N8429

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 05 OF 2020

BETWEEN
BARRICK (NIUGINI) LIMITED
Plaintiff

AND
STANLEY NEKITAL in his capacity as the Registrar of Tenements
First Defendant

AND
JERRY GARRY as Chairman and representing all other members of the MINING ADVISORY COUNCIL
Second Defendant

AND
MINERAL RESOURCES AUTHORITY
Third Defendant

AND
HON. JOHNSON TUKE, MP as MINISTER FOR MINING
Fourth Defendant

AND
HON. JAMES MARAPE, MP as Chairman and representing all other members of the NATIONAL EXECUTIVE COUNCIL
Fifth Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

AND
MINERAL RESOURCES ENGA LIMITED
Seventh Defendant

AND
HON. DAVIS STEVEN, MP as Attorney General and nominal defendant on behalf of the Head of State
Eighth Defendant

Waigani:  Kandakasi DCJ
2020:  17th June
2020:	10th July

PRACTICE & PROCEDURE – Application for discovery of documents -National Executive Council (NEC) documents – whether discoverable – general principles on discovery – exceptions – present case – some of the documents sought to be discovered statutorily prohibited from discovery - discovery order for documents not prohibited and application declined for those prohibited by statute – Constitution s. 86 (4) , Mining Act 1992, s.163.

Facts

At the expiry of a mining lease and mining development agreement between the Plaintiff and the State, the National Executive Council (NEC) decided not to renew the lease.  Under Court orders the NEC disclosed through affidavits filed in Court a copy of the decision with the reasons for the decision. Other affidavit evidence filed for the Defendants spoke about the existence of certain of the documents but claimed they were prohibited by certain provisions of the Mining Act 1992 from being disclosed and were not annexed to the affidavits.  The Plaintiff applied for a discovery of the documents which formed the basis for the NEC’s decision and the basis for the NEC’s advice to the Head of State, draft submissions and other documents constituting internal communication. The NEC and the other defendants claimed the documents the Plaintiff sought to discover were prohibited from discovery by s. 86 (4) of the Constitution and s. 163 of the Mining Act 1992 and as such they were not discoverable 

Held:

1.	It is trite law, generally speaking that, all documents that are relevant to any proceeding in any Court are discoverable subject to a few known exceptions.

2.	Where statutory law creates confidentiality in specified communication such communications are not open for discovery except only within expressed exception, if any.

3.	Section 86(4) of the Constitution prohibits the discovery of documents constituting advice to the Head of State.  Consequently, the NEC’s advice to the Head of State in this case was not discoverable.

4.	Parliament having considered all things decided by Section 163 of the Mining Act 1992 to treat all ongoing and how the mining industry works through the relevant instrumentalities of the State a confidential process and as such all documents in the process are not discoverable unless they come under the exceptions specified.

5.	The Plaintiff has failed to make a case for discovery within the provisions of s. 163 of the Mining Act 1992 and was therefore not entitled to the discoveries sought. 

Cases Cited:
Papua New Guinea Cases
  
Takoa Pastoral Co Ltd v. Dr Puka Temu, Minister for Lands (2009) N3739
Public Officers Superannuation Fund Board v. Imanakuan (2001) SC 677
Ace Guard Dog Security Services Limited v. Yama Security Services Ltd & Ors (2003) N2459
Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694
Sir Arnold Amet v. Peter Charles Yama (2010) SC1064.
HobaiHaro v. The State (2019) SC1841.
Mission Asiki v. Manasupe Zurenuoc & Ors (2005) SC797
Leto Darius v. The Commissioner of Police (2001) N2046
National Executive Council v Public Employees Association of Papua New Guinea [1993] PNGLR 264
Minister for Lands v. William Robert Frame [1980] PNGLR 433
Dr Allan Marat v. Hanjung Power (2014) SC1357
Francis Kunai v PNG Forest Authority (2018) N7570

Overseas Cases

R (Bancoult) v. Secretary for State for Foreign and Commonwealth Office (2001) QB 1067
R (Quark Fishing Limited) v. Secretary for State, Foreign Affairs, Commonwealth Affairs [2002] EWCA Civil 1409
R v. Barnsley Metropolitan Borough Council Ex Parte Hook [1976] 1WLR 1056 
Tweed v. Parades Commission for Northern Ireland [2007] 1AC 650
Barton v.Csidei [1979] 1 NSWR 524; (1979) 4ACLR 200       
Sankey v. Whitlam [1978] 142 CLR 1 
Robinson v. South Australia [1931] ALLER 333
Rogers v. Home Security [1973] AC 388

Counsel:	

Mr. D. Wood, A. Edo and L. Evore, for the Plaintiff
Mr. N. Saroa, for the First, Third and Fourth Defendants
Mr. L. Kandi, for the Fifth Defendant
Mr. T. Tanuvasa and Ms I. Mugigia, for the Second, Sixth and Eight Defendants
Mr. G. Geroro, for the Seventh Defendant

10th July, 2020

1.	KANDAKASI DCJ:	By notice of motion filed on 10th June 2020, Barrick (Niugini) Limited (Barrick) is amongst other reliefs sought, applying for discovery of certain documents including drafts of documents forming the basis for the National Executive Council (NEC) decision the subject of this proceeding and the NEC’s advice to the Head of State. The defendants vehemently oppose the application, claiming amongst others that the documents are statutorily precluded from discovery, by s. 86 (4) of the Constitution and s.163 of the Mining Act 1992 (the Act). 

2.	The motion in relevant parts reads:

“Pursuant to Order 16 Rule 13(5)(4) of the National Court Rules, the defendants shall make available to the Plaintiff by 19th June 2020 the records and other relevant documents in their possession, custody or power (including copies thereof) relating other decisions under review in this proceeding, namely; -

(a)	the report in writing made by the Registrar to the Mining Advisory Council (MAC) pursuant to Section 103((b)(iii) of the Mining Act 1992 (the Act);

(b)	Each report provided to the MAC pursuant to Section 104 of the Act;

(c)	The written report prepared by the Warden pursuant to Section 109 of the Act in respect of the extension application;

(d)	All reports submitted to the MAC pursuant to Section 110 of the Act, including any report submitted by a Provincial Government under Section 110(1);

(e)	The recommendation, and draft versions of the Recommendation, made by the MAC pursuant to Section 110(4)(b) of the Act;

(f)	The minutes of meetings of the Mineral Resources Authority (MRA) in respect of the extension application;

(g)	The minutes of meetings of MAC in respect of the extension application;

(h)	Any assessments or reports made by or on behalf of the MRA (or any officer of MRA) in respect of the extension application;

(i)	Submissions to the National Executive Council (NAC) in respect of the extension application;

(j)	All draft versions of the decisions the subject of judicial review in this proceeding;

(k)	Any advice provided to the Governor- General in respect of the extension application (the NEC advice);

(l)	All draft versions of the NEC advice; and

(m)	All documents, reports or other materials referred to in, or otherwise relied upon for the purposes of, the assessments, reports and Recommendations referred to above.”

3.	I think it is important to note the kind of documents that are sought to be disclosed or discovered.  They include:

(a)	the reports in writing made by the Mining Registrar to the Mining Advisory Council pursuant to section 103 of the Mining Act 1992 which report was provided to MAC pursuant to section 104 of the Act;

(b)	the written report prepared by the warden pursuant to section 109 of the Act in respect of extension application;

(c)	the whole report submitted to the MAC pursuant to section 110 of the Act, including any report submitted by a provincial government under section 110(1);

(d)	the recommendation and draft versions of the recommendation made by the MAC pursuant to section 110(4)(b) of the Act;

(e)	the minutes of meetings of the Mineral Resources Authority (MRA), in respect of the extension application and minutes of meeting of MAC in respect of the extension application;

(f)	any assessment or reports by or on behalf of MRA or any officer of MRA in respect of the extension application;

(g)	submissions to the National Executive Council or NEC in respect of the extension application or draft versions of the decisions, the subject of this proceeding; and

(h)	the advice provided to the Governor General in respect of the extension application, NEC advice, all draft versions of the NEC advice and all documents, reports or materials referred to in or otherwise relied upon for the purposes of assessment, reports sent and recommendation referred to above.  

Issue for Determination

4.	The main issue for the Court to determine is whether the documents Barrick seeks to discover are open for discovery or are prohibited from such discovery.

Considerations and reasons for decision

5.	It is trite law generally speaking that, all documents that are relevant to any proceeding in any Court are discoverable subject to a few known exceptions. In Takoa Pastoral Co Ltd v. Dr Puka Temu, Minister for Lands (2009) N3739, speaking in the context of Order 9, r 5 of the National Court Rules I said:

“It follows therefore that, a party who is in possession of any document that is relevant and relating to any proceedings must disclose them unless they are covered by privilege. Unfortunately, most litigants do not readily disclose documents in their possession but only for those that are in their favour.  These rules and the case law built around them are there to compel the parties to give discovery of all relevant documents”. 

6.	Then based on the leading Supreme Court decision in Public Officers Superannuation Fund Board v. Imanakuan, (2001) SC 677 and other cases such as the decisions in Aisip Duwa v. Ronald Moyo Senge [1995] PNGLR 140 and 
Ace Guard Dog Security Services Limited v. Yama Security Services Ltd & Ors (2003) N2459, I observed:

“As these authorities make it clear, the purpose of requiring and giving discovery is not only to enable a party in any proceedings before the Court to obtain facts and information about the other’s case and work out both its own and the other’s case’s strength and weakness but also to help identify the relevant issues for trial and or enable a fair and reasonable out of Court settlement where possible.  In that way, procedural equality and fairness is allowed, the Court’s limited time is spared and the parties are assisted to find a solution to their dispute promptly and save substantial costs.  In view of that, discovery is therefore:
‘… not a matter of bargaining or compromising or demanding an exact list of the documents sought.  It is the obligation on a party unless privileged, to supply a list of all the documents, which might have any bearing on the subject matter in dispute.’”  

7.	Appreciating that purpose, I went on to state at paragraph 7 of the judgment:

“… it would be incumbent on the parties to voluntarily disclose all relevant and necessary documents in their possession, without waiting for a request from the other side or an order of the Court.   Where that does not take place and a request for discovery is necessary in the form of a notice to give discovery and such a notice is served, the party on whom the notice is served must discharge the obligation to give discovery promptly. Where a party fails to give discovery in breach of the obligation to do so, that party stands the risk of the Court in making the appropriate order at that party’s costs”.

8.	I went on to say that the process of discovery is “necessary in our jurisdiction because as the Supreme Court said in Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694:

“… our system of justice is not one of surprises but one of fair play. Reasonable opportunity must be given to each other by the parties to an action to ascertain fully the nature of the other’s case so that, if need be, a defendant can make a payment into Court.” 

9.	Given that purpose, I noted that giving of discovery is a very important part of our judicial process or our system of justice.  That importance, I noted:

“is emphasized in about three ways.  First, there is an automatic right and or obligation to give general discovery under O.9, rr. 1 and 2.  All that is required under these rules is for one of the parties to file and serve a notice for discovery on the other.  When that happens, there is an immediate obligation on the party served with the notice of discovery to give discovery.  This leads to the second way, which is, once a party serves on the other a notice for discovery or where an order for discovery is made under r. 9, and the party served with the notice or order to give discovery fails to give discovery, judgment or orders can be made against the defaulting party under r 25.  The final way is in the attitude of the courts with their almost a ready grant of orders against defaulting parties as demonstrated by many decisions of the Supreme and National Courts… particularly in cases where [there are] no reasonable excuse for a failure to give discovery.”

10.	I went on further to note that, discovery is thus readily available in proceedings commenced by writ of summons.  However, the position was not clear in relation to proceedings commenced by originating summons and other modes of commencement of proceedings. Notwithstanding that, I stated:

“…reading the provisions of r. 5 makes it clear that, the Court can make orders for general discovery at any stage of the proceedings.   The same language used in r. 5 is used in r. 7 where the Court is empowered to make orders for specific discovery where the existence of a document is disclosed either in the pleadings or affidavits or other documents filed in Court by a party.  The ADR Listings Rules, r 7 (4) (k) lists the need for any discovery as one of the issues the Court must give consideration to when making orders and or giving directions for an orderly and expeditious handling and disposal of a matter.  There is nothing restricting the application of these rules but it is clear that, they do in fact apply to all proceedings.  Accordingly, I am of the view that, although the automatic discovery procedures under O.9 rr.1 and 2 may not apply to proceedings that do not require pleadings, the rest of the provisions relating to discovery do applyin all cases before the Court.”

11.	In the case of judicial review proceedings, the relevant provisions of the National Court Rules are Order 16, r. 13 (5) (4).  These provisions read:

“(4)	Availability of decision and reasons for decision together with any other relevant documents or depositions of the tribunal or public authority which made the decision the subject of review.”

12.	In my decision on leave, under the second issue of, who has the duty to produce evidence disclosing the decisions in question with their reasons, I discuss the relevant case law on point.  There, I pointed out that, those in the public decision-making positions have an obligation to give reasons for their decision and cited some of the relevant authorities on point namely: Sir Arnold Amet v. Peter Charles Yama (2010) SC1064, per Salika DCJ (as he then was), Batari & Davani, JJ; Hobai Haro v. The State (2019) SC1841, Manuhu, Kariko and Anis JJ and Mission Asiki v. Manasupe Zurenuoc & Ors (2005) SC797, per Jalina, Cannings &Manuhu JJ.

13.	Following on from the need to provide reasons, I also pointed out that, there is also clear law that, the decision maker must produce the copies of the decision, the subject of a judicial review application.  This requirement has been recently codified in the 2005, amendments to Order 16 of the National Court Rules.  The relevant provision is O.16, r.13 (7) (2).  In that context, I referred to my own decision in Leto Darius v. The Commissioner of Police (2001) N2046.There, I granted leave for judicial review and noted that, there was a lack of a complete provision of the material that was before the decision maker which formed the foundation for his decision.  I then express hope of the defendant providing the copies of the relevant documents and indicated why that was necessary in these terms:

“At the hearing of the review proper, I trust the Commissioner will produce all of the evidence he had before him and provided details as to the matters he took into account before arriving at his decision and show what he took into account and his reflected in his decision. Only upon a consideration of all of the relevant evidence, will the Court carrying out the review, be able to determine whether or not the plaintiff should be granted the other relieves sought.”

14.	Having regard to the law on point, I held in the leave application decision in this case that, there is no doubt that the State Defendants are responsible for the production of relevant decisions with reasons for the decision. Then following that decision, a copy of the relevant NEC decision which also states the reasons for the decision has been disclosed. Following that disclosure, Barrick makes its application for the disclosure of the other documents as noted in paragraph 2 above.

15.	Counsel for Barrick relying on Order 16 r.13(5) and (4), as well as r. 13(7)(4) (i) of the National Court Rules is asking for orders for discovery of the documents outlined.  In support of his client’s application, learned Counsel also drew to the court’s attention the decision in the matter of National Executive Council v. Public Employees Association of Papua New Guinea [1993] PNGLR 264.  The publication by Fordham, Judicial Review Handbook 5th Ed, para 10.4, has also been referred to and the relevant parts quoted.  Further, a decision in R (Bancoult) v. Secretary for State for Foreign and Commonwealth Office (2001) QB 1067 at page or paragraph 63 per Laws LJ a decision in R (Quark Fishing Limited) v. Secretary for State, Foreign Affairs, Commonwealth Affairs [2002] EWCA Civil 1409 at 50, per Laws LJ have been quoted.  

16.	Barrick’s learned Counsel further drew my attention to a decision in R v Barnsley Metropolitan Borough Council Ex Parte Hook [1976] 1WLR 1056 at 1058C to D.  Additionally, a decision in Tweed v. Parades Commission for Northern Ireland [2007] 1AC 650 and on in Barton v. Csidei [1979] 1 NSWR 524 at 535; (1979) 4ACLR at 200 were also referred to. Finally, learned Counsel for Barrick referred to a decision in Sankey v. Whitlam [1978] 142 CLR 1 at 42, and a decision inRobinson v South Australia [1931] ALLER333.  

17.	Counsel for Barrick further submits that the documents his client is seeking to discover are discoverable.  He goes on to argue that, if privilege or confidentiality is being claimed, there has to be an affidavit from a responsible officer pointing out or making out a case for the claimed privilege or confidentiality as the case might be for non-disclosure or that there is a valid argument against the application for disclosure.

18.	On the other hand, led by Counsel for the fifth defendant with able support from the other defendants, drew the court’s attention to section 86 (4) of the Constitution, as well as section 166(3) of the Mining Act.  Learned Counsel, Mr Tanuvasa, for the parties he represents, points to the various provisions in the Mining Act as I alluded to earlier and argues that these documents are protected, they are not discoverable and so the relief sought should not be granted.

19.	Counsel for the Defendants make the point that, when the court decided to grant leave, it was on a narrow basis.  That narrow basis is that, the plaintiff was able to make out a case of the defendants not providing it with a copy of the decision and the reasons for the decision.  They also emphasised the point that the Barrick has failed to establish any breach of any of the relevant and applicable processes prescribed by statute, in particular the relevant provisions of the Mining Act, the relevant provisions of which were quoted in learned Counsel, Mr Tanuvasa’s submission.  Ultimately, they argue that the basis for seeking the discoveries have not been made out and therefore the application should be declined.

20.	I start with a look at the general position on discovery.  As I said already, the law generally allows for and speaks in favour of discovery but that is with a couple of well-known exceptions.  One of that is confidentiality which ties in with privilege as well.  So, if the document is privileged as in the case of lawyer and client or doctor and client, or marital relationships and communication within marital relationships, they come within well-known privilege and therefore cannot be discovered.  

21.	Then there is the other element of confidentiality.  Confidentiality is also an interesting exception to the general rule. But the point that needs to be made is that the Courts have had taken a pragmatic approach.  There seems to be no consistency. Under the confidentiality argument or exception, there is the notion of public interest or for the protection of the public.  Under this exception, a court would normally exclude certain evidence or documents from being given in evidence or disclosed in court if the disclosure will not be in the public interest and that it would be injurious to that interest.  The rationale for this exception is that, in some cases, the possibility of injury to the public caused by a disclosure or production of a document in court will outweigh the competing interest that the proper administration of justice requires that the court should have the fullest access to all relevant material.

22.	A case on point in my view is the decision in Rogers v. Home Security [1973] AC 388.  That was a case of an appeal arising out of an information for criminal libel brought by Rogers against the assistant Chief Constable of Sussex. The alleged libel was contained in a letter sent to the Gaming Board giving the Board information about Rogers which the Board sought in order to consider his application for a licence under the Gaming Act. Rogers unsuccessfully sought by subpoena the production of the offending letter (a copy of which he had managed to procure) and certain other documents in the custody of the Board. The House of Lords refused to direct the production of the documents.  In so doing their Lordships observed that the nature of the enquiries the Board was obliged by statute to make, and the probable ultimate source of the information which it would be expected to receive, were such that, the disclosure of documents such as the documents in question would gravely hinder its effective performance of the statutory function.

23.	Sometimes Parliament provides for confidentiality in respect of certain communication through legislation.  As noted, common law courts are divided on whether to allow or not to allow discovery in such a situation.  In this divided legal landscape, it is clear that, in each case, a party seeking discovery must make out a case for discovery, whilst the party that is opposed to discovery needs to rebut the case made for discovery.

24.	In the present case, Barrick argues that, all documents it is seeking to discover or to be disclosed are not privileged from production.  Learned Counsel for Barrick, Mr Wood, relying on the decisions I have made reference to earlier argued, as I said, there should be an affidavit claim privileged and the basis for that claim.  There is no affidavit, therefore there should be no protection and disclosure should be given.

25.	On the other hand, Mr Kandi, leading the arguments for the defendants, points to section 86(4) of the Constitution where it stipulates, what advice, if any, was given to the Head of State by the NEC is non-justiciable.  That legal position has been highlighted in a number of cases some of which have been cited in the submissions, parts of which I made mention already and I need not go into any detail. In the context of one of those decisions, the Supreme Court has spoken twice.  The first is the case of Minister for Lands v.William Robert Frame [1980] PNGLR 433,per Kapi DCJ as he then was and later cited with approval by the Supreme Court per Gavara-Nanu J in Dr Allan Marat v. Hanjung Power (2014) SC1357.  These judgments highlight and point to the principle of separation of powers.  The Court’s function it is, to interpret and apply the law passed by Parliament.  It is Parliament’s prerogative to pass laws and the two, Parliament and the Judiciary should be keeping their duties and responsibilities completely separate from each other exercising care not to encroach into the other’s powers and functions in the course of exercising and discharging their respective duties and responsibilities.

26.	In this instance, the issue of statutory prohibition or confidentiality is being raised for the first time at least, before me.  Learned Counsel have not drawn to my attention whether in the overseas cases learned Counsel for Barrick has drawn to my attention to or to a case in the local jurisdiction where a specific legislative prohibition that may have been considered and how a court has been able to negotiate around those prohibitions.  In the present case, as I said, Parliament at the highest by section 86(4) of the Constitution put the non-justiciability concept around advice of the NEC to the Head of State.  Section 86, inclusive of subsection 4 reads:

“86.	Functions, etc.

(1)	The privileges, powers, functions, duties and responsibilities of the Head of State are as prescribed by or under Constitutional Laws and Acts of the Parliament.

(2)	Except as provided by Section 96(2) (terms and conditions of employment), in the exercise and performance of his privileges, powers, functions, duties and responsibilities the Head of State shall act only with, and in accordance with, the advice of the National Executive Council, or of some other body or authority prescribed by a Constitutional Law or an Act of the Parliament for a particular purpose as the body or authority in accordance with whose advice the Head of State is obliged, in a particular case, to act.

(3)	Any instrument made by or in the name of the Head of State shall recite that it is made with, and in accordance with, the advice of the National Executive Council or of any other body or authority in accordance with whose advice the Head of State is obliged, in the particular case, to act, but failure to comply with this subsection does not affect the validity of an instrument.

(4)	The question, what (if any) advice was given to the Head of State, or by whom, is non-justiciable.”
									(Emphasis supplied)

27.	I find this provision wide and it places a blanket prohibition against any judicial consideration, let alone admission in any court proceeding, the documents which constitutes any advice to the Head of State.   In this case, all the documents Barrick is seeking to disclose which concerns the NEC’s advice to the Head of State are caught by section 86 (4) of the Constitution. Consequently, I find all the documents that constitute the NEC’s advice to the Head of State in this case are not open for discovery.

28.	As to the communication to and from the various persons and authorities within the Mining Act, section 163 is critical.  This provision reads:

“163.	Confidentiality.

(1)	Information disclosed under this Act to the Minister, to an employee of the Authority, or to a member of the Council shall not be disclosed to any person who is not an employee of the Authority without the prior written approval of the person who provided that information, except—
(a)	to the extent that disclosure is authorized or required under this Act or any other law; or
(b)	to the extent the person providing the information authorized its disclosure at the time of providing the information; or
(c)	to the extent necessary for the Managing Director to publish statistical information concerning the geology and mineral resources of the State; or
(d)	to the extent necessary for the Managing Director to give advice to the National Executive Council, other Departments and the Central Bank on the confidential basis.

(2)	An employee of the Authority or member of the Council who uses, for the purpose of his personal gain, any information disclosed under this Act that comes to his knowledge in the course of, or by reason of his employment as an employee of the Authority or his membership of the Council, is guilty of an offence.

Penalty:	A fine not exceeding K10,000.00 or imprisonment for a term not exceeding four years, or both.”

29.	The duty was on the applicant to show that none of the documents that are sought to be disclosed are caught by section 163.Alternatively, the applicant had the obligation in my view, to make out a case under the exceptions provided for in the provision itself.  

30.	My respectful view is that, Parliament having considered all things, decided to treat the ongoing and how the mining industry works through the relevant instrumentalities of the State has provided for a processing and more importantly through section 163 of the Mining Act, has given confidentiality to that process. Thus, if there is an exception to that, it is for a party seeking disclosure to make out a case for it.  With respect, as I observed, there is no clarity that the case law learned counsel for Barrick has referred in his submissions were decisions arrived at notwithstanding or in the light of statutory provisions like the one under consideration in this case, existing.  It would appear therefore, unaided as I am, without any details about those cases that they would have been cases out of ordinary settings where there is no specific legislative prohibition according confidentiality.  

31.	The other privileged areas such a lawyer and client relationship and communication in such relationship are not necessarily legislated.  They are accepted as given exceptions to disclosure or discovery.  But when there is a specific legislative provision, then a relevant case on point would be a case that had such a case of statutory prohibition or confidentiality and how the court got around it.  In these circumstances, I am most reluctant to cross over to the legislative arena and try and create a further exception to section 163 of the Mining Act and to the extent that the Head of State is brought into the discussion of section 86(4) of the Constitution.

32.	Also, the important point is that, no case has been made out as was my finding in the decision leading up to the grant of leave that the plaintiff had not established a case of any of the statutory process under the Mining Act being breached.  The effect of this is that, I am not too sure of the purpose for which these disclosures are sought especially when there is no clear establishment of a statutory provision, in the Mining Act being breached and the need to know how that breach occurred.  If at all, the argument is clearly that, when the lease expired at its natural life, the State was entitled to make a decision and that decision was made.  Counsel for the defendants led by the learned Solicitor General’s arguments are that the State is under no obligation to give reasons and one of his colleagues in this case, joined in to say it is like a lease situation. When a landlord decides to terminate a lease, the landlord is not required to give reasons.  Whether that is a correct analogy or not, I am not getting into that space except to say in this case that a decision has been made and that, there is no expressed statutory provision for disclosure of reasons. 

33.	But that view, might go against my finding and decision on the leave application where I just held said, every public authority that is charged with a duty to make a decision is under an obligation to give reasons for its decision. If no reasons are given, then the decision would be deemed to have been arrived at on no proper foundation.  In this case, the NEC decision is there and there is also disclosure of reasons for its decision.  Whether those reasons were correct and are sustainable, are matters between the parties to work out when we come to that on the substantive matter.  But in the light of the specific statutory provisions, I feel my hands are tied.  General propositions of the law in relation to disclosure cannot override statutory provisions unless a case is made out within the ambit of the statutory prohibition for disclosures to be made.  

34.	I had regard to counsel for the plaintiff’s reference to my decision in the matter of Francis Kunai v PNG Forest Authority (2018) N7570 in which I had before me a draft NEC submission.  I must add that, in that case, counsel did not draw to my attention s. 86(4) of the Constitution or any other statutory provision similar to s. 163 of the Mining Act.  So, that decision was arrived at without the assistance of submissions on the application of section 86(4).  

35.	Further, I add, whilst I could appreciate that, if there was no impediment to disclose and the documents were discoverable, I am not too sure about draft documents.  Drafts are what they are and they mean nothing until something is done on the basis of the draft.  In other words, if there is an issue that the draft position was agreed to by everybody, let us say in the dispute, but the final document that turned out departed from it without endorsement and agreement of all the parties, then the relevance of the draft becomes clearer.  But if no case is made out in that way, going into and asking for drafts is I think going a little bit further from what discovery is all about because, at the end of the day, it is the final product, unless there is a serious dispute about arriving at the final product, that matters.  

Decision in short

36.	In short, the application for discovery is declined in respect of all of the documents because they are precluded from discovery by the application of s.86 (4) of the Constitution and s.163 of the Mining Act 1992.  Costs will follow that event.  

________________________________________________________________
Ashurst Lawyers:	Lawyers for the Applicant
Nelson Lawyers:	Lawyers for the First, Third & Fourth Defendant
M.S. Wagambie Lawyers:	Lawyers for the Fifth Defendant
Solicitor General:  	Lawyers for the Second, Sixth & Eight Defendants
Geroro Lawyers:	Lawyers for the Seventh Defendants