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Medaing v Mulung [2010] PGNC 164; N4001 (22 April 2010)

N4001

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 106 OF 2010

LOUIS MEDAING FOR HIMSELF AND ON BEHALF OF THE
MEMBERS OF THE MEDAING AND SAWANG FAMILIES
OF BASAMUK, RAI COAST, MADANG PROVINCE
Plaintiffs

V

LIMA MULUNG IN HIS CAPACITY AS CHAIRMAN OF
BASAMUK LANDOWNERS ASSOCIATION INCORPORATED
First Defendant

RAMU NICO (MCC) LIMITED
Second Defendant

HIGHLANDS PACIFIC LIMITED
OR THEN KNOWN AS RAMU NICKEL LIMITED
Third Defendant

THE CHAIRMAN, MINING ADVISORY COUNCIL
PREVIOUSLY KNOWN AS MINING ADVISORY BOARD
Fourth Defendant

SIR MOI AVEI
THE THEN MINING MINISTER
Fifth Defendant

GUAO ZURENUOC
THE THEN LANDS SECRETARY
Sixth Defendant

THE LAND BOARD OF PAPUA NEW GUINEA
Seventh Defendant

DR PUKA TEMU, LANDS AND MINING MINISTER
Eighth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Ninth Defendant

Madang: Cannings J
2010: 26 March, 22 April

JUDICIAL REVIEW – application for leave to seek review of decision of Minister for Mining to grant mining lease – requirements for granting of leave – whether the plaintiff has locus standi – whether an arguable case exists – whether there has been undue delay.

The plaintiff applied for leave to seek judicial review of the decision of the Minister for Mining to grant a lease for mining purposes under the Mining Act.

Held:

(1) There are five requirements for granting of leave to seek judicial review: (a) locus standi; (b) decision must be of a public body; (c) arguable case; (d) exhaustion of administrative remedies; (e) no undue delay.

(2) Two of the requirements were not met: (c) no arguable case; and (e) undue delay. Leave was accordingly refused.

Cases cited

The following cases are cited in the judgment:

Eliakim Laki and 167 Others v Maurice Alaluku and Others (2002) N2001
Leto Darius v Commissioner of Police (2001) N2046
Medaing v Minister for Lands and Physical Planning (2010) N3917
Simon Mali v The State (2002) SC690
Tigam Malewo v Keith Faulkner (2009) SC960

Counsel

B Meten, for the plaintiff
L Kandi, for the fifth, sixth, seventh, eighth and ninth defendants

22 April, 2010

1 CANNINGS J: Louis Medaing, the plaintiff, is seeking leave for judicial review of the decision of the Minister for Mining to grant a lease for mining purposes to Ramu Nickel Ltd. That lease was granted under ss 65 and 73 of the Mining Act on 11 October 2000. It was granted by the then Minister for Mining, Hon Moi Avei MP. The lease authorises the holder of the lease to conduct mining operations on and under the land (to a depth of 30 metres) near Basamuk for the purposes of the Ramu Nickel project.

2. Mr Medaing wants the decision to grant the mining lease, which is now held by Ramu Nico Management (MCC) Ltd, quashed. That appears to be the principal relief that he is seeking. He wants to argue that the decision of the Minister was made unlawfully, in particular that it was made in breach of various provisions of the Land Act and the Mining Act. He requires the leave of the court under Order 16, Rule 3 of the National Court Rules to argue this sort of case; and this is a ruling on his application for leave. When the National Court deals with applications for leave to seek judicial review, five requirements must be met. These were neatly summarised by Kandakasi J in Leto Darius v Commissioner of Police (2001) N2046:

1. He has the locus standi, that is he has sufficient interest in the matter or has a right which is being affected by way of an injury or damage by the decision sought to be reviewed;

2. The decision sought to be reviewed is that of a public body or authority;

3. The applicant has an arguable case on the merits;

4. All other available remedies have been exhausted; and

5. The application is being made promptly without undue delay.

The plaintiff clearly satisfies the 2nd and 4th criteria. The 1st, 3rd and the 5th, however, are contentious and give rise to the three issues that now need to be decided.

1 DOES THE PLAINTIFF HAVE LOCUS STANDI?

3. Mr Kandi, for the Minister for Mining (the 5th defendant) and the other governmental defendants, including the State, which is joined as the 9th defendant, submitted that Mr Medaing lacks locus standi – he does not have a sufficient interest in the decision he wants judicially reviewed. He submitted that Mr Medaing has commenced the proceedings in a representative capacity – he has named himself as plaintiff for himself and on behalf of the Medaing and Sawang families of Basamuk, Rai Coast – and there must be evidence before the court now, in the form of an annexure to the originating summons, that all of the family members he says he is representing have in fact authorised him to act on their behalf. Mr Kandi relied on Eliakim Laki and 167 Others v Maurice Alaluku and Others (2002) N2001 in support of that proposition. There is no evidence that they have authorised him and this means that the proceedings are defective; and it follows that Mr Medaing has no authority to seek leave in the terms he has expressed, Mr Kandi submitted.

4. I reject this argument as I consider that Mr Medaing has amply demonstrated in the affidavits that he has filed that he has a genuine interest in the subject matter of the decision he wants reviewed and it is sufficiently apparent that he has been agitating his grievances and his families' grievances regarding the land at Basamuk over many years. Mr Kandi may well have a valid point about the need for specific authority being required by family members. On this point there are in addition to the National Court decision in Eliakim Laki's case two Supreme Court decisions that are relevant: Simon Mali v The State (2002) SC690 and Tigam Malewo v Keith Faulkner (2009) SC960). However, I consider that this a procedural requirement that can be met in the event that leave is granted. The failure to attend to this matter at the leave stage is not a good reason to refuse leave. I conclude that the plaintiff has locus standi.

2 DOES THE PLAINTIFF HAVE AN ARGUABLE CASE?

5. The plaintiff's Order 16, Rule 3(2)(a) statement does not clearly spell out the grounds on which the relief is sought. The statement mixes up the relief being sought and the grounds on which the relief is sought. The statement is not for that reason defective, but it is difficult to follow and this has made it difficult for the court to fully appreciate and ascertain the strength of the plaintiff's case. Having said that, I acknowledge that when Mr Meten moved the application for leave he pointed out that the grounds were to be found in paragraphs C3 to C8 of the statement. The grounds appear to be that:

• The Minister for Mining's decision was made contrary to ss 57, 58 and 60 of the Land Act "in that the Lands Department and the Land Board have not carried out their functions yet" before the Minister granted the mining lease.
  
• There was "no proposal in respect of what would be done on the land above thereby contravening ss 68 and 70 of the Mining Act".
  
• The decision was ultra vires and unlawful pursuant to s 155 of the Mining Act in that "there was no compensation paid or assessed in relation to the land before Ramu Nickel Ltd and ... MCC entered and occupied the land".
  
• The decision "was ultra vires and unlawful pursuant to s 13 of the Land Act".
  
• The advice of the Mining Advisory Council was unlawful "in that the application for the lease did not comply with ss 68 and 70 of the Mining Act".
  
• The decision was made over land that was not available for the grant of a mining lease as the land "had not been compulsorily acquired for that purpose at the time the decision was made to grant the lease for mining purpose".
  

6. I have said that they appear to be the grounds of review that the plaintiff wants to rely on as little elaboration or articulation of them has been provided. The court has not been provided with copies of the statutory provisions being relied on and has been left to its own devices to ascertain the strength of these grounds and whether any of them are arguable. No written submission was supplied to guide the court through the grounds. Mr Meten has sent the court into the bush without a compass, and the bush is rather thick and the tracks through it are ill-defined. The result of this is that the court is lost. The court does not appreciate these grounds. They are vague and ill-defined. They appear to mix up the grounds on which the plaintiff succeeded in separate proceedings in arguing that the decision to grant a State Lease to a landowner company was flawed, with the grounds for arguing that the decision to issue the mining lease was flawed. Those separate proceedings, in which Mr Medaing was the lead plaintiff, are OS No 1038 of 2005 Medaing v Minister for Lands and Physical Planning (2010) N3917. However, decisions to grant State Leases over the land are made under the Land Act whereas decisions regarding mining tenements are made under the Mining Act. They are completely different statutory regimes. The plaintiff has failed to show how defects in decisions under the Land Act have a flow-on effect on the legality of decisions under the Mining Act.

7. There might well be good grounds on which to challenge the decision to grant the mining lease under the Mining Act but they are not clearly articulated in this application. An applicant for leave for review bears the onus of proving an arguable case. The plaintiff has failed to discharge that onus. There is no arguable case for review.

3 HAS THE APPLICATION FOR LEAVE BEEN MADE PROMPTLY, WITHOUT UNDUE DELAY?

8. The Minister for Mining's decision was made in October 2000, nine and a half years ago. Mr Meten submitted that the plaintiff was waiting for the court's decision on the application for judicial review in the related proceedings OS No 1038 of 2005. That application was argued on 29 September 2009 and the decision was handed down on 19 February 2010. However, I do not think that is a good excuse. The decision being reviewed in that case concerned decisions made under the Land Act. Nothing decided in that case necessarily affected the application for judicial review in the present case. I conclude that the application has not been made promptly. There has been undue delay.

CONCLUSION

9. Two of the five criteria have not been satisfied so I will refuse the application for leave on these grounds:

• the plaintiff has not shown that he has an arguable case;
• there has been undue delay in filing the application for leave.
  

ORDER

(1) The application for leave to seek judicial review of the decision of the Minister for Mining of 11 October 2000 to grant a lease for mining purposes to Ramu Nickel Ltd, is refused.

(2) All other relief sought in the notice of motion filed on 15 March 2010 is refused.

(3) The parties shall bear their own costs.

(4) Time for entry of the order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Judgment accordingly.
____________________________

Narokobi Lawyers: Lawyers for the plaintiff
Solicitor-General: Lawyer for the Fourth, Fifth, Sixth, Seventh, Eight and Ninth Defendants