N11198

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 56 OF 2022

BETWEEN:
ARRAN ENERGY (ELEVALA) LIMITED on its 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 its own behalf and as Operator of PRL28, ARRAN ENERGY (NIUGINI) LIMITED, MEGA FORTUNE INTERNATIONAL LIMITED
Second Plaintiff

AND:
ARRAN ENERGY (UBUNTU) LIMITED on its own behalf and as Operator of PRL28, 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 OEKA, 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:   DINGAKE J
21 FEBRUARY 2025

JUDICIAL REVIEW – Abuse of process – Order 16 Rule 13 (13) 2(a) & b(a) Practice and procedure – National Court – Motion to dismiss proceedings – No reasonable cause of action disclosed – Allegation of abuse of process – Held – Application is without merit, and it is dismissed.

Cases cited
Telikom (PNG) Ltd v ICCC [2008] SC906
Telikom (PNG) Ltd v Rava (2018) SC1694

Counsel

Mr. Erik Andersen & Ms. Ethel Goina for the plaintiffs
Mr. Jonathan Holingu for the first & fourth defendants
Mr. Russell Uware for the second defendant 
Mr. Justin Wohuinagu for the third defendant

1.	DINGAKE J: INTRODUCTION: By way of a Notice of Motion filed on the 20th of August 2024, the First & Fourth defendants (hereinafter referred to as the Applicants or Defendants) sought orders that: “the entire proceedings be dismissed for being an abuse of court process and or disclosing no cause of action.’’

2.	The application is supported by the supporting Affidavit on file of David Manau filed on the 20th of August 2024.

3.	The application is opposed by the Plaintiffs.

Background

4.	The Plaintiffs were applicants for a Petroleum Development Licence over Ketu, Elevala Gas Fields in the Western Province.

5.	On the 3rd of February 2022, the Minister for Petroleum Hon. Kerenga Kua refused to grant the application.

6.	Aggrieved by the decision of the Minister the applicants commenced proceedings OS JR No. 18 of 2022 to review the decision of the Minister.

7.	On or about the 5th of May 2022, the Minister, apparently, after perusing or considering OS JR NO. 18 of 2022, revoked this decision made on the 3rd of February 2022, and instead wrote a letter, calling upon the Plaintiffs to show cause in effect, why he should not refuse or decline the application.

8.	The said letter bears quoting in full “I refer to the instrument of Information Concerning Refusal to Grant a Petroleum Development License (PDL) No. 12 (over the Ketu Elevala Gas Fields) dated 3rd February 2022, served to your office on 4th February 2022.  Having considered the Issue before the Court in OS(JR) No.18, after thorough review of your challenges and pursuant to Section 6C, I HEREBY formally retract the “Information Concerning Refusal to Grant a Petroleum Development Licence (PDL) No. 12” dated 3rd February 2022 and served to you on the 4th of February 2022. I HEREBY also issue a fresh instrument pursuant to Section 56B of the Oil and Gas Act (as amended) in place of that described above.”

9.	Aggrieved by the decision of the Minister to issue a new Section 56B notice, the Plaintiffs commenced proceedings against the Defendants in OS (JR) No. 56 of 2022 (IECMS).

10.	The two proceedings OS JR No. 18 of 2022 and OS JR No. 56 were subsequently consolidated.

11.	Proceedings OS JR No. 18 of 2022 were subsequently, dismissed by my brother Kandakasi DCJ, leaving OS JR 56 of 2022 to be progressed to directions hearing.

The Issue

12.	The issue that falls for the determination is whether this proceedings (judicial review) are susceptible to dismissal for the reason that they disclose no reasonable cause of action and or are otherwise an abuse of court process.

Submission of the parties

13.	The Applicants/Defendants contend that they have made out a case that the Plaintiffs’ judicial review proceedings are liable to be dismissed for disclosing no cause of action, being an abuse of process or being frivolous and vexatious as contemplated by Order 16 Rules 13 (13)(2)(a) and (b)of the National Court Rules.

14.	Essentially, the Defendants argue that the notice to show cause, is a procedural step and or not final decision and is not susceptible to judicial review, and further that no reasonable cause of action has been established and that the Plaintiffs in persisting that they are entitled to proceed with the proceedings are abusing the process of the court.

15.	The Third Defendant argues that the court lacks jurisdiction to review a procedural step.

16.	The Applicants also submitted that the Plaintiffs proceedings are premature, as no final determination has been made by the Minister.

17.	The Plaintiffs in opposition to the relief sought by the Applicants/Defendants, submitted that the argument of the Defendants that the Judicial Review Application in OS (JR) 56 of 2022 is premature and should not proceed or be summarily dismissed has already been rejected by this Court (Per Tamade AJ and Kandakasi DCJ) and by the Supreme Court on the 18th of July 2022 of SCA 94 of 2022 when Makail J, sitting as a single Supreme Court Judge refused leave to appeal against the grant of leave for judicial review given by Tamade AJ.

18.	On account of the above, the Plaintiffs contend that this application is res judicata.

19.	The Plaintiffs also argue that the Defendants have failed to meet the requirements applicable to jurisdictional basis for their Motion, in that the Defendants are not complaining that the Plaintiffs failed to comply with the directions or orders issued under Order 16 or under the Rules and, further that, the Defendants have not alleged any competency ground as required by the jurisdictional basis they relied upon.

20.	The Plaintiffs argued, further that the Defendants have not made out a case that the judicial review proceeding ought to be dismissed because it did not disclose any cause of action and or are otherwise an abuse of court process.

Considerations

21.	In this matter this Court per (Tamade AJ) granted leave for judicial review on the 22nd of July 2022. After granting leave, and on the same day the Court granted a stay of the decision of the 3rd of February 2022.

22.	The proceedings ought to be dismissed are judicial review proceedings. The National Court Act has jurisdiction to review administrative decisions and deal with any other issue incidental thereto. 

23.	The Applicants have not raised any cognizable competency issue in this matter. They have also not demonstrated that the Plaintiffs have failed to comply with the directions or orders issued under Order 16 of the National Court Rules. In the result, their invocation of Order 16 Rule 13 (13) (2) (a) and (b) is misplaced, as they have failed to meet the prerequisites of the said Order, namely, that the Plaintiffs have failed to comply with directions or orders of this court or raise any competency issue. 

24.	A competency ground implicates the jurisdiction of this Court. The Defendants have not raised any competency issue that challenges the jurisdiction of this Court.

25.	I therefore agree with the Plaintiffs that the facts applicable to the jurisdictional basis for the Motion have not been met.

26.	This application is liable to be dismissed on the above ground alone.

27.	Additionally, I find that this application is an abuse of court process in so far as the Applicants /Defendants have persisted in bringing the same application to this Court on several occasions as indicated earlier.

28.	On the evidence, it is plain that the same application to dismiss these proceedings was brought on the 8 of June 2022 (Doc 15). The Notice of Motion of the 8th of June 2022 is in an identical term as the present Motion.

29.	On the 9th of June 2022, my sister Tamade AJ, (Doc 26) ordered that “The First Defendant’s application to dismiss these proceedings including the application filed in will be heard at the trial”.

30.	It follows from the above that the matter of dismissal of these proceedings has already been determined, and no appeal was filed against the decision of Tamade AJ, ordering that the dismissal application will be heard at the trial of the substantive judicial review.

31.	In the case of Telikom (PNG) Ltd v ICCC (2008), SC906, the Court held that initiating multiple proceeding on the same matter without a compelling justification amounts to an abuse of court process.

32.	This Court has an inherent power to protect its processes against abuse (Telikom (PNG) Ltd v Rava (2018) SC1694).

33.	I hold that this application is also liable to be dismissed on the ground of abuse of process alone.

34.	However, even assuming I am wrong in concluding as I have done above, and that “abuse of process” and “no reasonable cause of action” are not matters of competency as contemplated by Order 16 Rule 13 (2) (a) and (b)(a) of the National Court Rules, I would still dismiss the application because I do not think that the Plaintiffs judicial review process does not disclose a reasonable cause of action and are an abuse of court process.

35.	In my view the judicial review discloses a reasonable cause of action. In law a reasonable cause of action is a set of facts or allegations which if proven to be true, would entitle the Plaintiffs to a remedy. 

36.	In this case, if it is proven that the Minister acted in a manner alleged, it would entitle the Plaintiffs to a remedy. The Plaintiffs’ grievance or complaint is clear. However, whether the Plaintiff would succeed to proving their allegations at the trial is a totally different matter that should not concern this Court at this stage.

37.	This Court would not lightly chase a litigant from the judgement seat, unless his “cause of action is obviously and incontestably bad”, which is not so in this case.

38.	On the evidence before me and based on the submissions of the parties, whether or not the notice of show cause is a ‘decision’ susceptible to review would depend on, among other things, whether the Plaintiffs can prove procedural impropriety, unlawfulness and or adverse consequences arising from that show cause notice. That provides all the more reason for the judicial review to be set down for trial, rather than attempt to shut out a party from being heard in substantiation of their claim. 

39.	In the result, for one or all of the reasons stated above, the application is without merit, and it is dismissed.

Orders

40.      It is ordered that:

a)	The application is dismissed

b)	Costs are awarded to the Plaintiffs to be agreed or taxed.
__________________________________________________________________
Lawyers for the plaintiff:	Dentons PNG	 
Lawyers for the first & fourth defendants: Holingu Lawyers
Lawyer for the second defendants: Solicitor General
Lawyers for the third defendant: Gileng & Co. Lawyers