HIS HONOUR: Yes.

MR BEACH: It says: "There should be enough notices delivered to ... (reads) ... the village can be given a copy." That was the basis of the calculation. Each family should receive a notice. There was no suggestion that the number was 6,000 because it was contemplated that clan leaders would sign on behalf of clans and its representatives would sign on behalf of villages, but simply that each family should receive a notice. And Mr Phillips affidavit does not make any reference to any submission made by OTML on the prior occasion to the effect that they contemplated a clan leader would sign on behalf of clan members, or a village representative would sign on behalf of villagers, to the best of my recollection.

HIS HONOUR: Well, that goes to the substantial issue - - -

MR BEACH: Well, that's exactly right, Your Honour - - -

HIS HONOUR: - - - I'm not going to deal - - -

MR BEACH: You're not dealing with the validity opt out notices - - -

HIS HONOUR: I'm not going to start making findings of that nature - - -

MR BEACH: I accept that.

HIS HONOUR: Do you want to - is it necessary having made that comment - is it necessary for you to tender this affidavit?

MR BEACH: Probably not, Your Honour.

HIS HONOUR: Yes - - -

MR BEACH: Too much paper.

HIS HONOUR: Yes. I'll hand it back. I see the point, but I mean that's a question that goes to the - what seems to be the fundamental issue that's ultimately going to have to be resolved in some way another.

MR BEACH: Yes, it may well. Your Honour, finally, can I just draw Your Honour's attention to the decision of Justice Cummins. Your Honour will be familiar with that.

HIS HONOUR: I haven't looked at it other than if I did at the time it was delivered mainly because of the interest I had in the section. I can't remember it now, so I'll need to - have you got a copy for me - - -

MR BEACH: I've got a copy of it, Your Honour, yes.

HIS HONOUR: Yes, thank you.

MR BEACH: Your Honour doesn't have to of course finally decide whether our arguments are good on contempt, only that we've raised a serious question to be tried - - -

HIS HONOUR: Yes.

MR BEACH: - - - and at the least what Justice Cummins has said raises a serious question to be tried. He deals with the concepts of contempt at the bottom of p.283. And then at 286 at about the second line he says - - -

HIS HONOUR: I assume there's a misprint in the last word on p.283.

MR BEACH: It should be unhindered - - -

HIS HONOUR: Yes.

MR BEACH: Yes. You see the point that was being raised there by BHP and OTML again, the fact that we've procured the PNG parliament to pass legislation. Well, any citizen can lobby parliament and to do so doesn't involve a contempt. The judge said, "Well that's." But then he went on at p.286, the second line to say: "However, none of the authorities upon which counsel ... (reads) ... access to law in this court." Then at line 23: "However, it's entirely within this court's ... (reads) ... administration and justice."

HIS HONOUR: I think in the time that I've been involved with the law there have been legitimates in this State that have successfully gone to parliament and had the law changed - - -

MR BEACH: Of course - - -

HIS HONOUR: - - - while proceedings have been pending in this court.

MR BEACH: That's right.

HIS HONOUR: On a number of occasions that I can think of in the personal injury area where sometimes government and quasi government bodies have effectively had bills passed to change the law of assessment of damages and the like.

MR BEACH: To change the law and of course this court then still apply to substantive law, I think - - -

HIS HONOUR: Yes.

MR BEACH: - - - that was set in the City of Collingwood case. But if the law changes such as to - in that case, I think get rid of the rights of the City of Collingwood. I've forgotten facts of that case - - -

HIS HONOUR: The disposal of Victoria Park, wasn't it?

MR BEACH: That's right and then there was a proceeding - I think at the Victorian Supreme Court - - -

HIS HONOUR: That's right.

MR BEACH: - - - that didn't involve a contempt. That was just a change in the substantive law, and Justice Brooking said, "On any view of the authorities that doesn't amount to a contempt." The law changes, the parties rights are determined whatever the substantive law is from time to time. This has a different flavour, it's got the flavour of the situation of Justice Cummins - - -

HIS HONOUR: This part of Justice Cummins judgment wasn't commented upon by the Court of Appeal, was it?

MR BEACH: No, they only dealt with the issue of a right to bring the proceeding - - -

HIS HONOUR: Yes.

MR BEACH: So whether Justice Cummins was right or not fundamentally hasn't yet been addressed, but what I'm putting to Your Honour is that it at least raises a serious issue to be tried.

HIS HONOUR: Yes.

MR BEACH: And Your Honour would then deal with that, that in February of next year. I'm not saying that this is the definitive position. It's raised - - -

MR BEACH: But you do submit that it's right.

MR BEACH: Yes, I do. But when you have something unique where OTML procure the MCA's then approve of the form of the bill, which is quite different to just a citizen lobbying parliament. And the State, because they're bound by the principle agreement to only put up bills that are approved by OTML and others who are parties to the underlying joint venture arrangement. You do take it outside of that into a new territory, but I'm just raising his decision to indicate that at least there's a serious question to be tried.

Now, Your Honour, unless there's anything else I can help you with, those are my submissions at this stage.

HIS HONOUR: Thank you, Mr Beach. I think we'll take a five minute break before I hear Mr Middleton.

(Short adjournment.)

HIS HONOUR: Just before I call on you Mr Middleton. Mr Beach, do you offer the undertakings as to damages that you've already given?

MR BEACH: Yes.HIS HONOUR: Yes. Yes, Mr Middleton.

MR MIDDLETON: If Your Honour pleases. If I could just commence by the update for the court as far as to the opt notices, I'm instructed that there have been 20,180 opt out notices already received covering a population of 30,708 - - -

HIS HONOUR: Just a moment. Out of what? 30?

MR MIDDLETON: 30,708 people.

HIS HONOUR: So 20,000 - - -

MR MIDDLETON: Actual opt out notices covering a population of 30,708. They are just the ones received in the capacity of my instructing solicitors, so it doesn't include those that have gone to my learned friend's instructing solicitors.

HIS HONOUR: Yes.

MR MIDDLETON: So, Your Honour is confronted with that as the status quo. As my learned friend Mr Beach conceded, those matters will need to be dealt with in the ordinary course of events, whatever that will be. But no injunction or ever injunction, nor is one being sought and unscramble that egg. So, if Mr Beach persists in his allegations and persists in his contentions of law, then those matters will need to be dealt with. Including the other matter as to the effectiveness of the agreements that have been entered into already, because that's happened already.

HIS HONOUR: So at some point - this court - presumably will have to determine the validity of each one of, or each group of, a total of 20,000-odd documents.

MR MIDDLETON: Yes. And that's no different to any class action in this State. If someone comes to this court and says, "I didn't opt out, I was coerced", then the court would have to deal with that.

HIS HONOUR: Yes.

MR MIDDLETON: And we are not saying this court cannot deal with that. We are saying the court has full power to deal with that. You can deal with that - it'll take you a number of years, so be it. No one's denying that court jurisdictions do that, and the court will somehow implement a process to do that in accordance with its Act, and accordance with the rules of court. That is going to have to happen. Equally was going to happen - as I say - in relation to the - what my learned friends call - the settlement agreement. Because they say that it requires the approval of a court.

Now, those agreements have already been entered in to - - -

HIS HONOUR: Yes.

MR MIDDLETON: - - - and that will be a process the court will need to - if my learned friend is right - the 33V applies. That is a process this court will need to go into in any event. Now, whether it's eight agreements, nine agreements, ten agreements, on that part of it, it probably won't impact any further on the court. It's a process you've got to go through.

HIS HONOUR: But if 33V doesn't apply - - -

MR MIDDLETON: Then there's no problem - - -

HIS HONOUR: - - - these are not settlements, then that issue's gone - - -

MR MIDDLETON: That's gone.

HIS HONOUR: - - - and the question then is only one of authority to sign the agreements.

MR MIDDLETON: Authority, and that's not an issue which you'll be dealing with of course, because they'll be an issue for Papua New Guinea, because as Mr Beach conceded on the Friday he first appeared before you, there's no doubt that the law of the mining agreements is that of New Guinea. So the validity and effectiveness of those agreements, other than to the extended impacts upon this court, it's not a matter for this court at all.

HIS HONOUR: Is subject only to the causes in the settlement agreement that to which I was taken this morning.

MR MIDDLETON: Yes, exactly. That can be determined in - let's say for instance, Your Honour, didn't have this class action and there was an issue about these agreements now entered in to, that would be normally determined in the New Guinea court. This court would have no interest in them whatsoever, because as far as this court's concerned you don't exist. There's no proceeding on foot in this court, so Your Honour will - - -

HIS HONOUR: In relation to those agreements.

MR MIDDLETON: In relation to those agreements. If there was no class action - - -

HIS HONOUR: Yes.

MR MIDDLETON: - - - currently of the type brought here, this court would have no interest in those - - -

HIS HONOUR: In the - - -

MR MIDDLETON: Mining agreements.

HIS HONOUR: Yes. The mine continuation agreements.

MR MIDDLETON: Yes.

HIS HONOUR: Except that the mine continuation agreements are intimately connected with this class action. I mean - - -

MR MIDDLETON: But your enlivened interest come because of that, if it would be - - -

HIS HONOUR: Yes.

MR MIDDLETON: - - - and then it'd be said, "Well, the proper law of the contract is New Guinea", the court can then deal with it.

HIS HONOUR: Subject to that choice of law clause in the - - -

MR MIDDLETON: Yes, Your Honour, but the point I'm making is the only reason as an interest today, the only reason is because there's a class action and there's said to be a interruption to the process of this court by entering into these agreements, and their terms. That is the only concern Your Honour must have today. The only concern Your Honour has to protect your own process. You're not here to determine the validity of those continuation agreements.

HIS HONOUR: Well, that's too broad, isn't it, Mr Middleton, because this court's certainly got - you can't say in one breath that this court's only interested because it's protecting its own process, and then next say it has no interest in them, because in fact it's essential to them that they do effect the process in this court, and the two things are intimately connected.

MR MIDDLETON: Of course Your Honour, and that's what I'm saying to Your Honour. The first proposition is that Your Honour's here to protect the process of this court.

HIS HONOUR: Yes.

MR MIDDLETON: The second proposition is the injunctions of an interlocutory nature, you don't make any injunction that's not necessary.

HIS HONOUR: Yes.

MR MIDDLETON: Your Honour will be familiar with the principles in relation to why it's commonsense.

HIS HONOUR: Yes.

MR MIDDLETON: Because all you're trying to do is preserve the status quo.

HIS HONOUR: That's right.

MR MIDDLETON: So in a sense Your Honour should be minimalist if any order is made as to what one should do to preserve the position until the matter goes to trial.

HIS HONOUR: Yes.

MR MIDDLETON: So the only thing you've got to do is not to strike down an agreement as it affects third parties, or is it going to be implemented in another country. You only need to focus on how, if it does, it imposes or impedes this proceeding.

HIS HONOUR: Or it might impede this proceeding.

MR MIDDLETON: Or might impede.

HIS HONOUR: Yes.

MR MIDDLETON: Possibly may. It doesn't matter, Your Honour, I wasn't focusing on that. What I'm focusing on is Your Honour's task is only to make sure this process in this court is not impeded.

When my learned friend Mr Beach this morning discussed the orders he wants, you could see the difficulties he had in articulating them, because Mr Beach knows that's all he's entitled to obtain from you, and one of the things he said is "Well, the opt out notices may impede upon the process", and so they may. Because that affects this court as to who will ultimately be bound by Your Honour's decision in this case.

HIS HONOUR: Or whoever hears the trial.

MR MIDDLETON: I wasn't putting that on Your Honour's shoulders just yet. And all that Your Honour can do and should do is to maintain the status quo. The status quo now being the entering into of the mine continuation agreements; the status quo being the number of opt out notices that have been received; the status quo being that there are many parts of the mine continuation agreements that can in fact be implemented and should be implemented, because they had been on their face entered into according to New Guinea law. The parliament in New Guinea has approved them.

HIS HONOUR: Has that Bill actually gone through?

MR MIDDLETON: Yes.

HIS HONOUR: It is now law?

MR MIDDLETON: It is now law.

HIS HONOUR: What, in the last day or so?

MR MIDDLETON: We believe yesterday. But I don't believe my learned friend is seeking to prevent the - we'll find out the exact position, Your Honour.

HIS HONOUR: Do we know, Mr Beach, what - - -

MR BEACH: My instructions are, Your Honour, that the Bill hasn't yet been certified, so it's not yet - - -

HIS HONOUR: Is that the term, certified? That's the equivalent to the royal assent, is it?

MR BEACH: It's a certification by the - - -

HIS HONOUR: It's the Governor General of New Guinea, isn't it?

MR MIDDLETON: No. I'm told, Your Honour, that the Governor General can sign it, and I think that's happened, but it must be certified by the speaker. And that hasn't yet happened. It's passed obviously the parliament.

Your Honour, unless and until that agreement is subject to approval of this court, that agreement is effectual. More importantly, as Your Honour has been told and Mr Beach concedes - the agreement is with people and persons outside those who are within this proceeding. So the agreement have as their parties persons who are not group members.

There are people who are parties to those agreements, Your Honour - this is not contentious - but it's an important point, Your Honour.

HIS HONOUR: Some people are not - group members are not group members.

MR MIDDLETON: By their own definition of their description.

HIS HONOUR: Yes.

MR MIDDLETON: Your Honour, there are two significances to that. This is very important. The first is they can't be subject to the approval of the court as to that agreement, because that's an agreement they've entered into, and that's got nothing to do with - - -

HIS HONOUR: Well, 33V can't possibly apply.

MR MIDDLETON: Exactly. Even if my learned friend is right about 33V, and he's not - I'll come to that later on, Your Honour - but even if he's right, all it says, and Justice Branson made this clear - you are proving the agreement in these proceedings.

HIS HONOUR: Yes.

MR MIDDLETON: So that means the party can't discontinue, they can't approve, parties can't. But if there's a third person out there who wants to enter into the agreement, that's unaffected by anything Your Honour can or has power to do. So those agreements are there, and that's why I said to Your Honour unless you were here with this proceeding, that wouldn't be an agreement which Your Honour would normally ever come to hear about. It would be a matter between the New Guinea Government, persons who are in New Guinea and the people of New Guinea.

The second thing while I'm on that point, Your Honour, is that of course we're dealing with not just the parties, the litigation, but you're dealing with third parties. Whatever my learned friend Mr Beach says about we'll delay it for a few weeks and they won't get their money, or won't implement it - two things to say about that. Why should people be delayed by this proceeding? They've effectively, according to the law of their land, agreed to this agreement, and that's not being attacked in this court.

Secondly, it won't be for one month, Your Honour. You've heard what the fight is going to be about, my learned friend wants to make it a final fight - hearsay is inadmissible. We're going to have a contempt file hearing, and we're going to have a fight on the opt out notices - Your Honour can envisage that hearing - plus any appeals. So we're not just dealing with one month delay, two months delay - the inevitable is an injunction will go for some many months, if not longer.

Your Honour should be very careful in impeding a process in a foreign country with third parties who are not before this court.

HIS HONOUR: These third parties are confined to the people in respect of whom someone on their behalf has signed these agreements, and thus entitling them to payment under the agreement in accordance with the schedule.

MR MIDDLETON: I'll come to the payment, Your Honour, because there's a number of ways these payments have been made. It's not just a matter of getting 90 kina for each person, there are far, far greater consequences, Your Honour, than what Mr Beach has indicated as individuals' benefits.

HIS HONOUR: An injunction could be fashioned, couldn't it, so that it didn't affect the rights?

MR MIDDLETON: It could be. But it depends what my learned friend - injunction he wants. And that's why I said to Your Honour at the beginning of this - there's only one thing Your Honour should be concerned about, and that's your court's process.

HIS HONOUR: Yes. I think the interim injunction was confined to effect in the notice, insofar as it related to group members.

MR MIDDLETON: Yes, Your Honour. There's no doubt the wording can be done, but Your Honour focuses on what my learned friend wants. One of his orders he seeks is to have the agreements enforced at all in relation to those particular agreements. This is originally when he sought his - - -

HIS HONOUR: The minutes of orders that he puts up now are enforcing against any group member.

MR MIDDLETON: Yes. But Your Honour, when any injunction is made, must be concerned with the rights of the third parties. Also what my learned friend is saying to Your Honour is "Let's stop the process now because if you don't stop it, you're going to have a terrible mess". What I'm really saying to Your Honour is that mess has already been created.

HIS HONOUR: A mess of 20,180 opt out notices has been created, but that's a smaller mess than 30,000 notices, isn't it? Two thirds the size of the mess.

MR MIDDLETON: There are 30,000 people who have been covered by those opt out notices.

HIS HONOUR: But there are still people who aren't. I don't know how many.

MR MIDDLETON: There couldn't be too many left at this stage.

HIS HONOUR: Seven or something. I think I've seen the figure of 37,000 as being the population. Even that seven is 25 per cent.

MR MIDDLETON: What I'm saying to Your Honour is not to suggest there's any basis that there's any procuring improperly anyhow. And Your Honour shouldn't just say "Willy nilly I make some injunction to prevent opt out notices". My learned friend concedes that we could hand out opt out notices, that's not procuring. He concedes that people of their own free will could opt out. But each of those will have to be investigated, Your Honour, because there'll be some allegation of a person who did it didn't do it of their own free will. It's an easy thing to make the allegation, and they may come along and say they were misinformed.

So Your Honour is going to have further opt out notices come before this court, and each of them will be subject to the same challenge. And that will be nothing to do with what you order, because it's conceded you can't order that they don't come in at all, because that would be contrary to the whole scheme of the Act and what Justice Hedigan ordered.

It's conceded that we're not stopped from talking to people, there's no order saying that our clients have to remain within 50 metres of any particular person who wants to opt out. In fact it's accepted that we can give them the notice. So the word "procure" couldn't be used. In any event it would be ambiguous, and Your Honour could never enforce it, what is meant by it. But we'll come to that, Your Honour.

There are so many difficulties with the form of order that Your Honour should be very hesitant in making that order at all.

HIS HONOUR: Yes.

MR MIDDLETON: Your Honour, can I go from the beginning - just put in context what we are all about. Could I hand up to Your Honour just a very brief outline of history. The first sentence is a summary of what I've been trying to say to Your Honour for the last ten minutes or so. It's important to properly characterise what is being attempted by this application, and it's not to go beyond the very narrow focus of the injunction, as I've indicated to Your Honour.

We say that in this particular instance - and it's an attempt at a late stage in a process, Your Honour - and I'll come to this point - to stop a scheme that has been put in place by the State of New Guinea after consultation, and it's a process that has been well known to everybody. Your Honour doesn't have to hesitate too long to think about that, because this is a process which by necessity has to be open, because it involves consultation, it involves getting people to agree, and Your Honour may not have seen this, but I'll take you to a schedule of the agreements which it identifies by date, the consultative process.

HIS HONOUR: Yes, I've seen that.

MR MIDDLETON: My learned friend represents, he says, a lot of these people. So he must've known in one way or another, so this notion of secrecy without anything else can be completely destroyed. He may not know about the actual terms of the agreement, but what they do know is there is a process going on of mine continuation, and a process of working out what is in the best interests of this country and this particular province for the people and the economy, having regard to the fact that it's an environmental problem.

That's the balance, and they are hard decisions for people to make, and governments have to make hard decisions. They do it through a democratic process, but at the end of the day there are going to be people who are happy with the decision and there are going to be people who aren't happy with the decision.

What happens here - and be quite frank about it, Your Honour, is that the more opt outs there are, the less happy Slater & Gordon are in relation to this process. Because the more opt outs, the less they have as a bundle of people and the amount that is going to be at the end of the day if they're successful for them to divvy up. That's why Mr Beach, for instance, wouldn't want Your Honour to extend the opt out period, because that will allow more people a greater period of opt out. It's always better for a plaintiff's solicitor to have the shortest opt out period. Always better to have less notification, always better to make it more difficult, Your Honour.

That's why one has battles and Mr Justice Hedigan had the battle, of the form of the opt out.

The other point to make, Your Honour, is there's no attempt - or there can be no attempt in this court to challenge directly the scheme. It's not for Your Honour to determine whether the Act is valid that's been dealt with in another court. It's not for Your Honour to determine that a contract is valid unless it's a matter of settlement.

HIS HONOUR: Or unless it's a contempt of this court.

MR MIDDLETON: The process. The continuation scheme, Your Honour - I think it would be useful for Your Honour to know a little bit about it. The aim is not to - as Your Honour may think - get releases and to pay a certain amount of money to people. The primary aim of the government was for the continuation of the mine. So Your Honour is focused on Clauses 13 and 12, but Your Honour doesn't focus on in this proceeding, but Your Honour should, Clauses 1 to 12, which sets up what this agreement and this Act is all about.

It is implemented by an Act of Parliament, and what is said in the Clause 1.1 in paragraph 6, Your Honour: "The State and the company ... (reads) ... the views of the communities" - - -

HIS HONOUR: The principal agreement is the original agreement that set the mine up, is it?

MR MIDDLETON: Under which it operates, Your Honour.

HIS HONOUR: Yes.

MR MIDDLETON: "And after extensive review ... (reads) ... as amended and supplemented by this agreement." The key elements of the scheme are set out in paragraph 7, Your Honour, and that is the establishment by BHP of a program to promote and support sustainable development within Papua New Guinea, to transfer the shareholding of BHP Minerals to a new company, which is a separate entity for the benefit of the community, an agreement by the state not to take proceedings against BHP in respect of environmental claims, given the force of law to the community mine and continuation agreements, termination of the interim management agreement between BHP and OTML, the establishment of an OTML of the Ok Tedi Development Foundation, a company that is to be established to promote sustainable development for the benefit of the people of New Guinea, in particular the people of Western Province, and the implementation of a new environmental regime in respect of the Ok Tedi Mine and the application of a new code governing mine closure and the decommissioning phase of the Ok Tedi Mine.

What happened, Your Honour, was the state of New Guinea did not just impose this overnight, it carried out consultation as governments do, when there are important projects to be done, and it's useful, if I take you to paragraph 10 of that outline, just to have a look at the Schedule 1 to the agreement I think my learned friend has been referring Your Honour to. If we go to Schedule 1 - does Your Honour have that?

HIS HONOUR: I've got that.

MR MIDDLETON: You will see there under the heading "Consultations." Just a perusal of it, Your Honour, will show that consultations have taken place since at least July - sorry - this is in the Schedule 1, Your Honour.

HIS HONOUR: It's Schedule?

MR MIDDLETON: Schedule 1, after paragraph 35 of the clause. It's within the body of it, yes, Your Honour, it's a little tricky, so if you go to the clauses of the agreement, go to Clause 35, Your Honour.

HIS HONOUR: Of the?

MR MIDDLETON: Of the agreement itself.

HIS HONOUR: Yes.

MR MIDDLETON: One finds Clause 35.

HIS HONOUR: Are you looking at the - - -

MR MIDDLETON: I'm looking at the, Highway - - -

HIS HONOUR: What's the heading?

MR MIDDLETON: "Community Mine Continuation Agreement Highway."

HIS HONOUR: I'm looking at a different one, but they're the same aren't they?

MR MIDDLETON: No.

HIS HONOUR: They're not?

MR MIDDLETON: No, they'll be different, Your Honour, and the only reason I say they're different, it's an important point, Your Honour.

HIS HONOUR: Yes.

MR MIDDLETON: Is it's just not a schedule in template form, it's a schedule which for each area describes differently the consultations that took place.

HIS HONOUR: Yes. I've got that now.

MR MIDDLETON: And you will see, Your Honour, starting in 1999, there are round table meetings, there are discussions - I don't want to read all this out to Your Honour - but a perusal down - - -

HIS HONOUR: No, I haven't got - I've got the agreement, but I haven't got - - -

MR MIDDLETON: Can I take - Your Honour ought to have a look a review of the operation agreement, Clause 35.

HIS HONOUR: Mine only goes to Clause 34.

MR MIDDLETON: I think Your Honour may have the wrong - - -

HIS HONOUR: I'm looking at "Community Mine Continuation Agreement Highway," it's AAG15.

MR MIDDLETON: MP2, Mine and Planning affidavit.

HIS HONOUR: Yes, well, I'll - - -

MR MIDDLETON: It's best to have a look at the XQ1, Your Honour, the one that Mr Beach took you to, I think, Your Honour.

HIS HONOUR: Yes. I'll get the one you're looking at. What was the exhibit number, MP10?

MR MIDDLETON: MP2.

HIS HONOUR: Two. Yes, I've now got that.

MR MIDDLETON: If you go to Clause 35 of the agreement.

HIS HONOUR: Yes.

MR MIDDLETON: And under that you will see Schedule 1.

HIS HONOUR: Yes.

MR MIDDLETON: Your Honour, this schedule is incorporated into each of the agreements and as I said to Your Honour it's different with each one obviously, because there are different consultations.

HIS HONOUR: Yes.

MR MIDDLETON: But you will see that set out there, I don't propose to take the court's time by reading every sentence, Your Honour - - -

HIS HONOUR: Yes. I've read this in one of the others, I don't think I've read this one.

MR MIDDLETON: The important point, Your Honour, to note, is that there has been over a period of time, in this case, since July 1999, a period of consultation and discussion with various people at all levels of society in relation to this process.

HIS HONOUR: Yes.

MR MIDDLETON: So it's a process that hasn't been imposed upon in any way other than the way in which one would expect in a democratic country, and Your Honour should be aware that New Guinea isn't perhaps like Victoria, you don't have fax machines and lots of telephones and lots of cars. And as Justice Hedigan said in one of his judgments, "People more orally express and orally learn more than reading," and there's a lot of evidence about that, before Justice Hedigan when these opt out notices were being discussed.

HIS HONOUR: I was admitted thereabouts. I've been there.

MR MIDDLETON: Yes. Your Honour will understand that there has to be some process that fits that environment, and it's wrong for Mr Beach in many ways to say, "Well, we sit here now and impose upon these people what we think is the correct process," and that shouldn't be something Your Honour should ever entertain with the greatest of respect, and I'm sure Your Honour wouldn't, knowing that it's a separate country and people's beliefs and the way in which they operate, fit that environment.

And a very important consideration, Your Honour, and I don't want to labour on it, but it's a very important consideration, that Your Honour shouldn't - and should be very careful about inhibiting or interfering with that process, particularly at the last minute, because this process is now ready to be implemented.

It will be apparent from those particular consultations, the description of them, that there are church people and leaders involved in supervising these discussions, there are independent people involved, government was involved, but it's not to say government imposed, but they were involved obviously, so it's a process that was very important.

It is also relevant to note that, and behind that agreement, Your Honour, if you still have that agreement.

HIS HONOUR: Yes.

MR MIDDLETON: You will see there a letter from Sir Michael Somare which talks about the very significance and the impact the mine will have, if one has a look at the fourth paragraph, talking about the environmental impacts, and the fourth paragraph of that letter, does Your Honour have that?

HIS HONOUR: Yes.

MR MIDDLETON: And this was addressed to the village leaders you will notice, Your Honour, just as an aside, if you have a look at 2.

HIS HONOUR: Yes.

MR MIDDLETON: Not to clan leaders, but the village leaders. "This creates a very difficult problem for the national government ... (reads) ... they must not be in the dark." And that's what was implemented.

HIS HONOUR: Yes.

MR MIDDLETON: That's on one side, Your Honour, you've got the New Guinea government, you've got all the people who have signed on behalf of those people who they represent, and on the other side of this particular matter, you have Slater & Gordon, who have retainers by not 30,000 people or 20,000 people, they bring out an action, one person brings the action, representing a whole lot of people who you may not even know about, and they are trying to stop at this stage, the continuation agreement. Your Honour should be a little bit hesitant about making any orders with that background in mind, particularly when you're dealing with a foreign state.

Could I go to the - I'll just leave that submission for the moment, Your Honour - I want to take Your Honour to the agreement, and just the various paragraphs - - -

HIS HONOUR: Same one.

MR MIDDLETON: Same one effectively, Your Honour. And just to see actually what is the matter of concern today, because Your Honour is not to be too concerned about anything other than as I say to Your Honour the impact upon this court's proceeding. What the clauses do, if one has a look at Clause 12, is to have releases. Your Honour has been taken to those already.

HIS HONOUR: Yes.

MR MIDDLETON: That is something which won't concern Your Honour today at all, they're either valid or invalid. If they're pleaded in this case as a defence, Your Honour will deal with them, and all those matters will be put before the court, no authority, Your Honour will have nice interesting questions of private international law, but there's nothing in force, nothing is going to happen because of those being there, in the next month, two months, three months, they're releases. This action won't be impeded. Because of the existence of Clause 12 today, nothing is going to impact upon Your Honour. Your Honour can still sit here today. I haven't moved to have the matter dismissed. All that can happen is, maybe, point may not be taken at the moment, it's not pleaded, but it may be pleaded, and then Your Honour will have full control over that pleading, you can strike it out, you can uphold the argument, it doesn't interfere with the process, in fact, it's within the process, so that can't be something the court should entertain any injunctive relief about.

As far as all the clauses that deal with the - that I adopt - pointed in that earlier submission, Your Honour, they can't impact upon the court of course, that is the mine going ahead, dealing with what is being given to the various parties, that can't impact upon the court.

If at the end of the day you strike it down between the parties, then that's a risk that my client would have to take presumably, but it's not just the parties to this agreement, or parties to these proceedings I've indicated to Your Honour, there's more at stake than that, a lot more at stake.

Could we then go to Clause 13, and Clause 13, takes such steps as to ensure that they execute and deliver opt out notices in the Supreme Court of proceeding. Now, that does impact, Your Honour, potentially on this Supreme Court proceeding, but only potentially, Your Honour. It doesn't prevent this proceeding from continuing, we're here now, the matter will go to trial, irrespective of these opt out notices.

Your Honour will make orders in favour of the plaintiff maybe, a remote possibility. This doesn't matter, because when Your Honour determines in a class action who is bound by them and who can come forward, they will come forward if they didn't opt out and they were forced to, and say, "We now want the benefit of that judgment." And you will say, "Well, you opted out." "No, we didn't." And they'll give evidence about that. And, Your Honour, undoubtedly if there was a gun put to the head of someone that you opt out of the Supreme Court proceeding and that was proved, I'd have very little doubt in my mind that Your Honour would not accept that opt out notice as being valid and would allow that person to have the benefit of the judgment Your Honour gave.

I cannot imagine any justices of the court not so finding. But not until that was shown. But that doesn't have to be done now and cannot be done on the basis of the evidence we've got at the moment, Your Honour just simply can't do that.

HIS HONOUR: Yes.

MR MIDDLETON: But what I'm saying to Your Honour, it's not precluded, and it may be, for instance, the plaintiff loses, heaven forbid, the defendant wins, opt out becomes irrelevant, Your Honour doesn't have to worry about it. It would be something which we will be concerned about, because remember, binding is both ways, we get the benefit of a judgment as well as the burden, that may be something we'll be concerned about.

So, Your Honour, what Mr Beach is trying to give Your Honour a terrible scenario, that Your Honour will probably never have to deal with, certainly shouldn't deal with now having regard to the fact of what's already happened there, because there's nothing that will stop this case from proceeding. It's got a plaintiff, some people are represented, and we're not moving to say there are under seven people there to seek a discontinuance of it, that may raise different issues, not doing that at this day, so, what is there, that's impeding the process, that Your Honour needs to grant an injunction now? Nothing.

Then if one goes to 13.2, Your Honour, they're releases again, and they're either valid or not valid, but that's not going to affect Your Honour's decision. And all this is made patently obvious in our respectful submission, by the terms of paragraph 15. Because what paragraph 15 envisages is there will be a continuation of Your Honour's proceeding, because it says, "If the members who are part of the settlement and do not opt out, then the following matters arise."

My learned friend tried to make something of this clause by saying it will conquer - it will divide and conquer, but the whole idea of the mine continuation agreements is to assist the economy, but you want finality. You can't get complete finality because you cannot interfere with those people who wish to proceed in this court.

This is not what happened before Justice Cummins, Your Honour, and I'll take you to that. Before Justice Cummins there was an attempt to specifically stop people from prosecuting, giving evidence, directly going to the processes of this court.

HIS HONOUR: Mr Beach would say there are more ways of skinning a cat than one.

MR MIDDLETON: But this isn't the one that's being used, because it envisages that you can opt out or not opt out.

HIS HONOUR: The point that he made about Clause 15.1, as I comprehend it is, that effectively what the agreement says is that if anybody goes ahead in this court and gets an order, no one gets any benefit, who gets an order requiring the things set out in 15.1. That is disruptive, isn't it?

MR MIDDLETON: No. No, Your Honour. It's put out of context. Remember this is just one part of a number of agreements which I think my learned friend says, so this is a topping up, if one likes, of arrangements already.

HIS HONOUR: Yes.

MR MIDDLETON: And we're only talking about the payments in relation to Clauses 17 and 18, not the benefits that are going to come from the mine continuation agreement to the communities.

HIS HONOUR: The communities. But the individuals, people who are affected by the opt outs, lose their right to any payment, whether they were part of it or not.

MR MIDDLETON: If anybody succeeds, if anyone succeeds, then, yes, I think that's right, Your Honour, but can I explain why that has to be of course, because if anyone succeeds, let's say the plaintiffs are successful in this case, there will be a different environmental impact regime and that will affect, obviously, compensation payments and the way in which the whole package is put together. The whole idea of this package - nothing sinister about it, Your Honour - Your Honour will understand, when one settles a case, one settles on the parameter of the settlement, one knows how much one is going to be doing and how much money one pays over. If the parameters change, one wants a clause to say, well, we have to pay more money there now, so we're going to take - - -

HIS HONOUR: Yes. I can see the reason for it. But the effect of it would be that you'd have a situation where if this court makes an order that a tail ends pipeline and storage facility be installed.

MR MIDDLETON: Yes.

HIS HONOUR: I assume that costs millions if not tens of millions.

MR MIDDLETON: Yes.

HIS HONOUR: Heaps.

MR MIDDLETON: Yes.

HIS HONOUR: And that thereby excuses the defendant from making any payments to individuals under Clauses 17 and 18.

MR MIDDLETON: Which I'll take you to in a moment, Your Honour.

HIS HONOUR: Mr Beach's point is that that of itself would be extremely civilly disruptive, you would have people who were thinking they were going to get paid, then suddenly, they're not. And as between the people who are in the action and those who weren't, you'd have that dissension.

MR MIDDLETON: I ask rhetorically, what is that relevant to Your Honour today, what is Your Honour going to do about that today? The question is what Your Honour has to do today to protect your own process, and the only process - and Mr Beach really came out with this, this morning, when he said the two things he was worried about is the anti-suit, that is us bringing an action in New Guinea and I will come to that in a moment and I'll be able to allay Your Honour's mind about that. And the other things is this procuring. They're the two things he's worried about, Your Honour. That's got nothing to do with this. If this clause is struck down because, Your Honour, if it ever comes before Your Honour, says that this is contrary to public policy, it's immoral, it's something which no one would ever enforce in this country, which I would find very surprising Your Honour, if you did come to that conclusion, but let's take the ultimate as what you can do, that doesn't matter for today, that's not what we're on about today, there's nothing to - we're not trying to enforce paragraph 15 today.

HIS HONOUR: No.

MR MIDDLETON: Then if you go to paragraphs 17 and 18, and this is the payment provisions, you will see there, that, "The company," in paragraph 17, "make annual payments described ... (reads) ... investment fund." I just want to take Your Honour to Schedule 4, because Your Honour should have an understanding in our respectful submission, about the nature of the payments.

HIS HONOUR: I have that, it's a table.

MR MIDDLETON: It's a table. You will see there, Your Honour, that it has community members investment fund, the table Schedule 4.

HIS HONOUR: Yes.

MR MIDDLETON: In some of the agreements, Your Honour, it has a different table, because it may not have community members, it may have an investment fund and another fund. So what the communities have done, and it varies from agreement to agreement, is sometimes they've wanted money to be given to a person, other times they've wanted money to be given to a fund, or other times they've wanted it given to both.

HIS HONOUR: This is one that gives it to both.

MR MIDDLETON: To both. And the significance of that, Your Honour, is that my learned friends will have this affidavit which says, "Well, look, if you look at how much money they're getting, no court in the world would possibly approve this settlement." I mean, that's the purpose of why he took you to it yesterday. He was trying to put into your mind that this is such a bad agreement, it's not going to help anybody, and you should look at this in a very, very disparaging way, and whatever I want, I ask for, I get. That's the purpose of his affidavit, it didn't have any other purpose. What I'm saying to Your Honour is to put it in the context - - -

HIS HONOUR: So what do you - - -

MR MIDDLETON: That is the purpose of why he put that material before the court yesterday, to disparage this agreement and to say that this court would not approve it. That's his submission. Because at the end of the day, he says that you will approve, or you will have the ability to approve this or not, that's his first point, which we say you don't, Your Honour, but his second point is, he says in this application - - -

HIS HONOUR: It wouldn't be approved.

MR MIDDLETON: - - - you wouldn't give approval, and I want to raise - - -

HIS HONOUR: Approval, I might say, without wanting to go into it, approving a settlement agreement involving cultural differences such as we are concerned with here, would be an extremely difficult process on any view.

MR MIDDLETON: Exactly.

HIS HONOUR: It may be something you have to do but it's not like the proving an inference compromise, is it?

MR MIDDLETON: Exactly, Your Honour. And, Your Honour, it's just a matter, as Justice Goldberg said in one of the cases where he analysed approvals, it's not just a matter of saying, well a person gets $10, you've got to work out the chance of success of the litigation, you've got to work out all the other benefits they get.

HIS HONOUR: Yes.

MR MIDDLETON: And I don't want to labour this point, Your Honour, but I do want to put to Your Honour the other side of the coin about this, that what you are having here, is a fund for a community to use for whatever purposes it wants, whether it be a well, or whether it be a school, or whether it be, whatever. It's not just a matter of one person missing out on $90. That's all, Your Honour.

HIS HONOUR: None of those payments are made if anyone succeeds in this action.

MR MIDDLETON: Exactly.

HIS HONOUR: Wouldn't have to be made, no.

MR MIDDLETON: And it only relates to further obligations, Your Honour, it's not moneys that have already been paid.

HIS HONOUR: Yes.

MR MIDDLETON: So you're not winding back the clock and seeking to get the - - -

HIS HONOUR: Yes.

MR MIDDLETON: The other thing to recall, Your Honour, is with all mines, there's a mine life, and this mine life is ten years and that's said in the recital, I think, to the agreement.

HIS HONOUR: Yes.

MR MIDDLETON: And it's all very well to talk about delay, but whenever there's a delay, one is going to effect the payments under this agreement, the implementation of the agreement, and if there is a time when it's only economically viable for ten years, the less time you get benefit out of it, the less money the New Guinean economy is going to reap, so my learned friend can be very willy-nilly with other people's money and other people's lives and the economy of the - - -

HIS HONOUR: What's the situation with respect to the mine right at this moment? Is it operating or not operating?

MR MIDDLETON: I assume so, Your Honour, yes.

HIS HONOUR: Yes. It's never actually stopped?

MR MIDDLETON: No. So that - there - all there is it's a finite time to a mine, as Your Honour will appreciate.

HIS HONOUR: Yes, and you say that finite time won't be affected by - it - I mean that's determined by the amount of whatever it is.

MR MIDDLETON: Yes, that's finite now, Your Honour, so every time there are delays in giving moneys, that is going to be something less that the economy that New Guinea gets plus these people will get, and the funds will get. Your Honour, there are trusts that set up these funds for the purposes of the funds, but I think Your Honour will understand they're there for the purposes of the village, and for the benefit of the village, and these particular aspects, so it's not just a matter of each person getting 90 Kina in their pocket and going away and spending it on whatever they want to spend it on, so - - -

HIS HONOUR: But in some cases they are paid individual amounts?

MR MIDDLETON: Yes, but it's not universally the case, Your Honour.

So Your Honour, you certainly should not make an injunction to stop the enforcement of the agreements because that's not going to help anybody, nor is it impacting upon the court's process.

HIS HONOUR: You say enforcement - you say an antisuit injunction?

MR MIDDLETON: No, I'll come to the antisuit injunction again, Your Honour, that's settled, but at the moment we seek - - -

HIS HONOUR: Enforcing the agreement in what sense then?

MR MIDDLETON: Generally. An injunction to say that these agreements should not be enforced by my client.

HIS HONOUR: By? Well, let's - - -

MR MIDDLETON: Anyway, that's what 4 is, from enforcing against any group member any of the term of the MCA, one of the things they seek. It's too wide. On any view, to protect this process of the court, this agreement can stand and be enforced subject to the opt out notices, Your Honour.

HIS HONOUR: But the enforcement against a group member would only involve, would it not, having regard to the terms of the agreement, would only involve the compulsion of a group member signing an opt out notice. That's all that enforcement would - - -

MR MIDDLETON: And as far as this court is concerned, yes, that's right, Your Honour.

HIS HONOUR: And it could be either enforced by action or it could be enforced by exhortation or - - -

MR MIDDLETON: Two ways.

HIS HONOUR: Yes, well, whatever - incitement.

MR MIDDLETON: In relation to antisuit, Your Honour, can I say this; we have never threatened nor is there intention to institute proceedings in Papua New Guinea to get specific performance if you like, of Clause 13.1. If you go to 13.1 you see "Executing/delivering of Opt Out Notices".

HIS HONOUR: Yes. Well, do you have instructions to give the court an undertaking?

MR MIDDLETON: I have instructions that we will give seven days notice of any - - -

HIS HONOUR: Just give me this - can you just - - -

MR MIDDLETON: Yes, Your Honour, of any application to be made in the court of Papua New Guinea.

HIS HONOUR: OTML will give seven days notice.

MR MIDDLETON: Of any application it will make in the court of Papua New Guinea to seek specific performance of paragraph 13.1. We've never threatened it, Your Honour, it's not our present intention, but that will take away if it does, a need for Your Honour to spend two days in writing up a judgment on this particular aspect.

HIS HONOUR: I can assure you I wasn't going to do that.

MR MIDDLETON: So Your Honour, the idea now of there being an interference in this court by a foreign court or us going there and seeking a court order to say that these opt out notices now have to be validated or whatever, it was never there and it's not there and it's taken away by that undertaking. That's the only - this is the only clause as Your Honour has identified, that could cause my learned friends any problem in this litigation now or until the final hearing and determination of this proceeding. This is not a matter of going over to February to hear of our contempt. What I'm saying to Your Honour is that this is now something which will be solving the problem until the hearing and determination of this class action, because what we don't want to have, Your Honour, is to come back in February or March and to find that it's unnecessary if there is no interruption before process, because if you take Mr Beach's point, "Let's have a final hearing about this summons" in March or February, it's going to be no different because there's going to be no interruption to the court process because we're not - unless we give seven days notice - we're not going to Papua New Guinea to try and gazump this court, if that's my learned friend would think we're doing. There will be no comedy issues, there will be no difficult private international law issues. The matter then can proceed in the normal way.

We then come to the next issue of procurement. Now, Your Honour, one doesn't normally grant an injunction because someone comes along and asks for it. You've got to have a basis, evidentiary to start off with, and a basis that's going to have some useful - not be futile, or whatever - and you're going to have to, if you come over all those hurdles, then you've got to determine some way in which to word the injunction because every injunction has to be enforced, and the court won't have an injunction which it can't readily supervise. Now, identifying all those things, Your Honour probably will already will see where I am leading Your Honour, that there should be no suggestion on the evidence, and I'm going to hand up Your Honour, a table of the evidence which my learned friend is taking you through, that there has been any procurement or threats by our clients. Let's assume, Your Honour, as Your Honour has indicated, there's some disruption or some arguments about this process. Let's assume that's what's going on. Even in - I shouldn't say that Your Honour - but in any democratic society, one has demonstrations, one has arguments. We don't then immediately lead to the conclusion that someone's putting a gun to someone's head who is a protagonist in one piece of litigation. There are a lot of different issues that are arising over this. For my learned friend to get the injunction he seeks he would need to have good evidence that it was our clients who were systematically procuring people to get opt out notices, because what Your Honour's doing - - -

HIS HONOUR: That's sort of que bono, isn't it, I mean, your client is the only one who benefits from the opt out notices.

MR MIDDLETON: There's no, when I say, systematic procuring, I mean procuring in a way in which Mr Beach uses the word "procuring", forcing beyond - against their will, duress. Of course, it would be to a defendant, as I said about the plaintiff not wanting opt out notices, to facilitate by giving opt out notices the blank form, "Here you are, if you want to opt out, opt out." There is nothing wrong with that, Your Honour. Nor would there be anything wrong, Your Honour, with going to a person prior to the opt out period and saying, "Look, I'll give you $10 in a settlement, and you opt out." I mean that happens in other litigation in this court in Victoria, in the Esso, Mobil cases people can settle - and maybe do it for lots of reasons. They may think they don't want to have Slater & Gordon as their solicitors, they may have their own solicitors they've had for a hundred years and they want to keep with them, so they don't want that particular firm representing them. It may be that they have a good relationship with the particular defendant and they don't want to - because they're commercially in relation to each other. And so we'll separate and settle separately. There are thousands of these.

HIS HONOUR: You say there is no question that s.33V doesn't prohibit - - -

MR MIDDLETON: Absolutely none.

HIS HONOUR: - - - an agreement to opt out consideration.

MR MIDDLETON: It cannot be that that particular - when you have a look at 33J which is the opt out provision, and it's made clear, in our respectful submission, by sub-s.(5), and I'll just take you to that very quickly, Your Honour, it's 33J, is the right of a group member to opt out. So what the court does is you fix a time when you can opt out, and if you have a look at (5), unless the court otherwise orders, a person who has opted out of a group proceeding, must be taken never to have been a group member, so you opt out, you're not a group member, and therefore when it comes to any settlement that takes place, that's the end of it, you've got no jurisdiction.

HIS HONOUR: That's provided you don't - - -

MR MIDDLETON: Assuming the validity of the opt out notice.

HIS HONOUR: Yes.

MR MIDDLETON: That's all (indistinct) - - -

HIS HONOUR: Yes, but your argument assumes that s.33V, by using the expression, group proceeding may not be settled or discontinued, that that doesn't involve, for example, a mass opting out for consideration.

MR MIDDLETON: If there's a mass - - -

HIS HONOUR: What if a defendant - if a defendant in fact, went to every member of a group, say you had a much more - - -

MR MIDDLETON: Twenty.

HIS HONOUR: - - - yes, a much more definable group than we've got here, a defendant went to every member of that group - - -

MR MIDDLETON: Before the opt out period.

HIS HONOUR: Before the opt out period, and effectively brought their opting out by a money consideration.

MR MIDDLETON: Yes. No problem.

HIS HONOUR: You say that wouldn't be covered by 33V.

MR MIDDLETON: And why should it, why should you assume that the people who have settled with the defendant, haven't done so in good faith, and on proper advice. They all may have ten lawyers.

HIS HONOUR: Yes.

MR MIDDLETON: All go to their lawyers, "I want to settle with you. I don't want to get involved in this litigation, opt out." Different considerations may apply, Your Honour, after the opt out period, because then you will need to go to the court and get an extension of period of time and the court may want to know why, that's different, Your Honour.

HIS HONOUR: Can the court grant an extension in respect of a particular member or does it have to be - - -

MR MIDDLETON: No, it can do it - well, I hope it can, Your Honour, because it's been happening all the time in the Esso case.

HIS HONOUR: In respect of individual members.

MR MIDDLETON: Yes. A person sometimes doesn't want to opt out, they come to the court and say, "Look, we forgot to opt out out," and Justice Gillard has said - what he does is in relation to John Middleton, "I extend the period until the 16th day of December," or something.

HIS HONOUR: For the individual group member.

MR MIDDLETON: Yes. And usually it's done pretty much routinely as you would expect.

HIS HONOUR: That's a different issue.

MR MIDDLETON: But, Your Honour, if the undertaking we've given solves the so called anti-suit problem, then we go to procurement, and procurement is what, one asks rhetorically, it can't be giving the - handing out the notices. My learned friend concedes the submission.

HIS HONOUR: The way he redrafted his proposed order is that from procuring the execution of any opt out notice by any group member pursuant to the agreement, in other words, pursuant to Clause 13.1 - - -

MR MIDDLETON: What does that mean, Your Honour? Does that mean, it's done pursuant of - do you put it under their nose and you say, "Look, pursuant to this or is it just done because you're automatically doing it?" Your Honour, what he says to you, is by giving this injunction, you are going to prevent the task of having to deal with each opt out notice in their validity. All you're doing is making it worse, Your Honour, because what you'll be doing is every time there's an opt out notice which will come in after injunction, you'll have a fight about whether or not it was pursuant to the injunction, or against the injunction or not.

"Procure" is a word in the circumstances of which you are no confronted you could not use. You know now what the circumstances are, you know what the process is, you know it's not Victoria where people just have an advertisement, or they write in, and it's an oral community where people have to go round and talk to people and explain to them. So is that not to be allowed, you're not allowed to say anything to them, is that part of the order, you would have to state that. The only way to do it would be to make a 50 metre perimeter.

The other thing, Your Honour, which you've got to be careful of and my learned friend talks about disruption, but an injunction of this court is disruptive. At the moment one has a regime in place, put in place by Mr Justice Hedigan, it's nearly finished, it's nearly spent its course, Christmas time, 7 January, it's nearly there, continuation agreement, we've had all the discussions about it, the law is passed. People do want certainty. Now whatever has been created by this application and the doubt about the opt out notices has happened. But if Your Honour grants any injunction in relation to opt out notices, which is cutting across or be seen as cutting across in an order of this court, it will create more uncertainty.

HIS HONOUR: What about the point that the passage of this New Guinea legislation - PNG legislation - creates a situation where under PNG law you can have this fictitious authority.

MR MIDDLETON: Your Honour can deal with that. That doesn't impede. When the issue of opt out notice is before Your Honour, which it will be if my learned friend persists, then that issue will be determined by Your Honour according to Your Honour's Victorian law and international comity. Either that's good law applicable in Victoria and we say it will be - that will be binding on Your Honour - but Your Honour will decide that, so when it comes to work out the options - whether they're valid - because Your Honour, I don't say Your Honour has not got jurisdiction to determine the validity of an opt out notice. Your Honour must have jurisdiction for that because it's within the Act, and it's before you. You clearly must have.

One of the issues will be that we will say those opt out notices are valid, and we will say that you firstly give an opt out notice through an agent. That seems pretty much trite law, I must say. I gather Mr Beach when he was first before you made some submissions that it had to be done individually. He didn't seem to throw that in now, Your Honour, but there are lots of cases that say that the normal principle is that what you can do yourself you can do through an agent, and there are a lot of other cases that say that presumption of a statute is in favour of that, unless there's pretty much express wording or necessary implication to the contrary. You won't find that in this Act, and for good reason. I think Your Honour gave the example of solicitors.

HIS HONOUR: Yes.

MR MIDDLETON: It has to be the case. So if we get over that hurdle, you can have an agent. Then the question is whether or not these people were the agents. We will say of course they were because according to the law of agencies you apply, the law of New Guinea has (indistinct). My learned friend will say "No, you can't do that, that's contrary to" - I think what he says is the case of Heinneman, morals and good value.

HIS HONOUR: Yes.

MR MIDDLETON: That's an argument Your Honour will deal with. With the greatest of respect, it's a nonsense because it's not contrary to public policy. There are many Acts in this country that make deeming provisions of people acting on behalf of other people. But Your Honour will deal with that, and we're not taking away from Your Honour anything - ability to deal with that, and that will be dealt with according to Victorian law, which incorporates private international law.

That will have to be done in any event, so that's an issue that can't go away unless my learned friend withdraws his application.

So procuring has all the vices - now you know the circumstance of being unenforceable, Your Honour would have to supervise in some sort of way this opt out procedure. The court has set down a procedure already, Your Honour, through Justice Hedigan's orders. You have a procedure of advertising, talking to people, consultation. I'm sure it was envisaged, and I'm sure it was said by counsel who preceded me that inevitably in this sort of environment you may have some misunderstandings - communications are going to be made. But you have to do the best you can, as long as someone doesn't positively go out and mislead, of course. But people have different perceptions of what's good about the agreement or what's not good about the agreement. What's good about Supreme Court case - that's fine, Your Honour, we all do that every time there's a class action. People have to make up their mind on one reason or another - completely extraneous reasons why a person may want to opt out. May not be bothered getting junk mail telling him about the various bits and pieces of the action that's going on every month. Or they may be fearful about costs, they'll be told they don't have to pay costs, but they won't trust the system so they want to opt out. The Act will tell them "No costs against you", but they're fearful.

Every time there's an opt out notice, do you look to see "That person had an extraneous reason for opting out, I'm not going to do that". And we're talking about here where Mr Beach is representing people who aren't necessarily the ones who can talk for themselves, if you know what I mean. The person who opts out will have to come to the court and say "I didn't do it, I did do it" and have to explain why. No one else can do that for them, because the whole idea of opting out is the individual's right to keep out of this group proceeding. The group proceeding is necessarily encompassing everybody, and that's why the Act makes it very linchpin of it that a person can opt out.

HIS HONOUR: That's right, but this PNG Act, with a wave of a legislative provision, has people opting out all over the place who may or may not know that they're - - -

MR MIDDLETON: But Your Honour has to understand the context in which that was done, and that's why I took Your Honour to the consultation. Your Honour can't just sit here as a Victorian judge, think about how we would do things, all the communication of how Your Honour could get everybody to come, and act accordingly. Because in New Guinea you have difficulties which the government is aware of, of trying to get consensus. Now, Your Honour may not - - -

HIS HONOUR: So it solves the problem by saying whether - somebody who purports to act for somebody else does so. I mean, it takes the concept of representation to a very far - - -

MR MIDDLETON: Well it does in Your Honour's mind in Victoria, but it may not do in the context of New Guinea. Your Honour has already been taken to some of the expert evidence about clan leaders and village leaders, and how there's been community - so they do accept in New Guinea - - -

HIS HONOUR: No question about that, but to take, for instance, Professor - one of the affidavits you put on by Professor Nongor, is it?

MR MIDDLETON: Nongor.

HIS HONOUR: He says that Clause 8 of the bill represents, effectively, a classification of customary law. Well, I'd find that on its face extremely difficult to accept, because Clause 8 of the bill says that anybody can sign a document and say later, "I was representing 500 people." Even allowing for all my cultural ignorance, that seems to be - but anyway, that may not be - ultimately may not be a problem I have to face at this point.

MR MIDDLETON: But Your Honour, if it is a problem you've got to face, it's a problem you don't need to face today. That's all I'm saying, Your Honour. It may be a problem Your Honour never has to face.

HIS HONOUR: Yes.

MR MIDDLETON: Because opt out may become irrelevant. But you shouldn't say now, and I'm going to grant an injunction stopping us from procuring people who opted out notices. Because that's got nothing to do with that issue, that's the only point, Your Honour.

HIS HONOUR: Yes.

MR MIDDLETON: I want to kept coming back to focusing Your Honour - if I may with the greatest respect - on what we're doing today. There's lots of issues my learned friend has raised, which are very interesting. Lawyers will enjoy discussing them for hours I'm sure, Your Honour. But for the people that I represent, that is all very well and good but it's not what we're here today for. Whatever happens with that argument, I might be right, maybe wrong. It is not reason to grant - we're only talking about one thing which Mr Beach wants - procuring of us to stop the opt out - prevent the opt out - - -

HIS HONOUR: Yes.

MR MIDDLETON: Because that's going to either happen or not happen, irrespective of the impact of the legislation.

HIS HONOUR: Well, it's one o'clock. I'm just concerned. I have to rise at quarter to four. Do you envisage finishing - - -

MR MIDDLETON: I don't think I've got a great deal longer, Your Honour. Can I just give you the plan that I had?

HIS HONOUR: Yes.

MR MIDDLETON: I do want to take you to the summary of evidence in relation to procurement - - -

HIS HONOUR: Yes.

MR MIDDLETON: Which make good the point, but there really isn't any evidence in relation to this. I then want to take you very very briefly to some aspects of law which I don't think will take very long.

HIS HONOUR: Yes.

MR MIDDLETON: A lot of the matters Mr Beach actually conceded this morning. And then basically take you to the balance of convenience.

HIS HONOUR: Yes. We'll start at two o'clock I think - - -

MR MIDDLETON: Yes, if Your Honour pleases.

HIS HONOUR: - - - come back at two o'clock.

LUNCHEON ADJOURNMENT (Bongiorno J)

UPON RESUMING AT 2.00 P.M.:

MR MIDDLETON: If Your Honour pleases if I may just go back to the provisions of the Supreme Court Act while you've got them open there as well. I had taken Your Honour to 3V, a group proceeding may not be settled or discontinued without the approval of the court. I don't think I said, Your Honour, and I should say to Your Honour, there is no suggestion that settlement and approval - sorry - have to be coincidental, in the sense that one can settle subject to the approval of the court, and that's normally would happen.

HIS HONOUR: That would normally happen anyway, wouldn't it?

MR MIDDLETON: And you wouldn't have to say in the settlement agreement that is subject to the court approval because that's imposed as a matter of law, and the relevance of that again, remembering my primary submission to Your Honour today has been Your Honour should do no more than is necessary to look after the court process, approval or not, whether the agreement needs approval and whether rit should be approved, that can wait, it's not going to affect anything.

HIS HONOUR: It is though if it's acted on.

MR MIDDLETON: Not in relation to what's interrupting the court put by my learned friend which are two things; opt out notices and antisuit. That doesn't matter about the agreement, the antisuit will arise in relation to proceedings in New Guinea, that doesn't matter what Your Honour says in relation to that.

HIS HONOUR: The payment to individuals under the agreement would be a payment that the court oughtn't to countenance if it wasn't going to have to prove the settlement.

MR MIDDLETON: But that's a payment which we are making.

HIS HONOUR: Yes, but you're making it in circumstances where you say you're required by law to make it. You're not required by law to make it.

MR MIDDLETON: Yes, but to whose detriment is that Your Honour?

HIS HONOUR: It might be to your detriment in the first place but it then gives you an (indistinct) right to restitution which would be a dreadful situation.

MR MIDDLETON: It may not, Your Honour, if we've paid out under an agreement which is not relevant, according to what the courts say. It may not be entitled to restitution. We take the risk. Your Honour is in an unusual position of being asked to restrain someone from offering money.

HIS HONOUR: Yes.

MR MIDDLETON: Which we take the risk - - -

HIS HONOUR: Forming an agreement which might not be approved.

MR MIDDLETON: We can certainly perform the agreement with people who are not subject to the group proceedings, so you've a limited - somebody will get money, some wouldn't get money.

HIS HONOUR: But in respect of the group members you'd have a situation where you'd then - you'd pay out under the agreement, you'd then have, you say, you wouldn't have to seek it back, of course you wouldn't have to, but you'd have a right to seek it back.

MR MIDDLETON: Sir, my learned friend is standing up in this court today seeking an injunction against us from paying out to group members pursuant to the agreement. I don't think that's what he's really wanting, Your Honour, I don't think that's what he's wanting. I don't think Slater & Gordon would be very popular in New Guinea if at their application they were not wanting payments of money made.

HIS HONOUR: I see your point, anyway, that you say that 33V, that approval is not necessarily contemporaneous, although - - -

MR MIDDLETON: And it's only approval in these proceedings. That goes back to the point I was saying, it's approval in relation to the parties who are parties in relation to this proceeding, not in relation to other parties of the agreement, and in any event, Your Honour, as a threshold point - - -

HIS HONOUR: Anyone who isn't a party isn't bound by the opt out.

MR MIDDLETON: Yes. All I'm saying to Your Honour - exactly - all I'm saying to Your Honour, just put yourself as to what's happening in the country that we're affecting, a long way away, some people are going to get money, the agreement's going to continue with some people, and with others it's not. Extraordinary position to have, where the court doesn't have to do that, where this court at the end o the day probably will never have to see the agreement to deal with it. Remember, Your Honour, the opt out provisions become relevant at the end of the trial when matters are being determined about who's bound. In the Esso litigation and Mobil litigation, lots of opt out, just happens automatically, the court gets hold of them, doesn't matter. When judgment is made it does matter. That's the same in this position, in this particular case, Your Honour. So it may be an issue which the court never has to deal with. If the defendant wins, certainly it will not have to deal with it.

Now, the group proceeding, Your Honour, and this is a matter which we don't ask you to make a final determination upon obviously, but a group proceeding is the settlement of the whole group proceeding.

HIS HONOUR: Yes, well, that's what there is an issue about.

MR MIDDLETON: An issue about that, Your Honour.

Now, could I just remind Your Honour that the opt out date of course hasn't expired, so 33J in our submission would allow an opt out to occur without any court approval because it's the very individual right which the legislation has to give to group proceedings to protect those who don't want to be bound by a judgment, and sub-s.5 makes it clear if you opt out that's the end of it.

HIS HONOUR: Never to have been - deemed never to have been a group member.

MR MIDDLETON: So once opt out's said to be invalid, the rest is history. Once the opt out is valid, then it does not matter, don't need any approval as far as that person's concerned, because that agreement can't affect them.

HIS HONOUR: That's if your interpretation of 33V as meaning that it's the group proceeding to which 33V is directed.

MR MIDDLETON: No, no, I'd be right even if that's not the case, Your Honour, because if you opt out you're never a group member, so 33V just never applies to you. You opt out, so your settlement agreement which you've entered into before you opt out, is not a settlement agreement that requires the agreement of the court because you're deemed never to be part of it.

HIS HONOUR: So you're never a party - - -

MR MIDDLETON: To the group proceeding, never been a party to it.

HIS HONOUR: In any event you say it's not a settlement of a group proceeding.

MR MIDDLETON: Exactly, exactly, and when you think about it, Your Honour, that must be the answer to it because people will want to opt out and deal individually for the very reasons I gave - one reason before lunch, Your Honour. Now, Your Honour, in relation to those legal issues, irrespective of whether we're right or wrong, and getting back to Your Honour's discussion with me about Clause 8 of the legislation and this notion of binding people, that is never going to be an issue which, if properly agitated in this court by the way my learned friend puts it, Your Honour would be unable to argue to decide, if Mr Beach is right, because remember how he puts it, he says "Here is the Clause 8, here's part of the agreement", he says Clause 8 is not something which should impact upon this court, and then he referred to the Heineman case, where he said well it can be a question for Your Honour as to whether or not the incorporation of New Guinea law is against public policy. Well, if that's the law, so that element of private international law was incorporated, Your Honour can deal with that issue. Your Honour can, on the Heineman principle, knock down that particular piece of agreement. We say Your Honour - - -

HIS HONOUR: You're saying that it should not be applied.

MR MIDDLETON: Yes. But Your Honour, nothing we do today or tomorrow in relation to this agreement will affect that. If Your Honour can do that now, which my learned friend says you can, Your Honour can do that in one year's time. And nothing we do will change that. Nothing we can do will change that, even if we wanted to do something about that, Your Honour.

So no injunction needs to go to prevent anything about the agreements. That includes entering into any other agreements. If for instance we want to enter into other agreements with other villages, how is that going to impact, I ask rhetorically by way of submission, upon the court process? Because the complaints are the opt out - that can be dealt with, the complaint is that we go to court to try and somehow usurp this court's function - we can deal with that. And the other complaint seems to be it's in contempt of court, and the agreement somehow is to be set aside.

That can be argued at the time it comes before the court by way of pleading a release, for instance. And my learned friend will say that lease shouldn't be binding on these parties, and he'll put all those arguments to Your Honour. But there's nothing else he shows in entering the agreement, that usurps the function of this court. And that can't usurp the function of the court because this court can determine that very issue. You can determine whether that particular clause is valid or invalid.

There will be lots of reasons why Your Honour may not come to that conclusion - we would submit strongly that Your Honour shouldn't come to conclusion, but it's not taken away from this court's jurisdiction and that's the only point. What Your Honour will decide, or as a matter of law will fine end, is a different matter from whether or not someone is interrupting and taking away the court's jurisdiction.

On Mr Beach's own argument, the court does have jurisdiction, even with the existing agreements. So if we tested it that way, deal with the ones we've already entered into, which we can't undo - but in relation to that, he already says to Your Honour that can be argued, because if we plead it, he can raise all these issues of Heinneman and public policy.

HIS HONOUR: The defence doesn't plead the release at the moment, does it?

MR MIDDLETON: No, it doesn't.

HIS HONOUR: The defence was on before these agreements were signed, wasn't it?

MR MIDDLETON: I don't think the opt out period is finished yet, Your Honour, and all sorts of issues may arise. At the moment it's not an issue before you, in which case it's a red herring, because this court doesn't have to say anything about them and it has not been raised against the claim. But I'm putting it in the way Mr Beach puts it, because Your Honour is quite right. At the moment there's nothing before you which brings this into play. Mr Beach fears the worst and fearing the worst is that we'll somehow rely upon these releases.

All I'm saying to Your Honour is accept Mr Beach's fear, assume we do plead them - that is not taking away or interfering with the jurisdiction of the court, in fact it's probably doing the exact opposite - just to call in play the jurisdiction of the court and to call in play Your Honour's adjudication on the issue.

One of the reliefs that he wants is to prevent us from seeking any other agreements. That can't in itself usurp the function of this court, Your Honour. That's the submission.

Your Honour will recall s.8 - it's a Section of an Act of Parliament. That raises other complications, but how Mr Beach puts his point is that that can be a matter that can be determined in this court, and we agree with that.

Your Honour, I want to move to the summary of evidence in relation to procurement. This is an issue in relation to his form of order - - -

HIS HONOUR: Have you finished dealing with this agreement for the moment?

MR MIDDLETON: I have, Your Honour. What my learned friend seems to seek now is a procuring pursuant to Clause 13.1, the execution of any opt out notice. That seems to be where he's - that's one of the things he claims, Your Honour, and that's what I'm addressing you on at the moment.

HIS HONOUR: Yes.

MR MIDDLETON: Firstly we say, Your Honour, that if you look at the evidence in relation to this, there is simply no evidence upon which Your Honour can be satisfied that there is in fact any improper procuring of the exercise of any opt out notices by the second defendant. And "by the second defendant" I underline. Your Honour has to be careful in an application such as this to be a little bit mindful of what the weight of the evidence is when reaching conclusions about this. Your Honour has seen the allegations and counter allegations, Your Honour now knows the background which has happened, you know the orders which were made in relation to advertising, and all we're saying to Your Honour is that to conclude there is an improper procuring by the second defendant - is simply impossible to do on the evidence before the court at the moment.

You shouldn't assume that there would be any way in which some presumption that the second defendant is going to act in some way like that. It wants the process, just like everyone else, to be proper. Court orders were made, you don't assume someone's going to breach court orders. You don't assume that there's some systematic undermining of these things.

HIS HONOUR: It's not suggested that there's a breach of order at the moment?

MR MIDDLETON: It's suggesting it's contempt of court, that's what is put before you.

HIS HONOUR: Yes.

MR MIDDLETON: It's considered that what's been going on by these actions is contempt of court. That's how he put it, that's what is put in his submission anyhow, and I think that's his - - -

HIS HONOUR: I appreciate that, but it's not contempt in the sense that it's in breach of any particular court order.

MR MIDDLETON: No, not a specific one, you could point to Justice Hedigan and say "You forgot to do that after the second day or something", no, Your Honour.

HIS HONOUR: It's a more serious attack on the integrity of the process.

MR MIDDLETON: On the process, yes. It's a very serious allegation to make against a company, and that's all I ask Your Honour. When one has a look at the evidence - and Your Honour can go to the affidavits and my learned friend Mr Beach took you to them, it's something which you shouldn't likely at all come to the conclusion, and we say not within a long distance could it be said that there's - - -

HIS HONOUR: I'm not going to make any finding about that, but it's only a question of whether there's a serious issue to be tried in that respect.

MR MIDDLETON: What is a serious - a serious issue is whether or not there's an interference in the process through this opt out procedure. You've got to be careful, Your Honour, because the simple order to make would be that you have nothing to do with the opt out procedure, you keep away from people, you don't facilitate the opt out procedure or some, the call Draconian order, against the second defendant. If, for instance, there was evidence that a person was going around - was identified as a party to an action, using strong arm tactics, then Your Honour's order would reflect appropriately to prevent that, clearly.

HIS HONOUR: Mr Beach concedes that there - I'm just trying to find his minutes, the minute that I have actually written on, because I made some notes, but he effectively concedes that there would be no basis for restraining your client from seeking people from handing out opt out notices, or indeed even from canvassing the opt out procedure provided it wasn't canvassed by reference to the agreement.

MR MIDDLETON: And that has to be his - that is his concession and that exactly has to be his concession, because there is nothing to prevent anyone from suggesting to someone you should opt out, because it's in your best interests.

HIS HONOUR: Yes.

MR MIDDLETON: Or, "Look, I will give you x-amount of money, or I'll settle you on a different basis." Clearly, that's right.

HIS HONOUR: Yes.

MR MIDDLETON: But how do you frame an order, how do you supervisor that, Your Honour?

HIS HONOUR: That may be the difficulty. I can't find it now, but it's here somewhere.

MR MIDDLETON: He said, "Procuring pursuant to Clause 13.1 the execution and opt out notice."

HIS HONOUR: Yes.

MR MIDDLETON: And "procuring" has its own ambiguities as Your Honour knows. My learned friend, when we're talking about this issue of how we deal with the opt out notices you've already got, Your Honour, says there is going to be a lot of forensic difficulty with dealing with those, as to whether or not there was procurement and mis-information. The same thing is going to happen on injunction, and we, that is my clients, should not be put to the risk, if one likes of some contempt application for breach of an injunction.

HIS HONOUR: That's just the ordinary principle that the injunction shouldn't go unless it can be made sufficiently clear and certain.

MR MIDDLETON: Exactly. Clear and precise. And so on the one hand, Your Honour, you have no cogent evidence that anything is going astray by the second defendant, Your Honour, so you're not in that position. Then on the other hand, there's no effective wording that can do anything to prevent what is legitimate for handing over of the notice, the talking to people on the ground. It can't be suggested we can't talk to these people. But as soon as a representative of ours goes to talk to a person, you are going to get an affidavit, Mr (indistinct) is going to be there with his video camera, or his friend's video camera, taking a photograph, and they'll come to court and say, "Well, they're there, the two of them have been talking to each other, the inference is they're procuring." And then you'll have to find the person, come to court, stand up, if he can remember what he was doing on the particular day, it would be an impossible situation, particularly in a situation where it's further away. And to supervisor that would be difficult as well, Your Honour.

Your Honour, I'm not just putting this on the basis of give up because you can't find an appropriate wording because that's obviously an unsatisfactory way of dealing. If the court comes to a view that injunction should go, of course the wording will be found that we will do it. But you can't come to that view in relation to anything that's not permissible and distinguish what is permissible or not permissible, remembering what's already happened, and remembering in any event, the agreement as far as opt out is basically an irrelevancy now, the process is there, in place, it's only a very few days left really when you think about it, in the opt out procedure considering Christmas and New Year.

Your Honour, can I deal with balance of convenience, a little bit further, and the question of undertaking as to damages. If I may just hand up to Your Honour, a brief outline of submissions which I've covered a lot of the matters in any event, but there are some matters that we can deal with - - -

HIS HONOUR: Is this different to the - - -

MR MIDDLETON: - - - it's another - - -

HIS HONOUR: It's another document.

MR MIDDLETON: Yes, Your Honour. Could I take Your Honour to p.4.

MR BEACH: Can I just object to the receipt of this at this late stage, Your Honour. I mean, Your Honour wants to finish at quarter to four.

HIS HONOUR: Yes.

MR BEACH: I haven't seen this before. We started yesterday morning, Your Honour had the benefit of submissions from my clients.

HIS HONOUR: Yes.

MR BEACH: How can I possibly deal with this before quarter to four today, Your Honour?

HIS HONOUR: What's the - - -

MR MIDDLETON: I'll read it out, Your Honour, and if it can be handed back, Your Honour, just as a convenient aid-memoire to you.

HIS HONOUR: Mr Beach will have to be given an opportunity to reply to it. I don't know whether there were directions in relation to outlines of argument.

MR MIDDLETON: No, there weren't, Your Honour.

HIS HONOUR: There weren't - - -

MR MIDDLETON: No.

HIS HONOUR: - - - by Justice Ashley, but certainly the plaintiff did provide a detailed outline of argument.

MR MIDDLETON: Your Honour, as a convenient way of going through - - -

HIS HONOUR: No, I'll leave - I will accept it Mr Beach, but I will give you, and if necessary, we'll have to reconvene to give you an opportunity to answer anything that's in it.

MR BEACH: Thank you, Your Honour.

MR MIDDLETON: Paragraph 20 is where I want to start, Your Honour, I didn't want to go through the other matters.

HIS HONOUR: Yes.

MR MIDDLETON: And it's a convenient line of the balance of convenience. The first point is: "It's an interference to the process ... (reads) ... continuation of a mine." And I've already elaborated on that, Your Honour, this morning, when I went through how the mining agreement had come into existence, how a lot of elements far more important than the leases, opted out, Your Honour.

HIS HONOUR: Yes.

MR MIDDLETON: There will be confusion, uncertainly in the western province communities. At the moment there's been a consultation process. They expect the matter to be implemented accordingly. So one has an interruption to that process, plus the court order already made by this court, Your Honour. There is uncertainty to lead to all sorts of possibilities, including closures of mine and damage to various people and also - point D - delay the implementation of the arrangements, which is - - -

HIS HONOUR: Is there evidence that it may lead to the closure of the mines?

MR MIDDLETON: No, Your Honour, there's no evidence to suggest that. But Your Honour has to appreciate that this is a matter which has been progressing for a couple of years, and one has a situation where you have to - at one stage or another - come to the view, you either go ahead or you don't. Now, my learned friend will say one month, two months, Your Honour, but we all know the court process. We all know what's involved in his application now, and that's an unlikely scenario.

The implementation being delayed will impact the overwhelmed majority of communities - and I've indicated that to you already. And we're not just talking about a 90 kina, we're talking about a (indistinct) matter. Point E is much the same. And also you're dealing with the relationships with the communities themselves, and what people want to do. Now, Your Honour, undoubtedly there's going to be dissatisfaction to a certain extent, already having arisen because of the process, but we can't turn the clock back.

We've always said that there were dangers in the process of opting out, and the mine continuation discussions going at the same time, Your Honour, but that's happened, and the process has occurred. We've got to deal with that situation as it arises, Your Honour. I'm sorry, Your Honour, I am told by my learned junior that in the Prime Minister's statement - which is Exhibit CWP29 - - -

HIS HONOUR: I've read that, yes.

MR MIDDLETON: "They'll be done, immense harm and may cause immediate closure of the mine", he said. You asked me, Your Honour, if there was any evidence. I said there wasn't, I've been corrected.

HIS HONOUR: Yes. It's a statement made by - - -

MR MIDDLETON: It's made, Your Honour, in the context though of a - - -

HIS HONOUR: It's not the second reading speech, it's a statement.

MR MIDDLETON: It is a statement, Your Honour, and I know what Your Honour - - -

HIS HONOUR: It contains all sorts of other material as well, which is - - -

MR MIDDLETON: I know what Your Honour is thinking, but Your Honour should take this into account that we're not here to look after the interests of the western province community, that is the government's job of New Guinea, and they have taken a particular view that after consultation, the interests of that community is best dealt with in a particular way. Now, I don't feel, with the greatest respect, Your Honour, anyone should second guess that, having regard to that process and the people to be involved in that, Your Honour. And that's all it goes to, Your Honour.

HIS HONOUR: Yes.

MR MIDDLETON: I've already mentioned, Your Honour, the fact that there are third parties involved who are not affected by these group proceedings, and Your Honour should put that into the balance of convenience as well.

HIS HONOUR: These are the parties - - -

MR MIDDLETON: Those who are members of - - -

HIS HONOUR: - - - who are in but aren't group members.

MR MIDDLETON: And then Mr Jose reminds me, there are of course those who legitimately want to opt out. There are those that legitimately want to opt out.

HIS HONOUR: That's an interesting - there are some that legitimately want to opt out - - -

MR MIDDLETON: On my learned friend's argument.

HIS HONOUR: Yes.

MR MIDDLETON: I'm taking my learned friend to say that there are many people who don't legitimately want to opt out. All I'm saying - - -

HIS HONOUR: Yes, but there are some who do on any view - - -

MR MIDDLETON: All I'm saying, even my learned friend doesn't go so far as to say there are 20,000 people that don't want to opt out - - -

HIS HONOUR: Yes.

MR MIDDLETON: Let's say there's one.

HIS HONOUR: Yes.

MR MIDDLETON: So I'm just putting into the category of people who are third parties, if you like, the category a person could be affected - - -

HIS HONOUR: Well, they're in the same position as the third parties you've already mentioned.

MR MIDDLETON: Exactly, Your Honour, exactly. But they're going to be affected adversely by the ruling, necessarily. Now, as far as the position in New Guinea at the moment, if Your Honour makes no orders you have the best of all worlds. There is nothing that's going to be impacted upon in this court. Just think Your Honour will remember the trial days, the procedures one has and as a Trial judge, what's going to happen. The matter will proceed in accordance with the rules of court, and in accordance with the interlocutory processes, that will occur.

No injunctions made today, that will occur. Nothing will otherwise happen to prevent that. And the undertaking's been given with seven days notice if any specific performance is sought in the Court of Papua New Guinea, which may have had a potential to impact, obviously. But nothing that Mr Beach can refer to has been threatened, has commenced, or is as a natural consequence of entering into the agreements, or the passing of the Act of parliament, and when it's certified when it's certified.

There will be leases that exist. As I said to Your Honour, an argument's as good today as it is in a month's time, in two years time. Your Honour can look at - - -

HIS HONOUR: Those releases don't exist at the moment.

MR MIDDLETON: No, once the certification occurs there'll be releases.

HIS HONOUR: Yes, that of course would mean it was not possible to plead them, earlier time. I now realise that it's not until the Act is passed, or the (indistinct) date passes, and your client opts to - - -

MR MIDDLETON: That's right, I think that's right.

HIS HONOUR: - - - waive the clause.

MR MIDDLETON: Yes. So certification, but that's not being sought to be prevented. There's no last minute attempt to stop the certification, so we'll assume that will occur in the normal course of events as soon as the speaker can sign the document.

HIS HONOUR: Unless the Supreme Court in New Guinea - - -

MR MIDDLETON: In New Guinea ever does, he may prevent that or may have a turn of legislation. That's out of our hands, Your Honour, and that's not being suggested you have an ability to do that.

HIS HONOUR: Yes.

MR MIDDLETON: So all I'm saying to Your Honour is it doesn't matter. Nothing my learned friend can (indistinct) to do, nor can you do anything about it. So the Act is irrelevant, the agreements are irrelevant and this court hasn't been interfered with in anyway whatsoever. And then, look at the more important position, in our respectful submission, the position in New Guinea, it continues on as the parliament and for all Your Honour knows, the majority of people want to occur in that country, the mine continuation.

So the court, sometimes better to do nothing, if it's not necessary to do so, and all the cases say that with injunctions, Your Honour. One doesn't enter the arena unless one has to, because it's an unusual remedy, interlocutory injunctions. It's done on the sometimes flimsy material, but it's done because it has to be done to stop someone from being hurt, or stop something which is irreversible, but you can't somehow fix up later on. But it's a very peculiar jurisdiction, not one to be entered into just for the sake of helping whatever, someone forensically wanting some litigation on.

Now, Your Honour, could I go to undertakings as to damages? If, Your Honour, contrary to our primary submissions makes any order, then an undertaking to damages will be sought again. Now, this is a case where we have a foreign plaintiff. No suggestion of any assets within the jurisdiction. The normal rule should apply in those circumstances that either the solicitor on the record rides the undertaking, or a security be provided - and we would ask for that.

HIS HONOUR: You can't point though, Mr Middleton, can you, to any particular loss that would occur - - -

MR MIDDLETON: No, the undertaking would be, Your Honour, should move of your own motion with a benefit of the third parties that are affected, which would be the failure of them to get their benefits or benefits to the failing. And that's in paragraph 22 of that outline, Your Honour: "The undertakings to damages must be to ... (reads) ... respect of those agreements" - and that was made clear in the Patrick Stevedoring case, Your Honour.

The court should be very mindful - even if it wasn't asked for - the court should be mindful of third party interests. So there are interests that need to be protected. The court is being asked to interrupt a process that has been going on for sometime at the eleventh hour, and the price has to be paid for that if my learned friend wishes the injunction. Now, unless my learned friend can indicate why that is a situation he doesn't have to provided, some security, which'll be unusual, or have someone stand in the stead in the jurisdiction, then that would be the price that he has to pay, or else no injunction should be granted.

Now, if one has a look at the schedules, Your Honour, of the compensation that's payable, it's 144.9m over ten years, a substantial amount of money. Now, I'm suggesting that an injunction's going to go for ten years, Your Honour - - -

HIS HONOUR: Yes.

MR MIDDLETON: - - - but on the basis of what I put to Your Honour before, there is a substantial amount of delay'll be involved - - -

HIS HONOUR: What it is, 144m kina?

MR MIDDLETON: Sorry, Your Honour? 144.9m kina.

HIS HONOUR: Yes.

MR MIDDLETON: And Your Honour, we're just there talking the compensation payments, not the benefit that would be given to the community as a whole by the virtual continuation of the mine in any event. All the submission comes down to this, Your Honour, that unless Your Honour has to intervene, Your Honour should be cautious about doing so, dealing with a mine, continuation of a mine, foreign country, consensus's have been reached. Your Honour will never be in a position to know by intervening what havoc could arise to those parties who are not before this court, who only have an interest in the mine continuation proceeding. And that's what Your Honour has to be mindful of.

If Your Honour pleases, they are the submissions of the second defendant.

HIS HONOUR: Thank you, Mr Middleton. Mr Beach, do you want sometime to read this document, or do you want to - - -

MR BEACH: I've read it, Your Honour.

HIS HONOUR: There are a couple of matters I think I'll ask you to deal with first if I can. The first is the question of the framing of the - first of all find the document, I appear to have lost it. We started to discuss this when you were on your feet this morning, but we didn't - can you perhaps give me another copy of your minutes? Thank you very much. If we go to 4C, we wrote in, in the course of argument: "From procuring the execution ... (reads) ... pursuant to Clause 13.2." Is it 13.2?

MR BEACH: It's 13.1, Your Honour.

HIS HONOUR: 13.1 of the MCA. Can you just deal with what that means and how, in terms of Mr Middleton's criticism of it, it can actually work? Somebody walks into a village and says "I'd like you to opt out", you can do that?

MR BEACH: Somebody walks into a village - somebody being an OTML person - and says "You have to opt out because that's what the mine continuation agreement says" - that's what I mean by procuring.

HIS HONOUR: Yes.

MR BEACH: An OTML employee could do it, or they might procure a villager who's perhaps sympathetic for other reasons to the OTML position. They might get a villager to do it. In fact OTML have acted sometimes through village representatives, as the affidavit material discloses. So that's what I mean about procure.

HIS HONOUR: The difficulty of determining just exactly - you can frame it in that form, but how do you supervise that when you conceded, I think, this morning - and it seems to be the case, that somebody could say "You should opt out of this agreement because it's in your interests to do so"?

MR BEACH: Your Honour doesn't need to supervise anything. As long as the language is clear, it's up to OTML. If they want to take the risk and go into a village and say "You should opt out because it's in your interests", that wouldn't be in breach of this injunction if they were to say that. But that's really a matter for them. In other words it doesn't involve Your Honour supervising anything. As long as the language is clear, so it's clear what falls on one side of the line and what falls on the other side of the line - there's no issue of any supervisory jurisdiction of this court. So if the expression "procuring" is ambiguous or unclear, then another form of expression should be used.

HIS HONOUR: Is there another way that you would seek to phrase it?

MR BEACH: The other way, Your Honour, is enforcing Clause 13.1. We've expressed it in terms of enforcing - I suppose performing the MCA's for this period.

HIS HONOUR: The term "enforcing" conjures up enforcing by law, enforcing by action. You wouldn't normally say that if I asked for my dry cleaning at the dry cleaner's that I'm enforcing the contract. I'm seeking performance of the contract and not really enforcing it, am I? Isn't it a misuse of language to say that if I tender my $10 and say I want my suit, am I enforcing the contract or am I simply seeking performance of it? Is it a permissible use of language to say that when you take that example - you go to the dry cleaner's and hand over $10, that you're enforcing the contract? Are you not rather simply saying "I'm performing my part, I want you to perform your part"?

MR BEACH: You could enforce by litigation, you could enforce by a self help remedy.

HIS HONOUR: In what circumstances?

MR BEACH: Your Honour, can I suggest something else which is in the concept of making a demand of a member to provide an opt out notice pursuant to Clause 13.1. Making a demand - that seems fairly clear. That could be oral, it could be in writing - making a demand through its servants or agents.

HIS HONOUR: Can you give me the wording?

MR BEACH: That OTML whether by its servants or agents or how so otherwise, be restrained from making a demand of any group member that they execute and deliver an opt out notice under Clause 13.1 of the MCA's.

HIS HONOUR: What if somebody says "I want you to sign this opt out notice" and says no more. Is that making a demand?

MR BEACH: No, because it wouldn't be being referable to Clause 13 - - -

HIS HONOUR: There has to be some reference to the contract.

MR BEACH: An obligation. "I demand because you're obliged under Clause 13.1." Banks are restrained from making demand, OTML could be restrained from making demand.

HIS HONOUR: That's a restrain from making a demand, but I've never seen an injunction that restrains them from making a demand referable to a particular - the difficulty seems to be - if somebody goes into the village and says "You must sign this opt out notice", that's a demand, or a command.

MR BEACH: Well, even if it's not under Clause 13.1, we would say that would be in breach of the Supreme Court Act anyway. In other words a demand would carry with it some coercive or compulsory sort of effects, so you might not even limit it to Clause 13.1.

HIS HONOUR: Yes.

MR BEACH: A restraint upon the making, any demand for an opt out, that a group member execute and deliver up an opt out notice.

MR MIDDLETON: Can I just interrupt my learned friend for the moment, Your Honour?

HIS HONOUR: Yes.

MR MIDDLETON: It's quite unsatisfactory for my learned friend to have a few goes at drafting up orders and thinking to do it on the run like this, this is a very important - - -

HIS HONOUR: I appreciate that, but I'm simply giving him an opportunity to correct, to take up your criticism of the way in which this was put forward.

MR MIDDLETON: My criticism was twofold. One was a matter of principle. There is no form of words that can solve my learned friend's problem because of that. Secondly, if there are form of words, Your Honour, my learned friend should formulate them properly and give us the opportunity to respond to them.

HIS HONOUR: I will give you an opportunity to respond to them. Don't worry.

MR MIDDLETON: If Your Honour pleases.

HIS HONOUR: If he comes up with a formula that - - -

MR MIDDLETON: I often find though, sometimes with judicial assistance, sometimes the learned friends can come up with matters that sort of get agreement before an opponent has got the chance to dissuade, Your Honour.

HIS HONOUR: I think - it might be appropriate, Mr Beach, as I have indicated, I am not available tomorrow morning, - you've got Mr Middleton's written document, it might be appropriate if you continue now until you want to stop and I will permit you to go on tomorrow afternoon if you wanted to.

MR BEACH: Your Honour, I can finish by a quarter to four.

HIS HONOUR: And deal with Mr Middleton's - - -

MR BEACH: Yes.

HIS HONOUR: Yes, all right, well that's all right, we'll just keep going then. So it suggests a form of words which said from making a demand of any group member that they execute and deliver an opt out notice.

MR BEACH: Yes.

HIS HONOUR: You would say you don't - - -

MR BEACH: Need the Clause 13.1.

HIS HONOUR: You don't need to refer it to the document.

MR BEACH: No, because any demand - any party demanding of a group member that they have to deliver an opt out notice, I would submit would be contrary to the statute in any event, put aside Clause 13.1.

HIS HONOUR: Contrary to the statute in the sense that?

MR BEACH: The statute - the opt out provisions, we would say entail a voluntary choice of a group member to opt out.

HIS HONOUR: Yes.

MR BEACH: And so the idea that somebody could come along and demand that they execute an opt out notice, we would say is contrary to the statute and (indistinct) to the statute.

HIS HONOUR: Yes. I have noted that.

MR BEACH: Your Honour, could I deal with one other matter, this suggested undertaking of Mr Middleton's.

HIS HONOUR: What do you say as to that undertaking, does that cover your - - -

MR BEACH: It doesn't, Your Honour, because it's not just that they will give us notice if they're going to seek specific performance of Clause 13.1. Putting aside whether somebody executes an opt out notice or not, the real vice is that there could be a release that operates tomorrow, if OTML waives the conditional precedent, and the agreement comes into effect, a person bound will have been deemed by operation of the MCA to have released his or her claim, so OTML can go along to a PNG court and seek an injunction restraining that person from proceeding with their claim in the Victorian Supreme Court. So we'll be seeking to deal with that wider vice, not just the opt out notice issue, we don't want any proceedings in PNG which restrain a person from pursuing their claim in the Victorian Supreme Court. So the undertaking is to limit it in terms of its subject matter.

HIS HONOUR: So your paragraph A of your proposed injunction, is your submission that unless Mr Middleton's undertaking is in those terms, that he won't - if his undertaking was framed in terms of without giving seven days notice, OTML will not seek to enforce against any group member, any of the terms of the MCAs.

MR BEACH: Because the essential term is the release, that's what affects the group members claim here. The release may ultimately be pleaded here as a defence and Your Honour can deal with that in the course of time, but the immediate vice is that they could go to a PNG court and say the release is operable tomorrow and seek an injunction restraining the person on the basis that there's a PNG statute, you're bound if given a release, you can't proceed with your claim in Victoria.

HIS HONOUR: So you say the anti-suit part of this application was not met by an undertaking not to - OTML will give seven days notice of any application it will make in the courts of Papua New Guinea to enforce paragraph 13.1.

MR BEACH: It's not 13.1 it's the real problem, it's the release.

HIS HONOUR: Yes.

MR BEACH: The question of whether an opt out notice has been delivered or not, there is going to have to be an issue about the validity of the opt out notices and the restraint upon any further ones being procured, that's dealt with separately, but it's really the release that, the contractual release that in PNG will be enforceable and could entitle OTML to seek an injunction restraining people from pursing their claims here before Your Honour has had a chance to deal with the validity of the opt out notices gathered and those sorts of issues. Can I raise another few points about this?

HIS HONOUR: Yes.

MR BEACH: Your Honour, seven days - I mean, that's hardly realistic at this time of the year. Do we get notice on Christmas Eve, so that something can be done, when we're all away on 1 or 2 January? And what happens, do we ring up the judge who is dealing with vacation matters and have all of this two day argument again before him, who knows nothing about the matter if Your Honour is away. In other words, Your Honour has heard argument about the matter. This seven days, it sounds attractive, it gives Your Honour an out of having to deal with the point, but at the end of the day it might be postponing the inevitable for somebody at a time of the year when it's almost impossible to deal with it, either because it's a court sitting issues all because the legal advisers on my side, or on the other side are away on vacation. So that's - - -

HIS HONOUR: So you say the seven days isn't realistic anyway.

MR BEACH: Well it wouldn't be, Your Honour. It would have to be 21 days, or something to make sure that we're dealing with this in late January, or at a time when people could realistically get their acts together, and argue the point again. But what would happen if they did give us notice, and then at the end of January we'd all come back and have the same arguments - before Your Honour hopefully - but it might be a different judge, and that's not a palatable a scenario.

I wasn't quite clear too, from the terms of the undertaking. Perhaps this is a technical point what OTML would be saying as we can issue tomorrow, but we'll make sure it doesn't come on before the PNG court until seven days time, and I wasn't quite sure of the mechanics of it, but perhaps that doesn't matter, Your Honour, because of the two more fundamental problems with the undertaking.

HIS HONOUR: Yes.

MR BEACH: Now, Mr Middleton said that the issue of authority - - -

HIS HONOUR: Just let me clear up this. You say that if OTML waive the - exercise their right to waive the passing of the statute, or the termination date passes - which is next Monday week - - -

MR BEACH: The releases operate automatically.

HIS HONOUR: The release can actually be made to operate at any moment, can't it, subject to OTML injunction that's already in place.

MR BEACH: Yes. Whenever the agreement comes into force, the release operates.

HIS HONOUR: Yes. And OTML can do that at any time - - -

MR BEACH: At any time, that's right - - -

HIS HONOUR: - - - subject (A) to the injunction that's already in effect.

MR BEACH: That's right.

HIS HONOUR: Yes.

MR BEACH: And don't forget the release referred to in Clause 13.2. It's triggered immediately - - -

HIS HONOUR: Just remind me where I found this?

MR BEACH: That was MP2, Your Honour, Mr Pinings affidavit.

HIS HONOUR: Yes.

MR BEACH: You see, the release in 13.2 is not a dependent condition upon opting out or opting in. It stands - - -

HIS HONOUR: Independently.

MR BEACH: Independently.

HIS HONOUR: Yes.

MR BEACH: So that will come into force immediately the agreement is in force, that is when the condition precedent is waived, or if not waived, when it's satisfied that is when the statute comes into force. And as soon as that happens OTML could take proceedings in PNG to enforce the contractual release.

HIS HONOUR: Yes. The coming into force of the agreement doesn't affect the existence of the contractual release. Once the agreement comes into force the agreement - I'm sorry, that's badly put. An injunction in terms of your 4A from enforcing against any group member any of the terms of the MCA doesn't prevent the coming into effect of the release. It simply bars process outside this court.

MR BEACH: Exactly right. So that if they want to enforce the release here - - -

HIS HONOUR: Enforced here.

MR BEACH: Well they can do that. They can plead it by way of a defence one day, and Your Honour will then deal with the matter appropriately, that's right.

HIS HONOUR: So the injunction you seek doesn't affect the validity of that release - - -

MR BEACH: No.

HIS HONOUR: - - - or its coming into effect by means of a waiver of the conditions precedent.

MR BEACH: That's right.

HIS HONOUR: But it simply means that you can't be ambushed in another court.

MR BEACH: Before this court has looked at it.

HIS HONOUR: Has looked at it.

MR BEACH: Yes. Because of either the contempt to ensure the s.33 there issue.

HIS HONOUR: Yes, yes.

MR BEACH: Now, ultimately we will probably argue if the release ever comes to be enforced in this jurisdiction that the Heinneman principle Your Honour might decided - - -

HIS HONOUR: Well that's the authority point.

MR BEACH: Yes, that's later down the track.

HIS HONOUR: Yes.

MR BEACH: It may or may not be a good argument, I don't know, but there's a risk that Your Honour will say, "No, the Heinneman principle doesn't apply, or it doesn't apply to justify rejection of the PNG law."

HIS HONOUR: Yes.

MR BEACH: But there's a risk.

HIS HONOUR: That's a matter that remains in this court.

MR BEACH: Yes. That's right.

HIS HONOUR: The PNG court would have no option at all, it can't apply the Heineman principle.

MR BEACH: It doesn't apply the Heineman principle, it doesn't apply 33V because the contract's made in PNG, it doesn't apply Supreme Court contempt of law principles because it's not interested. They could probably get some rejudgment.

HIS HONOUR: There'd be no defence to it.

MR BEACH: No, unless it - no, that's right. So the undertaking is - well, we say it misses the real issue. Now, Your Honour, on the question of "Well, 20,000 notices have now been received so what's the point of an injunction to restrain demanding further opt out notices", we just take the point we know that those are Mr Middleton's instructions put from the Bar table, there's still utility and an injunction that restrains any further notices demanded under Clause 13.1 until such time as Your Honour is able to deal with these matters in early February.

HIS HONOUR: What do you say about what it is that is to be dealt with in February? Just assume for a moment that you are successful. What is it that you say and what - just go back to your amended summons - - -

MR BEACH: There'd be several issues, Your Honour. The first would be a final determination of the s.33V point.

HIS HONOUR: Is that expressed in here?

MR BEACH: Not in that language.

HIS HONOUR: What's the - - -

MR BEACH: This is - it's really in paragraph 3, but Your Honour, we're going to have to revisit the summons, but what I anticipate is that Your Honour would need to deal with the s.33V point.

HIS HONOUR: But what does that mean looking at it in terms of a piece of litigation? It's got to relate to specific agreements.

MR BEACH: The Mine Continuation Agreements.

HIS HONOUR: Yes, but I mean are all of them before the court?

MR BEACH: Apparently. There are five. There's one for each region, so there are five.

HIS HONOUR: And are they all exhibited to somebody's affidavit?

MR BEACH: Yes, Mr Panning's affidavit.

HIS HONOUR: He's got all of them?

MR BEACH: Exhibits MP2 to MP6.

HIS HONOUR: So the question to be determined is whether the agreements MP2 to MP6 - - -

MR BEACH: Require the court's approval.

HIS HONOUR: Require the court's approval under s.33V as being - now, how does that relate to the pleadings in this case?

MR BEACH: We would say that until court approval - if they do require court approval as we say that they do - they oughtn't to be enforced until such time as the court has approved them, so if Your Honour decides - - -

HIS HONOUR: They ought to be not enforced?

MR BEACH: Not enforceable. In other words, if court approval is required for them, they oughtn't to be enforced until they've been approved.

HIS HONOUR: Is this an interlocutory ruling or is it a final ruling?

MR BEACH: It would have to be a final ruling, Your Honour.

HIS HONOUR: I'm just trying to get my mind around how is it part of the trial, commencing the trial, or is it a separate issue hived off from the trial, or is it an issue under s.33 whatever it is where separate issues can be determined?

MR BEACH: 33Z.

HIS HONOUR: 33Z.

MR BEACH: That's right. It has to be within the existing proceeding because it's a group proceeding, so it's an issue that arises in a group proceeding.

HIS HONOUR: So 33Z(1) says the court may in determining a matter in a group proceeding, determine a question of law. Is that how you'd approach it?

MR BEACH: Or - no, I was more thinking of 33Z(F).

HIS HONOUR: Award damages?

MR BEACH: No, Z capital F.

HIS HONOUR: Sorry.

MR BEACH: Which comes immediately after Z(E). It's referred to as 33F but it should be 33Z(F).

HIS HONOUR: Yes. Yes. "In any proceeding conducted under... (reads) ... done in the proceeding." Sounds like the powers that VCAT has. The High Court may not be bound to - - -

MR BEACH: It's possible, but I'm doing the Mobil matter and I - - -

HIS HONOUR: You haven't got an application before the court at the moment in those terms.

MR BEACH: No, the summons would have to be amended to deal with that. The way it was expressed originally in paragraph 3 - - -

HIS HONOUR: That's rather an awkward way of doing it.

MR BEACH: It is, Your Honour.

HIS HONOUR: I mean it's not really - the condition precedent is either implied by law or it isn't.

MR BEACH: That's right. It should really be an injunction.

HIS HONOUR: Haven't you got to - the temporal - given the minutes of the orders you propose, they've got to be sufficiently certain and finite in terms of time.

MR BEACH: Yes.

HIS HONOUR: Now, you're going to have to have an application on under 33Z(F) framed in terms which create an issue estoppel between parties upon its resolution.

MR BEACH: That's right.

HIS HONOUR: I would have thought.

MR BEACH: That's right, but for the contempt issue, the existing summons would seem to be sufficient.

HIS HONOUR: All right, well, assume that - assume that you can frame an application under 33Z(F) or the other one that I mentioned, or both, in relation to the 33V question. What about the contempt question - how do you deal with that?

MR BEACH: The contempt issue.

HIS HONOUR: How do you frame it?

MR BEACH: you do the minimal - we've tried to do the minimal here - you're concerned to protect this court's processes, so the court's processes will be until the hearing and determination of this proceeding, so you would restrain the enforcements of those agreements, until the hearing and determination of this proceeding.

HIS HONOUR: The whole proceeding?

MR BEACH: Yes.

HIS HONOUR: Well, that's considerably wider than what you're seeking this morning.

MR BEACH: Certainly, I'm just seeking to preserve the position from here until February.

HIS HONOUR: Yes.

MR BEACH: Yes, and then if Your Honour decides that the MCAs have been entered into in contempt of court, you have to then order an injunction to - - -

HIS HONOUR: What I'm trying to work out at the moment is assume for a moment that you were successful in an application for an injunction now, that application - that injunction would run until certain matters could be determined. One of those matters is the 33V question and we've explored how you would put on an application in relation to that. What sort of application would you put before the court in relation to the contempt?

MR BEACH: Only this amended summons.

HIS HONOUR: Seeking?

MR BEACH: The - - -

HIS HONOUR: Which paragraph are you in?

MR BEACH: Paragraph 6, paragraph 7.

HIS HONOUR: Well, what would - all right, well, assume that that raises the question. Are you then - is that a question, is that an interlocutory question or is that a final question?

MR BEACH: It's a hybrid. You finally have to decide whether these agreements were entered into in contempt of this court and then you have to tailor an injunction to deal with that vice. Tailoring the injunction might just justify restraining enforcement until the hearing and determination of the proceeding, so it's not a permanent injunction that lasts for all time, it's in a sense a permanent injunction but for a stipulated period of time because that's - - -

HIS HONOUR: Wouldn't the - if - you'd be seeking an order of the court, a declaration perhaps, at that point, as to the validity of these agreements, in light of your allegation that they're entered into in contempt of court, so that the finding of the court would be that they either were in contempt of court, in which case the court would restrain their implementation or their enforcement.

MR BEACH: For - not forever necessarily.

HIS HONOUR: Well, why not forever because if they're in contempt they could never be - they could never be enforced - that's what I mean, is it - - -

MR BEACH: No, they're only a contempt insofar as they interfere with the court's processes, so if they can operate outside the court's processes, that is after the hearing and determination of this proceeding, then the suggestion might be that you wouldn't injunct for all time, but only for so long as it was necessary to allow the court's processes to go forward to completion.

HIS HONOUR: I'm not quite - I don't think I'm quite understanding.

MR BEACH: Can I deal with the situation that Justice Byrne dealt with. OTML in, I think it was 1995, by summons in the existing proceeding, sought an injunction against Slater & Gordon restraining it from making public statements. Pending the hearing and determination of the proceeding, the judge said that it was a final hearing of that application but you only needed the injunction to go for so long as the proceedings were on foot, because there's nothing to stop Slater & Gordon making statements after the proceedings had concluded, so that was what His Honour dealt with there. We have a copy of that judgment if Your Honour - - -

HIS HONOUR: What - so what is it that you'd be seeking? Really you'd be seeking - your application would be for that injunction that's in paragraph 6 of the - - -

MR BEACH: Yes.

HIS HONOUR: To continue until - - -

MR BEACH: The hearing and determination of the main proceeding.

HIS HONOUR: Of the main proceeding, at which point would there be already a finding binding on the parties that the agreements were entered into in contempt of court?

MR BEACH: Well, there would be; that would be the finding made in February.

HIS HONOUR: Yes.

MR BEACH: You'd only grant an injunction to deal with the vice, the vice is interference with the processes, so you only need to restrain until the processes of the court were finished and there was a judgment.

HIS HONOUR: How would you propose dealing with that in February? Is that a trial?

MR BEACH: That's a trial on affidavit.

HIS HONOUR: Trial on affidavits that have already been put on.

MR BEACH: Yes, although some of it's information - - -

HIS HONOUR: And subject to cross-examination.

MR BEACH: Yes. No hearsay from either side of course.

HIS HONOUR: So logistically, what would that involve - bringing people from PNG or using the video.

MR BEACH: It could. That's right, yes.

HIS HONOUR: And what sort of time do you envisage involved in that? The 33V question would be a day perhaps - perhaps not even a day, but this question could involve a serious fight on the facts, couldn't it?

MR BEACH: It could, realistically five days, if the parties are fairly economical.

HIS HONOUR: So you'd be - and you'd say that would be - and that would be in terms of - really it's in - your paragraph 6 of your statement is in terms of a further interlocutory injunction, isn't it? Interlocutory in the sense that it's confined in terms of time.

MR BEACH: It is, but it would be a final hearing, wouldn't be a serious question to be tried sort of threshold.

HIS HONOUR: No, no.

MR BEACH: No, and that's the way His Honour Justice Byrne commented in that other matter. It was a final hearing of whether Slater & Gordon ought to be restrained from making further public statements, and it was dealt with on that basis, not on the usual - - -

HIS HONOUR: The onus - it would be an ordinary civil trial on affidavit as to that issue.

MR BEACH: Yes, and normally you'd do it by a separate action because it's contempt (indistinct) so you dealt with in the existing proceeding, hence the summons.

HIS HONOUR: So they'd be the two things that you would want to agitate in February.

MR BEACH: Yes.

HIS HONOUR: And up until which you want the injunctions you're seeking today to run.

MR BEACH: Yes.

HIS HONOUR: All right. Yes, go on. I'm sorry, I interrupted, I just took you off your track.

MR BEACH: If we could just put it another way - if an antecedent - if an injunction is obtained against people in PNG it just renders nugatory Your Honour's assessment of the contempt issue in February. If an injunction goes against some of the group members in PNG restraining them from taking further action, well, the contempt issue will go in respect of their position, so Your Honour will not have the subject matter to deal with in relation to those group members when you come to February, because they would have been enjoined from proceeding further.

HIS HONOUR: From proceeding further, yes.

MR BEACH: So Your Honour would never get to deal with the contempt issue for those group members, or 33V.

HIS HONOUR: Or, yes, the 33V of course. All right.

MR BEACH: Now, Mr Middleton handed up a table of the summary of evidence dealing with the issue of procurement, Your Honour. Our submission has set out some of our references. All I can say to Your Honour is that there is a serious question to be raised about that and that's all that's necessary. Your Honour doesn't need to make factual findings.

HIS HONOUR: Some of the affidavits are I think, as Mr Middleton suggested, they descend into opinion and various other things, I think on both sides. I don't think it's confined to one side.

MR BEACH: Yes, Your Honour, that's so. Now, Mr Middleton made some points about the value of the payments under the agreements. The table that appeared in Mr Grech's affidavit that I think had some of the lower Ok Tedi or Lower Fly Region people receiving less than $90 per annum, that was taking the combined total of all the payments either to the individuals or to the particular development fund or investment fund, totalling them up and then working out the villages and dividing by the numbers, so it wasn't just taking that part of those schedules 4 or 5 or whatever that were confined to payments directly to individuals, and Your Honour can see that in the affidavit of Mr Grech so we're taking all of the payments and then doing the calculation, not just taking the payments to the individuals and leaving the payments to the funds out of it. The point that we wanted to make about the size of the payments was not what Mr Middleton suggested, but rather if there is any injunction that delays payment, the smaller the payment that's being delayed, the less prejudice to the recipient - that was really the point. Your Honour, Mr Middleton made the point that "You're not just dealing with one month's delay", well, realistically you are, because if Your Honour deals with the matter in February which is when this injunction is to go, and Your Honour hears the evidence in the case, Your Honour will then be in a position to form a tentative view about prospects, and no doubt we would have to renew our application for an extension to the injunction at that stage, based upon the then material.

HIS HONOUR: An extension of the injunction - - -

MR BEACH: An extension of today's injunction. Say Your Honour heard the matter in February and said "I'll hand reasons down later", we'd have to apply for an extension to the injunction, and on the basis of the then material Your Honour would have to then determine whether the injunction should be extended or not. So the position may change about that.

Your Honour shouldn't take the assertion "Well, there'll be a delay before Your Honour hands down judgment, then there'll be appeal, so we're looking at delays of 12 months" - that's not necessarily the case at all. But at each step on the way the question of the injunction can be renewed on the then existing material and what's then known, and the then prospects of success. So it really is on the present material of one month's delay, not a 12 months delay in terms of payment.

Now, Your Honour, there seemed to have been some suggestion of an attack on my instructing solicitors for bringing these proceedings at the last minute. Your Honour will appreciate from the material that we didn't get executed copies of the MCA's until 10 December. It's also clear that we only received an unexecuted version of one of the agreements on 30 November.

HIS HONOUR: The only relevance of any such attack would be to suggest that delay should provide a discretionary bar to granting the injunction. I don't think that's suggested.

MR BEACH: No. I just want to make the point that we've done all we could in the limited time available, and Your Honour has seen what we say about the absence of knowledge of what was going on. It's one thing to say that we had knowledge of some consultation process, that's fine, so has Michael Somare, he wrote a letter to the villagers. It's a separate issue as to what knowledge we had of the particular structure of these agreements and the statute, which is offensive enough to Sir Michael, to have him take over the constitutional challenge. He recognises the distinction, and so should Your Honour. It's a gloss to say "This has been going on for a long time, we've come here at the last minute, therefore that should be some discretionary bar".

HIS HONOUR: Is there evidence that Sir Michael Somare who wrote the letter, has taken over from your client?

MR BEACH: No, he has his own challenge.

HIS HONOUR: There's no evidence of that before me, is there?

MR BEACH: Yes, there is, Your Honour.

HIS HONOUR: Where is that?

MR BEACH: It's in Mr Grech's second affidavit. Paragraph 15 of Mr Grech's affidavit of 17 December.

HIS HONOUR: Yes, I see.

MR BEACH: So the statute is offensive to the very person who set the mine consultation process in train.

HIS HONOUR: Yes, I see that.

MR BEACH: Mr Middleton raised the point, Your Honour, that if people opt out now and then there's a judgment in the plaintiff's favour, then everybody can come back in - and that would be some basis for denying the injunctions that we seek. That is, you don't need to deal with this opt out issue at all, it doesn't really matter, there's a judgment that people can come back in later.

HIS HONOUR: I'm not sure he said that. What he said was that the opt out issue doesn't become relevant until there's a judgment in the proceeding.

MR BEACH: That's fundamentally wrong, Your Honour, because we're seeking specific performance. That is we're seeking relief compelling OTML to construct a tailings, pipeline and storage system. That in a sense is an equitable remedy - either specific performance or a mandatory injunction. Your Honour or the trial Judge may want to know how many people are in the group seeking that. In other words, if there are only ten people in the group seeking that - - -

HIS HONOUR: It might go to the discretion.

MR BEACH: Exactly. So this has to be worked out before trial, because the numbers involved can go to the very issue of whether or not the court should order the implementation of the tailings, pipeline and storage system. So we say it's fundamentally flawed to say that we can look at this again after judgment.

Your Honour, so far as the undertaking as to damages is concerned, we are able to give the undertaking in relation to Ok Tedi Mining Limited and BHP - I had not sought instructions about whether it should go any further. It's not necessarily the case that the court can demand that, it's a consideration for the court to take into account. We would say that it's unnecessary - there's little damage in terms of a delay of one month potentially in relation to the receipt of payment; alternatively Your Honour's injunction may not go to delay in payment at all. Your Honour's injunction may just go to the more limited demand of opt out notices, in which case this delayed payment issue doesn't arise at all.

I can seek instructions about the matter, Your Honour, and if Your Honour requires that undertaking as the price of the injunction, well, we'll have to decide whether we pay that price, Your Honour, at that time.

HIS HONOUR: If you look again at your draft, there is nothing there that you seek which would prevent OTML making payments to people who weren't group members.

MR BEACH: No.

HIS HONOUR: So that OTML could honour its obligations under the agreement in respect of people who weren't group members.

MR BEACH: That's right.

HIS HONOUR: So those third parties - and for that matter, they could honour their obligations to those who they say have opted out.

MR BEACH: Yes. Your Honour, I - - -

HIS HONOUR: They're not restrained from - this is the opposite side of the coin to that which I was discussing with Mr Middleton - - -

MR BEACH: No.

HIS HONOUR: - - - they're not restrained from - - -

MR BEACH: Not by the terms of what we've sought in paragraph 4.

HIS HONOUR: The only people that would be potentially affected would be those people who weren't group members, and who might be covered by MCA's not yet entered into of which were entered into, so might have been otherwise entered into subsequently. They'd be a pretty (indistinct) class and they'd be very difficult to ascertain. What do you say about - - -

MR BEACH: Sorry, we're only seeking a restraint in relation to the execution of any further MCA - - -

HIS HONOUR: That's what I mean.

MR BEACH: With any group member, yes.

HIS HONOUR: Yes, but it would only be those - well, yes, an MCA could be - well, the nature of an MCA is that you can't separate the group members, and the non group members, so - - -

MR BEACH: You can separate out villages. There are nine villages still outside the MCA - - -

HIS HONOUR: Yes.

MR BEACH: - - - to contain group members.

HIS HONOUR: But in any event, even if you did sign MCA's - MCA's would've been otherwise continued to be signed, the only people who would potentially be delayed would be those people who weren't group members and who would've been entitled to benefits under an MCA, if one had been subsequently signed.

MR BEACH: Yes. Well, we're only seeking a restraint from execution of further MCA's with group members.

HIS HONOUR: Yes.

MR BEACH: If that means that OMTL have to restructure its MCA's to deal with individuals rather than an entire village, well it has a choice to do that now.

HIS HONOUR: Yes. What about the question of security for the undertaking as to damages?

MR BEACH: Your Honour, I don't have any instructions to offer any such security. I suspect none existed, in my submission, there's no requirement for such security. What's been silent from the affidavit of material of OTML is any financial damage to them flying from the injunction. So there's no financial damage that they refer to. BHP has not filed any affidavits at all, so there's no evidence of any financial damage that suffers.

HIS HONOUR: Yes.

MR BEACH: We've already dealt with the delayed payments to third parties. There's really no basis, Your Honour, for demanding security.

HIS HONOUR: Mr Middleton put the proposition that in the absence of security your solicitors should give the undertaking.

MR BEACH: Well, no, Your Honour, that's an ambitious request and we refuse it.

HIS HONOUR: You say there's no - - -

MR BEACH: There's no basis for requiring that the solicitors for a party on the record give security, that's wholly inappropriate to demand it or to provide it. Your Honour, that completes what I wanted to say by way of reply.

HIS HONOUR: Well, what about the question of reformulating the summons so that there's something that can be dealt with?

MR BEACH: Your Honour, we can do that. Depending on when Your Honour's handing down judgment we can deal with it.

HIS HONOUR: Well, I hoped - I mean, I certainly will be doing so within the next couple of days. I don't propose to reserve in the ordinary sense in respect of this. I'll - - -

MR BEACH: Can I say this, Your Honour, I'll - - -

HIS HONOUR: It'll be a sort of extempore judgment that's reserved for a little bit of time to get some thoughts together, but that's - - -

MR BEACH: What I'll do is, Your Honour, I'll - - -

HIS HONOUR: I can't do it tomorrow morning.

MR BEACH: No. I'll make some modifications to this and perhaps give a draft to Mr Middleton and Mr Hargrave and then when Your Honour delivers judgment, depending on what the form of that judgment is, we can then deal with the form of the summons.

HIS HONOUR: Yes.

MR BEACH: Could I say one other thing, Your Honour. I have a problem with 5 February, I think Your Honour talked about that as a potential day - - -

HIS HONOUR: The 6th actually - - -

MR BEACH: Yes.

HIS HONOUR: - - - is the date that I'm able to deal with this matter. I don't know about - I must say I hadn't anticipated five days, but - - -

MR BEACH: Your Honour, I'm doing the Mobil constitutional challenge which commences on the 5th for two days, so I - - -

HIS HONOUR: Two days.

MR BEACH: - - - I can start on the 7th - - -

HIS HONOUR: The 5th is a Tuesday - - -

MR BEACH: Yes it is.

HIS HONOUR: - - - the 7th is Thursday.

MR BEACH: Yes.

HIS HONOUR: Well, we can discuss this at the time, depending upon what the result of this case is, but yes, that can probably be accommodated. I don't know about Mr Middleton and Mr Hargrave, if they both want to - anyway, I'll simply at this point say that there is a possibility in the event that this matter was to come back again. If injunctions were not granted, what would you say as to the determination of these matters on summons?

MR BEACH: We'd still want them dealt with as quickly as possible - - -

HIS HONOUR: You'd still want them dealt with in any event?

MR BEACH: Yes.

HIS HONOUR: Mr Middleton, I think, says that they don't need to be dealt with.

MR MIDDLETON: I don't know if my learned friend is finished, but I'd like five minutes before Your Honour leaves the Bench to address Your Honour.

HIS HONOUR: Yes. I don't think I need - we'll deal with the dates when - yes - - -

MR MIDDLETON: If I may, Your Honour, just mention two things arising out of what my learned friend said about the demand, but on that question of date, Your Honour. If an injunction is granted, we can see no benefit whatsoever in any other determination being made, depending on the terms of injunction, but assuming a mild one in a sense of along our undertaking line, then that matter is spent in many ways, and the matter should go to trial. If the injunctions are not made, it is not a matter which arises in the proceedings, Your Honour, it doesn't need to be determined 33V, my learned friend may like it to be determined, but that may not ever have to be determined.

The proceeding before you is a proceeding put by one person on behalf of a number or a group of people. Whether that group is one million of 500,000, the proceeding must still proceed, and the evidence will go to the question of contract, breach of contract, and that's where the - it doesn't matter how many opt outs there are, as long as they're not so much as to make the class action unviable under the Act, we assume that's not going to be put, so the matter will proceed. It doesn't matter, at this stage after 7 January, whether the opt outs are valid or not valid, for the purposes of that matter proceeding.

Evidence in relation to prejudice, that's got nothing to do with the opt out notices, Your Honour, it would have to do with the people who are in fact, going to be affected by that. You may never know how many people have opted out or opted in, are out there in the greater community, because of the nature of this opt out procedure we have in this country as distinct from America, you have - a lot of people you'll never know exist until they come forward and ask for their money. Take the gas explosion, for instance, with that procedure one doesn't know at this stage and one will never know, until people put up their hand if the plaintiff is ever successful in coming forward. Similar in this case. No one is able to tell you how many people are represented who want to go along presumably.

All I am saying to Your Honour is that there is no need either way for this matter to come back in February for any hearing about contempt or not contempt either, because it doesn't go to the form of relief Your Honour would ever grant. Let's assume you had a prima facie view there was contempt, that goes to, according to my learned friend the enforcement of the MCA.

HIS HONOUR: That would only become an issue if you pleaded it as a declaration on a counterclaim or something.

MR MIDDLETON: Exactly. And then there would be an issue as to whether its enforceable as a matter of New Guinea law or Victoria private international law. But how can it be relevant to an action brought on contract for breach of settlement agreement, an agreement which the court would otherwise never know of by way of pleading or otherwise.

HIS HONOUR: On the other hand, if there was an injunction in terms preventing you from procuring entry into any further MCAs, then you'd want the issue determined, wouldn't you?

MR MIDDLETON: Your Honour would have to determine how long you want to make that injunction for and Your Honour may say, "I will make that to when, to the end of the" - - -

HIS HONOUR: I'm sorry?

MR MIDDLETON: I say that, is it to the end, 7 January, or is it to the trial, or is it to another time, when is it going to be enforced?

HIS HONOUR: If an injunction in terms of restraining your client from procuring the entry into any further MCAs of any group members was granted.

MR MIDDLETON: Yes, Your Honour.

HIS HONOUR: That would be an injunction you'd want to be as short as possible.

MR MIDDLETON: You'd have to have a separate trial in relation to that if they want to proceed, that's true, Your Honour.

HIS HONOUR: Yes. That would involve determining the contempt issue.

MR MIDDLETON: If Your Honour made that order, I had discounted that order, Your Honour, because that didn't - I know my learned friend presses it, but it can't really go to contempt by entering into the agreement because no order needs to be made about that today. As I said to Your Honour, by entering into that agreement, there's no contempt in itself. The contempt is the implementation of it in the opt out if anything, according to Mr Beach's argument. So the mere fact of entering into the agreement can't be contempt. What he complains about is the interference of a court process pursuant to the agreement.

HIS HONOUR: Yes.

MR MIDDLETON: That's a different matter. That's why I say, Your Honour, position is the same whether you enter into the agreements or you don't enter the agreements, my learned friend has his argument in relation to opt out, and that argument is there in relation to the executed agreements already. So the mere entering into an agreement can't be contempt nor can it be an anti-suit matter because it's not a suit, so he has no basis for, I must say, D, on any view of how he puts his case. So I must say I discounted that as being a final order Your Honour would make.

HIS HONOUR: He still presses that.

MR MIDDLETON: He still does press it, that is true, Your Honour. And Your Honour is right.

HIS HONOUR: If that was right, you would need to determine - - -

MR MIDDLETON: My client would have an interest in determining that sooner than later.

HIS HONOUR: As soon as possible. What about the 33V issue, that would not need to be determined if - if what - if there was no - - -

MR MIDDLETON: It depends what's pleaded.

HIS HONOUR: It depends on - - -

MR MIDDLETON: For the substantive matter, it doesn't matter, what that settlement agreement is or not, whether it needs the approval of the court or whatever.

HIS HONOUR: No, it would only be if - - -

MR MIDDLETON: As the pleadings are presently - because all you've got is an agreement on the settlement, an action on a settlement.

HIS HONOUR: Yes. A settlement of that action, but you would say, although you haven't yet said it in the pleading because the agreement can't - doesn't yet take effect, that agreement provides you with a release.

MR MIDDLETON: All the issues would be pleaded in reply as to why that couldn't be the case, Your Honour.

HIS HONOUR: Why it wouldn't work, yes.

MR MIDDLETON: But it's not done pursuant to a summons for an interlocutory injunction. If it's raised on a pleadings as a proper cause and will be dealt with in appropriately at trial - - -

HIS HONOUR: That's why I raised it with Mr Beach. I'm finding it - - -

MR MIDDLETON: Yes, well Your Honour is right - - -

HIS HONOUR: - - - still finding some difficulty in getting how it - he then points to the section of the Act which says that it has to be determined.

MR MIDDLETON: Well, it doesn't have to be determined unless - - -

HIS HONOUR: Unless it's pleaded.

MR MIDDLETON: - - - other than - the section of the Act of the New Guinea Act you are talking about.

HIS HONOUR: No, the section of the Supreme Court Act. He says that it can be determined under 33ZF.

MR MIDDLETON: If Your Honour wants to direct some preliminary point of law about something relating to the proceedings, Your Honour undoubtedly could but you don't normally do that unless some - - -

HIS HONOUR: Unless it's relevant.

MR MIDDLETON: Exactly.

HIS HONOUR: That's what I'm trying to get at. It doesn't become relevant till you plead it.

MR MIDDLETON: Exactly. And if we do plead it - - -

HIS HONOUR: Mr Beach is shaking his head and I'll have to ask him, because I'm - at the moment, I've got to decide this, and I'm finding some difficulty with it.

MR MIDDLETON: I understand, Your Honour. The most important focus, I know I keep harping on this, but it really does make the task a lot more, in my respectful submission, easy to understand, is to focus what has to be done for the purposes of reserving my learned friend's position to the extent to which the court will intervene today.

HIS HONOUR: Yes.

MR MIDDLETON: In our respectful submission, that does not require looking at anything as to contempt or 33V or the agreement, because all it does is to see that this court process is interfered with. I said to Your Honour, the fact of entering an agreement, in itself doesn't affect Your Honour. The only possible effect could be if people were in the New Guinea court forced to opt out, argue that could affect this proceeding, but give an undertaking in relation to that. There's nothing else that's affected in relation to this particular plaintiff pursuing his claim in this court, and when I say "his claim" I mean as pleaded, which is basically a breach of contract claim which we're all familiar with, breach of a settlement. It's not very hard, as far as the concepts are concerned, that will go to trial. Then the defence will raise a number of things. It may say the agreement was entered into invalidly, or whatever.

HIS HONOUR: Yes.

MR MIDDLETON: Or its unenforceable, lots of reasons. One thing may be the releases. There will be a reply to that presumably and say, well that's all very well, you've raised them, but those releases don't have the force of law for one or other reason. Mr Beach has already indicated one of the pleas he will make. He will say it's against the public policy of this country. That's what he said he would do, that's what he will do.

HIS HONOUR: Yes.

MR MIDDLETON: They are pleading points and then they'll go to trial on those issues, and we have lots of evidence about that.

HIS HONOUR: Yes.

MR MIDDLETON: So that issue will arise in the case. On the opt out position, which is what Mr Beach has been concerned about, that will be determined at another time when judgment is determined as to (indistinct), there will also be in relation to - you will determine then whether people had authority, whether or not you could settle, all will be tied up in that, Your Honour. So it doesn't need to have a preliminary point, other than your point is if you do make an injunction about entering into other MCAs, then I would assume that my client would have an interest in having that determined earlier than later.

HIS HONOUR: I follow that.

MR MIDDLETON: Your Honour, the reason why I rose was because my learned friend has raised a new form of order in the sense of demanding an injunction preventing us from demanding the execution of opt out notices by any group member, and his alluring comment was, was often to get injunctions against banks for making demands, and people for making demands on guarantees. Now that's very simple, because you make a demand in writing.

HIS HONOUR: Yes.

MR MIDDLETON: And you write them a letter.

HIS HONOUR: Yes.

MR MIDDLETON: But in this situation here, you've got people who are walking around talking to people the whole time.

HIS HONOUR: That just creates an evidentiary problem though doesn't it?

MR MIDDLETON: It's more than - it does, but it just doesn't - it does create an evidentiary problem, but it not only creates an evidentiary problem in the context in which Your Honour knows that a court order has been made by Mr Justice Hedigan where my instructing solicitors are involved in the receipt of the opt out notices and where you know that there has in fact been, and it's accepted by my learned friends, the ability to give opt out notices for (indistinct) fill in.

What Your Honour is creating if one makes the injunction in that form, is further conflict in a sense by arguing about that particular form of order and you're putting my client at risk in relation to what is meant by the word "demand".

My learned friend has difficulty in articulating demand, demand pursuant to the agreement, is a demand different than asking, is it just a matter of how you look, whether you say, please, or - - -

HIS HONOUR: Yes, I understand the difficulties of that.

MR MIDDLETON: We will wait with anticipation, my learned friend's new wording of it.

HIS HONOUR: Mr Beach, just to go back to the - it's maybe that I'm just not getting the point. The 33V point is not alive on the pleadings at the moment, is it?

MR BEACH: It's alive in the sense of paragraph 3 of the summons, but it should've contained a condition precedent that any agreement contained requirement for approval.

HIS HONOUR: At the moment the defendant is not relying on the agreement, is it?

MR BEACH: No. We're entitled to restrain him from - - -

HIS HONOUR: Sorry?

MR BEACH: We're entitled to restrain him from relying upon the agreement if the entry into agreement is in contempt of court.

HIS HONOUR: Yes. But if the - leave the contempt issue aside for a moment.

MR BEACH: Yes.

HIS HONOUR: If the entry into the agreement simply requires the approval, or if it is a settlement and it requires the approval of the court, the question doesn't arise does it, until the defendant pleads it, why does it arise before that point?

MR BEACH: Your Honour needs to see who is in the group. If there are people that have gone out of the group because they've settled and so our group comes down to say a thousand people.

HIS HONOUR: Yes.

MR BEACH: Your Honour needs to know that before we go to trial. Your Honour needs to know what the group consists of, because that's fundamental to the relief sought by way of specific performance.

HIS HONOUR: Yes.

MR BEACH: So it's not a question of, we'll deal with a defence at trial, and we'll look at this at the time of judgment, Your Honour will need evidence as to what the group consists of as part of the plaintiff's evidence. If we want specific performance, we're going to have to tell Your Honour who we are and who the group is.

HIS HONOUR: What you say is that you've got to determine whether that agreement is enforceable of its own accord or whether it's only enforceable if it has the approval of the court.

MR BEACH: That's right. And then you go to the approval process. If it's approved, then you know all of those group people have dropped out so they've answered your question.

HIS HONOUR: Yes. It's not approved - - -

MR BEACH: If it hasn't been approved then you know all of those people are in there and we file an affidavit saying who they are.

HIS HONOUR: All right. Can you reformulate the matters in your summons to cover that.

MR BEACH: Yes.

HIS HONOUR: And you might reformulate the orders in the best terms you can, deliver that to Mr Middleton as well.

MR BEACH: Yes.

HIS HONOUR: And if you can do that by tomorrow lunchtime.

MR BEACH: Yes.

HIS HONOUR: I may be able to determine this matter Friday morning, I won't promise, but I'll certainly try.

MR BEACH: Thank you, Your Honour. In terms of just extending the injunction that we've got at the moment, will Your Honour extend that - - -

HIS HONOUR: Yes. The injunctions at the moment will be upon your giving the undertakings, extending the undertakings, the injunctions at the moment will be extended until - well, until I resolve this question, and I'll indicate that that will be very shortly.

MR BEACH: We give the undertaking, Your Honour.

HIS HONOUR: Yes. So the injunctions will continue to run until I give judgment in respect of this application.

ADJOURNED TO A DATE TO BE FIXED