Ok Tedi Fly River Development Foundation Ltd v Ok Tedi Mining Ltd: Striking Out, Fiduciary Relationships, Unlawful Means Conspiracies

Ok Tedi Fly River Development Foundation Ltd and others sued Ok Tedi Mining Ltd and others in the General Division of the High Court of Singapore, alleging deceit, breach of fiduciary duties, and conspiracy related to the operation of the Ok Tedi Mine in Papua New Guinea. The court, presided over by Vinodh Coomaraswamy J, struck out the claims for breach of fiduciary duties and conspiracy but allowed the deceit claim to proceed to trial. The plaintiffs have appealed the decision to strike out the claims for breach of fiduciary duties and conspiracy.

1. Case Overview

1.1 Court

General Division of the High Court of the Republic of Singapore

1.2 Outcome

Application allowed in part. Claims for breach of fiduciary duties and conspiracy struck out; claim in deceit not struck out.

1.3 Case Type

Civil

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

Plaintiffs' claims against Ok Tedi Mining Ltd for breach of fiduciary duties and conspiracy were struck out, while the deceit claim was allowed to proceed to trial.

1.7 Decision Date

11 April 2022

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Ok Tedi Fly River Development Foundation Ltd	Plaintiff	Corporation	Claims for breach of fiduciary duties and conspiracy struck out	Lost	Tan Gim Hai Adrian, Ong Pei Ching, Veluri Hari, David Aw Jingwei, Ng Rui Wen
Tom Waipa	Plaintiff	Individual	Claims for breach of fiduciary duties and conspiracy struck out	Lost	Tan Gim Hai Adrian, Ong Pei Ching, Veluri Hari, David Aw Jingwei, Ng Rui Wen
Brian Goware	Plaintiff	Individual	Claims for breach of fiduciary duties and conspiracy struck out	Lost	Tan Gim Hai Adrian, Ong Pei Ching, Veluri Hari, David Aw Jingwei, Ng Rui Wen
Gariba David Marude	Plaintiff	Individual	Claims for breach of fiduciary duties and conspiracy struck out	Lost	Tan Gim Hai Adrian, Ong Pei Ching, Veluri Hari, David Aw Jingwei, Ng Rui Wen
Sisa Baidam	Plaintiff	Individual	Claims for breach of fiduciary duties and conspiracy struck out	Lost	Tan Gim Hai Adrian, Ong Pei Ching, Veluri Hari, David Aw Jingwei, Ng Rui Wen
Max Giawele	Plaintiff	Individual	Claims for breach of fiduciary duties and conspiracy struck out	Lost	Tan Gim Hai Adrian, Ong Pei Ching, Veluri Hari, David Aw Jingwei, Ng Rui Wen
Robin Inberem Moken Morgen	Plaintiff	Individual	Claims for breach of fiduciary duties and conspiracy struck out	Lost	Tan Gim Hai Adrian, Ong Pei Ching, Veluri Hari, David Aw Jingwei, Ng Rui Wen
Bob Wai	Plaintiff	Individual	Claims for breach of fiduciary duties and conspiracy struck out	Lost	Tan Gim Hai Adrian, Ong Pei Ching, Veluri Hari, David Aw Jingwei, Ng Rui Wen
Bosi Kasiman	Plaintiff	Individual	Claims for breach of fiduciary duties and conspiracy struck out	Lost	Tan Gim Hai Adrian, Ong Pei Ching, Veluri Hari, David Aw Jingwei, Ng Rui Wen
Ok Tedi Mining Ltd	Defendant	Corporation	Claims for breach of fiduciary duties and conspiracy struck out	Won	Cavinder Bull SC, Adam Muneer Yusoff Maniam, Chua Xyn Yee, Liu Siew Rong
PNG Sustainable Development Program Ltd	Defendant	Corporation	Absent and unrepresented	Neutral
Mekere Morauta	Defendant	Individual	Absent and unrepresented	Neutral
The Independent State of Papua New Guinea	Defendant	Government Agency	Absent and unrepresented	Neutral
TMF Trustees Singapore Ltd	Defendant	Corporation	Absent and unrepresented	Neutral

3. Judges

Judge Name	Title	Delivered Judgment
Vinodh Coomaraswamy	Judge of the High Court	Yes

4. Counsels

Counsel Name	Organization
Tan Gim Hai Adrian	TSMP Law Corporation
Ong Pei Ching	TSMP Law Corporation
Veluri Hari	TSMP Law Corporation
David Aw Jingwei	TSMP Law Corporation
Ng Rui Wen	TSMP Law Corporation
Cavinder Bull SC	Drew & Napier LLC
Adam Muneer Yusoff Maniam	Drew & Napier LLC
Chua Xyn Yee	Drew & Napier LLC
Liu Siew Rong	Drew & Napier LLC

4. Facts

The first defendant owned and operated a mine near the Ok Tedi River since 1981.
The mine has caused environmental damage affecting certain communities.
Members of the Affected Communities commenced litigation against the first defendant and its majority owner in the late 1990s.
The majority owner transferred its shares in the first defendant to the second defendant in 2002.
The plaintiffs claim the first defendant deceived members of the Affected Communities into dropping their claims.
The plaintiffs claim the first defendant breached fiduciary duties owed to the Affected Communities.
The plaintiffs claim the first defendant conspired with the second and third defendants to cause loss to the Affected Communities.

5. Formal Citations

Ok Tedi Fly River Development Foundation Ltd and others v Ok Tedi Mining Ltd and others, Suit No 628 of 2020 (Summons No 1478 of 2021), [2022] SGHC 83

6. Timeline

Date	Event
1981-01-01	Ok Tedi Mining Ltd incorporated to develop and operate the Mine
1995-01-01	Statutory compensation system established for loss and damage caused by flooding
1994-01-01	Members of the Affected Communities brought proceedings against BHP Group and OTML
1996-01-01	Proceedings settled; BHP Group committed to pay legal costs and underwrite the general compensation fund
1999-06-01	Preliminary recommendation to close the Mine immediately or by 2001
2000-02-01	State initiated the Consultation Programme
2001-11-01	Community Mine Continuation Agreements entered into
2002-01-01	BHP Minerals transferred the Shares to PNGSDP
2003-01-01	2000 Class Actions came to an end with a settlement agreement
2011-01-01	Review of the operation of the CMCAs
2012-01-01	CMCA extension agreements executed
2013-01-01	State expropriated the Shares without compensation
2020-07-01	Plaintiffs commenced this action
2020-12-01	Sir Mekere Morauta died
2021-01-22	Plaintiffs tendered the proposed amended statement of claim
2021-08-19	Hearing of OTML's striking out application
2021-10-18	Plaintiffs wholly withdrew their claims against Sir Mekere
2022-04-12	Judgment issued

7. Legal Issues

Breach of Fiduciary Duty
- Outcome: The court held that OTML was not an ad hoc fiduciary for the members of the Affected Communities.
- Category: Substantive
Conspiracy
- Outcome: The court held that the plaintiffs' claims in conspiracy were unsustainable.
- Category: Substantive
Striking Out
- Outcome: The court struck out the claims for breach of fiduciary duty and conspiracy.
- Category: Procedural

8. Remedies Sought

Compensation for environmental damage
Damages for deceit
Damages for breach of fiduciary duty
Damages for conspiracy

9. Cause of Actions

Deceit
Breach of Fiduciary Duty
Conspiracy

10. Practice Areas

Commercial Litigation

11. Industries

Mining

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Independent State of Papua New Guinea v PNG Sustainable Development Program Ltd	High Court	Yes	[2016] 2 SLR 366	Singapore	Cited as background to the long-running litigation.
Independent State of Papua New Guinea v PNG Sustainable Development Program Ltd	High Court	Yes	[2019] SGHC 68	Singapore	Cited for setting out the general background to the long-running litigation.
Independent State of Papua New Guinea v PNG Sustainable Development Program Ltd	High Court	Yes	[2020] 1 SLR 97	Singapore	Cited as background to the long-running litigation.
Independent State of Papua New Guinea v PNG Sustainable Development Program Ltd	Court of Appeal	Yes	[2020] 2 SLR 200	Singapore	Cited for setting out the general background to the long-running litigation.
Ok Tedi Fly River Development Foundation Ltd and others v Ok Tedi Mining Ltd and others	High Court	Yes	[2021] SGHC 205	Singapore	Cited for the decision to strike out the plaintiffs’ claims against PNGSDP.
The “Tokai Maru”	Court of Appeal	Yes	[1998] 2 SLR(R) 646	Singapore	Cited for the definition of a reasonable cause of action.
Ng Chee Weng v Lim Jit Ming Bryan and another	High Court	Yes	[2012] 1 SLR 457	Singapore	Cited for the principle that a weak case is not grounds for striking it out.
The “Bunga Melati 5”	Court of Appeal	Yes	[2012] 4 SLR 546	Singapore	Cited for the definition of unsustainable pleadings.
Tan Yok Koon v Tan Choo Suan and another and other appeals	Court of Appeal	Yes	[2017] 1 SLR 654	Singapore	Cited for the hallmark of a fiduciary obligation.
Bristol and West Building Society v Mothew	Chancery Division	Yes	[1998] Ch 1	England and Wales	Cited for the single-minded duty of loyalty to the beneficiary.
Turf Club Auto Emporium Pte Ltd and others v Yeo Boong Hua and others and another appeal	Court of Appeal	Yes	[2018] 2 SLR 655	Singapore	Cited for the principle that a person is a fiduciary because he is subject to fiduciary obligations.
Her Majesty The Queen in Right of Alberta v Elder Advocates of Alberta Society and James O. Darwish, Personal representative of the Estate of Johanna H. Darwish, deceased and Attorney General of Canada and Attorney General of British Columbia as Interveners	Supreme Court	Yes	[2011] 2 SCR 261	Canada	Cited for the framework for ascertaining when a person becomes an ad hoc fiduciary.
Susilawati v American Express Bank Ltd	Court of Appeal	Yes	[2009] 2 SLR(R) 737	Singapore	Cited as consistent with the Alberta framework.
Deutsche Bank AG v Chang Tse Wen	High Court	Yes	[2013] 1 SLR 1310	Singapore	Cited for the high threshold for establishing an ad hoc fiduciary duty.
Hospital Products Ltd v United States Surgical Corporation	High Court	Yes	(1984) 156 CLR 41	Australia	Cited for the principle that a commercial party does not ordinarily undertake to subordinate its own interests to another’s.
EFT Holdings, Inc v Marinteknik Shipbuilders (S) Pte Ltd	Court of Appeal	Yes	[2014] 1 SLR 860	Singapore	Cited for the elements required to establish conspiracy.
Kuwait Oil Tanker Co SAK v Al Bader	Commercial Court	Yes	[2000] 2 All ER (Comm) 271	England and Wales	Cited for the requirement of awareness and shared object in a combination.
The Dolphina	High Court	Yes	[2012] 1 SLR 992	Singapore	Cited for the principle of fixing a corporate entity with the requisite intention or state of mind.
Gabriel Peter & Partners (suing as a firm) v Wee Chong Jin and others	Court of Appeal	Yes	[1997] 3 SLR(R) 649	Singapore	Cited for the principle that the reasonableness of a cause of action must be assessed only on the basis of the allegations pleaded.
Galambos v Perez	Supreme Court	Yes	[2009] 3 SCR 247	Canada	Cited for the principle that the absence of power in the hands of the alleged fiduciary negates an ad hoc fiduciary duty.

13. Applicable Rules

Rule Name
Rules of Court (2014 Rev Ed)
O 15 r 14 of the Rules of Court (2014 Rev Ed)
O 15 r 12 of the Rules of Court (2014 Rev Ed)
O 18 r 19(1)(a) of the Rules
O 18 r 19(1)(b) of the Rules
O 18 r 19(2) of the Rules

14. Applicable Statutes

Statute Name	Jurisdiction
Limitation Act (Cap 163, 1996 Rev Ed)	Singapore
Mining (Ok Tedi Mine Extension (Ninth Supplemental) Agreement) Act 2001 (No 7 of 2001) (PNG)	Papua New Guinea
Mining (Ok Tedi Mine Extension (Eleventh Supplemental) Agreement) Act 2014 (No 56 of 2014) (PNG)	Papua New Guinea

15. Key Terms and Keywords

15.1 Key Terms

Ok Tedi Mine
Affected Communities
Share Offload Representations
Community Mine Continuation Agreements
PNG Sustainable Development Program
Ninth Supplemental Agreement
Master Agreement
Security Deed
Security Trust Deed
Long Term Fund
Distributions

15.2 Keywords

fiduciary duty
conspiracy
striking out
Ok Tedi
mining
environmental damage

16. Subjects

Civil Procedure
Equity
Tort
Fiduciary Duty
Conspiracy
Mining Law

17. Areas of Law

Civil Procedure
Pleadings
Striking out
Equity
Fiduciary Relationships
Tort
Conspiracy