Arran Energy (Elevala) Limited on its own behalf and as Operator of PRL 21 and Others v Hon Kerenga Kua OL and Others

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J.
• Judgment Date: 15 May 2023
• Neutral Citation: N10268
• Citation: N10268, 2023-05-15
• Counsel: E. Enderson and S. Supro, for the Plaintiffs,R. Uware and E. Bua, for Second Defendant,J. Holingu, for the First and Fourth Defendants,J. Wohuinangu, for the Third Defendant
• Docket Number: OS (JR) NO. 18 OF 2022 (IECMS),OS (JR) NO. 56 OF 2022 (IECMS) Consolidated
• Hearing Date: 28 April 2023,15 May 2023
• Court: National Court

N10268

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 18 OF 2022 (IECMS)

OS (JR) NO. 56 OF 2022 (IECMS) Consolidated

Between:

Arran Energy (Elevala) Limited on its own behalf and as Operator of PRL 21, Arran Energy (Niugini) Limited, Arran Energy (JG) Pty Limited, Kina Petroleum (PRL 21) Limited

First Plaintiff

and

Arran Energy (Ubuntu) Limited on its own behalf and as Operator of PRL 28, Arran Energy (Niugini) Limited, Mega Fortune International Limited

Second Plaintiff

and

Arran Energy (Ubuntu) Limited on its own behalf and as Operator of PPL 574, Arran Energy (JG) E&P Pty Limited, Arran Energy (Ketu) Limited, Mega Fortune International Limited

Third Plaintiff

v.

Hon Kerenga Kua OL, MP Minister for Petroleum

First Respondent

and

The Independent State of Papua New Guinea

Second Respondent

and

Petroleum Advisory Board

Third Respondent

and

David Manau as Secretary for Department of Petroleum & Energy and Director of Petroleum

Fourth Respondent

Waigani: Kandakasi, J.

2023: 28^th April

2023: 15^th May

STATUTORY INTERPRETATION — Relevant principles — Purposive approach — Purpose of s. 35 of the Interpretations Act — Decision makers other than Courts have power to review, vary or revoke their decisions — accords well with efficacy in administration and avoid litigation and consequences.

JUDICIAL REVIEW — Purpose of judicial review of administrative decisions — check and ensure decision makers follow due process to arrive at their decision — Propriety of decision maker reviewing his own decision to accord what a plaintiff is complaining about — Courts emphasis on parties to settle all disputes brought to court — judicial review matters no exception — Section 35 of Interpretation Act accords well with the need for decision makers to review, revise, vary or revoke their decision in order to resolve a matter brought to Court.

Cases Cited:

SC Ref No. 1 of 2017: Reference by the Ombudsman Commission in the matter of the Constitution, Section 28(5) and the Organic Law on the Duties and Responsibilities of Leadership, Sections 27(4) and 28(1) (2017) SC 1645.

The State v. Downer Constructions (PNG) Limited, (2009) SC979.

South Seas Tuna Corporation Limited v. Betty Palaso as Commissioner General, Internal Revenue Commission and Anor (2019) SC 1761.

The State v. Tamate & Ors (2021) SC2132.

Haiveta v. Wingti & Ors [1994] PNGLR 197.

Avona v. The State [1986] PNGLR 148.

William Mel v. Coleman Pakalia & Ors (2005) SC790.

Gene v. Thompson (2007) N3254.

Tindiwi & Ors v. Nilkare, Minister for Provincial Affairs, and The State [1984] PNGLR 191.

Application by National Capital District Interim Commission [1987] PNGLR 339.

Bougainville Copper Foundation v Minister for Trade and Industry [1988–89] PNGLR 110.

Gegeyo v. Minister for Lands and Physical Planning [1987] PNGLR 331.

Nelson v. Pruaitch, Minister for Forests (2003) N2440.

Nuia v. Sabumei [1992] PNGLR 90.

Hargy Oil Palm Ltd v. Ewasse Landowners Association Incorporated (2013) N5441.

Alex Awesa & Anor v. PNG Power Limited (2014) N5708.

Wantok Gaming Systems Ltd v. National Gaming Control Board (2014) N5809.

Meckpi v. Fallon (2017) N6708.

PNG Ports Corporation Ltd v. Canopus No 71 Ltd (2010) N4288.

Able Construction Ltd v. W.R. Carpenter (PNG) Ltd (2014) N5636.

Robmos Ltd v. Fredrick M Punangi (2017) N6585.

NCDC v. Yama Security Services Pty Ltd (2003) SC707.

Henry Torobert v. Mary Torobert (2012) SC1198.

Kalinoe v. Paul Paraka Lawyers (2014) SC1366.

Re Internal Security Act; Reference by the Ombudsman Commission [1994] PNGLR 341.

Reference by the Ombudsman Commission Pursuant to Constitution, Section 19(1), Re Public Money Management Regularisation Act 2017 (2020) SC1944.

Counsel:

E. Enderson and S. Supro, for the Plaintiffs

R. Uware and E. Bua, for Second Defendant

J. Holingu, for the First and Fourth Defendants

J. Wohuinangu, for the Third Defendant

Denton Lawyers: Lawyers for the all the Plaintiffs

Solicitor General: Lawyers for the Second Defendant

Holingu Lawyers: Lawyers for the First and Fourth Defendants

Gileng & Co. Lawyers Lawyers for the Third Defendant

15^th May, 2023

1. Kandakasi DCJ: By consent of the parties, the Court heard and reserved its decision on a single question. The question is what is the meaning and effect of s. 35 of the Interpretation Act on the applicability of the common law doctrine of functus officio?

Background

2. This preliminary issue arose because the First Respondent Hon. Kerenga Kua, Minister for Petroleum (the Minister) retracted a decision made by him on 03^rd February 2022 refusing to grant the plaintiffs (Arrans) application for a petroleum development license, PDL 12 (the First Decision). He then replaced his First Decision with a new decision on 05^th May 2022 (the Second Decision). The Second Decision indicated the Minister's intention to refuse Arrans' application and gave several reasons. At the same time, he invited them to respond to the reasons within 30 days. That decision was in response to the proceeding under OS (JR) 18 of 2022 which in the main seeks a review and quashing of the First Decision as well as an unknown decision of the Petroleum Advisory Board (PAB). From Arrans' Statement pursuant to Order 16, Rule 2 (a) of the National Court Rules, in addition to the main reliefs sought they also seek orders for the Minister to give detailed reasons, for his decision and for them to be given 30 days to respond. Instead of responding as required by the Minister's Second Decision, the Arrans filed OS (JR) 56 of 2022. This led to the Minister and the rest of the defendants applying by notices of motion for a dismissal of the proceedings.

Relevant Facts

3. The facts giving rise to the issue and the two different proceedings are these. In March 2014, Arran applied for a Petroleum Development License (APDL12) under the Oil and Gas Act 1998. On 16^th September 2021, they amended their application. On 03^rd February 2022, the Minister refused Arran's application for APDL 12. That cause Arrans to commence on 09^th March 2022 their judicial review proceeding, OS (JR) 18 of 2022. Faced with that proceeding, the Minister on 04^th May 2022 decided to retract and revoke his First Decision and have it replaced with his Second Decision and issued a new instrument. As noted, that decision gave notice of the Minister's intention to refuse a grant of Arran's application and gave reasons for that decision. The decision also gave Arrans 30 days for them to respond to the reasons. By letter dated 05^th May 2022, the Minister communicated his decision to the Arrans. That communication informed Arrans about the retraction, issuance of his Second Decision and the issuance of a new instrument pursuant to section 56B of the Oil and Gas Act.

4. Meanwhile, also on 05^th May 2022, OS (JR) No. 18 of 2022 (IECMS) came before me. After having heard the parties, I decided to grant Arran's application for leave for judicial review. I also ordered that the grant of leave operate as a stay of the relevant decision.

5. On 22^nd May 2022, the Minister filed an application to dismiss OS (JR) No 18 of 2022 (IECMS) for being an abuse of process and disclosing no reasonable cause of action. The very next day 23^rd May 2022, Arrans commenced OS (JR) No 56 of 2022 (IECMS) seeking amongst others, an order to quash the Second Decision. On 03^rd June 2022, Tamade AJ granted leave for review and adjourned to 09^th June 2022 for a hearing of a stay application. In the meantime, an interim stay of the Second Decision was granted. On 4 June 2022 the Respondents' time to respond to notice lapsed. On 8 June 2022 the Minister and Fourth Defendant (the State) each filed applications for a dismissal of OS (JR) No 56 of 2022 (IECMS) for being an abuse of process and disclosing no reasonable cause of action. On 09^th June 2022, Tamade AJ heard Arrans' application for stay of the Second Decision and had that granted. Her Honour also directed the application to dismiss the proceeding in OS (JR) 18 of 2022 (IECMS) to be heard at the trial together with OS (JR) NO 56 of 2022 (IECMS). Her Honour then adjourned the proceedings to 24^th June 2022 at 9.30am for directions.

Parties Arguments

6. The Minister and the other defendants applications for dismissal argued that, the Minister in his Second Decision, effectively granted the reliefs sought by Arrans in OS (JR) 18 of 2022 with reasons given. Also, the Second Decision was an interim decision indicating the Minister's intention to refuse Arrans' application for reasons given subject to hearing Arrans. That meant the decision was not final and hence, the decision is not open for judicial review. Arrans, however, argue that the Minster is not permitted to revoke his initial decision and issue a fresh notice under section 56B of the Oil and Gas Act 1998 as amended based on the application of the common law doctrine of functus officio. This is so they say because, the Minister's First Decision was final and conclusive in nature and the Minister had become “functus officio.” In their response, the Minister and the State argued to the contrary and rely upon the provisions of s. 35 of the Interpretation Act. Under that provision they submit, the Minister did have the power to retract and replace his First Decision with the Second Decision.

Consideration: law

7. Obviously, the issue will be resolved by what interpretation and meaning the Court gives to s. 35 of Interpretation Act. It is therefore necessary to turn to the wording of the provision in question. The provision reads:

“35. Implied Power to Alter

Where a statutory provision confers a power to make an instrument or decision (other than a decision of a court), the power includes power, exercisable in the same manner and subject to the same conditions (if any) to alter the instrument or decision.”

8. I will allow myself to be guided by the principles governing statutory interpretation which is trite law. I have alluded to the relevant principles in...