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K92 Mining Ltd v Kae [2025] PGNC 206; N11334 (5 June 2025)

N11334

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 26 OF 2024 IECMS

BETWEEN:
K92 MINING LIMITED
Plaintiff

AND:
PHILIP KAE in his capacity as a MINES A INSPECTOR OF MINES
UNDER THE MINING (SAFETY) ACT 1997
First Defendant

AND:
LAVE MICHAEL in his capacity as a CHIEF INSPECTOR UNDER THE MINING (SAFETY) ACT 1977
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

WAIGANI: DINGAKE J
20 March, 05 June 2025

JUDICIAL REVIEW - practice and procedure - application by the First and Second Defendants to summarily dismiss whole of the proceedings – grounds for being incompetent and/or an abuse of the Court process – courts duty to give effect to supreme court order which reverted rehearing by newly constituted National Court – application to dismiss proceedings dismissed

Cases cited
Simakade Holdings Ltd v Dotaona (2018) N7356
Simakade in Todiai v Walters Farmers Association (WFA) (2019) N7678

Counsel
Mr. Ian Molloy & Mr. Jordan Kakaraya for the plaintiff
Mr. Nelson Saroa, Ms. Faye Lalo & Mr. James Sanangke for the first & second defendants

RULING

1. DINGAKE J: INTRODUCTION: This is my Ruling on an application made by the First and Second Defendants to summarily dismiss the whole of the proceedings for being incompetent and/or an abuse of the Court process.
   
2. The application is made pursuant to Order 16 Rule 13(13)(2)(a) and b(i) of the National Court Rules (NCR) and Section 155(4) of the Constitution.
   

Grounds

3. The Defendants advance four (4) grounds upon which they argue that the whole proceedings are incompetent and/or abuse of the Court process. These grounds are: (a) that the Plaintiff has not demonstrated authority to commence this proceedings and appointing counsel to act for the Plaintiff; (b) that the Plaintiff’s Notice of Motion filed on the 19^th of September 2024 (Doc No. 13) is incompetent and an abuse of process because the Plaintiff relied on s.18 of the Constitution to challenge the constitutionality of the Mining (Safety) Act 1977 and Regulations, which is not a ground for judicial review; (c) that the Plaintiff engaged in an abuse of process by challenging the Constitutionality of the Mining Safety Act and the Regulations in a proceeding commenced by judicial review (incompetent pleadings on Order 16 Statement); (d) that the Plaintiff’s substantive Notice of Motion seeks a total of nine (9) reliefs and that reliefs, 1, 2, 5, 6, 7, 8 and 9 are not the primary reliefs appropriate in judicial review proceedings (Want of proper jurisdiction).
   

Background

4. The background to this matter may be crisply stated.
   
5. The Plaintiff is a company incorporated in Papua New Guinea. It owns and operates a gold mine in Kainantu, Eastern Highlands Province.
   
6. The First Defendant is a Mines Inspector, and the Second Defendant is the Chief Mines Inspector, each appointed under the Act.
   
7. On the 10^th of March 2024, the body of a deceased worker, Nori Tukuse, was found in some location in the mine. As a result, the First Defendant, issued what is called a Form 29 under the Act, “Order to cease Operations and Withdraw Persons”, and a Form 34 under the Act, “Notice of Inquiry by Inspector into Accident”.
   
8. The Plaintiff’s being unhappy with the above decision by the Mines Inspector appealed to the Second Defendant, who dismissed the appeal.
   
9. The Plaintiff was unhappy with the decision of the Defendants because it took the view that the decisions were erroneous, taken without jurisdiction, or failed to consider the facts and circumstances and therefore liable to judicial review.
   
10. Having taken the view that the decisions of the Defendants were susceptible to judicial review, the Plaintiff filed this proceeding on the 2^nd of April 2024, seeking leave to apply for judicial review of the decisions of the First and Second Defendants on the 13^th of March 2023.
    
11. The leave application was refused on the 6^th of April 2024.
    
12. Aggrieved by the decision to refuse granting leave, the Plaintiff successfully appealed to the Supreme Court in August 2024. In SCM No. 21 of 2024, the Supreme Court granted leave to the Plaintiff to apply for judicial review. The hearing of the judicial review was remitted back to the National Court.
    
13. My attention has been drawn to the decision of my brother Anis J., where he dealt with a matter similar to the present. This was in the case of Simakade Holdings Ltd v Dotaona (2018) N7356. In this case the Plaintiffs had been granted leave to apply for judicial review. The Defendants subsequently applied by Notice of Motion to dismiss the proceedings as an abuse of process.
    
14. At the paragraph 17 of the said case, the Court (per Anis J) stated that:
    

“17. I will add this. If a leave Court finds, in addition to the other requirements, that there is an arguable case or that the judicial review is meritorious, the matter should proceed to the substantive judicial review hearing, and it should be heard without delay. A notice of motion that is subsequently filed by a respondent or an interested party to dismiss the judicial review proceeding on the basis of want of reasonable cause of action or for want of merit, in my view, should itself (i.e., the notice of motion) be regarded as abuse of the court process. That is, if a respondent or an interested party fails to appeal the decision of the leave Court after the leave Court finds that there is an arguable case, the issue of whether the judicial review has merit or is arguable, should not be challenged in a further interlocutory process except at the substantive hearing of the judicial review application itself. An exception I see where the judicial review Court may proceed to hear an application of this nature (i.e., application to dismiss a judicial review for want of merit after leave has been granted and before the actual judicial review hearing, is in a case where if it can be proved that the applicant did not fully disclose a crucial or material fact or facts concerning the merit of the proceeding, at the hearing of the application for leave to apply for judicial review. The second exception I see is where the facts or events have changed since the time the Court had granted leave to apply for judicial review and that the facts are crucial concerning the merit of the proceedings. I make these rulings because I observe generally that judicial time for judicial review proceedings have now been taken up with applications after applications filed by parties after leave stages which has seen judicial review proceedings being delayed and, in many instances, far beyond their required hearing times. In my view, judicial review proceedings, from the time leave is granted, should take less than three (3) months to complete. Instead, I see that it can take beyond six (6) months and even years before a judicial review matter is finally resolved or is determined. In my view, such practices go beyond the requirements as inscribed under Order 16 in the National Court Rules and in the case law, when dealing with judicial review proceedings.”

(See also Simakade in Todiai v Walters Farmers Association (WFA) (2019) N7678).

15. I agree with the views of Anis J’s quoted above. In this matter, it seems to me that the issues that the Defendants are raising could have been raised when the Supreme Court was considering whether to grant leave to apply for judicial review. This was not done.
    
16. Whilst I take the view that the issue of standing in judicial review may be raised at any stage of the proceedings, it is also true that each case turns on its own circumstances. The key circumstances that explain my conclusion here are the fact that the Defendants failed to raise the issues they are raising, especially one relating to absence of authority to litigate, before the Supreme Court and the wording of the Order of the Supreme Court, when granting leave.
    
17. It seems to me that the Order of the Supreme Court is clear and unequivocal. It says: “The hearing of the judicial review, leave having been granted by this Court is remitted to the National Court” (emphasis mine).
    
18. This Court is bound to give effect to the decision of the Supreme Court, and the hearing of judicial review shall proceed as ordered.
    
19. The Plaintiff is not precluded from raising any issue it may consider pertinent at the substantive hearing of the judicial review.
    
20. In the result, this Court orders that:
    
    • (a) First and Second Defendants’ Notice of Motion dated 12^th of March 2025 (Document No. 23) is dismissed.
      
    • (b) The First and Second Defendants to pay the Plaintiff’s costs, of and incidental to this application on a party-to-party basis.

__________________________________________________________________
Lawyers for the plaintiff: O’Briens Lawyers
Lawyers for the defendants: Nelson Lawyers