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Tex Onsite (PNG) Ltd v Nekitel [2017] PGNC 35; N6651 (27 February 2017)

N6651
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO.855 OF 2016

BETWEEN
TEX ONSITE (PNG) LTD
Plaintiff

AND
STANLEY NEKITEL, REGISTRAR OF TENEMENTS
First Defendant

AND
PHILIP SAMAR, CHAIRMAN – MINING ADVISORY BOARD
Second Defendant

AND
MINERAL RESOURCE AUTHORITY
Third Defendant

AND
BRYON CHAN, MINISTER FOR MINING
Fourth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

AND
FRONTIER COPPER (PNG) LTD
Sixth Defendant

AND
REEKARA LTD
Seventh Defendant

Waigani: Makail, J

2017: 22^nd& 27^th February

JUDICIAL REVIEW – Application for leave – Leave to review decision by Registrar of Tenements to cancel or de-register application for mining tenement – Exploration licence – Mining Act – Section 103 and 125

PRACTICE & PROCEDURE – Application for leave to apply for judicial review – Appeal – Whether aggrieved party may elect – Mode of proceedings – Mining Act – Section 125 (3) – National Court Rules – Order 16

Cases cited:
PNG Resources Development Limited v. Stanley Nekitel & Ors (2017) N6643

Re Powers, Functions, Duties and Responsibilities of the Commissioner of Police – Warrant of Arrest (2014) SC1388

Counsel:
Mr. D. Kipa, for Plaintiff
Mr.A.Mana, for the First, Second, Third and Fourth Respondents
Mr. E. Geita, for Fifth Respondent
Mr. J. Brooks, for Seventh Respondent

RULING

27^th February, 2017

1. MAKAIL J: The Plaintiff is seeking leave to apply for judicial review of the decision of the First Defendant (“Registrar”) to cancel or de-register its applications for mining tenements (“exploration licences”) for two portions of land, one on Normanby Island and the other, Ferguson Island in Milne Bay Province on 7^th October 2016.

2. It alleges that the previous holder’s exploration licences of these portions of land expired on 5^th January 2016 and acting on the recommendations of the Mining Advisory Board (“Board”), on 3^rd September 2016 the Fourth Defendant (“Minister”) refused their applications for renewal. A month later, on 3^rd October 2016 the Registrar registered the decision of the Minister. The Plaintiff lodged its applications for exploration licences for the same portions. The Registrar accepted and registered its applications on 4^thOctober 2016 pursuant to Section 103 of the Mining Act (“Act”).

3. On 7^th October 2016 the Registrar cancelled or de-registered its application on the ground that it was inside the “moratorium” period of 30 days prescribed by Section 30 of the Act.

4. It contends that 30 days ran from the date of decision of the Minster which was 3^rd September 2016 and ended on 3^rd October 2016. The Registrar accepted and registered its applications on 4^th October which was well outside the moratorium period of 30 days. Hence, the decision to cancel or de-register its applications was an error and illegal.

5. And if the Defendants were to contend that 30 days ran from the date of registration by the Registrar of 3^rd October 2016 the correct view should be that under Section 112 of the Act, time runs from the date of the Minister’s decision because until a decision is made by the Minister, there is no decision.

6. Secondly, Section 125 (1) & (2) of the Act requires the Registrar to consult the Managing Director and where directed by him, rectify the Register by cancelling or de-registering its applications. But in this case, the Registrar by-passed by the Managing Director or unilaterally made the decision to cancel or de-register its applications.

7. The State having a right to be heard in this application and with leave, the First to Fourth Defendants and Seventh Defendant contend that the issues raised by the Plaintiff do not establish an arguable cases and leave should be refused.

8. First, the State contends that if the Plaintiff was aggrieved by the cancellation of its applications by the Registrar, it should have filed an appeal pursuant to Section 125 (3) of the Act.

9. Secondly, the moratorium period started on 3^rd October when the Minister’s decision of 03^rd September was registered by the Registrar under Section 113 of the Act. That was when the Minister’s decision became effective and that is because when the Registrar publishes the decision in the register, which decision was a refusal of the previous holder’s applications for renewal. It then shows that the land is available for exploration by way of notice to intended applicants when it is further uploaded on the Third Defendant’ website.

10. Thirdly, there is evidence refuting the Plaintiff’s assertion that the Registrar failed to consult the Managing Director and unilaterally decided to cancel its applications. That evidence is in a form of a letter directed to the Plaintiff dated 7^th October 2016 annexed as annexure “F” to the affidavit of Mr. John Williamson of 9^th December 2016, the Managing Director of the Plaintiff which establishes that the Registrar sought advice from the Managing Director as well as independent legal advice before cancelling the Plaintiff’s applications.

11. The First to Fourth Defendants supported by the Seventh Defendant contend that the Plaintiff acquiesced the manner in which the applications were dealt with by the Registrar and should not now complain about it. That is, it did not immediately appeal the decision of the Registrar as required by Section 125 (3).

12. Instead, it participated in the ballot, a requirement under Section 100 of the Act where in a case where more than one application is received and registered by the Registrar, he places them in order of priority and submits the one rank first to the Board to consider. When the Plaintiff received the results of the ballot, it found that it was not ranked first in each application. It then commenced these proceedings. It should now be stopped from pursuing it.

13. In response, the Plaintiff contends that it did not allow the decision of the Registrar to go unchallenged before commencing these proceedings. It wrote letters either directly or through its lawyers to the Registrar to rescind its decision but he did not, hence the commencement of the proceedings.

14. The complaint by the Plaintiff and the issues brought up by the complaint should not have come to Court in this manner in the first place if the lawyers for the Plaintiff had paid close attention to the dictates of Section 125. In my view, an appeal lies to the National Court as of right under Section 125 (3) and it is not necessary to invoke the judicial review jurisdiction of the Court to review the decision of the Registrar under Order 16 of the National Court Rules. And the requirement to obtain leave will be overcome by the Plaintiff filing an appeal and the issues raised by the Plaintiff will be subject of the appeal.
15. Section 125states:

“125. Rectification of the Register.

(1) Where the Registrar or another person discovers that there has been—

(a) an omission of an entry from the Register or the rejection of an instrument presented for registration; or

(b) an entry made in the Register without sufficient cause; or

(c) an entry wrongly existing in the Register; or

(d) an error or defect in an entry in the Register,

the Registrar or that other person may make an application to the Managing Director for rectification of the Register.

(2) On receipt of an application under Subsection (1), the Managing Director may—

(a) make an investigation into the matter; and

(b) direct the Registrar to rectify the Register in any matter which the Managing Director considers requires rectification.

(3) A person may appeal to the National Court against a direction or decision or to seek a decision by the Managing Director under Subsection (2), and the National Court may make such order as it considers necessary to settle the matter.

(4) The Registrar shall give effect to an order of the National Court under Subsection (3).” (Underlining is mine).

16. The Court decided this issue in PNG Resources Development Limited v. Stanley Nekitel &Ors (2017) N6643 where it was held that the actions of the First and Second Defendants in cancelling the registration of the Plaintiff’s application for an exploration licence were not reviewable and that an appeal was the correct mode of proceedings.

17. Despite this the Plaintiff contends that this case is distinguishable from that case because the Court did not consider the issue of election given the word “may” used in Sub-section 3. It contends that by the use of the word “may”it has a choice between commencing judicial review proceedings and an appeal and took the former.

18. It further contends that this was the view held by the Supreme Court in Re Powers, Functions, Duties and Responsibilities of the Commissioner of Police – Warrant of Arrest (2014) SC1388 based on Section 219 of the District Courts Act where a person aggrieved by a conviction order or adjudication of a Court, including an adjudication or order dismissing an information or complaint, may appeal to the National Court. (Underlining is mine).

19. I am of the view that an aggrieved party has no right to elect which mode of proceedings to commence to challenge the decision of the Registrar. The statement made by the Supreme Court in the above cited case was an orbita dictum for it was not one of the issues decided by the Supreme Court. The real question that the Supreme Court was asked to answer was whether the Commissioner of Police can challenge a warrant of arrest issued by a Magistrate. The answer was “yes”.

20. I am further of the view of that the use of the word “may” is not intended to give an aggrieved party an option between judicial review proceedings and an appeal. On the other hand, it means that an aggrieved party is left with the option of appealing the decision of the Registrar, if it so desires.

21. Given that acceptance and registration of an application for an exploration licence by the Registrar forms part of the decision-making process by which a decision is finally made by the Minister, I am further of the view that an appeal is the quickest way to resolve a dispute in relation to a cancellation of an application for exploration licence under Section 125. It also obviates the need to obtain leave if judicial review proceedings were to be commenced, as in this case.

22. Furthermore, as the Court held in the earlier National Court case, where there is an alternative remedy, judicial review will not be available to an aggrieved party. As the Act expressly provides for appeal, it must be exhausted first. I reiterate that an appeal obviates the need to obtain leave and parties can proceed straight to addressing the issues at the hearing of the appeal. And as I said in the earlier case, if the Plaintiff is unsure as to how to commence the appeal, assistance can be sought from Order 18 of the National Court Rules.

23. Leave is refused with costs, to be taxed, if not agreed. Further, all pending interim orders restraining the Defendants or staying the decision of the Registrar are discharged forthwith.
Ruling and orders accordingly,
________________________________________________________________
Twivey Lawyers : Lawyers for Plaintiff
Allens Lawyers : Lawyers for 1^st, 2^nd, 3^rd&4^thDefendants
Solicitor-General : Lawyers for 5^thDefendant
Ashurst Lawyers : Lawyers for 7^thDefendant