N6079

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 769 of 2015

BETWEEN:

MT KARE HEAD TRUSTEE CO LIMITED
Plaintiff

AND:

STAN NEKITAL as the Registrar of Tenement
First Defendant

AND:

ANDREW GOIYE as the Chief Mining Warden
Second Defendant

AND:

PHILIP SAMAR as the Managing Director of Mineral Resources Authority
Third Defendant

AND:

ROBIN MOAINA as the Chairman of Mining Advisory Board
Fourth Defendant

AND:

BYRON CHAN as the Minister for Mining
Fifth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

AND:

SUMMIT DEVELOPMENT LIMITED
Seventh Defendant

Waigani: Hartshorn J
2015: 17th July & 18th August

Applications to dismiss proceeding to continue interim relief and for the removal of a caveat 

Cases Cited:
Papua New Guinea cases

Craftworks Niugini Pty Ltd v. Allan Mott (1997) SC525 
Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853 
Dengo v. Tzen Niugini (2011) N5043
Kuman v. Digicel (PNG) Ltd (2013) SC1232
Louis Lucian Siu v. Wasime Land Group Inc. (2011) SC1107
Philip Takori v. Simon Yagari (2008) SC905
Ramu Nico Management (MCC) Ltd v. Tarsie (2010) SC1075

Overseas Cases

American Cyanamid Company v. Ethicon Ltd (1975) 1 All ER 594
Counsel:

Mr. T. Dalid, for the Plaintiff
Ms. D. Aikung-Hombhanje, for the First to Fourth Defendants
Mr. E. G. Andersen, for the Seventh Defendant

18th August, 2015

1. HARTSHORN J: This is a decision as to whether this proceeding or any claim therein should be dismissed, or whether the plaintiff's caveat registered on mining tenement EL 1093 should be removed, or whether the interim order restraining the Registrar of Tenements from deregistering the caveat should be continued.

Background

2. The seventh defendant, Summit Development Ltd is the registered proprietor of mining tenement Exploration Licence 1093 (EL 1093) located at Mt. Kare, Enga Province. The plaintiff, Mt. Kare Head Trustee Co Limited (MKHT) lodged a caveat over EL 1093 in February 2011. The caveat was registered on 1st February 2011 (caveat).
3. On 28th May 2015, the Assistant Registrar of Tenements gave notice to MKHT pursuant to s. 129 Mining Act, that amongst others, the caveat would lapse after 14 days unless within that period the National Court otherwise ordered (s.129 Notice).
4. MKHT commenced this proceeding seeking amongst others declaratory relief and damages. It also seeks orders that MKHT is the registered caveator against EL 1093, that the s. 129 Notice is defective and has no effect, and that MKHT be issued a permanent caveat over EL 1093. On 12th June 2015, after an ex parte hearing, this court ordered that amongst others, that the Registrar of Tenements is restrained from dealing, interfering with, or lapsing the caveat.

The applications

5. The applications to dismiss, for the removal of the caveat and for the extension of the interim relief was heard together. I consider the dismissal application first.

Dismissal application

6. The first to fourth defendants including the Registrar of Tenements (Regulatory defendants) seek to dismiss this proceeding on the grounds that it discloses no reasonable cause of action, it is frivolous and vexatious and is an abuse of the process of the court. They rely upon Order 12 Rule 40 (1) (a), (b) and (c) National Court Rules.

7. The Regulatory defendants contend that no reasonable cause of action is disclosed as the caveat has lapsed by operation of law, the claim for non-payment of compensation has no basis as compensation funds are held in trust pending the proper identification of the landowners in the EL 1093 area, and the claim for breach of an agreement in respect of a 10% free carry by landowners, is being considered by the seventh defendant.

8. As to the contentions concerning the claims for non-payment of compensation and breach of an agreement concerning the 10% free carry by landowners, there is no evidence upon which the Regulatory defendants rely to support their contentions. Further, as to these two issues, I am not satisfied that the deficiencies about which the Regulatory defendants complain, cannot be remedied by amendment of the pleadings: Philip Takori v. Simon Yagari (2008) SC905 and Kuman v. Digicel (PNG) Ltd (2013) SC1232.

9. Consequently, in regard to these two issues the application to dismiss should be refused.

10. As to there being no reasonable cause of action disclosed concerning whether the caveat has lapsed by operation of law, MKHT contends that a reasonable cause of action is disclosed as amongst others:

a) MKHT is owed K720 million for compensation, royalties, occupation fees and damages, of which K20 million is due now;

b) a joint-venture agreement has been breached;

c) MKHT has a claim for breach of constitutional rights and permanent restraining orders;

d) Mr. Paul Torato was told that the caveat lapsed on 12th June 2015;

e) that the caveat did not lapse until 15th June 2015.

11. The first matter for consideration is whether this court has the power to extend the 14 day period referred to in s. 129 Mining Act after that period has expired, as the other contentions are dependent upon this court having that power.

12. Section 129 Mining Act is as follows:

"129. Duration and effect of a caveat.

(1) A caveat shall lapse and cease to have effect upon—

 (a) any order of the National Court for its removal; or

 (b) its withdrawal by the caveator or his agent; or

 (c) the expiry of a period of 14 days after notification, that application has been made for the registration of a transfer or other instrument affecting the subject matter of the caveat, has been sent by the Registrar by registered post to the caveator at the address for service given in the caveat, unless within that period the National Court otherwise orders.

(2) No transfer or other instrument affecting a tenement the subject of a caveat shall be registered while the caveat remains in force.

(3) When a caveat lapses and ceases to have effect under this section, the Registrar shall enter in the Register a memorandum of that fact."

13. It is clear from a perusal of s. 129 (1) (c) that the National Court does have the power to order that a caveat shall not lapse and cease to have effect after the expiry of the 14 day period, so long as it so orders within the 14 day period. 

14. This court does not have any other power that enables it to make an order that is contrary to or overrules a provision of a statute.

15. The next consideration is whether this court granted the interim relief within the 14 day period and thereby prevented the caveat from lapsing when it granted the interim relief on 12th June 2015.

 16. As to when the 14 day period commences, MKHT has not taken issue with the notification to it under s. 129 (1) (c) Mining Act. I will consider the question nevertheless. There is evidence that the s. 129 Notice was issued to the caveator as an application had been made for the registration of an instrument, a mortgage, "affecting the subject matter of the caveat". The s.129 Notice was issued by the Assistant Registrar - Mineral Tenements Branch, Mr. Calvin Dusava. There is evidence that at that time Mr. Dusava had been delegated all of the powers of the Registrar of Tenements by the Registrar of Tenements.

17. The caveator is MKHT. MKHT is a company. Pursuant to the evidence of Mr. Andrias Aiyange, he is the Chairman and a director of MKHT. Further, Mr. Aiyange deposes that on 28th May 2015, the s. 129 Notice was delivered to him and Mr. Paul Torato. 

18. An extract from the Registrar of Companies annexed to Mr. Aiyange's affidavit confirms that he is a director, albeit with his surname spelt differently.

19. Section 432 Companies Act relevantly provides:

"432. Service of other documents on companies.
Notwithstanding the provisions of any other Act, a document, other than a document in any legal proceedings, may be served on a company as follows:—

(a) by any of the methods set out in Section 431(1)(a), (b), (c), (d) or (f);….."

20. Section 431 (1) (a) Companies Act provides:

"431. Service of documents on companies in legal proceedings.

(1) Notwithstanding the provisions of any other Act, a document, including a writ, summons, notice, or order in any legal proceedings may be served on a company as follows:— 

(a) by delivery to a person named as a director or the secretary of the company on the register;……"

21. Given the above provisions, and that they apply notwithstanding the provisions of any other Act, I am satisfied that MKHT, the caveator, a company, was properly served with the s.129 Notice when it was delivered to Mr. Aiyange, a director of MKHT.
22. The 14 day period commenced on the 29th May 2015, pursuant to s. 11(1) Interpretation Act.

23. As to whether a Sunday or a public holiday is to be included in computing the 14 day period, s. 11 (4) Interpretation Act provides:

"(4) Where a statutory provision directs or allows an act or proceeding to be done or taken within a time not exceeding eight days, Sundays and public holidays shall not be taken into account in the computation of the time."

24. It is clear then that as the period of time under consideration is 14 days, Sundays and public holidays shall be taken into account in the computation of time. The 14 day period commenced on 29th May 2015 and ended at midnight on 11th June 2015.

25. It is the case then that when this court granted the interim relief on 12th June 2015, that amongst others restrained the Registrar of Tenements from "lapsing" the caveat, it did not have the power to do so. The caveat had already lapsed and ceased to have effect and the interim relief was granted after the 14 day period had expired.

26. Further, as the caveat has lapsed and ceases to have effect, MKHT does not have a reasonable cause of action to have that caveat extended, as this court does not have the power to grant any such extension.

27. As MKHT's claim concerning the caveat is bound to fail, it is also frivolous and vexatious: Ronny Wabia v. BP Exploration Operating Co Ltd [1998] PNGLR 8; Louis Lucian Siu v. Wasime Land Group Inc. (2011) SC1107 and Dengo v. Tzen Niugini (2011) N5043.

28. Consequently, that part of this proceeding concerning MKHT's claim relating to its caveat that was registered on 1st February 2011 and in respect of which the s. 129 Notice was given on 28th May 2015, is dismissed pursuant to this court's power under Order 12 Rule 40 (1) National Court Rules, to dismiss a proceeding generally or in relation to any claim for relief in the proceeding.

Application for interim relief to continue

29. As to the application of MKHT that the interim relief already granted should continue, as that relief should not have been granted, and as that part of the proceeding concerning the caveat has been dismissed, MKHT does not have a serious question to be tried in respect of the caveat: Ramu Nico Management (MCC) Ltd v. Tarsie (2010) SC1075; American Cyanamid Company v. Ethicon Ltd (1975) 1 All ER 594; Craftworks Niugini Pty Ltd v. Allan Mott (1997) SC525 and Chief Collector of Taxes v. Bougainville Copper Ltd (2007) SC853. Consequently, the application for the interim relief to continue should be refused.

Application for the removal of the caveat

30. Given the above it is not necessary to consider this application.

Application for the removal of the fourth defendant as a party

31. As to the relief sought by the Regulatory defendants that the fourth defendant be removed as a party as he has no legal capacity to be sued, there is no evidence upon which the Regulatory defendants rely in support of this application. Consequently, it is refused.

Orders

32. The formal orders are:

a) As to the notice of motion of the first to fourth defendants filed 3rd July 2015:

 i) that part of this proceeding concerning the plaintiff's claim relating to its caveat that was registered on 1st February 2011 and in respect of which a notice pursuant to s. 129 (1) (c) Mining Act was given on 28th May 2015, is dismissed;

 ii) the remainder of the relief sought is refused.

b) The interim relief which was granted on 12th June 2015 and which was extended is set aside;

c) The costs of and incidental to the hearing on 17th July 2015 are reserved;

d) Time is abridged.

____________________________________________________________
Gagma Legal Services : Lawyers for the Plaintiff 
Mineral Resources Authority : Lawyers for the First to Fourth Defendants 
Gadens Lawyers : Lawyers for the Seventh Defendant