SC1777
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 159 OF 2018

BETWEEN
BOUGAINVILLE COPPER LIMITED
Applicant/Appellant

AND
CENTRAL ME’EKAMUI EXPLORATION LIMITED (Now
Panguna Minerals Limited change of name filed 1/11/18)
First Respondent

AND
VICE PRESIDENT RAYMOND MASONO MHR, Minister for Mineral and Energy Resources of the Autonomous Bougainville Government
Second Respondent

AND
BOUGAINVILLE MINING ADVISORY COUNCIL
Third Respondent

AND
TIMOTHY KOTA, as Chief Mining Warden of the
Autonomous Region of Bougainville
Fourth Respondent

AND
THE BOUGAINVILLE EXECUTIVE COUNCIL
Fifth Respondent

AND
KENTON SAMSON, as Mining Registrar of the Autonomous
Bougainville Government
Sixth Respondent

AND
THE AUTONOMOUS BOUGAINVILLE GOVERNMENT
Seventh Respondent

Waigani:  Dingake J
2018:	 24 October
 2019: 7 March

PRACTICE AND PROCEDURE – application for leave to appeal against order of National Court – interlocutory decision sought to be reviewed - appellate court cannot interfere with a discretionary judgment on a procedural matter, except where exercise of that discretion is clearly wrong, or there is an identifiable error, and or the order is unreasonable or plainly unjust - decision of National Court sought to be reviewed made in exercise of judicial discretion on matter of procedure -  appellate court may only grant leave, if the exercise of discretion, among other relevant considerations, was plainly wrong or manifestly unreasonable or unjust - no substantial injustice would be caused by allowing the decision to stand - no cause has been shown that warrants that the trial process be interrupted by an appeal – application for leave to appeal dismissed - Order 10 Rule 1(2) of the Supreme Court Rules,  Section 14 (3) (b) Supreme Court Act.

Cases Cited:

Curtain Bros (PNG) Ltd v UPNG (2005) SC 788
Sir Julius Chan v Ombudsman Commission of PNG [1999] PNGLR 240
Matiabe Oberia v Chief Inspector Michael Charlie and Ors (2005) SC801
Chief Collector of Taxes v Bougainville Copper Ltd (2007) 853

Counsel:

Mr. Eric Anderson, for Appellant
Mr. Allan Mana, for First Respondent
Ms. Miran Ai, for Second, Third, Fourth, Fifth, Sixth & Seventh Respondents

21st March, 2019

1.     DINGAKE J:	This is an application brought by Bougainville Copper Limited (BCL), the applicant, for leave to appeal against the order of the National Court in OS (JR) No. 29 of 2018 made on the 22nd of August, 2018.

2.      The application is made pursuant to Order 10 Rule 1(2) of the Supreme Court Rules and Section 14 (3) (b) of the Supreme Court Rules.
3.      The facts underpinning this litigation can be stated briefly. The applicant, has at all material times hereto been a holder of a Special Mining License (“SML”) under the Mining (Bougainville Copper Agreement) Act of 1967 and the Papua New Guinea Mining Act prior to 1st January, 2011.
4.     The said license, attached to the supporting affidavit of Mark Wallance Hitchcock, and marked “MH1” was due to expire on the 7th of September, 2016.
5.      On or about the 5th of July 2016, the applicant applied for the extension of term in accordance with Section 109 of the Bougainville Mining Act (“BMA”).
6.      On the 16th of January, 2018, the applicant was informed that its application for extension of the term of exploration license was refused.
7.     Upon refusal to extend the license, the applicant commenced Judicial Review proceedings in the National Court styled OS(JR) No. 29 of 2018 between BCL v Vice President Raymond Masono MHR, Bougainville Mining Advisory Council, Timothy Kota as the Chief Mining Warden, the Bougainville Executive Council, Kenton Samson as the Mining Registrar and the Autonomous Bougainville Government.
8.     The Central Me’ekamui Exploration Limited (“CMEL”) successfully applied to be joined in the judicial review proceedings. It was joined as the Seventh Defendant to the National Court proceedings.
9.      The applicant is aggrieved by the decision to join CMEL, hence this application.
10.     It is not in dispute that the decision of the National Court handed down on the 22nd of August, 2018, was an interlocutory decision, hence the leave application, pursuant to Section 14 (3) (b) of the Supreme Court Act.
11.   It is trite learning that the appellate court will not interfere with a discretionary judgment on a procedural matter, except where the exercise of that discretion is clearly wrong, or there is an identifiable error, and or the order is unreasonable or plainly unjust (Curtain Bros (PNG) Ltd v UPNG (2005) SC 788).
12.      The case of Curtains, cited supra, also makes it clear that there is a strong presumption in favour of the correctness of the decision appealed from, and that the appellate court is more likely to affirm the decision, unless it is satisfied that the decision is clearly wrong.
13.      In the case of Sir Julius Chan v Ombudsman Commission of PNG [1999] PNGLR 240, at page 258, the Court set the bar quite high when it said: 
“So to obtain leave to appeal an interlocutory judgment, it is not simply a matter of asserting there is an arguable case; that there has been some error. It is not the case that every error will affect the outcome of the substantive proceedings. What must be shown is, not only that there is patent error, but also that the error affects a party’s substantive rights or will prevent the proper determination of the issues.”
14.      The decision of the National Court, sought to be impugned, was, in my respectful opinion, made in exercise of a judicial discretion, on matter of procedure, and therefore susceptible to the application of the ratio decidendi in the case of Sir Julius Chan, cited supra.
15.     The considerations/factors the Court should take into account in an application for leave to appeal were set out in the locus classicus case of Oberia v Charlie (2005) SC801. The test was framed in a form of questions as follows:
a.	Is there an arguable or prime facie case or has it been demonstrated that the trial judge was wrong?
b.	Does the appellant have other recourse in the Court below?
c.	Was the ruling within the discretion of the Court? Has it been shown that its exercise was manifestly unreasonable, exercised on a wrong principle or a mistake of fact?
d.	Does the decision have any bearing on the final determination of the issues between the parties? Will it affect the primary rights of the parties or prevent the determination of the issues?
e.	Will substantial injustice be caused by allowing the decision to stand?
f.	Has cause been shown that the trial process should be interrupted by an appeal?
16.      Before applying the above considerations or factors to this case, I remind myself, consistent with the wisdom posited in the case of Chief Collector of Taxes v Bougainville Copper Ltd (2007) 853, that it is not enough that this Court considers that, if it were in the position of the primary judge, it could have taken a different decision, as indeed I seem inclined, at least to the view that strict sensu, CMLE, has no legal interest in the application of an extension of the existing license by the applicant. The discretion is not for the appellate court but the primary judge and the appellate court may only grant leave, if the exercise of discretion, among other relevant considerations, was plainly wrong or manifestly unreasonable or unjust.
17.      In this case, I find that having regard to the proposed grounds of appeal, there are some aspects of the proposed grounds that present an arguable case, such as the National Court’s holding that the lodging of a subsequent application of an Exploration License under the Bougainville Mining Act 2005 renders a subsequent applicant for an extension of a license over the same ground a person directly affected by the proceeding for the purposes of Order 16 Rule 5(2) of the National Court Rule, especially if regard is had to Section 101(3) of the Bougainville Mining Act of 2015. I consider it fairly arguable whether an entity that has no legal interest, such as CMLE, could be a person directly affected within the contemplation of Order 16 Rule 5 (2) of the National Court Rules.
18.      I also consider it fairly arguable that an entity, with respect to whom there is no pleaded claim against, cannot be a party to the proceedings. However, as the authority of the case of Sir Julius Chan establishes, asserting an arguable case is not enough.
19.     I am also satisfied that the applicant/appellant has no further recourse to the Court below.
20.      I have already indicated that the ruling was within the discretion of the primary judge. I have not been persuaded that its exercise was clearly wrong, manifestly unreasonable or unjust (emphasis added) or was exercised on wrong principle or mistake of fact.
21.      The decision does not affect the substantive of rights of the parties in anyway. At best, it may be inconvenient to the applicant, and even an irritation, given the clear indications that CMLE may well have a commercial interest in the applicant not getting the extension it seeks. The worst that CMLE could do is to make it difficult for the applicant to be granted the license. I also fail to see how the joinder, will prevent the determination of whether or not the applicant is entitled to be granted the extension sought.
22.      It seems to me that other than possible irritation or inconvenience, no substantial injustice (emphasis added) would be caused by allowing the decision to stand. In my mind no cause has been shown that warrants that the trial process be interrupted by an appeal.
23.      At the end of the day, having regard to all the circumstances of the case, I find that the controversy between the parties in this application, is settled by the golden words pronounced by the Court in the Sir Julius Chan case, cited supra, to the effect that to obtain leave to appeal, an interlocutory judgment, it is not just a matter of asserting that there is an arguable case or that some error was committed, because “it is not the case that every error will affect the outcome of substantive proceedings” (emphasis added). It seems to me that any errors (if any) are not of such a nature as to affect the outcome of the substantive proceedings.
24.      In the result the application is dismissed with costs.

___________________________________________________________
Dentons PNG: Lawyers for the Appellant
Corrs Chambers Westgarth Lawyers: Lawyers for the First Respondents 
Jema Lawyers: Lawyers for the Second, Third, Fourth, Fifth, Sixth & Seventh Respondents