Home | Databases | WorldLII | Search | Feedback High Court of Solomon Islands

Australia Resource Management (ARM) Pty Ltd v Pacrim Resources Ltd [2006] SBHC 30; HC-CC 267 of 2006 (1 August 2006)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 267of 2006

AUSTRALIA RESOURCE MANAGEMENT (ARM) PTY LTD

-v-

PACRIM RESOURCES LIMITED,
THE ATTORNEY-GENERAL (Representing the Director of Energy),
THE ATTORNEY-GENERAL (Representing the Mine),
THE ATTORNEY-GENERAL (Representing the Mineral Board)
& SMM SOLOMON LIMITED

High Court of Solomon Islands

Date of Hearing: 28th July 2006

Date of Ruling: 1st August 2006

Mr. I Molloy with Mr. J. Hauirae for the Plaintiff.
Mr. N. Moshinski QC the Solicitor-General with Mr. R. Ziza for the 1st, 2nd &3rd Defendants, the Attorney-General.
Mr .J. Sullivan QC with Mr. R Kingmele for the 5th Defendant

Application for Leave for Writs of Certiorari and to be Joined in Other Proceedings

Summons and Statement under Order 61 R. 2 of the High Court Rules.

Brown, J: The plaintiff ("ARM") is a mining company incorporated in Australia having investment approval from the Foreign Investment Board of Solomon Islands to carry on business in country. It now seeks approval to conduct explanation activities in the Isabel Province.

The Background.

The plaintiff comes to this court seeking leave, under O 61 r 2 to apply by notice of motion for an order for certiorari with respect to decisions of particular authorities, to wit the Minister for Mines and Energy, the then Honourable Simeon Bouro dated 20 January 2006 (purporting to renew PACRIM Resources Ltd’s prospecting licences in Isabel) and the Director of the Mines and Energy Board rejection of ARM’s applications for prospecting licences in Isabel by letter dated 21 June 2006. I directed that such applications come on notice, rather than by ex parte motion, for the decision of the Minister Bouro is currently the subject of joined proceedings which also seek an order in the nature of certiorari on SMM Solomon’s and the Attorney’s own motion. At the same time, PACRIM’s application seeks a declaration of the efficacy of Minister Bouro’s act in renewing PACRIMs licence and to put in perspective and colour the claims of the Attorney-General and SMM to a writ of certiorari, both rely on and urge the validity of the earlier Minister for Mines, the Honourable Basil Manelegua decision refusing PACRIM’s application for renewal of prospecting licences in Isabel given, it is alleged, on the 27 July 2005.

Those claims for relief by the Attorney and SMM seeking a writ of certiorari, and PACRIM’s for a declaration of validity of the later Ministers’ order of the 20 January 2006, have proceeded to trial, and I await submissions, all evidence having been heard.

It is clear then, that this plaintiff, ARM, in these separate proceedings, also seeks to quash that same order of the 20 January by way of certiorari.

As a consequence, Mr. Molloy for the plaintiff argues it would not offend to be heard in those earlier proceedings, (since all are parties to a dispute that relates to the same subject matter that should be dealt with at the same time) for (if I may phase-phrase his argument), the wish to quash is congruent with that proposed by these other two plaintiffs in separate proceedings.

The plaintiff’s first claim for certiorari.

I proposed to deal firstly with this application for leave to bring this fresh claim for certiorari.

Mr. Molloy supports his argument by referring to a purpose, to sift out hopeless or other wise unmeritorious applications at an early stage. The flaw in that argument is of course, that leave, already having been given other parties in these separate proceedings, only accepts standing in those parties to proceed on grounds personal to them. Importantly the Attorney claims his common law right to intervene when the interests of the public are threatened with damage or are liable to be wronged.

These matters predate ARM’s claimed right to seek to prospect about Isabel.

It cannot avail ARM to rely on its real and present interest to prospect about Isabel, deposed to by its Managing Director, or its existing prospecting licences about Guadalcanal as sufficient interest to support this application for leave. Mr. Molloy’s argument is superficially attractive for he rightly points to the fact that the proceedings at trial before me involve the same parties that ARM have sued; the argument relates to the same prospecting areas and the issues which ARM seeks to raise include one to be decided in this trial. Mr. Sullivan, QC for SMM criticises the plaintiff’s argument for "awareness" in the plaintiff’s mind of the arguments in effect going to SMM and the Attorneys’ claim to invalidity of Minister Bouro’s decision of the 20 January 2006 granting licences to PACRIM, cannot be equated with "facts" necessary to be relied upon by ARM as sufficiently linking it to ARM’s cause. (Slater and Gordon v Ross Mining (SI ) Ltd CA 007/1999 judgment dated 23 November 1999 at 21-23)

For the cause of action to be gleaned in the Statement in Support (in the absence of a pleading), even on a reading of the affidavit of the plaintiff’s director, Mr. A Jelley, can only relate to the Director of Mines’ (the appropriate officer under the Act) refusal to accept the plaintiff’s application for a prospecting license. That refusal was dated 20 June 2006. The plaintiff became aggrieved at that point in time so that its cause of action could only arise then. The arguments over factual matters involving these other parties in the trial will require findings on issues in the trial but they do not concern ARM. In those circumstances, Mr. Moshinski QC says ARM is not a necessary party in terms envisaged by the Rules for "joinder". An analogous situation is illustrated in the ratio decidendi of the Court in NAB v Hokit Pty Ltd (NSWCT of Appeal; 17 June 2006 where the headnote records:-

"(1) The intervention of the Consumers Federation of Australia as amicus curiae should be allowed but should be limited to matters of public interest not dealt with by the other parties and should not intrude upon the detail of the particular relationships between the parties."

The earlier proceedings include the Attorney’s claim for relief, which he peruses in the public interest. The plaintiff is not seeking to argue a public interest claim in its application now. When I read "Applications for Judicial Review- Law and Practice" Grahame Aldous and John Alder, London Butterworths 1985 the learned authors, at 125 when dealing with leave and sufficiency of interest, point to ex p. Federation of Self Employed where the House of Lords deprecated the earlier ruling that a person would ordinarily be entitled to leave where locus standi may not appear so clearly at the "leave" stage. In other words, proper grounds must be established at the outset.

The proposition that a genuine interest per se in the proceedings on foot will amount to "standing" especially when, as is the case here, the proceedings at trial had been commenced relying on pleadings of events and acts particular to those other parties, will not enliven a right to leave in this plaintiff. A commercial opportunity to prospect, were it to arise as a possible consequence of a judgment not yet given, is not "a sufficient interest" in terms of the authorities which guide me. Issues, which if determined in favour of either of the earlier parties seeking to quash the Minister’s order will effectually determine this plaintiff’s first claim for relief (for a writ of certiorari will issue) but will not, by themselves, go to effectuate a basis for ARM’s underlying cause, (the refusal to accept a prospecting license).

The plaintiff’s second claim for leave.

That basis or underlying cause must await this courts’ findings on a number of factual issues in the trial, not least for instance, Pacrim and SMM’s own claims to the prospecting licenses, applications predating on their face, this applicants.

For should this court quash this decision of the Minister in January, that does not vouchsafe this second claim for relief of ARM, the claim to have its prospecting application considered. As I say, Pacrim and SMM’s competing claims may, by permutation, extinguish any basis for complaint by ARM by virtue of s. 20(5) of the Mining Act. For a right to a prospecting license to either may follow, which by virtue of s. 20(5) would make later claims nugatory. Equally, resolution of the arguments in the trial by judgment may justify ARM’s secondary claim for leave. But at this stage it must surely be premature if not unavailable to be argued in law, for it rests on a presumption of irregularity by the Minister and that must await judgment. The plaintiff cannot base his cause on a "presumption of irregularity" which is not known to law. Even if proven, (the obligation is on the asserter) the judgment may result in a direction to the Minister to reconsider and to reach a decision in accordance with the judgment of the court. The factual matrix leading to the Ministers decision of the 20 January does not include acts of ARM at all, so it is hollow for Mr. Molloy to say that, by allowing ARM joinder in these earlier proceedings, it will be bound by any decision. There is no issue estoppel in such certiorari proceedings, for the decision is not a final determination of issues. (R v Secretary of State for Environment, ex p. Hackney London Borough Council (1983) 1 WLR 524; (1983) 3 All. E.R. 358).

Those determinations await my judgment.

Were the earlier proceedings to result in the refusal of the order of certiorari then this plaintiff is faced with the fact of the ministers order and is without recourse in terms of s. 20 (5).

Application for leave out of time.

Of course Mr. Moshinsky QC points to the obvious failure to bring proceedings within 6 months of the date of the Ministers decision in January, and that should be an end to it. Mr. Molloy seeks the exercise of the courts discretion for he says, the other parties will not be prejudiced were I to grant leave in the first instance; they face the argument already. It is however, not an argument of ARM’s making and as Mr. Sullivan says, ARM can bring nothing to it. With that I agree.

Orders.

For these reasons I refuse leave with respect to the 1st application. The 2nd application clearly lacks a proper basis in fact and I suggest law at this juncture. Leave is refused.

It must be borne in mind that the earlier proceedings are not concluded and the plaintiff seeks to be heard in that trial. It may be unnecessary but for caution I refuse that application for it must rest for its justification at least on a grant of leave.

Costs shall follow the event, the plaintiff shall pay the various defendants’ cost, to be assessed or taxed.

THE COURT