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Saviak v Elias [2025] PGNC 168; N11301 (8 May 2025)

N11301

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS(JR) NO. 243 OF 2024

BETWEEN:
MACK LAVI SAVIAK
Plaintiff

AND:
MICHAEL ELIAS
First Defendant

AND:
ENIOUS GIAMUKI as Acting Manager, Wau Mineral Resources Authority (MRA) Branch
Second Defendant

AND:
STAN NEKITEL as the Registrar of Mining Tenement
Third Defendant

AND:
HON. ANO PALA, MP as the Minister for Mining
Fourth Defendant

LAE: DINGAKE J
06, 08 MAY 2025

JUDICIAL REVIEW – Substantive hearing – fourth Respondent decision ultra vires Section 97(1)(3) and (5) of the Mining Act – held the decision liable to be quashed.

Case cited
Vanimo Jaya Ltd v East New Britain Provincial Government (2018) SC1734
Wilson Mavoko v Israel Kumbu SCM No.19 of 2021 SC2308
Council of Civil Service Unions v Minister for the Civil Service (1985) AC374
Mondiai v Wawoi Guavi Timber Co. Ltd [2007] PGSC 6; SC886

Counsel
Mr. Kenneth Aisi for the plaintiff
Mr.Joikere Kusip for the first defendant
Ms Nancy Kibikibi for the fourth defendant

1. DINGAKE J: INTRODUCTION: This is my judgment on the substantive judicial review application lodged by the Plaintiff
   

Introduction

2. The Plaintiff was granted leave by this Court on the 28^th of February 2025 to review the decision of the Fourth Respondent, taken on 31^st October 2023, in terms of which the Fourth Respondent granted the First Defendant/Respondent Alluvial Mining Lease, AML 1054.
   

A Synopsis of the Dispositive Facts

3. The Plaintiff applied unsuccessfully for a tenement on the 23^rd of October 2023 on the land he has been living in and mining at, being, Namie Creek. Instead, the First Respondent succeeded to obtain a tenement over the same land he had interest in and was awarded “AML 1054”. He is aggrieved by the Fourth Respondent’s decision mentioned above, on a number of grounds, including that there was no proper survey conducted by a Registered Surveyor for the tenement “AML No.1054”. He also says that the First Respondent’s co-ordinates of the Google Survey undertaken overlapped with the co-ordinates of his tenement “AML 1152”, which he was provisionally granted, pending the actual issuance of the license.
   
4. The full grounds the Plaintiff relies on to judicially review the decision of the fourth Respondent are discussed later in this judgment.
   
5. The Plaintiff’s case is that he is a resident of the land, Namie, having lived there with his family for a cumulative period of over 90 years. The Plaintiff avers that he had an existing tenement in Tribute N42, which he says was overlooked. He also says that the new AML 1054 overlaps with his existing tenement.
   
6. It would also appear that at some stage in the past, the Plaintiff’s father may have been assigned to mine the block for and on behalf of the leaseholder, RGC Pty Ltd, under a Tribute Agreement for a fee or portion of gold.
   
7. The First Defendant/Respondent on the other hand avers that he is a local from Wau, and that the Plaintiff is from Buang, and asserts that he is more qualified than the Plaintiff to be granted the tenement. He also avers that his application was lodged first in time, in 2021, compared to that of the Plaintiff which was lodged in October 2023. The First Defendant/Respondent also avers that following the grant of AML 1054, by the Fourth Respondent, the Plaintiff’s application (AML 1152) was de-registered and returned.

Standing

8. The First Respondent, has argued, preliminarily that the Plaintiff has no sufficient interest in this litigation as he does not have proprietary interest over the subject land that he claims his family occupied over 90 years. The Plaintiff in response contended that it may be too late to raise the issue of locus standi as it was determined in his favour at the leave stage.
   
9. Before dealing with the issue of whether the Plaintiff has standing. I want to make it clear that nothing precludes the Defendant/First Respondent from raising the issue of standing at the judicial review stage even though at the leave stage the court decided that the Plaintiff has standing. (Vanimo Jaya Ltd v East New Britain Provincial Government (2018) SC1734; Wilson Mavoko v Israel Kimbu SCM No. 19 of 2021; SC 2308.
   
10. It is important to deal with the issue of standing first because a finding that the Plaintiff lacks standing would be fatal to the judicial review.
    
11. Furthermore, it is trite law that this Court has an inherent jurisdiction to review standing upon request by a party to a proceeding, or on its own motion without any party requesting it do so: Re Reference to Constitution section 19(1) by East Sepik Provincial Executive [2011] SC1151.
    
12. In law (judicial review) a person who has standing is the one who is adversely affected by the decision sought to be challenged, either by having his rights/interests altered or by being deprived of a benefit or an advantage.
    
13. The above definition is distilled from the locus classicus decision in the often cited case in this jurisdiction, being the UK case of Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374.
    
14. In that case Lord Diplock (with whom some of the other members of the House agreed) summarized the test for standing in this way (at 408-409):
    

“To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect such other person either:

(a) By altering rights or obligations of that person which are enforceable by or against him in private law; or
(b) By depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or (ii) he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. (I prefer to continue to call the kind of expectation that qualifies a decision for inclusion in class (b) a “legitimate expectation” rather than a “reasonable expections” in order thereby to indicate that it has consequences to which effect will be given in public law, whereas an expectation or hope that some benefit or advantage would continue to be enjoyed, although it might well be entertained by a “reasonable” man, would not necessarily have such consequences.”

15. In the case of Mondiai v Wawoi Guavi Timber Co. Ltd (2007) PGSC 6; SC886, the Supreme Court indicated that a party who is “genuinely concerned” and not a busy body would have standing.
    
16. In this case, I am satisfied that the Plaintiff is genuinely concerned. He is not a busy body. He is the applicant for AML in the same area as that of the First Respondent. The decision of the Fourth Defendant/Respondent directly affects him and or his interest. It is my conclusion that the First Defendant/Respondent’s contention that the Plaintiff is a busy body is without merit. The Plaintiff clearly has standing in this matter.
    

Grounds

17. The Plaintiff advances the following grounds to judicially review the decision of the Fourth Respondent:
    1. Wednesbury Unreasonableness
    2. Error of Law
    100. Bias
    4. Bad Faith
18. During argument Counsel for the Plaintiff conceded there is no evidence that support that the Fourth Respondent was biased or driven by bad faith in the decision he took, that is sought to be impugned.
    
19. The concession was well made and I need not say anything further with respect to the ground of bias or bad faith, as they are self-evidently without merit.
    

Wednesbury Unreasonableness

20. I turn to consider whether the ground that the Fourth Respondent’s decision was unreasonable in the Wednesbury sense was established.
    
21. It has been held in the Locus classicus decision of Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1KB 223 that “Wednesbury unreasonableness” applies to a decision which is outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. To the extent that this ground may entail value judgements and even tempt judges to substitute their own decision for that of a decision maker; that should never be done. However, the ground of “Wednesbury unreasonableness” should succeed where the decision is so outrageous in its defiance of logic or accepted moral standards that no reasonable person could have taken that decision, because that type of decision could hardly be characterized as acting fairly.
    
22. In summation it appears to me that for the Plaintiff to succeed under this ground he must show that:
    

(i) in making the decision, the defendant took into account factors that ought not to have been taken into account,

(ii) the defendant failed to take into account factors that ought to have been taken into account; or

(iii) the decision was so unreasonable that no reasonable authority would ever consider imposing it.

23. In my opinion the requisite threshold in the Wednesbury case was not met in this case. Accordingly, this ground is without merit and it is dismissed.
    

Error of Law

24. The Plaintiff’s ground of error of law rests on the averment that no survey contemplated by Section 97(1)(3) and (5) of the Mining Act 1992, was done.
    
25. It is common cause that no such survey was done. Both Counsel for First Respondent and the State conceded this point and could not point or furnish this Court with the survey.
    

Section 97(1)(3) and (5) of the Mining Act 1992 provides:

“(1) Prior to the grant of a tenement (other than an exploration licence) the boundary of the land the subject of an application shall be surveyed as provided for in Subsection (3).”

(2)..................................

(3) A survey of the land, the subject of an application shall-

(a) be made at the registered surveyor or under the direction of a registered surveyor; and

(b) be at the costs of the applicant; and

(c ) conform to any class of survey permitted under the directions; and

(d) include a schedule on prescribed form describing the corners of the boundary of the land in latitude and longtitude.

(4)..................................

(5) where a survey is lodged under Subsection (4) the Registrar shall immediately register the survey and –

(a) where the survey confirms that all the land the subject of the application is available for the purposes for which the application was made, cause of copy of the survey schedule to be published in the National Gazette; or

(b) where only part of the land is available-

(i) prepare a schedule for the land that is available for the tenement on the prescribed form in substitution of the schedule submitted with the survey; and

(ii) cause a copy of the revised schedule to be published in the National Gazette; and

(iii) Send a copy of the revised schedule to the applicant.”

26. It is my considered view that prior to the grant of a tenement the boundary of the land the subject of the application shall be surveyed as provided in subsection (3) above and that the Minister (Fourth Respondent) committed an error of law in granting the First Respondent a tenement in the absence of a survey contemplated by Section 97(1)(3) and (5) of the Mining Act of 1992.
    
27. In the result, for the above reason alone, the judicial review succeeds.
    
28. In judicial review the relief sought is at the discretion of the Court. In the Notice of Motion filed pursuant to Order 16 Rule 5(1) of the National Court Rules the Plaintiff prays that the Third Respondent be ordered to accept and register the Plaintiff’s AML 1152 of that the Fourth Respondent shall grant AML 1152 to the Plaintiff. To do so would amount to substituting the decision of a public functionary (Fourth Respondent) with that of the Court that would be improper.
    
29. The Orders of the Court are as follows:
    1. Pursuant to Order 16, Rule 5(1) of the National Court Rules, an Order by way of a Writ of Certiorari be granted to bring to this Court the decision of the Fourth Respondent made on 31^st October, 2023 granting Alluvial Mining Lease (AML) “1054” to the First Respondent and quash the said decision accordingly.
    2. The Fourth Respondent is ordered to reconsider both applications according to law.
    3. The Cost of this proceedings be paid by the Fourth Respondent.
    4. Time of entry of these Orders be abridged to the date and time of settlement in this matter.
    5. Any other Orders this Court deems fit.
       

_____________________________________________________________
Lawyers for the plaintiff: Aisi Lawyers
Lawyers for the first defendant: Kusip Lawyers
Lawyer for the second, third & fourth defendants: Solicitor General