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Amadio Pty Ltd v The State [1993] PGNC 9; N1181 (28 October 1993)

Unreported National Court Decisions

N1181

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 279 OF 1991
AMADIO PTY LTD
V
THE STATE
AND
PATTERSON LOWA
AND
ISAAC MOKE
AND
MOUNT KARE HOLDINGS PTY LIMITED

Mount Hagen

Woods J
15 October 1993
28 October 1993

PRACTICE AND PROCEDURE - Motion to dismiss proceedings for Judicial Review - delay - matter sought to be reviewed has now expired - courts discretion to dismiss.

Counsel

E Anderson for the Applicant and 4th Defendant

G Sheppard and M Wilson for the Respondent and Plaintiff

28 OCTOBER 1993

INTERLOCUTORY JUDGEMENT

WOODS J: This is an application by the 4th Defendant that the proceedings be dismissed. The proceedings are anicatlication for Judicial Review of the action of the Minister for Minerals and Energy following a hearing by the Mining Warden to recommend the extension of the term of a Prospecting Authority 591 to the fourth Defendant in September 1991. Leave for JudiReview was gwas granted by this Court in June 1992 although concern was expressed by the Court about the delay in seeking the Leave to review. And I quote what Court sait said in June 1992 “I feel that there should have been a greater effort to have the application heard in January or February”.

One of the grounds of this applicato dismiss the proceedings ings is because of delay so this is why the reference the Court made to delay in June last year may be of relevance. Another submissi the courtcourt is that the court should exercise its inherent power to dismiss the proceedings for want of prosecution. Delay ant of prosecution gion go hand in hand here suggests the Fourth Defendant because while the Plaintiff has been slow to act and failed to bring the matter on expeditiously the term of the Prospecting Authority has expired, in September this year, and the matter of a new Prospecting Authority is now with the Mining Warden.

Another matter raised by the applicant is that because of the length of time that has elapsed since the time when the action complained of took place many of the persons who were involved at the time of the grant of the Authority and who would be needed to assist the Court on any Review have left and are no longer available to attend a hearing and one important witness has died.

The Plaintiff denies there has been any undue delay. It says that immediately after the Leave was granted the Fourth Defendant appealed to the Supreme Court and the matter was therefore before the Supreme Court until March this year. It saat immediately the Suhe Supreme Court gave its decision it took steps to have the hearing of the Review set down by seeking directions and discovery.

Thentiff says that even though the Prospecting Authority has nhas now expired the matter of priority is important before the Mining Warden for the grant of a new Authority and if the Plaintiff did succeed it could therefore get priority in the consideration of a new grant, so there is a matter of value at stake.

I go over the main timetable of events in these proceedings.

In July 1991 the Mining Warden held hearings on the land and in Port Moresby for the Grant of the Prospecting authority.

In September the Minister granted the PA for 2 years to the Fourth Defendant.

In December 1991 the Plaintiff filed the Application for leave for Judicial Review. Various affidavit ween filn filed over the following months.

The hearing for leave was in May 1992 and the Leave was granted in June 1992.

In July there was an Appeal against that ruling to the Suprourt. That matter wasr was not linally decided by the Supreme Court until March 1993.

Since then there have been proceedings for discovery and Directions.

What concerns me is that we are talking about a right that ran out in September this year, so is therefore finished and yet the Plaintiff wants to turn back the clock and say that it was entitled to get the right over 2 years ago. And if it succ then it wout would have priority in seeking an extension of the Authority from now.

However what does that priority give. The Mining Warden has to hold a hearing if there are objections to the grant of the extension or to the party who has lodged the prior application. So presu at that hearing hing he has to assess the worth of the priaim and the merit of the obhe objections and thus the worth of any competing claims. One difficulty ining WardeWarden would havthe Plaintiff after a succesuccessful Review was able to gain priority is that the Plaintiff would still have no record of compliance the terms of an authority, he would have no history of beif being a suitable applicant, so in the end he would have no better grounding credentials or history than any competing applicants. he Mining Warden only subm submits a report and presumably a recommendation to the Mining Advisory Board and that Board then makes its own recommendation to the Minister.

Isn’t ti accepted that the present sent Authority has expired and we looked ahead and allowed the Mining Warden and Mining Advisory Board to make its own recommendations on the basis of the merits of the different parties before it and even though one party may have a priority in accordance with s. 100 of the Mining Act, at the end of the day the Board will recommend the best applicant for the interests of the Nation. I that at this stage the pthe party who held the Prospecting Authority that expired last month has not sought an extension so therefore is not an applicant with any priority.

I cannot help feeling that there has been too much delay in getting to a Review. I expressed concern at tht initial delay between September and December in 1991. But nowe March this year tear there should have been a more serious attempt to get together with all the parties and to get the he on b the term of the the Authority ran out in September.

To delay the Grant of any new new Authority because a party wants to go back over two years and rewrite something that has now expired is a negative approach to the development of the resources and assets of this country. Thirt has a duty to not hiot hidebound itself with technical forms and precedents which may be a bar to progress and development but rather to trust the relevant authorities to make in the terms of the Constitution wise decisions for the use to be made of natural resources.

I am therefore satisfied that there has been an unnecessary delay since March this year and also I am satisfied that parties may have difficulty with the departure of witnesses over time so the Court may not be able to properly do a review. Accordingly I am satisthe the Court has a duty to act in the best interests of the Nation and to have faith in the relevant instrumentalities and bodies set up under the Mining Act and to exercise its discretion t dismiss these proceedings.ings.

Lawyer for the Applicant/4th Defendant: Gadens Ridgeway

Lawyer fyer for the Respondent/Plaintiff: Warner Shand