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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 18 and 56 OF 2022
BETWEEN:
ARRAN ENERGY (ELEVALA) LIMITED on it’s own behalf and as Operator of PRL21, ARRAN ENERGY (NIUGINI) LIMITED, ARRAN ENERGY (JG) PTY LIMITED, KINA PETROLEUM (PRL21) LIMITED
- First Plaintiff-
AND:
ARRAN ENERGY (UBUNTU) LIMITED on it’s own behalf and as Operator of PRL28, ARRAN ENERGY (NIUGINI) LIMITED, MEGA FORTUNE INTERNATIONAL LIMITED
- Second Plaintiff-
AND:
ARRAN ENERGY (UBUNTU) LIMITED on it’s own behalf and as Operator of PPL574, ARRAN ENERGY (JG) E&P PTY LIMITED, ARRAN ENERGY (KETU) LIMITED, MEGA FORTUNE INTERNATIONAL LIMITED
- Third Plaintiff-
AND:
HON. KERENGA KUA, OL., MP, MINISTER FOR PETROLEUM
-First Defendant-
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
-Second Defendant-
AND:
DAVID MANAU as Chairman and KONEY SAMUEL, ANDREW OEAKA, JOSEPH WARUS, JIMMY HAUMU, RONALD MEKETA AND CLARENCE HOOT as members of the PETROLEUM ADVISORY BOARD
-Third Defendant-
AND:
DAVID MANAU as SECRETARY OF THE DEPARTMENT OF PETROLEUM & ENERGY and as DIRECTOR OF PETROLEUM
-Fourth Defendant-
Waigani: Tamade AJ
2022: 21 July and 22 July
INJUNCTIONS – equitable relief - application by plaintiff seeking interim restraining orders- applicant seeks that Defendants, their officers, servants and agents be restrained from using or releasing under section 149(3), (4) or (5) of the Oil & Gas Act information concerning the license areas subject of APDL12 – principles of law on interim restraining order discussed – difference between a stay of proceedings and injunctions - an injunction restrains a certain conduct or act from taking place and a stay is a freeze on the decision the subject of the review – interim restraining order granted
PRACTICE AND PROCEDURE – application by plaintiff to consolidate proceedings – principles of law on application to consolidate proceedings discussed - A consolidated hearing of two or more causes of action is usually ordered or directed by the Court where there are similarities in the causes of action, the issues of fact and law, the parties’ interests their desired case outcomes; such that it is desirable that the actions should be disposed of at the same time - practicality of consolidation is that rather than filing separate documents under separate proceedings, documents can be filed in the hearing of both matters without the need for filing duplicate matters – orders sought for the consolidation of both proceedings is granted – costs awarded to the plaintiffs
Cases Cited:
Kulgmump Limited and Ors v Jacob Kop and Ors (2019) N7940
Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317
Barrick (Niugini) Ltd v Nekitel [2020] PGSC 99; SC2010
Counsels:
Mr. Erik Anderson and Ms Shauna Supro, for the Plaintiffs
Mr. Jonathan Holingu, for the First and Fourth Defendants
Mr. Russel Uare, for the State
Mr. Justin Wohuinangu, for the Third Defendant
22nd July, 2022
1. TAMADE AJ: Before this Court is an application by way of a Notice of Motion filed on 9 March 2022 by the Plaintiffs basically seeking interim restraining orders, orders for production of certain documents and information, and for directions to progress the matter to a substantive hearing after the grant of leave for judicial review and after orders for stay have been granted on the decisions the subject of the review.
2. Mr. Anderson of the Plaintiff has also applied for a consolidation of both proceedings OS (JR) 18 of 2022 and OS (JR) 56 of 2022 on the basis that though the decisions the subject of judicial review are different in both proceedings, the parties to both these proceedings are the same, the issues are related and as to the practicality of the matter, they are best consolidated to be heard together by the Court. Mr. Holingu objects to the consolidation of these two matters and states that the matters should be kept separately but heard together so that the issues are kept separate. Mr. Wohuinangu and Mr. Uare representing the other Defendants both support the contention by Mr. Holingu.
Consolidation of proceedings
3. To ascertain the differences between these two proceedings, the Order 16 Statement filed in both proceedings gives the differences in the decisions the subject of the review. In OS (JR) 18 of 2022 which was filed first in time, the Plaintiffs are seeking judicial review of the decision by the First Defendant made on 3 February 2022 to refuse the Plaintiffs Amended Application for a Petroleum Development License (“APDL12”) and the decision by the Third Defendant, the Petroleum Advisory Board (PAB) to report, advise or recommend to the First Defendant to refuse to grant the APDL12.
4. OS (JR) 56 of 2022 which concerns the same parties seeks to review a subsequent decision by the First Defendant concerning the same APDL12 in which the Minister on or about 5 May 2022 purported to retract his earlier decision in an Instrument of Refusal to Grant the APDL12 dated 3 February 2022 and to issue a Section 56B Notice under the Oil & Gas Act and to invite the Plaintiffs to respond within 30 days addressing the same grounds for refusal set out in his earlier decision referred by the Plaintiffs as the “Building Block Decisions” and also the Plaintiffs seek to review the decision of the PAB in its’ report, advice or recommendation to the First Defendant to issue a Notice of Proposed Refusal under section 56B of the Oil & Gas Act.
5. In addressing the law on consolidation of proceedings, I will adopt the observations by Justice Anis in the case of Kulgmump Limited and Ors v Jacob Kop and Ors (2019) N7940 where His Honour quoted the following:
“Let me refer to case law for assistance on whether the proceedings should be consolidated. Chief Justice Sir Salamo Injia, in the case, Daniel Bali Tulapi v. Aiya James Yapa (2013) N5235, stated at paragraph 5 in his decision, and I quote:
‘A consolidated hearing of two or more causes of action is usually ordered or directed by the Court where there are similarities in the causes of action, the issues of fact and law, the parties’ interests their desired case outcomes; such that it is desirable that the actions should be disposed of at the same time. The main purpose of a consolidated hearing is that it saves time and costs: Payne v British Time Recorder Co. [1992] 2 K.B 1 at 16. The terms upon which the consolidation ordered should set the procedural platform for the manner in which the proceedings are conducted, and those terms may vary from case to case.’
Justice Los stated in the case, Masket Iangalio v. Electoral Commission and Ors (1998) SC568, and I quote:
“There is no absolute prohibition against consolidation. But the issue must be properly brought before the court with appropriate and sufficient notice to other parties. A judge before whom an application is made to consolidate certain actions, must consider the facts, practicalities and circumstances of the cases sought to be consolidated. If any two matters for instance cannot be consolidated, they could be heard consecutively.”
6. There is no contest by the Defendants that the proceedings should be heard together. The Defendants agree that both proceedings should be heard together but that it must not be consolidated so the decisions in both proceedings should remain as separate decisions. I find a more practical argument in the submissions by Mr. Anderson that the decisions the subject of the review to my mind concern the APDL12, it is the same subject matter, same parties, one decision was made first in time refusing the APDL12 and the subsequent decision seeks to revisit that decision. The decisions the subject of the review are therefore to my mind on the same train of the same subject matter but made are first in this than the other subsequently.
7. There is no issue as to both matters being heard together however the objection as to consolidation to my mind are superfluous, the effect of both matters being heard together is the same as both matters being consolidated. The practicality of consolidation is that rather than filing separate documents under separate proceedings, documents can be filed in the hearing of both matters without the need for filing duplicate matters. I will therefore grant the order for consolidation of both proceedings.
Notice of Motion filed 9 March 2022
8. I now address the issues raised in the Notice of Motion filed by the Plaintiffs on 9 March 2022. The Defendants argue that Term 1 of the Notice of Motion which seeks that the Defendants, their officers, servants and agents be restrained from using or releasing under section 149(3), (4) or (5) of the Oil & Gas Act information concerning the license areas subject of APDL12 is not necessary as Mr. Holingu submits that section 149 already protects the confidentiality around the information under section 149. The Defendants do not argue that they will be prejudiced by these orders and to my mind, perhaps there is a level of distrust the Plaintiffs have that the confidential information submitted to the Defendants in the application of APDL12 will not be kept confidential and or that the access to these confidential information under section 149(3), (4) and (5) of the Oil & Gas Act will allow the Defendants to look elsewhere for a potential developer for the subject resource thereby the Plaintiffs’ APDL12 will not be given the undivided attention that it should receive from the Defendants.
9. I take Mr. Holingu’s arguments that a stay has already been granted on the decision the subject of the review and there is no need for such orders. There is however a distinction between a stay of proceedings and an injunction. An injunction restrains a certain conduct or act from taking place and a stay is a freeze on the decision the subject of the review. This can be seen from the case of Makeng v Timbers (PNG) Ltd [2008] PGNC 78; N3317 (23 April 2008) with the important parts underlined where the Court stated that:
“There is little difference between an order for stay issued under part (a) and an interim order, usually an interim injunction, issued under part (b) because both have the same effect. In De Smith, Wolf and Jowell, Judicial Review of Administrative Action, 5th Ed; Sweet & Maxwell, 1995, the distinction between RSC Ord 53 3 (10) (a) and (b) is explained, at page 670, par 15-29:
"When the relief sought includes an order of certiorari or prohibition, the grant of leave, if the court so directs, operate as a stay or until the court otherwise orders. The term "stay of proceedings" is not confined to proceedings of a judicial nature but encompasses the process by which any decision challenged has been reached, including the decision itself. When any other relief is requested, the court may at any time grant such relief as could be granted in an action commenced by writ, most usually an interim injunction. Although a stay of proceedings and an interim injunction perform the same function of preserving the status quo until the full hearing, there are conceptual differences between the two forms of relief. Whilst the injunction protects the interest of the litigant in dispute with another, the stay is not addressed to an "opposing party" but rather is directed at suspending the operation of a particular decision. While the grant of an interim injunction is usually conditional upon the applicant giving a cross-undertaking in damages, there appears to be no such requirement or practice in relation to a stay of proceedings".
10. There is Undertaking As to Damages filed by the Plaintiffs in the matter.
11. Mr. Holingu made submissions that in the practice of the Department of Petroleum and Energy, no party has even sought restraining orders to preserve confidentiality of information entrusted to the Department as the Department has always protected that confidentiality. I did pose to Mr. Holingu whether a party who seeks to protect that confidentiality is a party who can be seen to have valued such a privilege and confidentiality to seek the Court’s intervention to protect such privilege or confidentiality. Mr. Holingu seems to agree that it could be so however, he insists that the order sought is unnecessary and seems to leave it up in the air that until such time such confidentiality is breached, the Plaintiffs can take appropriate measures. I refuse to accept this line of submission in that the Defendants have shown no prejudice if the order is to be granted and to my mind, any apprehension the Plaintiffs have as to the preservation of the confidentiality around those information, documents, samples, intellectual property and industrial processes etc under section 149 of the Oil & Gast Act are not far-fetched or fanciful. The Plaintiffs concerns to my mind are real and are relevant regarding the issues the subject of the judicial review as the Defendants should be fully attentive to the issues now before the Court making the matters herein sub-judice removed from their hands.
12. The Plaintiffs’ right as to privilege and confidentiality of information is protected under section 51 of the Constitution where there is a need to protect such secrecy or privilege as is reasonably justified in a democratic country and therefore pursuant to section 149 of the Oil & Gas Act and allowing for the preservation of confidentiality of those documents and or information under Term 1 of the Notice of Motion filed on 9 March 2022 to ensure all matters herein are properly dealt with by the Court whereby the Court is seized of these matter and the Court should be properly dealt with without the Defendants taking matters into their own hands regarding the resource and the areas the subject of APDL12.
13. In regard to the production of the report by the PAB and any documentation, membership of the PAB present at the deliberation and preparation of the report to the Minister, notices of such meetings and attendees of these meetings, minutes of meetings and or other documentation relied on by the PAB in making the recommendation to the Minister whose decisions are the subject of these reviews, the Defendants have objected to the production of these information. Mr. Holingu states that these information are not necessary as the Defendants should be allowed to keep these information as it will form the basis of the final decision as in regards to APDL12 which is yet to be decided on substantively by the Minister. Mr. Holingu argues that the decisions the subject of the judicial review are not final and that the process is still to be completed. Mr. Wohuinangu on the other hand argues that not all the information and or documentation applied for to be produced should be given however the Defendants should produce only a summary of these information which would suffice for the hearing of the matter. Mr Wohuinangu argues that the PAB does not make the decision as to the APDL12 however it is the Minister. The Defendants do not dispute that they will be prejudiced by the production of these information and documents.
14. The appropriate question to consider in an application for production or discovery of information and documents in a judicial review matter is whether the information and or documents are necessary and relevant to the case at hand. Mr. Anderson submits in the words that the Plaintiffs are not casting out a wide net for discovery or production of documents, they have a confined list as under Term 6 (c) of their Notice of Motion.
15. The law as to whether documents and or information sought in a judicial review matter is whether these documents or information are necessary and relevant in the hearing of the matter as can be seen in the case of Barrick (Niugini) Ltd v Nekitel [2020] PGSC 99; SC2010 (6 October 2020). The case of Barrick discusses section 163 of the Mining Act however I am of the view that the considerations as to production of documents and or discovery where information and or documents are sought on the ground that it is necessary and it is relevant to the matter at hand, the interest of justice considerations are paramount that those documents and or information which are necessary and are relevant to the case at hand should be discovered and or produced. The grounds of judicial review relied on by the Plaintiffs go to include the ‘wednesbury principle’ whether the decision of the Minister and the PAB took into account relevant considerations and therefore to my mind, the information and the documents sought by the Plaintiffs are necessary and are relevant in the determination of the matters before this Court and therefore I will grant the Orders sought by the Plaintiffs accordingly. Matters as to admissibility of these documents are matters for trial and can be addressed accordingly then.
16. The Plaintiffs’ have filed and served their Notice of Motion of 9 March 2022 on the Defendants and have reached out to the Defendants since to get some consensus on the application however the conduct of the Defendants have been unreasonable in my view opting to be uncooperative and refusing to come under the full authority of the Court as the Court is seized of the subject matter. It is on this basis that the Court will order costs of the application on a solicitor-client basis against all the Defendants.
17. The Orders of the Court are:
Court Orders Accordingly.
Dentons PNG : Lawyers for the Plaintiffs
Holingu Lawyers : Lawyers for the First and Fourth Defendants
Office of the Solicitor General: Lawyers for the Second Defendant
Gileng & Co Lawyers: Lawyers for the Third Defendant
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URL: http://www.paclii.org/pg/cases/PGNC/2022/298.html