Bougainville Copper Ltd v Central Me'ekamui Exploration Ltd [2020] PGSC 8; SC1917 (6 February 2020)

SC1917

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 159 OF 2018

BETWEEN:
BOUGAINVILLE COPPER LIMITED
Applicant

AND:
CENTRAL ME’EKAMUI EXPLORATION LIMITED
First Respondent

AND:
Vice President RAYMOND MASONO MHR, Minister for Mineral
and Energy Resources of the Autonomous Bougainville Government
Second Respondent

AND:
BOUGAINVILLE MINING ADVISORY COUNCIL
Third Respondent

AND:
TIMOTHY KOTA, as Chief Mining Warden of the Autonomous
Region of Bougainville
Fourth Respondent

AND:
THE BOUGAINVILLE EXECUTIVE COUNCIL
Fifth Respondent

AND:
KENTON SAMSON, as Mining Registrar of the Autonomous
Region of Bougainville Government
Sixth Respondent

AND:
THE AUTONOMOUS BOUGAINVILLE GOVERNMENT
Seventh Respondent

Waigani: Yagi, Murray & Thompson JJ
2019: 28^thJune
2020: 6^th February

SUPREME COURT- Application for Leave to Appeal, Supreme Court Act, s.14(3)(b) – Proposed appeal against order for the joinder of parties in the proceedings – National Court proceedings for judicial review under Order 16 - a discretionary judgement –relevant considerations in respect to the exercise of a discretionary power – discretionary power properly exercised.

PRACTICE AND PROCEDURE – Proposed appeal to Supreme Court – Appeal against Interlocutory Ruling by National Court – Whether the primary Judge properly exercised his discretion.

SUPREME COURT - Application for leave to appeal against decision to allow joinder of party in judicial review – whether party was directly affected – principles governing Application for Leave to Appeal.

Cases Cited:

MatiabeOberia v Police & The State (2005) SC801
The Right Hon. Sir Julius Chan v Ombudsman Commission (1999) SC607
Curtain Bros (PNG) Ltd v UPNG (2005) SC788
Summit Development Ltd v Byron Chan as Minister for Mining &Ors (2016) N6390
Government of Papua New Guinea and Davies v Barker [1997] PNGLR 386 Ramu Nico Management (MCC) Ltd v Tarsie (2010) SC1075
SakaraiasAkap v Kenneth Korakali (2012) SC1179
Nae Limited v Curtain Bros PNG Ltd (2015) SC1620
Helifix Group of Companies Ltd v PNG Land Board & Others (2012) PGSC10
Administration of the Territory of Papua New Guinea v Edward Iorive & Others (1971) PGSC61
Peter O’Neill v Nerrie Eliakim & Others (2016) PGSC 57

Counsel:

Ms. Jeanale Nigs & Ms. Gloria Lakati, for the Applicant, BCL
Mr. Allan Mana, for the First Respondent, CMEL
Ms. Beryl Kumo, for the Seventh Respondent, ABG

DECISION

6^th February, 2020

1. YAGI & MURRAY JJ: This is an application made by Bougainville Copper Limited (BCL) pursuant to Section 14 (3) (b) of the Supreme Court Act for leave to appeal against an interlocutory ruling of the National Court made on 22^nd August 2018
   

Background to this application

2. A background giving rise to firstly, the National Court proceeding and later this application is observed from the affidavit by Mark Hitchcock in support of the application and submissions by counsels. On 8^th September 2014, BCL was granted an Exploration License EL01, which would expire on 7^th September 2016. Prior to that, BCL held a Special Mining Lease under the Mining (Bougainville Copper Agreement) Act 1967 (PNG) and the Mining Act 1992 (PNG).
   
3. On 5^th July 2016, BCL applied for an extension of its Exploration License EL01.
   

4. On 16^th November 2017, Central Me’ekamui Exploration Limited (CMEL), the first respondent, submitted an application for an Exploration License over the same area, that is EL01.

5. On 11^th December 2017, the Mining Warden conducted a hearing of BCL’s application for the extension of the Exploration License EL01. Mr. Miriori, Special Mining Lease Osikaiyang Landowners Association (SMLOLA) and CMEL all attended the hearing and vigorously opposed BCL’s application for the extension.

6. CMEL (now Panguna Mining Limited) is a company incorporated in Papua New Guinea under the Companies Act 1997. It is 50% owned by a land owner, Mr. Philip Miriori, and SMLOLA, each holding 25% shares. The other 50% is owned by Central Exploration Limited (CEL) a foreign owned company. Philip Miriori claims to be the Chairman of SMLOLA.

7. On 16^th January 2018, BCL received a letter from the Bougainville Department of Mineral and Energy Resources advising that its application for extension of the term of its Exploration License EL01 that was issued on 8^th September 2014 was refused.

National Court Proceedings

8. Aggrieved by that decision, BCL instituted the National Court proceeding styled OS (JR) No. 29 of 2018, on 25^th January 2018, against the respondents (excluding CMEL), seeking a review of the decision refusing its extension application and other related decisions made on 16^th January 2018 by the second to seventh respondents.

9. On 10^th April 2018 leave to apply for judicial review was granted to BCL.

10. On 19^th April 2018 CMEL filed a notice of motion seeking leave to be joined as a party in the proceeding pursuant to Order 5 (8) (1) of the National Court Rules. The motion was later amended by an amended motion filed on 19^th June 2018 by invoking Order 16 Rules 9 (1); 13 (6) & (8) of the National Court Rules but for the same relief.

11. The application for a joinder was heard on 21^st June 2018 and a ruling was reserved until 22^nd August 2018.

12. On 22^nd August 2018, the National Court delivered its ruling wherein the Court granted leave to CMEL to join in the proceeding as the seventh defendant.

Application For Leave to Appeal

13. BCL being aggrieved by that decision has instituted this leave application.

14. It is not disputed that the National Court decision, the subject of this application, is an interlocutory decision. It is also not disputed that leave to appeal is required pursuant to Section 14 (3) (b) of the Supreme Court Act.

15. On 1^st October 2018 BCL filed the application for leave. The application first went before the Honourable Justice Dingake, sitting as a single Judge of the Supreme Court, on 20^th February 2019. His Honour dismissed BCL’s application on 7^th March 2019.

16. Being dissatisfied with the decision of the single Judge, BCL has now come before the Full Court pursuant to Section 10 (2) of the Supreme Court Act and Order 11 Rule 27 of the Supreme Court Rules. There is no issue as to this Court’s jurisdiction to hear this application for leave afresh.

Law on Leave Application

17. The requirement for leave is a process of filtering cases to prevent unmeritorious cases coming before the Supreme Court, and more importantly, the need to ensure the Supreme Court is not unnecessarily clogged with appeals from every interlocutory ruling before the final judgment: Matiabe Oberia v Police &The State (2005) SC801.
18. The test or criteria for considering whether to grant leave was discussed in the case of The Right Hon. Sir Julius Chan v. Ombudsman Commission (1999) SC607 and these are:

1. Whether the applicant has shown that there is a prima facie case that the decision of the primary judge was wrong.
   
2. Whether the applicant has also shown that the wrong decision of the trial judge will affect a party’s substantive rights or prevent the proper determination of the issues if the wrong decision is not revised.
   

19. In Matiabe Oberia (supra), Justice Lay in examining the tests and other principles that were discussed by the Supreme Court in the Sir Julius Chan case (supra), summarised the principles into 5 useful considerations which have been adopted and followed in many subsequent cases. Those considerations are stated in question form as follows:

(1) Is there an arguable or prima facie case or has it been demonstrated that the trial judge was wrong?

(2) Does the Appellant have other recourse in the court below?

(3) Was the ruling within the discretion of the Court? Has it been shown that its exercise was manifestly unreasonable, exercised on a wrong principle or a mistake of fact?

(4) Does the decision have any bearing on the final determination of the issue between the parties? Will it affect the primary rights of the parties or prevent the determination of the issues?

(5) Will substantial injustice be caused by allowing the decision to stand?

(6) Has cause been shown that the trial process should be interrupted by an appeal?

20. As there is no issue as to the application of those tests to this case, we adopt and apply them here as follows:

Reasons & Ruling

Arguable Case

21. There are 12 proposed grounds of appeal and are set out in the application for leave in paragraphs 3(1) – (12) as follows:

1. His Honour erred in law in holding [para 27] that the lodging of a subsequent Application for an Exploration License under the Bougainville Mining Act 2015 (BMA 2015) renders a subsequent applicant for an exploration license over the same ground a person ‘directly’ affected by the proceeding for the purposes of Order 15 Rule 5(2) of the National Court Rules (NCR) and the jurisprudence on joinder.
   
2. His Honour erred in law [para 32] in failing to distinguish between claims in the Proceedings which ‘directly’ effect the rights and interests of CMEL and the indirect commercial effect that a grant of an Exploration License would have on any entity (including CMEL [para 33]) that might have a desire commercially to profit from the same ground.
   
3. His Honour erred in law in failing to apply the test in SC1126 PNG Deep Sea Fishing Ltd v Luke Critten (2010) that it is necessary to refer to the cause of action pleaded to determine whether the tests for joinder set out in that case are satisfied, when no plea was made by BCL against CMEL, and in turn CMEL had no cause of action against BCL.
   
4. His Honour erred in mixed law and fact in then concluding that CMEL was ‘directly’ affected by the Proceedings.
   
5. His Honour erred in law in referring [para 31] that SMLOLA and Philip Miriori – being persons with respect to whom allegations of fact are made but against whom no relief was sought or claimable – should be joined ‘giving them an opportunity to defend the allegations made against them’, contrary to the law set out in SC1126 of PNG Deep Sea Fishing Ltd v Luke Critten (2010) that such a joinder would be an abuse of process.
   
6. His Honour erred in mixed law and fact [para 25] in holding that whether the applicant (CMEL) or Special Mining Lease Osikayang Landowners Association Inc. (SMLOLA) is an Approved Landowner Organisation under the BMA 2015 is a legal issue which should be litigated by the parties at the substantive hearing, when there was no evidence before the court that either organisation was so approved and neither CMEL nor SMLOLA dispute the contention that they are not an Approved Landowner Organisation.
   
7. His Honour erred in law [para 29-31] in conflating the interests of SMLOLA and Mr Philip Miriori with the interests of CMEL.
   
8. His Honour erred in law in holding [para 34] that CMEL had primary rights conferred by s.96 of the BMA 2015 entitling CMEL to lodge an application for an EL over the land which required protection under s.155(4) of the Constitution when the lodgement or otherwise by CMEL of an application for an EL was not challenged in the Proceeding.
   
9. His Honour erred in law [para 34] in impliedly conflating the primary right to lodge an application for an EL conferred by s.96 of the BMA 2015 with some alleged primary right to be heard in the Proceedings commenced by the Plaintiff.
   
10. His Honour erred in law [para 34] in invoking s.155 (4) of the Constitution in that any primary right to be heard in the proceedings is given practical effect and governed by established laws including NCR O16 R5 (2), O16 R13 (6)(4) of the Constitution.
    
11. His Honour erred in law in mixed law and fact in holding [para 36] that the challenges or allegations in the Proceedings are ’essentially made against CMEL’, when CMEL has no decision-making power capable of judicial review and was not a participant in the decisions being challenged.
    
12. His Honour erred in law [para 40] in failing to hold that the [CMEL] application is a subsequent application that should only be hear after [BCL’s] extension application is determined and concluded and only if [BCL’s] extension application is refused in circumstances where it is clear law that:
    
    1. Pursuant to the BMA 2015 Section 101(3), BCL the holder of an EL that would otherwise lapse through effluxion of time remains the holder of an EL at all material times up to the determination of its application for extension.
       
    2. Pursuant to the BMA 2015 Section 97(3), no application for an EL over the same ground may be made while an EL is already in existence or for 30 days after the determination of any existing EL
       

22. BCL submits, the errors of law as set out in its proposed grounds show there is an arguable case which demonstrates that the trial judge was wrong in his decision of 22 August 2018.

23. The application for leave pertains to a matter involving the exercise of discretion by the primary Judge. The law on appeals against exercise of discretion is settled. The relevant principles are:

(1) An appellate court should be slow to interfere with the exercise of a discretionary power exercised by the lower court, unless (emphasis ours) the appellate court is satisfied that the lower court made one or more of the following errors in its decision:

(a) It acted upon a wrong principle, or
(b) It gave weight to extraneous or irrelevant matters or
(c) It failed to take into account relevant considerations or
(d) It made a mistake as to facts

(2) And where none of the errors as listed above are identified, an appellate court can still infer such an error, if the resulting judgment is unreasonable or plainly unjust.

24. The leading case authority establishing those principles is Curtain Bros (PNG) Ltd vs. UPNG (2005) SC788.

25. Based on the above principles it is incumbent on the applicant for leave to demonstrate that there is an arguable case that the exercise of discretion was wrong or that it was so unreasonable or plainly unjust.

26. So, the main issue here is whether BCL has demonstrated an arguable case that the exercise of discretion by the primary Judge was made in error or that it was unreasonable or that it was plainly unjust.

Joinder Application

27. The matter before the primary Judge was an application by CMEL to join the National Court Proceedings - OS (JR) 29 of 2018 as the seventh defendant.

28. The law in relation to a joinder application is settled. The leading authority is the Supreme Court case of PNG Deep Sea Fishing Ltd v Luke Critten (2010) SC1126. In dealing with an appeal against a refusal of joinder of parties, the Court in that case, after considering various authorities dealing with joinder applications, held the following to be the most important tests for joinder of parties:

(1) whether the applicant for joinder has sufficient interest in the proceeding; for which the applicant must show that it is a person directly affected by the proceeding, and

(2) whether the joinder is necessary; for which the applicant must show that his joinder will assist in the complete determination and adjudication of all matters in dispute in the proceeding.

29. The main contention by Ms. Nigs for BCL is that, the primary Judge was wrong because his Honour departed from the established principles as laid down by the PNG Deep Sea case (supra) and as such the exercise of discretion by the primary Judge is manifestly unreasonable in the circumstances of the case. Thus, on that basis leave must be granted as there is an arguable case.

30. We have read the reasons given by the primary Judge in his written judgment. We must say it is a well-reasoned judgement where the learned primary Judge carefully considered and deliberated on the facts and the law. With respect we disagree with the applicant’s submission. Contrary to what the applicant submits, we find, the learned primary Judge did not depart from the settled principles. In fact, his Honour, after considering the tests in the PNG Deep Sea case and views expressed by other authorities, including his own view in Summit Development Ltd v Byron Chan as Minister for Mining &Ors (2016) N6390, which followed the PNG Deep Sea case, and the facts in the case before him, found, the first respondent met the required tests and consequently his Honour granted the joinder application. This can be seen from his Honour’s reasons set out in the judgement starting on paragraph 25 to 43.

31. In deliberating on the matter the primary Judge took note of the basis of BCL’s objection to the joinder application by CMEL. His Honour noted that BCL opposed the application and argued that CMEL had no legal right under the provisions of the Bougainville Mining Act 2015. In fact, his Honour summarised the arguments by BCL in paragraphs 12 – 24 of his judgment. His Honour further noted that in so far as the substantive issues for review are concerned BCL contended that CMEL had no legal role whatsoever as regards the central issue in respect to the decision refusing its application for extension of the Exploration Licence, and therefore is unable to meaningfully contribute towards an effective determination of the issues in the proceeding. The other defendants in the proceeding also opposed the application. His Honour also reflected on their position. In the end the primary Judge found, amongst others, that CMEL comprised of landowners whose rights are connected to the land to which the Exploration Licence is concerned. Moreover, the primary Judge found that CMEL had also applied for an Exploration Licence concerning the same land area. It would appear these two findings were chief pillars that lead the primary Judge to exercise his discretion in favour of the application.

32. In our respectful opinion, given the evidence and the findings, there was sufficient basis on which the primary Judge is entitled to exercise his discretion in reaching a conclusion as he did.

33. We therefore find that BCL has not demonstrated that there is an arguable case where the exercise of discretion by the trial Judge was made in error or that it was unreasonable or that it was plainly unjust.

Other Recourse

34. Ms. Nigs for BCL argued that BCL does not have recourse in the Court below except to appeal. In other words, she argued, BCL cannot go to the same Court to be heard on the Court’s own decision against the grant of joinder to CMEL.

35. We find this argument is misconceived and misses the point envisaged by this test. This test is about whether, a party’s rights, (in this case, BCL’s rights) has been extinguished and therefore a refusal of leave would leave it without any recourse.

36. As the application for leave is against a decision granting a joinder of a party in the proceeding, substantive claim is yet to be tried. Obviously BCL still has recourse in the Court below. What BCL needs to do is, as submitted by Mr. Mana, expedite the matter to trial.

Exercise of Discretion

37. For reasons set out above in relation to whether there is an arguable case, we find the decision to join CMEL as the seventh defendant to the proceedings in the Court below was well within the discretion of the Court as the appellant has not demonstrated that the exercise of discretion was based on a wrong principle of law or fact or that it was arguably unreasonable or plain unjust.

Bearing on the Final Determination

38. No submission was made by BCL with respect to this test. On the other hand, CMEL submits that the decision sought to be appealed against does not have any bearing on the final determination of the issues between the parties. It will not affect the primary rights of the parties or prevent the determination of the issues.

39. We agree with CMEL’s submission as regards this test.

Substantial Injustice

40. Again BCL did not make any submissions with respect to this test.

41. CMEL submitted that no substantial injustice will be caused by allowing the decision to stand because BCL can still forcefully pursue its rights at trial.

42. We accept and agree with the submissions by CMEL. We are satisfied BCL is unlikely to suffer substantial injustice whilst pursuing its rights in the judicial review proceeding before the National Court.

Is there cause for trial process to be interrupted by an appeal?

43. No submission was made in respect to this test. We find no cause has been shown that warrants the trial process be interrupted by an appeal.

Conclusion

44. In conclusion it is instructive to emphasize the principle that an appellate court would only interfere with the exercise of discretion by a court of first instance in cases where there is glaring error of law or fact and that it is plainly unjust or unreasonable for the decision to be left undisturbed. In other words, the appellate court would not readily substitute its own views and conclusions to that of the primary Judge just because the appellate court takes a different view of the facts or is able to draw a different conclusion to the facts that is before the court of first instance: Government of Papua New Guinea and Davies v Barker [1997] PNGLR 386, Sir Julius Chan (supra), Ramu Nico Management (MCC) Ltd v Tarsie (2010) SC1075, Sakaraias Akap v Kenneth Korakali (2012) SC1179 and Nae Limited v Curtain Bros PNG Ltd (2015) SC1620.

45. In this case we are satisfied the primary Judge in the exercise of his discretion committed no glaring or identifiable error of law or fact in addressing the issues before him and reaching a decision as he did. In our humble opinion, the primary Judge correctly and properly considered the facts and applied the correct principles of law to the facts in arriving at his decision.

46. In the result, we dismiss the leave application with costs.

47. THOMPSON J: BACKGROUND: The Applicant (“BCL”) is seeking Leave to Appeal against the decision of 22 August 2018 to allow the joinder of the First Respondent (“CMEL”) as a Defendant in the original judicial review proceedings.

48. In the original judicial review proceedings, BCL is seeking Review of the 2^nd – 6^th Respondents (“the Respondents”) decisions made on or about 16 January 2018 to refuse BCL’s application for an extension of its existing Exploration Licence ELO1.

49. Under the Bougainville Mining Act 2015 (“the Act”) BCL had been granted an Exploration Licence ELO 1 on 8 September 2014, to expire on 7 September 2016. Under Section 101, if an application for an extension is submitted at least 60 days before the expiry date, then the EL is extended until the application is granted or refused. BCL submitted its application for an extension on 5 July 2016, and so its existing ELO1 was extended pursuant to Section 101, until the refusal of the application on 16 January 2018.

50. About 16 months after BCL’s application for an extension was made, CMEL made an application for an EL over the same area as ELO1, and submitted it on 16 November 2017, while BCL’s EL was still in existence.

51. On 16 January 2018, BCL’s Extension Application was refused by the Respondents. At the same time as making the decision, the Respondents stated that the 5^th Respondent had made a decision to impose an indefinite moratorium on all exploration and mining in the EL01 area.

52. On 25 January 2018 BCL issued the judicial review proceedings. The subject matter of the proceedings is the Respondents’ decisions of 16 January 2018.

53. The Statement in the judicial review proceedings sets out over 35 Grounds on which BCL alleges that the Respondents made errors in the decision–making process. None of those Grounds refer to CMEL. Essentially, BCL alleges that the Respondents took into account irrelevant considerations, failed to take into account relevant considerations, and made various errors of law including treating its application as one for a Mining Lease, when it was only an application for extension of an Exploration Licence which does not permit the operation of a mine.

54. In the Relief sought in the Statement, BCL seeks certiorari and prohibition against the Respondents’ decisions. BCL further seeks mandamus directing the Respondent to grant its Extension Application, and an injunction to restrain the Respondents from granting any licence or right over the area subject to EL01, to any other person.

55. Leave to proceed by way of judicial review was granted on 10 April 2018, and on 19 April 2018 CMEL filed an application for joinder, which was granted on 22 August 2018.

56. BCL initially applied for Leave to Appeal that decision, to a single judge pursuant to Section 10(1) of the Supreme Court Act. Following its refusal, BCL is making the same application now to this Court pursuant to Section 10(2) of the Act.

Application

57. The primary basis of CMEL’s joinder application and the National Court decision, was that CMEL was directly affected because it had applied for an EL over the same area. (See para 20 of CMEL’s written Submissions, and paras 11 and 40 of the judgment).

58. The reasons for the decision and BCL’s submissions in reply, are summarized as follows:

(a) - “CMEL was directly affected by the proceedings because it was qualified to apply for an EL” (see para 28 of the judgement)

“CMEL exercised a right under Section 96 of the Act to apply for an EL, and this was a primary right requiring protection under the Constitution to enable it to defend the allegations made against it” (see para 34).

- Section 96 did not confer a primary right to apply an EL, it merely set out the qualifications to hold an EL. Whether or not CMEL was qualified was not alleged or challenged or in issue in the proceedings, and so CMEL did not require the protection of Section 155 to enable it to defend allegations made against it, and was not directly affected by the proceedings.

(b) - “BCL’s Grounds challenged the Respondents’ decisions to allow SMLOLA and Philip Miriori to be heard and to accept their views” (see para 29).

- CMEL was not either SMLOLA or Philip Miriori, so this challenge was not relevant to CMEL, and did not affect it.

(c) - “CMEL could not defend the claims and allegations against it, unless it was joined” (see para 31).

- The Statement and Grounds make no claims or allegations against CMEL, so there is nothing for it to defend.

(d) - “The issues raised in the Grounds affected CMEL directly because of its competing application over the land” (see para 31 of the judgement).

- The Grounds do not make any claims or allegations against CMEL, so the Grounds do not raise any issues against CMEL and do not directly affect it. Further, CMEL did not have a competing application over the land, because the Act does not allow competing applications to be made. Applications can only be made after the existing EL has expired.

(e) - “The relief sought in the Statement challenges CMEL’s right to hold an EL and so directly affects CMEL’s interests.” (see para 32)

- The Grounds do not challenge CMEL’s right to hold an EL. The Relief includes an order that the Respondents not grant an interest in ELO1 to anyone other than BCL. This may indirectly affect CMEL, but it is not a challenge to CMEL’s qualification or right to hold an EL. The Respondents were not determining an application by CMEL for an EL or its right to hold an EL.

(f) - Under section 96, any qualified person can apply for an EL “given that there is no existing EL over the land. The Plaintiff’s EL01 having expired, it had no existing EL over the land” (see para 40).

- There was an existing EL over the land, and the Plaintiff’s EL01 had not expired. Pursuant to Section 101 of the Act, it had been extended to 16 January 2018, and was therefore still an existing and current EL when CMEL’s application was lodged. Pursuant to Section 97 of the Act, no other qualified person could apply until after the expiry or the determination of BCL’s extension application.

Law

59. CMEL referred in its submissions to BCL as “claiming” to be the holder of an EL and “claiming” to have submitted an application for an extension. CMEL did not give any reason for this, and did not produce any evidence to rebut the documentary evidence that BCL was the holder of ELO1 and that the Respondents received and dealt with BCL’s application as a valid application for an Extension.

60. Nothing in the Act permits an application for an EL to be made before the existing EL expires. Under Section 103, the holder of an EL has the exclusive right of occupancy for the purpose of exploration of the area, and there is no provision enabling another person to apply for an EL over the same area. Under Section 97, where an area was previously the subject of an EL, then an application for an EL over the same area must not be accepted if submitted within 30 days of expiry of the previous EL. By necessary implication, such an application can only be accepted if submitted more than 30 days after the date of expiry of the previous EL.

61. The principles governing an Application for Leave to Appeal are set out in Matiabe Oberia v Police and the State (2005) SC 801, as follows:

(a) Is there an arguable or prima facie case or has it been demonstrated that the trial judge was wrong.

(b) Does the Applicant have other recourse in the Court below?

(c) Was the ruling within the discretion of the Court, and has it been shown that its exercise was manifestly unreasonable, exercised on a wrong principle, or a mistake of fact?

(d) Does the decision have any bearing on the final determination of the issues, and will it affect the primary rights of the parties or prevent the determination of the issues?

(e) Will substantial injustice be caused by allowing the decision to stand?

(f) Has cause been shown that trial process should be interrupted by an appeal?

62. The Court in Oberia’s case summarized the position as stating that:
“The onus is on the applicant to show a prima facie case that the decision of the trial judge was wrong and that substantial injustice will be done by leaving the erroneous decision unrevised.”

63. BCL has no other recourse in the Court below to change the joinder or the effect of the joinder.

64. The joinder would affect the determination of the issues in the way prescribed by the Act. Under the Act, a decision on an application for an extension is to be considered by the Respondents in strict compliance with the requirements of Section 109, without considering any “competing” applications, because there cannot be any applications until after the determination date. By allowing a third party to join in the proceedings, particularly on the basis that they have a “competing application”, the issue of the decision to refuse an extension would be determined on matters outside the requirements for a decision prescribed by Section 109 of the Act. By allowing CMEL to join, BCL would be effectively deprived of its statutory right to have its extension application determined without reference to any subsequent or “competing” application.

64. CMEL’s joinder would not assist in an effectual determination of the issues. As it was not one of the decision–makers, CMEL cannot give evidence relating to the decision–maker’s alleged failures to comply with the prescribed procedures. As that is the only issue in dispute in the proceedings, there is nothing which CMEL could contribute to the proceedings. No allegations are made against it, and there is nothing to defend.

65. At its highest, even if its application for an EL was valid, CMEL was a mere applicant for an EL. It was not an approved land owner group or an occupier of the area, and had no right or title or legal or equitable interest in either the area the subject of EL01, or in BCL’s Applications for an Extension of EL01. CMEL had no right or legitimate expectation capable of protection in judicial review proceedings (see Helifix Group of Companies Ltd v. PNG Land Board & Others (2012) PGSC10.

66. As the Court said in the Administration of the Territory of Papua New Guinea v. Edward Iorive & Others (1971) PGSC61;

“One can imagine many people or bodies which would have a commercial or administrative interest in the settlement or conclusion of a land dispute; the Police Commissioner because of law and order problems, the Electricity Commission because it might wish to run a power line, the Education Department because it might intend to seek permission to build a school , adjoining owners who wish for quiet... But surely it would be intolerable for the Court to allow an intrusion of such parties into a dispute between two parties only to ownership of a parcel of land ; under colour, be it noted , of a rule clearly intended merely to prevent procedural failures...”.

67. The Court asked the question if it could be said that the applicant ought to have been joined in the appeal, or that its presence may be necessary in order to enable the court effectually and completely to adjudicate and settle all the questions in dispute. The Court went on to answer “no” because while the applicant was interested in the outcome of the dispute, it had no interest in the subject matter of the dispute.

68. In Peter O’Neill v. Nerrie Eliakim & Others (2016) PGSC 57, the Respondents said they had an interest because their evidence would enable the Court to effectually determine the issues in dispute. The Court rejected this, and said that the Respondents could be called as witnesses to give any such evidence, and this did not require them to be joined as parties.

69. If CMEL has any evidence which might be relevant to the issues in dispute, it can be called as a witness to give that evidence. It is not necessary for CMEL to be joined, just to give evidence.

70. An application for an extension by an existing EL holder, can only be determined by the Respondents in accordance with the requirements of Section 109 of the Act. Those requirements do not include other applications, because there cannot be any competing applications. Anyone who has an interest in exploration in the same area, must wait until after the existing EL has been determined Accordingly, at the time when the Respondents heard and determined BCL’s application, no other application could be taken into account. It follows that at the date of determination of BCL’s application for an extension, CMEL was not a competing applicant, and had no interest which was directly affected by the Respondents’ decision.

71. The Act provides that the Respondents cannot accept an application for an EL, until after the existing EL has expired. CMEL applied before the existing EL expired, and now says that this means they will be directly affected by the decision. However, if an application cannot be accepted before expiry, then there is no application to be affected.

72. For this reason, the fact that an application for an EL over the same area cannot be made while an EL already exists or until 30 days after expiry, is not “inconsequential” as submitted by CMEL. On the contrary, if CMEL did not have a competing application, then following its own arguments, it has no direct interest in the decisions the subjects of the review or in the legal proceedings.

73. This is a sufficiently important point to cause an injustice if the joinder is not allowed to be reviewed.

Conclusion

74. It has been demonstrated that the learned primary judge exercised his discretion on mistakes of fact.

75. BCL has shown a good arguable case that it would cause a substantial injustice to BCL to leave the decision to be unreviewed, thereby depriving it of its right under the Act to have its extension application determined without reference to any other alleged application. This is sufficiently important to warrant interrupting the judicial review process.

76. BCL has shown cause that the matter should not proceed to a hearing, until the issue is determined.

77. For these reasons, I would grant leave to appeal against the decision made on 22 August 2018.

Orders

78. The following orders are made:

1. The application for leave to appeal is refused.

2. The applicant (Bougainville Copper Limited) shall pay the respondents’ costs in the proceedings to be taxed if not agreed.

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Dentons PNG: Lawyer for the Applicant
Corrs Chambers Westgarth Lawyers: Lawyer for the First Respondent
Jema Lawyers: Lawyer for the Seventh Respondent