Israel Israel, Mining Registrar; The State; Mt Kare Holdings Pty Ltd; Gaudi Dadi, Acting Government Printer; Dibusa Mining Pty Ltd v Wapula Akipe, Simon Kambe, and Anton Pakena [1991] PNGLR 265; [1991] PNGLR 399

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ:
• Judgment Date: 07 August 1991
• Court: Supreme Court
• Citation: [1992] PNGLR 399
• Docket Number: Patterson Lowa, Minister for Minerals and Energy
• Year: 1992
• Judgement Number: SC430

Supreme Court: Kidu CJ, Kapi DCJ, Woods J, Hinchliffe J, Sheehan J

Judgment Delivered: 7 August 1991

SC430

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

(S.C.A. 19 OF 1991 &

S.C.A. 36 of 1991)

BETWEEN: THE HON PATTERSON LOWA, the Minister for Minister for Minerals & Energy

- First Appellant

ISRAEL ISRAEL the Mining Registrar of the Department of Minerals and Energy

- Second Appellant

INDEPENDENT STATE OF PAPUA NEW GUINEA

- Third Appellant

MT KARE HOLDINGS PTY LTD

- Fourth Appellant

GAUDI DADI, the Acting Government Printer

- Fifth Appellant

DIBUSA MINING PTY LIMITED

- Sixth Appellant

AND: WAPULA AKIPE - First Respondent

SIMON KAMBE - Second Respondent

ANTON PAKENA - Third Respondent

(S.C.A. 32 OF 1991)

BETWEEN: MT KARE ALLUVIAL MINING PTY LIMITED

- First Appellant

MT KARE HOLDINGS PTY LIMITED

- Second Appellant

AND: WAPULA AKIPE - First Respondent

SIMON KAMBE - Second Respondent

ANTON PAKENA - Third Respondent

THE HON PATTERSON LOWA, the Minister for Minister for Minerals & Energy

- Fourth Respondent

ISRAEL ISRAEL the Mining Registrar of the Department of Minerals and Energy

- Fifth Respondent

INDEPENDENT STATE OF PAPUA NEW GUINEA

- Sixth Respondent

GAUDI DADI, the Acting Government Printer

- Seventh Respondent

(S.C.A. 60 OF 1991)

BETWEEN: MT KARE ALLUVIAL MINING PTY LIMITED

- First Appellant

MT KARE HOLDINGS PTY LIMITED

- Second Appellant

AND: WAPULA AKIPE - First Respondent

SIMON KAMBE - Second Respondent

ANTON PAKENA - Third Respondent

THE HON PATTERSON LOWA, the Minister for Minister for Minerals & Energy

- Fourth Respondent

ISRAEL ISRAEL the Mining Registrar of the Department of Minerals and Energy

- Fifth Respondent

INDEPENDENT STATE OF PAPUA NEW GUINEA

- Sixth Respondent

Waigani: Kidu CJ, Kapi Dep CJ, Woods J

Hinchliffe J and Sheehan J

1, 2, 3, & 4 July and 7 August 1991

Appeals — Against refusal to 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) to be pleaded — National Court.

Appeals — Challenge to Constitutional Reference pursuant to Section 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.

Competency of Appeal — Time limits in which challenge to be made — Discretion of Supreme Court.

The Respondents who claim rights and interests as customary landowners commenced proceedings in the National Court to overturn the issue by the State of a Special Mining Lease over certain land in the Mt Kare region in favour of Mt Kare Alluvial Mining Pty Ltd, the First Appellant.

In a detailed Statement of Claim the Respondents assert that by the issue of the Lease their rights and interests in the land have been adversely effected without consultation. They challenge 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 — section 7 of the Mining Act is void as being an infringement of guaranteed rights and freedoms under the Constitution.

The Appellants moved to strike out the Respondents writ on grounds inter alia of abuse of process, insufficient interest — the Respondents to bring the action, non joinder of parties, and lack of jurisdiction of the National Court to decide constitutional issues.

The National Court declined to strike out the writ and referred the constitutional questions to the Supreme Court.

Held: (1) Section 18(2) of the Constitution cannot be utilised to base a cause of action in the National Court. Paragraphs (i), (ii) and (iii) of the Statement of Claim should have been struck out by the National Court.

(2) A question of interpretation or application of a Constitutional law may arise at any stage of proceedings in Court or a Tribunal. But such a question must arise during the course of a matter properly before the Court or Tribunal.

(3) There must be factual bases for a referral under s 18(2). In this case there were no such facts. Any findings of fact by the National Court had no evidentiary basis. S.C. Reference 1/91 is therefore premature.

(4) Paragraphs (iv) — (ix) of the Statement of Claim are properly before the National Court. No justifiable reasons were advanced as to why they should be struck off.

Cases Cited:

The following cases are cited in the Judgement.

The Independent State of Papua New Guinea v Kubor Earth Moving (PNG) Pty Ltd [1985] PNGLR 448

SCR No 5 of 1982 [1982] PNGLR 379

SCR No 3 of 1982 [1982] PNGLR 405

SCR No 2 of 1981 [1981] PNGLR 150

Read v Brown 22 QBD 128

Dent v Thomas Kavali [1981] PNGLR 488

NCDIC v Bagibada Holdings Pty Ltd [1987] PNGLR 135

State v Kwambol Embogol (1977) N91 Unreported

State v Peter Painke [1977] PNGLR 141

Re S.142 of Constitution and Jacob Hendrich Prai [1977] PNGLR 42

SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329

SCR No 2 of 1990 [1991] SC 407 Unreported

SCR No 3 of 1989 [1990] SC 384 Unreported

PNG Ready Mixed Concrete Pty Ltd v The State [1981] PNGLR 396

Z G Gelu for 1st, 2nd, 3rd & 5th Appellants

P A Lowing for 4th & 6th Appellants

G J Sheppard for the Respondents

(SCA 19 of 1991 & SCA 36 of 1991)

P A Lowing for Appellants

G J Sheppard for 1st, 2nd & 3rd Respondents

Z G Gelu for 4th, 5th, 6th & 7th Respondents

(SCA 32 of 1991 & SCA 60 of 1991)

KIDU CJ; WOODS, HINCHLIFFE & SHEEHAN, JJ:
By a writ and statement of claim issued on 4 October 1990 and amended subsequently the Plaintiffs claimed -

(i) A declaration that Section 7 of the Act insofar as it purports to apply to gold and minerals found in, on or under customary land owned by the plaintiffs is contrary to Section 53 of the Constitution and is therefore unconstitutional;

(ii) Further or alternatively a declaration that Section 200 of the Act does not comply with Section 53 of the Constitution in that the purposes specified therein are private in nature as opposed to public as required by Section 53 of the Constitution;

(iii) A declaration that the Mining Act is not a law that complies with Sections 38, 44 and 49 — 55 of the Constitution and is therefore void and of no effect.

(iv) Further or alternatively a declaration that the grant of the SML Number 1 at Mt Kare is invalid and without legal force or effect;

(v) Further or alternatively, a declaration that the grant of the SML No. 1 at Mt Kare was made ultra vires the power of the Third Defendant and is therefore without legal force or effect;

(vi) Further or alternatively an order restraining the Fourth and Sixth Defendants by themselves, their servants workmen agents employees or otherwise from entering upon the ground the subject of the SML and from conducting mining operations, or operation preparatory to mining, thereon;

(vii) Damages;

(viii) Interest pursuant to statute; and

(ix) Costs.

The bases of the claim are set out in the Writ as follows:

"1. The Plaintiffs are customary Landowners and have interests in or rights to or over land in the Mt Kare region of the Enga Province part of which is included in the area over which the Third Defendant purported to grant a Special Mining Lease No. 1 at Mt Kare on 27 September 1990.

2. The First Defendant is the Minister for Minerals and Energy.

3. The Second Defendant is the Mining Registrar for the Department of Minerals and Energy.

4. The Third Defendant is the Independent State of Papua New Guinea and may be sued in that capacity.

5. The Fourth and Sixth Defendants are companies incorporated according to the laws of Papua New Guinea and have the capacity to sue and be sued.

6. On 27 September 1990 the Third Defendant purported to grant a Special Mining Lease No. 1 at Mt Kare ("the SML") to the Fourth Defendant over certain land which includes the said land to which the plaintiffs have rights to or interest in. A copy of the said SML is annexed hereto and marked with the letter "A".

7. The purported grant of the SML was made ultra vires the power of the Third Defendant for the following reasons:

(a) (Deleted);

(b) The Third Defendant does not have power to grant an SML over land which was not applied for (annexed hereto and marked with the letter "B" is a copy of the application for the SML);

(c) It is a condition to the power of the Third Defendant to grant a SML pursuant to Section 71 of the Act that the Third Defendant by its agent the Head of State acting on advice receive a report from the Mining Advisory Board;

(d) The Third Defendant by its agent the Head of State acting on advice did not receive a report from the Mining Advisory Board as required by Section 71(1) of the Act by the provisions of Section 10 of the Act and by the Commissions of Inquiry Act — Chapter No.31.

Particulars

(a) Under Section 10(2) of the Mining Act the Minister is required to refer a question or matter to the...