Gagarimabu v BHP & Ok Tedi [2001] VSC 304

5. The first observation I make is that these powers are in Division 2 of Part 4A which is concerned with the commencement of group proceedings.

8. I have heard a number of applications generally concerning this proceeding (which essentially turns around the claim by the representative plaintiff to enforce, or claim damages in respect of the breach of, an agreement made by the plaintiff and group members with BHP and Ok Tedi Mines Limited ("OTML") on 7 June 1996 in settlement of a proceeding in this Court.

11. Many of the background matters appear in previous decisions and rulings given by me (and completely well-known to the parties and their legal representatives), throughout the whole of the period since the commencement of this group proceeding (No. 5003 of 2000) in the year 2000.

14. The two core matters involved in this application are

(1) Whether the time is now appropriate for the Court to make orders by which the plaintiff must inform group members of their right to opt-out of the proceedings.

(2) If yes, what is the appropriate manner for content and time frame for the process of the notification required by the Court to inform group members of their right to opt-out.

20. The gestation period for the formulation of these procedures has been leisurely but by no means uneventful. It commenced with some proposals set out in an affidavit of Mr Nick Styant-Browne on 19 January 2001, Mr Styant-Browne being a principal of the firm of Slater & Gordon acting on behalf of the plaintiffs. A number of hearings have succeeded these proposals and it is not necessary for me to re-visit any part of the debate that led to that. However, on 21 May 2001 I commenced hearing submissions on behalf of the plaintiffs (Mr J. Beach QC, with him Mr E. Heerey) appearing for the plaintiffs, for orders in connection with the opt-out notification procedure. Ms M. Sloss appeared for BHP (The Broken Hill Proprietary Company Limited) and Mr Charles Scerri with him Mr C. Jose appeared, as he had throughout, for Ok Tedi Mining Limited.

23. I have no intention of delivering elaborate and detailed reasons with respect to the orders I intend to make. Counsel have referred extensively to lengthy and detailed judgments of Judges of the Federal Court of Australia which are of considerable assistance in focussing attention upon the fundamentals which the law requires, and Act mandates, to be addressed at this stage of the management of group proceedings and class actions (which are the same thing).

26. On the first hearing day of this application Mr Beach QC and Mr Scerri QC both addressed, although Mr Scerri, not having completed his submissions, was invited by me to complete them on 6 August 2001, which he did. On the same occasion Ms Sloss presented helpful submissions for her client. I should also say that all parties filed detailed written submissions concerning the determination of the issues here thrown up for decision.

29. The voluminous affidavits filed on either side have primarily been concerned with various features of any opt-out notice in this case. They exhibit some disagreements as to the appropriate process, allegedly arising out of differing views as to the cultural and linguistic differences between the tribes and clans of the area in the vicinity of the Fly. I do not see great virtue in analysing this in any detail. One substantial dispute has been as to what is the most effective form of communication of any notice. There is a considerable body of opinion that the inhabitants of that area and society are substantially oral in their communication. There is also a disagreement as to what is the range of the possession of radios of any kind within the various clans and tribes. There is some evidence indicating transistor radios are a common place thing to find, other parts suggesting relatively rarity. In the same way, the claims are made that because it is an essentially oral-communication society the utility of written communication is to be doubted. I do not find it necessary to resolve these disputes because the fact of the matter is that the proposed methods of communication of the essential features of the opt-out notice contemplated is that it be communicated orally in more than one language, (there is a dispute as to whether it should be two or three) in writing, in newspaper (again in different languages) and by radio broadcast through Radio Karai, and by a process of village meetings in which explanations will be given as to the underlying matters, and the function and effect of the opt-out notices. Mr Scerri submitted, and beyond doubt he is right, that the notice is fundamental to the opt-out procedure because it is the notice that empowers the court to regard the recipients as bound. Because it is, all reasonable steps must be taken to notify the relevant persons in such a way as to give them a reasonable opportunity to make a decision about the matters upon which the notice bears. This involves, in this case, an explanation in reasonable terms as to those matters in a variety of places and in a variety of languages. Section 33A of the Act defines a group member for the purposes of Part 4A as meaning "a member of a group of persons on whose behalf a group proceeding has been commenced". This led to Mr Scerri submitting that since the language used refers to a member that it must be that each individual must receive a notice and not clan leaders. Literally speaking, I daresay that is the case but if the Court was satisfied and had confidence that communication through the clans and clan leaders of the relevant information enabled and empowered the individuals to make up his or her mind was reasonable, that method would in appropriate cases, be sufficient. The judgments both at first instance on appeal in GIO Australia Holdings v King (King v GIO Australia Holdings Ltd) Court of Appeal 2001 (FCA 270) addressed many of the features necessary to be considered by this Court. Mr Scerri embarked upon some lengthy submissions concerning as to what the opt-out notice must contain or might omit. Many of the matters there suggested would be non-contentious but I do not favour the process whereby a court attempts to definitively to describe the contents of opt-out notices. In any event, in theoretical terms, the original proposed form of opt-out notification procedure and the form of the notice itself put before the Court on 21 May by Mr Beach QC in making his original submissions has undergone considerable modification between that date and 6 August when I heard Mr Scerri conclude his oral submissions and heard Ms Sloss's. Doubtless those modifications were in part a consequence of matters raised in the course of the hearing on 21 May.

32. A matter that has remained in issue was the argument by OTML that no order ought be made ordering the service of an opt-out notice at this point because the plaintiff has not identified the area or areas in which the tailings from the mining activity would be disposed of ("the tailing disposal option"). It was alternatively submitted that if a notice were given that it should contain a clear statement of the likely situation of it. The basis of this argument is laudable enough, namely, that in the absence of knowing where the tailings might be disposed of, no-one could be sure whether to opt-in or opt-out in the absence of that information. Mr Beach made a number of responses to that. He contended that what was now being looked at is a feature of the commencement of the proceeding and that it could not be postponed indefinitely because of matters which would only be the subject of further investigation before and at the trial itself. Secondly, he submitted that the defendants' failure to give adequate discovery disadvantaged and affected the capacity of the plaintiff to make a decision in the absence of access to all the appropriate material. Thirdly (a matter raised really by him in reply to the defendants' submissions on 6 August), was to emphasise that with respect the plaintiff's case as to the defendants' requirement to implement a waste management scheme (primarily a tailings pipeline to carry tailings away from the mine to a storage area downhill from the mountains). He was prepared to "float" a location as one generally following a road from Tabibul to Kyunga and that the location of the tailings storage area would most likely be somewhere in the area between Ningerum and Bige. He claimed various options within that area had been or were being considered by the defendants and that the plaintiff would seek discovery on the relevant feasibility of other locations considered, or alternatively, the construction of a dam at Lukwi to store tailings with a pipeline from the mine to the Lukwi Dam site.

35. I have formed the view that the uncertainty concerning the location of the tailings disposal option should not, at this point of time, lead to a refusal to order the giving of the notice. I am not in a position to resolve the dispute concerning the adequacy of the defendants' discovery and do not propose to embark upon a consideration of it now. I do not overlook that the defendants contend that their obligations, whatever they are, are subject to the fulfilment of two conditions:

(1) An inquiry by a properly constituted tribunal or at the very least by some form of government appointed instrumentality; and

(2) that the defendants consider it to be economically and practically feasible to do so.

41. This litigation has some unique features, probably unlikely to occur again. They require the moulding of some special provisions in relation to notification. Many of the elements of general principle pronounced in King, which I accept as being in a general sense correct, simply cannot be practically applied to the circumstances of the case here, involving a vast area, impenetrable in parts, with a very great number of tribes, clans and languages. To them, those matters, Part 4A requires have to be explained in reasonable terms. The Court is empowered by the Act to extend the time of opt-out, even after it has passed in appropriate cases and is also permitted to "let out" some plaintiffs or group members if it seems appropriate to do so. It can order the establishment of sub-groups to be served and represented. Some clan later discovering it might be affected by the tailing disposal option, when it is identified, might make such an application. Mr Scerri said it would be unthinkable that a court would be looking to make orders affecting such persons without representation. In general, it would appear very likely that such a sub-group would be heard by the Court as persons seriously affected.

44. However, I am of the view (subject to the matters I mention) that the time has come for the Court to allow this stage of the proceeding to be implemented. I do not favour, as one of the matters pressed on me by the defendants, the inclusion in an opt-out notice the possible location of the options referred to by Mr Beach in his submissions to me and generally indicated on Figure 1, the general plan submitted to me. In my judgment, since it lacks finality and certainly, it is more likely to cause alarm and doubts and possibly lead to ill-based fears at this point of time. In the event of the area ultimately emerging with some definition, that will be the time that a step might have to be taken by the plaintiff, or for that matter the defendants, to focus on that aspect. For the same reason, I do not favour the inclusion of a general statement without reference to any possible areas that the tailings may be disposed of in an area not yet known. That is likely to diminish the effect of the balance of the matters raised in the opt-out notice, and possibly lead to ill-judged lead to a judge opting out on a large scale. It was pressed that there should be a "neutral statement" about the Settlement Agreement and the claims made in the litigation. I do not see the necessity for any reference to the settlement agreement. It was also argued that it should contain a neutral statement about the first and second defences to the claims. Beyond a statement that the defendants contesting the plaintiff's claim on a variety of grounds and denying liability I see no reason why the matter should be elaborated further in such a complex matter. I have already indicated (referring to paragraph 5C of the outline of submissions filed on behalf of OTML) that the identification of the likely route of any proposed tailing pipeline and the location of any storage facility need not be embarked upon in the opt-out notice.

47. It was also argued there has to be some indication of the costs payable by group members to Slater & Gordon, a matter omitted in the original draft notice. However, a statement concerning that has now been included which accords with the directions I gave in Tasfast v Mobil, which were themselves based in part upon other forms of orders approved by courts. It seems to be accepted that the date and time fixed for opt-out has to be included. There had been some debate in before me concerning the relevant addresses to which the notices should be sent, and as to whether or not the Court's address should be included as a place to which opt-out notices must be sent or delivered. The plaintiffs contend it is not necessary to include the Court but is sufficient to specify the Port Moresby address of Jubi lawyers or other agents of the plaintiffs. I have also decided that the newspaper and radio statements should be in English, Tok Pisin and also Motu.

50. Not without some hesitation, I have come to the conclusion that it is probably prudent to include the address of the Supreme Court of Victoria as a place to which the opt-out notices may be sent. One would think it is not likely that the members would follow that as a procedure and it possibly could have the effect of distracting opting-out group members from a simple procedure. As stated by the Full Court of the Federal Court in King in the judgment of Sackville, Hely and Stone JJJ that "where the represented group is large and group members are likely to have widely varying degrees of understanding of the claims made on their behalf and the possible outcomes of representative proceedings, it is important that any decision they make concerning opting-out of the proceeding will not be based on any notice that is apt to mislead them". One might, I think, commence, as Mr Scerri did, with the claim that those comments apply patently to the present case because of the potential group members do not speak English, at least not as a first language, and live in relatively isolated villages in the western province of Papua New Guinea. I do not disagree with the statement made by the Full Court of the Federal Court, although the phrase "apt to mislead" must include the avoidance of inclusion of material which might confuse and which is not necessary to convey the essential features. The opt-out notice provides for the notices to be collected or sent to by Slater & Gordon or Jubi Lawyers (this contemplating the various villages wherein they might be left or posting or faxing of them to Jubi Lawyers in Waigani or posted to the plaintiff in Waigani or posted to OTML or posted or faxed to Slater & Gordon. I have concluded that it is prudent to offer the option for the notices to be sent to the Prothonotary of the Supreme Court of Victoria. With respect to all of the places referred to, including places of collection, it will be necessary that the relevant and appropriate persons file affidavits upon completion of the process, deposing to and exhibiting the opt-out notices received (other than the Prothonotary). This matter has been raised with Counsel and an undertaking has been given (and if not given will have to be given) that affidavits of that kind will be filed. I do not deem it necessary to include that type of requirement in the opt-out notice.

53. It is timely to refer to some features of the means by which opt-out notices are to be given. Section 33X(4) provides "The Court must not order that notice be given personally to each group member, unless it is satisfied that it is reasonably practicable and not unduly expensive, to do so." Naturally, the Court is obliged to address as part of the specification of the notice the means by which it is likely to come to the attention of the group members. I will refer to it later, but both Counsel for BHP and OTML urged strongly that meetings should be held by way of explanation and the like in each of the relevant villages rather than, as the plaintiff proposes, a key 13 of the 115 or so villages. The Court should not be quick to endorse a procedure which is predicated on the assumption that the object might not be achieved because there will always be some members of a group proceeding who would not receive or understand the s.33X notice. But the language in s.33X4 is "reasonably practicable", not "unduly expensive". This clearly empowers the Court to seek to balance the crucial objectives of the opt-out notice against undue expense and difficulties connected with conveying the relevant notice to the group members. This led Mr Beach to contend that one of the features of justice that had to be borne in mind is to seek to ensure that the prosecution of group proceedings is not obstructed by impracticable procedural requirements. He referred to the statements made by McHugh J in Carnie v Esanda Finance Corp Ltd [1995] HCA 9; (1995) 182 CLR 398 at 429-30 (made in respect to representative proceedings).

" ... The recent cases have been more liberal in allowing representative actions to proceed. In the Age of Consumerism, it is proper that this should be so. The cost of litigation often makes it economically irrational for an individual to attempt to enforce legal rights arising out of consumer contract. Consumers should not be denied the opportunity to have their legal rights determined when it can be done effectively by one person with the same community interest as other consumers. Nor should the courts be cluttered by numerous actions when one action can effectively determine the rights of many."

57. McHugh J's judgment has been approved in Wong v Silkfield Pty Ltd [1999] HCA 48; (1999) 199 CLR 255, paras 13-14, and by the Full Federal Court in Femcare Limited v Bright [2000] FCA 512; (2000) 172 ALR 713 at 726-27. The Full Federal Court in that case, having referred to McHugh J's judgment in Carnie stated:

"As McHugh J recognises in this passage, the representative procedure could be utilised in circumstances where the members of the represented class not only did not consent to the procedure but knew nothing of it. The authorities referred to by Professor Yazell and McHugh J support the proposition that the representative procedure did not require individual notification to each of the group members. Indeed, it is not clear that any form of notice to the group members was necessarily required."

61. I also note the statements of the Full Court of the Federal Court in Femcare v Bright (above) that it is undoubtedly true that the combined effect of sub-ss.33Y, 5 and 8 is that a group member who may not be given or receive "notice ... personally" of the commencement of the representative proceeding will still be bound by an adverse (or favourable) outcome. And that there is at least a possibility that some group members will become bound without ever knowing that it has been commenced or conducted on their behalf.

64. The Court may order a notice to be given personally to each member if it is satisfied that it is reasonably practicable and not unduly expensive to do so. In cases of the putting of the details of a notice in an English language newspaper in, say, the State of Victoria or anywhere in Australia, that kind of notice is ordinarily sufficient. There looms over all of this s.33ZF which empowers me to make any order I think appropriate to ensure that justice is done in the proceeding. The objective is to find an effective and economical means of ensuring that group members are informed of the proceeding and their rights, so long as the steps taken are notification are reasonable. Perfectability is not the guiding principle. Mr Beach argued against imposing requirements that rendered the proceeding, by way of representative action, impracticable in the very case in which it is needed. The objective of the Act is to enhance access to justice by establishing a procedure that enable legitimate common grievances to be remedied, which procedures provide advantages to group members whose claims would otherwise be without practical redress. This involves the process of striking a balance between the impracticality of formulating over-detailed methods of giving notice to group members and the seeking out of an effective procedure. Moore J in the first instance in King stated (para 3):

"However, while the terms of the opt-out notice must be readily comprehensible and clear, it is important, in my opinion, to ensure that the central purpose is not obscured by matters of detail."

68. The plaintiffs here emphasised that the proposed notification process goes beyond mere publication of a newspaper advertisement and includes (a) notices broadcast by Radio Karai, widely listened to in the western province; (b) distribution of newsletters to over 100 villages and posting a copy of the newsletter on any central boards erected on commonly used places of attendance in each village; (c) conducting public meetings in regional centres of the Western Province to explain the opt-out procedure as advertised in newspaper, radio and newsletter, and providing a special opportunity at those public meetings for group members to deliver any opt-out notices directly to the plaintiff.

71. The size of the relevant area is dealt with in an affidavit of Mr Buhupe of 16 February 2001, which also addresses the area of the Ok Tedi/Fly River corridor. The Western Province is the largest, but least developed and most thinly populated, Province of PNG, about 50,000 persons residing in the western province. Obviously, such a poor region has minimal transport infrastructure. However, Mr Buhupe's views about radios and the lack of radio service are strongly denied. The national daily newspapers (two in number) go to Daru, Kiunga and Tubulil. There is no local newspaper. There is a dispute between the parties as to the languages spoken in the western province. There is no doubt that English and Tok Pisin are freely used and the plaintiff's proposal involves translation into Tok PisIn. There is some debate as to Motu, it appearing that it is more likely to be a language used by older persons. Only a small percentage of adults read English and many speak it. Mr Scerri's customary thorough submissions addressed not only the method of communication of land ownership and decision making under PNG custom. Some of this was developed in the Buhupe affidavit and the affidavits of Messrs Deklin of 19 February 2001; Nuri, dated 24 May 2001; and Dairo, 24 May 2001. However, many of the matters there raised are irrelevant to the matter presently before me. Other material that has put to the Court would indicate that the key participants and lawyers in this proceeding have been in engaged in communicating legal matters to the group members for some time. The dispute between the operators of the Ok Tedi mine and the inhabitants of the downstream areas has been going on for a long period of time and this group proceeding is but the tail end of that dispute, including the previous legal proceeding which was compromised and aspects of which have led to the present proceeding. Many of those matters are addressed in the plaintiff's written submissions, paragraphs 8-10 and in the affidavit of Mr Kirsch of 17 January 2001, and various affidavits of Mr Styant-Browne. I notice that in the past both Slater & Gordon and the defendants have distributed newsletters to tribesmen and group members in these areas. I note that in 1995-6, Slater & Gordon's notification and explanation of their party's right to opt-out of the compensation arrangements was provided for by the so-called Pre-stated Eighth Supplemental Agreement which led to 512 opt-out notices being signed by clan leaders representing 31,188 people - see the Kirsch affidavit 17 January 2001 (paras 10 and 11). In the past the most common methods of communication by the various parties have been by (a) advertisements in the two daily national newspapers, the Post Courier and the National; (b) by advertisements broadcast on Radio Karai; (c) the distribution of written notices to villages by boats and the like; and (d) by holding meetings attended by clan leaders advertised in the ways described. In most of those meetings, according to the material, all of the oral and written communication has been in English, but most have also been translated into Toc Pisin. It would seem that this past experience has underpinned the plaintiff's proposed opt-out notification procedure. It is not necessary for me to refer in detail s.37Y, sub-ss.(2)-(7), which set out the provisions in relation to the considerations that I should take into account in considering or approving the form and content of the notice. It involves (33Y(2)) the Court specifying who is to give the notice, the manner in which it is to be given, and what it may contain in terms of provision of information and costs. Notice may be given by press radio, television, or any other means. The court must not order that it be given personally to each group member unless it is satisfied it is reasonably practicable and not unduly expensive to do so.

74. Even in more sophisticated societies, it would generally be thought to be highly unlikely, if not impossible, that notice would be received and understood by every member of the relevant group. These consequences can be due to a whole range of matters, some but not all of which apply here: geographical isolation, illiteracy, lack of comprehension of the notice, intellectual disabilities, lack of attention or interest. Section 33Y(7) specifically provides that the failure of a group member to receive or respond to a notice does not affect the step taken, an order made, or a judgment given, in a proceeding". This is, after all, an opt-out system and not an opt-in system.

77. A key part of the plaintiff's proposal here is that public meetings be held in 11 principal villages, not every village. This is primarily driven by issues of delay, costs, the difficulties of accessing all villages, the contention that the oral societal custom referred to will aid in information being passed on through the clans. The amendments made to the minutes of proposed orders of 21 May are as follows: (1) The deadline for opting-out is extended to 18 weeks from the date of the order to accommodate the timetable of the intervening steps in the opt-out notification process now proposed. There has been some clarification of dates. The list of villages to which the plaintiff and his representatives will deliver the opt-out notice has been amended so as to include all of the villages listed in the schedules to the statement of claim. The basic provision for delivery of notice to the villages is to have it left at the likely points of attendance. The proposal involves every village household getting one notice.

80. According to the submissions there is a specified number of notices to be delivered to each village, with the aim of delivering at least one notice per household (to be contrasted with each person). That number is calculated by reference to the census figures published by the PNG Government National Statistical Office exhibited to the affidavit of Mr Styant-Browne of 2 August 2001. To account for the population increase between the date of the census and the present date there are a number of households in each village that are adjusted by reference to a PNG development report of 1998, also exhibited to an affidavit of Mr Buhupe. Broadly it represents an annual increase of four per cent. The number of villages in which a town meeting is held has been amended from eight to 13. There is a requirement for the plaintiff and the solicitors to leave "safe boxes" at the location of each town meeting-place into which group members may deliver the completed out-out notices for four weeks after the meeting at each location, after which the plaintiff will collect the contents of each box, I have already referred to the affidavit requirements in respect to collection. As I understand the re-jigging of the timetable it has been done to accommodate the village meetings which is part of the notification process of the right to opt-out. Set on a week by week basis from whatever the date of the Court's order, the timetable is as follows: (1) weeks one to six: deliver notices to the main villages, delivery to be completed by the completion of week six; (2) in weeks one and two the newspaper advertisements referred to and the notice will be run; (3) week two: the radio advertisements are run; (4) weeks six to nine: allows three weeks for the group members to discuss the opt-out notice with family and clan members and prepare to attend town meetings; (5) weeks ten to twelve, the town meetings to be conducted in 12 specified locations; weeks 13 to 16 provide time for group members to discuss the opt-out notice with family and clan members following the meetings and to send them by post to Port Moresby or deliver them to boxes left at town meeting locations; in the seventeenth week the contents of boxes to be collected; the end of week 18 is the deadline for the delivery of opt-out notices to the alternative points.

83. Quite apart from the dispute about the number of meetings to be held at the number of villages, the second defendant appears to propose detailed procedures for the conduct of the meetings, apparently being anxious that Slater & Gordon or its local agent should not conduct them. It proposes in effect a script of what should be said, the maintaining of a register of attendees recording the name, clan and village of each member, provision to the Court of a report of each public meeting, and the receipt of any signed out opt-out notice for forwarding to the Court. However, I regard these proposals, laudable as they may be, as over-elaborate and I decline to order them.

86. Mr Scerri raised issues of sovereignty and comity with the Court on both the occasions he addressed me. The submission essentially is that, as a matter of comity, this Court should obtain the assistance of the National Court of PNG to conduct the process of distributing notices and convening meetings in the Western Province and, if it declined to do so, the procedure should not be embarked upon. The question of the respect of the courts of one State for the courts of another is one matter; the legal principles of comity is another. This is not a case for adopting the procedure of sending letters rogatory to a foreign court such as ones concerned with obtaining evidence in a foreign country. This Court is giving directions to the plaintiff as to what he must do to bring to the attention of citizens of the Western Province of PNG matters concerning a legal proceeding (which is a consequence of a former legal proceeding in respect of which they have received compensation, some of it through agencies of the government of PNG) and as to steps they might wish to take with respect to it. The Supreme Court of Victoria is not seeking to enforce any matter against the citizens of Papua New Guinea, nor, so far as I can discern, taking any step which impinges upon the authority of Papua New Guinea or the exercise of the jurisdiction of the National Court of Papua New Guinea. I do not derive any assistance at all by considering the context of anti-suit injunctions although I note the citation by the High Court of Australia in CSR v Cigna Insurance Australia Limited (1997) 199 CLR 345 at 395-396 citing from Hilton v Guyot (1895) 195 US 113 to the effect that "comity in the legal sense is neither a matter of absolute obligation on the one hand nor of mere courtesy and good will upon the other. But it is the recognition that one nation allows within its territory to the legislative executive or judicial acts of another nation, having due regard to international duty and convenience and to the rights of its own citizens or other persons who are under the protection of its laws." I do not deem any of these matters to be attracted to this situation. The Supreme Court of Victoria is not seeking to perform any judicial act in PNG but is merely giving directions in a representative action by PNG citizens, a proceeding in which they are represented by the plaintiff to enable and foster the understanding by them of their rights in that proceeding, which itself is a consequence of a previous proceeding in which they were parties. The submission that the Courts of Papua New Guinea should be drawn in to oversee the procedure of distribution of notices and convening public meetings strikes me as a remarkable one, bound to be declined if the request were made.

89. A very active dispute in the final hearing before me was as to whether or not there should be an "explanation" meeting in every village rather than simply a group of main villages. Ms Sloss argued strongly that this was the only way to have the Court to have the necessary degree of satisfaction about likely notification of the right to opt-out and its associated features. Doubtless that would be a more complete way of seeking to assure the relevant notification but, as I have stated, in my view it would be over-costly and time consuming. Ms Sloss argued that the Court was required to be satisfied about the mechanism which had to be adapted to the people in West Papua New Guinea and the process had to be the one most likely to bring it to their attention. Within the bounds of reasonableness and economic sensibility, this may be correct but the degree of satisfaction and the requirement by the Court does not have to go so far as to achieve the most likely method of notification. She also argued that the mechanism must require a delivery to the individual who has the right to exercise. However, the empowering section permits but does not require that and in effect denies the obligation of personal service. Nor, in my judgment, is it obliged to go to each individual. In effect her argument was that the oral culture required that the person involved had to be given an opportunity to be told, which involved going to each village to tell them. In my view, given all of the matters to which all the parties have referred - time, difficulty of travel, terrain, other matters - these standards are impossibly high. The plaintiff's design involves delivery to each household and a selection of major villages for attendance where oral explanations will be given in addition to the newspaper and radio information already transmitted. In a society with an oral culture those that have read and heard are likely indeed to speak about it to others. pre-preparing in effect for the major village communications. She submitted that past discussions with clan leaders did not have a history of being a good guide to individual villages but, as I have indicated, notice to each individual is a misguided and uneconomical concept in any event. She argued that the explanations around "the water tank" were a fallacious misconception and that the regional village meetings could lead to wholesale misunderstanding. She drew attention to the evidence that the older folk spoke Motu which has been used since 1994 in relation to court matters. She supported most of Mr Scerri's arguments including the script and independent observers, but supported the safe boxes for collection and for meetings as an appropriate method. As to the other part of the notice, she submitted that the fact that the basis of this proceeding is a contract case should be identified.

92. Mr Beach in reply to these matters mounted a closely reasoned argument concerning the tailings notice founded upon the exhibits, clause 4.52A of the agreement and other matters. He argued that his client was not required contractually or now to specify the area as a matter of contract. As I have indicated he ultimately referred to the possible area but, not surprisingly, because of what he claimed was a want of discovery and some other unresolved matters, he put it that it was fundamentally unwise to attempt to assess the area without the further information.

95. I have already referred to the dispute between the parties as to whether or not separate village meetings (which have been developed over a period during appearances before the Court) should take place in every village or in nominated regional villages. Ultimately, I have come to the conclusion that the regional village meetings will be sufficient and I have added two further regional villages which the defendants have submitted ought to be included. Primarily, my reasons for declining to order separate village meetings are ones of cost, time and physical difficulties, as I have already indicated. However, there is some evidence that communication has gone on between the plaintiff's solicitors and many of the villages at village meetings without any noteworthy difficulties. One accepts that the matter here involved is more complex and does require a greater concentration on the provision of appropriate information. Nevertheless, notices will be left at the various villages some time before the regional meetings, leading to the likelihood that, under the oral culture tradition referred to, that discussions will have already taken place amongst villagers so that some knowledge of the attendees who attend regional meetings four weeks' later will exist. If they choose they may ask questions and seek explanations to be in place. Ms Sloss claimed that there would be considerable difficulties in whole villages attending, particularly mothers. This may or may not be true but I decline to speculate about that or use the possibility as a cause for ordering meetings at every village. When one takes into account the newspaper notices and the radio broadcasts that will have preceded all of this, and the natural interest of the villagers and the subject matter of these notices, it strikes me as being more likely than not that those who attend the meetings will go and report back to the villagers. Ms Sloss urged that errors of comprehension would thereby be conveyed more widely but I regard these criticisms as not being effective as to the method of coping with the provision of information in a most unusual context. Mr Beach was critical that the defendant were pressing for "the very best Rolls Royce type of procedure for notification" that was unrealistic having regard to the whole of the circumstances. So far as the claims concerning fee and retainer agreements, and that if there were, that they should be disclosed, this does not appear to have been the practice in other cases. Moreover, it has been stated to me from the Bar table that it is not proposed at this time to have any fee or retainer agreement between Slater & Gordon and any group member. There is nothing to disclose. In any event, I am of the view that the statement to the same effect as was included in the Tasfast v Mobil notice is sufficient. I have taken the view that the notice should provide for the "opt-outee" to provide not only his or her name, but the clan name.

98. There appeared to be a suggestion of Mr Scerri's at one stage that the notice should disclose to group members that any compensation received in this proceeding could impact upon their other compensation rights. It appears to be at least arguable that clause 6.1 of the settlement agreement deals with that matter and if it does, then it is arguable that the obligation of the first defendant would be to "top up" the development trust by which OTML's obligations were reduced. But, whether that is right or not, the inclusion of warnings about such matters is unnecessary baggage TO opt-out for the notification procedure at this time. What should not be lost sight of is that this is notification of the commencement of the proceeding and to be circumspect about devising steps that travel beyond that necessity, and address complexities that lie ahead on the legal landscape.

101. Accordingly, I propose to order that leave be granted to the plaintiff to give notice to group members of (i) the commencement of this proceeding; (ii) the right of group members to opt-out of this proceeding in accordance with the procedures set out herein.

104. The procedures are the procedures set out in the Minutes of Proposed Orders presented by the plaintiff to the Court on 6 August 2001 with the following alterations and additions:

"The Court noted the undertaking given by the Solicitors for the Plaintiff (Mr N. Styant-Browne, Partner, Slater & Gordon) that the Plaintiff will file and serve affidavits describing the carrying-out of the process of delivery of the notices to the villages and of the meetings held in accordance with paragraph 2(d) of this Order."

2. The date in paragraph 1 of the Order shall be 7th January 2002. This is 20 weeks after this Order, not 16. The reason for this is to avoid the final date being 24th December 2001, and to allow for the law firms and the Courts resumption of work subsequent to the annual short break between Christmas 2001 and early January 2002. It also accommodates a suggestion by the defendants that the final period of the process be lengthened.

3. The date in Order 2(c) is the 15th October 2001.

4. The dates in Order 2(d) is 12th November 2001 and 10th December 2001 respectively.

5. The villages in Order 2(d) shall include (xiv) Membok and (xv) Tepopo.

6. Save for the reference to "new class action" in the first paragraph of the newspaper advertisement in Schedule A, the words "group proceeding" shall thereafter be used, instead of class action, and "group members" where applicable.

7. The newspaper notices and radio broadcasts shall be in Motu, as well as English and Tok Pisin.

8. There shall be added after the words "those cases" in the fourth line of paragraph 2 of Schedule A the following words:

"This new group proceeding concerns the settlement of that earlier proceeding."

9. There shall be added after the words "class members" (to be "group members"), in paragraph numbered 4 of the Schedule A the words:

"BHP and Ok Tedi deny these claims and are defending the group proceeding".

10. The opt-out deadline shall be "7th January 2002".

11. The dates of the village meetings (including Membok and Tepopo) shall be nominated by the plaintiff's solicitors and put into the draft Order.

12. The word "safe" shall be added before the word "boxes".

13. The Prothonotary of the Supreme Court of Victoria, William Street, Melbourne 3000, Australia shall be added to the offered addresses for receipt of opt-out notices.

14. In the detachable opt-out notice there shall be added to "Address of Group Member":

Name of village: _______________________________

Name of clan: _______________________________