Torrens Mining (PNG) Limited v Honourable Johnson Tuke MP and Others

• Jurisdiction: Papua New Guinea
• Judge: Batari J,Cannings J,David J
• Judgment Date: 28 November 2023
• Neutral Citation: SC2497
• Citation: SC2497, 2023-11-28
• Counsel: A Roden-Paru & M Makap, for the Appellants,T L Cooper, for the First Respondent,H Wangi, for the Second & Third Respondents,H Wangi, for the Second & Third Respondents
• Docket Number: SCM NO 34 OF 2021
• Hearing Date: 02 November 2023,28 November 2023
• Court: Supreme Court

SC2497

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCM NO 34 OF 2021

Torrens Mining (PNG) Limited

Appellant

v.

Honourable Johnson Tuke MP, Minister for Mining

First Respondent

Jerry Garry, Chairman & Representative of All Other Members, Mining Advisory Council

Second Respondent

The Independent State of Papua New Guinea

Third Respondent

Waigani: Batari J, Cannings J, David J

2023: 2^nd & 28^th November

JUDICIAL REVIEW — application for leave for judicial review — whether applicant had an arguable case for review.

The appellant applied for leave under Order 16 of the National Court Rules for judicial review of the decision of the Minister for Mining to refuse its application for an exploration licence under the Mining Act. The National Court refused leave on the ground that there was no arguable case for review. It was held that s 20 of the Act gave complete discretion to the Minister as to what considerations were to be taken into account and the Court has no authority to impose that which Parliament did not impose upon the Minister. The appellant appealed against the refusal of leave.

Held:

(1) In determining whether an applicant for leave for judicial review has an arguable case the task of the National Court is to peruse the material available to see whether it discloses what might on further consideration turn out to be an arguable case in favour of granting the relief claimed.

(2) A statutory provision that confers a power on a decision-maker to grant a licence to an applicant, which is silent on the considerations to be taken into account in deciding whether to grant or refuse a licence, does not confer a complete and unfettered discretion on the decision-maker. In interpreting the statutory provision the National Court is entitled to glean from the nature, purpose and context of the provision the considerations that are relevant and irrelevant to exercise of the discretion whether to grant the licence.

(3) The National Court erred in forming the view that the absence in s 20 of the Mining Act of express considerations to be taken into account by the Minister in deciding whether to grant an exploration licence meant that the Court could not determine what those considerations were.

(4) The decision of the National Court was quashed and the Supreme Court, being of the view that there was an arguable case for review, granted leave for judicial review.

Cases Cited:

The following cases are cited in the judgment:

Papua New Guinean Cases

Geno v The State [1993] PNGLR 22

Micah v Lua [2015] 2 PNGLR 41

Morauta v Eviaisa (2002) SC685

Pipoi v Seravo (2008) SC909

Pora v Leadership Tribunal [1997] PNGLR 1

Overseas Cases

Padfield v Minister of Agriculture [1968] AC 997

Counsel

A Roden-Paru & M Makap, for the Appellants

T L Cooper, for the First Respondent

H Wangi, for the Second & Third Respondents

Allens Lawyers: Lawyers for the Appellants

TL Cooper Lawyers: Lawyers for the First Respondent

Solicitor-General: Lawyers for the Second & Third Respondents

28^th November 2023

1. BY THE COURT: Torrens Mining (PNG) Ltd appeals against the refusal by the National Court to grant leave for judicial review of the decision of the Minister for Mining (the first respondent) to refuse its application for an exploration licence. The primary Judge was satisfied that except for the arguable case requirement, the criteria for the grant of leave (applicant had standing, it was seeking review of decision of a public authority, no undue delay and no administrative remedies available) were satisfied. However, his Honour refused leave on the ground that there was no arguable case for review.

2. The appellant's proposed grounds for judicial review were that the Minister took irrelevant considerations into account, failed to take relevant considerations into account, acted contrary to the rules of natural justice, made an unreasonable decision and refused the application in circumstances giving rise to a reasonable apprehension of bias.

NATIONAL COURT DECISION

3. The primary Judge held in an extempore decision that s 20 of the Mining Act gave “complete discretion” to the Minister as to what considerations were to be taken into account and the Court has no authority to impose considerations that the Parliament did not impose upon the Minister.

4. His Honour was of the view that the Supreme Court's decision in Morauta v Eviaisa (2002) SC685, which upheld an appeal against the granting of judicial review by the National Court in connection with the appointment of the Managing Director of the Public Officers Superannuation Fund, prevents the courts from inferring the considerations to be taken into account in the exercise of discretion where a statutory provision does not state expressly what has to be taken into account.

APPEAL

5. The appellant argues on appeal that the primary judge erred in law in finding that it did not have an arguable case. We uphold the appeal as we are satisfied that his Honour erred in law in two significant respects.

6. First, there was a misapprehension of what the Supreme Court decided in Morauta v Eviaisa (2002) SC685. The appeal in that case was upheld...