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Tribune Mount Kare Gold Ltd (formerly known as New Britain Lime & Cement Ltd) v Garry [2022] PGNC 174; N9601 (5 May 2022)

N9601

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 21 OF 2019

BETWEEN:
TRIBUNE MOUNT KARE GOLD LIMITED formerly known as NEW BRITAIN LIME & CEMENT LIMITED
Appellant

AND:
JERRY GARRY in his capacity as the Managing Director of the Mineral Resources Authority
First Respondent

AND:
STANLEY NEKITEL as the Registrar of Tenements
Second Respondent

AND:
GLOBAL MINING GROUP LIMITED (GMG)
Third Respondent

Waigani: Dingake J
2022: 10, 17, 21 & 25 March, 5^th May

INJUNCTION – application by appellant seeking Orders in the nature of an injunction that until the hearing and determination of this Appeal, the Mineral Resources Authority, its officers, servants and agents be restrained from taking any action intended to or capable of advancing towards the determination of the application by the Third Respondent for ELA 2429 – whether the application seeking injunction is competent – applicant has not named the party against which it seeks to obtain injunctive orders – application is without merit and refused

Cases Cited:

Craftworks Niugini Pty Ltd v Allan Mott (1997) SC525
Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853

Counsel:

Mr. Simon Nutley & Ms. T Kiaje, for the Appellants
Ms. Wilma Mai, for the First & Second Appellants
Ms. Ethel Heagi, for the Third Respondent

05^th May, 2022

1. DINGAKE J: This is an application, filed by the Appellant, filed pursuant to Order 18 Rule 12(2) of the National Court Rules.
2. The Appellant, on the main, according to its Notice of Motion filed on the 31^st of March 2022, seeks Orders in the nature of an injunction that until the hearing and determination of this Appeal, the Mineral Resources Authority, its officers, servants and agents be restrained from taking any action intended to or capable of advancing towards the determination of the application by the Third Respondent for ELA 2429, appearing in the Registrar of Mineral Tenements maintained by the Second Respondent within the Mineral Resources Authority as that made by Global Mining Group (GMG), and filed on the 18^th December, 2015, but falsely recorded as being purportedly filed on the 14^th of January, 2016.
3. The relevant background facts are that the Appellant and the Third Respondent have lodged an application for an Exploration License, described as ELA 2429, over the subject land of EL 1093.
4. A dispute has arisen over who must be reflected or recorded as having applied ahead of the other in the register of tenements, the Appellant contending that as it applied ahead of the Third Respondent it must appear first.
5. The Register of tenements records the Third Respondent’s Application as having been made ahead of that of the Appellant on the 14^th of January, 2016, which the Appellant avers is false.
6. It is common cause that the Appellant lodged its Application for an Exploration of License over the subject land of EL 1093, on the 25^th of January, 2016.
7. The reason why the date when an application for an Exploration License is critical is because in terms of the Mining Act 1992, an application for Exploration License registered first, in time, is considered first for the issue of a license and in priority to other applications. This also explains the injunction sought by the Appellant, which maintains that it applied ahead of the Third Respondent for the Exploration License.
8. It is trite learning, that an injunction is an equitable remedy that is granted at the discretion of the Court (Craftworks Niugini Pty Ltd v Allan Mott (1997) SC 525; Chief Collector of Taxes v Bougainville Copper Limited (2007) SC 853).
9. In this case, it seems to me that the application for the relief sought must fail, because there is no serious question to be tried or determined on a final hearing because the entity against which the relief is sought, Mineral Resources Authority (MRS) is not cited as party.
10. In my mind it would not be equitable or appropriate to grant a relief against an entity that is not a party to the proceedings. This ground on its own is sufficient to justify the refusal of the relief sought.
11. This Court, cannot in good conscience, decide the fate of a party who is not in Court, to say its side of the story. It would not be fair to do so.
12. Section 4 of the Mineral Resources Authority Act establishes the Mineral Resources Authority (MRA) as a body corporate, which may sue or be sued in its corporate name and style. Put differently the conduct or action sought to be restrained, in terms of the Notice of Motion, is principally that of MRA, and yet it is not a party to the application.
13. Additionally, I do not think that in circumstances as the present, where a party whose conduct or action is sought to be restrained is not cited and therefore denied the opportunity to defend itself or present its side of the story, the balance of convenience would favour the granting of an interlocutory relief against such a party.
14. Quite apart from the reasons mentioned above one other matter that militates against the granting of the relief sought is that the events that birthed this application took place in 2015/2016; and the Appellant lodged its appeal against the Managing Director’s decision made on the 14^th of March 2016, almost three (3) years later on the 27^th of March, 2019, and filed this current application on the 31^st of March, 2022.
15. I do not think the interests of justice under the circumstances described above would be served by granting the interdict, which would have the effect of delaying the processing and eventual grant of the Exploration License even further.
16. In all the circumstances of this case, this application is without merit, and it is refused.
17. The formal Orders of the Court are as follows:
    • (a) The application is dismissed.
    • (b) The Appellant shall pay the Defendants costs, such costs to be agreed or taxed.

_______________________________________________________________
Allens: Lawyers for the Appellant
Ashurst Lawyers: Lawyers for the Respondent