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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCM NO 12 OF 2020
BARRICK (NIUGINI) LIMITED
Appellant
V
STANLEY NEKITEL, IN HIS CAPACITY AS
REGISTRAR OF TENEMENTS
First Respondent
JERRY GARRY, CHAIRMAN, REPRESENTING ALL OTHER MEMBERS OF THE MINING ADVISORY COUNCIL
Second Respondent
MINERAL RESOURCES AUTHORITY
Third Respondent
HONOURABLE JOHNSON TUKE MP, MINISTER FOR MINING
Fourth Respondent
HONOURABLE JAMES MARAPE MP, CHAIRMAN, REPRESENTING ALL OTHER MEMBERS OF THE NATIONAL EXECUTIVE COUNCIL
Fifth Respondent
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent
MINERAL RESOURCES ENGA LIMITED
Seventh Respondent
HONOURABLE DAVIS STEVEN MP, ATTORNEY-GENERAL
AND NOMINAL DEFENDANT ON BEHALF OF THE HEAD OF STATE
Eighth Respondent
Waigani: Kirriwom J, Batari J, Cannings J
2020: 30th September, 1st October
JUDICIAL REVIEW – Order 16, Rule 3(2)(a) statement – application for amendment of statement – appeal against refusal of application.
The appellant was the plaintiff in judicial review proceedings in the National Court. It applied for leave to amend its statement under Order 16, Rule 3(2)(a) of the National Court Rules, after the grant of leave and before trial. It proposed to add a ground of judicial review, following receipt by it of a copy of a decision of the National Executive Council (which was one of the decisions the subject of the application for judicial review) which was at variance with the decision of the Governor-General published in the National Gazette (another decision the subject of the application for judicial review), which had apparently been made on the basis of the decision of the National Executive Council. Leave was refused on the ground that an amendment was unnecessary as any issues arising from differences between the decision of the National Executive Council and the decision of the Governor-General were accommodated by ss 89 and 90 of the Interpretation Act, which allow for correction of words published in the Gazette where they do not correspond exactly with the words of the instrument published. The appellant was granted leave (leave was necessary as the decision of the National Court was interlocutory in nature) to appeal against the decision of the National Court to refuse the application to amend the statement. The respondents to the appeal argued as a preliminary issue that the appeal was an abuse of process as the National Court proceedings had, after the granting of leave for the appeal, been dismissed as an abuse of process (due to the appellant commencing a multiplicity of proceedings in different jurisdictions) and as being incompetent; therefore the appeal served no purpose as there were no National Court proceedings on foot.
Held:
(1) The decision of the National Court to dismiss the judicial review was the subject of separate appeal proceedings, which had not yet been heard, and it involved no abuse of process to allow the present appeal, which concerned a separate and confined issue, to be heard and determined.
(2) A decision of the National Court whether to grant leave to amend an Order 16, Rule 3(2)(a) statement should be made after application of the criteria to be taken into account in deciding whether to grant leave to amend any document in any civil proceedings, including whether it is in the interests of justice and whether the amendment would be efficacious.
(3) Here, those criteria were not taken into account by the primary Judge. If they had been taken into account, leave would have been granted as the proposed amendment was clearly raising a serious issue about whether the decision of the Governor-General was in accordance with the advice of the National Executive Council, which issue could not obviously be resolved by application of ss 89 and 90 of the Interpretation Act.
(4) The National Court erred in law in refusing leave. The appeal was therefore allowed, and leave was granted to make the amendment to the Order 16, Rule 3(2)(a) statement.
Cases Cited:
Papua New Guinea Cases
The following cases are cited in the judgment:
Barrick (Niugini) Ltd v Nekitel (2020) N8409
Kewa v Kombo (2004) N2688
Kila Wari v Gabriel Ramoi [1986] PNGLR 112
Tambe v Tarsen (2004) N2714
The Papua Club Inc v Nusaum Holdings Ltd (2002) N2273
Overseas Cases
R (Middlebrook Mushrooms Ltd) v Agricultural Wages Board [2004] EWHC 1447 (Admin)
APPEAL
This was an appeal against a decision of the National Court, refusing an application for leave to amend an Order 16, Rule 3(2)(a) statement in judicial review proceedings.
Counsel
M M Varitimos, D Wood, L Evore & A Edo, for the Appellant
N Saroa, for the First, Third and Fourth Respondents
T Tanuvasa, for the Second, Sixth and Eighth Respondents
L P Kandi, for the Fifth Respondent
G Geroro, for the Seventh Respondent
1st October, 2020
1. BY THE COURT: This is an appeal against the refusal by the National Court to allow a pre-trial amendment of an Order 16, Rule 3(2)(a) statement in judicial review proceedings.
2. Barrick (Niugini) Ltd, the appellant, was the plaintiff in proceedings against the Registrar of Tenements and seven other defendants in the National Court, in OS (JR) No 5 of 2020. It was applying for judicial review of decisions of the National Executive Council and the Governor-General, acting on advice, to not renew the special mining lease under the Mining Act 1992, that had for 30 years been in operation regarding the Porgera Gold Mine in Enga Province.
3. It applied for leave to amend its statement under Order 16, Rule 3(2)(a) of the National Court Rules, after the grant of leave on 5 June 2020 (Barrick (Niugini) Ltd v Nekitel (2020) N8409) and before trial. It wanted to add a new ground of judicial review, following receipt by it of a copy of a decision of the National Executive Council (which was one of the decisions the subject of the application for judicial review) which was at variance with the decision of the Governor-General published in the National Gazette (another decision the subject of the application for judicial review), which had apparently been made on the basis of the decision of the National Executive Council.
4. The proposed amendment was to add another ground of review –in paragraph 6.13 – to the Order 16, Rule 3(2)(a) statement, in the following terms:
Further or alternatively, the purported decision of the Head of State purportedly acting on advice was ultra vires because such decision as published in the Gazettal Notice dated 27 April 2020:
(a) failed to conform with the decision of the NEC in that the NEC decision did not include any reference to termination of the MDC;
(b) failed to conform with the decision of the NEC, in that the NEC decision approved and decided that the State enter into a transitional Mine Management Arrangement with the applicant for a specific period (to be negotiated);
(c) failed to conform with the decision of the NEC, in that the NEC decision was not for the refusal of the extension (or termination of the MDC) to take effect on and from 24 April 2020.
5. Leave was refused. The primary Judge ruled that the proposed amendment was unnecessary as any issues arising from differences between the decision of the National Executive Council and the decision of the Governor-General were accommodated by ss 89 and 90 of the Interpretation Act, which allow for correction of words published in the Gazette where they do not correspond exactly with the words of the instrument published.
6. The appellant was on 5 August 2020 granted leave (leave was necessary as the decision of the National Court was interlocutory in nature) to appeal against the decision of the National Court to refuse the application to amend the statement.
7. The appellant argues that the primary Judge erred in law by not applying the criteria that govern applications to amend any document in civil proceedings. It argues that if those criteria were applied, a different result would have ensued. Leave would have been granted as it would have been clear that the provisions of ss 89 and 90 of the Interpretation Act did not resolve the issues arising from the deviation of the Governor-General’s decision from the National Executive Council decision on which it was apparently based.
8. The respondents argue as a preliminary issue that the appeal is an abuse of process as the National Court proceedings have, after the granting of leave for the appeal, been dismissed. The proceedings were dismissed on 1 September 2020 as an abuse of process (due to the appellant commencing a multiplicity of proceedings in different jurisdictions) and as being incompetent (due to the appellant not having the consent of its joint venture partner, Mineral Resources Enga Ltd, the seventh respondent, for commencement of the litigation). The respondents argue that the appeal has no utility as there are no National Court proceedings on foot and the appellant is seeking relief that is no longer available to it.
9. The following issues arise:
1 IS THIS APPEAL AN ABUSE OF PROCESS?
10. We agree with the respondents that it appears irregular to be hearing an appeal against an interlocutory decision of the National Court in proceedings that no longer are on foot, due to dismissal of the proceedings by the same Judge whose decision is the subject of the appeal. We also agree with the respondents that it might have been a better use of judicial time to hear the appeal, which has recently been filed, as SCM No 18 of 2020, against the dismissal of the judicial review proceedings, and determine that appeal, before hearing the present appeal. If the appeal against the dismissal of the judicial review proceedings fails, the present appeal may well turn out to be a fruitless exercise.
11. However, we are not satisfied that the Court’s time is being wasted or that this appeal is unnecessary or should be adjourned pending the outcome of the appeal against the dismissal of the judicial review proceedings. The dismissal, and hence the appeal against it, is a recent development. It occurred on 1 September 2020, almost four weeks after the grant of leave, on 5 August 2020, for the present appeal. The appellant has acted promptly in filing its appeal against the dismissal.
12. We do not think the appellant is acting for any improper motive in prosecuting the present appeal in the way that it has. The decision of the National Court to dismiss the judicial review is the subject of separate appeal proceedings, which havenot yet been heard. It involves no abuse of process to allow the present appeal, which concerns a separate and confined issue, to be heard and determined.
13. We uphold the submissions of the appellant that the primary Judge ought to have applied the conventional criteria that are taken into account in any civil proceedings where a party wishes to amend a document. These derive from the leading cases including The Papua Club Inc v Nusaum Holdings Ltd (2002) N2273, Kewa v Kombo (2004) N2688 and Tambe v Tarsen (2004) N2714. They are:
14. Those criteria were put to his Honour by the appellant’s counsel, Mr Wood, at the hearing on 13 July 2020. His Honour, while not expressly referring to them in his extempore ruling given immediately after submissions from both sides, alluded to them.
15. His Honour was clearly cognisant of the liberal approach that was called for. However, he declined to take such an approach as his Honour considered that the problems perceived by the appellant were catered for in the Interpretation Act.
16. His Honour stated:
Having said that, I come to the argument before me or the application before me, it is by a notice of motion filed by the plaintiff, document number 145, seeking to amend the plaintiff’s statement pursuant to order 16 rule 3(2)(a) of the National Court Rules.
Generally, the court has power to allow amendments at any stage of the proceedings. I learnt that hard lesson as counsel appearing before Woods J in George Komboro v Motor Vehicle Insurance Trust where at the conclusion of the hearing I thought the defendant had a good case to argue for dismissal and then the question of amendment came in and his Honour ruled that amendment is available at any stage until judgment time and a judgment is delivered. That is the general position at law. Amendments are there to clarify issues, amendments are there to ensure all issues that need to be raised are raised because we also have the principle of res judicata and issue estoppel and all those apply.
Cognizant of that position at law, the courts have been liberal in allowing amendments at any stage of the proceedings but there are those other requirements that need to be met such as raising a new ground after leave has been granted, time bars and whether the amendment is for that intended purpose of clarifying issues and crystallizing what needs to be dealt with by the court.
In this case, the motion is aimed at amending the statement under order 16 and a draft of it is annexed to the affidavit filed by Lubia Evore, document number 146 on the court file. And as I was observing during Mr Wood’s submission for the plaintiff, the earlier part of the amendments sought are deleting certain matters already pleaded and that obviously is for clarity and there is no issue on that.
The main issue is around what is proposed to be added by way of a grant under item or paragraph 6.1(3). And I think Mr Kandi was trying get – or take me through the earlier part of these pleadings to say the amendment sought to be introduced flows on from what is pleaded earlier. And I think I directed counsel back to the particular words or paragraphs sought to be introduced by this amendment in proposed 6.1(3).
What it is, is straightforward. The plaintiff was not aware of the precise terms of the NEC decision and comparing that with the gazettal notice that went out. Having placed with relevant copies of those two documents, it has now become obvious that the wording in the gazettal is not exactly or to use the applicant/plaintiff’s own word, “fails to conform” with the NEC decision, which has been given per the affidavit of Grace So’on, annexure A to that affidavit. That is document number 108 on the court file.
And the proposed amendment in details talks about,“Further or alternatively, the purported decision of the Head of State, purportedly acting on advice was ultra vires because such decision as published in the gazettal notice dated 27 April 2020 failed to confirm with the decision of the NEC in that NEC decision did not include any reference to termination of the MDC. (b) Failed to conform with the decision of the NEC in that NEC decision approved and decided that the State enter into transitional mine agreement or management arrangement with the applicant for a specific period to be negotiated. (c) Failed to conform with the decision of the NEC in that NEC decision was not for refusal of the extension or termination of the MDC to take effect on and from 24 April 2020.”
So clearly, the argument on ultra vires initially when Mr Kandi for the fifth defendant was taking issue, I almost was persuaded that there seemed to be no clarity as to ultra vires what? But I think Mr Wood picked that up and addressed that sufficiently and I am persuaded, the argument here is that the Head of State’s decision per the gazettal publication goes outside to the extent that it departs and it fails to conform with the decision of the NEC. Head of State can only act with and in accordance with the advice of NEC. So any departure from the NEC decision would be acting outside such advice.
So do we have a problem? Is there an answer to such a situation as this such that the amendment, the aim of which is to raise this as an ultra vires argument? And that is where I turn to section 89(4) and that talks about any issue as to the date of effect of gazettal notice is the subheading and then leaving the rest out, go to paragraph(4). It says, “The act, matter or thing is not invalid and shall not be challenged or called into question by reason only of the fact that the words published in the gazette do not correspond exactly with the words of the instrument.” Then section 90 provides for subsection (2), “Where it appears to the person or authority who signed the instrument and instrument referred to in section 89(2)(b) that the words published in the gazette do not correspond exactly with the words of the instrument, the person or authority may direct the government printer to, (a) publish a corrigendum; and (b) to republish the instrument in a later issue of the same gazette. And then subsection (3) reads, “Where an instrument is republished under subsection (2), the previous purported publication of the instrument shall be disregarded for all purposes.”
So it seems the issue, the ground is proposing to introduce for the purpose of the judicial review proceedings before me is to highlight the lack of conformity between NEC decision and the gazettal.
And that as I say is the provision that is taken care of when issue that is already taken care of by parliament through the words of section 89(4); In other words nothing turns on any departure in the gazettal from the actual NEC decision. Those are matters that can be corrected under section 90 if need be. So this issue, it would - if amendment is allowed it would make it an issue for the judicial review hearing to deal with when the issue is not an issue at all if we have regard to section 89(4). So nothing should be turning on that departure ultra vires or not. And the wording in section 4 is clear and I need not go any further except to say, adding or allowing the amendment to highlight this lack of conformity will be of no consequence because sub-section (4) of section 89 takes care of the situation.
I am not at this point going to specifically make mention to all the others but should I proceed to publish a judgment, I might cover everything. But quickly making mention, the argument is around timing. Timing, really, if the defendants disclosed the decision and its reasons much earlier and prior to the issuance of these proceedings, the time bar argument would not have arisen. In any event Mr Wood ably took me through the time period within which the leave was granted and then the actual NEC decision was disclosed and the timing for the filing of the application. So that is well within time and the 21 days argument does not hold water in the light of that.
The plaintiff would have been in no position whatsoever to know anything about this lack of conformity until the decision was given and time period in my view should run from the date when the plaintiff became aware of the decision, the subject of the review application. I still am not too sure whether I am persuaded I will go through the detailed consideration of the case law on amendment. The Supreme Court judgment that was referred to by Mr Wood in his submissions of Koitachi Limited v Walter Schnaubelt [2007] SC870 seemed to make in passing observation that amendment is available and then the relevant rule argued by both sides seemed also to permit the court to amend. I have expressed a view, I also tried to have a look at that up in the PNG In Law, but I am not able to come to it but I have taken the position that there is no specific equivalent of order 8 rule 50 for proceedings commenced by OS because there is lack of provision, it does not necessarily follow that we should adopt and apply a process that is available for proceedings commenced by writ of summonses.
All of this might become useless when we go down the path of IECMS; Electronic Case Management System. All the forms are standardised and no serious distinction between OS and WS will exist under that system. But for now, there are those differences. Writ of summonses are for complicated long drawn out matters. Pleadings make that easier. But I think we have been using the word “pleadings” for election petitions, we have been talking about pleadings in notice of appeals to the Supreme Court, application for leave to appeal, so the terminology “pleadings” has been used quite broadly and widely to allow for statements or documentation that forms the foundation for someone coming to court.
In that context there are also rules that say that the rules are only a means to an end and they are not an end in themselves. So the court should be free to allow amendments, provided the issue of prejudice not attending the other side and that totally strange and new grounds brought into a proceeding, all amendments should be permitted. So I will have to tidy up all of those. But unfortunately for the applicant in this case, the answer and the provisions in the section 89(4) of the Interpretation Act seem to sort the problem out for all of us and the answer is then that the amendment is not necessary. The problem situation is already taken care of by that provision hence the decision not to allow the amendment.
17. Sections 89 and 90 of the Interpretation Act, which his Honour relied on in forming the view that the lack of conformity between the NEC decision and the Governor-General’s decision was of no consequence, are in the following terms:
89. Date of effect of gazette notices.
(1) In this section—
"gazette" includes any official publication of the National Government, whether or not it is described as a gazette;
"words" includes figures and symbols.
(2) Subject to Subsection (3) and to Section 90(2), where—
(a) a statutory provision—
(i) requires or permits a person or authority to do or suffer any act, matter or thing by instrument in a gazette; or
(ii) otherwise indicates that the doing or suffering of an act, matter or thing by a person or authority is dependent on publication of a notice in a gazette; and
(b) the person or authority signs an instrument purporting to do or suffer the act, matter or thing; and
(c) there later appears in the gazette a form of words that appear to reproduce the instrument,
the act, matter or thing shall be deemed to have been done or suffered on the date of publication of the gazette containing those words, in accordance with the terms of the instrument.
(3) Where the instrument indicates that it is to come into operation at some time after publication in the gazette, the act, matter or thing shall be deemed to be done at that time.
(4) The act, matter or thing is not invalid and shall not be challenged or called into question by reason only of the fact that the words published in the gazette do not correspond exactly with the words of the instrument.
90. Correction of gazette notices.
(1) In this section—
"gazette" includes any official publication of the National Government, whether or not it is described as a gazette;
"words" includes figures and symbols.
(2) Where it appears to the person or authority who signed an instrument referred to in Section 89(2)(b) that the words published in the gazette do not correspond exactly with the words of the instrument, the person or authority may direct the Government Printer—
(a) to publish a corrigendum; or
(b) to republish the instrument,
in a later issue of the same gazette.
(3) Where an instrument is republished under Subsection (2), the previous purported publication of that instrument shall be disregarded for all purposes.
18. We consider with respect that his Honour erred by concluding that all problems and issues created by the lack of conformity of the Governor-General’s decision with the NEC decision were resolved by application of those provisions. In our view, those issues were not so resolved. His Honour ought to have applied the conventional criteria, and erred in law by not doing so.
3 WAS THE ERROR OF LAW OF ANY CONSEQUENCE?
19. We are of the view that if the conventional criteria had been applied, it would have been determined that:
20. We have formed that view after undertaking a simple compare-and-contrast exercise on the NEC decision and the Governor-General decision.
21. The NEC decision states:
Decision No: 82/2020
Subject: MINING ADVISORY COUNCIL RECOMMENDATIONS ON THE PORGERA GOLD MINE PROJECT SML 1(P) EXTENSION APPLICATION
On 11th March 2020 Council:
22. The decision of his Excellency the Governor-General, published in the National Gazette No G229 on 27 April 2020, stated:
REFUSAL OF SPECIAL MINING LEASE (SML) 1(P) EXTENSIONAPPLICATION
I, GRAND CHIEF SIR BOB DADAE, GCL, G.C.M.G, K.St J, Governor-General, by virtue of the powers conferred by Section 36 of the Mining Act 1992, and all other powers me enabling, acting with and in accordance with the advice of the National Executive Council, after considering the recommendation of the Mining Advisory Council under Section 110(4)(b) of the Act hereby-
(a) refuse the Extension Application for the Porgera Special Mining Lease 1 (P) as described in the schedule.
_____________
SCHEDULE
| Number | Application Type | Applicants |
| SML 1(P) | Special Mining Lease Extension Application | Barrick Niugini Limited and Mineral Resources Enga Limited; and |
(b) terminate the Mining Development Contract enter into between the Independent State of Papua New Guinea and Barrick Niugini Limited,
With effect on and from 24th April, 2020.
Dated this Monday, 27thday of April 2020.
Sir BOB DADAE
Governor-General
23. It is clearly the case that the Governor-General’s decision fails to conform with the NEC decision in the three respects referred to in the proposed new ground 6.13 of the Order 16, Rule 3(2)(a) statement, in that:
24. It is clearly arguable, based on the lack of conformity of the Governor-General’s decision with the NEC decision, that the Governor-General’s decision was not made in accordance with the advice of the NEC and that it was made ultra vires. This may well give rise to constitutional issues, in the light of s 86 of the Constitution, which states:
(1) The privileges, powers, functions, duties and responsibilities of the Head of State are as prescribed by or under Constitutional Laws and Acts of the Parliament.
(2) Except as provided by Section 96(2) (terms and conditions of employment), in the exercise and performance of his privileges, powers, functions, duties and responsibilities the Head of State shall act only with, and in accordance with, the advice of the National Executive Council, or of some other body or authority prescribed by a Constitutional Law or an Act of the Parliament for a particular purpose as the body or authority in accordance with whose advice the Head of State is obliged, in a particular case, to act.
(3) Any instrument made by or in the name of the Head of State shall recite that it is made with, and in accordance with, the advice of the National Executive Council or of any other body or authority in accordance with whose advice the Head of State is obliged, in the particular case, to act, but failure to comply with this subsection does not affect the validity of an instrument.
(4) The question, what (if any) advice was given to the Head of State, or by whom, is non-justiciable.
25. It might well be, as suggested by the respondents, that the question of what advice the Governor-General was acting on when making the decision published in the National Gazette, is non-justiciable, and that the proposed paragraph 6.13 will get the appellant nowhere in its challenge to the Governor-General’s decision. However, resolution of such a significant question and its constitutional ramifications, especially in light of the decision of the Supreme Court in Kila Wari v Gabriel Ramoi [1986] PNGLR 112, could not properly take place in the course of a decision on an application to amend an Order 16, Rule 3(2)(a) statement.
26. We consider with respect that the learned primary Judge did not appreciate the significance of the proposed new ground 6.13, and that his Honour’s failure to apply the conventional criteria has prevented the appellant from raising a very significant issue that should be ventilated at the trial of the judicial review, if and when it proceeds.
CONCLUSION
27. We consider that the learned primary judge erred in law in refusing the application to amend the Order 16, Rule 3(2)(a) statement. We will allow the appeal and quash the order of the National Court. We are authorised by s 16 of the Supreme Court Act Chapter No 37 in hearing an appeal to, amongst other things, reverse or modify the judgment of the National Court and give such judgment as ought to have been given in the first instance. We will grant the appellant leave to amend the Order 16, Rule 3(2)(a) statement. Costs will follow the event.
ORDER
(1) The appeal is allowed.
(2) The order of the National Court made on 13 July 2020 in proceeding OS (JR) No 5 of 2020 refusing to allow an amendment to the Order 16 statement to include the addition of proposed paragraph 6.13 (as contained in annexure LE5 to Lubia Evore’s affidavit filed 30 June 2020) is quashed.
(3) The appellant is granted leave to amend its Order 16 statement to include the addition of proposed paragraph 6.13 (as contained in annexure LE5 to Lubia Evore’s affidavit filed 30 June 2020) and file a further amended Order 16 statement within five days after this order.
(4) Subject to any other orders for costs, the respondents shall pay the appellant’s costs of the appeal on a party-party basis, which shall, if not agreed, be taxed.
Judgment accordingly.
__________________________________________________________________
Ashurst Lawyers: Lawyers for the Appellant
Nelson Lawyers: Lawyers for the First, Third & Fourth Respondents
Solicitor-General: Lawyer for the Second, Sixth & Eight Respondents
MS Wagambie Lawyers: Lawyers for the Fifth Respondent
Geroro Lawyers: Lawyers for the Seventh Respondent
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