Mineral Resources CMCA Holdings Limited v Ok Tedi Fly River Development Foundation Limited (2018) SC1752

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Judge: Cannings J, Makail J, Polume-Kiele J
• Judgment Date: 24 December 2018
• Citation: (2018) SC1752
• Judgment Number: SC1752
• Year: 2018
• Docket Number: SCA NO 157 OF 2018

Full Title: SCA NO 157 OF 2018; Mineral Resources CMCA Holdings Limited v Ok Tedi Fly River Development Foundation Limited (2018) SC1752

Supreme Court: Cannings J, Makail J, Polume-Kiele J

Judgment Delivered: 24 December 2018

SC1752

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO 157 OF 2018

MINERAL RESOURCES CMCA HOLDINGS LIMITED

Appellant

V

OK TEDI FLY RIVER DEVELOPMENT FOUNDATION LIMITED

Respondent

Waigani: Cannings J, Makail J, Polume-Kiele J

2018: 14, 17, 24 December

PRACTICE AND PROCEDURE – objection to competency of appeal on various grounds: vagueness of grounds of appeal; issues raised on appeal not raised in National Court; appellant not a party in National Court; judgment the subject of appeal was interlocutory and leave to appeal not sought; failure to obtain approval of Attorney-General prior to filing appeal: Attorney-General Act 1989, Section 7(i); Public Money Management Regularisation Act, Section 10.

The respondent to an appeal objected to competency of the appeal on six grounds: (1) the notice of appeal did not comply with Order 7, Rule 10 of the Supreme Court Rules 2012 due to vagueness of the grounds of appeal; (2) the issues referred to in the notice of appeal were not raised in the National Court; (3) the appellant did not have a sufficient interest in the subject matter of the appeal; (4) the appellant did not obtain leave to appeal, which was necessary as the order appealed from was interlocutory and the appeal involved questions of fact; (5) the appeal was filed in breach of Section 7(i) of the Attorney-General Act 1989; and (6) the appeal was filed in breach of Section 10 of the Public Money Management Regularisation Act 2017.

Held:

(1) The grounds of appeal adequately complied with Order 7, Rule 10 of the Supreme Court Rules.

(2) The fact that issues raised in the notice of appeal were not raised in the National Court, even if there was adequate opportunity to raise them, is not a matter going to the jurisdiction of the Court. It is a matter for submissions at the hearing of the appeal.

(3) The respondent bore the onus of establishing that the appellant lacked a sufficient interest in the appeal, and failed to discharge the onus.

(4) The judgment appealed against was not interlocutory and leave to appeal was not required. But if it were regarded as interlocutory, it entailed granting an injunction, in which case Section 14(3)(b)(ii) of the Supreme Court Act applied and leave to appeal was still not required. The appeal did not entail questions of fact. It at least entailed questions of mixed fact and law, and by virtue of Section 14(1)(a) or (b) of the Supreme Court Act leave to appeal was not required.

(5) The failure to obtain approval for a brief-out from the Attorney-General is only a matter going to the jurisdiction of the Court if no approval whatsoever is obtained. Here the Attorney-General gave retrospective approval so there was no breach of Section 7(i) of the Attorney-General Act.

(6) There was, for similar reasons provided in relation to Section 7(i) of the Attorney-General Act, no breach of Section 10 of the Public Money Management Regularisation Act.

(7) All grounds of objection failed, and the objection to competency was dismissed, with costs.

Case cited

The following cases are cited in the judgment:

Application by Herman Joseph Leahy (2006) SC855

Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853

Comrade Trustee Services Ltd v Arnold Daugle (2011) SC1105

Curtain Brothers (PNG) Ltd v University of Papua New Guinea (2005) SC788

Ezekiel Sigi Anisi v Tony Waterupu Aimo (2013) SC1237

Kitogara Holdings v NCDIC [1988–89] PNGLR 346

Marape v O’Neill (2016) SC1487

Michael Kuman v Digicel (PNG) Ltd (2017) SC1638

Papua Club Inc v Nusaum Holdings Ltd (2005) SC812

Philip v Makiba (2018) SC1725

Punagi v Pacific Plantation Ltd (2011) SC1153

Sakaraias Akap v Kenneth Korakali (2012) SC1179

Tamali Angoya v Tugupa Association Inc (2009) SC978

Telikom PNG Ltd v ICCC (2008) SC906

Valu v Ngangan (2018) SC1723

Van Der Kreek v Van Der Kreek [1979] PNGLR

Yakham v Merriam [1998] PNGLR 555

OBJECTION

This was an objection to competency of an appeal.

Counsel

A Mana, for the Appellant

G J Sheppard & G Salika, for the Respondent

24th December, 2018

1. BY THE COURT: This is a ruling on an objection to competency of an appeal to the Supreme Court. The objection is made by the respondent, Ok Tedi Fly River Development Foundation Ltd, under an amended notice of objection to competency filed 17 December 2018.

2. The appeal, SCA No 157 of 2018, which the respondent says is incompetent, is brought by the appellant, Mineral Resources CMCA Holdings Ltd, against the extempore decision of Justice Koeget made on 5 September 2018 in the National Court at Waigani in proceedings described as OS No 75 of 2018, Ok Tedi Fly River Development Foundation Ltd v Hon James Marape, Minister for Finance & 6 Others.

NATIONAL COURT CASE: OS 75 OF 2018

3. The appellant was not a party to the case, which was about control of a trust account set up to provide compensation to traditional landowners for environmental pollution associated with the Ok Tedi mine in Western Province. The trust account is the “Western Province Community Mine Continuation Agreement Region People’s Dividend Trust Account”, also known as the “WPPDTA-CMCA”. It has been established by instruments executed and subsequently amended by various Ministers for Finance or the Secretary for Finance under the Public Finances (Management) Act 1995 in the period from 2007 to 2017. The appellant was the trustee of that trust account by virtue of a decision of the National Executive Council dated 5 June 2017.

4. The respondent was the plaintiff in the National Court and filed the proceedings in the Daru Registry. The defendants were:

1. Hon James Marape, Minister for Finance;

2. The National Executive Council;

3. Harry Kore, Secretary, Department of Mineral Policy & Geo-hazards Management;

4. Dr Ken Ngangan, Secretary, Department of Finance;

5. Dairi Vele, Secretary, Department of Treasury;

6. Hakaua Harry, Secretary, Department of National Planning & Monitoring;

7. The Independent State of Papua New Guinea.

5. On 5 September 2018 Koeget J, after a series of hearings at Daru, Tabubil and Waigani, made an order, apparently on determining a notice of motion by the plaintiff, in the following terms:

THE COURT ORDERS THAT:

1. A declaration pursuant to Order 23, Rule 6(b) of the National Court Rules 1983 (as amended) (“the NCR”), sections 22, 23, 57, 58 and 155(4) of the Constitution, sections 5 and 15 of the Laws Adoption and Adaptation Act Chapter 20, section 3 of the Underlying Law Act 2000 that it [sic] has standing to bring these proceedings on behalf of the beneficiaries of the Western Province Community Mine Continuation Agreement Region People’s Dividend Trust for the enforcement of their human rights and freedoms under the Constitution, including equitable compensation and restitution consequential upon making the Orders herein.

2. An order that within seven days of the date of this order, the Board of Trustees [sic] provide to the Plaintiff, through its lawyers, an account of the Trust Property in the form required by section 19(3) and (4) of the Public Finances (Management) Act 1995 (as amended), in respect to the Trust Property from November 1995 to the present day.

3. An order that following the receipt of the account ordered to be provided in Order 3 [sic] hereof, or after the time limited for the provision of such account (whichever is sooner), the Plaintiff are [sic] at liberty to institute fresh proceedings to: (a) identify any illegal payments found to have been made by the Board of Trustees, as constituted from time to time, from the Trust property, and the parties to whom such payments were made, and/or (b) recover such payments, and/or (c) recover damages for such other breaches of the trust duties as the Plaintiff may reclaim.

4. Terms 2 and 3 of the orders of the Court made on 3 August 2018 are made permanent such that: (a) the Plaintiff is substituted forthwith for the existing Trustees of the Western Province Community Mine Continuation Agreement Region People’s Dividend Trust Account (“WPPDT-CMCA”) established pursuant to the instrument executed on 12 June 2007 by Honourable Mr John Hickey and amended by Honourable Mr James Marape on 9 April 2014, and Dr Ken Ngangan dated 30 October 2017; (b) The Australia and New Zealand Banking Group (PNG) Ltd (“ANZ”) shall only operate the bank account comprising the Trust Property, that is account no. 12767475, on the exclusive authority and direction of the proper officer of the Plaintiff and no other person or entity.

5. Costs to the Plaintiff.

6. Time is abridged to the time of settlement by the Registrar which shall take place forthwith.

GROUNDS OF APPEAL

6. There is one ground of appeal:

The Judge erred as a matter of law in...