Barrick (Niugini) Ltd v Nekitel [2020] PGSC 99; SC2010 (6 October 2020)

SC2010

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 13 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: 2^nd & 6^th October

JUDICIAL REVIEW –application for discovery of documents, National Court Rules, Order 16, Rules 13(5)(4), 13(6)(4)(j)– appeal against refusal of application.

The appellant was the plaintiff in judicial review proceedings in the National Court. It was applying for review of decisions made under the Mining Act 1992 to refuse its application for extension of a special mining lease. It applied for discovery of documents under Order 16, Rules13(5)(4) and 13(6)(4)(j) of the National Court Rules, after the grant of leave for judicial review and before trial. It sought various documents required to be produced or referred to for purposes of decisions under the Mining Act in respect of which it was applying for judicial review or that were referred to in affidavits prepared by the respondents for opposing the relief sought by the appellant. The appellant’s application for discovery was argued before the same judge who had granted leave for judicial review. His Honour refused the discovery application for three main reasons: (1) discovery of many documents would offend against the prohibition in s 86(4) of the Constitution against admitting into evidence in any court proceedings the documents which constitute advice to the Head of State (a decision of the Head of State being one of the decisions under review); (2) discovery of many documents would offend against the confidential status conferred by s 163 of the Mining Act on all communication to and from the various persons and authorities involved in the decision-making process under the Mining Act; (3) the appellant had failed to make out a case of any part of the statutory process under the Mining Act being breached, therefore discovery served no purpose. 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 for discovery. The appellant argued that the primary Judge erred in law as none of the three primary reasons was a valid reason for refusal. The respondents argued that the primary Judge did not err in law and that the appellant was simply on a fishing expedition and failed to establish any connection between the documents sought and the grounds of review underlying its application for judicial review, which had in any event already been dismissed.

Held:

(1) Section 86(4) of the Constitution makes the question of what advice was given to the Head of State (Governor-General) non-justiciable but does not contain a constitutional prohibition of production, by order of a court, of documents for use by a party in judicial review proceedings. The question of whether such documents ought to be ordered to be disclosed is a different question to those of what use, if any, could be made of such documents in the judicial review, whether the documents would be admissible or whether any arguments of a party wanting to make use of them would succeed, and a determination of those questions could only properly occur at or in close connection with the trial of the application for judicial review.

(2) Section 163 of the Mining Act makes it unlawful to disclose certain “information” without the prior written approval of the person who provided the information except where amongst other things disclosure is authorized by law. The documents sought by the appellant in its application for discovery did not fall within the category of “information” caught by s 163, but if they did, their disclosure to the appellant could be authorized by the Court through orders for discovery, thereby rendering the disclosure lawful under s 163(1)(a).

(3) No onus rested on a judicial review applicant to make out a case for breach of any law before being granted discovery of documents, as the obligation to show a breach of law arises at the trial of the judicial review; and the application for discovery should be determined by the normal criteria of whether the documents sought to be discovered are necessary and relevant to the issues of dispute at the trial.

(4) The National Court erred in law in deciding that s 86(4) of the Constitution prohibited discovery and that s 163 of the Mining Act protected disclosure of all documents sought by the appellant and that the appellant had to prove its case before being granted discovery. The appeal was allowed, and the order of the National Court was quashed.

(5) The Supreme Court decided under s 16 of the Supreme Court Act to exercise the powers of the National Court and, having considered the submissions of the respondents about the alleged fishing expedition of the appellant and the irrelevance of the documents sought, concluded that most documents sought were directly relevant to the issues likely to arise if and when the trial proceeded and that it was in the interests of justice to order discovery. An order for discovery was made accordingly. Costs followed the event.

Cases Cited

The following cases are cited in the judgment:

Barrick (Niugini) Ltd v Nekitel (2020) N8409
Barrick (Niugini) Ltd v Nekitel (2020) N8429
Credit Corporation (PNG) Ltd v Gerald Jee [1988-89] PNGLR 11
Kila Wari v Gabriel Ramoi [1986] PNGLR 112

APPEAL

This was an appeal against a decision of the National Court, refusing an application for discovery of documents in judicial review proceedings.

Counsel

M M Varitimos &D Wood, 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

6^th October, 2020

1. BY THE COURT: This is an appeal against the refusal by the National Court of an application for discovery of documents 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 by notice of motion filed 10 June 2020 for discovery of documents under Order 16, Rules 13(5)(4) and 13(6)(4)(j) of the National Court Rules, after the grant of leave for judicial review on 5 June 2020 (Barrick (Niugini) Ltd v Nekitel (2020) N8409) and before trial. It sought various documents required to be produced or referred to for purposes of decisions under the Mining Act in respect of which it was applying for judicial review or that were referred to in affidavits prepared by the respondents for opposing the relief sought by the appellant. The appellant’s application for discovery was argued before the same judge who had granted leave for judicial review.

4. His Honour, in an extensive written judgment (Barrick (Niugini) Ltd v Nekitel (2020) N8429), refused the discovery application for three main reasons:

(1) discovery of many documents would offend against the prohibition in s 86(4) of the Constitution against admitting into evidence in any court proceedings the documents which constitute advice to the Head of State (a decision of the Head of State being one of the decisions under review);

(2) discovery of many documents would offend against the confidential status conferred by s 163 of the Mining Act on all communication to and from the various persons and authorities involved in the decision-making process under the Mining Act;

(3) the appellant had failed to make out a case of any part of the statutory process under the Mining Act being breached, therefore discovery served no purpose.

5. On 6 August 2020 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 for discovery.

6. The appellant argued that the primary Judge erred in law by refusing the application for discovery as none of the three primary reasons was a valid reason for refusal.

7. The respondents argued that the primary Judge did not err in law and that the appellant was simply on a fishing expedition and failed to establish any connection between the documents sought and the grounds of review underlying its application for judicial review, which had in any event already been dismissed.

8. The following issues arise:

1. Did the primary judge err by ruling that s 86(4) of the Constitution prohibited discovery?
   
2. Did the primary judge err by ruling that s 163 of the Mining Act prohibited discovery?
   
3. Did the primary judge err by refusing discovery on the ground that the appellant had not proven a breach of any law?
   
1. DID THE PRIMARY JUDGE ERR BY RULING THAT SECTION 86(4) OF THE CONSTITUTION PROHIBITED DISCOVERY?
   

9. Section 86(4) lies within s 86 (functions etc) of the Constitution, which is the central provision in Part V (Head of State) of the Constitution providing for the powers, functions, duties and responsibilities of the Head of State. Section 86 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. [Emphasis added.]

10. The primary judge ruled that s 86(4) prohibited him from ordering discovery. His reasoning was that discovery would require disclosure of documents relating to the advice given to the Governor-General, which led to the decision of the Governor-General, as representative of the Head of State (Her Majesty the Queen), to refuse the appellant’s application for extension of the special mining lease. His Honour stated:

27. I find this provision wide and it places a blanket prohibition against any judicial consideration, let alone admission in any court proceeding, the documents which constitutes any advice to the Head of State. In this case, all the documents Barrick is seeking to disclose which concerns the NEC’s advice to the Head of State are caught by s 86(4) of the Constitution. Consequently, I find all the documents that constitute the NEC’s advice to the Head of State in this case are not open for discovery.

11. We agree with his Honour that some of the documents sought by the appellant relate to the advice given to the Governor-General, which resulted in the Governor-General’s decision of 27 April 2020, which is one of the decisions that was to be the subject of the application for judicial review. This is apparent from the documents sought in the application for discovery, which were described in the following terms:

(a) the report in writing made by the Registrar to the Mining Advisory Council pursuant to s 103(b)(iii) of the Mining Act (the Act);

(b) each report provided to the Mining Advisory Council pursuant to s104 of the Act;

(c) the written report prepared by the Warden pursuant to s 109 of the Act in respect of the extension application;

(d) all reports submitted to the Mining Advisory Council pursuant to s110 of the Act, including any report submitted by a provincial government under s 110(1);

(e) the recommendation, and draft versions of the recommendation, made by the Mining Advisory Council pursuant to s 110(4)(b) of the Act;

(f) the minutes of meetings of the Mineral Resources Authority in respect of the extension application;

(g) the minutes of meetings of the Mining Advisory Council in respect of the extension application;

(h) any assessments or reports made by or on behalf of the Mineral Resources Authority (or any officer of the Mineral Resources Authority) in respect of the extension application;

(i) submissions to the National Executive Council in respect of the extension application;

(j) all draft versions of the decisions the subject of judicial review in proceeding OS (JR) No 5 of 2020;

(k) any advice provided to the Governor-General in respect of the extension application (“NEC advice”);

(l) all draft versions of the NEC advice; and

(m) all documents, reports or other materials referred to in, or otherwise relied upon for the purposes of the assessments, reports and recommendation referred to above.

12. We can see that the documents sought under paragraphs (k) and (l) might fall within his Honour’s interpretation of the documents caught by s 86(4). But those in the other paragraphs are not obviously caught.

13. Moreover, we consider that, though s 86(4) makes the question of what advice was given to the Head of State (Governor-General) non-justiciable, it does not on its terms contain a constitutional prohibition of production, by order of a court, of documents for use by a party in judicial review proceedings. The question of whether such documents ought to be ordered to be disclosed is a different question to those of what use, if any, could be made of such documents in the judicial review, whether the documents would be admissible or whether any arguments of a party wanting to make use of them would succeed. A determination of those questions can only properly occur at or in close connection with the trial of the application for judicial review.

14. In that regard the decision of the Supreme Court in Kila Wari v Gabriel Ramoi [1986] PNGLR 112 is apposite. Each member of the Court made the following comments obiter dicta, as to the limits on the application of s 86(4). Kidu CJ stated:

I consider that it is because the Head of State cannot act otherwise than on advice of the National Executive Council or a body prescribed by law that s 86(4) of the Constitution ensures that whatever advice the Head of State is given and by whom is non-justiciable:"The question, what (if any) advice was given to the Head of State, or by whom, is non-justiciable."

This means of course that no Court has jurisdiction to look into questions relating to the advice given to the Head of State (see Sch 1.7 of the Constitution and The State v The Independent Tribunal; Ex parte Sasakila [1976] PNGLR 491, per Frost CJ at 499, and per Saldanha J at 504). This does not mean that the contents of the decision by the Head of State on advice cannot be questioned or contested. I agree with the view expressed by Pratt J in The Minister for Lands v Frame ([1980] PNGLR 433) that s 86(2) of the Constitution does not mean that an ultra vires (or unconstitutional) act of the Head of State on advice cannot be challenged.

15. Kapi DCJ stated:

As I have pointed out, where advice is given to the Head of State within the discretion given by law, that advice is non-justiciable. Where the advice falls outside the power or discretion given to the person or authority by the law, that advice is not protected by s 86(4) of the Constitution. This raises the question of the person or authority which is acting ultra vires the power given to it by the law. ...

Therefore, s 86(4) protects any advice which is given within the discretion permitted by an Act but does not protect:

(a) any advice which is either inconsistent with the provisions of an Act or is ultra vires the Act; and

(b) does not protect any act of the Head of State which is inconsistent with any provision of the Constitution.

16. Amet J stated:

I too consider that to challenge the legality, validity or indeed the constitutionality of the final act or decision of the Head of State acting upon advice is not to question the advice, if any, given to the Head of State. Whatever the advice might have been, is not the issue, it is the end result of that which is challenged. As an example, whatever the advice might be, if the action or decision of the Head of State is clearly unconstitutional, I do not think it can be argued that that decision cannot be challenged as being unconstitutional. Such a challenge is not concerned with what advice, if any, or the contents of such advice, but the fact that the decision ipso facto is unconstitutional.

17. The words of caution of the Court in Wari v Ramoi, about the limited operation of s 86(4), reinforce our view that the learned primary judge acted prematurely in denying the appellant access to documents that it might or might not be able to rely on at the trial of the judicial review. We find that there is no prohibition in s 86(4) of the Constitution against ordering discovery of documents in any proceedings.

18. If there were in fact a prohibition of the type found by the primary judge, and given that none of the respondents including the eighth respondent (the Attorney-General, as nominal defendant for the Head of State) claimed any privilege over any of the documents sought in the application for discovery, an appropriate course of action would have been to give the respondents the opportunity to claim privilege and then to require production of the documents to the Court so that it could assess the claim for privilege on a document-by-document basis.

19. By regarding s 86(4) as imposing a blanket prohibition of discovery of all documents sought by the appellant, without allowing the appellant any opportunity to challenge that prohibition, his Honour’s interpretation of the provision could lead to a situation in which flawed statutory decision-making is allowed to continue unchecked.

20. We find that his Honour erred in law in treating s 86(4) as a blanket prohibition of discovery of all documents sought by the appellant.

2. DID THE PRIMARY JUDGE ERR BY RULING THAT SECTION 163 OF THE MINING ACT PROHIBITED DISCOVERY?
   

21. Section 163 (confidentiality) is in Part VIII (miscellaneous) of the Mining Act, comprising ss 161 to 170. It states:

(1) Information disclosed under this Act to the Minister, to an employee of the Authority, or to a member of the Council shall not be disclosed to any person who is not an employee of the Authority without the prior written approval of the person who provided that information, except—

(a) to the extent that disclosure is authorized or required under this Act or any other law; or

(b) to the extent the person providing the information authorized its disclosure at the time of providing the information; or

(c) to the extent necessary for the Managing Director to publish statistical information concerning the geology and mineral resources of the State; or

(d) to the extent necessary for the Managing Director to give advice to the National Executive Council, other Departments and the Central Bank on the confidential basis.

(2) An employee of the Authority or member of the Council who uses, for the purpose of his personal gain, any information disclosed under this Act that comes to his knowledge in the course of, or by reason of his employment as an employee of the Authority or his membership of the Council, is guilty of an offence.

Penalty: A fine not exceeding K10,000.00 or imprisonment for a term not exceeding four years, or both.
22. The primary judge upheld the respondents’ submission that the purpose of s163 was to preserve the confidentiality of all documentary communication between the various persons and authorities with powers and functions under the Mining Act. His Honour regarded s163 as containing a statutory prohibition of disclosure, through an order for discovery, of documents to the appellant. His Honour stated:

29. The duty was on the applicant to show that none of the documents that are sought to be disclosed are caught by s 163. Alternatively, the applicant had the obligation in my view, to make out a case under the exceptions provided for in the provision itself.

30. My respectful view is that, Parliament having considered all things, decided to treat the ongoing and how the mining industry works through the relevant instrumentalities of the State has provided for a processing and more importantly through s 163 of the Mining Act, has given confidentiality to that process. Thus, if there is an exception to that, it is for a party seeking disclosure to make out a case for it. With respect, as I observed, there is no clarity that the case law learned counsel for Barrick has referred in his submissions were decisions arrived at notwithstanding or in the light of statutory provisions like the one under consideration in this case, existing. It would appear therefore, unaided as I am, without any details about those cases that they would have been cases out of ordinary settings where there is no specific legislative prohibition according confidentiality.

31. The other privileged areas such a lawyer and client relationship and communication in such relationship are not necessarily legislated. They are accepted as given exceptions to disclosure or discovery. But when there is a specific legislative provision, then a relevant case on point would be a case that had such a case of statutory prohibition or confidentiality and how the court got around it. In these circumstances, I am most reluctant to cross over to the legislative arena and try and create a further exception to s 163 of the Mining Act and to the extent that the Head of State is brought into the discussion of s 86(4) of the Constitution.

23. We uphold the submission of the appellant that his Honour has misinterpreted s 163 by reading it literally and out of context. Section 163 comes immediately after the first two provisions of Part VIII. They deal with compulsory provision of “information” to the Minister for Mining or the Managing Director of the Mineral Resources Authority in s 161, and the obligation of a tenement holder (such as the appellant) to provide cores and drilling samples to the Managing Director when requested to do so under s 162.

24. That s 163(1) is intended to preserve the confidentiality of information “disclosed” to the Minister, an employee of the Authority or to a member of the Mining Advisory Council, by persons external to those persons or authorities, such as the appellant, is apparent from the enforcement provision in s 163(2). Breach of the obligation of confidentiality by an employee of the Authority or a member of the Council is an offence. It is not the case that s 163(1) was intended to preserve the confidentiality of all communication amongst the persons and bodies administering the Mining Act.

25. We consider that the type of information being sought by the appellant in its application for discovery was not caught by s 163(1). The appellant was primarily seeking documents required to be produced, by public officials and authorities, for the purpose of a statutory decision-making process. There is no good reason we can see for such documents being regarded as confidential.

26. If we were to presume, for the sake of argument, that the information was caught by s 163(1), we would find that disclosure of the documents to the appellant could be authorized by the Court through orders for discovery, thereby rendering the disclosure lawful under s 163(1)(a), which provides for disclosure of information to the extent that is authorized “under ... any other law”, such as the National Court Rules.

27. If for some reason it were thought that the exception in s 163(1)(a) did not apply, the primary judge could have invoked the procedure in Division 9.1 of the National Court Rules, especially Rules 5 and 6, and ordered the respondents to file and serve a list of documents. His Honour could alternatively have ordered that the documents be provided to the Court for its inspection and determination of any claims of confidentiality or privilege.

28. We mention these alternative courses of action by way of completeness. However, we do not resile from our primary interpretation of s 163. It has no relevance to the present case. The learned primary judge erred in regarding it, in similar terms to s 86(4) of the Constitution, as being a statutory prohibition against ordering discovery of documents.

3. DID THE PRIMARY JUDGE ERR BY REFUSING DISCOVERY ON THE GROUND THAT THE APPELLANT HAD NOT PROVEN A BREACH OF ANY LAW?
   

29. The third reason his Honour refused the appellant’s application for discovery was its failure to prove any case of a breach of the law. His Honour stated:

32. Also, the important point is that, no case has been made out as was my finding in the decision leading up to the grant of leave that the plaintiff had not established a case of any of the statutory process under the Mining Act being breached. The effect of this is that, I am not too sure of the purpose for which these disclosures are sought especially when there is no clear establishment of a statutory provision, in the Mining Act being breached and the need to know how that breach occurred.

30. With respect, we cannot agree with the primary judge that any onus rested on the appellant, having just been granted leave for judicial review, when prosecuting a pre-trial application for discovery of documents, to make out a case for breach of any law. Its obligation to prove a breach of the law by the respondents would only arise at the trial of its application for judicial review. We find that the primary judge erred by imposing such an obligation on the appellant prior to commencement of the trial.

CONCLUSION
31. We conclude that the learned primary judge erred in law in each of the three main respects his Honour felt obliged to refuse the appellant’s application for discovery, and by refusing the application without considering it on its merits.

32. 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.

33. We now determine the appellant’s application made by notice of motion filed on 10 June 2020 on its merits. We note that it was framed as an application under Order 16, Rules 13(5)(4) and 13(6)(4)(j) of the National Court Rules.

34. Order 16, Rule 13(5)(4) (directions to be issued at time of grant of leave) states:

Immediately after granting leave to apply for judicial review, the judge granting leave shall consider and issue directions as to, amongst other things, the following: ...

Availability of decision and reasons for decision together with any otherrelevant documents or depositions of the tribunal or public authority which made the decision the subject of judicial review.

35. Order 16, Rule 13(6)(4) (directions hearing) states:

At the Directions Hearing, the Judge may consider and determine and issue directions or orders for the prompt hearing of the application, amongst other things, the following:...

Provision of records including decision and reasons for decision by theClerk or Registrar of the Court or Tribunal or statutory authority which made

the decision.

36. These rules were introduced into the National Court Rules by the Judges as part of a suite of reforms of the Rules made in 2005. They are intended, as stated in the preamble to Order 16, Rule 13, “to improve the disposition of judicial review cases in the National Court in a quick, fair and cheap manner”.

37. We consider that that purpose will be achieved by dealing with applications for discovery of documents in judicial review proceedings in the same way that applications for discovery are determined in other civil proceedings. The key criteria are relevance and necessity, subject to the need to be alert to any claims of privilege. The purpose of the discovery procedure must also inform the exercise of judicial discretion, as explained by Woods J in Credit Corporation (PNG) Ltd v Gerald Jee [1988-89] PNGLR 11:

This is not a jurisdiction of trial by ambush. Discovery in this type of proceedings is the title used to describe the process by which the parties to a civil cause or matter are enabled to obtain, within certain defined limits, full information on the existence and the contents of all relevant documents relating to the matters in question between them. The function of the discovery of documents is to provide the parties with the relevant documentary material before the trial so as to assist them in appraising the strength or weakness of their respective cases, and thus to provide the basis for the fair disposal of the proceedings before or at the trial or to adduce in evidence at the trial relevant documentary material to support or rebut the case made by or against them, to eliminate surprise at or before the trial relating to documentary evidence and to reduce the costs of litigation. Discovery should not be confused with the process of obtaining further and better particulars, nor with the process of interrogatories, nor of subpoena duces tecum.

Discovery is therefore to help the parties and, in the end, the Court to obtain a proper examination of the issues and a party is therefore entitled to discovery of any documents that relate to the issues. A document is discoverable if it throws light on the issues: Donaldson v Harris (1973) 4 SASR 299.

38. Guided by those considerations, and taking into account the appellant’s abandonment, at the hearing of the appeal, of the application in its notice of motion of 10 June 2020, for draft documents (which are referred to in paragraphs (e), (j), and (l)), we consider that subject to some exceptions, the bulk of the documents ought to be subject to an order for discovery.

39. The exceptions are those documents referred to in paragraphs (f), (g), (h) and (m), which may be categorised as documents subsidiary to the main documents, the bulk of which are documents arguably required to be produced under the Mining Act for the purposes of determining an application for extension of a special mining lease. Those documents in the list of exceptions are either unnecessary or irrelevant.

40. We are not persuaded by the respondents’ assertions that the provision of documents to the appellant would simply service a fishing expedition or that there is no connection between the documents sought and the grounds of review underlying its application for judicial review, as such a connection is self-evident.

41. We determine the application as follows:

(a) the report in writing made by the Registrar to the Mining Advisory Council pursuant to s103(b)(iii) of the Mining Act (the Act): granted;

(b) each report provided to the Mining Advisory Council pursuant to s104 of the Act: granted;

(c) the written report prepared by the Warden pursuant to s 109 of the Act in respect of the extension application: granted;

(d) all reports submitted to the Mining Advisory Council pursuant to s110 of the Act, including any report submitted by a provincial government under s 110(1): granted;

(e) the recommendation, and draft versions of the recommendation, made by the Mining Advisory Council pursuant to s 110(4)(b) of the Act: granted, except for draft versions;

(f) the minutes of meetings of the Mineral Resources Authority in respect of the extension application: refused;

(g) the minutes of meetings of the Mining Advisory Council in respect of the extension application: refused;

(h) any assessments or reports made by or on behalf of the Mineral Resources Authority (or any officer of the Mineral Resources Authority) in respect of the extension application: refused;

(i) submissions to the National Executive Council in respect of the extension application: granted;

(j) all draft versions of the decisions the subject of judicial review in proceeding OS (JR) No 5 of 2020: abandoned;

(k) any advice provided to the Governor-General in respect of the extension application (“NEC advice”): granted;

(l) all draft versions of the NEC advice: abandoned; and

(m) all documents, reports or other materials referred to in, or otherwise relied upon for the purposes of the assessments, reports and recommendation referred to above: refused.

42. Costs will follow the event.

ORDER

(1) The appeal is allowed.

(2) The order of the National Court made on 10 July 2020 in proceeding OS (JR) No 5 of 2020 declining the appellant’s application for discovery in respect of all the documents sought by the appellantis quashed.

(3) The respondents shall make available to the appellant within seven days after this order the following documents, categorised as “granted” in the list of documents contained in the notice of motion filed 10 June 2020:

• (a) the report in writing made by the Registrar to the Mining Advisory Council pursuant to s 103(b)(iii) of the Mining Act (the Act): granted;
  
• (b) each report provided to the Mining Advisory Council pursuant to s 104 of the Act: granted;
  
• (c) the written report prepared by the Warden pursuant to s 109 of the Act in respect of the extension application: granted;
  
• (d) all reports submitted to the Mining Advisory Council pursuant to s 110 of the Act, including any report submitted by a provincial government under s 110(1): granted;
  
• (e) the recommendation, and draft versions of the recommendation, made by the Mining Advisory Council pursuant to s 110(4)(b) of the Act: granted, except for draft versions;
  
• (f) the minutes of meetings of the Mineral Resources Authority in respect of the extension application: refused;
  
• (g) the minutes of meetings of the Mining Advisory Council in respect of the extension application: refused;
  
• (h) any assessments or reports made by or on behalf of the Mineral Resources Authority (or any officer of the Mineral Resources Authority) in respect of the extension application: refused;
  
• (i) submissions to the National Executive Council in respect of the extension application: granted;
  
• (j) all draft versions of the decisions the subject of judicial review in proceeding OS (JR) No 5 of 2020: abandoned;
  
• (k) any advice provided to the Governor-General in respect of the extension application (“NEC advice”): granted;
  
• (l) all draft versions of the NEC advice: abandoned; and
  
• (m) all documents, reports or other materials referred to in, or otherwise relied upon for the purposes of the assessments, reports and recommendation referred to above: refused.
  

(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