Bougainville Copper Foundation v The Minister for Trade and Industry The Honourable Mr Galeva Kwarara and The National Investment and Development Authority (NIDA) [1988-89] PNGLR 110

• Jurisdiction: Papua New Guinea
• Judge: Bredmeyer J
• Judgment Date: 31 March 1989
• Court: National Court
• Judgement Number: N747

Full Title: Bougainville Copper Foundation v The Minister for Trade and Industry The Honourable Mr Galeva Kwarara and The National Investment and Development Authority (NIDA) [1988-89] PNGLR 110

National Court: Bredmeyer J

Judgment Delivered: 31 March 1989

N747

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

BOUGAINVILLE COPPER FOUNDATION

V

THE MINISTER FOR TRADE AND INDUSTRY THE HONOURABLE MR GALEVA KWARARA AND THE NATIONAL INVESTMENT AND DEVELOPMENT AUTHORITY

Waigani

Bredmeyer J

17 March 1989

31 March 1989

STATUTES — Interpretation Act — Statutory powers — Exercise of — No power to revoke, alter or vary — Power to grant exemption — No power to revoke grant of exemption — Power deriving from Interpretation Act — Power exercisable in same manner as power to grant — National Investment and Development Act (Ch No 120), s 7 — Interpretation Act (Ch No 2), s 35.

ADMINISTRATIVE LAW — Judicial review of administrative acts — Natural justice — Revocation of statutory licence or exemption — Scope of power to revoke — Revocation affecting livelihood — Duty to give prior notice, grounds for and opportunity to be heard — Minister acting on report of departmental officer — Revocation of statutory exemption to foreign enterprise — Rules of natural justice breached — National Investment and Development Act (Ch No 120), s 7.

The National Investment and Development Act (Ch No 120), s 7, empowers the relevant Minister to exempt a foreign enterprise from the operation of specified provisions of that Act "after receiving a report from the National Investment and Development Authority" and "by notice in the National Gazette". No provision is made for revoking exemptions so made.

The Interpretation Act (Ch No 2), s 35, provides:

"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."

The Minister, acting on the report of a departmental officer, authorised the publication of a notice of revocation in the National Gazette of an exemption previously given to the Bougainville Copper Foundation.

On an application for judicial review of the decision of the Minister to revoke the exemption on the grounds that the notice of revocation was ultra vires and/or made in breach of the rules of natural justice,

Held

(1) The general power of revocation contained in s 35 of the Interpretation Act applied to s 7 of the National Investment and Development Act.

(2) Accordingly, the Minister had power to revoke, alter or vary the exemption granted under s 7 of the National Investment and Development Act; such power to be exercised in the same manner and subject to the same conditions as the granting of the exemption, that is, on receipt of a report from the National Investment and Development Authority and by notice in the National Gazette.

(3) In the circumstances, the Minister had not exercised the power of revocation according to its terms by acting on the report of a departmental officer and not of the National Investment and Development Authority.

(4) The power to revoke an exemption granted under s 7 of the National Investment and Development Act, was a decision which directly affected personal property rights including the means of livelihood or ability to carry on business and the Minister or his investigating officer was required to observe the rules of natural justice, to the extent at least of providing the exemption holder with prior notice of the nature of the case against him and a fair opportunity to be heard.

R v Barnsley Metropolitan Borough Council; Ex parte Hook [1976] 3 All ER 452; Selvarajan v Race Relations Board [1976] 1 All ER 12 at 19; Public Disclosure Commission v Isaacs [1989] 1 All ER 137 at 142; Wiseman v Borneman [1971] AC 297 and Re Pergamon Press Ltd [1970] 3 All ER 535, considered and applied.

(5) In the circumstances, there had been a breach of natural justice in failing to disclose the evidence or facts upon which the recommendation for revocation of exemption was to be granted and in failing to provide an opportunity to contravert those facts which vitiated the revocation of the exemption.

Cases Cited

Pergamon Press Ltd, Re [1970] 3 WLR 792; [1970] 3 All ER 535.

Public Disclosure Commission v Isaacs [1989] 1 All ER 137.

R v Barnsley Metropolitan Borough Council; Ex parte Hook [1976] 1 WLR 1052; [1976] 3 All ER 452.

Selvarajan v Race Relations Board [1975] 1 WLR 1686; [1976] 1 All ER 12.

Wattle Park Pty Ltd v Commissioner of Highways (1973) 6 SASR 69.

Wiseman v Borneman [1967] 3 WLR 1372; [1967] 3 All ER 1045.

Wiseman v Borneman [1971] AC 297.

Judicial Review

This was an application for judicial review to quash a decision made by the Minister for Trade and Industry revoking an exemption from parts of the National Investment and Development Act (Ch No 120) previously granted to the plaintiff Foundation. Leave to apply for judicial review had previously been granted.

Counsel

I M Molloy, for the plaintiff.

Z Gelu, for the defendants.

Cur adv vult

31 March 1989

BREDMEYER J: Bougainville Copper Foundation (the Foundation) was a company incorporated under another name in 1971. It took its present name in 1984 and in 1985 it got permission to drop the word "Limited" from its name. It is a company limited by guarantee and thus has no shareholders. In 1983 it was granted tax-exempt status which was backdated to 1 January 1982. The company is a foreign enterprise as defined by the National Investment and Development Act (Ch No 120) (the NIDA Act) which established the National Investment and Development Authority hereinafter called NIDA. By a notice published in the National Gazette of 25 April 1985, Mr Karl Stack, the then Minister for Industrial Development, exempted the company under s 7 of the Act from Pt VI and Pt VIII of the Act.

Following complaints made by the North Solomons Provincial Government to the Minister for Trade and Industry, Sir Julius Chan, NIDA sent its project officer, Mr Peter Werei, to conduct an investigation into the activities of the company and into the activities of a related company, Arawa Enterprises Ltd which is the subject of separate litigation. Mr Werei went to Bougainville and was engaged on his investigation between 15 and 17 March 1988. During that time he had a number of conversations with Mr Douglas Fishburn, the general manager of Bougainville Copper Foundation. On 6 May 1988, Mr Werei completed his 11-page report into the activities of the company and submitted it to his superior, Mr Oki George, the acting executive director of NIDA. On 9 May, Mr George submitted the report to the Minister, Sir Julius Chan, with the following words:

"Attached is the report on the investigation undertaken by Mr Peter Werei in Arawa from 14th to 17th March 1988 for your perusal and comments."

Sir Julius wrote on the bottom of that letter the following comments:

"For three days this is a very specific report, brief and to the point. Well done! For very limited staff of NIDA this is all it is required to do in future re complaints. Findings and recommendation approved and signed."

This note is signed by him and dated 25 May 1988. On the same day he signed the notice revoking the exemption previously given in the National Gazette of 25 April 1985. The notice recites that the revocation is "by virtue of the powers conferred by s 7 of the NIDA Act and all other powers me enabling, having received a report from NIDA (or its duly appointed delegate) ". The notice also stated that the company was required to submit an application for registration in accordance with s 55 and s 57 of the NIDA Act. There was some delay in publishing the notice and it was not published in the National Gazette until 20 October 1988.

The Foundation applied for judicial review of the Minister's decision reasonably promptly. The documents were filed in this Court on 22 November 1988 and leave was granted on 25 November. The Foundation's first argument was that the Minister had no power to revoke an exemption from registration. Section 7 of the NIDA Act does not contain an express power of revocation. Contrast this with s 50 of the NIDA Act which provides that the Head of State, acting on advice given after receiving a report from NIDA, may exempt a foreign enterprise from all or any of the provisions of Pt VI of the Act. Section 62 provides an elaborate and fair procedure before an exemption from registration can be cancelled. If the Minister, after receiving a report from NIDA, is of the opinion that the exempt foreign enterprise has...