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Bougainville Copper Ltd v Masono [2022] PGNC 506; N10031 (4 November 2022)

N10031


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO. 29 OF 2018


BOUGAINVILLE COPPER LIMITED
Plaintiff


V


VICE PRESIDENT RAYMOND MASONO MHR, MINISTER FOR MINERAL AND ENERGY RESOURCES OF THE AUTONOMOUS BOUGAINVILLE GOVERNMENT
First Defendant


AND
BOUGAINVILLE MINING ADVISORY COUNCIL
Second Defendant


AND
TIMOTHY KOTA AS CHIEF MINING WARDEN OF THE AUTONOMOUS REGION OF BOUGAINVILLE
Third Defendant


AND
THE BOUGAINVILLE EXECUTIVE COUNCIL
Fourth Defendant


AND
KENTON SAMSON AS MINING REGISTRAR OF THE AUTONOMOUS REGION OF BOUGAINVILLE
Fifth Defendant


AND
THE AUTONOMOUS REGION OF BOUGAINVILLE GOVERNMENT
Sixth Defendant


AND
CENTRAL MEÉKAMUI EXPLORATION LIMITED
Seventh Defendant


Waigani: Miviri, J
2022: 3rd & 4th November


PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – 7th Defendant By – Order 1 Rule 15 & Order 12 Rule 8 (4) & Order 12 Rule 1 NCR – Leave Extension of Time From Prior Orders – Filing Further Affidavits Annexing Victorian Supreme Court Decision – Whether Serious Prejudice Whether any Further Filing Should be Refused – Whether Applicant has provided Good Reason – Whether Application Made Promptly – Balance Discharged Motion Granted – Costs in the Cause.


PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Order 16 Rule 13 (13) (1) Order 12 Rule 1 NCR – Section 155 (4) Constitution – Leave to File Issue Notice to Admit Facts & Notice to Answer Interrogatories – Leave To File Further Affidavits – Competency of Motion – Jurisdiction – Whether Materials Sought to be Filed Hearsay – Whether Materials Already Filed in Court – Whether Application Promptly Filed – Settlement Endorsement of Statement of Agreed and Disputed Facts and Legal Issues For Trial – Balance Discharged – Motion 1 Refused Motion 2 granted – cost follow event.


Cases Cited:
Lorma Construction Ltd v State [2012] PGNC 33; N4636
Koim v O'Neil [2014] PGNC 147; N5694
Pacific Energy Aviation (PNG) Ltd v PNG Air Ltd [2020] PGNC 28; N8196
Blaxcell Ltd v Pok, Minister for Petroleum and Energy [2022] PGNC 34; N9436


Counsel:
J.Nigs, for the Plaintiff
J. Liskia, for the Second to Sixth Defendants
A. Mana, for the Seventh Defendant


RULING

04th November, 2022


  1. MIVIRI, J: This is the ruling on three notices of motion, firstly by the seventh Defendant filed on the 11th August 2022 whereby he seeks pursuant to Order 1 Rule 15, Order 12 Rule 8 (4) and Order 12 Rule 1 of the National Court Rules that leave be granted to him, the Seventh Defendant for an extension of the time fixed by the National Court on 14th September 2021, to file and serve the affidavit of Jonathan Ross Hohl sworn on the 28th June 2022, within 7 days from the grant of leave.
  2. Secondly pursuant to Order 1 Rule 15, Order 12 Rule 8 (4) and Order 12 Rule 1 of the National Court Rules such other orders as the Court deems fit, because they relate to the balance of the times fixed by the Court on the 30th May 2022. And costs be in the cause and pursuant to section 155 (4) and 166 of the Constitution such other orders as the court deems fit. And also, time be abridged pursuant to order 1 rule 15 of the Rules.
  3. The motion has not been contested by the plaintiff but conditioned that if granted then the Plaintiff should also be granted leave to file further affidavits. Be that as it may, the Court must independently assess the motion that is set before it. The Court will not descend into the arena of the dispute and side with either parties. It must make its decision based on the facts relied and the law on the subject. The dispute the subject of the judicial review proceedings will have evidence led based on the Statement of Agreed and Disputed Facts and Legal Issues for Trial. No doubt in this regard pursuant to Order 16 Rule 13 (6) affidavits would have been filed to sustain what is set out there. The parties know best what the evidence is to be called in support of the issues raised. And they alone would be best positioned to bring that out at this stage of the process. It will not be the duty of the Court to seek out and to distil the evidence as it were in the proceedings. It is not analogous to the Committal proceedings in criminal cases and procedure.
  4. And therefore, the material relied here will determine the issue raised by the seventh defendant firstly whether an extension should be given to the time it fixed in the matter by its prior orders in this proceeding. And secondly whether the seventh defendant should be allowed to introduce into evidence an affidavit annexing an examined copy of the Judgement of one Mukhtar AsJ of the Victorian Supreme Court in Bougainville Copper Ltd v RTG Mining Inc & Anor [2021] VSC 231, Victorian Supreme Court Decision.
  5. Here is Judicial review proceedings with a number of procedural timetables orders that have been issued firstly on the 14th September 2021 and which were in the following terms; 2. Pursuant to Order 16 Rule 13 (13) (1), Order 8 Rule 50 (1), Order 12 Rule 1 of the National Court Rules and Section 155 (4) of the Constitution and the inherent jurisdiction of the Court, this matter was listed for directions hearing for the Court to consider and determine and issue directions or orders as per Order 16 rule 13 (6) (4) of the National Court Rules in the following terms:

(b) The plaintiff shall file and serve any further affidavits by 30th September 2021.

(c) The defendants shall file and serve any affidavits by 28th October 2021.

(d) The plaintiff shall prepare and forward the Statement of Agreed and Disputed Facts and Legal Issues to the Defendants by 18th November 2021.

(e) The defendants shall consider and forward the Statement of Agreed and Disputed Facts and Legal Issues to the Plaintiff by 09th December 2021.

(f) The Plaintiff to file and serve the Statement of Agreed and Disputed Facts and Legal Issues for trial by 23rd December 2021.

(g) Proof of all disputed facts to be by way of Affidavit evidence only.”


  1. And to which the parties complied but that the Statement of Agreed and Disputed Facts and Legal Issues for Trial was extended for filing and service a number of instances most recently of the 15th June 2022. Which order then was in the following terms now binding on the parties since the 30th May 2022, for which leave is now sought for its extension. It is in the following terms:

“(1) Pursuant to Order 16 Rule 13 (13) (1), Order 12 Rule 1 of the National Court Rules, section 155 (4) of the Constitution and the inherent jurisdiction of the Court, leave is granted to the Plaintiff to withdraw its Notice of Motion filed 29th April 2022 with no order as to Costs.

(2) The time for filing the Statement of Agreed and Disputed Facts and Legal Issues for Trial be extended to a date to be fixed by the Court.

(3) The parties’ Lawyers meet with 14 days from the date of this Court order and review such documents and other evidence as is relevant to the Matters in the said Statement sought to be changed by the 7th Respondent on or about 14th April 2022 to determine whether any such matters can be agreed.

(4) The parties Lawyers execute a Statement of Agreed and Disputed Facts and Legal Issues for Trial within 15 days from the date of this Court Order.

(5) The plaintiff be at liberty to file further affidavits within a further 7 days from the filing of the Statement of Agreed and Disputed Facts and Legal Issues for Trial

(6) No order as to Costs.

(7) The time be abridged.”


  1. In my view this is positive attitude by the parties on either side to not procrastinate but to expedite the matter as it is reflection of an attitude or agreement internally for such a course to be taken because here the Statement of Agreed and Disputed Facts and Legal Issues for Trial was endorsed by all parties on the 17th June 2022. It was filed 20th June 2022. It was filed by Dentons PNG lawyers for the plaintiff on the agreement of all the parties as to the Conflict and Legacy issues, commencement, and expiration of Exploration Licence 01, The Mining Warden’s Hearing, Objection to BCL’s extension Application, Refusal of BCL's extension Application, statement of Disputed Facts for Determination. And covered here include BCL’s extension Application, Customary Representatives for Exploration Licence 01. And the Statement of Agreed Legal Issues for Determination. There are a total of 84 issues posed. Which set the stage for the trial of the matter satisfying the requirements of Order 16 Rule 13 (6) of the Rules.
  2. What is intended is by this motion is not a new as it was communicated by correspondence to the plaintiffs and the other defendants born out by the affidavits relied on of:
  3. Regardless of the views that have been exchanged between the parties since, this application is made on the basis that the subject evidence now intended to be included is in favour of the case of the 7th Defendant in the pursuit of the defence of its case. And that it is also in the interests of the other defendants and the Plaintiff to arrive at the truth sought out in the matter. And here relevant is Order 1 Rule 15 of the National Court Rules, Extension, and abridgement:

“(1) The Court May, on terms, by order extend or abridge any time fixed by the Rules or by any judgement or order.

(2) The Court May extend time under sub-rule (1) as well after as before the time expires whether or not an application for the extension is made before the time expires.

(3) The period within which a person is required by these rules or by any orders to serve, file or amend any pleading may be extended by consent without an order for extension.”


  1. Relevantly order 12 rule 1 also attains the same and Lorma Construction Ltd v State [2012] PGNC 33; N4636 (26 March 2012) reflects that, “The plain and ordinary meaning of Order 1 Rule 15 (1) is that at any time fixed by the Rules of by any judgment or order may be extended or abridged.” And it is for good cause to allow the matter before the Court to be dealt with expeditiously and that Justice is attained for the parties without prejudice. Here in particular would the filing of further affidavit material and the like prejudice the parties and therefore should be refused. Further whether the applicant as here has sought an extension of the time ordered. Or whether as here there is consent to the application for extension to file further. And whether the explanation for so doing and intending is good. And whether application is made promptly without delay. In summary it is in the interests of justice and there is merit in the application benefitting not only the applicant but the other parties to the cause of action. Because underlying is that, “The rules should be flexible in their application and be the means to do justice, so that where there is a defect or irregularity in the pleadings, or an omission or a non-compliance with the requirements of the Rules, if such defect, omission, irregularity or non-compliance do not result in the prejudice to the opposing side, then such defect, omission, irregularity or non-compliance should be remedied with amendments.” Koim v O'Neil [2014] PGNC 147; N5694 (28 July 2014).
  2. Here by the material relied in the affidavits filed set out above this application was made promptly by the seventh defendant and flows with the general theme of the Statement of Agreed and Disputed Facts and Legal Issues for Trial was endorsed by all parties on the 17th June 2022. It was filed 20th June 2022. It is threading common ground that is both for an against and would not be prejudicial to either side of the dispute. And this is made clear by the Plaintiff who has consented but that he be allowed to file affidavits also in reply. In this regard has also sought similar by the two notices of motion that he has filed.
  3. Here it is worth noting that in both instances, firstly the notice of motion of the 2nd September 2022 and secondly that of the 06th October 2022 objections has been raised by the seventh defendant with the remaining defendants that in both instances the affidavit material proposed and in draft sought to be filed contains hearsay material and, on that basis, should be rejected and not accepted. These are the proposed affidavits of Ezekiel Burain and of Anthony Regan. At this stage of the proceedings, it is not the duty here to weigh the evidence and to distil the evidence as it were. That is the basis of the argument advanced by the seventh defendant that the affidavit material of both these witnesses deposed to in the affidavit of Mark Hitchcock of the 5th October 2022 filed 06th October 2022 be rejected as being hearsay. This is inviting the court to weigh the evidence twice which is not allowed in law. There is only one determination after all the evidence has been placed before the Court. And all weighing as to the veracity credibility or otherwise will be at the end of the trial of the matter. And here will be no exceptions to that set procedure by law.
  4. In this regard the intention of the plaintiff is clearly set out in the affidavit of Rose Pakop of the 09th September 2022 filed 12th September 2022. And the affidavit in draft proposed of the witness intended, Mark Hitchcock will be rebuttal evidence that the plaintiff must be allowed in response to that material of the seventh defendant. In all fairness leave must be accorded for the plaintiff to place evidence before the Court to move its contention against the defendants. It has instituted the proceedings and must be accorded all opportunity to bring out what it contends against the defendants. This is not the time to weigh out the evidence. That will be at the end of the case when all material are before the Court. What is intimated by the plaintiff to the seventh defendant in its email is not wrong nor would it be set aside and not considered because of the challenge mounted that it is evidence that is hearsay. That consent will be given to the intent of the seventh Defendant set out above, but on condition that the plaintiff be allowed to file its own affidavit material rebutting or responding. This is normal and would be consistent with section 158 Exercise of the Judicial Power, that “(2) In interpreting the law the Court should give paramount consideration to the dispensation of Justice.” And here Justice is to both sides of the dispute. It would be erroneous to weigh and reject one side of the dispute including the evidence it proposes to rely on at this stage and not allow the other party to push its evidence and side of the case at this stage. So as is the case of the plaintiff or that of the seventh defendant, the fact remains that whatever weight that is given in the determination that will follow is a different matter, but it is an important evidence that will foster the case for both the plaintiff and the seventh defendant. In their individual wisdom both have sought to bring their cases at the highest level so must be accorded leave to file that fact from it. Including what it considers as relevant in the strength of its rebuttal against that of the intended by the seventh defendant and all other named defendants on record. He who alleges must prove and therefore it would not be erroneous for the particulars of evidence proposed in the affidavit of Rose Pakop of the 09th September 2022 filed 12th September 2022 to be filed in response to and against the seventh defendant of the Victorian Supreme Court decision.
  5. It is common that the interest of Justice favour an extension and there is good explanation for so seeking in both fronts of the case. And the applications are in response to one to the other and therefore is not erroneous to balance the equation of the evidence for and against in the dispute. There is therefore merit in both sides to allow the extension pleaded for and leave to file further affidavits and materials to support each other in their individual cases. It would not be delay that is procrastinating because justice before and in judicial review is of equity. And doing equity to one side means the same to the other. The utility of the proceedings will be enhanced in this way because both sides portray that the interest of Justice and it would be consistent with the observation of this Court in Pacific Energy Aviation (PNG) Ltd v PNG Air Ltd [2020] PGNC 28; N8196 (19 February 2020) and reaffirmed in Blaxcell Ltd v Pok, Minister for Petroleum and Energy [2022] PGNC 34; N9436 (14 February 2022).
  6. The aggregate is that it would not be erroneous in law to allow leave to extend because both have seen the need from where they each stand to make the application. Each has complied with Order 16 in particular in the case of the plaintiff Order 16 Rule 13 (1) for this two applications lodged by the respective notices of motion. The competency of both motions are in my view derived from that source and are therefore properly before the Court. And as to the notice to admit facts and interrogatories it would not go past the Statement of Agreed and Disputed Facts and Legal Issues for Trial endorsed by all parties on the 17th June 2022. It was filed 20th June 2022. And consequently, the notice of motion in that regard prayed by the Plaintiff will be denied. What is in dispute, what is admitted, what facts are relied on follows from that Statement of Agreed and disputed Facts and Legal Issues for trial. It is and will comprise the basis of the trial of the matter. To go the length and breath of what the plaintiff prays in that motion 02nd September 2022 will not sustain in his favour. But he will sustain in that leave will be granted that he file further affidavits motioned 6th October 2022 in response to what the seventh defendant is filing. Because both sides of the case will be helped to fine tune what is justice in their individual cases both for and against.
  7. Accordingly, the formal orders of the court are:

Orders Accordingly.
__________________________________________________________________
Corrs Chambers Westgarth Lawyers: Lawyer for the Seventh Defendant
Jema Lawyers: Lawyer for Second to Sixth Defendant
Dentons PNG: Lawyer for the Plaintiff

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