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Mt Kare Holdings Pty Ltd and Dibusa Mining Pty Ltd v Akipe; Kambe; Pakema; Lowa, Minister for Minerals and Energy; Israel, Mining Registrar; and The State [1992] PNGLR 60 (7 August 1991)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 60 - Mt Kare Holdings Pty Ltd and Dibusa Mining Pty Ltd v Wapela Akipe; Simon Kambe; Anton Pakema; Patterson Lowa, Minister for Minerals and Energy; Israel Israel, Mining Registrar; and The State 

[1992] PNGLR 60

SC427

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE HON PATTERSON LOWA, THE MINISTER FOR MINERALS AND ENERGY AND OTHERS

V

WAPULA AKIPE AND OTHERS

THE HON PATTERSON LOWA, THE MINISTER FOR MINERALS AND ENERGY AND OTHERS

V

WAPULA AKIPE AND OTHERS

MOUNT KARE ALLUVIAL MINING PTY LIMITED AND ANOTHER

V

WAPULA AKIPE AND OTHERS

MOUNT KARE ALLUVIAL MINING PTY LIMITED AND ANOTHER

V

WAPULA AKIPE AND OTHERS

Waigani

Kidu CJ Kapi DCJ Woods Hinchliffe Sheehan JJ

1-4 July 1991

7 August 1991

CONSTITUTIONAL REFERENCE - Jurisdiction of National Court on constitutional question - No cause of action based on s 18(2) Constitution.

APPEALS - Challenge to Constitutional Reference pursuant to s 18(2) Constitution - References must arise out of determined facts - Whether pleadings "disclose" determined facts - Powers of National and Supreme Court to protect and enforce constitutional rights and freedoms.

APPEALS - Against refusal of motions to strike out statement of claim - Abuse of process - Failure to disclose sufficient interest - Jurisdiction of National Court on Constitutional questions - No cause of action based on s 18(2) - National Court.

COMPETENCY OF APPEAL - Time limits in which challenge to be made - Discretion of Supreme Court.

PRACTICE - Jurisdiction to make declaratory orders - Constitution, s 155(4).

WORDS AND PHRASES - Meaning of "judgment" - "Cause of action" - "Forms of action"

Facts

The respondents (plaintiffs), claimed rights and interests in land in the Mt Kare region as customary landowners, and commenced proceedings in the National Court to overturn the issue of a Special Mining Lease in the said land granted by the state (third defendant) in favour of Mt Kare Alluvial Mining Pty Ltd (fourth defendant).

In a detailed statement of claim, the respondents asserted that by the issue of the lease by the Minister for Minerals and Energy (first defendant) to Mt Kare Alluvial Mining Ltd, their rights and interests in the land were adversely affected, without consultation. They challenged the validity of the lease, inter alia, on grounds that it was ultra vires the issuing authorities to grant the lease without recourse to proper procedures, and that, in any case, the empowering legislation, in particular s 7 of the Mining Act, is void as being an infringement of their guaranteed rights and freedoms under the Constitution.

The appellants unsuccessfully moved to strike out the respondents' writ on grounds, inter alia, of abuse of process, insufficient interest in the respondents to bring the action, non joinder of parties, and lack of jurisdiction of the National Court to decide these constitutional issues.

The National Court declined to strike out the writ. It referred the constitutional questions to the Supreme Court. The appellants appealed against the reference and various interlocutory orders of the National Court. The appeals which were four in number were consolidated in one hearing.

Held

On the Supreme Court Reference:

1.       Section 18(2) of the Constitution cannot be utilised to base a cause of action in the National Court.

2.       A question of interpretation or application of a constitutional law may arise at any stage of proceedings in a court or tribunal, but such a question must arise during the course of a matter properly before the court or tribunal for there to be a reference to the Supreme Court.

3.       There must be factual bases for a referral under s 18(2). In these matters, there were no such facts. Any findings of fact by the National Court had no evidentiary basis.

On appeal against the Court's refusal to strike out the respondent's writ on non Constitutional grounds:

4.       Paragraphs (iv) - (ix) of the statement of claim (referring to invalid procedures) are properly before the National Court. No justifiable reasons were advanced as to why they should be struck off.

Cases Cited

Papua New Guinea cases cited

Dent v Thomas Kavali [1981] PNGLR 488.

NCDIC v Bogibada Holdings Pty Ltd [1987] PNGLR 135.

png Ready Mixed Concrete Pty Ltd v PNG [1981] PNGLR 396.

Re s 142 of Constitution and Jacob Hendrich Prai [1979] PNGLR 42.

SCR No 2 of 1981 [1982] PNGLR 150.

SCR No 2 of 1990 (1991) unpublished SC 407.

SCR No 3 of 1982 [1982] PNGLR 405.

SCR No 3 of 1989; Re Forestry Private Dealings Act [1990] PNGLR 222.

SCR No 5 of 1982 [1982] PNGLR 379.

SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329.

State v Kwambol Embogol (1977) unpublished N 91.

State v Peter Painke (No 2) [1977] PNGLR 141.

PNG v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448.

Other case cited

Read v Brown [1888] UKLawRpKQB 186; (1888) 22 QBD 128.

Counsel

ZG Gelu for first, second, third and fifth appellants

PA Lowing for fourth and sixth appellants

GJ Sheppard for the respondents

(SCA 19 of 1991 and SCA 36 of 1991)

PA Lowing for appellants

GJ Sheppard for first, second and third respondents

ZG Gelu for fourth, fifth, sixth and seventh respondents

(SCA 32 of 1991 and SCA 60 of 1991)

KIDU CJ WOODS HINCHLIFFE SHEEHAN JJ:  By a writ and statement of claim issued on 4 October 1990 and amended subsequently, the plaintiffs (respondents) claimed:

(i)       A declaration that s 7 of the Mining Act in so far as it purports to apply to gold and minerals found in, on or under customary land owned by the plaintiffs, is contrary to s 53 of the Constitution and is, therefore, unconstitutional;

(ii)      Further or alternatively, a declaration that s 200 of the Act does not comply with s 53 of the Constitution in that the purposes specified therein are private in nature as opposed to public, as required by s 53;

(iii)     A declaration that the Mining Act is not a law that complies with ss 38, 44 and 49 - 55 of the Constitution and is, therefore, void and of no effect.

(iv)     Further or alternatively, a declaration that the grant of the Special Mining Lease (SML) No 1 at Mt Kare is invalid and without legal force or effect;

(v)      Further or alternatively, a declaration that the grant of the SML No 1 at Mt Kare was made ultra vires the power of the third defendant and is, therefore, without legal force or effect;

(vi)     Further or alternatively, an order restraining the fourth and sixth defendants by themselves, their servants workmen agents employees or otherwise from entering upon the ground the subject of the SML and from conducting mining operations, or operation preparatory to mining, thereon;

(vii)    Damages;

(viii)    Interest pursuant to statute; and

(ix)     Costs.

The bases of the claim are set out in the Writ as follows:

"1.      The plaintiffs are customary landowners and have interests in or rights to or over land in the Mt Kare region of the Enga Province part of which is included in the area over which the third defendant purported to grant a Special Mining Lease No 1 at Mt Kare on 27 September, 1990.

2.       The first defendant is the Minister for Minerals and Energy.

3.       The second defendant is the Mining Registrar for the Department of Minerals and Energy.

4.       The third defendant is the Independent State of Papua New Guinea and may be sued in that capacity.

5.       The fourth and sixth defendants are companies incorporated according to the laws of Papua New Guinea and have the capacity to sue and be sued.

6.       On 27 September, 1990, the third defendant purported to grant a Special Mining Lease No 1 at Mt Kare ("the SML") to the fourth defendant over certain land which includes the said land to which the plaintiffs have rights to or interest in. A copy of the said SML is annexed hereto and marked with the letter "A".

7.       The purported grant of the SML was made ultra vires the power of the third defendant for the following reasons:

(a)      (Deleted);

(b)      The third defendant does not have power to grant a SML over land which was not applied for (annexed hereto and marked with the letter "B" is a copy of the application for the SML);

(c)      It is a condition to the power of the third defendant to grant a SML pursuant to s 71 of the Act that the third defendant by its agent the Head of State acting on advice receive a report from the Mining Advisory Board;

(d)      The third defendant by its agent the Head of State acting on advice did not receive a report from the Mining Advisory Board as required by s 71(1) of the Act by the provisions of s 10 of the Act and by the Commissions of Inquiry Act - Chapter No 31.

PARTICULARS

(i)       Under s 10(2) of the Mining Act the Minister is required to refer a question or matter to the Mining Advisory Board ("MAB") in order to vest the power to inquire in such Board.

(ii)      The Minister did not refer any question or matter relating to Special Mining Lease No 1 at Mt Kare to the MAB.

(iii)     Under s 10(3) of the Mining Act any question or matter referred to the MAB is deemed to be a Commission under the Commissions of Inquiry Act and the provisions of such Act apply in manner specified in such s 10(3).

(iv)     Under s 2(4) of the Commissions of Inquiry Act the MAB was required to conduct its inquiry in public.

(v)      The MAB did not give any public notice of its hearings or of the fact its hearings were public and did not in fact conduct public hearings.

(vi)     Under s 15 of the Commissions of Inquiry Act the MAB was required to make a report of its proceedings and of the results of its inquiry to the Minister and to record the reasons for its conclusions.

(vii)    The MAB did not make any report to the Minister of its proceedings and of the results of its inquiry and did not record the reasons for its conclusion but rather made only a recommendation to the Minister which it was not empowered to make.

(viii)    As a consequence of the foregoing there was as at 27 September, 1990, no valid report of the MAB in existence and in the absence of a referral under the said s 10(2) there could be no such valid report.

(ix)     As a further consequence of the foregoing no report of the Board was available as at 27 September, 1990, as required by s 71(1) of the Act.

(x)      No report or alternatively no valid report was available to the Head of State as at 27 September, 1990, when the Special Mining Lease No 1 at Mount Kare was purported to be granted.

(e)      It is a condition to the power of the third defendant to grant a SML pursuant to s 71 of the Act that requirements of s 71(2) are complied with;

(f)      The requirements of s 71(2) have not been complied with in that the first defendant is not and has not at any material time had before him material which could enable him correctly to form the opinion required by such section;

PARTICULARS

(i)       The plaintiffs repeat the particulars referred to in paragraph 7(d) hereof.

(ii)      The report referred to in the affidavit of Robin Moaina, the Chief Government Geologist to the Government of Papua New Guinea of 26.10.90 was made to the Mining Advisory Board, and not the Minister for Minerals and Energy.

(iii)     The facts disclosed in the said report are not sufficient for the Minister to properly form the opinion that the presence of a large deposit of gold or minerals had been demonstrated, and that the mining of the deposit under any other tenement provided under the Act would be impractical by reason of:

(a)      the size of the deposit and the methods of mining and treatment to be employed; or

(b)      the cost of preparatory development of the project as required by s 71(2) of the Act.

(g)      Deleted.

(h)      Section 7 of the Act insofar as it purports to vest property in and to all gold and minerals found on, in or under customary land including customary land to which the plaintiffs have rights or interests in, in the State, is contrary to s 53 of the Constitution of Papua New Guinea ("the Constitution") and is therefore unconstitutional; and

(i)       Section 200 of the Act purports to declare purposes which are private in nature as public purposes and is contrary to s 53 of the Constitution and therefore unconstitutional.

PARTICULARS

(i)       The plaintiffs have rights to or interest in land the subject of the SML and in customary law were the owners of gold and minerals in, on and under their land.

(ii)      The effect of s 7 of the Act is to "complusory acquire" property from the plaintiffs within the meaning of s 53 of the Constitution by purporting to extinguish or determine their ownership of the gold and minerals in, on or under their land, and vesting such ownership in the third defendant.

(iii)     The expropriating authority has not made just compensation to the plaintiffs as the persons affected by the compulsory acquisition as required by s 53(2) of the Constitution.

(iv)     The purposes declared as public by s 200 of the Act are private in nature and therefore contrary to s 53 of the Constitution.

(v)      The plaintiffs have not entered into any treaty or agreement with the third defendant nor are they aware of any treaty or agreement between their ancestors, parents or any member of the family or clan with the third defendant such that their rights or interests in customary land or all gold or minerals in, on or under the soil of their land were extinguished or transferred in any manner to the said third defendant to deal with it in any manner with a third party.

(vi)     No notice has been given or ever given to the plaintiffs, their ancestors or parents, to members of their family or clan in respect to any intention by the third defendant to compulsorily acquire their rights to gold and minerals such as would justify the acquisition through the Act.

(vii)    Neither the plaintiffs nor their ancestors or parents or members of their family or clan received compensation for the alleged compulsory acquisition of their rights to gold or minerals which may be found in, on or under any of the land to which the plaintiffs have rights to or interests in.

8.       Further and alternatively, the purported grant of the SML was invalid for the following reasons:

(a)      The plaintiffs repeat paragraph 7 hereof; and

(b)      Before making application for the SML the fourth defendant did not mark off the land the subject of the SML to the satisfaction of the Warden or at all in accordance with s 87 of the Regulations to the Act.

PARTICULARS

(i)       The fourth defendant did not erect at each corner of the land the subject of the SML a hardwood post or marker at least 10.16cm in diameter and standing 1.22m above the surface of the earth; and

(ii)      The fourth defendant did not clear lines along the boundaries of the land the subject of the SML; and

(iii)     The fourth defendant did not place stakes or other markers at sufficiently close spacing to indicate clearly the boundaries of the land the subject of the SML.

(c)      The Warden failed to make any enquiry or any proper enquiry that before making application for the SML, the fourth defendant had marked off the land in compliance with s 87 of the Regulations to the Act, and could therefore not be satisfied of those matters within the meaning of s 87 of the Regulations to the Act; and

(d)      The fourth defendant did not apply for the SML in compliance with the Act;

PARTICULARS

(i)       By reason of the matters particularised in paragraph 8(b) hereof the fourth defendant did not mark out the land the subject of the SML within the meaning of the Act which is a condition precedent to making a valid application;

(ii)      The application is not in the form required by s 84(b) of the Regulations to the Act in that it is not signed by the applicant;

(iii)     The application is not in the form required by s 84(b) of the regulations to the Act in that it does not include a description of the boundaries of the land of the SML but rather had attached to it and referred to in it a plan and a metes and bounds description which were different;

(iv)     The land the subject of the SML is not the land applied for by the fourth defendant; and

(v)      The applicant, upon receipt of the endorsed copies of the application for the SML from the Warden did not cause a copy to be immediately published as specified in s 90 of the regulations of the Act.

(vi)     Copy endorsed application published by the fourth defendant under s 89 of the regulations to the Act did not include the map referred to in such application.

(e)      The Warden failed to comply with s 89(1)(a) and 89(2)(b) of the Regulations to the Act.

PARTICULARS

(i)       Under s 88 of the Regulations to the Act, the Warden is required to fix a date as the date before which objections to the grant of the applications may be made and to endorse that date on the copies of the application.

(ii)      Under s 89(1) of the Regulations to the Act, the Warden is required to fix a place and day as the place and day on which the application will be heard.

(iii)     The form of application for a Special Mining Lease prescribed by s 84(b) of the Regulations to the Act (Form 21) provides for endorsement of the date before which objections may be lodged and the place and day on which the application will be heard.

(iv)     On or about 3 November 1988 the Warden (Mr E V Smith) endorsed on the application of the fourth defendant:

(i)       as the date before which objections may be lodged, a date to be notified and until further notice;

(ii)      as the place and date upon which the application will be heard, a date and place to be further notified.

(v)      The Warden thus failed to fix the date and place and day as required by ss 88 and 89(1) of such Regulations.

(vi)     Under s 89(2) of the Regulations to the Act the Warden is obliged to prepare additional copies of the application together with the endorsements on it and to:

(i)       send two copies to the applicant;

(ii)      cause one copy to be published in the National Gazette.

(vii)    Under s 90 of the Regulations to the Act the applicant is obliged on receipt of it of the said copies to cause a copy to be immediately published in a newspaper in accordance with that regulation.

(viii)    The additional copies purportedly prepared by the Warden were not in compliance with the Regulations in that:

(i)       no plan as referred to in or annexed to the application was included therewith;

(ii)      no date before which objections may be made was fixed;

(iii)     no place and date on which the application will be heard was fixed.

(ix)     The copy published in the National Gazette No G76 dated 24 November, 1988, at page 1337, was in consequence not in compliance with the Regulations in the respects specified in (h) above.

(x)      The copy published by the fourth defendant in the Post Courier Newspaper on 30 November, 1988, was in consequence not in compliance with the Regulations in the respects specified in (h) above.

(xi)     On or about 29 September the Warden (Mr E V Smith) endorsed on the application of the fourth defendant:

(i)       as the date before which objections may be lodged, the 28th day of October 1989;

(ii)      as the place and dates upon which the application will be heard, Andita Enga Province and Eganda Southern Highlands Province on 30 October 1989 at 10.00 a.m.

(xii)     The said endorsements were not published in either the National Gazette nor in a newspaper.

(xiii)    As a consequence of the said breach the public was not notified of the date fixed and before which objections may be lodged and was not notified of the places and dates fixed for the hearing of the application.

(f)      The purported grant of the SML was made in circumstances that amount to a denial of natural justice to the plaintiffs because the land the subject of the SML is different to the land applied for in the application for the SML and accordingly the plaintiffs were not given an opportunity to object to the grant of the SML in the form in which it was ultimately granted.

(g)      The purported transfer of the SML from the fourth defendant to the sixth defendant was not effective because the instruments of transfer were executed by the fourth and sixth defendants without the authority of their respective Boards, as required by the Memorandum and Articles of Association of the fourth and sixth defendants respectively and because the transfer was purportedly made to a transferee which is not entitled to hold a special Mining Lease by virtue of s 72 of the Act.

PARTICULARS

(i)       The Articles of Association of each of the fourth and sixth defendants require that their respective common seals be affixed to documents by the authority of their respective Boards in the presence of persons specified in each respective Articles.

(ii)      On 27 September 1990 a form of transfer of the SML from the fourth defendant to Mt Kare Alluvial Mining Pty Limited was executed.

(iii)     The said transfer recites that the Common Seal of Mt Kare Holdings Pty Limited was affixed by order of its Board.

(iv)     The said transfer recites that the Common Seal of Mt Kare Alluvial Mining Pty Limited was affixed by order of its Board.

(v)      As at 27 September 1990 the Board of the fourth defendant had not authorised or ordered the affixing of its Common Seal to the said transfer.

(vi)     As at 27 September 1990 there was no company known as Mt Kare Alluvial Mining Pty Limited incorporated or registered in Papua New Guinea within the meaning of s 72 of the Mining Act.

(vii)    As at 27 September 1990 the Board of the sixth defendant had not authorised or ordered the affixing of its Common Seal or the Common Seal of Mt Kare Alluvial Mining Pty Limited to the said transfer."

Proceedings were commenced by Writ of Summons with Statement of Claim on 4 October 1990 (pp 26 - 30 Appeal Book). A comprehensive Amended Statement of Claim was filed on 7 November 1990 (pp 37 - 54 Appeal Book) to which defences were filed by all defendants (pp 55 - 56 and pp 59 - 60). A further minor amendment to the Statement of Claim was made by notice on 19 November 1990 (pp 61 - 62). Further particulars were sought by the fourth and sixth defendants, firstly by a formal request on 4 December 1990 (pp 63 - 68) and then by Motion for further particulars supported by an Affidavit (pp 69 - 81). This Motion was ruled on by His Honour Mr Justice Salika who ordered that substantial further particulars were required (pp 82 - 84 of Appeal Book).

A Notice of further amendment of the Statement of Claim was filed on 7 December 1990 (pp 85 - 86 Appeal Book).

The fourth and sixth defendants then filed a further Motion seeking particulars or alternatively striking out the Statement of Claim, supported by an Affidavit (pp 87 - 164 Appeal Book). The plaintiff filed a List of proposed amendments to the Statement of Claim on 11 December 1990 (pp 165 - 171). The fourth and sixth defendants then amended their Motion so as only to seek to strike out and dismiss the action, this Motion was joined by a similar striking out Motion by the remaining defendants, supported by an Affidavit, on 12 December 1990 (Appeal Book pp 172 - 190).

A further amended Statement of Claim in terms of the proposed amendments and amended defences thereto were filed on 13, 14 and 17 December 1990 respectively (pp 191 - 212). The strike-out motion was eventually heard by His Honour Salika J in late February. (Ruling in Appeal Book pp 213 - 215).

During submission on the strike-out motions the plaintiffs orally sought to have certain questions referred to the Supreme Court. The first, second and third defendants filed a Motion for orders that the Judge did not have jurisdiction to consider such a request (pp 216 - 218) but His Honour ruled that he did have jurisdiction to consider such a request (Appeal Book pp 219 - 221).

His Honour then went on to decide to make a reference (pp 222 - 224) and to settle the reference (pp 225 - 361).

THE APPEALS

SCA 19 OF 1991

This is an appeal by the first, second and third appellants (Minister for Minerals and Energy, Mining Registrar and Independent State of Papua New Guinea) and is against the ruling made by the National Court on the hearing of their Notice of Motion on 3 December 1990. In the Motion the appellants asked for the following orders:

1.       That the National Court had no jurisdiction to entertain the matter of the interpretation of s 7 of the Mining Act (Ch 195) as being unconstitutional.

2.       That consequently, having no such power to rule on the constitutionality of the said provision the National Court "has no competence to make a reference thereof to the Supreme Court".

The grounds of appeal and orders sought are as follows:

a)       That the learned judge erred in law in that having ruled that he had no jurisdiction to consider the declaration sought by the plaintiffs relating to the unconstitutionality of s 7 of the Mining Act Ch 195, nevertheless went ahead to assume jurisdiction over the matter.

b)       That the learned judge contradicted himself in his reasoning and thereby erred in law in assuming jurisdiction over the matter which he had recognised and admitted to be outside his competence by virtue of s 18(1) and 19 of the Constitution.

c)       That the learned judge erred in law in basing his decision on the ground which he expressed in the following words that "unless he assumed jurisdiction, the plaintiffs would have no means of sending their case to the Supreme Court since the Supreme Court might not allow them to do so, as they would be barred under s 19 of the Constitution and also be met with the challenge of locus standi."

d)       That the said learned judge erred in law in holding that s 18(2) of the Constitution applies to this matter.

e)       That the learned judge erred in law in holding that s 18(2) of the Constitution was intended to apply at any stage of the proceedings even before any facts had been properly established.

f)       That the learned judged erred in law in holding that matters alleged in pleadings and which are not specifically admitted, could be used to support the findings of fact necessary to satisfy the requirements of s 18(2) of the Constitution for a decision of the Supreme Court to be made.

g)       And such other grounds as may arise from the written judgment of the learned judge which is not available to the appellants at the time of filing of this Notice of Appeal.

3.       The first, second and third appellants seek in lieu of the judgment appealed from, the following Orders:

(a)      That the National Court has no jurisdiction to entertain the matter of declaration of the unconstitutionality of s 7 of the Mining Act Ch 195 as sought for by the paintiff's action.

(b)      That the National Court lacking such jurisdiction cannot make any reference in respect of this matter under s 18(2) of the Constitution.

(c)      That s 18(2) of the Constitution does not apply to this matter.

(d)      That accordingly the National Court's rulings be reversed including order for costs.

(e)      That the respondents pay costs of this appeal.

(f)      And such other and further orders as this Honourable Court deems fit.

SCA 32 OF 1991

The appellants are Mount Kare Alluvial Mining Pty Ltd (formerly Dibusa Mining Pty Limited) and Mt Kare Holdings Pty Ltd. Their appeal is against the whole of the judgment of the National Court given on 27 February, 1991. By Notice of Motion filed on 7 December, 1990, the appellants moved to strike out the respondent's amended Statement of Claim as "disclosing no reasonable cause of action, or having a tendency to cause prejudice, embarrassment or delay in the proceedings, or as otherwise an abuse of the process of the Court" (O 8 r 27 National Court Rules). The motion was dismissed and the appellants ordered to pay the respondent's costs. They now ask this Court to reverse the National Court judgment and the following are the grounds of appeal and the Orders they seek:

"3.      Grounds

3.1     The learned Judge erred in holding that the proceedings did show a reasonable cause of action, and in not allowing the application and striking out the Statement of Claim and dismissing the action, in circumstances in which the first, second and third respondents ("the plaintiff's") did not allege in their Statement of Claim an interest or interests in the land sufficient to enable the Court to grant the relief sought.

3.2     The learned Judge erred in law:

(a)      in holding that, by virtue of Order 5 Rule 7 of the National Court Rules or otherwise, the absence of other members of the respective landowning clans, as parties to the proceedings, did not affect the proceedings;

(b)      in holding that it was for other members of the respective landowning clans to come to Court and to ask to be joined;

(c)      in holding that it was not a matter for the plaintiffs to join all persons affected by the proceedings;

(d)      in holding that the plaintiffs had locus standi to bring the proceedings;

(e)      in holding that the State under certain provisions of the Mining Act can do as it pleases;

(f)      in holding that the plaintiffs have rights and interests over such land;

(g)      in holding that it is only fair and proper to rule that the plaintiffs have the standing to take the matter to Court;

(h)      in ordering the appellant defendants to pay the costs of the application to the plaintiffs.

3.3     The learned Judge erred in making findings of fact, in the absence of any evidence adduced by any of the parties, in particular:

(a)      in holding that in the present case the plaintiffs are members of landowning clans;

(b)      in holding that gold was being prospected for on land of the said landowning clans;

(c)      in holding that, as such, the three plaintiffs would have rights and interest in on or over the said land;

(d)      in holding that other members of the respective landowning clans were not interested in the proceedings;

(e)      in holding that there was no question about the interests of other members of landowning clans being affected in the proceedings;

(f)      in holding that the plaintiffs being members of landowning clans suddenly found that there were minerals on their land;

(g)      in holding that the plaintiffs being members of landowning clans suddenly found that such minerals were not theirs by virtue of the Mining Act;

(h)      in holding that the plaintiffs have genuine concerns over what has happened on the land;

(i)       in holding that the plaintiffs have rights and interests over such land;

(j)      in holding that it is only fair and proper to rule that the plaintiffs have the standing to take the matter to Court;

4.       Orders Sought:

(a)      that the first, second and third respondent plaintiffs' Statement of Claim be struck out, and the action be dismissed;

(b)      that the first, second and third respondents pay to the appellants the costs of and incidental to the appeal and the action."

SCA 36 OF 1991

On 6 March 1991 the National Court decided it would refer issues relating to the application and interpretation of constitutional law to this Court under s 18(2) of the Constitution. The grounds of appeal and the orders sought are stated hereunder:

(a)      That the learned judge erred in law in ruling that the plaintiffs have rights over and in the land the subject of the Mining Lease No 1 at Mt Kare;

(b)      That the learned judge erred in his reasoning that because he has ruled that the plaintiffs have rights over and in the land the subject of the Mining Lease No 1 at Mt Kare it was sufficient for him to refer questions to the Supreme Court and thereby erred in law;

(c)      That the learned judge erred in law in deciding to refer the matter to the Supreme Court;

(d)      That the learned judge erred in law in failing to apply Supreme Court decisions in SCR No 3 of 1982 [1982] PNGLR 405; and SCR No 5 of 1982 [1982] PNGLR 379, and in failing to cite any authorities for the conclusions; and

4.       The first, second and third appellants seek in lieu of the ruling appealed from, the following Orders:

(a)      That s 18(2) of the Constitution does not apply to this matter;

(b)      That the National Court lacked jurisdiction under s 18(2) of the Constitution as no facts had been established to give rise to any question arising under that provision;

(c)      That the decision for referral was premature; and

(d)      That accordingly the National Court's ruling be reversed;

(e)      That the respondents pay costs of this appeal;

(f)      And such other and further orders as the Honourable Court deem fit.

In this appeal the appellants are the Minister for Minerals and Energy, the Mining Registrar and the State.

SCA 60 OF 1991

This is the second appeal by Mt Kare Alluvial Mining Pty Limited and Mt Kare Holding Pty Limited. Their appeal is against the decision to refer - it is similar to SCA 36 of 1991. Their grounds of appeal and order they seek are:

"3.      The Judge erred in law:

(a)      in holding that the plaintiffs in WS 1067/90 have rights over and in the land the subject of those proceedings;

(b)      in finding that a question relating to the interpretation or application of any provision of a constitutional law had arisen in the said proceedings, WS 1067/90;

(c)      in relation to paragraph 2 of the reference, the fourth and sixth defendants oppose the making of this reference on the following grounds:

(i)       The learned National Court trial Judge (the "National Court") made this reference to the Supreme Court after preliminary applications and argument at the trial, but before any evidence in the trial had been opened or adduced, and in particular before any witness was called and testified, or any document was tendered, or any other evidence was tendered, or any other evidence was adduced on behalf of any party in the trial, (excluding affidavits in relation to preliminary applications);

(ii)      It was not open to the National Court to make any of the findings in the reference, as there was no evidence adduced at the trial in relation either to such issues or in relation to any issues;

(iii)     There was no agreed statement of facts at the trial or for the purpose of this reference;

(iv)     The fourth and sixth defendants submitted that the action should go to trial for evidence to be adduced and for findings to be made;

(v)      As it was not open to the National Court to make any of the findings in the reference, and as there was no agreed statement of facts at the trial or for the purpose of this reference, the reference is hypothetical only and/or premature;

(vi)     As the reference is hypothetical only and/or premature, the reference is trivial vexatious or irrelevant.

(d)      In relation to paragraph 3 of the reference, it was not open to the National Court to make the following findings, as there was no evidence adduced at the trial in relation either to such issues or in relation to any issues.

(i)       that the plaintiffs are by custom landowners or persons who have rights or interests in portions of the land within the area of Special Mining Lease No 1 at Mt Kare;

(ii)      that the land within the area of Special Mining Lease No 1 at Mt Kare was compulsorily acquired by the State, or that Special Mining Lease No 1 at Mt Kare was compulsorily acquired by the State.

(e)      In relation to paragraphs 5 of the reference:

(i)       it was not claimed by the plaintiffs that their customary rights had been acquired under s 7 of the Mining Act contrary to s 53 of the Constitution;

(ii)      it was claimed by the plaintiffs:

(A)     that landowners' and/or the plaintiffs' alleged customary rights had not been acquired:

(1)      under earlier legislation similar to s 7 of the Mining Act; and/or

(2)      under the common law upon its introduction into the then League of Nations Mandated Territory of New Guinea;

before independence;

(B)      that by virtue of s 53 of the Constitution landowners' and/or the plaintiffs' alleged customary rights had not been acquired:

(1)      under s 7 of the Mining Act; and/or

(2)      earlier similar legislation;

(f)      In relation to paragraph 6 of the reference, it was not agreed that without s 7 of the Mining Act the State:

(i)       cannot grant Prospecting Authorities;

(ii)      cannot grant Special Mining Lease;

(iii)     could not grant Special Mining Lease No 1 at Mt Kare.

(g)      In relation to the paragraph 9 of the reference:

(i)       it is not open to the Supreme Court to attempt to interpret and apply the Constitution in relation to "the facts as found above" in the reference as such findings by the National Court were not open to the National Court and are hypothetical and/or premature;

(ii)      as the reference is hypothetical only and/or premature, the reference is trivial vexatious or irrelevant.

(h)      In the premises of the matters in the sub-paragraphs of this paragraph 3, the Judge erred in law.

4.       The first and second appellants seek in lieu of the decision to refer the following orders:

(a)      that no question relating to interpretation or application of any provision of a constitutional law has yet arisen in proceeding number WS 1067/90;

(b)      that the National Court lacked jurisdiction under s 18(2) of the Constitution as no fact has been established to give rise to any question arising under that provision;

(c)      that the first, second and third respondents pay the costs of this appeal;

(d)      and such further and other orders as the Honourable Court deems fit."

PRELIMINARY MATTER

When the Court convened to entertain these consolidated Appeals the respondents sought to make an objection against the competency of the appeals. We ruled against the objection as the respondents had not complied with O 7 of the Rules of the Supreme Court (O 7 r 14 - 18):

"14.    A respondent who objects to the competency of an appeal or of an application for leave to appeal shall, within 14 days after service on him of the notice of appeal;

(a)      file an objection in accordance with Form 9;

(b)      serve a copy of the objection on the appellant.

15.     Any party may file affidavits.

16.     An objection of which notice has been given shall be determined by the Court at or before the hearing of the appeal or application for leave to appeal as the Court thinks proper.

17.     Upon the hearing of the application the burden of establishing the competency of the appeal is on the applicant.

18.     If notice of objection is not given and the appeal or the notice of application for leave is dismissed as incompetent, the respondent shall not receive any costs of the appeal unless the Court on special grounds orders otherwise."

Rule 14 above is explicit. The objection in this instant was made two months after the Notices of Appeal were served on the respondents. Our brother Woods, sitting as a single Judge of this Court, dealt with this very question in The Independent State of Papua New Guinea v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448. We agree, with respect, with his Honour and as the ruling is short (and explicit) we quote it in toto here:

"Interlocutory judgment

Woods J. I am being asked for directions which will result in the respondent being able to file a notice of objection to competency outside the period of fourteen days allowed by the Rules from the date on which the notice of appeal was served on the respondent: see Supreme Court Rules, O 7, r 14.

There is an affidavit on the file declaring that the notice of appeal was served on the lawyers for the respondent on 6 November 1985. No notice of objection to competency was filed by 21 November.

In effect I am being asked to extend the time required to do an act under the Rules. Unfortunately there is no general provision in the Rules allowing the Court to extend on such terms as it thinks fit the time required to do an act. There is a waiver of rules provision in O 11, r 10, but that is limited to preparation of documents or appeal books.

If it was a matter of the avoidance of injustice to the parties then perhaps the Court could act under its powers under the Constitution, s 155(4), and make whatever order it deems necessary to do justice. However in this case it is not a question of justice between the parties but would merely be a convenient way of dealing with one aspect of the appeal. It is not a question of a party being deprived of the opportunity to appear before the Court.

The applicant is saying I can act under O 11, r 9, there being lack of procedural provision. But this is not so. There is clear procedural provision, a clear time limit and no power in the Rules to waive or extend time. And as I have said I can see no injustice, merely possible inconvenience.

I note the respondent has a judgment, interest is running and the appeal is not a stay of proceedings.

Perhaps if the applicant really believes there is a basic objection to the competency of the appeal he could approach the Registrar to exercise his power under the Supreme Court Act (Ch No 37), s 11. Alternatively, if there is a basic incompetency which must be considered by the Court whether it is raised or not by a relevant notice, then the parties can agree to split the hearing.

I dismiss the application."

After the ruling the appellants argued their appeal and when Mr Donigi was invited to commence submissions on behalf of the respondents he attempted to begin by raising his objection again and he submitted that he was allowed by Rule 18 (supra) to do so. He was not allowed to do so and we give our reasons for that decision.

Rule 18 does not say that a respondent who is not allowed to raise the competency of an appeal as a result of not complying with rule 14 may nevertheless raise the question anytime during his submissions against the appeal. One thing that is beyond question about rule 18 is that it relates to costs. In a case where notice of objection to competency is not given and the appeal is dismissed for incompetency the respondent gets no costs unless the Court otherwise decides on special grounds.

Inherent in rule 18 is the recognition of the power of this Court to rule an appeal incompetent because of obvious defects legal or non-legal on the face of the record. For instance s 17 of the Supreme Court Act (Ch No 37) provides that a notice of appeal to the Supreme Court must be given within 40 days after the date of the judgment and any extension of time for the notice must be obtained within that same 40 days. So if on the face of the record an appeal was filed 60 days after judgment and no extension of time was granted, although no notice of objection was filed the Court has clear power to strike out the appeal as being incompetent. In such an event the respondent would not be entitled to costs unless special reasons are shown.

We are of the opinion that rule 18 gives no right to any respondent who fails to comply with rule 14 to nevertheless raise questions of incompetency of an appeal.

COMPETENCY OF APPEAL 60/91

The respondent raised the matter of competency of SCA 60/91. It was argued that this appeal was out of time and that this appears on the face of the record.

It was in March, 1991, that Salika, J. announced that he "proposed" to make a constitutional reference under s 18(2) of the Constitution to this Court. However, the reference was signed on 3 May 1991 and appeal 60 was filed 28 May 1991.

Mr Reeves, one of the three lawyers appearing as Counsel for the respondents, urged this Court to rule this appeal incompetent as being out of time as the judgment being appealed against was handed down in March 1991 and not in May 1991. If March 1991 was the date of the judgment, then appeal 60 is very clearly out of time.

Section 4(1) of the Supreme Court Act (Ch No 37) provides as follows:

"(1)     An appeal in accordance with this Act lies to the Supreme Court from a judgment of the National Court."

The point being raised here is to be resolved on the proper meaning of "judgment" in s 4(1), a term defined by s 1 of the Act as including "a finding, decree, order, rule, conviction, verdict and sentence, a decree, order or rule nisi, and a refusal to make a finding, decree, order or rule". We consider that in March 1991 Salika, J. made a "finding" and on 3 May 1991 he made an "order" referring the matter to this Court and we consider therefore that appeal 60 is well within the 40 days appeal period.

On 7 August 1991 the following decision was published by the Court:

1.       Section 18(2) of the Constitution cannot be utilised to base a cause of action in the National Court. Paragraphs (i), (ii) and (iii) of the Statement of Claim (referring to Constitutional questions) should have been struck out by the National Court.

2.       A question of interpretation or application of a Constitutional law may arise at any stage of proceedings in Court or a Tribunal. But such a question must arise during the course of a matter properly before the Court or Tribunal.

3.       There must be factual bases for a referral under s 18(2). In this case there were no such facts. Any findings of fact by the National Court had no evidentiary basis. S.C. Reference 1/91 is therefore premature.

4.       Paragraphs (iv) - (ix) of the Statement of Claim (referring to invalid procedures) are properly before the National Court. No justifiable reasons were advanced as to why they should be struck off.

5.       We reject the motion to certify for Overseas Counsel with respect to costs.

We now give our reasons.

SECTION 18(2) CONSTITUTION

As three of the appeals are principally based on s 18(2) of the Constitution this Court must address it first. It provides as follows:

"Subject to this Constitution, where any question relating to the interpretation and application of a Constitutional Law arises in any court or tribunal other than the Supreme Court, the court or tribunal, shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever action (including the adjournment of proceedings) is appropriate."

Salika, J. rightly held that he had no jurisdiction as a National Court Judge to make a declaration that ss 7 and 200 of the Mining Act (Ch 195) were unconstitutional as being contrary to s 53 of the Constitution. In agreeing to this we also emphasize that if the plaintiffs had gone to the National Court pursuant to s 57 of the Constitution for enforcement of their rights to property under s 53 of the Constitution, the National Court would have had clear jurisdiction to entertain the matters and make the declarations sought by the respondents. Section 57 of the Constitution provides, inter alia, as follows:

"57.    ENFORCEMENT OF GUARANTEED RIGHTS AND FREEDOMS

(1)      A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

(2)      A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).

(3)      Any court, tribunal or authority may, on its own initiative or at the request of a person referred to in Subsection (1), adjourn, or otherwise delay a decision in any proceedings before it in order to allow a question concerning the effect or application of this Division to be determined in accordance with Subsection (1).

(4)      Relief under this section is not limited to cases of actual or imminent infringement of the guaranteed rights and freedoms, but may, if the court thinks it proper to do so, be given in cases in which there is a reasonable probability of infringement, or in which an action that a person reasonably desires to take is inhibited by the likelihood of, or a reasonable fear of, an infringement.

(5)      The jurisdiction and powers of the courts under this section are in addition to, and not in derogation of, their jurisdiction and powers under any other provision of this Constitution." (our italics)

In the enforcement of rights and freedoms guaranteed by the Constitution, the National Court has concurrent powers with the Supreme Court and these powers include declaring a statute to be unconstitutional.

Section 18 of the Constitution is a jurisdiction provision specifically for the Supreme Court. It is, of course, to be read subject to provisions such as s 57. But this latter aspect of s 18 does not arise here. In this case the respondents did not apply to the National Court for enforcement of their property right guaranteed by s 53 of the Constitution. They merely took action in the National Court and sought various orders including a declaration that s 7 and s 200 of the Mining Act were unconstitutional. By taking this course the respondents failed to invoke the wide powers of the National Court conferred by s 57(3) of the Constitution.

An action cannot be founded on s 18(2) of the Constitution. It provides for a situation (apart from enforcement of human rights) where a question of the interpretation or application of a constitutional law arises in an ordinary litigation in a court or proceedings of a tribunal (such as a Leadership Tribunal or a Commission of Inquiry). When that occurs the Court or tribunal has no power to entertain the matter. It must refer the matter to this Court.

The question here then is: How should a question of the interpretation or application of a constitutional law arise? This is, in our view, the threshold question in these appeals.

Lawyers for the respondents argued that as the constitutional questions had been raised in the Writ of Summons or Pleadings, s 18(2) had been satisfied and therefore the National Court was obliged to refer the questions in SC Reference 1 of 1991.

In the Constitution there are three ways that constitutional questions may be put before this Court. The first is through the use of s 19 of the Constitution by designated authorities. Secondly the National Court may (not must) refer constitutional matters under its powers conferred by s 57 (supra). The third method is through the medium of s 18.

Section 18 quite clearly says the question of interpretation or application must arise in a court or tribunal. Should this arise during the course of ordinary litigation in a court (or proceedings in a tribunal) or should it mean that any person may directly ask a court (or tribunal) to decide the constitutional question?

Should the answer be the latter we obviously have to contend with certain other questions for s 18 does not only relate to constitutional referrals by the National Court. It provides for these referrals by the National Court, District Court, Local Court, Children's Court, District Land Court, Local Land Court, Leadership Tribunal, Commission of Inquiry, Conciliation and Arbitration Tribunals and so on. The District Court has jurisdiction to entertain summary offences defined by the Summary Offences Act. Without a prosecution being embarked upon can a person go to the District Court and challenge the constitutional validity of a provision of that Act? To do so would be the same as what the respondents did in the National Court. They asked the National Court to make orders declaring two provisions of the Mining Act unconstitutional.

We consider s 18 to clearly mean that a constitutional question must arise during an ordinary litigation in a court or ordinary proceedings of a tribunal (seized properly with the matter before it). This view is supported by the CPC Report:

"We recommend that whenever, in proceedings before a court other than the Supreme Court, a justiciable constitutional issue other than one concerning the human rights provisions of the Constitution arises, that court shall refer the issue to the Supreme Court for determination." (CPC Report, Ch 8 p 8/16 para 147)

The State Solicitor put a proposition to the Court that should be dealt with and that is the power under s 18(2) is "interpretation or application" of a constitutional law which does not include questions relating to the validity of a law. This view is contrary to several decisions of this Court: It is a restrictive view of s 18(2) which is not supported by previous decisions of this Court. Surely when the Court applies a provision of a constitutional law against a provision of an Act or Regulation and the latter is contrary to the constitutional law it may declare the latter invalid or unconstitutional. We say no more on that point.

In view of the foregoing the National Court should have struck out from the Writ of Summons paragraphs (i), (ii) and (iii) of the plaintiffs' claim. They do not constitute actions that the National Court can deal with as part of its original jurisdiction.

Although the National Court had no jurisdiction to grant the declaration sought that is not the end of the matter. Issues relating to the interpretation or application of constitutional laws may arise or be raised during the hearing of the other claims in the Writ of Summons. In fact the pleadings raised the issue of constitutionality of ss 7 and 200 of the Mining Act (Ch 195). These matters of law may be pleaded as Order 8 Rule 20 of the National Court Rules permits this to be done. However, simply pleading the constitutional issues or raising them during the proceedings does not automatically result in a s 18(2) reference. There are matters that must be ascertained before a reference can be made under this provision. This Court has said already that a s 18(2) reference must arise out of a factual situation.

"We are of the opinion that a question which is referred to the Supreme Court must arise out of a factual situation established by the lower court or tribunal. We refer to SCR No 5 of 1982; Re Petition of Hugo Berghuser [1982] PNGLR 379." (SCR No 3 of 1982 [1982] PNGLR 405 at p 407).

"With respect there can be no assumptions of facts in a s 18 reference. Section 18 questions are referred where facts in a case give rise to a question of the interpretation or application of a constitutional law. It is the function of the court which refers the question to find the facts which give rise to such questions. It cannot refer questions on assumed facts or hypothetical facts. The right to refer such questions is given under s 19 of the Constitution." (SCR 5 of 1982 [1982] PNGLR 379 at p 383).

In this case when Reference No 1 of 1991 was made to this Court the National Court had not made any findings of facts. As no evidence had been put before the Court orally or in affidavit form it was not possible to establish the necessary facts for a s 18(2) reference. For instance it was necessary for the National Court to establish that the three appellants were landowners or had interest in land over the area of the Special Mining Lease. Pleadings show quite clearly that no appellant/defendant admitted that the respondents/plaintiffs were indeed what they said they are. In fact there were clear denials in the pleadings of the appellants/defendants.

As no facts were legally established the reference under s 18(2) was made prematurely and is therefore not properly before this Court.

"In Constitutional matters referred under s 18 of the Constitution, it is our view that all findings of fact necessary for interpretation or application of a Constitutional Law must be made by the court or tribunal before making the reference. Until this is determined, it cannot be said that any question relating to the interpretation or application of any provision of a Constitutional Law has arisen in any court or tribunal." (SCR No 3 of 1982 (supra) p 408).

Should the whole of the amended Statement of Claim have been struck out by the National Court? Certainly the claims for declarations that ss 7 and 200 of the Mining Act were contrary to s 53 of the Constitution should have been struck out and we have already dealt with them.

As to the other claims it is our view that the fourth and sixth defendants had not shown the National Court reasons for striking them out. In non-constitutional matters the National Court of Justice is a court with wide-ranging powers. It has power to grant declaratory orders. In fact s 166(1) of the Constitution emphasises this: "Subject to this Constitution, the National Court is a court of unlimited jurisdiction." And its powers to make declaratory order are given by s 155(4) of the Constitution:

"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." (Our italics).

In Supreme Court Reference No 2 of 1981 [1982] PNGLR 150 this Court (by majority) held that the italicised part of s 155(4) granted the National Court and the Supreme Court power to make orders other than ones in the nature of prerogative writs.

In these appeals the respondents claim:

(iv)     ... a declaration that the grant of the SML No. 1 at Mt Kare is invalid and without legal force or effect.

(v)      ... a declaration that the grant of the SML No. 1 at Mt Kare is ultra vires and is therefore without legal force or effect.

These declarations are sought in their capacity (they claim) as "customary land owners and have interests in or rights to own land in the Mt Kare region", part of which includes the SML No. 1. That they have to prove their interest is one of the points at issue in the proceedings. If they do prove this then it is beyond question that they have that interest that they are asking the court to protect. They do not want the fourth and sixth appellants to have the mining lease over their land or land in which they have an interest. So these claims cannot be struck out on the basis that they do not fit into any forms of action known to the law. The reason for striking out given by the appellants is the failure on the part of the respondents to join others who might be interested in their action. But the short answer to this ground of appeal is to be found in O 5 R 7 of the Rules of the National Court.

"(1)     Proceedings shall not be defeated by reason of the misjoinder of a party or the non-joinder of any person as a party.

 (2)     The Court may in any proceedings determine the issues or questions in dispute so far as they affect the rights and interests of the parties."

This rule plainly shows no obligation on the part of the plaintiff to join any party other than those he wishes to proceed against. He may seek to have his claim heard at least to the extent that he is affected. But in obtaining that relief the possibility remains, that this issue of appropriate parties will remain alive, since for an injunction or damages to be assessed the rights and interests of others not party to action may need to be taken into account. In the event that this is not possible through their not being party to the action, that may have a serious affect on the Court's ability to give relief; perhaps to the extent of precluding the plaintiff of his remedy. This is because a judgment given in the absence of other persons of similar interest can bind them even though they are not party to the proceedings. Accordingly Courts are reluctant to so bind them unless they are party or aware of the proceedings and able to seek to be joined if they wish. Again in the case of damages which are a form of personal relief, difficulties can arise in assessment in such cases.

With respect to the claim for an injunction there is also no problem. The National Court has powers granted by s 155(4) of the Constitution to make orders in the nature of prerogative writs and persons who wish to invoke this power to protect their interests may do so.

As to the claim for general damages they should have been particularised. Of course it was open for the defendants to have requested particulars but the Appeal Book reveals no application for particulars of the damages as pleaded. We reject the contention that the claim be struck out.

We see absolutely no reason for striking out claims (v) and (x). They are valid causes of action and no abuse of process has been shown. Neither was it shown by the appellants that the claims had "a tendency to cause prejudice, embarrassment or delay in the proceedings".

KAPI DCJ: On 1 July 1991 when these appeals came on for hearing, counsel for the respondent sought to raise an objection to the competency of the appeals pursuant to O 7, Div 5 of the Rules of the Supreme Court (Ch No 37). The court ruled that the respondent cannot raise the issue of competency at this time and proceeded to hear the appeals. I now give my reasons for this ruling.

When a notice of appeal is served on a respondent, he is entitled to raise an objection on the competency of the appeal. Order 7, Div 5 is as follows:

"Division 5      Objection to competency to appeal

14.     A respondent who objects to the competency of an appeal or an application for leave to appeal shall, within fourteen days after service on him of the notice of appeal

(a)      file an objection in accordance with Form 9,

(b)      serve a copy of the objection on the appellant.

15.     Any party may file affidavits.

16.     An objection of which notice has been given shall be determined by the court at or before the hearing of the appeal or of the application for leave to appeal as the court thinks proper.

17.     Upon the hearing of the application the burden of establishing the competency of the appeal is on the applicant.

18.     If notice of objection is not given and the appeal or the notice of application for leave to appeal is dismissed as incompetent, the respondent shall not receive any costs of the appeal unless the court on special grounds orders otherwise."

A respondent has a right to be heard on an objection to the competency of an appeal if he files the objection and serves notice of the copy of the objection on the appellant within fourteen days after service on him of the notice of appeal. The court is bound to hear the objection either before or at the hearing of the appeal. If he does not file the objection to competency of the appeal within the fourteen days, he does not have any right to be heard. The Rules of the Supreme Court do not provide for any power in the court to extend the fourteen days period. See The State of Papua New Guinea v Kubor Earthmoving (PNG) Pty Ltd [1985] PNGLR 448.

In the present appeals, the respondents failed to file the objection and failed to serve a copy of the objection on the appellants within the fourteen days. The respondents cannot as a matter of right raise the question of objection now.

As a result of this ruling, the appeals proceeded and counsel for the appellants argued the appeals on their merits.

When counsel for the respondents rose to argue the respondents' case, he sought to raise the same issue of the objection to the competency of the appeals. The court again ruled that the respondents should not be permitted at this point in the hearing of the appeals to raise the issue again. The appeals proceeded on their merits. I now give my reasons for the second ruling.

Counsel for the respondents has submitted that he is entitled to raise an objection to the competency of the appeals a second time, based on O 7, r 18 of the Rules of the Supreme Court. He submits that under r 18 there is an implied power of the court to consider the issue of competency of an appeal even though a respondent has failed to give notice of an objection under r 14. He submits that there is an implied right given to the respondents to raise the issue of objection to competency of the appeals.

Rule 18 must be interpreted in the light of the whole of O 7. I have already held that the respondent has a right to raise an objection to competency of an appeal if he gives notice and serves a copy of the notice on the appellant within fourteen days after service on him of the notice of appeal. If he does not raise the issue within the fourteen days, he does not have any right to be heard.

Rule 18 proceeds from the premise that notice is not given and that the respondents had lost the right to raise the issue, but the provision goes on to state:

"the appeal or notice of application for leave to appeal is dismissed as incompetent ...."

It is implied in this provision that even though a respondent has not exercised the right to object to competency of an appeal, that is not the end of the issue as far as the court is concerned. It can be implied from this provision that the issue of objection to competency remains open throughout the hearing of the appeal. The court may become aware of matters which would render the appeal incompetent. For example, the appeal may have been lodged out of time. The court may reach the conclusion upon becoming aware of the appeal being lodged after the expiration of the forty days limit; the court may dismiss the appeal on the basis of incompetency and not on the merits of the appeal. Where this happens, r 18 goes on to state:

" ... the respondent shall not receive any costs of the appeal unless the court on special grounds orders otherwise."

Whether the court makes this ruling or not is in the discretion of the court.

If the court in the exercise of its discretion proceeds to consider the competency of the appeal at any stage of the appeal, the question arises as to whether it should call on the parties to address it on these issues. I am of the opinion that once the decision is reached that the court has a discretion to dismiss an appeal on the grounds of incompetency, in my view, it is right and proper that the parties should be given the opportunity to be heard on these issues. I reach this conclusion on the basis that a ruling that an appeal should be dismissed for incompetency would affect the rights of both parties. It would be in breach of the principles of natural justice not to call upon the parties to address the issues. See s 59 of the Constitution. Whether the parties should be given an opportunity to address the court would be in the exercise of the discretion of the court.

In essence, whether the court can raise the competency of an appeal at any stage of the appeal and whether the parties may be granted leave to address the court on this issue, is in the discretion of the court.

All these appeals have been consolidated by special request of the parties and the judges have sacrificed their calendars to hear these appeals on their merits. In addition, we have been requested to hear and give our decision on these appeals in the month of July. This has been requested on the basis that the decision of this Court on these appeals will determine whether we will go on to consider a reference under s 18(2) of the Constitution to this Court. In view of these arrangements, it is important that this Court proceeds to hear the merits of the appeal and to determine the merits of the appeal. The respondents have had ample time in which to raise the objection to the competency of these appeals. In the exercise of my discretion, I would not allow the issue of competency of the appeals to be raised and that the respondents would not be given the leave to raise these issues again at this point. The court must now deal with the merits of the appeals.

APPEALS

By a writ of summons the respondents sued the appellants and made the following claims:

1.       A declaration that s 7 of the Act insofar as it purports to apply to gold and minerals found in, on or under customary land owned by the plaintiffs is contrary to s 53 of the Constitution and is therefore unconstitutional.

2.       Further, or alternatively, a declaration that s 200 of the Act does not comply with s 53 of the Constitution in that the purposes specified therein are private in nature as opposed to public as required by s 53 of the Constitution.

3.       A declaration that the Mining Act is not a law that complies with ss 38, 44, 49 and 55 of the Constitution and is therefore void and of no effect.

4.       Further or alternatively, a declaration that the grant of the SML No 1 at Mt Kare is invalid and without legal force or effect.

5.       Further or alternatively, a declaration that the grant of the SML No 1 at Mt Kare was ultra vires the power of the third defendant and is therefore without legal force or effect.

6.       Further and alternatively, an order restraining the fourth and sixth defendants by themselves, their servants, workmen, agents, employees or otherwise from entering upon the ground the subject of the SML and from conducting mining operations, or operation preparatory to mining, thereon.

7.       Damages.

8.       Interest pursuant to a Statute.

9.       Costs.

The appellants filed their respective defences to the Statement of Claim.

By different motions, first, second and third appellants on the one hand filed a motion and the fourth and sixth appellants filed another motion to strike out the Statement of Claim for not disclosing a reasonable cause of action. Upon hearing the submissions, the trial judge dismissed the applications by the appellants. The fourth and sixth appellants appealed against the decision of the trial judge. This appeal is numbered SC Appeal No 32 of 1991.

By a notice of motion filed on 28 February 1991, the first, second and third appellants moved the court for the following orders:

1.       That this Court has no jurisdiction to entertain the matter of the interpretation of s 7 of the Mining Act (Ch No 195) as being unconstitutional.

2.       That consequently, having no such power to rule on the constitutionality of the said section, as in (1) above, this Court has no competence to make a reference thereof to the Supreme Court."

In respect of this motion, the trial judge ruled that he had no jurisdiction to interpret s 7 of the Mining Act as being inconsistent with s 53 of the Constitution. However, with regard to the jurisdiction to refer the matter to the Supreme Court, he concluded that he had jurisdiction to refer the matter to the Supreme Court. The first, second and third appellants appealed against this ruling in SC Appeal No 19 of 1991.

Subsequent to the ruling that he had power to refer the matter to the Supreme Court, the trial judge considered whether the court should refer questions relating to interpretation or application of a provision of a constitutional law under s 18(2) of the Constitution. After hearing these submissions the trial judge ruled on 6 March 1991 that constitutional issues had arisen before him under s 18(2) of the Constitution. He concluded in the following terms:

"I think at this stage the questions have arisen and I propose to refer them at this stage to the Supreme Court under s 18(2) of the Constitution."

Subsequent to this ruling, first, second and third appellants have filed an appeal against this decision which is numbered SC Appeal No 36 of 1991.

The proposal to make the reference was not made until the reference was actually made for questions to be referred to the Supreme Court on 3 May 1991. As a result of the reference, fourth and sixth appellants appealed to the Supreme Court against this reference in SC Appeal No 60 of 1991.

I will deal with each of these appeals in a chronological order as they came up for decision before the trial judge.

SC APPEAL NO 32 OF 1991

There is some confusion as to the notice of appeal in this matter. The first notice of appeal is dated 5 April 1991 and it appears on pp 362 to 365 of the Appeal Book. The second notice of appeal is dated 8 April 1991 and it appears on pp 7 to 11 of the Appeal Book. In view of the fact that the latter appears later in date and also Mr O'Reagan QC, counsel for the fourth and sixth appellants, in his submission made reference to this notice, I will regard this as the notice of appeal against the decision of the trial judge in question.

If the appeal against the decision of the trial judge in this matter is successful, that is to say the whole of the Statement of Claim is dismissed, it will not be necessary to deal with all the other issues raised in the other appeals.

The appellants' complaint on appeal is confined to the decision by the trial judge for not striking out the Statement of Claim on the basis that it did not disclose a reasonable cause of action. The powers of the court are set out in O 8, r 27 and O 12, r 40. Order 8, r 27 is as follows:

"1.      Where a pleading:

(a)      discloses no reasonable cause of action ...

the court may at any stage of the proceedings, on terms or otherwise, order that the whole or part of the pleading be struck out."

Order 12, r 40 is as follows:

"1.      Where in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a)      no reasonable cause of action is disclosed ...

the court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings."

The phrase "cause of action" has been used in many pieces of legislation and has been the subject of judicial consideration in other jurisdictions. In Read v Brown [1888] UKLawRpKQB 186; (1888) 22 QBD 128, the Court of Appeal considered the meaning of the phrase "cause of action". Lord Esher MR, with whom Fry LJ and Lopes LJ agreed, at p 131 said:

"It has been defined in Cooke v Gill to be this: every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved. It has been suggested today in argument that this definition is too broad, but I cannot assent to this, and I think that the definition is right."

The phrase "cause of action" has two components. First, there must be a right which is given by a law, such as, entitlement to reasonable damages for breach of human rights under s 58 of the Constitution. This is what is referred to as the "form of action". Secondly, the pleadings must disclose all the necessary facts which give rise to the form of action.

The Statement of Claim pleads eight forms of action:

"(i)      A declaration that s 7 of the Act insofar as it purports to apply to gold and minerals found in, on or under customary land owned by the plaintiffs is contrary to s 53 of the Constitution and is therefore unconstitutional.

(ii)      Further or alternatively, a declaration that s 200 of the Act does not comply with s 53 of the Constitution in that the purposes specified therein are private in nature as opposed to public as required by s 53 of the Constitution.

(iii)     A declaration that the Mining Act is not a law that complies with s 38, 44, 49 and 55 of the Constitution and is therefore void and of no effect.

(iv)     Further or alternatively, a declaration that the grant of the SML No 1 at Mt Kare is invalid and without legal force or effect.

(v)      Further or alternatively, a declaration that the grant of the SML No 1 at Mt Kare was made ultra vires the power of the third defendant and is therefore without legal force or effect.

(vi)     Further or alternatively, an order restraining the fourth and sixth defendants by themselves, their servants, workmen, agents, employees or otherwise from entering upon the ground the subject of the SML and from conducting mining operations, or operation preparatory to mining, thereon.

(vii)    Damages.

(viii)    Interest pursuant to a statute."

Firstly, I will deal with the claims in (i) to (iii). All these forms of action which have been pleaded, deal with inconsistency of provisions of the Mining Act with a provision of the Constitution. The claims which have been pleaded are not known as forms of action under our law. Mr Reeves who represented the respondents in this appeal conceded in answer to a question from the Bench that the claims as pleaded in themselves do not constitute a form of action. He does not submit that this Court should formulate new forms of action as set out in the pleadings. He submitted that the arguments pleaded are matters of law which may arise in a form of action recognised by law. In my view, this is a proper concession and therefore I have reached the conclusion that the paragraphs which plead the inconsistency of the provisions of the Mining Act with the provisions of the Constitution in themselves are not forms of action known to our law. Declarations of this nature and in this form can only be made by the Supreme Court under ss 18 and 19 of the Constitution. It follows therefore that those paragraphs must be struck out.

However, this does not preclude the respondents from raising these constitutional issues at the trial in connection with other causes of action such as an injunction. As claimed by the respondents in this case, pars 7(h) and (i) plead the same constitutional issues in connection with an action for injunction. This manner of pleading is authorised by O 18, r 20 of the National Court Rules.

The declarations sought in (iv) and (v) are in the nature of equitable remedies. Jurisdiction to make such declaratory orders without any other consequential relief is to be found in s 155(4) of the Constitution. Dent v Thomas Kavali [1981] PNGLR 488, NCDIC v Bogibada Holdings Pty Ltd [1987] PNGLR 135. These are discretionary remedies. That is a form of action available under our law.

As to the claims set out under (vi) and to (viii) of the Statement of Claim, these are forms of action fairly well established under our law.

The question which then arises with regard to the declaratory orders, injunction and damages is whether the Statement of Claim pleaded all the necessary facts which give rise to these forms of action.

With regard to the declaratory orders and injunction I am satisfied that pars 7, 8, 9 and 10 of the Statement of Claim plead the essential facts which give rise to those actions. With respect, I cannot reach the same conclusion with regard to the claim of damages.

The remedies for injunction and declaratory orders do not necessarily result in a successful claim for damages. It is necessary for the respondents to plead the essential facts which give rise to a claim for damages. No facts have been pleaded to show that the respondents suffered any damage as a result of the grant of licence. The onus is on the respondents to plead facts to show that they suffered damages. No claim of damages can be successful without this. It would have been sufficient for the respondents to plead that as a result of the unlawful act by the appellants, they suffered damages. If no damage is shown to have resulted from the unlawful act in the pleadings, that is the end of the matter unless the respondents amend the Statement of Claim. The Statement of Claim does not disclose a cause of action in respect of damages. I would strike out this cause of action.

The grounds of appeal urged by counsel for the appellants are based on other parties who should have been joined in the action. In this regard I agree with the submission made by Mr Reeves that this is no ground for applying for the Statement of Claim to be struck out under O 8, r 27 or O 12, r 40 of the National Court Rules. Whether any party can be joined is a matter which is open and those parties including the appellants may do so under O 5 of the National Court Rules.

The end result of my decision is that the appeal would be allowed in respect of the causes of action which I have struck out and I would dismiss the appeal in relation to causes of action in claims (iv) to (vi) of the Statement of Claim.

SC APPEAL NO 19 OF 1991

SC APPEAL NO 37 OF 1991

SC APPEAL NO 60 OF 1991

The issues raised by the three appeals can be dealt with together. Initially, the subject matter of these appeals were raised in a notice of motion by the first, second and third appellants which was filed on 28 February 1991. The notice of motion sought the following orders:

1.       That this Court has no jurisdiction to entertain the matter of the interpretation of s 7 of the Mining Act (Ch No 195) as being unconstitutional.

2.       That consequently, having no such power to rule on the constitutionality of the said section as in (1) above, this Court has no competence to make a reference thereof to the Supreme Court.

The trial judge in considering the notice of motion stated:

"In relation to the orders being sought by the notice of motion I agree that this Court has no jurisdiction to interpret s 7 of the Mining Act as being inconsistent with s 53 of the Constitution. That jurisdiction belongs to the Supreme Court."

This conclusion of law has not been questioned in any of the appeals. Counsel for the first, second and third appellants proceeded in this appeal on the assumption that this is a correct conclusion in law. The Supreme Court has exclusive jurisdiction as to any question relating to the interpretation or application of a provision of a constitutional law under s 18(1) of the Constitution. However, this provision is qualified by the words "Subject to this Constitution". There is a well established line of authorities which has interpreted these words to mean that where the Constitution gives jurisdiction to the National Court to apply provisions of the Constitution, that the National Court can interpret and apply those provisions in a particular case. See The State v Kwambol Embogol (Unreported judgment of the National Court, dated 7 April 1977, No N 91), The State v Peter Painke (No 2) [1977] PNGLR 141, re s 42 of the Constitution and Jacob Hendrich Prai [1979] PNGLR 42 and SCR No 5 of 1985; re Raz v Matane [1985] PNGLR 329. Section 53 of the Constitution confers a right within the meaning of the word "right" in s 57 of the Constitution. This provision gives concurrent jurisdiction to both the Supreme Court and the National Court. I have no doubt in concluding that the power given to the National Court to protect and enforce these rights necessarily includes the right to interpret and apply those provisions. I note that under s 57, subsection (3), the National Court has jurisdiction to:

"... make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force)."

In this case, there is an action for injunction on foot, it is a remedial order protecting the rights of the respondents guaranteed under s 53 of the Constitution. An action for an injunction is capable of coming within the ambit of s 57 of the Constitution. The National Court can interpret and apply s 53 of the Constitution in the context of this cause of action.

The threshold question which has been raised by these appeals relating to the question of the reference, is that the trial judge erred in law in making the reference to the Supreme Court. The appellants have submitted that the questions which have been referred in the reference have not arisen before the National Court. These appeals raise the issue of when "any question relating to the interpretation or application of any provision of a constitutional law arises in any court ... ." This is already the subject of the decisions of this Court. SC Reference No 2 of 1981 [1982] PNGLR 150, SC Reference No 3 of 1982 [1982] PNGLR 405, SC Ref No 5 of 1982 [1982] PNGLR 379 and SC Reference No 5 of 1985 [1985] PNGLR 329. I have expressed my views on this matter in these decisions and I am not convinced that I should depart from those authorities. In SC Reference No 5 of 1985 at page 340 to 341 I said:

"A question of interpretation or application can only arise where there is an issue as to the interpretation or application of a constitutional law. Where there is no such issue or question, there can be no question relating to the interpretation or application of a constitutional law. Let me explain. Parties in a case may assume a particular interpretation or applicability of a constitutional law in a case and the matter is not raised as an issue or raised as a question to be decided by the court.

Where, however, there is an issue and therefore the court must decide the issue, a question relating to the interpretation or application of a constitutional law arises." (emphasis added)

The constitutional issue, that is to say, the interpretation and application of a constitutional law, must arise and the court must be asked to determine the issue. A constitutional issue can arise in this sense in one of two ways.

The first is that there must be a set of circumstances which gives rise to a constitutional issue. That is to say, there must be findings of facts which give rise to this issue. This, of course, is the general rule applicable to any issue which may arise in a proceeding. Whether a constitutional issue arises depends on the findings of fact. One set of findings of fact may give rise to the issue and on the other hand, another finding of facts may not give rise to the constitutional issue. All the Supreme Court cases which I have referred to on this issue make this point. It follows from this reasoning that the court must deal with the facts in order to determine whether or not the constitutional issue may arise for consideration. If this is not done, then the constitutional law issue is raised prematurely. I applied this same reasoning in the recent case SC Reference No 2 of 1990 (Unreported judgment of the Supreme Court, dated 5 July 1991, SC 407). That was a case in which the Chief Collector of Taxes commenced actions by way of writ of summons suing various defendants who had failed to comply with certain provisions of the Income Tax Act. The majority in that case found that the trial judge proceeded to hear one of these matters but at the hearing the Chief Collector of Taxes made an application to enter judgment in default, in that the defendant failed to file a notice of intention to defend and failed to file a defence. The trial judge stayed the proceedings at this point and referred certain questions to the Supreme Court. One of the questions referred was:

"Is s 333 of the Act unconstitutional as being inconsistent with the s 37(4)(a) constitutional rights of "a person charged with an offence"?"

In applying the principles I said at p 26:

"As I have stated previously in relation to Question 1, the trial judge had not reached this point of the trial in which he has been called upon to rule on whether there is any evidence to constitute the elements of the claim, nor has he reached the point where he had to consider whether the Chief Collector had adduced sufficient evidence to find the defendants guilty of the offence. Strictly speaking, this question has again been referred prematurely and at this stage is a hypothetical question. The trial judge must proceed with the trial until it reaches the stage of the application of s 333 to the facts of the case. This section can only arise at a point after the plaintiff has closed its case. The plaintiff has not yet been called upon to call evidence. We do not know if he will call evidence or simply rely on the averments. I have already dealt with the issue of when a constitutional issue arises in a s 18 reference under Question 1."

Secondly, a constitutional issue may not necessarily be raised by the facts but may be raised by application of another law. For example, a statute may be interpreted in such a way that it may or may not give rise to a constitutional issue. In SC Reference No 3 of 1989; Re Forestry (Private Dealings) Act [1990] PNGLR 222 (a s 19 reference), certain questions were referred with regard to the provisions of the Forestry (Private Dealings) Act (Ch No 217) and the application of s 53 of the Constitution. In dealing with the provisions of the Forestry (Private Dealings) Act, the court said:

"It was suggested in argument that an agent could act against the interests of the owners of the timber by virtue of s 7 subs 5 and 6 of the Act. That is to say, he could deliberately act against the instructions or interests of the owners or deliberately exclude any person or groups of persons in an agreement of sale of timber. In our view, this is an erroneous interpretation of these provisions and it is a construction against the interests of the owners of the timber. We do not think that it was the intention of the Parliament to enable an agent to dispossess owners of timber in this way. This is a view held conveniently to bring in the constitutional argument under s 53 of the Constitution. We will refer to this provision later on in our judgment...."

The court dealt with other provisions of the Act and then continued:

"It follows from our reasoning that the provisions of the Forestry (Private Dealings) Act does not deal with compulsory acquisition or possession of any property. Section 53 of the Constitution has no relevance and application to this Act. There are three main components to s 53:

1.       It deals with compulsory acquisition of property, interest or right over property in accordance with an Organic Law or an Act of Parliament.

2.       Such acquisition must comply with s 53(a) and (b).

3.       Just compensation must be made on just terms by the expropriating authority.

As to the first matter, Mr Justice Miles in PNG Ready Mixed Concrete Pty Ltd v The State of Papua New Guinea and Others [1981] PNGLR 396 at 409 said:

'The key word is "compulsorily" which I think implies the exercise of some power conferred by statute on the State or an instrumentality of the State.'

As we have stated, the Forestry (Private Dealings) Act did not deal with compulsory acquisition of any property, interest or right of a property. It simply provides for a procedure by which the customary owners of timber may be able to deal with other persons for purposes of selling the timber. This is a private matter and they may choose to enter into an agreement to sell timber at their own choice.

As to the second matter, it could not be argued that the Forestry (Private Dealings) Act authorises compulsory acquisition which is required for either a public purpose or for reason which is reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind.

As to the third matter, it is even quite inappropriate to consider that an agent appointed under the Forestry (Private Dealings) Act is an expropriating authority for the purposes of just compensation."

Although this was a reference under s 19, it is clear that interpretation or application of the constitutional issue could only arise if the Forestry (Private Dealings) Act was interpreted in such a way to deal with issues the subject of s 53 of the Constitution. We have not seen many cases referred in this context.

In this case, the parties fully pleaded the issues in the case. In pars 7(h) and (i), the respondents have pleaded constitutional issues raised by s 53 of the Constitution. In any civil proceedings, the pleadings simply raise the issues that will be argued during the trial. As in any civil trial, the respondents in this case had to go to trial to prove their case and then argue points of law raised by the pleadings. The proceedings in this case have not yet reached this point. Before the matter proceeded to trial, certain interlocutory applications were made by the appellants. The significance of this as far as the constitutional issue is concerned, is the notice of motion filed 28 February 1991 in which the first, second and third appellants raised:

1.       The jurisdiction of the National Court to entertain the matter of interpretation of s 7 of the Mining Act as being unconstitutional, and

2.       Consequently that the National Court had no power or competence to make a reference to the Supreme Court in those circumstances.

As to the first order sought, the constitutional issue raised was whether the National Court has power to apply the provisions of s 53 to various provisions of the Mining Act. That question was never referred by the trial judge. In fact, he determined the issue by concluding that the National Court had no power to apply the provisions of s 53 of the Constitution. I have already ruled that his Honour erred in law in this regard. In my view, the order sought did not raise the issue of the merits relating to the application of s 53 to the provisions of the Mining Act.

As to the second order sought, this raises the proper interpretation and application of s 18 of the Constitution. This provision has already been interpreted and applied by numerous Supreme Court decisions and the trial judge was bound by those decisions. In my view, the second order sought does not raise the application of s 53 to the provisions of the Mining Act.

The only other relevant proceeding was the notice of motion by the appellants to strike out the Statement of Claim for not disclosing a reasonable cause of action. I have already dealt with this issue and it is clear from my reasons that this application was not concerned with constitutional points. The only issue which could have arisen in the context of this application was whether s 11 of the Constitution constitutes a form of action in law. In my view, that would have been the only constitutional issue raised by this motion. This question has not been the subject of the reference in this case.

I have reached the conclusion on the basis of the reasons stated above, that a constitutional issue has not arisen for decision by the National Court under s 18(2) of the Constitution and consequently the reference has been made prematurely.

It is clear from the facts of this case that the trial judge had not yet proceeded to a trial in order to determine the facts in the case. It is necessary for the trial judge in this case to proceed to that stage of the trial and make findings on the facts and if upon making those findings, the facts raise the constitutional issue, then that is the point at which the constitutional issue will arise.

I order that the Reference in this matter be dismissed and the case remitted back to the National Court to try the cause of action relating to declaratory orders and application for an injunction.

Lawyer for the appellants:

(SCA 19 & 36 of 1991): State Solicitor

(SCA 32 & 60 of 1991): Gadens Ridgeway

Lawyer for the respondents:

(SCA 19 & 36 of 1991): Warner Shand

(SCA 32 & 60 of 1991): State Solicitor