N11698
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 an 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: CROWLEY J
07 NOVEMBER 2025; 06 FEBRUARY 2026

JUDICIAL REVIEW - practice and procedure - application by the Plaintiff to amend Notice of Motion and Statement in Support- Order 16 Rule 6(2) interpreted- s155(4) of the Constitution interpreted- whether Plaintiffs delayed in bringing application to amend- whether Defendants were prejudiced by amendment
COST- Cost follow the event- cost on an application to amend pleadings- behaviour of the parties and its impact on awards of costs

Cases cited

Simakade Holdings Ltd v Dotaona (2018) N7356
Tambe v Tamsen (2004) N2714
Application by John Mua Nilkare, Review Pursuant to S155(4) of the Constitution [1998] PNGLR 472;
Dads Investment Corporation Ltd vs Samson [2023] PGSC 134
K92 Mining Ltd v Kae [2025] PGNC 206; N11334

Counsel

Mr. Ian Molloy & Mr. Jordan Kakaraya for the plaintiff
Mr. Nelson Saroa & Mr. James Sanangke for the first & second defendants

RULING

1.	CROWLEY J:  This is an application by the Plaintiff filed on 20 October 2025 to amend its statement in support filed on 2 April 2024 and notice of motion filed 12 September 2024.

2.	The substantive proceedings are a judicial review of decisions of an Inspector of Mines (First Defendant) and the Chief Inspector under the Mining Safety Act 1977 (Second Defendant) after an investigation of a workplace death at the Plaintiff’s mine. 

3.	The Plaintiff is seeking an amendment because, they say, at the time of filing the proceedings they could not properly calculate and quantify all the losses and damages it suffered or would suffer as a consequence of the decision of the First Defendant to close their mine, and the Second Defendant upholding that decision. 

4.	They also have some additional information regarding the conduct of the Defendants that occurred after the Plaintiff filed their application for judicial review. The Plaintiff seeks to rely on this behaviour. 

Background facts

5.	The facts that underlie the litigation are not complicated. The body of a worker was found at the mine of the Plaintiff’s on 10 March 2024. There was initially a dispute as to how that worker died. The First Defendant closed the mine on 13 March 2024 on the basis that it was a workplace death. The Plaintiff contends that the preponderance of evidence available at the time of that decision was that the death was blunt force trauma from a blow to the head. On the same day the Plaintiff sought review of the First Defendant’s decision to the Second Defendant. However, the Second Defendant immediately affirmed that decision. The Plaintiff commenced these proceedings on 2 April 2024.

Procedural History

6.	Despite this matter still being in its early stages it has been subject to significant litigation. It has already been to the Supreme Court and back. The decision of the First Defendant and Second Defendant that is sought to be reviewed was made on 13 March 2024. The application for leave to judicially review was filed on 2 April 2024. That application was dismissed on 6 April 2024. This decision of the National Court was appealed to the Supreme Court. The Supreme Court overturned the primary judge’s decision on 27 August 2024 and granted leave. The Plaintiff filed its notice of motion and statement in support of the judicial review on 19 September 2024. The First and Second Respondent then bought an application to have the matter summarily determined as an abuse of process. This Court dismissed that application on 5 June 2025. 

7.	Given the approach to this litigation of the First and Second Defendant have taken up to now it is probably not surprising that they opposed what is a fairly routine application.

Law 

8.	The Notice of Motion seeks orders pursuant to Order 16 Rule 6(2), 13(6)(4), 13(8)(1), 13(13)(1) and/or 13(14) and/or Order 8 Rule 50(1) and (2) of the National Court Rules. The Plaintiff submitted that this scatter gun approach is necessitated because the National Court Rules do not squarely provide for amendment of Notice of Motion or Statement under Order 16 Rule 3(2). 

9.	Order 16 Rule 6(2) provides:

“The Court may on the hearing of a Notice of Motion allow the applicant to amend this statement, whether by specifying different or additional grounds for relief or otherwise, on such terms (if any) as it thinks fit and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application”.

10.	This rule, though referring to “...on the hearing of a Notice of Motion...” has been taken to allow amendments prior to the hearing. Further, the court has a wide discretion that may be exercised if the case is an appropriate one. The case of Tambe v Tamsen (2004) N2714 (Tambe’s Case) provides guidance in this regard. 

11.	The eight (8) considerations relevant to amendments under Order 16 Rule 6 (2) given in Tambe’s Case are:

1. Will the amendment enable the Court to determine the real question in controversy between the parties?
2. Will the amendment correct any defect or error in the proceedings?
3. Will the amendment cause real prejudice or injustice to the other party?
4. Is the application for such amendment made mala fide or bona fide?
5. Can the other party be fairly compensated with costs for the amendment?
6. Is the party prevented by its conduct or the manner in which the proceedings have progressed from being permitted to amend its pleadings?
7. Where do the interests of justice lie?
8. Is the proposed amendment efficacious? That is, is it a proper amendment?

Submissions
12.	Broadly speaking the First and Second Defendant’s have two avenues of attack; first the application for amend is procedurally flawed and second, they are prejudiced by it.

13.	As to the procedural flaws the Defendants effectively say that, despite the number of rules the Plaintiff has cited, they have missed their target. There are other rules in the National Court Rules that they should have identified but didn’t. The Defendants primary attack in this regard was that: 

“...there is no primary provision in the Order 16 rules that expressly provide for amendment of Order 16 Statement and substantive Notice of Motion and therefore section 155(4) of the Constitution and/or the inherent jurisdiction must be invoked” ([1.8] Extract of Submission in Response to Plaintiff’s Notice of Motion filed on 20 October 2025).
14.	Ironically s155(4) of the Constitution does not expressly provide for the amendment of a pleading either. It reads:

“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”. 
15.	It has been held that this section is not limited to orders in the nature of prerogative writs only but enables the Supreme [or National] Court to make orders necessary to do justice in the circumstances of a particular case (see Application by John Mua Nilkare, Review Pursuant to S155(4) of the Constitution [1998] PNGLR 472; per Amet CJ and Los J). 

16.	It seems that the Defendant’s submission that “section 155(4) of the Constitution and/or the inherent jurisdiction must be invoked” is internally inconsistent. An inherent jurisdiction means that it is a permeant quality or characteristic of the National Courts power.  It exists whether invoked or not. 

17.	The Defendants submit “... that the inherent powers of the National Court were not properly invoked in the Notice of Motion and therefore the Honourable Court’s jurisdiction is not properly invoked, thus fatal to the Plaintiffs application for leave to amend” ([1.9] Extract of Submission in Response to Plaintiff’s Notice of Motion filed on 20 October 2025).

18.	The Defendants seem to approach s155(4) as if it is the Doors of Durin requiring a special incantation before it can be accessed. My view, if the jurisdiction of the court is “inherent”, it does not need to be “invoked” by a party, the Court is able to exercise its inherent power on its own motion. Further, the implication of Defendants’ submission is that, had the Plaintiff “invoked” s155(4), their Notice of Motion would be successful. I certainly agree that s155(4) does empower this Court to make “... such other orders as are necessary to do justice in the circumstances”. The question as to whether it is just to allow the amendment will be dealt with below. 

19.	The Defendants other objections to the granting of this application are that, on a reading of the case of Dads Investment Corporation Ltd vs Samson [2023] PGSC 134 (Dad’s Investment) the only amendments possible are for “different or additional grounds of relief or otherwise” ([1.13] Extract of Submission in Response to Plaintiff’s Notice of Motion filed on 20 October 2025). I reject this contention. I do not agree that that is a correct reading of Dad’s Investment but if it is, that interpretation is inconsistent with the views expressed in Tambe’s Case giving the Court a wide discretion to grant amendments. 

20.	The Defendants also complain of delay and a lack of a board resolution ([1.24] & [1.25] Extract of Submission in Response to Plaintiff’s Notice of Motion filed on 20 October 2025). As to the lack of Board resolution, this was raised in the Defendants attempts to summarily dismiss the Plaintiff’s Notice of Motion (see [4.1] Extract of Submissions To Dismiss Proceedings filed March 2025). Justice Dingake was not persuaded by this argument.  

21.	As to delay, I deal with it below.

Plaintiff’s Notice of Motion filed 20 October 2025 seeking to amend 

22.	As to the Plaintiff’s application it is necessary to analyse the criteria identified in Tambe’s Case:

1. Will the amendment enable the Court to determine the real question in controversy between the parties?

23.	 I consider that the proposed amendments will allow the Court to determine the real question in controversy because, should the court find in favour of the Plaintiff on the judicial review, a consequential order the Court would consider would be the payment of money to compensate the Plaintiff for the damages caused by the Defendants’ decision. 

2. Will the amendment correct any defect or error in the proceedings?

24.	This amendment would not correct a defect or error but will crystalise an aspect of the controversy that may be relevant if liability is established. 

3. Will the amendment cause real prejudice or injustice to the other party?

25.	I do not consider that the amendment will cause real prejudice to the Defendants. The assertions as to monetary loss do not go to the issue of whether the process by which the Defendants made their decisions, was flawed. The amendment regarding new information on the behaviour of the Defendants also is not a major aspect of the Plaintiff’s case. It provides more details to an existing allegation. Therefore, I don’t see that the Defendants will suffer any real prejudice if it is pleaded.

4. Is the application for such amendment made mala fide or bona fide?

26.	There is nothing before me to demonstrate that this application is not bona fide. The Plaintiff has provided what seems a cogent reason why this information was not known to them at the time of filing their original statement in support and notice of motion back in September of 2024. 

5. Can the other party be fairly compensated with costs for the amendment?

27.	The Defendants can be fairly compensated with costs for the amendment in any subsequent costs order (assuming they are successful on defeating the judicial review application). For the reasons given above, it does not seem to me that these amendments significantly alter the position of the Plaintiff as to the potential liability of the Defendants. They have not asserted that they will be put to extra cost. Therefore, it doesn’t seem that the Defendants will be put to significant cost of recalibrating their case. Should the Defendants be found liable for making the decision in an erroneous way, they may seek at that stage to challenge the monetary values put forward by the Plaintiff but that in my opinion could be a matter for argument on damages and/or costs at the end of the trial.

6. Is the party prevented by its conduct or the manner in which the proceedings have progressed from being permitted to amend its pleadings?

28.	Is the party prevented by its conduct or the manner in which the proceedings have progressed from being permitted to amend its pleadings? This is where I consider delay. The Defendants assert that:

“2.5 Application is made 13 months after the substantive Notice of Motion was filed (19 September 2024). 
2.6 The defendants remain prejudiced and any further amendment that were not made at the material time to the grant of leave and the filing of the substantive Notice of Motion will be prejudicial to the issues that have crystalised. 
2.7 There is not affidavit explaining the rationale behind the delay of over a 13 calendar months. ([1.24] & [1.25] Extract of Submission in Response to Plaintiff’s Notice of Motion filed on 20 October 2025).
29.	In fact, there was an affidavit filed explaining the “delay”. The Affidavit of John Derek Lewin filed 20 October 2025 says: 

“2. At the time of filing this court proceeding on 2 April 2024, the Plaintiff could not properly calculate and quantify all the losses and damages it was suffering or would suffer in totality as a consequence of the shutdown of its K92 Gold Mine, given that at the time, the mine was still closed pursuant to the decision made by the First Defendant. 
3. Additional facts became apparent regarding the conduct of the defendants, which required inclusion in the Statement. 
4. The Plaintiff has now since the filing of the court proceedings, been able to calculate all the damages it suffered during the mine closure period and seeks to amend its Statement to reflect this.”
30.	Clearly the Plaintiff has provided evidence to explain the necessity of the amendment and why the information could not be included in its pleadings at the time of filing. It is the Defendants who have failed to provide evidence to justify their assertion that they “... remain prejudiced and any further amendment that were not made at the material time to the grant of leave and the filing of the substantive Notice of Motion will be prejudicial to the issues that have crystalised”.

31.	As such, I accept the Plaintiff’s explanation and find that they have proceeded without undue delay. There is no other indication that their conduct should prevent them from being given leave to amend. 

7. Where do the interests of justice lie?

32.	Where do the interests of justice lie? It seems to me that, the interests of justice lie in allowing the amendment, because they provide the Court with more details of monetary loss which may become relevant if the Plaintiff is successful in establishing the Defendants erred in their decision-making process. Further, the information regarding the behaviour of the Defendants is necessary for the Court to consider when weighing the merits of the Plaintiffs claim for damages. 

8. Is the proposed amendment efficacious? That is, is it a proper amendment?

33.	Is the proposed amendment efficacious? That is, is it a proper amendment? For the reasons given above, this amendment is efficacious and, it seems to me, proper.

34.	As such I will exercise my discretion to allow the amendments.

Costs

35.	The Plaintiff has sought their costs. The usual rule on a notice of motion is that costs follow the event. However, in an application to amend, often costs are not awarded to the party moving the motion because they are seeking an indulgence from the court to amend a document on the court file. Even if the other party agrees to the amendment, it is for the court to exercise its discretion. However, there is nothing stopping the court from following the usual rule particularly when the application to amend is vigorously opposed. 

36.	 On its face this is a routine application. The law is settled and the affidavit of the Plaintiff provides a cogent explanation. It seems to me that the best course the Defendants could have taken is to have consented to it. They have chosen to resist it. Their legal arguments were tenuous and they have reagitated arguments that they have run before. They have put the Court to the trouble of a contested hearing and a written judgement rather than an ex-tempore decision on the day of hearing. The Defendants complain of delay. The approach they have taken to this application has added 3 months more to the time it will take to finalise the judicial review. 

37.	I note in this regard the comments of Anis J in Simkade Holdings Ltd v Dotaona (2018) N7356 at the paragraph 17:

“... 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.”

38.	I agree with His Honours sentiments, and I would add that judicial time is taken up by parties opposing meritorious applications also delay the expeditious adjudication of judicial review applications. 

39.	The above quote should come as no surprise to the parties; it was quoted by Justice Dingake in his judgment on the summary dismissal of this case ([14] K92 Mining Ltd v Kae [2025] PGNC 206; N11334). To the above quote His Honour added 
“[15]...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.”

40.	I could say the same about some of the Defendants arguments on this application. 

41.	In my view the Plaintiff has a strong case for leave to amend. At the time of filing the notice of motion and statement in support they could not have calculated the damages they say they have suffered. Further, they could not have known of the behaviour they alleged the Defendants engaged in after the decision of the Supreme Court. Both matters are relevant to their case. 

42.	The Defendants accept that the National Court has power to grant amendments. They merely argued that the Plaintiff has chosen the wrong rules. Though it requires the interplay of legislation and case law, the aspect of the National Court Rules is settled law. The Defendants submission in my opinion was untenable. They put the Plaintiff and the Court to the trouble of a contested hearing in circumstances where their opposition was untenable. For that reason I think this is an appropriate case to award costs to the Plaintiff for the expense of arguing their case. 

Order

1.	The Plaintiff is given leave to amend their Notice of Motion filed 19 September 2024 in accordance with Exhibit JL3 draft Amended Notice of Motion annexed to the Affidavit of John Lewins sworn 20 October 2025.
2.	The Plaintiff is given leave to amend their Statement in Support pursuant to Order 16 Rule3(2)(a) of the National Court Rules filed 19 September 2024 in accordance with Exhibit JL2 draft Amended Order 16 Statement annexed to the Affidavit of John Lewins sworn 20 October 2025.
3.	The First and Second Defendant to pay the Plaintiffs cost to be taxed if not agree.

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