SC2049
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 13 OF 2020

BARRICK (NIUGINI) LIMITED
Appellant

V

STANLEY NEKITEL, IN HIS CAPACITY AS
REGISTRAR OF TENEMENTS
First Respondent

JERRY GARRY, CHAIRMAN, REPRESENTING ALL OTHER MEMBERS OF THE MINING ADVISORY COUNCIL
Second Respondent

MINERAL RESOURCES AUTHORITY
Third Respondent

HONOURABLE JOHNSON TUKE MP, MINISTER FOR MINING
Fourth Respondent

HONOURABLE JAMES MARAPE MP, CHAIRMAN, REPRESENTING ALL OTHER MEMBERS OF THE NATIONAL EXECUTIVE COUNCIL
Fifth Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Respondent

MINERAL RESOURCES ENGA LIMITED
Seventh Respondent

HONOURABLE DAVIS STEVEN MP, ATTORNEY-GENERAL
AND NOMINAL DEFENDANT ON BEHALF OF THE HEAD OF STATE
Eighth Respondent

Waigani: Kirriwom J, Cannings J, Makail J
2020: 16th, 17th December

JUDGMENTS AND ORDERS – order of Supreme Court for production of documents – non-compliance with Supreme Court order – whether the Supreme Court has jurisdiction to make orders for enforcement of its own orders – Constitution, s 155(4).

On 6 October 2020 the Supreme Court upheld an appeal against a decision of the National Court to refuse an application by a plaintiff in judicial review proceedings for discovery of documents. In its order upholding the appeal the Supreme Court ordered the respondents to produce the majority of the documents, which had been the subject of the application for discovery, to the appellant within seven days. Soon after the time for compliance with the order lapsed on 13 October 2020, the appellant applied to the Supreme Court for enforcement of the order, by seeking orders that each respondent and each counsel on behalf of each respondent make, file and serve an affidavit deposing to the steps taken to comply with the order and that the respondents forthwith produce the documents included in the order of 6 October 2020 to the appellant. At the hearing of the appellant’s application, on 16 December 2020, by which time the order of 6 October 2020 had still not been complied with, some respondents objected to the competency of the application, and all respondents opposed the application, arguing that, if it were not dismissed on competency grounds, it was an unnecessary order due to the difficulties encountered in complying with the order of 6 October 2020 and reasonable attempts to comply with it and the capacity of the respondents to comply with the order of 6 October 2020 immediately and the risk of interference with the legal professional privilege underpinning the relationship between the respondents and their counsel.

Held: 
(1)	Though there were no specific provisions of the Supreme Court Rules or any other law providing for such an application, and though it was open to the appellant to apply for directions that would result in the respondents being charged with contempt of court, s 155(4) of the Constitution, which gives the Supreme Court an inherent power to make orders necessary to do justice in the circumstances of a particular case, was a sufficient source of jurisdiction to make the application competent. Objection to competency refused.

(2)	Though the orders sought were extraordinary and unprecedented in nature, the facts underlying the application were extraordinary and unprecedented in that there was a consistent failure on the part of the respondents (including the State, which is required to conduct itself as a model litigant) over an extended period of two months to comply with clear and unambiguous orders of the Supreme Court. 

(3)	Given that the explanations provided for the non-compliance were unconvincing and feeble, and that the Court has an inherent interest in ensuring that its orders are complied with so as to promote the due administration of justice and preserve the integrity of the Court, the Court determined that the circumstances were proper and it was necessary to do justice in the circumstances of this case to invoke its inherent powers under s 155(4), to make the orders sought in the appellant’s application.

(4)	Application granted. Respondents given until 22 December 2020 to comply. Proceedings to return for compliance check on 23 December 2020. Costs to appellant on solicitor-client basis. 

Cases Cited

The following cases are cited in the judgment:

Atlas Corporation Ltd v Ngangan (2020) SC1995
Avia Aihi v The State (No 1) [1981] PNGLR 81
Barrick (Niugini) Ltd v Nekitel (2020) N8409
Barrick (Niugini) Ltd v Nekitel (2020) N8429
Barrick (Niugini) Ltd v Nekitel (2020) SC2010
Luga v Sikani (No 1) (2002) N2285
Powi v Southern Highlands Provincial Government (2006) SC844

APPLICATION 

This was an application for enforcement of a previous order of the Supreme Court made in these proceedings. 

Counsel

M M Varitimos, D Wood, A Edo & L Evore, for the Appellant
N Saroa, for the First, Third and Fourth Respondents
T Tanuvasa, for the Second, Sixth and Eighth Respondents
L P Kandi, for the Fifth Respondent
G Geroro, for the Seventh Respondent

17th December, 2020

1.      BY THE COURT: Barrick (Niugini) Ltd, the appellant, applies for enforcement of an order of the Supreme Court of 6 October 2020 in these proceedings, SCM No 13 of 2020. It is an unusual application as it is made after the conclusion of these proceedings. It is also unusual because there is no specific law allowing for such an application.

2.     The appellant was the plaintiff in proceedings against the Registrar of Tenements and seven other defendants in the National Court, in OS (JR) No 5 of 2020. It was applying for judicial review of decisions of the National Executive Council and the Governor-General, acting on advice, to not renew the special mining lease under the Mining Act 1992, that had for 30 years been in operation regarding the Porgera Gold Mine in Enga Province.

3.     It applied by notice of motion for discovery of documents under Order 16, Rules 13(5)(4) and 13(6)(4)(j) of the National Court Rules, after the grant of leave for judicial review on 5 June 2020 (Barrick (Niugini) Ltd v Nekitel (2020) N8409) and before trial. 

4.     It sought various documents required to be produced or referred to for purposes of decisions under the Mining Act in respect of which it was applying for judicial review or that were referred to in affidavits prepared by the respondents for opposing the relief sought by the appellant. The appellant’s application for discovery was argued before the same Judge who had granted leave for judicial review, Deputy Chief Justice Kandakasi. 

5.      His Honour, in an extensive written judgment (Barrick (Niugini) Ltd v Nekitel (2020) N8429), refused the discovery application for three main reasons: 

(1) discovery of many documents would offend against the prohibition in s 86(4) of the Constitution against admitting into evidence in any court proceedings the documents which constitute advice to the Head of State (a decision of the Head of State being one of the decisions under review); 

(2) discovery of many documents would offend against the confidential status conferred by s 163 of the Mining Act on all communication to and from the various persons and authorities involved in the decision-making process under the Mining Act; 

(3) the appellant had failed to make out a case of any part of the statutory process under the Mining Act being breached, therefore discovery served no purpose. 

6.     The appellant was granted leave (leave was necessary as the decision of the National Court was interlocutory in nature) to appeal against the decision of the National Court to refuse the application for discovery. 

7.     The appellant argued that the primary Judge erred in law by refusing the application for discovery as none of the three primary reasons was a valid reason for refusal. 

8.     The respondents argued that the primary Judge did not err in law and that the appellant was simply on a fishing expedition and failed to establish any connection between the documents sought and the grounds of review underlying its application for judicial review, which had in any event already been dismissed by order of the primary Judge, upon upholding an application by the respondents for summary dismissal of the proceedings, of 1 September 2020. 

9.     The appeal against the refusal to provide discovery, SCM No 13 of 2020, was heard on 2 October 2020 by the Supreme Court constituted by Justice Kirriwom, Justice Batari and Justice Cannings. The appeal was upheld on 6 October 2020. The Court held that the primary Judge had erred in law in deciding that s 86(4) of the Constitution prohibited discovery and that s 163 of the Mining Act protected disclosure of all documents sought by the appellant and that the appellant had to prove its case before being granted discovery (Barrick (Niugini) Ltd v Nekitel (2020) SC2010). 

10.     The order of the National Court was quashed and this Court decided under s 16 of the Supreme Court Act to exercise the powers of the National Court. Having considered the submissions of the respondents about the alleged fishing expedition of the appellant and the irrelevance of the documents sought, this Court concluded that most documents sought were directly relevant to the issues likely to arise if and when the trial proceeded and that it was in the interests of justice to order discovery. 

11.     This Court granted an order for discovery in the following terms:

The respondents shall make available to the appellant within seven days after this order the following documents, categorised as “granted” in the list of documents contained in the notice of motion filed 10 June 2020:

(a)	the report in writing made by the Registrar to the Mining Advisory Council pursuant to s 103(b)(iii) of the Mining Act (the Act): granted;

(b)	each report provided to the Mining Advisory Council pursuant to s 104 of the Act: granted;

(c)	the written report prepared by the Warden pursuant to s 109 of the Act in respect of the extension application: granted;

(d)	all reports submitted to the Mining Advisory Council pursuant to s 110 of the Act, including any report submitted by a provincial government under s 110(1): granted;

(e)	the recommendation, and draft versions of the recommendation, made by the Mining Advisory Council pursuant to s 110(4)(b) of the Act: granted, except for draft versions; 

(f)	the minutes of meetings of the Mineral Resources Authority in respect of the extension application: refused;

(g)	the minutes of meetings of the Mining Advisory Council in respect of the extension application: refused;

(h)	any assessments or reports made by or on behalf of the Mineral Resources Authority (or any officer of the Mineral Resources Authority) in respect of the extension application: refused;

(i)	submissions to the National Executive Council in respect of the extension application: granted;

(j)	all draft versions of the decisions the subject of judicial review in proceeding OS (JR) No 5 of 2020: abandoned;

(k)	any advice provided to the Governor-General in respect of the extension application (“NEC advice”): granted;

(l)	all draft versions of the NEC advice: abandoned; and 

(m)	all documents, reports or other materials referred to in, or otherwise relied upon for the purposes of the assessments, reports and recommendation referred to above: refused. 

12.     That was for all intents and purposes, at the time it was made, the final order of the Court, which determined the proceedings SCM No 13 of 2020.

13.     When the time for compliance with that order expired on 13 October 2020, it became apparent that the order had not been complied with by the respondents. It was in those circumstances that on 14 October 2020 the appellant filed the application now before the Court.

THE APPLICATION

14.     The appellants application seeks orders pursuant to Order 11, Rule 32 of the Supreme Court Rules and s 155(4) of the Constitution that each respondent and each counsel on behalf of each respondent make, file and serve an affidavit deposing to the steps taken to comply with the order and that the respondents forthwith produce the documents included in the order of 6 October 2020 to the appellant.

SITUATION AT HEARING OF APPEAL 

15.      At the hearing of the appellant’s application, on 16 December 2020, the order of 6 October 2020 had still not been complied with.

POSITIONS OF PARTIES 

16.      The appellant argues that the orders sought in the application are necessary given the bizarre state of affairs presented to the Court in which an order of the Supreme Court has been disobeyed by the respondents, including the State, for more than two months. 

17.     Some respondents objected to the competency of the application, and all respondents opposed the application, arguing that, if it were not dismissed on competency grounds, it was an unnecessary order due to the difficulties encountered in complying with the order of 6 October 2020 and reasonable attempts to comply with it and the capacity of the respondents to comply with the order immediately and the risk of interference with the legal professional privilege underpinning the relationship between the respondents and their counsel.

ISSUES 

18.     We need to address two issues:

First, should the objection to competency be upheld? 

Secondly, should the orders sought by the appellant be granted? 

1	SHOULD THE OBJECTION TO COMPETENCY BE UPHELD?

19.     We refuse the oral objection to competency raised by Mr Saroa for the first, third and fourth respondents. We acknowledge that the Rules do not provide for this sort of jurisdiction. We agree that Order 11, Rule 32 (applications subsequent to disposal of proceedings) of the Supreme Court Rules is not a source of jurisdiction. It provides:

(1)	An application of any nature made after disposal of a proceeding, shall be filed and served in writing within 21 days of the order disposing of the proceeding.

(2)	A ‘slip rule’ application shall set out the nature of the slip and the finding that the applicant contends the Court should have made. 

(3)	A ‘slip rule’ application shall not be listed for hearing before the Court unless a Judge of the Court making the order from which the application arises, or that Court, has granted leave for the application to proceed.

20.     Order 11 Rule 32 simply provides procedural requirements for making applications of any nature after disposal of a proceeding in the Supreme Court. Those requirements have been met in the present case. Order 11 Rule 32 does not confer any jurisdiction on the Court.

21.     However we consider that s 155(4) of the Constitution is a sufficient source of jurisdiction. It states:

Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

22.     Though there were no specific provisions of the Supreme Court Rules or any other law providing for the application before us, and though it was open to the appellant to apply for directions that would result in the respondents being charged with contempt of court, s 155(4) of the Constitution, which gives the Supreme Court an inherent power to make orders necessary to do justice in the circumstances of a particular case, is a sufficient source of jurisdiction to make the application competent. 

2	SHOULD THE ORDERS SOUGHT BY THE APPELLANT BE GRANTED?

23.     Though the orders sought are extraordinary and unprecedented in nature, the facts underlying the application are extraordinary and unprecedented in that there has been a consistent failure on the part of the respondents (including the State, which is required to conduct itself as a model litigant, see Atlas Corporation Ltd v Ngangan (2020) SC1995) over an extended period of two months to comply with clear and unambiguous orders of the Supreme Court.

24.     We take into account that the explanations provided for the non-compliance were unconvincing and feeble. The Court has an inherent interest in ensuring that its orders are complied with so as to promote the due administration of justice and preserve the integrity of the Court.

25.     We have considered the general principle that s 155(4) allows the Court to craft such remedial orders as are considered necessary and just, to protect the primary rights of the parties (Avia Aihi v The State (No 1) [1981] PNGLR 81, Powi v Southern Highlands Provincial Government (2006) SC844). Section 155(4) can be invoked at any time in relation to court proceedings , including after disposal of the proceedings (Luga v Sikani (No 1) (2002) N2285).

26.     The primary rights here are the appellant’s right to the full protection of the law conferred by s 37(1) of the Constitution, in regard to rights inuring in its favour by the terms of the order of 6 October 2020. The appellant has the right to have produced to it the documents that the Court ordered the respondents to produce to it. The appellant is entitled to the fruits of the judgment of 6 October 2020. 

27.    We determine that the circumstances are proper and it is necessary to do justice in the circumstances of this case for the Supreme Court to invoke its inherent power under s 155(4), to make the orders sought in the appellant’s application.

28.      Costs will follow the event and be paid on a solicitor-client basis. 

ORDER
  
29.     The following order is made by the Court pursuant to s 155(4) of the Constitution in the exercise of its inherent power to make in circumstances as seem to it to be proper, such orders as are necessary to do justice in the circumstances of this particular case:

(1)	The application filed by the appellant on 14 October 2020 for orders in the nature of enforcement of the order of 6 October 2020, set out in paragraphs 1(2), (3), (4), (5) and (6) of the application, is granted in principle and the following specific orders shall apply accordingly.

(2)	Each respondent or an authorised officer on behalf of each respondent shall make, file and serve (by email if necessary), by 22 December 2020, an affidavit deposing in detail as to what steps each has taken to comply with the order of 6 October 2020.

(3)	Each counsel who has appeared for the respondents in these proceedings shall make, file and serve (by email if necessary), by 22 December 2020, an affidavit deposing in detail as to what steps each has taken to inform their clients as to the need to comply with the order of 6 October 2020. And for the purposes of this order “each counsel” means:

Mr N Saroa for the first, third and fourth respondents
Mr T Tanuvasa for the second, sixth and eighth respondents
Mr L P Kandi for the fifth respondent
Mr G Geroro for the seventh respondent. 

(4)	The respondents shall, if they have not already done so, produce to the appellant’s lawyers by 4.00 pm on 17 December 2020, the documents required to be produced under the order of 6 October 2020.

(5)	These proceedings shall be recalled to check compliance with this order on 23 December 2020 at 1.30 pm and in the event of evidence of non-compliance the appellant is at liberty to make an oral application for such further or other orders as may be necessary to enforce the order of 6 October 2020 and/or this order. 

(6)	The respondents shall pay the appellant’s costs of the application filed 14 October 2020 on a solicitor-client basis which shall, if not agreed, be taxed. 

Judgment accordingly.
_________________________________________________________________
Ashurst Lawyers: Lawyers for the Appellant 	
Nelson Lawyers: Lawyers for the First, Third & Fourth Respondents
Solicitor-General:  Lawyer for the Second, Sixth & Eight Respondents	
MS Wagambie Lawyers:  Lawyers for the Fifth Respondent			
Geroro Lawyers:  Lawyers for the Seventh Respondent