Yawing v Joku [2024] PGSC 109; SC2640 (27 August 2024)

SC2640

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 34 OF 2023

BETWEEN:
MALATABI KEITH YAWING
Appellant

AND:
GUNTHER JOKU, in his capacity as the Managing Director of Conservation and Environment Protection Authority
First Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Logan J, Berrigan J and Carey J
2024: 27^th August

PRACTICE AND PROCEDURE – where two separate judicial review proceedings in the National Court were ordered to be heard together – where earlier proceedings were subject to Supreme Court appeal and extant questions of standing – where applicant in later proceedings sought decoupling – where applicant relied on newspaper articles to show a change of circumstances to support the variation of the order that the proceedings be heard together – where the primary judge rejected the admission of the newspaper articles into evidence due to the newspaper articles being hearsay – where defendants did not object to the admission of the newspaper articles – where the primary judge did not provide the applicant with an opportunity to be heard concerning the hearsay issue – whether discretion to refuse application miscarried – whether Supreme Court should exercise the discretion afresh – appeal allowed, decoupling of proceedings ordered

Facts:

The appellant commenced judicial review proceedings in the National Court (JR 112 of 2022) against the decisions of the respondents under the Environment Act 2000 relating to approvals for the Wafi-Golpu mining project. Separate judicial review proceedings concerning similar decisions and facts had already been commenced (JR 35 of 2020). There were orders made in the National Court that the proceedings be heard together.

The appellant made an application for the coupling orders to be varied due to an extant appeal in the earlier judicial review proceedings and issues of standing in those proceedings. Further, the appellant tendered newspaper articles containing statements from various government officials that the project was progressing to show a change in circumstances from when the coupling orders were made. The respondents did not object to the tendering of that evidence.

The primary judge dismissed the appellant’s application. In doing so, his Honour ruled that the newspaper articles were hearsay and, as such, inadmissible. The appellant applied for leave to appeal from that decision, which was granted.

Held:

1. [Logan J, with Berrigan J and Carey J agreeing]: The appellants were denied procedural fairness by the primary judge failing, in the circumstances of a civil proceeding, to raise with them at the hearing the hearsay issues with the newspaper article evidence.
2. The primary judge could have had regard to the newspaper article evidence in the absence of objection from the defendants.
3. The judicial review proceedings ought to be heard separately.
   

Cases Cited
Attorney General v Hamidian Rad PGSC39 [1999] PNGLR 278
Covec PNG Limited v Kama [2020] PGSC 9 ;SC1912
Rimbunan Hijua (PNG) Ltd v Enei [2017] PGSC 36; SC1605

Legislation Cited
Environment Act 2000

Counsel:
Mr. Geroro, for the Appellant
Mr. Unau, for the First and Second Respondents

Oral decision delivered on
27^th August 2024

1. LOGAN J: On 26 April 2023, the National Court granted leave to review a decision of the present first respondent (and first defendant in the National Court), the managing director of the Conservation and Environment Protection Authority. The managing director had approved the grant of environmental permits in principle for the environmental impact statement for the Wafi-Golpu Mining Project under s 59 of the Environment Act 2000 on 19 November 2020. Related to that, on 18 December 2020, the State, the present second respondent (and second defendant in the proceedings below), had approved and issued an environmental permit for that mining project under s 65 of the Environment Act 2000. These then were the administrative decisions which were the subject of the leave to review granted on 26 April 2023.
   
2. At that time, the National Court also ordered that that particular judicial review application (JR 112 of 2022) be heard together with an earlier judicial review application (JR 35 of 2020). That earlier judicial review application was the subject of a pending appeal to the Supreme Court. There was in place a related stay order in respect of the administrative decisions concerned. Unlike JR 112 of 2022, there was a controversy concerning standing which affected JR 35 of 2020.
   
3. By an application filed on 11 August 2023, the plaintiffs in the later judicial review application (JR 112 of 2022) sought a variation of the orders made on 26 April 2023 to the end that the order which required the two judicial review applications to be heard together to be vacated such that the later judicial review application (JR 112 of 2022) could proceed to a substantive hearing without awaiting the fate, in the Supreme Court, of the challenge which was affecting the progress of the earlier judicial review application (JR 35 of 2020). As a corollary to the application to in effect decouple the two judicial review applications, directions concerning the progression of JR 112 of 2022 were also sought.
   
4. The affidavits read and relied upon by the plaintiffs for that decoupling application included, as annexures, a series of newspaper articles. Notably, one of those articles, dated 1 August 2023 in the National under the headline “Wafi-Golpu on track for November”, contained the following statement:

“Morobe Governor Luther Wenge says the special mining lease SML 10, for the K18.5 billion Wafi-Golpu gold and copper project, will be signed in November. I met with the developers recently and we have agreed on the schedule, he said.”

5. Another article annexed to the affidavit in support, under the headline “Government, miner meet on Wafi-Golpu” published in the National on 28 July 2023, stated amongst other things:
   

“Representatives of the government and Harmony Gold Mining Company met on Wednesday to continue discussions on permitting the Wafi-Golpu Mining Development Project. Harmony Gold Chairman, Patricia Motsepe, thanked the government for supporting the signing of the Wafi-Golpu framework and memorandum of understanding (MOU) in April. The MOU supports the government and Harmony Gold’s intent to proceed with the tier-one project which is subject to finalisation of the permitting process and approvals by developer partners, Harmony Gold and Newcrest Mining Ltd.”

6. In support of their application for decoupling, the plaintiffs pointed to what they said were facts revealed by the newspaper articles which showed that there was, since April 2023, a material change of circumstances, namely moves on the ground as between government and mining developer to progress the project towards licensing.
   
7. Those were circumstances, so the plaintiffs submitted, which should persuade the Court that the later judicial review application (JR 112 of 2022) should no longer be heard together with the earlier initiated judicial review application, which was affected by an unresolved standing issue. Instead, the submission was that the change of circumstances was such that JR 112 of 2022 should be progressed to a substantive hearing as soon as possible to resolve, by an exercise of judicial power, a controversy concerning the illegality or otherwise of the issuing of the environmental permit.
   
8. The defendants, the present respondents, made no objection before the primary judge to the admissibility of the affidavits in support. More particularly, they made no objection that the statements concerning events in July and August 2023 as reported were but hearsay in respect of the occurrence of those events. Instead, the submission made on behalf of the respondents was:
   

“Nothing will happen because of section 3 of the Mining Act, unless there is a special mining lease granted. No special mining, your Honour, will be granted unless under section 10 of the Environment Act an environment permit is properly granted. And that is where the issue is, your Honour. There is a stay in the Supreme Court.”

9. The learned primary judge dismissed the plaintiff’s application for decoupling of the two judicial review applications. His Honour did this for reasons which included the rejection of the statements in the newspaper articles concerning developments because of his view that the accounts in the articles were hearsay and therefore not admissible. In fairness to his Honour, he also was influenced by the fact that there were two judicial review proceedings on foot with overlapping facts and that there was a stay in place. But, read fairly, his reasons undoubtedly were influenced by his deliberate exclusion, on the basis the statements were hearsay, of the very foundation of the plaintiff’s application, namely that there had been further developments as related on those newspaper articles which suggested a progression towards the granting of licenses.
   
10. There is no doubt that the dismissal of the application to vary the orders entailed the exercise of a judicial discretion. So much was recognised at an earlier stage of this proceeding when leave to appeal was granted. Of course, the Court must be careful in granting leave in respect of interlocutory value judgements entailing the exercise of a discretion in respect of matters of practice and procedure, because failure to do that can lead to oppression of one party by a better resourced party.
    
11. But leave was granted and there is truly an error of principle which is revealed here. The Court does not interfere with exercises of discretion by judges in the absence of an error of principle.
    
12. Here, the error is, as the appellant submitted, that it was lawfully possible, in the absence of objection, for the judge to act on what the appellant concedes to have been hearsay statements as evidenced in the newspaper articles concerning further developments. The Court on previous occasions has stated that, in circumstances where there was a failure to object or challenge the only evidence produced in a civil case, the evidence so introduced, even if contained in newspaper articles, can be acted upon: see Covec PNG Limited v Kama [2020] PGSC 9; SC1912, at [25]-[28] per Kandakasi DCJ, quoting Rimbunan Hijua (PNG) Ltd v Enei [2017] PGSC 36; SC1605 with approval. See also Attorney General v Hamidian-Rad [1999] PNGLR 278; PGSC 38, in which it was stated:
    

“The evidence called by the appellants consisted of a video recording of the EMTV news at 6.00 pm on 24 and 27 August and the Post Courier report of 25 August 1999. The evidence was admitted without any objection. It clearly established that the respondent had published the statements complained of.”

13. In short, although if objection had been taken, it would have been open to the primary judge to have ruled inadmissible the statements in the newspaper articles on the basis that they were hearsay, no such objection was taken and in the absence of such objection, it was lawfully possible for the primary judge to have acted upon those statements. The error of principle made by the primary judge was in failing, with respect, to appreciate this.
    
14. Moreover, given that there was no objection taken in what are civil proceedings, even if the primary judge were disposed to not act on that informal proof, he ought to have extended an opportunity to be heard on that subject to the parties. The obligation to observe the principles of natural justice falls on the judicial branch of government as well as those who make administrative decisions. The failure to extend that opportunity did indeed, as the appellant submitted, amount to a violation of the principles of natural justice constituted by a failure to extend an opportunity to be heard prior to making a decision adverse to the appellant’s interests.
    
15. For these reasons, in my view the discretion miscarried.
    
16. It is in the interests of justice that this court exercise the discretion itself, rather than just visiting further delay on the parties by remitting the case to the National Court for the exercise of that discretion. The circumstances in respect of whether or not the cases should remain the subject of an order that they be heard together are not all one way. It is true, as was put on behalf of the respondents below, that there is a stay in place. But it is quite obvious from the statements made in the newspaper articles that events have occurred on the ground which are undoubtedly events of concern to the appellant. It is overwhelmingly desirable, in my view, that judicial power be brought to bear in resolving, as between the plaintiff and the defendants, the question of whether those permits that which have become the subject of leave to review were, or were not, lawfully issued.
    
17. The plaintiff’s judicial review case should not await any longer the fate of the earlier judicial review case. It needs to be remembered that the plaintiff is not a party to that other judicial review case and therefore cannot take any steps to progress the hearing and determination of the Supreme Court proceeding.
    
18. For these reasons, the orders I would make are to allow the appeal to set aside the orders of the National Court made on 8 September 2023 and, in lieu thereof, I would order that paragraph 2 of the National Court order of 26 April 2023, which required that JR 112 of 2022 be dealt together with JR 35 of 2020, be vacated, such that JR 112 of 2022 progress to substantive hearing as soon as conveniently possible. I would further order that the proceedings be remitted to the National Court for the making of all necessary directions adopted to that end.
    
19. As to costs, the Court’s view is that, in respect of the appeal, costs should follow the event so that, in respect of the appeal, the order is that the respondents pay the appellants costs of and incidental to the appeal to be taxed, if not agreed.
20. As to the proceedings in the National Court, the submission on behalf of the respondents (the defendants below), which is grounded in fact, is that their submission in respect of the interlocutory application did not lead the primary judge into error. Rather, that particular error was one which was revealed on the publication of the reasons for judgment and it was not an error in upholding a submission as to admissibility or inadmissibility made on behalf of the respondents as defendants below.
    
21. Although, in the exercise of the discretion afresh, we have allowed the application which the plaintiffs made, we do accept that the error made by the primary judge was not one into which his Honour was led by the respondents. The appellant also accepts that. Although the subject as one upon which it might said the event nonetheless is the allowing of the interlocutory application, we do consider that the justice of the case is better served by ordering, in respect of costs of and incidental to the interlocutory application in the National Court, that they be costs in the proceeding in that court.
    
22. BERRIGAN J: I concur with the orders proposed by the President for the reasons given. I have nothing to add.
    
23. CAREY J: I too also agree with the orders that have been read into the record.
    

Orders

1. The appeal be allowed.
2. The orders of the National Court made on 8 September 2023 in respect of the interlocutory application of 11 August 2023 (interlocutory application) be set aside.
3. In lieu thereof, paragraph 2 of the National Court’s order of 26 April 2023, which required that OS (JR) No. 112 of 2022 be dealt together with OS (JR) No. 35 of 2020, be vacated, such that OS (JR) No. 112 of 2022 progress to substantive hearing as soon as conveniently possible.
4. The proceedings be remitted to the National Court for the making of all necessary directions adapted to that end.
5. In respect of the appeal, the respondents pay the appellant’s costs of and incidental to the appeal, to be taxed if not agreed.
6. The costs of and incidental to the interlocutory application in the National Court be each party’s costs in the proceedings.
   

__________________________________________________________________
Geroro Lawyers: Lawyers for the Appellants
Gileng & Co Lawyers: Lawyers for the Respondents