N8187

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 18 OF 2019

BETWEEN
HON. GINSON GOHEYU SANU in his capacity as
GOVERNOR OF MOROBE PROVINCE
First Plaintiff

AND
MOROBE PROVINCIAL GOVERNMENT
Second Plaintiff

AND
HON. JOHNSON TUKE in his capacity as
MINISTER FOR MINING
First Defendant

AND
DANIEL ROLPAGAREA in his capacity as the
STATE SOLICITOR
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND
WAFI MINING LIMITED
Fourth Defendant

AND
NEWCREST PNG 2 LIMITED
Fifth Defendant

Lae   :   Murray, J
2019 :   27th & 30th December
2020 :   24th January

JUDICIAL REVIEW - PRACTICE AND PROCEDURE – Whether Court has jurisdiction to vary a stay order granted under Order 16 r 3 (8) (a) National Court Rules by an application under Order 12 r 8, National Court Rules, Constitution, s 155 (4) – Ruling in Chan v Ombudsman (1998) SC557 followed.

PRACTICE AND PROCEEDURE- Judicial Review- Whether a stay order granted under Order 16 r 3 (8) (a) National Court Rules is capable of being varied.

PRACTICE AND PROCEEDURE- Judicial Review- Application of Order 16 r 11 National Court Rules.

Cases Cited:

Jim Trading Ltd vs. John Madison (2006) N3174
Kelvin Rumpia vs. Abaris Buri & Ors - N3035
Koim vs. O’Neil (2014) N5694
Les Carlewis vs. Reuben Renagi & Ors (2003) SC 1274
Makeng v Timbers (2008) N3317 
Sir Puka Temu vs. Rigo Lua (2015) N5918
Summit Development Ltd vs. Chan (2016) N639
The Right Hon. Sir Julius Chan vs. The Ombudsman Commission of Papua New Guinea, (1998) SC557

Counsel:

Mr. R. Saulep, for the First Plaintiff
Mr. A. Mana, for the Fourth & Fifth Defendants

RULING

1.	MURRAY, J:	The application before me is by the Fourth and Fifth Defendants to vary a Stay Order granted by Numapo AJ on 7th May 2019.  Ordinarily, this application should go back before Numapo AJ.  However, because of the urgency of the application and because His Honour was not available, the application came before me.

Background

2.	The First Plaintiff is the Governor of Morobe Province. 

3.	On 10th December 2018, the Second Defendant in his capacity as the State Solicitor, by way of a letter, to the First Defendant, the Minister for Mining, advised him that the MOU that was drawn up between the State and the Fourth and Fifth Defendants, for the purpose of the Wafi-Golpu Mining project was good to go.  Based on the advice provided, the MOU was signed the next day. 

4.	As the Governor of Morobe Province, where the mining project will take place, the First Plaintiff felt he and his government ought to have been consulted before the MOU was finalized, however, that did not happen.

5.	Aggrieved by that, he instituted this proceeding on 17th January 2019 seeking leave to apply for Judicial Review of the Decision by the State Solicitor on 10th December 2018, that the MOU was good to go and the MOU itself.

6.	On 19th March 2019, the application for leave was heard and a ruling was reserved to 7th May 2019.  On that date this Court delivered its decision, granting leave to the Applicant to apply for Judicial Review.
	
7.	Immediately following the grant of leave, the Court also ordered a stay of further progress on the Wafi-Golpu Mining project under the MOU pursuant to Order 16 Rule 3 (8) (a) of the National Court Rules and also issued directions to progress the matter to trial.

8.	On 7th October 2019, the Court fixed the matter for trial on 6th November 2019.

9.	On 6th November 2019, the Court did not sit. The Court sat on 7th November instead. On this date, the Court was informed of a pending application for Joinder.  The Court then adjourned the application for Joinder to 9th December 2019, and also tentatively set the matter for trial on the same date.

10.	Then on 5th December 2019, the Fourth and Fifth Defendants filed their application the subject of this ruling, for variation of this Court’s order for stay made on 7th May 2019.

11.	The order which the Fourth and Fifth Defendants seek to vary was granted pursuant to Order 16 Rule 3 (8) (a) of the National Court Rules.
	
12.	The Application is made pursuant to Order 12 Rule 8 of the National Court Rules and Section 155 (4) of the Constitution and it is supported by the affidavit of Mr. David Bruce Wissink, sworn 4th December 2019 and filed 5th December 2019.

13.	The application came before me on 27th December 2019. The First Plaintiff opposed the application.

14.	At the conclusion of the hearing, both counsels were asked if they were aware of any case authorities that have specifically considered the application of Order 16 Rule 3 (8) (a) of the Rules.  Both counsels indicated, they could not immediately assist but would try to assist the Court as requested.

15.	On 28th December 2019 Mr. Saulep for the First Plaintiff provided to the Court a copy of a Supreme Court judgment in the case of The Right Honourable Sir Julius Chan vs. The Ombudsman Commission of Papua New Guinea (1998) SC557.

16.	At the same time of providing a copy of the said judgment, Mr. Saulep also made additional submissions in writing, based on the said Supreme Court Judgement.  A copy of both the Supreme Court Judgement and the additional submissions were also sent to Mr. Mana for the Fourth & Fifth Defendants.

17.	Having received the additional submissions by Mr. Saulep, I considered it appropriate to recall the matter which I did on 31st December 2019 specifically to hear submissions by the Fourth and Fifth Defendants in response to the Plaintiff’s additional submissions which essentially raised an issue of jurisdiction.

18.	In Court representing the Fourth and Fifth Defendants was Mr. Kais who appeared on brief by Mr. Mana but did not have any instructions to respond to the additional submissions by Mr. Saulep.  
I then adjourned briefly to enable Mr. Kais to take instructions from Mr. Mana.	
When the Court resumed, parties appeared in chambers and informed the Court that, it was not necessary for the Court to set a new date for Mr. Mana to appear and respond to the additional submissions by Mr. Saulep.  Instead, both parties agreed that, Mr. Mana also provide his written submissions in response for the Court to read.

19.	The additional written submissions by the Fourth and Fifth Defendants was received on 2nd January 2020.

Issues

20.	Argument by parties give rise to three main issues. They are:  

1.	Whether it is appropriate for this Court to consider further submissions after the conclusion of the Fourth and Fifth Defendants’ application on 27th December 2019.

2.	Whether this Court has jurisdiction under Order 12 Rule 8 (3) of the National Court Rules and Section 155 (4) of the Constitution to hear an application to vary a stay order granted under Order 16 Rule 3 (8) (a) of the National Court Rules.

3.	Subject to the answer to question 2, whether the Fourth and Fifth Defendants have met all the requirement for a variation of the Stay Order of 7th May 2019.

21.	Apart from what I consider to be the main issues for me to determine, two sub issues also arise from the arguments which I will also address separately. Those issues are: firstly, as an alternative to the second main issue, whether this Court can hear the 4th & 5th defendants’ application under O. 16 r 3 (8) (a) and secondly, whether a stay order is capable of being varied?

Is it appropriate for this Court to consider further submissions after the conclusion of hearing of the Fourth and Fifth Defendants’ application on 27th December 2019?

22.	In my view, as long as all parties are given the opportunity to make further submissions on a crucial matter that relate directly to a matter before a Court for consideration, there is nothing wrong about receiving and considering the further submissions. In this case, the further submissions by the First Plaintiff relate to the issue of this Court’s jurisdiction to entertain the Fourth and Fifth Defendants’ application. It is trite that, an issue of jurisdiction is a threshold issue which a Court can consider at any stage of a proceeding up to Judgment.  Where parties do not raise it, the Court can do so on its own motion after hearing the parties.

23.	In this case, one of the arguments by Mr. Saulep in his submission made on 27th December is that this Court did not have jurisdiction to review another National Court decision because to do so would amount to an abuse of the process of Court. Then when the case of Chan v Ombudsman was discovered by him, as a direct result of this Court’s request to Counsels to provide to the Court case authorities that have considered the application of Order 16 Rule 3 (8) (a), further submissions on the issue of jurisdiction were made based on the said judgement. Mr. Mana was then given time to respond which he did. I therefore find nothing inappropriate with the further submissions by the First Plaintiff.

Does this Court have jurisdiction under Order 12 Rule 8 of the National Court Rules and Section 155 (4) of the Constitution to hear an application to vary a stay order granted under Order 16 Rule 3 (8) (a) of the National Court Rules.

24.	The Order that the Fourth and Fifth Defendants seek to vary is Order No. 3 of the Orders granted by the Honorable Acting Justice Numapo, as he then was, on 7th May 2019.  The particular order reads:  

1.	………………..

2.	………………..

3.	The grant of leave operates as a generally stay and as such, no activities or work is to be conducted or carried out until the matter is fully determined.  This also applies to any representation made by either the Applicant and/or the Defendants regarding the project which includes any meetings or consultations on the same.  The stay for al intended purposes, is to maintain the status quo until the substantive determination is finalized.  Failure to comply with this stay order will result in serious consequences.

4.	……

5.	…….

6.	..….

25.	The order was granted under Order 16 Rule 3 (8) (a) of the National Court Rules. This provision reads: 

	3.	Grant of leave to apply for judicial review.

	(1)	…...

	(2)	….. 

	(3)	…..

	(4)	…..

	(5)	…..

	(6)	……

	(7)	……

	(8)	Where leave to apply for judicial review is granted, then – 

(a)	if the relief sought is an order of prohibition or certiorari an and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders; and 

(b)	…….

26.	Relying on the judgement in the Supreme Court case of Chan vs. Ombudsman which Mr. Saulep for the First Plaintiff submits is binding and must be followed, submits further that, the 4th & 5th defendants application is misconceived and must be dismissed because this Court has no jurisdiction under O.12 r.8 and or Section 155 (4) to hear the said application to vary.

27.	In response to the First Plaintiff’s submission, the Fourth and Fifth Defendants’ submits as follows: Firstly, the Chan case can be distinguished on the facts. That case dealt with an appeal against an order setting aside of all orders including an order granting leave for Judicial Review. The 4th & 5th Defendants here are seeking a variation of a Stay order, and not to set aside, quash or vary the order grating leave.  

28.	Secondly, the Chan case is no longer good law.  A preponderance of more recent cases have repeatedly concluded that other provisions of the National Court Rules other than Order 16 can be invoked in applications in judicial review.
In support of this argument, the following cases were cited:  Summit Development Ltd vs. Chan (2016) N639, Kelvin Rumpia vs. Abaris Buri & Ors - N3035; Sir Puka Temu vs. Rigo Lua (2015) N5918; Koim vs. O’Neil (2014) N5694; Les Carlewis vs. Reuben Renagi & Ors (2003) SC1274 and Jim Trading Ltd vs. John Madison (2006) N3174.

29.	It is also the Fourth and Fifth Defendants submission that, in the event, this Court accepts that Order 16 is exclusive and absent therein a jurisdictional basis for this Court to vary an earlier Court order, Section 155 (4) of the Constitution, whilst it cannot be relied on solely as a jurisdictional basis in applications, is available and can be relied on to invoke the inherent jurisdiction of the National Court to protect the primary right of the Fourth and Fifth Defendants, as a facilitative order or provision to enforce rights prescribed by the Mining Act and the Environment Act, as particularized in paragraph 1 (d) of their notice of motion. 

30.	Lastly and as an alternative, the Fourth and Fifth Defendants submitted, the Court has jurisdiction under Order 16 Rule 3 (8) (a) to hear their application. 
An amended Notice of Motion has been filed for that purpose. 

Does this Court have jurisdiction under O.12 r. 8	

31.	In Chan vs. Ombudsman, the appeal was against the Judgment and Orders of the National Court constituted by the Honourable Justice Salika as he then was, setting aside the order of another National Court constituted by the Honourable Justice Woods granting leave to the Appellant to apply for Judicial Review. The order granting leave for Judicial was made under Order 16 Rule 3 (2) whilst the Order setting aside the Order granting leave was made under Order 12 Rule 8 (3) (a).  The main ground of appeal was that the learned trial judge was led into error by the Respondent applying under Order 12 Rule 8 (3) of the Rules to set aside all the orders made by Woods J on 10 November, 1997 including the order made under Order 16 Rule 3 granting leave for judicial review.

32.	The Supreme Court found in favour of the appellant, holding the National Court did not have jurisdiction under Order 12 Rule 8 (3) to set aside Orders granted under Order 16 of the Rules.  In arriving at its decision, the Supreme Court expressed the following views: 

“It should firstly be noted that the Application for leave to move for judicial review is made ex parte, pursuant to Order 16 Rule 3 (2). By Rule 3 (3), the applicant is required to give notice to the Secretary for Justice, not later than two days before the application is made, together with copies of the statement and affidavits in support.

There is no requirement to give notice to any other party, and consequently there is no automatic right given to any party to be heard in opposition to the application for leave. There are strictly therefore no other parties to the application, other than the applicant. The State only is entitled to be given notice pursuant to the Claims By and Against the State Act 1996 and to be heard on application for leave.
Order 12 Rule 8(3)(a) is applicable "where the order has been made in the absence of a party …. ." It also envisages that the matter would have a proper party which could have been expected to have been given notice of the motion for the order, and that the party would have been expected to give notice of intention to defend.
In our opinion, Order 12 Rule 8(3)(a) does not apply to an ex parte order made pursuant Order 16 Rule 3, because an application made pursuant to Order 16 Rule 3 does not have any other parties. It cannot properly be said by any person that the order under Order 16 Rule 3 was made in their absence, to bring an application under Order 12 Rule 8 (3)(a), to set it aside.
We believe this opinion is reinforced by the specific terms of Order 16 Rule 11 which provides for appeal by way of motion to the Supreme Court to set aside or discharge any order granting or refusing an application for leave under Rule 3 or indeed an application for judicial review. This right of appeal is given further effect in the Supreme Court Rules Order 10.
We consider that Order 16 Rule 11 of the National Court Rules and Order 10 of the Supreme Court Rules do provide the exclusive procedure for reviewing application for judicial review or applications for leave. Indeed, when Order 16 Rules 3 and 11 and Order 12 Rule 8 (3)(b) are read together it becomes clear that it was not intended the Order 12 Rule 8(3)(a) should apply as an alternative that Order 16 Rule 11. We believe Order 12 Rule 8(3)(b) apply to ordinary inter partes actions when one of the parties was not present. An application for leave is not such an inter partes action.
We consider therefore that, in the face of a very specific appeal provision in Order 16 Rule 11, the application by the Respondent pursuant to Order 12 Rule 8 (3)(b) was misconceived and led Justice Salika into error. In principle we do consider it good policy and practice to be able to apply to set aside an order under Order 12 Rule 8 (3)(a) as well as the option to appeal to the Supreme Court by Order 16 Rule 11.
We find therefore that Justice Salika lacked jurisdiction to entertain the applications by the Respondent, pursuant to Order 12 Rule 8 (3)(a). The Respondents recourse was to appeal by virtue of Order 12 Rule 11, to the Supreme Court.”

33.	Dealing firstly with the 4th & 5th Defendants’ first argument. With respect to this argument, I find it is without merit because, although the application by the 4th & 5th defendants seek a variation, the other facts are the same as those in the Chan v Ombudsman case. That is, firstly, the Order they seek to vary is an ex parte Order granted under Order 16 Rule 3 (8) (a) following the grant of leave for Judicial Review under Order 16 Rule 3(2) and secondly, the jurisdictional basis of their application is Order 12 r.8 (3). The application of these provisions (Order 16 r. 3; Order 12 r. 8(3)) were considered in the Chan case. In the circumstances, I disagree with the 4th & 5th defendants that, the Chan case is not applicable. In my opinion, the Chan case is very much applicable. 

34.	With respect to their second argument, the 4th & 5th defendants referred to and cited a number of cases which they submit, stand for the proposition that, other provisions of the National Court Rules other than Order 16 can be invoked in judicial review applications where appropriate.  

35.	Relying on those cases, it was submitted that, I do not follow the decision in Chan v Ombudsman, instead, I should follow the views expressed in the judgements of the various cases cited, and make a finding that, I have jurisdiction to entertain their application under Order 12 r. 8 (3).

36.	Except for the case of Les Carlewis vs. Reuben Renagi & Ors (2003) SC1274, a Supreme Court Judgement, which I have read and am of the view has no relevance to the argument raised, all the other cases cited, although relevant are all National Court Judgements. I am not bound by those judgements. The 4th & 5th defendants have not cited any Supreme Court Judgements that support their argument that the Chan case is outdated and no longer good law. Nor have they cited another Supreme Court that has a different view to that of the Chan case. 

37.   On the other hand, the views expressed in the Chan case is consistent with those of a recent Supreme Court decision in the case of Kalinoe v Paraka & Ors (2014) SC 1366. In that case, the Supreme Court affirmed the principles in the case of Makeng v Timbers (2008) N3317. In Makeng, the Court, amongst other things held, O.16 provides the exclusive procedure for Judicial review applications. Therefore, other provisions in the National Court Rules which apply to judicial review can only apply by express adoption under O.16. on Judicial Review procedure. In this case, there is no express adoption of O.12 r.8(3) under O.16. 

38.	On the strength of those 2 supreme Court Judgements and the legal positions they represent which are binding on National Courts, I am inclined to and do accept and uphold the submission by the 1st plaintiff, that I do not have jurisdiction to entertain the 4th & 5th defendants application under O.12 r.8(3) of the Rules.

Does this Court have jurisdiction under Section 155 (4) of the Constitution?

39.    Section 155 (4) of the Constitution vests in the Supreme and National Courts inherent powers to make such orders as are necessary to do justice in the circumstances of a particular case. It is available to fill in a gap in the law or to fashion a new remedy. It is used in aid of a primary right conferred by law and it cannot confer a new primary right and it does not give the "Court the power to do anything contrary to what the law says": SCR No 2 of 1981 [1982] PNGLR 15, 154; Uma More v UPNG [1985] PNGLR 401, 424. 

40.     Is there a gap in O.16 of the Rules which requires Section 155 (4) of the Constitution to fill? In my view, there isn’t. Order 16 r.11 is available to a party who is aggrieved by any order made under O.16 r.3. Order 16 r. 11 reads:

“An appeal by way of motion to the Supreme Court may be made to set aside or discharge any order of the Court or a Judge granting or refusing an application for leave under Rule 3 or an application for Judicial Review”. 

41.	The Order of 7th May 2019 which the 4th & 5th defendant seek to vary is an order granted under O.16 r. 3. As such it is covered under O.16 r.11. In my opinion, the terms of O.16 r.11 is very clear. There is no room to vary an order made under O.16 r.3. An order made under O.16 r. 3 which includes an order for stay granted under O.16 r.3 (8) (a) can only be set aside or discharged (emphasis mine) through an appeal under O.16 r.11. 

42.     Section 155(4) cannot in my view, be applied to do anything contrary or inconsistent with the provisions of O 16 r 11. It follows therefore that, there is no room for this Court to invoke Section 155 (4) of the Constitution.

Can this Court consider the application under Order 16 Rule 3 (8) (a)?

43.	 The 4th & 5th defendants Motion filed on 5th December 2019, which is the subject of this ruling, seeks to vary the Order of 7th May 2019 pursuant to O.12 r. 8 and Section 155 (4) only. The 4th & 5th defendants have during the time given by the Court to file additional submissions on the issue of this Court’s jurisdiction under O.12 r, 8 and Section 155 (4), filed an Amended Motion. In that amended motion they seek to vary the stay order pursuant to O.16 r.3 (8) (a). The amended motion has not been heard. The motion is still on foot. In the circumstances, I find the alternative argument by the 4th & 5th defendants misleading and reject it on that basis.

Is a Stay Order granted under O.16 r.3 (8) (a) capable of being varied? (This is an extension of whether this Court has jurisdiction under Section 155 (4) of the Constitution).

44.   It the First Plaintiff’s submissions that, having regard to the difference between a Stay and an Injunction, and taking into account the judgment of the Supreme Court in Chan vs. Ombudsman (supra), a Stay Order granted under Order 16 Rule 3 (8) cannot be varied.  It can only be set aside through a review by a high Court by way of an appeal pursuant to Order 16 Rule 11 or Judicial Review under Section 155 (2) (b) of the Constitution. 

45.      In response, the 4th & 5th defendants submitted, it is not correct to say that a stay order granted under O.16 r.3 (8) cannot be varied. The leave application was ex parte as per Order 16 Rule 3 (2) of the National Court Rules.  Where one has no right to be heard at first instance, one does not have a right to appeal.  The applicants did not have an opportunity to be heard, despite their Counsel being present in Court simply to observe.  Otherwise if the applicants were to appeal, they would first need to seek leave of the Supreme Court.  In such a case, what submissions would the applicants make in circumstances where they had no right of appearance, presented no submissions in the National Court?  They would also need to show they have exhausted all avenues in the National Court, a position which militates in favour of entertaining this application.

46.      The order for stay granted by the Court on 7th May 2019 was an order granted under O.16 r.3 (8) ex parte.   For the same reasons why the Supreme Court in Chan case say O.12 r. 8 can not apply to an application made under O.16 r. 3, I disagree with Mr. Mana’s argument on this issue.

47.     A stay order under O.16 r. 3 (8) (a) which can only be granted on two conditions being met, namely: one, being, the grant of an ex parte application for leave for Judicial Review pursuant to O. 16 r. 3, and the other being, there must be pleaded, a relief for an order of prohibition or certiorari, in my view, is not capable of being varied because of its very nature. A ‘stay’ as opposed to an ‘injunction’ which is directed at an opposing party, is directed at suspending a whole process of something or a court proceeding or the operation of a particular decision (see the Makeng case). In this case, it is the suspension of the ‘decision’ clearing the MOU and its execution. If it is intended for O.16 to allow for variation of that stay order, it would, in my opinion contradict the intent or purpose of a stay order granted ex parte under O.16 r.3(8) (a). It follows therefore that, an appeal under O.16 r.11 is available for those aggrieved by an order made under O.16 r.3. In this case, an order for stay made under O.16 r.3 (8) (a). 

Have the Fourth and Fifth Defendants met all the requirement for a variation of the Stay Order of 7th May 2019

49.      This last issue is dependent upon the determination of the second issue. As I have found, this Court does not have jurisdiction under O.12 r. 8 and Section 155 (4) to entertain the application to vary which is a threshold issue here, it is now not necessary to consider this last issue.

Conclusion 

50.     The 4th & 5th defendants’ application for variation of the stay order of 7th May 2019 is refused with costs to the 1st plaintiff. The substantive Judicial Review application must now be given an expedited hearing.
__________________________________________________________________
Saulep Lawyers: Lawyer for the First Plaintiff				
Corrs Chambers Westgarth: Lawyer for the Fourth & Fifth Defendants