SC2497
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO 34 OF 2021

TORRENS MINING (PNG) LIMITED
Appellant

V

HONOURABLE JOHNSON TUKE MP, MINISTER FOR MINING
First Respondent

JERRY GARRY, CHAIRMAN & REPRESENTATIVE OF
ALL OTHER MEMBERS, MINING ADVISORY COUNCIL
Second Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

Waigani: Batari J, Cannings J, David J
2023: 2nd & 28th November

JUDICIAL REVIEW – application for leave for judicial review – whether applicant had an arguable case for review. 

The appellant applied for leave under Order 16 of the National Court Rules for judicial review of the decision of the Minister for Mining to refuse its application for an exploration licence under the Mining Act. The National Court refused leave on the ground that there was no arguable case for review. It was held that s 20 of the Act gave complete discretion to the Minister as to what considerations were to be taken into account and the Court has no authority to impose that which Parliament did not impose upon the Minister. The appellant appealed against the refusal of leave.

Held:

(1)	In determining whether an applicant for leave for judicial review has an arguable case the task of the National Court is to peruse the material available to see whether it discloses what might on further consideration turn out to be an arguable case in favour of granting the relief claimed. 

(2)	A statutory provision that confers a power on a decision-maker to grant a licence to an applicant, which is silent on the considerations to be taken into account in deciding whether to grant or refuse a licence, does not confer a complete and unfettered discretion on the decision-maker. In interpreting the statutory provision the National Court is entitled to glean from the nature, purpose and context of the provision the considerations that are relevant and irrelevant to exercise of the discretion whether to grant the licence.

(3)	The National Court erred in forming the view that the absence in s 20 of the Mining Act of express considerations to be taken into account by the Minister in deciding whether to grant an exploration licence meant that the Court could not determine what those considerations were. 

(4)	The decision of the National Court was quashed and the Supreme Court, being of the view that there was an arguable case for review, granted leave for judicial review. 

Cases Cited:

The following cases are cited in the judgment:

Papua New Guinean Cases
Geno v The State [1993] PNGLR 22
Micah v Lua [2015] 2 PNGLR 41
Morauta v Eviaisa (2002) SC685
Pipoi v Seravo (2008) SC909
Pora v Leadership Tribunal [1997] PNGLR 1

Overseas Cases
Padfield v Minister of Agriculture [1968] AC 997

Counsel
A Roden-Paru & M Makap, for the Appellants
T L Cooper, for the First Respondent
H Wangi, for the Second & Third Respondents

28th November 2023 

1.     BY THE COURT: Torrens Mining (PNG) Ltd appeals against the refusal by the National Court to grant leave for judicial review of the decision of the Minister for Mining (the first respondent) to refuse its application for an exploration licence. The primary Judge was satisfied that except for the arguable case requirement, the criteria for the grant of leave (applicant had standing, it was seeking review of decision of a public authority, no undue delay and no administrative remedies available) were satisfied. However, his Honour refused leave on the ground that there was no arguable case for review.

2.     The appellant’s proposed grounds for judicial review were that the Minister took irrelevant considerations into account, failed to take relevant considerations into account, acted contrary to the rules of natural justice, made an unreasonable decision and refused the application in circumstances giving rise to a reasonable apprehension of bias. 

NATIONAL COURT DECISION

3.     The primary Judge held in an extempore decision that s 20 of the Mining Act gave “complete discretion” to the Minister as to what considerations were to be taken into account and the Court has no authority to impose considerations that the Parliament did not impose upon the Minister. 

4.    His Honour was of the view that the Supreme Court’s decision in Morauta v Eviaisa (2002) SC685, which upheld an appeal against the granting of judicial review by the National Court in connection with the appointment of the Managing Director of the Public Officers Superannuation Fund, prevents the courts from inferring the considerations to be taken into account in the exercise of discretion where a statutory provision does not state expressly what has to be taken into account. 

APPEAL

5.    The appellant argues on appeal that the primary judge erred in law in finding that it did not have an arguable case. We uphold the appeal as we are satisfied that his Honour erred in law in two significant respects. 

6.    First, there was a misapprehension of what the Supreme Court decided in Morauta v Eviaisa (2002) SC685. The appeal in that case was upheld because the Supreme Court found that the National Court went too far in stepping into the shoes of the decision-maker whose decision was subject to review and making the decision for the decision-maker. The case does not, in our view, stand as authority for the proposition that if a statutory provision confers a discretion on a decision-maker and does not expressly state what considerations are to be taken into account or disregarded in the exercise of discretion, the discretion is complete and the courts cannot infer the considerations that are relevant or irrelevant. 

7.    Such a proposition is not part of the administrative law of Papua New Guinea. Quite the contrary. We have adopted as part of the underlying law, the common law principle, exemplified by decisions such as that of the House of Lords in Padfield v Minister of Agriculture [1968] AC 997, that there is no such thing as an unfettered or complete discretion. Their Lordships stressed that the Parliament must be presumed to have conferred a statutory discretion with the intention that it be exercised to promote the policy and objects of the statute conferring the discretion. Lord Upjohn held, in response to the Minister’s argument that he had an “unfettered” discretion under the relevant statute to refer or refuse to refer a complaint of milk producers to a committee for investigation, so that his decision was virtually immune from judicial review:

… the use of that adjective [unfettered], even in an Act of Parliament, can do nothing to unfetter the control which the judiciary have over the executive, namely that in exercising their powers the latter must act lawfully and that is a matter to be determined by looking at the Act and its scope and object in conferring a discretion upon the Minister rather than by the use of adjectives. 

8.    We acknowledge that in the present case, s 20 (grant of exploration licence) of the Mining Act gives little guidance to the Minister on how the power to grant or refuse an application for an exploration licence should be exercised. Section 20 states:

(1) The Minister may, on the application of any person and after considering a recommendation of the Board, grant to that person an exploration licence.

(2) An exploration licence–

(a)	shall be on the prescribed form; and
(b)	shall require that as a condition of the exploration licence the holder complies with the approved programme; and
(c)	may contain such other conditions as the Minister may determine.

9.    The only thing s 20 states expressly is that the Minister must consider a recommendation from the Mining Advisory Council. However, it is wrong in law, with respect, to say that as long as the Minister considers such a recommendation, the Minister can with impunity take into account what he likes and disregard what he wants and make whatever decision he likes and that he has a complete discretion. The learned primary Judge, with respect, fell into error in taking that approach to the application for leave.

10.    The second respect in which we consider there was an error of law is in in the failure to apply the relatively low standard of satisfaction of the case being proposed for review, in determining whether the appellant had an arguable case. The relevant standard was set out by the Supreme Court in Micah v Lua [2015] 2 PNGLR 41 in these terms:

A person who seeks to challenge a primary judge's exercise of discretion must show an error of principle. In judicial review proceedings under Order 16 of the National Court Rules, it has been held the test whether the Court should grant leave to apply for judicial review is not a difficult one to satisfy. In this case, it was correctly stated by the primary judge in quoting Lord Diplock in Inland Revenue Commissioners v National Federation of Self-Employed and Small Business Limited [1982] AC 617 at 644 that "If, on a quick perusal of the material then available, 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 relief claimed, it ought, in the exercise of judicial discretion, to give him leave to apply for judicial relief …". This test has been adopted and applied in many cases including Innovest Ltd v Patrick Pruaitch (2014) N5949 and very recently Digicel (PNG) Ltd v Miringtoro (2015) SC1439.

11.     To like effect are the Supreme Court decisions in Geno v The State [1992] PNGLR 22, Pora v Leadership Tribunal [1997] PNGLR 1 and Pipoi v Seravo (2008) SC909. We consider, with respect, that the learned primary Judge delved too far into the merits of the application for judicial review and formed the view that it had no merit, when his Honour should have confined his attention to whether the appellant’s case disclosed what might on further consideration turn out to be an arguable case. 

RELIEF

12.    We will quash the decision of the National Court to refuse leave for judicial review. We could remit the leave application for rehearing before another judge. However a better course of action in a case such as this, where we have all the material before us to determine the leave application, is to invoke s 16(c) of the Supreme Court Act and make the decision that we consider should have been made by the National Court. 

13.    We consider that the appellant, which lodged its application for an exploration licence pertaining to an area of 126 square kilometres in the Laloki area of Central Province (with only a small portion extending into the National Capital District) in November 2017, and had to wait more than three years before the Minister made his decision (and then only after being ordered by the National Court, in separate judicial review proceedings to make a decision) has raised an arguable case that the Minister took irrelevant considerations into account, disregarded relevant considerations, breached the rules of natural justice, acted unreasonably and/or made his decision in circumstances giving rise to a reasonable apprehension of bias. 

14.     We will grant leave for judicial review. Other relief sought by the appellant will be more appropriately dealt with by the National Court. 

ORDER 

(1)	The appeal is allowed.

(2)	The order of the National Court in OS (JR) 48 of 2021 of 23 June 2021 is quashed. 

(3)	The proceedings OS (JR) 48 of 2021 are reinstated and leave for judicial review is granted and the case is remitted to the National Court for trial of the application for judicial review before a Judge other than the primary Judge.

(4)	The respondents shall pay the appellant’s costs of the appeal on a party-party basis, which shall, if not agreed, be taxed. 
_______________________________________________________________
Allens Lawyers: Lawyers for the Appellants 	
TL Cooper Lawyers: Lawyers for the First Respondent
Solicitor-General: Lawyers for the Second & Third Respondents