Barrick (Niugini) Ltd v Stanley Nekital in his capacity as the Registrar of Tenements and Jerry Garry as Chairman and representing all other members of the Mining Advisory Council and Mineral Resources Authority and Hon Johnson Tuke, MP as Minister for Mining and Hon James Marape, MP as Chairman and representing all other members of the National Executive Council and the Independent State of Papua New Guinea and Mineral Resources Enga Ltd and Hon Davis Steven MP as Attorney General and nominal defendant on behalf of the Head of State (2020) N8429

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi DCJ
• Judgment Date: 10 July 2020
• Court: National Court
• Citation: (2020) N8429
• Docket Number: OS (JR) No 5 of
• Year: 2020
• Judgement Number: N8429

Full Title: OS (JR) No 5 of ; Barrick (Niugini) Ltd v Stanley Nekital in his capacity as the Registrar of Tenements and Jerry Garry as Chairman and representing all other members of the Mining Advisory Council and Mineral Resources Authority and Hon Johnson Tuke, MP as Minister for Mining and Hon James Marape, MP as Chairman and representing all other members of the National Executive Council and the Independent State of Papua New Guinea and Mineral Resources Enga Ltd and Hon Davis Steven MP as Attorney General and nominal defendant on behalf of the Head of State (2020) N8429

National Court: Kandakasi DCJ

Judgment Delivered: 10 July 2020

N8429

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 05 OF 2020

BETWEEN

BARRICK (NIUGINI) LIMITED

Plaintiff

AND

STANLEY NEKITAL in his capacity as the Registrar of Tenements

First Defendant

AND

JERRY GARRY as Chairman and representing all other members of the MINING ADVISORY COUNCIL

Second Defendant

AND

MINERAL RESOURCES AUTHORITY

Third Defendant

AND

HON. JOHNSON TUKE, MP as MINISTER FOR MINING

Fourth Defendant

AND

HON. JAMES MARAPE, MP as Chairman and representing all other members of the NATIONAL EXECUTIVE COUNCIL

Fifth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Sixth Defendant

AND

MINERAL RESOURCES ENGA LIMITED

Seventh Defendant

AND

HON. DAVIS STEVEN, MP as Attorney General and nominal defendant on behalf of the Head of State

Eighth Defendant

Waigani: Kandakasi DCJ

2020: 17th June

2020: 10th July

PRACTICE & PROCEDURE – Application for discovery of documents -National Executive Council (NEC) documents – whether discoverable – general principles on discovery – exceptions – present case – some of the documents sought to be discovered statutorily prohibited from discovery - discovery order for documents not prohibited and application declined for those prohibited by statute – Constitution s. 86 (4) , Mining Act 1992, s.163.

Facts

At the expiry of a mining lease and mining development agreement between the Plaintiff and the State, the National Executive Council (NEC) decided not to renew the lease. Under Court orders the NEC disclosed through affidavits filed in Court a copy of the decision with the reasons for the decision. Other affidavit evidence filed for the Defendants spoke about the existence of certain of the documents but claimed they were prohibited by certain provisions of the Mining Act 1992 from being disclosed and were not annexed to the affidavits. The Plaintiff applied for a discovery of the documents which formed the basis for the NEC’s decision and the basis for the NEC’s advice to the Head of State, draft submissions and other documents constituting internal communication. The NEC and the other defendants claimed the documents the Plaintiff sought to discover were prohibited from discovery by s. 86 (4) of the Constitution and s. 163 of the Mining Act 1992 and as such they were not discoverable

Held:

1. It is trite law, generally speaking that, all documents that are relevant to any proceeding in any Court are discoverable subject to a few known exceptions.

2. Where statutory law creates confidentiality in specified communication such communications are not open for discovery except only within expressed exception, if any.

3. Section 86(4) of the Constitution prohibits the discovery of documents constituting advice to the Head of State. Consequently, the NEC’s advice to the Head of State in this case was not discoverable.

4. Parliament having considered all things decided by Section 163 of the Mining Act 1992 to treat all ongoing and how the mining industry works through the relevant instrumentalities of the State a confidential process and as such all documents in the process are not discoverable unless they come under the exceptions specified.

5. The Plaintiff has failed to make a case for discovery within the provisions of s. 163 of the Mining Act 1992 and was therefore not entitled to the discoveries sought.

Cases Cited:

Papua New Guinea Cases

Takoa Pastoral Co Ltd v. Dr Puka Temu, Minister for Lands (2009) N3739

Public Officers Superannuation Fund Board v. Imanakuan (2001) SC 677

Ace Guard Dog Security Services Limited v. Yama Security Services Ltd & Ors (2003) N2459

Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694

Sir Arnold Amet v. Peter Charles Yama (2010) SC1064.

HobaiHaro v. The State (2019) SC1841.

Mission Asiki v. Manasupe Zurenuoc & Ors (2005) SC797

Leto Darius v. The Commissioner of Police (2001) N2046

National Executive Council v Public Employees Association of Papua New Guinea [1993] PNGLR 264

Minister for Lands v. William Robert Frame [1980] PNGLR 433

Dr Allan Marat v. Hanjung Power (2014) SC1357

Francis Kunai v PNG Forest Authority (2018) N7570

Overseas Cases

R (Bancoult) v. Secretary for State for Foreign and Commonwealth Office (2001) QB 1067

R (Quark Fishing Limited) v. Secretary for State, Foreign Affairs, Commonwealth Affairs [2002] EWCA Civil 1409

R v. Barnsley Metropolitan Borough Council Ex Parte Hook [1976] 1WLR 1056

Tweed v. Parades Commission for Northern Ireland [2007] 1AC 650

Barton v.Csidei [1979] 1 NSWR 524; (1979) 4ACLR 200

Sankey v. Whitlam [1978] 142 CLR 1

Robinson v. South Australia [1931] ALLER 333

Rogers v. Home Security [1973] AC 388

Counsel:

Mr. D. Wood, A. Edo and L. Evore, for the Plaintiff

Mr. N. Saroa, for the First, Third and Fourth Defendants

Mr. L. Kandi, for the Fifth Defendant

Mr. T. Tanuvasa and Ms I. Mugigia, for the Second, Sixth and Eight Defendants

Mr. G. Geroro, for the Seventh Defendant

10th July, 2020

1. KANDAKASI DCJ: By notice of motion filed on 10th June 2020, Barrick (Niugini) Limited (Barrick) is amongst other reliefs sought, applying for discovery of certain documents including drafts of documents forming the basis for the National Executive Council (NEC) decision the subject of this proceeding and the NEC’s advice to the Head of State. The defendants vehemently oppose the application, claiming amongst others that the documents are statutorily precluded from discovery, by s. 86 (4) of the Constitution and s.163 of the Mining Act 1992 (the Act).

2. The motion in relevant parts reads:

“Pursuant to Order 16 Rule 13(5)(4) of the National Court Rules, the defendants shall make available to the Plaintiff by 19th June 2020 the records and other relevant documents in their possession, custody or power (including copies thereof) relating other decisions under review in this proceeding, namely; -

(a) the report in writing made by the Registrar to the Mining Advisory Council (MAC) pursuant to Section 103((b)(iii) of the Mining Act 1992 (the Act);

(b) Each report provided to the MAC pursuant to Section 104 of the Act;

(c) The written report prepared by the Warden pursuant to Section 109 of the Act in respect of the extension application;

(d) All reports submitted to the MAC pursuant to Section 110 of the Act, including any report submitted by a Provincial Government under Section 110(1);

(e) The recommendation, and draft versions of the Recommendation, made by the MAC pursuant to Section 110(4)(b) of the Act;

(f) The minutes of meetings of the Mineral Resources Authority (MRA) in respect of the extension application;

(g) The minutes of meetings of MAC in respect of the extension application;

(h) Any assessments or reports made by or on behalf of the MRA (or any officer of MRA) in respect of the extension application;

(i) Submissions to the National Executive Council (NAC) in respect of the extension application;

(j) All draft versions of the decisions the subject of judicial review in this proceeding;

(k) Any advice provided to the Governor- General in respect of the extension application (the NEC advice);

(l) All draft versions of the NEC advice; and

(m) All documents, reports or other materials referred to in, or otherwise relied upon for the purposes of, the assessments, reports and Recommendations referred to above.”

3. I think it is important to note the kind of documents that are sought to be disclosed or discovered. They include:

(a) the reports in writing made by the Mining Registrar to the Mining Advisory Council pursuant to section 103 of the Mining Act 1992 which report was provided to MAC pursuant to section 104 of the Act;

(b) the written report prepared by the warden pursuant to section 109 of the Act in respect of extension application;

(c) the whole report submitted to the MAC pursuant to section 110 of the Act, including any report submitted by a provincial government under section 110(1);

(d) the recommendation and draft versions of the recommendation made by the MAC pursuant to section 110(4)(b) of the Act;

(e) the minutes of meetings of the Mineral Resources Authority (MRA), in respect of the extension application and minutes of meeting of MAC in respect of the extension application;

(f) any assessment or reports by or on behalf of MRA or any officer of MRA in respect of the extension application;

(g) submissions to the National...