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Lavisaviek v Elias [2025] PGNC 36; N11159 (28 February 2025)

N11159

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 243 OF 2024

BETWEEN
MACK LAVISAVIEK
Plaintiff

AND
MICHAEL ELIAS
First Defendant

AND:
ENIOU GIAMUKI, Acting Manager, Wau Mineral Resource Authority (MRA) Branch
Second Defendant

AND
STAN NEKITEL as the Registrar for Mining Tenement
Third Defendant

AND
HON. ANO PALA, MP AS MINISTER FOR MINING
Fourth Defendant

LAE: DOWA J
21, 28 FEBRUARY 2025

PRACTICE & PROCEDURE – Originating Summons – Order 16 Rule 3 (1) & (2) NCR- Application for leave to apply for Judicial review – decision of Minister for Mining granting Alluvial Mining Lease -–prerequisites of leave- whether grounds exists for leave- important points of law raised -all requirements met-leave granted

Cases cited
NTN v PTC [1987] PNGLR 70
Kekedo v Burns Philp [1988-89] PNGLR 122

Counsel
K. Aisi for the plaintiff
J. Kusip for the first defendant
N. Kibikibi for the second, third and fourth defendants

RULING

1. DOWA J: This is a ruling on the Plaintiff’s application for leave to apply for Judicial Review of the decision of the Minister for Mining dated 31^st October 2023 which granted Alluvial Mining Lease AML1054 to Michael Elias, the first Defendant, at Namie Creek, Wau, Morobe Province.

2. By Originating Summons, the Plaintiff applies for leave for judicial review of the decision of the fourth Defendant dated 31^st October 2023 which granted an Alluvial Mining lease, AML 1054 to the first Defendant.

Background Facts

3. The Plaintiff is a resident of Namie Creek, Ward 4, Wau Urban LLG. He is an applicant for an AML for Namie on 23^rd October 2023. He was given AML No.1152 pending approval and issuance of the lease. The First Defendant, Michael Elias, is also an applicant for the Alluvial Mining lease over the same area, under AML 1054.On 31^st October 2023, the fourth Defendant decided to grant the Alluvial Mining Lease to the First Defendant, Michael Elias. Aggrieved by the decision, the Plaintiff now applies for leave to apply for Judicial Review of the decision of the Minister.

Grounds for the application

4. The Plaintiff challenges the decision on the following grounds:

1. He is the resident of the land, Namie, having lived with his family there for over 90 years and by virtue of Section 48 of the Mining Act he is more qualified than the first Defendant.
2. He has an existing tenement in Tribute N42 which was overlooked.

100. The new AML 1054 overlaps with the Plaintiff’s existing tenement in Tribute No. N42.

4. The First and Second Defendants are relatives from the same area and the decision was biased.
   

5. The application is opposed for the following reasons:

1. The first Defendant is a local from Wau, and the Plaintiff is from Buang, and under Section 48 of the Mining Act, he is more qualified than the Plaintiff.
2. The first Defendant’s application was lodged in 2021, first in time, compared to the Plaintiff’s application lodged in October 2023. He says his application has priority under section 100 of Mining Act.

100. The Plaintiff did not seek review within four (4) months as required by the National Court Rules.
     

The Law

6. Applications for leave for judicial review involve the exercise of discretion. The principles applicable to an application for leave for judicial review are well settled in the cases, NTN v PTC (1987) PNGLR 70 and Kekedo v Burns Philp (1988-89) PNGLR 122.
   
7. In NTN v PTC (supra) the Court said:
   

“Applications for leave for judicial review, involve the exercise of discretion, such discretion must be exercised judicially. Once a court is satisfied that the applicant has sufficient interest it then exercises his discretion whether leave should be granted.”

In exercising its discretion, the court must consider whether the applicant has an arguable case. In Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses(1982) AC 617 Lord Diplock set out the principles upon which the court should act and I respectfully adopt them-If on a quick perusal of the material the court (that is the judge who first considers the application for leave ) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.”

8. The main prerequisites an applicant for leave must show under Order 16 Rules 3 & 4 of the National Court Rules are:
   
   1. The Plaintiff must have locus standi/sufficient interest.
   2. He must have an arguable case.

c) Exhausted other administered avenues.

4. no undue delay
5. decision made by public Admin Body
   

Standing/Sufficient Interest

9. The Plaintiff is the applicant for the AML in the same area as that of the first Defendant. The Minister's decision of 31^st October 2023 granting the AML 1054 to first Defendant directly affects his interest. Therefore, he has sufficient interest and standing.
   

Does the Plaintiff have an arguable case

10. The Plaintiff says he is aggrieved by the decision of the Minister for Mining because of the following reasons:
    
    1. The Minister failed to consider that the Plaintiff has an existing tenement in Tribute N42 over the subject portion of land. The Minister failed to consider that the new AML 1054 encroaches onto the Plaintiff’s land. The Minister failed to consider that there was no proper Surveys demarcating the border or boundaries of the land.
       
    2. The Plaintiff and his family have living on the land for 70-90 years. Under Section 48 of the Mining Act, he has priority over the 1^st Defendant. On the other hand, the first Defendant argues that he is a local and Section 48 of the Act favors him rather than the Plaintiff. This is an interesting legal argument, which must be properly argued in a substantive review.
       
    100. The First Defendant submits further that his application has priority over the Plaintiff’s application under Section 100 of the Mining Act because he lodged his application before the Plaintiff did. This is also an important legal point to be argued in the substantive review.
         
    4. Finally, the Plaintiff alleges the Second Defendant was biased in that he orchestrated the grant of the AML to the first Defendant as he is related to him. This complaint of favouritism must be properly established and argued. For these reasons I find the Plaintiff has an arguable case worthy of substantive review.
       

Did the Plaintiff Exhaust all Administrative Avenues

11. The Plaintiff alleges that he has appealed the decision on 11^th January 2024. The response was not received until 5^th July 2024 which rejected his request for reconsideration. The Plaintiff has therefore exhausted all administrative appeal process.
    

Undue delay

12. Order 16 Rule 4 (2) of the National Court Rules provides that an application for leave for Judicial Review be made within four (4) months. The decision, the subject of this application, was made on 31^st October 2023. There is a delay of eight (8) months as the current proceedings were filed on 22^nd October 2024. The Plaintiff submits that the delay is attributed to two reasons:
    
    1. The Plaintiff was involved or pursuing the matter in a misguided manner in the District Court which took up most of the time.
    2. Awaiting a response in respect of the Appeal he lodged with the Defendants.
       
13. Although the National Court Rules prescribe 4 months, the National Court has a discretion to extend that period provided the applicant provides a reasonable explanation for the delay. I accept the explanation provided by the Plaintiff and note that the delay is not unreasonable. It is not as though the Plaintiff did nothing. He was actively doing something to protect his interest.
    

14. For the foregoing reasons, I will grant leave to the Plaintiff to apply for judicial review of the decision of the Minister for Mining made on 31 October 2023 in granting AML 1054 to the first Defendant.

Orders

15. The Court orders that:

1. Leave is granted to the Plaintiff to apply for judicial review of the decision of the Minister for Mining made on 31^st October 2023.
2. The Plaintiff shall file and serve a Substantive Notice of Motion for Judicial Review within 21 days.
3. Costs be in the cause.
4. The matter is adjourned to 7^th April 2025 for listing.

_______________________________________________________________
Lawyers for the plaintiff: Aisi Lawyers
Lawyers for the first defendant: Kusip Lawyers
Lawyer for the second, third and fourth defendants: Office of the Solicitor General