Mount Kare Holdings Pty Ltd and Dibusa Mining Pty Ltd v Wapela Akipe [Wapula Akipa], Simon Kambe, Anton Pakema, The Honourable Patterson Lowa, Minister for Minerals and Energy, Israel Israel, Mining Registrar of the Department of Minerals and Energy and The Independent State of Papua New Guinea [1992] PNGLR 60

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Woods J, Hinchliffe J, Konilio J, Andrew J
• Judgment Date: 26 February 1992
• Court: Supreme Court
• Citation: [1992] PNGLR 60
• Year: 1992
• Judgement Number: SC427

Full Title: Mount Kare Holdings Pty Ltd and Dibusa Mining Pty Ltd v Wapela Akipe [Wapula Akipa], Simon Kambe, Anton Pakema, The Honourable Patterson Lowa, Minister for Minerals and Energy, Israel Israel, Mining Registrar of the Department of Minerals and Energy and The Independent State of Papua New Guinea [1992] PNGLR 60

Supreme Court: Kapi DCJ, Woods J, Hinchliffe J, Konilio J, Andrew J

Judgment Delivered: 26 February 1992

1 Constitutional Law—Interpretation—Reception of common law—Meaning of "revision" of common law by statute in England—Revision by statute ignored—Constitution Sch2.2 (3).

2 Constitutional Law—Interpretation—Applicability inappropriateness of common law to the circumstances of Papua New Guinea—Constitution Sch2.2 (1) (b).

3 Maintenance and Champerty—Definition and essentials of—Reception of common law.

4 Reception—Common law—Maintenance and champerty—"Circumstantial applicability".

5 Statute—Criminal Law Act 1967 (UK) s13, s14.

6 Underlying law—Maintenance and champerty—Common law principles.

7 Constitutional Reference No 1 of 1977; Poisi Tatut v Chris Cassimus [1978] PNGLR 295, Iambakey Okuk v Fallscheer [1980] PNGLR 274, The Ship "Federal Huron" v Ok Tedi Mining Ltd [1986] PNGLR 5, Waghi Savings and Loans Society Ltd v Bank of South Pacific Ltd (1980) SC185, Alabaster v Harness [1895] 1 QB 339, Bradlaugh v Newdegate (1883) 11 QBD 1, British Cash and Parcel Conveyors Ltd v Lamson Store Services Co Ltd [1908] 1 KB 1006, De Houghton v Mosey (1866) LR 2 Cr App 164, Hill v Archbold [1967] 3 All ER 110, Hodges v State of New South Wales (1988) 77 ALR 1, In re Trepca Mines Ltd (No 2) [1963] Ch 199, Marriage of Sheehan (1990) 97 FLR 190, Martell v Consett Iron Co Ltd [1955] 1 All ER 481, Nyali Ltd v Attorney-General of Kenya [1956] 1 QB 1, Orme v Associated Newspapers Group Ltd (1980) Times, 3 February, [1980] CA Transcript 809, Prosser v Edmonds (1835) 1 Y & C Ex 481, Singh v Observer Ltd [1989] 3 All ER 777, Trendtex Trading Corp v Credit Suisse [1980] 3 All ER 721, Trendtex Trading Corp v Credit Suisse [1982] AC 679; [1981] 3 All ER 520 and Wild v Simpson [1919] 2 KB 544 referred to

Facts

In October 1990 the Minister for Lands granted to one of the appellants a Special Mining Lease (SML) under the Mining Act over an area of land known as Mt Kare. The first, second and third respondents, who were plaintiffs in the National Court, sought to overturn the grant of the SML. The appellants filed a motion to dismiss the action on the ground that it was the result of an arrangement between the respondents and two local companies backed by an Australian company whereby the Australian company agreed to pay all the legal fees of the respondents in consideration of what was tantamount to an assignment of the rights to litigation from the respondents, along with a share in any mining tenements they may receive as a result of the litigation. The appellants sought to have discovery of the documents which set out the terms of the alleged champertous arrangement. Prior to the hearing of the motion for discovery, the respondents successfully brought a cross motion to have the summons set aside.

The trial judge set aside the summons on the ground that there was no law against maintenance and champerty in Papua New Guinea. He held that these tortious offences were abolished in England by the Criminal Law Act 1967 and, therefore, the law was not adopted in Papua New Guinea at Independence. He further held that, where the common law was abrogated by English legislation before the reception date, there was no common law to receive. He added that if he were in error in holding that the doctrines were not part of English common law and equity immediately prior to Independence and, thus, not adopted, those torts were inappropriate for application to the circumstances of the country.

Issues

1. Whether the reception of the common law on any particular matter included its statutory revision in England by a pre-Independence English legislation which was not adopted under Sch2.6 (1) (c) of the Constitution.

2. Whether the torts of maintenance and champerty are appropriate for local application in the circumstances of Papua New Guinea.

Held

1. The English Criminal Law Act 1967 s13 and s14 revised the principles of common law on maintenance and champerty, but as the Act is not adopted by Sch2.6 of the Constitution, the provisions of the Act are to be ignored.

2. The principles of common law relating to maintenance and champerty are applicable to the circumstances of Papua New Guinea and form a part of the underlying law.

3. Obiter: per Kapi DCJ: "revision" of common law includes modification and/or abolition of the principles of common law.

Per Andrew J: "I think that ultimately it is not necessary to decide this point [about abolition] because in my view the principles and rules of the doctrine of maintenance and champerty were only 'revised' or 'modified' [and not abolished] by the Criminal Law Act 1967 in the United Kingdom . . . Clearly the rules prohibiting champerty and maintenance were part of the English rules and principles of common law and equity as at 16 September 1975."

___________________________

SC427

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE HON PATTERSON LOWA, THE MINISTER FOR MINERALS AND ENERGY AND OTHERS

V

WAPULA AKIPE AND OTHERS

THE HON PATTERSON LOWA, THE MINISTER FOR MINERALS AND ENERGY AND OTHERS

V

WAPULA AKIPE AND OTHERS

MOUNT KARE ALLUVIAL MINING PTY LIMITED AND ANOTHER

V

WAPULA AKIPE AND OTHERS

MOUNT KARE ALLUVIAL MINING PTY LIMITED AND ANOTHER

V

WAPULA AKIPE AND OTHERS

Waigani

Kidu CJ Kapi DCJ Woods Hinchliffe Sheehan JJ

1-4 July 1991

7 August 1991

CONSTITUTIONAL REFERENCE — Jurisdiction of National Court on constitutional question — No cause of action based on s 18 (2) Constitution.

APPEALS — Challenge to Constitutional Reference pursuant to s 18 (2) Constitution — References must arise out of determined facts — Whether pleadings "disclose" determined facts — Powers of National and Supreme Court to protect and enforce constitutional rights and freedoms.

APPEALS — Against refusal of motions to strike out statement of claim — Abuse of process — Failure to disclose sufficient interest — Jurisdiction of National Court on Constitutional questions — No cause of action based on s 18 (2) — National Court.

COMPETENCY OF APPEAL — Time limits in which challenge to be made — Discretion of Supreme Court.

PRACTICE — Jurisdiction to make declaratory orders — Constitution, s 155 (4).

WORDS AND PHRASES — Meaning of "judgment" — "Cause of action" — "Forms of action"

Facts

The respondents (plaintiffs), claimed rights and interests in land in the Mt Kare region as customary landowners, and commenced proceedings in the National Court to overturn the issue of a Special Mining Lease in the said land granted by the state (third defendant) in favour of Mt Kare Alluvial Mining Pty Ltd (fourth defendant).

In a detailed statement of claim, the respondents asserted that by the issue of the lease by the Minister for Minerals and Energy (first defendant) to Mt Kare Alluvial Mining Ltd, their rights and interests in the land were adversely affected, without consultation. They challenged the validity of the lease, inter alia, on grounds that it was ultra vires the issuing authorities to grant the lease without recourse to proper procedures, and that, in any case, the empowering legislation, in particular s 7 of the Mining Act, is void as being an infringement of their guaranteed rights and freedoms under the Constitution.

The appellants unsuccessfully moved to strike out the respondents' writ on grounds, inter alia, of abuse of process, insufficient interest in the respondents to bring the action, non joinder of parties, and lack of jurisdiction of the National Court to decide these constitutional issues.

The National Court declined to strike out the writ. It referred the constitutional questions to the Supreme Court. The appellants appealed against the reference and various interlocutory orders of the National Court. The appeals which were four in number were consolidated in one hearing.

Held

On the Supreme Court Reference:

1. Section 18 (2) of the Constitution cannot be utilised to base a cause of action in the National Court.

2. A question of interpretation or application of a constitutional law may arise at any stage of proceedings in a court or tribunal, but such a question must arise during the course of a matter properly before the court or tribunal for there to be a reference to the Supreme Court.

3. There must be factual bases for a referral under s 18 (2). In these matters,...