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Barrick Niugini Ltd v Nekitel [2021] PGNC 60; N8791 (14 April 2021)

N8791

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 51 OF 2020

BARRICK NIUGINI LIMITED
Plaintiff

AND:
STANLEY NEKITEL In his Capacity as the Registrar of Tenements
First Defendant

AND:
JERRY GARRY As Chairman and representing all other members of the MINING ADVISORY COUNCIL
Second Defendant

AND:
MINERAL RESOURCE AUTHORITY
Third Defendant

AND:
HON. JOHNSON TUKE, MP as MINISTER FOR MINING
Fourth Defendant

AND:
HON. JAMES MARAPE, MP As Chairman and representing all other members of the NATIONAL EXECUTIVE COUNCIL
Fifth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

AND:
HON.DAVIS STEVEN, MP As Attorney General and nominal Defendant on behalf of the Head of State
Seventh Defendant

AND:
KUMUL MINERALS HOLDINGS LIMITED
Eighth Defendant

Waigani: Miviri J
2021: 19^th February 05^th March

PRACTICE & PROCEDURE – Judicial Review & appeals – Stay – Whether grant of Leave operate as Stay – Stay basis of – Undertaking as to Damages –Arguable case – Balance of Convenience – Pending Relationship at law between the parties by Contract – Privity of Contract –Interest of Justice to maintain – stay inappropriate in view – Motion denied Stay Refused – cost follow the event.

Cases Cited:
Papua New Guinea Cases

Wahune v Barton [2017] PGSC 40; SC1636

Gary McHardy v Prosec & Communications Ltd trading as Protect Security [2000] PNGLR 279.

Yama Group of Companies Ltd v PNG Power Ltd [2005] PGNC 128; N2831

Wartoto v State [2015] PGSC 1; SC1411

Arrow Trading Ltd v New Ireland Development Corporation Ltd [2016] PGNC 431; N7277

Golobadana No 35 Ltd v Bank of South Pacific Ltd [2002] PGNC 36; N2309

Independent State of Papua New Guinea v Kalaut [2021] PGSC 2; SC2067

East New Britain Provincial Government v Nekital [2013] PGNC 212; N5430

Dekenai Constructions Ltd v Tati Keke Resources Ltd [2019] PGSC 28; SC1800

Aeava v National Executive Council [2001] PGNC 62; N2136

Barrick (Niugini) Limited v Stanley Nekitel in his capacity as Registrar of Tenements & Jerry Garry as Chairman and Representing all members of the Mining Advisory Council & Mineral Resources Authority & Hon. Johnson Tuke, MP, Minister for Mining & Hon. James Marape, MP as Chairman and Representing all other Members of the National Executive Council & The Independent State of Papua New Guinea & Mineral Resources Enga & Hon. Davis Steven, MP as Attorney General and Nominal defendant on behalf of the Head of State (17^th to 25^th September 2020) SCA No. 18 of 2020.

Barrick (Niugini) Ltd v Nekital [2020] PGNC 180; N8409

Barrick (Niugini) Ltd v Nekital [2020] PGNC 199; N8429

Barrick (Niugini) Ltd [2020] PGNC 376; N8652

Barrick (Niugini) Ltd v Nekitel [2020] PGSC 94; SC2005

Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015

Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47

Overseas Cases

Films Rover International Ltd v Canon Film Ltd (1987) WLR 670

Counsel:

M.M. Varitimos & D. Wood, A. Edo & L. Evore, for Plaintiff
T. Tanuvasa & T. Mileng, for Second & Sixth Defendants
N. Saroa, for First, Third & Fourth Defendants
L. Kaunda, for Fifth Defendant
G. Geroro, for Seventh Defendant
E. Anderson, & G. Niggs & E. Koina, for Eight Defendant

RULING

14^th April, 2021

1. MIVIRI, J: This is the ruling of an application by way of a Notice of Motion for Stay filed the 21^st September 2020, by the plaintiff after it was granted leave by this Court on the 26^th January 2021 for judicial review. A number of adjournments have occurred as a result of lockdown relating to Covid19 hence the ruling since hearing.
   
2. The motion invokes section 155 (4) of the Constitution, Order 12 Rule 1, Order 16 Rule 3 (8) and Order 16 Rule 13 (14) of the National Court Rules, that the purported decision dated the 25^th August 2020 of the Head of State, by virtue of the powers purportedly conferred by Section 33 of the Mining Act 1992 (the Act), and section 95E of the Mining Act 1992 as amended by the Mining (Amendment) Act 2020, and in accordance with the Mining Development Contract to be approved thereafter, acting with and in accordance with the advice of the National Executive Council, to grant to Kumul Minerals holdings Limited of Level 6 MRDC haus, Cnr Musgraves St & Champions Parade, P. o. Box 2032, Port Moresby, Papua New Guinea Special Mining Lease No. 11 over Land situated over Porgera Valley and more particularly described in Schedule 1 attached to the Special Mining Lease, as maybe varied from time to time, but not including any portion of Land comprising any existing tenement except a mining easement for which the land has been excised, for a term of 20 years from this date and such extensions of the term as may be endorsed hereon for the purpose of mining minerals in accordance with the Act and subject to the conditions contained therein and published in National Gazette No. G546 dated 25^th August 2020, be stayed pending the hearing and determination of these judicial review proceedings.
   
3. The pleadings to a cause of action tie down its course the action is run within the parameters of the pleadings and not otherwise, Wahune v Barton [2017] PGSC 40; SC1636 (10 November 2017). Arguments derive their source from the pleadings if it is not so framed it has no substance and does not advance the cause of the litigant plaintiff. Here the relevant pleading is set out in full above. In simple what is sought is Stay of what KMHL has attained by process of law.
   
4. The argument by the plaintiff justifying is that whilst the proceedings has been on foot, Kumul and the State Defendants have taken actions to, respectively, apply for and grant tenements ancillary to SML-11 within the Porgera area despite the fact that the decision to grant that the principal tenement is the subject of review. That it has written to the State Defendants with no positive action taken by the former to adhere and so this action. What response it has received is that KMHL would not take possession immediate of and disturb BNL occupation and maintenance of the Land until April 2021. In my view KMHL has acted as it did because it has been lawfully granted what it stands upon to exert as it does. It’s discretion it exercises by operation of what it has attained by a process of law. To stop that process there ought to be very good reasons and this is set out by the law which I will come to in this Judgement.
   
5. The other arguments advanced would appropriately be the subject of the judicial review proceedings proper because they relate to the discretion of the head of State in the grant to KMHL and the provisions of the Mining Act 1992. They are not the basis for consideration in an interlocutory proceeding to stay as here. I will not consider them here. A time date for that will arise in the judicial review proper. I will confine myself to the Stay application made here.
   
6. At the outset this is an area of Law that is settled in this jurisdiction, It is relevantly set out in the often-quoted case of McHardy v Prosec Security and Communication Ltd [2000] PGSC 31; [2000] PNGLR 279 (30 June 2000):
   

“To conclude that the test for a successful application for stay should be whether there are "special" or "exceptional circumstances" or that there is a "good reason" or that it is an "appropriate case" is restrictive. We think what is important to articulate are the factors and circumstances that may be relevant or appropriate in differing cases from time to time.

We distil from these precedent cases the kinds of factors and circumstances that the Court will consider, amongst others, in the exercise of the discretion whether or not to grant a stay order. We start with the principal premise that the judgment creditor is entitled to the benefits of the judgment. The other factors include the following:

• Whether leave to appeal is required and whether it has been obtained;

• Whether there has been any delay in making the application;

• Possible hardship, inconvenience, or prejudice to either party;

• The nature of the judgement sought to be stayed;

• The financial ability of the applicant;

• Preliminary assessment about whether the applicant has an arguable case on the proposed appeal;

• Whether on the face of the record of the judgment there may be indicated apparent error of law or procedure;

• The overall interest of justice;

• Balance of convenience;

• Whether damages would be sufficient remedy.”

7. Firstly, in the way that the pleading has been set out by the Plaintiff, there is to an extent acceptance that relevant process of law has eventuated resulting in the grant to the eighth defendant, Kumul Holdings Limited. That the respondent is entitled to what he has attained by the process of law. And he ought to enjoy the benefits of that attainment. Though not determined as to the allegations that are raised against it by the Plaintiff. Process of law started has yet to be completed. What is intended by the Plaintiff is to put what has been attained by the eighth defendant following due process of law, on hold pending determination of the allegations it has raised. His exercise of discretion granted by that attainment be placed on hold until determination of the subject for which leave has been granted him, the Plaintiff. At Law he is perfectly in order as he is until declared otherwise. Hence what has been pleaded by the Plaintiff is an allegation. An allegation that must demonstrate prima facie on the balance that he has an arguable cause warranting grant of a Stay. Credible cogent evidence must back what he asserts as without he has no basis to disturb a process of law emanating from this Court.
   
8. Here he must demonstrate that without the grant of the mandatory injunction or Stay, serious damage will be resultant upon the plaintiff. Prima facie it is a serious case to be tried and the material he relies upon justify this cause. Because the result is that damages will not adequately remedy what he sustains. That when viewed the balance of convenience favours grant because upon trial, he will be successful. Here in the way that he has drafted his pleading the observation made above are material as to whether or not upon trial he will be successful. It is also important to weigh the costs to the defendant in adhering to the Stay if granted against the likely damage to the applicant plaintiff. That is, which is likely to cost less, or to use the words of Yama Group of Companies Ltd v PNG Power Ltd [2005] PGNC 128; N2831 (17 May 2005) the lower risk of injustice, if it turns out the Court has made the “wrong” decision.
   
9. It is not a light matter to be simply granted and this is clear in law that a process of law is not amenable to be Stayed as here without proper basis, or one process in law is not to be stopped by another process without proper basis: Wartoto v State [2015] PGSC 1; SC1411 (27 January 2015). Civil Proceeding was instituted in the National Court to permanently stay a criminal proceeding for misappropriation of funds under section 383A of the Criminal Code against the appellant. He was standing trial by a committal process which saw him committed to stand trial in the National Court. The Supreme Court dismissed the appeal reasoning that it was against good order and due administration of justice for civil courts to intervene in criminal cases. And that in the public interest to allow the due process and procedure in criminal proceedings to take their normal course.
   
10. The question that is pertinent and underlying as adopted from Films Rover International Ltd v Canon Film Ltd (1987) WLR 670 at 680 in Arrow Trading Ltd v New Ireland Development Corporation Ltd [2016] PGNC 431; N7277 (6 May 2016) is:
    

“The principal dilemma about grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the Court may make the wrong decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds ( or would succeed) at trial. A fundamental principle is therefore that the Court should not take whichever course it appears to carry the lower risk of injustice if it turns out to have been wrong in the sense I have described.”

It is a delicate act of balance and the discretion is judicially exercised backed by cogent and credible evidence not without.

11. And this is clear from the observations that are made in Golobadana No 35 Ltd v Bank of South Pacific Ltd [2002] PGNC 36; N2309 (11 November 2002) that:
    

“A reading of these authorities show consistency or agreement in all of the authorities that the grant of an injunctive relief is an equitable remedy and it is discretionary matter. The authorities also agree that before there can be a grant of such a relief, the Court must be satisfied that there is a serious question to be determined on the substantive proceedings. This is to ensure that such a relief is granted only in cases where the Court is satisfied that there is a serious question of law or fact raised by the substantive claim. The authorities also agree that the balance of convenience must favour a grant or continuity of such a relief to maintain the status quo. Further the authorities agree that, if damages could adequately compensate the applicant, then an injunctive order should not be granted”.

12. This court recently considered this in Independent State of Papua New Guinea v Kalaut [2021] PGSC 2; SC2067 (28 January 2021), that although the incumbent holding did not have the tertiary qualification, prejudice outweighed. The constitutional role that was discharged by the Office of the Commissioner of Police was such that it was necessary that a status quo be maintained pending the appeal. A stay was granted.
    
13. Closer, to the facts here is East New Britain Provincial Government v Nekital [2013] PGNC 212; N5430 (27 November 2013) but the stage there, judicial review has not been reached here. This is stay intended applied pending but the issues posed there which underlies the judicial review proper yet to be heard and determined cannot be the basis for a stay here. Judicial review must and will have its day in court and cannot constitute the basis for grant. That is clear because what is considered is res judicata and cannot be the subject or reconsideration anew. What is raised here substantive to the judicial review will not constitute the basis for grant of a Stay.
    
14. It is therefore an uphill battle for the plaintiff BNL as to whether or not he is granted Stay or not? And if so on what basis? That is the primary issue for my determination here. I will be confined to that issue.
    
15. What is settled by the facts in his favour is that Leave has been granted. Which is the beginning of the process in due administration in judicial review. And is arguable on the required balance. That satisfied it does not follow that a case for grant of Stay has been made out. Plaintiff still has to sway that the other grounds set out above favour grant. Here his evidence relied upon has been challenged by the fifth defendant’s objections raised as to their veracity within section 35 (2) of the Evidence Act. In support of this he has filed on the 18^th February 2021 an affidavit of one Belden William. Which clarifies with particulars contained in a table setting out the deponent the objections and comments relating. This is relevant, credible and cogent evidence in the determination of this matter, as it is evidence that challenges what evidence is being sought to be relied upon by the applicant plaintiff here.
    
16. Relevantly are the affidavits of Timothy Peter James Cribb sworn 03^rd February 2021 filed the 05^th February 2021. The gloss alleged by the fifth defendant is that they comprise assertions, speculations, and assumptions not facts that KMHL is unable to open recommence the mine. In particular paragraphs 3, 4, 5, 6, 7, 8, and 9 are in this regard and do not advance the course.
    
17. This ground has merit in my determination, because individually and severely they have no independent verification by other evidence sustaining. Because the deponent is directly interested in the proceedings as a person who held a very influential and managerial role in that Plaintiff Company. He was its’ General Manager of Operations at the mine. It is in his interest that what is in issue before the court is independently verified to sustain his cause further to hold water. This would be strong if he demonstrates by special skills, pointing out features to the mine that have come out based on expert knowledge, trained person or personal in that field with experience and know how, who can independently verify as to conclude the assertions that he makes about the question of Kumul’s incapacity to maintain the mine, whilst awaiting the Judicial review proceedings current. He has been displaced by the eighth defendant of over a 30-year life span and relationship that he endured there. He is a Manager he must have technical and professional persons to corroborate the assertions that he makes against the eighth defendant who he asserts does not have the capacity to run Pogera mine as was his case. In this regard this evidence is not credible nor is it cogent to advance his cause.
    
18. His second affidavit is of the 21^st September 2020. This affidavit undermines clause 19 of the Mining Development Contract of the 12^th May 1989. Because the facts are settled that the parties to the proceeding are not complete strangers, meeting for the first time on a blind date. Rather the contrary is evident. This is 30 years plus life span in the relationship between them since the 12^th May 1989, when the Mining Development Contract was entered into between, the Independent State of Papua New Guinea-and- Placer (PNG) Proprietary Limited, Highlands Gold Properties Proprietary Limited, RGC (Papua New Guinea) Proprietary Limited. A joint Venture was signed for and on behalf of the State, by then Governor General Sir Ignatius Kilage. It was the Mining Development Contract (MDC) for the Porgera Project Enga Province Papua New Guinea. That document flows and emanates conditions obligations binding in law upon the parties including the applicant plaintiff. And is applicable to the current situation where winding down is current and the relevant clause 19 has serious obligations conditions which will seriously underpin whether or not a Stay is granted?
    
19. It directly draws the parallel between the parties and their relationship to the subject mine Porgera. It sets down the relationship between the two and has governed their relationship all along for the 30 plus years the Porgera Mine has been operational. It is not a blind document, because it sets in place what will happen in the event that the project has outlived its natural life given to it there. And as this case unfolds that is what is happening now. The Index to it is clear detailing from definitions in parts A, B, C and D. What is important for the purposes of this proceeding is clause 19 “Consequences of Termination. 19.1

If this Contract is terminated-

(a) the rights and obligations of the Joint Venturers and those of any assignee or mortgagee of the Joint Venturers-

(i) under or in respect of this contract; and

(ii) under or in respect of the Special Mining Lease and the other Titles; Shall, unless the State otherwise agrees, cease, and shall revert to the State free of encumbrances but without prejudice to the liability of any of the Parties in respect of any antecedent breach or default under this Contract or in respect of any indemnity given;

(b) each Party shall forthwith pay to the other Party all monies that may be owing to the other Party hereunder;

(c) the State Shall have the option, exercisable by notice to the Joint Venturers within thirty days following termination, to purchase the whole of the installation and infrastructure of the Project (other than Works and Facilities) at a total price equal to the fair market value of the said installations and infrastructure as a complete installation (but not as an ongoing concern) and not on an individual basis, the price to be determined by agreement between the Parties but failing such agreement by a Sole expert;

(d) the Joint Venturers shall have the right within the one-year period following the expiry without exercise of the State option under Clause 19.1(c) to enter the lands the subject (or formally subject) of the Special Mining Lease or of any of the other Titles and to remove and recover from the Mining Area and export from Papua New Guinea, unless otherwise specified in the Approved Proposal for Development, all their assets including fixtures located in the Mining Area;

(e) the Joint Venturers shall leave the Mining Area in a safe and stable condition (having regard to natural conditions in the area) to the reasonable satisfaction of an inspector under the Mining Safety) Act (Chapter 195A) who shall apply generally accepted standards of good mining practice and for such purpose the Joint Venturers may continue to occupy the Mining Area for a period of one year after termination; and

(f) except as provided in this clause or as otherwise provided in this Contract neither of the parties shall have any claim against the other in respect of any matter or thing contained in or arising out of this Contract.”

20. This is a clear relationship of contract which binds the parties in this proceeding both plaintiff and the State including its instrumentalities and persons relevant to this proceeding named. And the principle of privity of Contract is applicable here:
    

“The law on privity of contract in this jurisdiction is settled, that is, only the parties to a contract or an agreement may sue or be sued under it. See cases: Beno Maoko v. Kevin Ling (2008) N3293; Albert Areng v. Gregory Babia (2005) N2895; The Papuan Club Inc. v Nusaum Holdings Ltd (No. 2)(2004) N2603; Soka Toligai v. Sir Julius Chan and Ors (2012) N4842 approved in Dekenai Constructions Ltd v Tati Keke Resources Ltd [2019] PGSC 28; SC1800 (3 May 2019).

This is an action that has been commenced by one of the principal parties to that contract BNL. It is seeking Stay in the light of clause 19 of that contract set out above. And the Stay is sought against the other party to that clause, contract. Rather than allow the process by this document settle the matter it has been taken to this level. It would not be right in law to cross the path of that document binding between the parties by a Stay. In my view this is a fundamental fact that will underpin whether or not a Stay is granted. Unless there is strong evidence to the contrary this fact will be the determining factor in this application.

21. In the light of this fact the next affidavit sought to be relied on by the Plaintiff is that of Tony Esplin Sworn of the 07^th February 2021 filed 08^th February 2021. He states that Kumul Mineral Holdings Limited (KMHL) may not be able to recommence the Mine. In itself it is an assertion made without any evidence independently verifying this conclusion by this witness. Relevantly it is a matter within the knowledge of KMHL and would be more credible from that angle than from this witness. It is not a matter in which he is privy. And therefore, it is assuming more and is at the highest the opinion of the witness. It is argumentative without details of for instance statements of expenditure, or financial resources, including number of personnel deployed, and the technical details. And the assertions by the fifth defendant is confirmed that paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 are more opinion than evidence properly verified by independent evidence. It is not strong to push past so as to attain what is pleaded for the applicant. The negatives that are raised by the Plaintiff against KMHL have no independent material evidence corroborating what the Plaintiff raises, it does not advance her case any further to discharge the balance required.
    
22. The opposing evidence against is the affidavit of Belden William Lawyer of the 18^th February 2021 in the employ of Wagambie Lawyers which attaches as annexure “A” the Mining Development Contract (MDC). He does so for the cause of the fifth defendant who is the Prime Minister and the chairman of the National Executive Council who has the prime interest of the executive Government of the day in this matter. It is worth canvasing that advice by the National Executive Council to the Head of State is not justiciable: Aeava v National Executive Council [2001] PGNC 62; N2136 (2 August 2001) except where evidence illuminates as was the case there where natural justice was not observed. This is not a case of natural justice, but a contract entered into with BNL by the State. It was signed between the parties on the 12^th May 1989 for 30 years. BNL its predeceaser Placer Dome Pty Ltd and the State were principal to it. A 30-year Special Mining Lease (SML) was granted to Placer Dome Pty Ltd now BNL. That came to an end on the 16^th August 2019; the Porgera Project expired on 16^th August 2019. BNL applied for an extension pursuant to section 112 of the Mining Act but was refused on the 27^th April 2020 by the National Executive Council. This action meant that by operation of clause 18.5 of the MDC of the 12^th May 1989 the MDC was effectively terminated. That brought into operation clause 5 of the SML effectively terminating SML 1 of the 12^th May 1989.
    
23. And for the purposes of clause 19.2 of the MDC for the State to give its consent pronounce or declare that the assets on the Mining area are the property of the State and no longer of BNL lapsed on the 16^th August 2020. And for the purposes of clause 19.1 (d) of the MDC for the plaintiff BNL to exit the mining area in a safe and stable condition to the reasonable satisfaction of an Inspector under the Mining (Safety) Act lapsed on 16^th August 2020. And on the 25^th August 2020 SML 11 was granted by the NEC to KMHL. This led to the current proceedings on the 21st September 2020. And despite that fact negotiation has been ongoing between BNL and the State which has been joined to by KMHL. In a way this is giving effect to the terms of the MDC and which in a way is where settlement in this matter lies.
    
24. That evidence is credible cogent and relevant to the issue at hand of the Stay that is sought by BNL. Because it is following from the MDC the termination clause which execution is evidenced by these facts deposed to by this witness. The parties to this action are directly principals to that Contract. They are affected by its operations and any actions as here a Stay will directly impinge on that MDC.
    
25. Clause 19.1 is drawing down that contract MDC as agreed to by the parties here. It sets out in place the mechanism that come into play when the contract comes to an end. In other words, damages for our purposes here is alternative by operation of clause 19.1. It can be quantified as to how much is to be paid. It will not be brushed aside and to install in its place a stay. Nor would it be in order to override it with a Stay. Its operational document between the parties and must be allowed free of any such encumbrances to give effect to its intent for the 30 years life it has enjoyed.
    
26. This is particularly clear considering that the parties (State & BNL) are obligated by clause 19 (1) (e) of the Mining Development Contract (MDC) to ensure the safety and integrity of the Mine is maintained on a daily basis until recommencement. A stay will disrupt and affect this clause of the MDC binding between the parties who are also the same here in this proceeding.
    
27. It is important to reflect that this is not the first time Stay has been sought by the applicant. It was sought by the applicant in the Supreme Court presided by Justice Makail in Barrick (Niugini) Limited v Stanley Nekitel in his capacity as Registrar of Tenements & Jerry Garry as Chairman and Representing all members of the Mining Advisory Council & Mineral Resources Authority & Hon. Johnson Tuke, MP, Minister for Mining & Hon. James Marape, MP as Chairman and Representing all other Members of the National Executive Council & The Independent State of Papua New Guinea & Mineral Resources Enga & Hon. Davis Steven, MP as Attorney General and Nominal defendant on behalf of the Head of State (17^th to 25^th September 2020) SCA No. 18 of 2020.
    

The remarks of the court at paragraph 18:

“The reasons for the decision and parting of ways with Barrick have not been articulated by the Respondents. However, it would appear that the Executive Government has decided to move on. This is reinforced by the Position taken by the Respondents at the hearing. The Respondents led by Solicitor General strongly contended that events have overtaken the appeal and grant of stay would serve no useful purpose because the NEC had made a subsequent decision to grant a SML over the Land on which the mine is located to Kumul Minerals Holdings Limited (KMHL) on 25^th August 2020.

19. This is the latest turn of events and can be viewed as the State’s further act of parting ways with Barrick. This latest decision has now put Barrick in a position where it must now not only challenge the decision to refuse to extend the SML but also the grant of SML to KMHL. That decision has been apparently gazetted to take effect.

28. In my view this is a very important observation that has every relevance to the present proceedings. It revolves around the same facts as contended here, except that KMHL is now the holder of the SML. Further a number of arguments advanced are proper before the Judicial review proceedings now leave granted and pending. These include the repatched arguments that the eighth defendant was not entitled to be granted the Special Mining Lease (SML 11) because the land subject of the SML 11 was not available because it was subject to SML 1 or the Exploration Licence 454 (EL 454) both were held by the Plaintiff wholly and in part at the relevant time of the grant.
    
29. And Part V of the Mining Act 1992 did not allow for the eight defendants application for SML 11 as the subject land was not reserved land within section 95 B and 95C. Therefore, the tenement application by it did not comply with the usual requirements stipulated for Special Mining Lease and was invalid. There was in essence no reservation of SML11 by the State. Because upon expiry of SML 1 that area covered reverted into forming part of EL 454. It was on that basis not available for application and grant in July or August 2020. And this arises from section 29 (4) of the Mining Act. That upon expiry of an SML the area subjected shall revert to the Exploration Licence from which it was originally excised. Here that was the case the subject land was part of EL 454 and was not available for grant.
    
30. These are issues relevant open for determination in the judicial review proceedings and will not be considered here for the Stay application. Other evidence as to proving or disproving issue of credibility such as the evidence of Ruth Busun sworn of the 05^th October 2020 filed 06^th October 2020; Stanis Hualu sworn of the 12^th February 2021 and filed of the 17^th February 2021 and filed the 17^th February 2021; and Lava Michael sworn and filed of the 18^th February 2021 coupled with the affidavit of Anthony Ian Esplin sworn the 18^th February 2021 do not underpin the primary issue of whether or not a Stay can be granted or not.
    
31. As mounted there the criticism of the NEC decision through the head of State has been the subject of this present challenge with reference to the Mining Act and in particular the issue of Tenements under that Act. It is argued that what has been done is to frustrate the process now challenged awaiting hearing and determination. And the argument advanced there that there could not be two tenements over the same piece of land has also been advanced here. And the reasons for the decision not being disclosed are also pursued here. And therefore, a breach of natural justice is also pursued here.
    
32. In my view these are relevant material for the judicial review proper and not for a Stay application. What is important too here is the decision that granted leave and the orders that emanated from there, which has no specific restraint placed on the activities after grant to KMHL. So that there is clear demarcation of what is allowed and what is not. It would not be a game of pointing to what is being done and not done therefore contradictory without drawing parallel with a standard set. There are no orders preventing what has been done by KMHL. It is exerting what is required by the SML which is a different matter from questioning and acting against the decision of the court in judicial review.
    
33. Here leave was granted to the plaintiff on the 26^th January 2021 for judicial review. And the application for Stay was filed 21^st September 2020. That is even before the application for leave was filed. For almost 4 months it remained dormant and was not moved it could not be urgent. It would appear there was nothing out of the ordinary calling for immediate attention. And it begs whether there was any real need and urgency to call and secure a stay.
    
34. The plaintiff instituted Barrick (Niugini) Ltd v Nekital [2020] PGNC 180; N8409 (5 June 2020) where the application was for leave to review the decision of the National Executive Council. Pursued were allegations of breaches of Natural Justice, procedural fairness, failure to consider relevant considerations, breach of Statutory prescribed process, bad faith, unreasonableness in the Wednesbury sense. Out of which only one ground was made out, that the reasons of the decision were not disclosed to the plaintiff. Accordingly, order was made for its provision to him.
    
35. The plaintiff commenced Barrick (Niugini) Ltd v Nekital [2020] PGNC 199; N8429 (10 July 2020) for discovery of certain documents that were refused as privileged by section 86(4) of the Constitution prohibiting the discovery of documents constituting advice to the Head of State. Consequently, the NEC’s advice to the Head of State in this case was not discoverable. It also relates to this matter. The parties are the same and issue is evidence that will comprise proceedings tailored leading to what has come out here. Even mediation and its resolution the terms of Mediation: Barrick (Niugini) Ltd [2020] PGNC 376; N8652 (5 August 2020). Again, the Plaintiff is instituting the cause of action as here. Yet another case seeking stay is Barrick (Niugini) Ltd v Nekitel [2020] PGSC 94; SC2005 (25 September 2020). Which was the Supreme Court dealing with the same parties on the same issue as now posed, whether a Stay should be granted to the plaintiff there pending an appeal where the National Court had dismissed the plaintiff’s action for Judicial review. The institution of the present proceedings was on the 21^st September 2020 by the plaintiff that is the same week when that decision was handed down over the same. Examining the material facts there is no marked difference here as noted in that decision by the Supreme Court. There is no real haste to preserve with a Stay if this is the way that the plaintiff has had to deal with the matter.
    
36. In the light of all the balance of convenience has not shifted to favour the assertions of the plaintiff given these facts. He has opted challenge all the way and it would seem all have not gone his way given the discussion set out above. Rather than bring expediency in the matter he has brought hardship on the other party and no doubt if granted there would-be hardship particularly in the light of clause 19 of the MDC. The nature of the Judgement sought will bring more hardship than justice. Hence therefore the overall interest of justice is not to grant the Stay as pleaded. Because damages will be resulted and money will not equate in view of the discussion set out above. Here no specific evidence has been led as to the financial ability of the applicant even though he is recently derailed from the Special Mining Lease. Leave has been accorded it alone because of arguably prima facie will not lead that Stay is granted. As that is not the totality of the matter. It is the adverse that Stay is refused with costs to follow the event on an indemnity basis in the light of all set out above.
    
37. Cost is discretionary what is set out above clearly portray that the defendants were unnecessarily drawn into court because the MDC was the document that governed the relationship and set out the basis to wind down. It was not resorted to nor was it considered and the action draws out unnecessary court time given that fact was binding between the parties. They were principal to it and it saw no time to settle this matter. It must come to a stage where it cannot be condoned by simple order of costs follow the event. Here the facts warrant that stern action be taken against blameworthy conduct: Paki v Motor Vehicle Insurance Ltd [2010] PGSC 2; SC1015 (9 February 2010) the Supreme Court stated that:

“The award of costs on an indemnity basis is discretionary. An order for costs on an indemnity basis may be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable, or blameworthy that he should be so punished by such an order. The question is whether the conduct of the appellant in this matter is such that it caused the respondent to incur unnecessary costs.”

38. The facts set out above show a piece meal approach in the way the many actions were instituted by the plaintiff. Rights flow but must be pursued with a sense of justice and fairness to the other side and to the court. Convoluted congested actions must be avoided but there ought to be a sense of balance drawn so that equity meets equity not without. No doubt this was felt in the motion for security of costs that was intended by the eighth defendant. Finality in litigation must be envisaged and pursued not in pockets or piecemeal to finally drive here. A man who must be charged with break enter and stealing ought to be charged as such and not done piecemeal, firstly with being unlawfully on premises, then with wilful damage and stealing. It does not serve justice. The road to justice is with fairness and equity not without. There was no urgency to move as was done here settled by the facts set out above. It was in the plaintiff’s favour that leave was granted rather than wait that process and see the hearing of the review he put the defendants to tasks by bringing their attendance here including court time. Appreciating what the law was on in like proceedings. Is this a case where unnecessary costs were incurred as in Concord Pacific Ltd -v- Thomas Nen [2000] PNGLR 47. Or is this a case where there is blameworthiness and therefore indemnity follows in costs. Given all set out above this is a case for indemnity of cost to follow the event. Costs will therefore be on indemnity basis to follow the event.
    
39. The formal orders of the court are therefore:
    
    • (i) Motion for Stay is refused
    • (ii) Costs will follow the event on an Indemnity basis if not agreed to be taxed.

Orders Accordingly.

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Ashurst PNG Lawyers: Lawyer for the Plaintiff/Applicant

Nelson Lawyers: Lawyer for the First, Third & Fourth Defendants

M.S. Wagambie Lawyers: Lawyer for the Fifth Defendants

Office of the Solicitor Generals: Lawyer Second & Sixth Defendants

Geroro Lawyers: Lawyer for Seventh Defendant

Denton PNG: Lawyer for Eight Defendant