Hon Ginson Goheyu Sanu in his capacity as Governor of Morobe Province and Morobe Provincial Government v Hon Johnson Tuke in his capacity as Minister for Mining and Daniel Rolpagarea in his capacity as the State Solicitor and the Independent State of Papua New Guinea and Wafi Mining Ltd and Newcrest PNG 2 Ltd (2020) N8187

• Jurisdiction: Papua New Guinea
• Judge: Murray, J
• Judgment Date: 24 January 2020
• Court: National Court
• Citation: (2020) N8187
• Docket Number: OS (JR) No 18 of 2019
• Year: 2020
• Judgement Number: N8187

Full Title: OS (JR) No 18 of 2019; Hon Ginson Goheyu Sanu in his capacity as Governor of Morobe Province and Morobe Provincial Government v Hon Johnson Tuke in his capacity as Minister for Mining and Daniel Rolpagarea in his capacity as the State Solicitor and the Independent State of Papua New Guinea and Wafi Mining Ltd and Newcrest PNG 2 Ltd (2020) N8187

National Court: Murray, J

Judgment Delivered: 24 January 2020

N8187

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 18 OF 2019

BETWEEN

HON. GINSON GOHEYU SANU in his capacity as

GOVERNOR OF MOROBE PROVINCE

First Plaintiff

AND

MOROBE PROVINCIAL GOVERNMENT

Second Plaintiff

AND

HON. JOHNSON TUKE in his capacity as

MINISTER FOR MINING

First Defendant

AND

DANIEL ROLPAGAREA in his capacity as the

STATE SOLICITOR

Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Defendant

AND

WAFI MINING LIMITED

Fourth Defendant

AND

NEWCREST PNG 2 LIMITED

Fifth Defendant

Lae : Murray, J

2019 : 27th & 30th December

2020 : 24th January

JUDICIAL REVIEW - PRACTICE AND PROCEDURE – Whether Court has jurisdiction to vary a stay order granted under Order 16 r 3 (8) (a) National Court Rules by an application under Order 12 r 8, National Court Rules, Constitution, s 155 (4) – Ruling in Chan v Ombudsman (1998) SC557 followed.

PRACTICE AND PROCEEDURE- Judicial Review- Whether a stay order granted under Order 16 r 3 (8) (a) National Court Rules is capable of being varied.

PRACTICE AND PROCEEDURE- Judicial Review- Application of Order 16 r 11 National Court Rules.

Cases Cited:

Jim Trading Ltd vs. John Madison (2006) N3174

Kelvin Rumpia vs. Abaris Buri & Ors - N3035

Koim vs. O’Neil (2014) N5694

Les Carlewis vs. Reuben Renagi & Ors (2003) SC 1274

Makeng v Timbers (2008) N3317

Sir Puka Temu vs. Rigo Lua (2015) N5918

Summit Development Ltd vs. Chan (2016) N639

The Right Hon. Sir Julius Chan vs. The Ombudsman Commission of Papua New Guinea, (1998) SC557

Counsel:

Mr. R. Saulep, for the First Plaintiff

Mr. A. Mana, for the Fourth & Fifth Defendants

RULING

1. MURRAY, J: The application before me is by the Fourth and Fifth Defendants to vary a Stay Order granted by Numapo AJ on 7th May 2019. Ordinarily, this application should go back before Numapo AJ. However, because of the urgency of the application and because His Honour was not available, the application came before me.

Background

2. The First Plaintiff is the Governor of Morobe Province.

3. On 10th December 2018, the Second Defendant in his capacity as the State Solicitor, by way of a letter, to the First Defendant, the Minister for Mining, advised him that the MOU that was drawn up between the State and the Fourth and Fifth Defendants, for the purpose of the Wafi-Golpu Mining project was good to go. Based on the advice provided, the MOU was signed the next day.

4. As the Governor of Morobe Province, where the mining project will take place, the First Plaintiff felt he and his government ought to have been consulted before the MOU was finalized, however, that did not happen.

5. Aggrieved by that, he instituted this proceeding on 17th January 2019 seeking leave to apply for Judicial Review of the Decision by the State Solicitor on 10th December 2018, that the MOU was good to go and the MOU itself.

6. On 19th March 2019, the application for leave was heard and a ruling was reserved to 7th May 2019. On that date this Court delivered its decision, granting leave to the Applicant to apply for Judicial Review.

7. Immediately following the grant of leave, the Court also ordered a stay of further progress on the Wafi-Golpu Mining project under the MOU pursuant to Order 16 Rule 3 (8) (a) of the National Court Rules and also issued directions to progress the matter to trial.

8. On 7th October 2019, the Court fixed the matter for trial on 6th November 2019.

9. On 6th November 2019, the Court did not sit. The Court sat on 7th November instead. On this date, the Court was informed of a pending application for Joinder. The Court then adjourned the application for Joinder to 9th December 2019, and also tentatively set the matter for trial on the same date.

10. Then on 5th December 2019, the Fourth and Fifth Defendants filed their application the subject of this ruling, for variation of this Court’s order for stay made on 7th May 2019.

11. The order which the Fourth and Fifth Defendants seek to vary was granted pursuant to Order 16 Rule 3 (8) (a) of the National Court Rules.

12. The Application is made pursuant to Order 12 Rule 8 of the National Court Rules and Section 155 (4) of the Constitution and it is supported by the affidavit of Mr. David Bruce Wissink, sworn 4th December 2019 and filed 5th December 2019.

13. The application came before me on 27th December 2019. The First Plaintiff opposed the application.

14. At the conclusion of the hearing, both counsels were asked if they were aware of any case authorities that have specifically considered the application of Order 16 Rule 3 (8) (a) of the Rules. Both counsels indicated, they could not immediately assist but would try to assist the Court as requested.

15. On 28th December 2019 Mr. Saulep for the First Plaintiff provided to the Court a copy of a Supreme Court judgment in the case of The Right Honourable Sir Julius Chan vs. The Ombudsman Commission of Papua New Guinea (1998) SC557.

16. At the same time of providing a copy of the said judgment, Mr. Saulep also made additional submissions in writing, based on the said Supreme Court Judgement. A copy of both the Supreme Court Judgement and the additional submissions were also sent to Mr. Mana for the Fourth & Fifth Defendants.

17. Having received the additional submissions by Mr. Saulep, I considered it appropriate to recall the matter which I did on 31st December 2019 specifically to hear submissions by the Fourth and Fifth Defendants in response to the Plaintiff’s additional submissions which essentially raised an issue of jurisdiction.

18. In Court representing the Fourth and Fifth Defendants was Mr. Kais who appeared on brief by Mr. Mana but did not have any instructions to respond to the additional submissions by Mr. Saulep.

I then adjourned briefly to enable Mr. Kais to take instructions from Mr. Mana.

When the Court resumed, parties appeared in chambers and informed the Court that, it was not necessary for the Court to set a new date for Mr. Mana to appear and respond to the additional submissions by Mr. Saulep. Instead, both parties agreed that, Mr. Mana also provide his written submissions in response for the Court to read.

19. The additional written submissions by the Fourth and Fifth Defendants was received on 2nd January 2020.

Issues

20. Argument by parties give rise to three main issues. They are:

1. Whether it is appropriate for this Court to consider further submissions after the conclusion of the Fourth and Fifth Defendants’ application on 27th December 2019.

2. Whether this Court has jurisdiction under Order 12 Rule 8 (3) of the National Court Rules and Section 155 (4) of the Constitution to hear an application to vary a stay order granted under Order 16 Rule 3 (8) (a) of the National Court Rules.

3. Subject to the answer to question 2, whether the Fourth and Fifth Defendants have met all the requirement for a variation of the Stay Order of 7th May 2019.

21. Apart from what I consider to be the main issues for me to determine, two sub issues also arise from the arguments which I will also address separately. Those issues are: firstly, as an alternative to the second main issue, whether this Court can hear the 4th & 5th defendants’ application under O. 16 r 3 (8) (a) and secondly, whether a stay order is capable of being varied?

Is it appropriate for this Court to consider further submissions after the conclusion of hearing of the Fourth and Fifth Defendants’ application on 27th December 2019?

22. In my view, as long as all parties are given the opportunity to make further submissions on a crucial matter that relate directly to a matter before a Court for consideration, there is nothing wrong about receiving and considering the further submissions. In this case, the further submissions by the First Plaintiff relate to the issue of this Court’s jurisdiction to entertain the Fourth and Fifth Defendants’ application. It is trite that, an issue of jurisdiction is a threshold issue which a Court can consider at any stage of a proceeding up to Judgment. Where parties do not raise it, the Court can do so on its own motion after hearing the parties.

23. In this case, one of the...