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Elias v Saviek [2025] PGSC 134; SC2837 (31 December 2025)

SC2837

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCM NO. 40 OF 2025

BETWEEN:
MICHAEL ELIAS
Appellant

AND:
MACK LAVI SAVIEK
Respondent

WAIGANI: YAGI J, PURDON SULLY J, KHAN J
18, 31 DECEMBER 2025

SUPREME COURT – PRACTICE & PROCEDURE – Appeal – Application to admit fresh evidence – s. 6 (1) (a) Supreme Court Act – Requirements for leave considered – Leave refused – Whether the Plaintiff in proceedings for judicial review had standing – whether ss, 116 and 119 of Mining Act 1992 relevant in determining standing in proceedings for judicial review – Whether application for an alluvial mining lease required a survey of relevant land be undertaken prior to grant of lease as required by ss.97(1), (3) and (5) of Mining Act as found by primary Judge in upholding the judicial review – Relevance of the options open to an applicant for alluvial mining lease under s. 52 (1)(a)(i) and (ii) of the Mining Act – No Error In Law Apparent or Identifiable – Appeal Dismissed – Decision at First Instance Confirmed – Cost Follow Event.

Facts

The respondent, Mack Lavi Saviek, commenced a judicial review proceeding in the National Court against the appellant and others, challenging two decisions related to the grant of an alluvial mining lease in favour of the appellant. The primary judge heard the matter and upheld the judicial review on the grounds that the Minister of Mines had committed an error of law as a survey as mandated by section 97 of the Mining Act 1992 had not been obtained prior to the grant of the relevant lease. The appellant appealed, arguing two grounds, namely that the respondent did not have standing to bring proceedings for judicial review and the primary judge had erred in so concluding and in further concluding that the grant of lease in favour of the appellant was vitiated by a failure to comply with section 97 of the Act. At the commencement of the appeal the appellant made application to adduce fresh evidence in the form of his application for the alluvial mining lease and supporting documents.

Held:

1. Application for leave to adduce fresh evidence refused as evidence known and available to the appellant at the hearing for judicial review.
2. The National Court did not err in finding the respondent had standing, the respondent directly affected by the decision under review, the provisions of s 116 and 119 of the Mining Act 1992 not determinative of the issue.
3. The National Court did not err in upholding the judicial review as it was common ground that a survey as required under s 97 of the Mining Act 1992 had not been undertaken, the requirement under s 97 mandatory, the option available to an applicant for an alluvial mining lease under s 52 of the Act relevant for the purpose of lodgment of the application only.
4. Decision at first instant affirmed.
5. Appeal dismissed.
6. Costs follow the event.
   

Cases cited

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
Ekip v Gamato (2017) SC1595
Helifax Group of Companies Ltd v PNG Land Board (2012) SC1150
Kalem v Yumi Yet Trading (2016) N6458
Kimas v Boera Development Corporation (2012) SC1172
Mondiai v Wawoi Guavi Timber Co Ltd (2007) SC886
O’Neill v Eliakim (2016) SC1539
Peyape v Waiye (2018) SC1749
Pipo v Seravo (2008) SC909
R v Inland Revenue Commissioners ex parte National Federation of Self-Employed and Small Business Ltd [1981] UKHL 2; [1982] AC 617
William Chilen v. The State (2011) SC1099

Counsel

Mr. J. Kusip for the appellant
Mr. G. Konjib for the respondent

JUDGMENT

1. BY THE COURT: This is a decision on a contested appeal of a National Court judgment which ordered in favour of the plaintiff, now respondent. The judgment was made in a judicial review proceeding commenced by the respondent in which he sought to review a decision by the Minister for Mining Hon. Ano Pala MP to grant an Alluvial Mining Lease (AML) to the appellant.
   
2. The appellant seeks the Court’s leave to introduce fresh evidence pertaining to his application for the grant of the AML and a further order compelling the production of certain documents.
   
3. We shall address that application first, however before we do so we set out the relevant background facts which are uncontroversial.
   

BACKGROUND FACTS

4. The respondent applied unsuccessfully for a tenement on the 23 October 2023 on land on which he had been living and mining at Namie Creek. The appellant succeeded in obtaining a tenement over the same land in which he had an interest and was granted the AML by the Minister.
   
5. Aggrieved, the respondent sought leave to judicially review the Minister’s decision on a number of grounds, including error of law based on no survey of the tenement as required by section 97 (1) and (3) of the Mining Act 1992 (the Act) having been undertaken prior to the grant of the AML.
   
6. Leave to review was granted on 28 February 2025.
   
7. By Notice of Motion filed 11 March 2025 the respondent sought an order by way of certiorari to quash the decision made on 23 October 2023 granting the AML to the appellant.
   
8. The substantive judicial review application proceeded to a hearing on 6 May 2025. On 8 May 2025 the primary Judge handed down his decision upholding the review, quashing the decision in favour of the appellant and ordering the Minister to reconsider both applications before him according to law.
   
9. An appeal against the whole of the decision of the primary Judge was filed by Notice of Motion on 13 June 2025.

APPLICATION TO ADDUCE FRESH EVIDENCE

10. By further Notice of Motion filed 8 December 2025, the appellant seeks to introduce fresh evidence in the form of his initial application for an alluvial mining lease, those documents annexed to his affidavit in support of his Notice of Motion also filed on 8 December 2025.
    
11. The application is made pursuant to section 6(1)(a) of the Supreme Court Act which empowers the Court to allow fresh evidence to be adduced “whenever it is satisfied that the justice of the case warrants it”.
    
12. In his affidavit the appellant deposes inter alia as follows:
    2. That on 21 December 2021, I personally lodging this application, a binded booklet containing survey report, maps, sketches etc with the Mineral Resources Authority through the office of the Executive Manager Regulatory Services Divisions and the Registrar Minerals Tenements.
    3. I oversighted and did not tender it in the National Court proceedings below, Thus I ask this Court to grant me permission to tender it.
       
13. It is submitted on behalf of the appellant that the documents sought to be introduced are highly relevant to the appeal in circumstances where:
    1. the appellant’s compliance with the provisions of the Act was an issue at the substantive hearing the respondent arguing and the primary Judge concluding that the Minister had committed an error of law in granting the AML in the absence of a survey of the land being undertaken in compliance with s 97 of the Act; and
    2. the ground of appeal that the primary Judge fell into error in holding that section 97 was exclusive and conclusive whereas section 52 of the Act provided that an application for the grant of an alluvial mining lease shall have attached to it:

...either –

1. a schedule on the prescribed form describing the corners of the boundary of the required tenement area in attitude and longitude, and a sketch map showing the boundary of the area and such other natural features as will allow the area to be correctly located; or
2. a survey as required under section 97; and

....

14. It is submitted on behalf of the respondent that the application to adduce fresh evidence should be refused the appellant failing to demonstrate a proper basis for the grant of leave.
    
15. The legal principles that guide the Court on the grant of leave to adduce fresh evidence are well established in this jurisdiction. In Peyape v Waiye (2018) SC1749 the Supreme Court (David J, Hartshorn J and Kariko J) in referring to those principles said at [4]:

As was stated in William Chilen v. The State (2011) SC1099 at [3]:

“3. By fresh evidence, as referred to in s. 6 (1) (a) Supreme Court Act, what is meant is relevant and material evidence which the party applying could have led at the trial or hearing, which has come to light since the hearing or trial, or evidence which has come to the knowledge of the party applying since that hearing or trial which could not by reasonable means have come to his knowledge before that time: John Peng v. The State [1982] PNGLR 331, Abiari v. The State [1990] PNGLR 250, James Pari v. The State [1993] PNGLR 173, Rawson Construction Ltd v. Department of Works (2005) SC777 and Ben Kairu v. The State (2005) SC782.”

16. In the circumstances before us the appellant does not meet the relevant test. The evidence sought to be introduced, is not evidence that has come to light since the hearing. Nor is it evidence of which the appellant would have been unaware prior to the hearing in circumstances where he had lodged the application for the lease himself. It is thus evidence the appellant could have led, but did not lead, at the hearing with no persuasive explanation advanced for the purported oversight in failing to do so. The appellant was legally represented at the hearing before the primary Judge.
    
17. For these reasons we are unable to conclude that the justice of the case warrants allowing the evidence to be introduced. The appellant’s application for leave is accordingly refused.

GROUNDS OF APPEAL

18. The appellant raises two grounds of appeal as follows:

3.1 Lack of Standing for Judicial Review

His Honour committed and error of law we he held that the respondent had “standing” to file Judicial Review, when he did not, by virtue of Sections 116 and 119(2) of the Mining Act 1992 in that:

(a) As a matter of law, a right entitling the respondent to Judicial Review did not exist and required by Sections 116 and 119(2) of the Mining Act 1992 and the respondent has not complied with or there was no evidence before the Court below, that he had satisfied the requirements of Sections 116 and 119(2) of the Act.
(b) For a right recognizable at law for the purpose of standing in the context of Judicial Review, such right must be reduced to writing and in the manner required by Section 116 and 119(2) of the Mining Act 1992.

3.2 The learned judge fell into error in holding that Section 97 was exclusive and conclusive when it was not, It was one of two options provided for under Section 52 of the Mining Act 1992. To the extent that His Honour ruled that Section 97 constituted the sole ground for upholding the Judicial Review, he committed an error of law in that:

(a) The appellant’s application for Alluvial Mining Lease (AML) (and indeed all applications for Alluvial Mining Leases) are covered under section 52 of the Mining Act 1992.
(b) Section 52 of the Act states:

52. APPLICATION FOR ALLUVIAL MINING LEASE.

An application for the grant of an alluvial mining lease: -

(a) shall be on the prescribed form and shall have attached either –

(i) a schedule on the prescribed form describing the corners of the boundary of the required tenement area in latitude and longitude, and a sketch map showing the boundary of the area and such other natural features as will allow the area to be correctly located; or

(ii) a survey as required under Section 97; and

(b) shall be accompanied by –

(i) the applicant's proposals; and

(ii) a statutory declaration that the area of land over which the application is made has been marked out in accordance with Section 96; and

(iii) a statutory declaration to the effect that the applicant is an owner of the land the subject of the application; and

(c) shall be lodged in triplicate with the prescribed application fee; and

(d) shall be lodged in accordance with the procedures specified in Division VI.l.

(c) The trial Judge in applying Section 97 dealt with it as if the option of surveying was the exclusive and sole consideration, when it was not. His Honour should have read Section 97 in light of or together with Section 52 of the Act. To the extent that he did not, it was an error of law.

CONSIDERATION

Ground one

19. With respect to the first ground of appeal the appellant’s primary argument is that the respondent did not have standing to bring the proceedings for judicial review as he did not have a right over the subject land recognised by law, namely a right reduced in writing and in the manner required by sections 116 and 119, there being no evidence before the Court below that he had satisfied the requirements of sections 116 and 119 of the Act.
    
20. Sections 116 and 119 of the Act are in these terms:

116. INTEREST IN TENEMENT TO BE CREATED IN WRITING.

A legal or equitable interest in an existing or future tenement is not capable of being created, assigned, or dealt with whether directly or indirectly, except by a written instrument signed by the person creating, assigning or otherwise dealing with the interest, or by his duly authorized agent.

119. INSTRUMENTS, OTHER THAN TRANSFERS TO BE APPROVED AND REGISTERED.

(1) This section applies to –

(a) an instrument by which a legal or equitable interest in an existing or future tenement is or may be created, assigned, or otherwise dealt with, whether directly or indirectly, which is not an instrument of transfer to which Section 118 applies; and

(b) a tribute agreement.

(2) No: -

(a) legal or equitable interest is created, assigned or otherwise dealt with by an instrument, either directly or indirectly; and

(b) tribute agreement is valid,

unless and until the instrument has been –

(c) approved by the Minister under Subsection (4)(a); and

(d) registered under Subsection (5).

(3) An application for approval of an instrument to which this section applies shall be submitted, together with the instrument, to the Registrar, who shall submit the application to the Board for its consideration. (4) The Minister may, after considering the recommendation of the Board - (a) approve; or

(b) refuse to approve, an application under Subsection (3), and any approval may be subject to such conditions as the Minister considers necessary in the circumstances.

(5) Where the Minister approves an application under Subsection (4)(a), the Registrar shall register the instrument.

(6) Where the Minister has approved an instrument under this section, any subsequent transfer of the tenement under Section 118 effected by the instrument shall be deemed to have been approved by the Minister and shall be registered by the Registrar, provided that –

(a) the transfer is made in accordance with the provisions of the instrument; and

(b) there has been substantial compliance with the conditions of the tenement to which the transfer relates.

[Underlining added]

21. The primary Judge addressed the issue of standing at [8] to [16] of his reasons, concluding, relevantly, at [12] – [16] as follows:
    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 AC374.
    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 expectations” 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) 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 the First Respondent. The decision of the Fourth Defendant/Respondent directed affected him 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.
    
22. We find no error in the primary Judge’s reasoning nor his conclusion that the respondent had standing.
    
23. The proceedings before the His Honour were proceedings for judicial review, as his Honour correctly observed. In judicial review, a person will have standing, that is, the legal right to bring a claim before the Court and invoke its powers for judicial review, by demonstrating he has a sufficient interest in the matter to which the proceedings relates and as authoritatively considered in this jurisdiction (Mondiai v Wawoi Guavi Timber Co Ltd (2007) SC886; Pipo v Seravo (2008) SC909; Helifax Group of Companies Ltd v PNG Land Board (2012) SC1150; Kimas v Boera Development Corporation (2012) SC1172; Ekip v Gamato (2017) SC1595; O’Neill v Eliakim (2016) SC1539).
    
24. The provisions of sections 116 and 119 of the Act are not determinative of the question of standing. Whether an applicant in judicial review has the requisite standing is a mixed question of fact and law having regard to all the circumstances of the case, a matter of fact and the degree of the relationship between the respondent and the subject of his complaint (R v Inland Revenue Commissioners ex parte National Federation of Self-Employed and Small Business Ltd [1981] UKHL 2; [1982] AC 617; Kalem v Yumi Yet Trading [2016] N6458).
    
25. The learned primary Judge correctly outlined the relevant principles at [13] – [15] of his reasons.
    
26. It is clear on the evidence that the respondent was genuinely concerned by the decision sought to be reviewed, one that had consequences that affected his interest in land the subject of the lease, land which on his evidence had been occupied by his family for ninety (90) years. On his case he had an existing tenement, the new AML in favour of the appellant overlapping his tenement. On the appellant’s case both the appellant and the respondent had lodged applications for an alluvial mining lease in the same area, the appellant’s application, being first in time, and given precedence by virtue of the provisions of s 100 of the Act which provide that if two or more applications are lodged simultaneously for the same tenement, the one first received by the Registrar takes priority.
    
27. Having outlined the relevant principles that should guide him on standing, it was open on the facts as outlined for the primary Judge to conclude as he did at [16] of his reasons that the respondent was genuinely concerned by the decision made, that he was not a busy body and that the decision sought to be reviewed directly affected him or his interests. As such he has standing.
    
28. This ground of appeal is dismissed.

Ground 2

29. It is submitted on behalf of the appellant that the learned primary Judge fell into error in holding that section 97 of the Act was exclusive and conclusive when it was not. It is submitted that section 97 must be considered with section 52 of the Act which provides for two options, the appellant’s application compliant with the first of the two options provided under section 52 (a)(i).
    
30. It is submitted on behalf of the respondent, however, that there is no error in law in the primary Judge’s application of section 97 of the Act, the primary Judge properly concluding that the Minister had committed an error of law in granting the appellant a tenement because no survey as contemplated by section 97(1), (3) and (5) of the Act had been undertaken.
    
31. Section 52 provides:

52. APPLICATION FOR ALLUVIAL MINING LEASE.

An application for the grant of an alluvial mining lease: -

(a) shall be on the prescribed form and shall have attached either –

(i) a schedule on the prescribed form describing the corners of the boundary of the required tenement area in latitude and longitude, and a sketch map showing the boundary of the area and such other natural features as will allow the area to be correctly located; or

(ii) a survey as required under Section 97; and

(b) shall be accompanied by –

(i) the applicant's proposals; and

(ii) a statutory declaration that the area of land over which the application is made has been marked out in accordance with Section 96; and

(iii) a statutory declaration to the effect that the applicant is an owner of the land the subject of the application; and

(c) shall be lodged in triplicate with the prescribed application fee; and

(d) shall be lodged in accordance with the procedures specified in Division VI.l.

[Underlining added]

32. Section 97 is in these terms:

97. SURVEY.

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

(2) The Director may, at any time, grant to a person not otherwise authorized under this Act the right on the prescribed form to enter land for the purposes of surveying a tenement as required under this section.

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

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

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

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

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

(4) A copy of the survey made under this section shall be lodged with the Registrar either –

(a) at the time of lodgement of an application under this Division; or

(b) subject to Subsection (6), at any time thereafter.

(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 a 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 of 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.

(6) Where, at the time of lodgement of an application a survey is not available the application shall nevertheless be dealt with under this Division, and if the Head of State acting on advice, or the Minister, as the case may be, is prepared to grant the tenement subject to the survey confirming the availability of a substantial portion of the land applied for, the Minister shall give to the applicant 90 days notice to lodge a survey which shall be dealt with by the Registrar under Subsection (5).

(7) Where, in a case to which Subsection (6) applies, the applicant lodges a survey and the land is available for the purposes for which the application was made, the Head of State acting on advice, or the Minister, as the case may be, shall grant the application.

(8) Where the applicant fails to lodge a survey under this section or the survey reveals that none of the land the subject of the application is available for the purposes for which the application was made, the application shall be refused.

(9) Where there is a dispute as to the location of a boundary of a tenement, the Registrar shall arrange for the disputed boundary to be surveyed and the costs shall be met by the party or parties claiming a location of the boundary different from that surveyed.

(10) Where the Registrar considers that any party may default on the payment for a survey under Subsection (9), he may, prior to arranging the survey, require each party to lodge a bond sufficient to cover the cost of the survey.

(11) A person carrying out a survey under this section shall not interfere unreasonably with the activities undertaken on the land the subject of the survey.

[Underlining for discussion purposes]

33. While section 52 of the Act permits an applicant for an alluvial mining lease the option of submitting a schedule and sketch map of the boundary area (s 52 (a)(i)) or a section 97 survey (s 52(a)(ii)) for the purpose of the application process, no lease can be granted without a survey being undertaken as required by section 97 of the Act.
    
34. That the requirement of a survey is mandatory for the grant of the lease is clear on a reading of section 97 (1) which states that “prior to the grant of a tenement (other than an exploration licence)”, the boundary of the land subject of an application shall be surveyed as provided for in Subsection (3)”. There is good reason for this. It ensures the land boundaries are accurately defined and verified by reference to proper field survey techniques and verification undertaken by a registered surveyor as opposed to mere descriptive text and sketch if the option under section 52 (a)(i) is followed for the purpose of the application lodgement process. It is a requirement that ensures transparency and the integrity of the process for the granting of alluvial mining leases.
    
35. Where a survey under section 97 of the Act is not lodged at the application stage, an applicant must then submit the survey before the lease can be issued. This may occur at various stages following the lodgment of the application but prior to the registration of the relevant tenement under the Act (ss 113 & 114). For example, section 97(6) provides that the Minister may grant a lease "subject to" a survey being undertaken, allowing the successful applicant time to attend to the completion and submission of a survey following Ministerial approval of the application.
    
36. In summary, while Section 52(1)(a)(i) allows an applicant to submit a schedule and sketch map as part of the application for the lease, this does not override the requirement in section 97 for a survey to be conducted before the lease can be registered and issued.
    
37. We pause at this juncture to note that while the Appellant advanced argument that the learned primary Judge had fallen into error for failing to consider the inter-relationship between sections 52 and 97 of the Act, it is unclear on our perusal of the Appeal Book if that particular argument was raised before His Honour at the substantive hearing. There is no transcript before us. The written submissions relied upon by the parties at the hearing before the primary Judge, which are included in the Appeal Book, make no reference to section 52. His Honour’s reasons do not address the section notwithstanding His Honour considering issues under various headings. Neither Counsel before us submitted that section 52 was raised before the primary Judge and not addressed. It is not a ground of appeal.
    
38. That aside, it is common ground that no survey under section 97 of the Act was undertaken. The learned primary Judge noted as such at [25] of his reasons. No argument to the contrary was advanced in submissions before us. It is a circumstance that is ultimately fatal to Ground 2 of the appeal for the reasons earlier discussed, namely prior to the grant of an alluvial mining lease under the Act a survey as required under s 97 must be obtained. In granting the AML in favour of the appellant without the land being surveyed as provided by subsection (3) of section 97 of the Act the Minister committed an error of law.
    
39. The learned primary Judge correctly reached that conclusion at [26] – [27] when he said:
    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 the judicial review succeeds.

40. Given our earlier discussion on the requirements of the Act, we find no error in the conclusion reached.
    
41. This ground of appeal fails.

CONCLUSION

42. Having found no merit in the grounds of appeal, the appeal is dismissed. Costs should follow the event.

ORDERS

1. This appeal is dismissed.
2. The Orders of the National Court dated 8 May 2025 in proceedings OS (JR) No. 243 of 2024 are affirmed.

100. The appellant pays the respondent’s costs on a party and party basis to be agreed or taxed.

________________________________________________________________
Lawyers for the appellant: Kusip Lawyers
Lawyers for the respondent: Konjib & Associates