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Amadio Pty Ltd v The State [1993] PGNC 9; N1181 (28 October 1993)

Unreported National Court Decisions

N1181

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 279 OF 1991
AMADIO PTY LTD
V
THE STATE
AND
PATTERSON LOWA
AND
ISAAC MOKE
AND
MOUNT KARE HOLDINGS PTY LIMITED

Mount Hagen

Woods J
15 October 1993
28 October 1993

PRACTICE AND PROCEDURE - Motion to dismiss proceedings for Judicial Review - delay - matter sought to be reviewed has now expired - courts discretion to dismiss.

Counsel

E Anderson for the Applicant and 4th Defendant

G Sheppard and M Wilson for the Respondent and Plaintiff

28 OCTOBER 1993

INTERLOCUTORY JUDGEMENT

WOODS J: This is an application by the 4th Defendant that the proceedings be dismissed. The proceedings are an Application for Judicial Review of the action of the Minister for Minerals and Energy following a hearing by the Mining Warden to recommend the extension of the term of a Prospecting Authority 591 to the fourth Defendant in September 1991. Leave for Judicial Review was granted by this Court in June 1992 although concern was expressed by the Court about the delay in seeking the Leave to review. And I quote what this Court said in June 1992 “I feel that there should have been a greater effort to have the application heard in January or February”.

One of the grounds of this application to dismiss the proceedings is because of delay so this is why the reference the Court made to delay in June last year may be of relevance. Another submission to the court is that the court should exercise its inherent power to dismiss the proceedings for want of prosecution. Delay and want of prosecution go hand in hand here suggests the Fourth Defendant because while the Plaintiff has been slow to act and failed to bring the matter on expeditiously the term of the Prospecting Authority has expired, in September this year, and the matter of a new Prospecting Authority is now with the Mining Warden.

Another matter raised by the applicant is that because of the length of time that has elapsed since the time when the action complained of took place many of the persons who were involved at the time of the grant of the Authority and who would be needed to assist the Court on any Review have left and are no longer available to attend a hearing and one important witness has died.

The Plaintiff denies there has been any undue delay. It says that immediately after the Leave was granted the Fourth Defendant appealed to the Supreme Court and the matter was therefore before the Supreme Court until March this year. It says that immediately the Supreme Court gave its decision it took steps to have the hearing of the Review set down by seeking directions and discovery.

The Plaintiff says that even though the Prospecting Authority has now expired the matter of priority is important before the Mining Warden for the grant of a new Authority and if the Plaintiff did succeed it could therefore get priority in the consideration of a new grant, so there is a matter of value at stake.

I go over the main timetable of events in these proceedings.

In July 1991 the Mining Warden held hearings on the land and in Port Moresby for the Grant of the Prospecting authority.

In September the Minister granted the PA for 2 years to the Fourth Defendant.

In December 1991 the Plaintiff filed the Application for leave for Judicial Review. Various affidavit were then filed over the following months.

The hearing for leave was in May 1992 and the Leave was granted in June 1992.

In July there was an Appeal against that ruling to the Supreme Court. That matter was not finally decided by the Supreme Court until March 1993.

Since then there have been proceedings for discovery and Directions.

What concerns me is that we are talking about a right that ran out in September this year, so is therefore finished and yet the Plaintiff wants to turn back the clock and say that it was entitled to get the right over 2 years ago. And if it succeeded then it would have priority in seeking an extension of the Authority from now.

However what does that priority give. The Mining Warden has to hold a hearing if there are objections to the grant of the extension or to the party who has lodged the prior application. So presumably at that hearing he has to assess the worth of the prior claim and the merit of the objections and thus the worth of any competing claims. One difficulty the Mining Warden would have if the Plaintiff after a successful Review was able to gain priority is that the Plaintiff would still have no record of compliance with the terms of an authority, he would have no history of being a suitable applicant, so in the end he would have no better grounding credentials or history than any competing applicants. And the Mining Warden only submits a report and presumably a recommendation to the Mining Advisory Board and that Board then makes its own recommendation to the Minister.

Isn’t time we accepted that the present Authority has expired and we looked ahead and allowed the Mining Warden and Mining Advisory Board to make its own recommendations on the basis of the merits of the different parties before it and even though one party may have a priority in accordance with s. 100 of the Mining Act, at the end of the day the Board will recommend the best applicant for the interests of the Nation. I note that at this stage the party who held the Prospecting Authority that expired last month has not sought an extension so therefore is not an applicant with any priority.

I cannot help feeling that there has been too much delay in getting to a Review. I expressed concern at the initial delay between September and December in 1991. But now since March this year there should have been a more serious attempt to get together with all the parties and to get the hearing on before the term of the Authority ran out in September.

To delay the Grant of any new Authority because a party wants to go back over two years and rewrite something that has now expired is a negative approach to the development of the resources and assets of this country. This Court has a duty to not hidebound itself with technical forms and precedents which may be a bar to progress and development but rather to trust the relevant authorities to make in the terms of the Constitution wise decisions for the use to be made of natural resources.

I am therefore satisfied that there has been an unnecessary delay since March this year and also I am satisfied that parties may have difficulty with the departure of witnesses over time so the Court may not be able to properly do a review. Accordingly I am satisfied the Court has a duty to act in the best interests of the Nation and to have faith in the relevant instrumentalities and bodies set up under the Mining Act and to exercise its discretion to now dismiss these proceedings.

Lawyer for the Applicant/4th Defendant: Gadens Ridgeway

Lawyer for the Respondent/Plaintiff: Warner Shand