The Independent State of Papua New Guinea and Sam Akoita, Minister for Mines and Tolukuma Gold Mines Limited v Central Provincial Government (2009) SC977

• Jurisdiction: Papua New Guinea
• Date: 15 June 2009
• Citation: (2009) SC977
• Docket Number: SCA 99 &100 OF 2005
• Court: Supreme Court
• Year: 2009

Full Title: SCA 99 &100 OF 2005; The Independent State of Papua New Guinea and Sam Akoita, Minister for Mines and Tolukuma Gold Mines Limited v Central Provincial Government (2009) SC977

Supreme Court: Sakora, Manuhu & Hartshorn JJ

Judgment Delivered: 15 June 2009

APPEAL - Appeal against refusal to dismiss Originating Summons as an abuse of process—whether trial judge erred in his determination of whether correct procedure used in claiming relief sought—application for declaratory orders—factors necessary for relief to be sought—no competing rights or controversy between parties—abuse of process - appeal upheld

Facts:

Tolukuma Gold Mines Ltd operates a mine in the Central Province and was granted an extension of the term of its mining lease. The Central Provincial Government (CPG) sought declaratory relief in the National Court that the extension was unconstitutional, unlawful and null and void. Tolukuma applied unsuccessfully to dismiss the National Court proceeding as being incompetent and an abuse of process. Tolukuma, the State and the Minister for Mines appeal that decision refusing to dismiss.

Held:

1. There is no requirement for the Central Provincial Government to be consulted before the term of a mining lease is extended. There are no competing rights or controversy between the parties and declaratory relief should not have been sought.

2. CPG’s cause of action is incontestably bad and an abuse of process.

3. The trial judge fell into error when he exercised his discretion and refused to dismiss the proceeding as an abuse of process under O12 r40(1)(c) National Court Rules.

4. The appeal is upheld and the whole of the interlocutory judgment of the National Court of 3rd August 2005 is set aside.

Cases cited:

Papua New Guinea cases:

Donigi v The State [1991] PNGLR 376; Curtain Bros (PNG) Ltd v UPNG (2005) SC788; Ok Tedi Mining Ltd v Niugini Insurance Corporation (No 2) [1988–89] PNGLR 425

Overseas Cases:

Ainsworth v. Criminal Justice Commission (1991-1992) 175 CLR 564; Mentha & Ors v. GE Capital Ltd & Anor (1997) 154 ALR 565; Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd [1921] 2 AC 438

15 June, 2009

1. BY THE COURT: Tolukuma Gold Mines Ltd operates a mine in the Central Province and was granted an extension of the term of its mining lease. The Central Provincial Government (CPG) sought declaratory relief in the National Court that the extension was unconstitutional, unlawful and null and void. Tolukuma applied unsuccessfully to dismiss the National Court proceeding as being incompetent and an abuse of process. Tolukuma, the State...