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Supreme Court of Victoria |
Last Updated: 6 May 2021
COMMERCIAL COURT
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and
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CENTRAL EXPLORATION PTY LTD (ARBN 609 946 125)
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Second Respondent
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JUDGE:
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WHERE HELD:
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DATE OF HEARING:
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CASE MAY BE CITED AS:
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MEDIUM NEUTRAL CITATION:
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DISCOVERY - Pre-action discovery of documents from prospective defendant -
Pre‑existing lucrative mine in Bougainville, Papua
New Guinea, operated by
applicant - Cessation of mining due to civil war - Later re-conferral of
exploration licence to applicant
over same land area of mine - Mining land and
underlying minerals owned by customary landowners - Impending expiry of
applicant’s
exploration licence - Respondents’ co-existing rival
interests to seek exploration licence to redevelop the mine in joint venture
with customary landowners - Applicant’s legislative right to first seek
extension of exploration licence - Consultative legislative
process to enable
ultimate extension decision to be made by responsible Minister -
Applicant’s insinuation of bribes and illicit
payments by respondents to
influence customary landowners and others to oppose applicant’s interests
- Public hearing and assessment
by Mining Warden of objections from customary
landowners - Minister’s ultimate decision to refuse an extension - Whether
applicant
has ‘reasonable cause to believe’ that it has or may have
right to obtain relief against respondents for unlawful interference
with its
prospects for a licence extension - Absence of objective evidence to establish
‘reasonable cause to believe’
- Objective historical and
contemporary facts not supportive of asserted grounds of belief - Application
refused - Supreme Court (General Civil Procedure) Rules 2015 (Vic),
rule 32.05.
DISCOVERY - Pre-action discovery of documents from
prospective defendant - Not available as a broad investigative tool - Necessity
to show ‘reasonable cause to believe’ on objective and probative
evidence consonant with calibre of prospective claim
for relief -
Distinguishability between belief rather than suspicion or mere hunch or
speculation.
DISCOVERY - Pre-action discovery of documents from
prospective defendant - Interlocutory application - Evidentiary burden on
applicant
to show ‘reasonable cause to believe’ - Discretionary
power to allow cross-examination of respondent’s deponent
- Not usual or
useful to allow cross-examination as a rehearsal for prospective trial -
National Hearing Centres Pty Ltd v Vic O Tech Pty Ltd [2013] VSC 292
explained.
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APPEARANCES:
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Counsel
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Solicitors
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For the Applicant
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Mr C M Scerri QC with Ms K Anderson
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Patrick & Associates Pty Ltd
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For the Respondents
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SBA Legal Pty Ltd
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1 This is a judgment on an application made for pre-action discovery of documents under rule 32.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). That rule states:
Where:
(a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description the applicant has ascertained;
(b) after making all reasonable enquiries, the applicant has not sufficient information to enable the applicant to decide whether to commence a proceeding in the Court to obtain that relief; and
(c) there is reasonable cause to believe that the person has or is likely to have or has had or is likely to have had in that person’s possession any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist the applicant to make the decision –
the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c).
2 This intensely fought application went
for three hearing days, after which another controversy arose about a third
party’s
entitlement to have access to the transcript of the hearing. That
of itself required a considered judgment to be given, which has
been
reported.[1]
3 Before exposing and evaluating the intricate
facts of the application, there ought be a recapitulation at the outset about
the purpose
and operation of this rule because the essence of the opposition to
the application was not based on residual discretionary considerations
but, on
principle, that the application was being made without an objective evidentiary
basis to demonstrate a ‘reasonable
cause to believe’, and that the
rule was being used for an illegitimate investigative purpose to find a
reasonable cause to
believe.
4 Documents are a
person’s private property, and can be especially proprietary or
confidential to a corporation in trade and
commerce. Rule 32.05 has to be
understood in the wider context of the adversarial method of civil litigation in
which there is otherwise no means to require
production of any documents to an
inquisitive adversary before the commencement of legal proceedings; that is, no
obligation before
proceedings are first commenced on the basis of stated
allegations of material facts according to which a cause of action is disclosed,
and a claim made for a legal remedy or relief. When that occurs, and without
more, the Court’s procedural rules, in aid of
the administration of
justice, give the parties the right to obtain documents from each other before
trial to discover for themselves
facts that are relevant to the case to enable
the proper conduct and adjudication of the
lawsuit.
5 Rule 32.05 is another tool of justice for
discovery of facts that enables an adversary, in certain conditions, to seek
discovery of documents
and information before a proceeding is even commenced in
the Court and to do so in aid of a lawsuit that may, or may not, be
brought depending on the information obtained in the documents sought. This
rule is thought to be a modern innovation
to the remedy of discovery that
originated in the auxiliary jurisdiction of courts of equity to assist in the
prosecution of an existing
proceeding at
law.[2]
6 The principles informing the operation of rule
32.05 and the Federal Court of Australia’s once similar but no longer
identical rule have been the subject of many
authorities.[3] It has been notably
remarked ‘existing authorities appear to have been influencing these
applications into a form of mini-trial
where a form of fact finding takes place,
well beyond the mandate of the words of the rule’ and ‘[t]hose
authorities
should not be utilised to form a complex matrix of sub-rules of a
tolerably straightforward
provision’.[4]
7 In this Court, the purpose and operation of the
rule was stated concisely in 1998 by the Court of Appeal in Schmidt v Won
in this way:[5]
The rule, introduced in 1986, should be construed benevolently because its intention was both to assist claimants without sufficient, precise information to launch an action and to prevent the bringing of speculative suits: [citation omitted]. Applications, however, must not be based upon ‘mere hunches’ or such flimsy foundations as will not satisfy the requirement that ‘reasonable cause’ should be shown for the necessary belief. That is not to say, however, that some form of ‘fishing’ inquiry is not justified under the rule; indeed it is the very purpose of the rule to permit an inquiry of this kind, if the required conditions are made out.
8 The ‘benevolence’ of rule
32.05 to compel someone to hand over documents in order to help the recipient
decide whether to sue the giver of those documents, starts
with enabling an
applicant to move the Court for such an order without having to articulate a
cause of action or show a prima facie
case. The language of the rule makes it
enough for an applicant to identify the nature of the relief that may be
available for the
apprehended wrongdoing. And for the possible gains to be
obtained, an applicant can move the Court on the rather low threshold of
showing
reasonable cause to believe that it may have the right to obtain relief.
‘May have’ denotes a possibility. It signifies some degree of
tentativeness. Moreover,
the objective character of the rule as written does
not require the applicant to actually hold the belief. It will be enough if,
on
the evidence before the Court, a reasonable person could form the
belief.[6]
9 When
the amenity of this procedural rule and what it can reap is so understood, it
can be expected that as a matter of administering
reciprocal justice to a
respondent in an application, the Court’s power under the rule can only be
attracted if the preconditions
are properly made out, especially the threshold
requirement in paragraph (a) to show there is ‘reasonable cause to
believe’
that there may be a right to obtain relief for a civil
wrongdoing. That is a significant limiting condition, the satisfaction of
which
is not per se a matter of discretionary judgment. An applicant must
adduce evidence of the objective facts by which an applicant claims there
is
reasonable cause to believe in a right to obtain relief. That is why, for the
purposes of the rule, something more than a mere
assertion of a belief is
required, and a hunch or flimsy foundation is not enough.
10 The perceived benevolence of rule 32.05 should
not be misunderstood as allowing it to be used by an applicant as a broad
investigative tool to explore someone’s documents
to find out ‘what
happened’ and see if there is a cause of action available at
all.[7] Rather, the rule concerns
itself with the situation where an applicant can show that there is already
‘reasonable cause to
believe’ that it may have a case, but having
made reasonable enquiries, it does not have sufficient information to decide
whether
or not to take the consummate step of deciding to actually commencing
legal proceedings. That is usually because the applicant is
lacking some
particular information or type of document that is necessary to enable a
decision to be made whether or not to take
the step of suing. In that
situation, and assuming the scope of documents sought is not extravagant or too
invasive, generally speaking,
it will be seen by a Court as just and convenient
to compel a respondent to produce the telling document because it is in the
interests
of the administration of justice to enable a decision whether or not
to sue to be made responsibly and on sufficient factual grounds.
In that sense,
and only where reasonable cause to believe is shown, the rule is
‘tolerably straightforward’ and it can
be said generally when
speaking of the rule’s benevolence, that the tendency is for the arc of
justice to lean towards allowing
a disclosure of facts and documents as being
the constructive course.
11 But it would certainly
be unjust, under a banner of benevolence or an ethic of disclosure, to allow the
rule to be used by an applicant
to embark on an expedition to fossick through
someone’s documents looking for information to remedy deficiencies in
satisfying
the primary preconditions of the
rule.[8] That is, it would be unjust
to compel production of documents under the rule to enable an applicant to see
if it can thereby find
grounds for a ‘reason to believe’. That is
critical to an understanding of the rule’s proper
operation.
12 This application was opposed primarily
on principle, and not really as a matter of the exercise of discretion, as being
bereft
of any probative objective evidence to show the grounds on which there
was a ‘reasonable cause to believe’ that the applicant
may have a
right to obtain relief in this Court, and was instead based on no more than an
insinuation that ‘something wrong may have happened’. From
there, the opposition was levelled at saying the applicant was resorting
to rule
32.05 at the threshold as a broad investigative tool to find out what happened;
that is, to look into the circumstances in which events
or conduct occurred, and
see if there was any case to be made. That was said to be a purpose
antithetical to the rule.
13 The application is
peculiar and testing because the underlying facts did not occur in Australia
and, instead, are set firmly in
an historical, economic, and political context
involving a statutory regime none of which is grounded on Australian soil. The
facts
come from a close northern neighbour, Bougainville Island, which was
originally recognised as the main island of the North Solomons
Province of the
State of Papua New Guinea (‘PNG’). In 2005, the
island came to be constituted as the Autonomous Region of Bougainville
(‘Bougainville’), as governed by the Autonomous Bougainville
Government (‘the ABG’). To understand the meaning of being
‘autonomous’, it is stated publicly that:
ABG governs as an autonomous region of Papua New Guinea and is the only region with this political status. This is an important distinction as being ‘autonomous within’ rather than ‘independent from’ Papua New Guinea. Bougainville is not an independent sovereign state and therefore ABG cannot conduct certain activities (for example, ABG cannot make laws that contradict the national system of law or establish diplomatic posts in foreign countries).[9]
14 Since the hearing of this application,
in December 2019, the people of Bougainville have voted in a non-binding
referendum to prefer,
resoundingly, independence from PNG rather than greater
autonomy. A general election in 2020 changed the composition of Parliament
and
brought a new President. These transformative events do not affect the
adjudication of this application, although the prominent
subject matter of the
application — the prospective redevelopment of the historic Panguna gold,
silver and copper mine in central
Bougainville — has overtly been a matter
of socio-political activity and importance both locally in Bougainville and in
PNG
national affairs.
15 The foreign location of
the operative facts itself raises incidental questions of actionability in
Australia or the jurisdiction
of this Court on any future action that might be
brought for which, by hypothesis, documents are being sought in this application
to enable a decision to be made whether to commence a proceeding here.
The applicant and its economic interests in Bougainville
16 The applicant
(‘BCL’) is a company incorporated in PNG. It is registered
as a foreign company in Australia with a registered office in Melbourne,
Victoria.
BCL once was a subsidiary of Rio Tinto Limited, a recognisable
multinational mining and resources company. On 30 June 2016, Rio
Tinto divested
and transferred its controlling shareholding in BCL in equal parts to the PNG
National Government and to the ABG.
That resulted in each government separately
holding a 36.4% shareholding in BCL. The balance is held by public shareholding
and
institutional investors.
17 Those were the
facts when the application was heard. Since then, it has come to the
Court’s attention from publicly available
information that after the
referendum, on about 12 March 2020 the PNG National Government resolved to
transfer its 36.4% shareholding
in BCL to the
ABG.[10] Thus, unless there have
been other facts unknown to the Court, the ABG has become the majority
shareholder in BCL. Nothing substantive
turns on that for this application.
But, the fact that the ABG has at all relevant times been a shareholder of BCL
as well as being
responsible for the regulation and administration of the mining
laws on Bougainville is part of the potent political context in which
the facts
of this application come to be evaluated.
18 Stepping back in time, in 1972, BCL commenced
operation of an open-pit mine and processing facility for gold, silver and
copper
at Panguna, situated in the mountain region of central Bougainville. BCL
did so having been granted a ‘Special Mining Lease’
designated as
‘SML 1’ under an agreement made with PNG in 1967. That agreement
was ratified and given the force of PNG
national law by the Mining
(Bougainville Copper Agreement) Act 1967, Chapter 196. As I
understand the history, this occurred at the time of Australian colonial
administration.
19 The mine was lucrative. In the
17 years from 1972 to 1989, BCL’s operation of the Panguna mine produced
concentrate containing
substantial tonnage of gold, silver, and copper. The
value of production is said to have provided about 44% of PNG’s exports
and about 17% of the National Government’s internal
revenue.[11] Contemporary
valuations of the mine vary, but documents amidst the evidence put the
‘development value’ of the mine
in 2018 as ranging between US$5.113
billion to US$34 billion, depending on various assumptions made in the
valuation.[12] This world-class
mine was thus a major asset of PNG’s national economy and remains to be
viewed as a major asset for the fiscal
self-reliance of Bougainville, more so in
the present formative conditions of independence.
20 BCL’s operations at the Panguna mine were
brought to a halt in May 1989. That was due to the ravages of what became a
ten-year
civil war on Bougainville as waged between the secessionist
Bougainville Revolutionary Army and PNG forces, and which involved other
armed,
and complex, changing groups.[13]
It was a conflict of international significance. Writers describe it as
‘the deadliest, bloodiest, and most destructive conflict
in the South
Pacific since World War 2’ which was conducted ‘at a level of
savagery and brutality that is difficult to
comprehend’, in which 10,000
to 20,000 people are said to have
died.[14]
21 I trust it is not controversial or damaging to
say (according to materials in this application) that BCL’s operations of
the mine had major adverse environmental and social impacts on Bougainville, and
brought with it serious grievances among Bougainvilleans
about matters such as
the limited share of mine revenue and inadequate, unfairly distributed, and
unpaid compensation for damage
done.[15] This is not to be taken
as the Court presuming to pass oversimplified comment on a complex historical
and ethno-political subject.
It is to do no more than state a general
historical fact present in the strong undercurrent of this application about the
enduring
presence of ‘legacy issues’ for BCL concerning the major
adversities resulting from its past operation of the Panguna
mine as one of the
factors contributing to the civil war, and of what those lingering legacy issues
meant to Bougainvilleans and
government well after the civil war had ended, when
it came to the prospect of BCL redeveloping the mine and recommencing mining
operations.
22 As I understand the history, the
civil war came to an end in August 2001 after the signing of the Bougainville
Peace Agreement
between Bougainvillean leaders and the State of PNG. That
agreement provided for a division or decentralisation of existing powers
as
between the PNG National Government and the ABG which came to be constituted as
a polity under the Bougainville Constitution
(2004).[16] Correspondingly with
the PNG National Constitution, the Bougainville Constitution conferred functions
and powers on the ABG that specifically included ‘mining’ on
Bougainville. On the subject of ‘natural
common mineral and oil
resources’, the Bougainville Constitution
stated:[17]
(1) The laws and policies of Bougainville shall be directed towards the recognition of customary rights of the People of Bougainville in relation to the land and the sea and natural, mineral and oil resources of Bougainville and any law relating to the development of such resources shall take that into account.
(2) The utilization of the land and the sea and natural resources of Bougainville shall be managed in such a way as to meet the development and environmental needs of present and future generations of the People of Bougainville and the Autonomous Bougainville Government shall take all possible measures to prevent or minimize damage and destruction to land, seas, air and water resources from pollution or other causes.
23 With the devolution of powers, there
followed a regime of new statutory laws in Bougainville to regulate mining and
minerals.
That occurred first with the Bougainville Mining (Transitional
Arrangements) Act 2014 which came into operation on 8 September 2014.
I shall pass over that Act as it was a short-lived interim law having no real
practical
operation and came to be repealed by the long-term Bougainville
Mining Act 2015. That Act (‘2015 Mining Act’) commenced
on 1 April 2015.
24 It is sufficient to refer
to five salient outcomes of the 2015 Mining Act that illuminate the setting and
the facts of this application.
25 First, the State
of PNG’s ownership of minerals in Bougainville land was expunged. The
2015 Mining Act provided that: ‘All
minerals existing on, in or below the
surface of land in Bougainville ceased to be the property of the State on 8
September 2014,
in accordance with section 12 of the Transitional Mining
Act’. Instead, all minerals on, in or below the surface of customary
land
in Bougainville became the property of the owners of the customary land. All
minerals on non-customary land became the property
of the
ABG.[18]
26 Secondly, under the 2015 Mining Act, although
the customary landowners became owners of the minerals, the power to grant
mining
tenements over customary land was conferred exclusively on the
ABG.[19] That power is to be
exercised according to mandatory statutory considerations such as: the customary
rights of Bougainvilleans and
the desire for unity; the minimisation of
environmental, social and cultural impacts; and ‘the promotion of
equitable development
amongst all parts of Bougainville including less developed
areas and areas without minerals so as to avoid or minimise tensions and
conflict likely to be associated with significant inequality’; and the
need for the ABG to develop autonomy and achieve fiscal
self-reliance.[20]
27 The dichotomy between the customary
landowners’ ownership of minerals on their land, and the exclusive right
of the ABG to
grant exploration and mining tenements over that customary land
would, it may be thought, engender recognition not only of the need
for proper
public governance for orderly mining developments on Bougainville to enable
advancement, but also recognition of the reality
that the large-scale extraction
of mineral deposits on customary land could only occur with the involvement of
mining companies having
the technical competence, experience and financial means
to undertake the exploration and mining of the minerals. Thus, for customary
landowners (as owners of the minerals under their land) to commercialise their
interests, they would have to form commercial engagements
with mining companies.
Such an engagement could possibly be with BCL as the pre‑existing operator
(despite the legacy issues)
or it could be with another new and suitable mining
company.
28 Thirdly, although customary landowners
have no right of veto over an ABG decision to grant an exploration licence over
their land,
they have effective control over any mineral exploration on their
land because the 2015 Mining Act gives them the right to deny access to
land over which an exploration licence has been granted, unless a land access
and exploration agreement has been negotiated between
the explorer and the
customary landowners.[21] Without
an agreement to access the land to be explored, an exploration licence would be
sterile.
29 Projecting beyond the exploration
phase, the Act stipulates that a mining lease must not be granted to a person
other than the
holder of an exploration licence or a transferee and must not be
granted ‘if landowner permission of the mining lease has not
been
obtained’.[22] That appears
to give landowners significant power to block mining leases.
30 Fourthly, the 2015 Mining Act gives owners of
customary land the right to officially organise themselves as a collective, in
the
form of an ‘approved landowner organisation’. That is a means
by which identity, legitimacy, and proper representativeness
can be given to
customary landowners, as well as being an orderly means by which customary
landowner permission can be sought and
given for the purposes of the
Act.[23] The approval of a
landowner organisation is within the discretion of the Bougainville Executive
Council; a discretion that cannot
be exercised before the House of
Representatives has debated the merits of an
application.[24] On obtaining
approval, a landowner organisation has to comply with governance standards under
the 2015 Mining Act, such as trust
fund accounting, auditing requirements, and
annual reporting.
31 Fifthly, the 2015 Mining Act
‘disapplied’ various PNG mining statutes including the Mining
(Bougainville Copper Agreement)
Act.[25] It also put an end to
BCL’s Special Mining Lease (SML 1) over the land of the Panguna mine by
proclaiming that lease to be
‘of no
effect’.[26] However, BCL was
not left without a tenement. Under the 2015 Mining Act, BCL was treated as
having been granted a two-year exploration licence on 8 September
2014, over the same land at Panguna that was the subject of its previous Special
Mining Lease.[27] That two-year
term was less than the maximum term of five years for an exploration licence
which is otherwise permitted to be granted
under the
Act.[28]
32 Having had its original Special Mining Lease
taken away, the deemed grant of a two-year exploration licence to BCL could be
described
as a privilege or as conferring a priority, as it relieved BCL of the
necessity to embark, in post-civil war conditions, on the
elaborate process of
applying at first instance for an exploration licence under the 2015 Mining
Act.[29] That process would have
involved the following: a host of manner and form procedures and technical
requirements in lodging an application;
the satisfaction of various criteria; a
preliminary examination of the supporting materials by the Bougainville Mining
Registrar;
public notifications of the application; a consultation process with
each Council of Elders with jurisdiction over the area of the
proposed
exploration licence; a procedure for receiving objections in prescribed form to
the grant of an exploration licence; a hearing
by the Bougainville Mining Warden
to hear the views of not only the owners of the land the subject of the
application but also the
views of the owners of any adjacent land, as well as
the owners of any other land ‘that can reasonably be expected to
experience
financial, environmental, social, cultural or other impacts should
exploration or mining commence’, and the views of any approved
landowner
organisation that represented any of those
landowners.[30]
33 Under the statutory regime, the Mining Warden
has the statutory obligation to ‘record and assess the views of the
landowners
and the approved landowner organisations ... including whether each
landowner and approved landowner organisation has given permission
for the
matters to which the application
relates’.[31] Following a
Warden’s hearing, a written report is made by the Warden to the
Bougainville Mining Advisory Council for its consideration
and to enable, as the
next step, a decision to be made by the Bougainville Executive Council and the
responsible Minister on whether
to grant or refuse that application, having
regard to the Mining Advisory Council’s advice.
34 As the grantee of a two-year exploration licence
under the 2015 Mining Act, BCL gained the right to enter and occupy the land to
be explored but, under the Act, that was subject to first making a land access
and compensation agreement with the customary
landowners.[32] BCL also gained
exclusive occupancy for exploration purposes of the land over which the
exploration licence was granted (subject
to compensation agreements and some
special overlapping rights)[33] as
well as an exclusive right to subsequently apply for a mining lease over the
same land.[34] It is stated within
the materials, and not contradicted by BCL, that BCL was for the duration of its
two-year exploration licence
unable to obtain customary landowner agreement to
access the land the subject of the exploration licence, and was therefore unable
to explore the mine area for the purposes of its prospective redevelopment of
the mine.[35] This refusal of
access by the customary landowners to enable BCL to explore the mine land is of
crucial importance in understanding
subsequent events. It shows the early
negative attitude of the customary landowners of the mine land to the prospect
of a return
by BCL in post-civil war Bougainville.
35 But, for as long as BCL’s exploration
licence held currency, any other prospective explorer seeking to become the
re-developer
of the Panguna mine could not obtain an exploration permit over the
same land. Moreover, as the holder of an exploration licence,
BCL did not have
tenure but was given the right under the 2015 Mining Act to apply for an
extension of the licence ‘any number
of times’ for a term not
exceeding five years at a time.[36]
A continuum of sorts could be created because, once the Bougainville Mining
Registrar accepts the lodgement of an extension application,
the term of the
exploration licence is taken by law to be extended until the application is
either granted or refused.[37]
36 As the holder of a two-year exploration licence
from 8 September 2014, by law, any application by BCL for an extension of that
licence had to be lodged at least 60 days before the expiration date of 7 or 8
September 2016; that is, it had to be lodged by 8
or 9 July
2016.[38]
37 Once accepted for lodgement, an extension
application is not assessed over a functionary’s desk as a prescribed
form. ‘Any
person’ may submit an objection to the Mining
Registrar.[39] Each objection is
given to the Bougainville Mining Advisory Council. A copy of the extension
application is given to each Council
of Elders with jurisdiction over the
exploration area to which the extension application applies, and the Elders are
invited to submit
a report.
38 The extension
application must be the subject of a Warden’s
hearing[40] to record and assess the
views of: the landowners and the approved landowner organisations of the subject
land as well as the land
adjacent to the subject land, and any other land that
could reasonably be expected to experience financial, environmental, social,
cultural, or other impacts. As I follow the 2015 Mining Act, the Warden’s
assessment includes ‘whether each landowner
and approved landowner
organisation has given permission for the matters to which the application
relates’.[41] The Warden then
submits a written report to the Mining Advisory Council, on whose advice the
Executive Council of the ABG makes
a decision on the extension application.
39 It is the outcome of such a process that has
brought about the present application. This application emanates from
BCL’s
pursuit of a first extension of its exploration licence over the
customary land of the Panguna mine area. That occurred in a context
in which,
since about February 2016, there was gestation of a creeping rival aspiration by
the respondents to make or take an opportunity
to obtain rights and garner
support to redevelop the Panguna mine in the altered conditions of post-civil
war Bougainville. To do
that, the respondents had to first obtain from the ABG
an exploration licence over the same land of the Panguna mine already subject
to
BCL’s exploration licence. The respondents could not do that whilst
BCL’s exploration licence subsisted.
40 Thus, as put in argument by BCL, any rival
mining company could not apply for an exploration licence unless, somehow, the
rival
first ‘got rid of’ BCL’s exploration licence. That is
an overture to what this application is about.
41 Although there are common interests,
the respondents are separable. The first respondent, RTG Mining Inc
(‘RTG Mining’) is a mining and exploration company
incorporated in the British Virgin
Islands.[42] It is registered in
Australia as a foreign company with a registered office in Perth, Western
Australia. Its securities are listed
for quotation on the Australian Securities
Exchange (‘the ASX’) and the Toronto Stock Exchange
(‘the TSX’) in Canada.
42 The
second respondent, Central Exploration Pty Ltd (‘Central’),
is an Australian mining and exploration company with a registered office in
Sydney. It was incorporated in December 2015. RTG
Mining holds a 24%
shareholding in Central. Two of RTG Mining’s directors are on
Central’s five-member Board of Directors.
One of those directors holding
dual office is Ms Justine Magee. With that authority, she states in her
affidavit in opposition
to the present application that ‘for some time,
Central has been actively pursuing obtaining a commercial interest, directly
or
indirectly, in mining or exploration rights in the Panguna region of
Bougainville’.[43] She also
states that: ‘Since around August 2016, RTG Mining has supported Central
in that pursuit by sourcing and providing
funding, and since around December
2016, as a shareholder’.[44]
Mr Ian de Renzie Duncan, another director (and the Secretary) of
Central, is also personally active in Central’s activities
in
Bougainville. He is described in the materials as a senior mining lawyer with
wide international experience.
43 There is a third
corporation which is not a party to the application but which is integral to the
pursuit of Central’s interests.
It is Central Me’ekamui Exploration
Ltd (‘CMEL’ or interchangeably ‘the JV Co’
to avoid possible identity confusion with Central). CMEL was incorporated
in PNG as the corporate vehicle for a joint venture by
Central and an
organisation in Panguna, known as the Special Mining Lease Osikaiyang Landowners
Association Inc. (‘SMLOLA’), to obtain the opportunity to
redevelop the Panguna mine.
44 The existence and
role of SMLOLA is of crucial importance. It was registered on 7 September
2011 under the Associations Incorporation Act
(PNG).[45] Under its Articles of
Association, membership of SMLOLA was of natural persons who were ‘an
osikaiyang [defined to mean original
inhabitants in the Nasioi language of
Central Bougainville] of Moroni, Pirurari, Pakia, Dapera, Guava, Kokore and
Kupei Villages
in accordance with the Nasioi custom in the Special Mining Lease
area of Panguna Mine’. The Articles also state that ‘a
person’s right to being a member of this Association is determined by
being born or adapted into the landowning clan in the
Special Mining Lease
area’. Hence, SMLOLA was made up of people with a direct and proximate
connection to the land on which
the mining and extraction had occurred at
Panguna.
45 The stated objectives and purposes of
SMLOLA show that, in post-civil war Bougainville, the customary owners of the
land in Panguna
were attuned to the prospects of the redevelopment of the
Panguna mine, the commercialisation of their mineral interests, and their
participation in any redevelopment of the mine with a developer. SMLOLA’s
objectives are (with my underlining of matters I
think are especially pertinent
to the application):
(a) To promote, participate, encourage, facilitate and monitor on behalf of the people of the Special Mining Lease area the sustainable utilization of their land, forests, river and natural resources in Panguna Mine and to ensure that they receive maximum benefits from the developments and operation of the Panguna Mine.
(b) To promote peace, unity and co-operation amongst the Landowners in the Special Mining Lease area to harmoniously participate in the exploitation of their natural resources and to ensure sustainable utilization for the collective benefit of all Landowners in the Special Mining Lease area.
(c) To distribute the wealth generated from the development of the Panguna Mine equally to its members by developing, improving and maintaining vital services in their communities which in turn improve their standard of living.
(d) To receive, organize and administer funds, compensation payments, grants and gifts from the National Government, Autonomous Bougainville Government, the developer of Panguna Mine and others in PNG and overseas in pursuance of its objectives.
(e) To promote the efficient management of customary land, forests, rivers and other resources in accordance with local customary laws and sound economic principles and to assist the Special Mining Lease area in establishing income generating projects.
(f) To undertake education, training and awareness campaigns and programs on environmental issues, development, human rights, land and resources rights for the Panguna People.
(g) To be partners in development and operation of Panguna Mine and apply the dividends in promoting its objectives.
(h) To prohibit payment of dividends or interest to individuals and members of the Association.[46]
46 It is important to understand that the
scale of the Panguna mine operations involved not just a single area of land
owned by a
particular group of customary landowners. As well as the area of
land on which the mining and extraction of minerals had occurred
under the
former Special Mining Lease, there were other areas of land such as a tailings
area, a port area, and other infrastructure
areas. The significance of SMLOLA
is that its members are the customary owners of the land that constitutes the
former Special Mining
Lease area for the Panguna mine. Although there are other
landowner associations representing the owners of land used for tailings
and
infrastructure works and installations, for the purposes of this application,
the members of SMLOLA are the relevant or dominant
customary landowners, and it
will be their views and objections that count when it comes to any assessment of
landowner attitudes
to the grant of exploration and mining tenements over the
former Special Mining Lease area.
47 Even though
it appears that SMLOLA was formed to represent the interests of customary
landowners in the former Special Mining Lease
area, it is the curious fact that
SMLOLA was never registered as an ‘approved’ landowner organisation
under the 2015
Mining Act. The evidence on this application goes no further
than saying that SMLOLA attempted to obtain such registration in or
about March
2016, but that its application was not accepted for filing by the Department of
Minerals and Energy Resources of the
ABG.[47] Thus, SMLOLA did not have
any legal recognition for the purposes of the schema of the 2015 Mining Act.
But outside that, it is
clear that SMLOLA was a legitimate entity, active and
providing something resembling the auspices or representative voice for its
members’ commercial interests as customary landowners in the redevelopment
of the Panguna mine in a joint venture with Central.
48 Central has a 50% shareholding in the JV Co.
Three of Central’s directors including Mr Duncan are on its Board.
SMLOLA
has a 25% shareholding in the JV Co. The remaining 25%
shareholding is held by Mr Philip Miriori who is the current Chairman of
SMLOLA.
It is said that his shareholding ‘is not personally held but under the
Joint Venture Agreement is held as Trustee for
the citizens of Bougainville, the
Autonomous Bougainville Government and the PNG
Government’.[48] Elsewhere,
it is sworn that he holds those shares not for himself but ‘on behalf of
all Bougainvilleans’.[49]
49 RTG Mining has a minority interest in Central,
but it does not have a shareholding in the JV Co. Nor does it have a
representative
on the Board of the JV Co. But it describes itself in the
materials as ‘the development partner’ of the JV Co. RTG
Mining is said to have extensive experience developing mining operations in
various locations, and its role is characterised as supporting
the JV Co by
providing it with technical expertise and raising capital to enable it to obtain
an exploration licence to redevelop
the Panguna mine.
50 A fifth player in the dynamics and evolvement of
the respondents’ pursuits is another landowner group in the Panguna region
known as Me’ekamui Government of Unity
(‘the MGU’). Mr Miriori was also the President of the
MGU. The MGU is not an approved landowner organisation under the 2015 Mining
Act.
What is this application about?
51 Describing it in abridged terms for
opening purposes, this application emanates from BCL’s pursuit of an
extension of its
two-year exploration licence over the customary land of the
Panguna mine area. As I have said, that was happening in a context in
which,
from February 2016, there was a gestation of a rival pursuit by the respondents
to obtain an exploration licence over the
same land. It was also happening in a
context in which, it is worth repeating, Rio Tinto had transferred its
controlling shareholding
in BCL, in equal parts, to the PNG National Government
and to the ABG, resulting in each government separately holding a 36.4%
shareholding
in BCL.
52 It appears that the
respondents’ pursuits occurred along two avenues of influence. The first
avenue was by directly engaging
with the responsible ABG Minister and government
officialdom in Bougainville to promote the respondents’ credentials as
responsible
and experienced mine operators, and to appeal to the ABG’s
interests in reopening the Panguna mine in aid of enabling the ABG
to gain
fiscal self-reliance from a resumed mining operation. The second avenue, in the
new era of the 2015 Mining Act, was for
the respondents to cultivate the support
of SMLOLA and the customary landowners at Panguna by giving them an opportunity
to become
unified and to commercialise their newly gained interests as mineral
owners by undertaking the prospective redevelopment of the Panguna
mine in joint
venture with Central. As part of the complexities of the local politics in this
case, there were some who at the same
time were claiming that BCL had the
landowners’ support as the preferred redeveloper of the mine. And, of
course, the ABG,
as regulator of mining, had its one-third shareholding in
BCL.
53 Ultimately, on 16 January 2018, and after a
Mining Warden’s hearing to assess the views of landowners and affected
parties
towards BCL’s extension application, the ABG Minister for Mineral
and Energy Resources, Vice President Masono, refused BCL’s
application for
an extension of its exploration
licence.[50] The Minister did so on
the grounds that the Warden’s hearing showed that the customary
landowners’ consent for BCL’s
licence extension could not be
obtained. The decision was expressed in affirmative terms to say: BCL did not
have the ‘social
licence’ to redevelop the mine. The Minister
also announced a moratorium on exploration and mining over the land of the
Panguna
mine for an indefinite period. Thus, in the upshot, it appears that
there was no gain by BCL, or the respondents, or the SMLOLA
customary
landowners. However, the refusal of the extension neutralised BCL’s
position in Panguna by discontinuing its privilege
of holding an exploration
licence, subject to any challenge to the Minister’s refusal decision.
54 That takes me to the next event which, to
minimise detail at this juncture, I shall only mention in brief but return to
later on
in this judgment By 25 January 2018, BCL commenced legal proceedings
(‘the judicial review proceedings’) in the National Court of
Justice of PNG at Waigani to quash the Minister’s refusal decision. On
10 April 2018, the National
Court made a purely procedural order granting
leave to BCL to seek judicial review, with an ancillary order granting a stay
of the
Minister’s refusal decision pending the final determination of the
review
proceedings.[51]
55 In
the judicial review proceedings, the relief sought is threefold: an order in the
nature of certiorari to quash the decision
to refuse an extension; an injunction
to restrain the granting to any other person of any licence or tenement over the
land of BCL’s
yet‑to‑be‑extended exploration licence;
and an order in the nature of mandamus directing the Minister to grant
BCL’s extension application.
56 As far as
this Court is aware, the judicial review proceedings are still pending. It
hovers over the present application because,
if the Minister’s decision to
refuse BCL’s extension application is quashed by the National Court then,
depending on
the that Court’s ancillary orders (that is, whether it
substitutes its own orders on the extension application or orders a
rehearing
before the Warden with directions), a serious question could arise whether BCL
has suffered any loss of its exploration
rights from which to found a right to
obtain relief for the purposes of rule 32.05.
57 I
was restless about this prospect, and squarely raised its significance in the
course of argument. The respondents did not present
an argument suggesting that
the judicial review proceedings might impact on the current application. Nor
did they suggest that this
application is premature in the absence of a decision
from the National Court, and therefore the Court should refuse the application
as a matter of discretion. Instead, the thrust of the respondent’s
opposition to the application was emphatically based, on
principle, on the lack
of any objective evidence from BCL to establish ‘a reasonable cause to
believe’ that it had or
might have a claim for relief under rule 32.05.
Any reference by the respondents to opposition on discretionary grounds was
supplementary
in nature, if that.
58 I think that
whilst recognising that a quashing of the Minister’s refusal decision is a
possibility, it has not yet crystallised
into a factor that can be taken into
consideration in this proceeding, at least not as an objective fact informing
the basis of the
applicant’s cause to believe. In the way this
application was conducted by all parties, I shall treat the review proceedings
as just another aspect of the complexities that forms the underlying context in
which the facts are to evaluated. For completeness,
I shall return in
chronological order to say more about the judicial review proceedings later in
this judgment.
59 Thus far, I trust enough has been
exposed to show the historical, political, and legal context in which the
application is set.
It is much more than ‘background’. The facts
are informed by the evolving affairs in Bougainville, the significance
and
credence to be given to the views of the customary landowners after Bougainville
was newly constituted, and the overlay of a
post-civil war past in which the
previous operations of the Panguna mine by BCL figured largely.
60 There are two main grounds for this
application. First, having been denied an extension of its exploration licence,
ostensibly
for lack of customary landowner support, BCL says there was some
evidence of pre-existing ‘overwhelming and resounding majority
support’ from landowners for BCL to become the developer of the mine.
[52] But, BCL says that the loss or
diversion of that support might be explained by the respondents making unlawful
payments of money
or giving unlawful financial benefits or inducements - these
are euphemisms for bribes - to customary landowners or SMLOLA officials
(and
maybe others) to oppose to BCL’s interests, and to cultivate favour
towards the respondents in their pursuit of an exploration
licence for the
prospective redevelopment of the mine in joint venture with SMLOLA. BCL
thematically asserts in this application
that if there were such unlawful or
illicit payments (presumably in Bougainville), then by any means, such conduct
would be actionable
(presumably in this Court) as an unlawful interference with
its economic interests, and therefore the Court should order
discovery.
61 In the way this application was
presented, BCL does not know what the payments might have been, and what they
were for. In the
main, it seizes on a public document that has Central (but not
RTG Mining) acknowledging that, with the knowledge of the ABG, payments
were
made to the SMLOLA executive that were ‘transparent and at arm’s
length’ to enable the carrying out of an
awareness and education campaign
in Panguna about the respondents’ proposals to redevelop the mine in joint
venture with SMLOLA.
There is elsewhere reference in the materials to exception
being taken to the activities of Mr Duncan ‘splashing money around’
as part of the awareness campaign. I shall return to these matters, and others,
in detail later.
62 BCL contends that it ought be
able to use rule 32.05 to obtain discovery from the respondents of any documents
that show when,
to whom, and for what purpose such payments were made to then
enable BCL to see for itself if those payments make for a case that
there was
unlawful or illicit conduct. If they were, BCL says there may be grounds for an
action (presumably in this Court, as the
host Court of rule 32.05) for unlawful
interference with its economic interests, an intentional tort under Australian
law. If payments
were made to officeholders of SMLOLA, then BCL also ventures
to say that such payments might amount to a Commonwealth crime under
the
provisions of Australia’s Criminal Code Act 1995 which deal with
bribery of ‘foreign public officials‘.
63 As a second basis for the application, BCL says
that any payments made by the respondents were occurring at a time when there
were
or had been divisions within SMLOLA, or divisions between SMLOLA and the
MGU membership, as to whether BCL ought be supported as
the redeveloper of the
mine, or whether support should instead go to RTG Mining and the JV Co.
There was also a dispute internal
to SMLOLA regarding who was entitled legally
to hold office as its Chairman. Mr Lawrence Daveona and Mr Philip Miriori
each claimed
they were entitled to hold that office.
64 There was a strong element of local politics to
that SMLOLA leadership dispute. It is said that Mr Daveona was a known
supporter
of BCL as the preferred redeveloper of the mine. Mr Miriori was
President of the MGU. He also claimed that he was truly the Chairman
of SMLOLA
and had authority to speak for the customary owners of the Panguna mine land.
If true, that would put him in an influential position on the question of
the preferred redeveloper of the mine, even though SMLOLA
was not an approved
landowner organisation under the 2015 Mining Act. Mr Miriori was known to be
opposed to the prospect of BCL
resuming the operation of the Panguna mine, and a
supporter of SMLOLA being in a joint venture with Central to redevelop the mine.
65 The next election of SMLOLA officeholders was
not due until December 2018. Before then, the leadership dispute between these
two
men led to legal proceedings (‘the leadership
proceedings’) that were commenced on about 8 May 2017 by
Mr Miriori in the National Court of Justice at Waigani,
PNG.[53] Mr Miriori initially
sought orders to, in effect, restrain Mr Daveona from holding an Annual General
Meeting of SMLOLA. He then
amended the proceedings to seek orders to restrain
Mr Daveona from acting as Chairman of SMLOLA and to restrain Mr Dennis
Nasia from
acting as its
Secretary.[54]
66 It is relevant to say that, in those
proceedings, Mr Miriori was being represented by Corrs Chambers Westgarth,
lawyers in Port
Moresby, PNG. After a mediation was conducted by a Judge of the
National Court of Justice, the leadership proceedings were eventually
settled
under a deed made on or about 5 December 2017, as prepared by that law
firm.[55] Under that deed, in
substance, Mr Daveona relinquished any claim to be the holder of the office
of Chairman of SMLOLA. He also
pledged his support for RTG Mining as the
preferred developer of the mine, and promised that he would work together with
Mr Miriori
to support RTG Mining. BCL says this was wholly contrary to
Mr Daveona’s past endorsement of BCL as preferred developer of
the
Panguna mine. Thus, to borrow a Biblical metaphor used by BCL’s senior
counsel, in abandoning his past loyalties to BCL
and pledging his support for
RTG mining, Mr Daveona was said, for no apparent reason, to have
experienced a ‘conversion on
the Road to Damascus’. BCL points the
finger of suspicion at a clause in the settlement deed in which SMLOLA (which
was a
party to the deed) agreed to contribute to the legal costs incurred by
Mr Daveona and Mr Nasia in the leadership proceedings to a
capped limit of
K300,000.[56]
67 Nothing in the deed calls for a payment from RTG
Mining or Central. But it appears that BCL has its suspicions. As a matter of
coincidental timing (December 2017), BCL put into evidence the 2017 Annual
Report of RTG Mining which reported the making of the
reconciliation
agreement.[57] It did so for
another suggestive forensic purpose. The report contains: ‘Notes To The
Consolidated Financial Statements 31
December 2017.’ In the Notes, one
item of ‘Expenses’ is an ‘Impairment
expense’.[58] The recording
of an ‘impairment expense’, as it was explained in Court, is done as
a matter of prudent accounting to
signify an expense or debt that could not be
safely or correctly considered to be recoverable as an asset with a carrying
value.
68 The Notes to the Annual Report record:
‘Impairment of investment in the Philippines Associates’ and
‘Impairment
of loans to the Philippines Associates’. On the face of
it, that is likely to be a reference to the Masbate Mine in the Philippines.
Recorded in those entries is an impairment expense of US$1,472,368, which
reflects an investment in Central as an Associate in the
Group. What does that
mean? It means, in that year, RTG Mining invested US$1,472,368 in Central or
funded it in that amount. But,
as explained in Court, the impairment entry
shows money as received by Central, but it does not mean or show that the
money was expended, or how the money was applied. It may not have been expended
at all.
69 So what is the point of this accounting
reference for present purposes? BCL retracted a suggestion that the Court
should infer
that the US$1,472,368 was used by Central to make unlawful payments
to landowners, or Daveona, or others. The submission was that
the impaired
funding occurred in the ‘key period’ when Daveona ‘changed his
mind’. From there, the submission
was that this accounting raised
questions of what Central did with the money and, as there was no evidence from
the respondents on
this point, there may be documents that show to whom, and
when, and why the ‘impaired’ funding was
applied.[59]
The broad basis of the application
70 In this application, BCL does not say
it has objective evidence for a belief that the respondents may have made
unlawful payments
to Mr Daveona, for the purpose of inducing him to abandon
his previously held support for BCL’s interests and to oblige himself
legally to work with Mr Miriori and SMLOLA to support the appointment of
the respondents to redevelop the Panguna mine. Nor is BCL
saying it has
objective evidence to believe the respondents might have made unlawful payments
to SMLOLA or customary landowners to
gain their support to defeat BCL’s
interests. Rather, BCL highlights the words of rule 32.05 that say ‘may
have the
right to obtain relief’ and beneficent spirit to contend that
there is sufficient to say that say something strange or something
wrong might
have happened to induce Mr Daveona to abandon his past endorsement of BCL and
his claim to Chairmanship of SMLOLA, and
there is something strange or wrong has
happened to lead to customary landowners to object to BCL’s extension
application.
71 Whilst one would not expect
corrupt conduct, such as bribery or illicit payments, to be obviously and neatly
documented by the
perpetrator for any scrutineer to see, BCL looks to
rule 32.05 to compel the respondents to give discovery of documents
underlying
the making of the deed of settlement, and documents that evidence any
payments to Mr Daveona or members of SMLOLA, so as to enable
BCL to investigate
and see for itself what the payments were for, and whether they afford grounds
for bringing a case against the
respondents.
72 As I
see it, the issue is: do the objective facts reveal grounds for an existing
belief by BCL that it may have a right to obtain
relief against the respondents
for unlawful interference with its economic interests, but discovery of certain
documents is needed
to make a decision whether or not to sue? Or, is it a
situation where the rule is being called on to obtain discovery of documents
not
to give greater certainty to justify a decision to sue, but to investigate at a
primary level whether there are grounds for a
belief that a case may be brought
at all? Is such an inquisitorial purpose justly within the proper function or
faculty of rule
32.05?
The material in support of the application
73 BCL filed one affidavit sworn on its
behalf in support of the application, sworn on its behalf by Craig William Owen
Phillips,
a solicitor employed as a consultant at the applicant’s firm of
solicitors. He is known to be a highly experienced commercial
litigation
lawyer. Although, on an ordinary interlocutory application, it is permissible
to adduce evidence through a litigant’s
solicitor based on information and
belief rather than personal knowledge, having regard to the nature and calibre
of the economic
interests involved in this out-of-the-ordinary application, I
think that it was expectable for the Court to be presented with primary
affidavit evidence from an officer or manager of BCL having active involvement
or responsibility in the matter, especially as the
facts are offshore and there
is a sharp edge to the application.
74 I cannot
tell if Mr Phillips was involved ‘hands on’ to a significant degree
in the affairs of the case as they occurred
in Bougainville. His affidavit reads
not so much a firsthand narrative of facts and circumstances, but rather as a
reliable means
of exhibiting a compendium of documents according to which the
application is being propounded.
75 In paragraph 47 of his affidavit, Mr Phillips says BCL is seeking the following categories of documents from the respondents:[60]
(i) Documents confirming, identifying or otherwise relating to the compensation or other benefit [within the meaning of s 70.1 of the Criminal Code Act 1995 (Cth)] or payment made by Central directly or indirectly to any representative or member of SMLOLA from 1 January 2016 to date as referred to in the ASX and TSX announcements made by RTG on 12 December 2017.
(ii) Documents relating to the arrangements between RTG, Central and/or Mr Ian Duncan or any representative thereof, and Mr Philip Miriori and/or SMLOLA concerning:
- the legal fees and disbursements of Mr Miriori and/or SMLOLA paid, reimbursed or otherwise borne (whether directly or indirectly) by RTG, Central and/or Mr Duncan or any representative thereof from 1 January 2016 to date;
- the terms upon which Corrs Chambers Westgarth agreed to act on behalf of Mr Philip Miriori and SMOLA in the PNG proceedings;
- any benefit provided or to be provided to any party in the PNG proceedings (whether directly or indirectly) in consideration of:
- the settlement or purported settlement of the PNG proceedings;
- the agreement of Mr Daveona to act in support [sic] the interests of Mr Miriori including in respect of any matter relating to the development of the Panguna mine; and
- the agreement of Mr Daveona to support the appointment of RTG as the developer of the Panguna mine;
- The circumstances in which SMLOLA agreed to make a payment to Mr Daveona and/or Mr Nasia in connection with the PNG proceedings.
(iii) The settlement agreement relating to the purported settlement of the PNG proceedings.
(iv) Documents relating to the arrangements between RTG, Central and/or Mr Duncan or any representative thereof and Mr Philip Miriori and/or SMLOLA concerning:
- the joint venture arrangements pursuant to which SMLOLA had nominated RTG as preferred developer of the Panguna mine as stated in RTG’s announcement to the ASX and TSX on 5 December 2017; and
- SMLOLA’s decision to lodge an objection to the application by BCL for renewal of its exploration licence as stated in RTG’s announcement to the ASX and TSX on 12 December 2017
(v) Any benefit:
76 Mr Phillips says that BCL seeks these documents for these purposes (with my underlining):
(a) to help the applicant establish whether it has a cause of action in tort for unlawful interference with BCL’s property rights; misrepresentation; conspiracy; and injurious falsehood against the first and/or second respondent;
(b) to identifying the circumstances by which SMLOLA’s support of BCL was changed to BCL’s detriment from June 2017 when an overwhelming and resounding majority of landowners supported BCL as the preferred developer of the Panguna mine, to December 2017 when SMLOLA nominated RTG Mining as the preferred developer of the Panguna mine and lodged an objection to the application by BCL ...;
(c) to clarifying the circumstances and terms by which the PNG proceeding was settled, following which Mr Daveona ceased to support BCL as the preferred developer of the Panguna mine or dispute Mr Miriori’s challenge as Chairman of SMLOLA.
77 His affidavit adds this (with my underlining):
78 These statements were seized on by the respondents to say they show a misunderstanding of the true purpose or availability of rule 32.05 because, unless reasonable cause to believe in the existence of a right to obtain relief is shown by evidence, the rule does not countenance giving discovery merely to enable BCL to find out what happened.[61]
79 For the respondents, there was one affidavit sworn by Justine Alexandria Magee. She is the Chief Executive Officer of RTG Mining and is a director of Central.[62] When speaking for Central, and in a manner that is no more general than the affidavit material to which she was responding, Ms Magee states:
80 Likewise, when speaking for RTG Mining, Ms Magee says:
48. To my knowledge, RTG owes no contractual obligation to BCL.
81 In essence, RTG Mining and Central say
there were historical and other real, strong, and evident factors amongst
Bougainvilleans,
as well as the Panguna landowners, that explained landowner
disfavour towards BCL and their support for the joint venture proposal
with
Central; a proposal that provided customary landowners with a commercial
interest in a mining venture for the minerals under
their land - minerals that
became their property under the 2015 Mining Act. They say that any payments
made to customary landowners
and to SMLOLA or its officials were
‘transparent’, and at arm’s length, and made as part of the
legitimate pursuit
of cultivating understanding and support for their joint
venture proposal.
82 BCL’s rejoinder has to
commence with the premise, ‘I do not know if there were unlawful
payments’, but goes on
to say that if there were unlawful payments which
interfered with BCL’s commercial interests, then a cause of action exists.
So, BCL says, if payments were made that were transparent and at arm’s
length, then where is the injustice of ordering the
discovery of those documents
to enable BCL to ascertain, for itself, the payees, the amounts paid, and the
purpose of the payments?
83 But to that, of
course, the respondents are entitled to say: documents are not to be produced at
BCL’s behest and BCL is
required, under rule 32.05, to show
objectively based grounds for reasonably believing that the payments were
unlawful, before a
discretion arises to make an order for discovery to see if a
case may be brought.
84 Ms Magee also makes an
objection to the application on the grounds of oppression and confidentiality.
She states that documents
in the possession of the respondents are located in
various places in Perth, Sydney, Brisbane, Port Moresby and,
‘potentially’,
in Arawa, Buka, and Panguna in the ARB, and further
that documents in other locations may be held by solicitors, accountants,
auditors,
consultants, and advisors. Investigation of all documents at the
various locations would be, Ms Magee says, onerous, time-consuming
and
costly, added to which would be the additional burden of examining all documents
for their commercial sensitivity and confidentiality.
On the merits of the
application, she also exhibits a number of documents in the public domain that
reveal facts concerning the
respondents’ commercial pursuits at Panguna,
and public reports about Bougainvillean attitudes that were hostile to the
prospect
of BCL resuming mining at Panguna. I shall return to those facts
later.
85 With prior notice, senior counsel for BCL
sought the Court’s leave to cross‑examine
Ms Magee.[63] Leave was sought
for the stated purpose of disputing the truthfulness of some positive statements
in her affidavit, and to put to
her that the effect of her evidence was to
mislead the Court. That translates to an attack on her credibility. Leave to
cross‑examine
Ms Magee was opposed.
86 There
was a procedural question whether leave was truly required. This application,
as a civil proceeding, was commenced correctly
by an Originating Motion. That
is, a form of legal process in this Court which under rule 40.04(2)
entitles a party to require a
deponent, unless the Court otherwise orders,
‘to attend at the trial of the proceeding to be examined if notice that
such attendance
is required is served on the
party’.[64] That is
distinguishable from rule 40.04(1) which applies ‘where an affidavit
is filed in any proceeding’. Under that
rule, the Court’s leave is
required to examine the deponent.
87 As it
happened, the technical question of the choice of applicable rule, and whether
this application was a ‘trial’
by ordinary conceptions, gave way to
an acceptance by the parties that as the application was interlocutory in
nature, leave of the
Court to cross‑examine a deponent was necessary. A
substantial argument then ensued about the grant of leave.
88 I refused to give BCL leave to
cross‑examine Ms Magee. But as a point of opposition was seriously
taken by the respondents
that there was no judicial power to allow
cross-examination of a deponent on such an application, I deferred the giving of
reasons
for a refusal until the ultimate judgment on the application. My
reasons now follow.
Cross-examination on a rule 32.05 application
89 The principal argument put on behalf
of the respondents was that I was bound to follow a decision of Vickery J in
National Hearing Centres Pty Ltd v Vic O Tech Pty Ltd and Anor
(‘Vic O
Tech’)[65]
which, according to the respondents, held that the Court had no power to
allow cross‑examination of a deponent on an application
under
rule 32.05. When that case is closely examined, I do not think it
establishes such an unlikely general proposition.
90 That case was an application under rule 37.02,
which is similar to rule 32.05. On the same grounds as rule 32.05,
rule 37.02 gives
a prospective plaintiff similar means to obtain, as
against a prospective defendant, a Court order for the inspection, detention,
custody or preservation of any property not being a document to enable a
decision to be made whether or not to commence proceedings.
91 Vic O Tech was a typical example of
alleged appropriation and misuse of copyright and proprietary information by an
ex-employee as stored on
computers. The respondent was ordered by the Court to
make available the computers and other devices that were used by the ex-employee
so as to enable an expert examination of the stored information and files on
them. The respondent was also ordered to file an affidavit
of documents that
disclosed the respondent’s computer usage. The applicant was not
satisfied with the respondent’s compliance
with the Court’s order
and sought the Court’s leave to do two things: to serve interrogatories on
the defendant; and
for leave to cross‑examine the defendant on her answers
to those interrogatories and on her other affidavits as already filed
in the
proceeding. And there is the manifest peculiarity. Interrogation is a
pre-trial fact-finding procedure of its own that is
administered in laborious
written form to obtain sworn facts in a subsisting proceeding.
92 Refusing the application, Vickery J
said:[66]
In my opinion, the Court does not have power to order the delivery of interrogatories or order cross-examination in aid of the power provided for in rr 32.05 or 37.02 of the SCR to assist a party to determine whether or not to issue proceedings.
...
In my opinion the power conferred on the Court by rr 32.05 and 37.02 does not extend to beyond the terms of those powers as they are defined in the rules to enable the Court to make ancillary orders of the nature sought in this case, namely the service of interrogatories and cross-examination in aid of a party deciding whether to commence a proceeding against a person.
93 I do not think that the judge’s
refusal, in the peculiar facts of Vic O Tech, to allow
cross‑examination ascends to a general proposition that
cross‑examination on an affidavit filed in a rule 32.05
application
is beyond the purview of the power to be exercised under that rule. I think
Vic O Tech is saying no more than this: the Court’s power under
rule 32.05 is circumscribed to ordering a prospective respondent to give
discovery of documents on satisfaction of the preconditions of the rule. Once
that is done, and the power is spent, and an affidavit
of disclosure is given,
then the rule has done its work. Vickery J was saying no more than this: an
applicant cannot, under rule
32.05, return to the Court and test the
veracity of the disclosure as given, by asking the Court to enable the
administration of
interrogatories or cross-examine the deponent. That is
because, by that time, the application under rule 32.05 is over and the
Court’s
power under the rule is spent. That is what was decided in the
peculiar case of Vic O Tech. But, in the present case, the Court was
asked for leave to cross‑examine as part of the adjudication of the order
32 application.
94 Like any interlocutory
application, leave of the Court to cross‑examine a deponent can be sought,
and it can be given as
a matter of discretion. But on an application of this
nature, the grant of leave is exceptional. As observed by Perram J in this
respect in Pfizer:[67]
[I]t should be apparent that it will be unusual for it to be useful for a prospective respondent to conduct the application as if it were a preliminary trial. The procedure is interlocutory and summary with cross-examination almost never allowed. The Court should not indulge efforts to conduct a prospective respondent’s case if it were a dress rehearsal for a trial.
95 I refused leave to cross‑examine
Ms Magee, not only for those reasons (and the application had already
showed signs of becoming
a mini trial), but also on principle because an
application for pre-action discovery, by its nature, requires BCL as applicant
to
affirmatively make out the grounds for itself, and on its own material, and
not by cross‑examination on matters of credibility
concerning a case yet
to be even instituted. I saw no apparent injustice in disallowing
cross‑examination, as it would have
been open for BCL to file an affidavit
in reply to correct, or add, or explain away anything said in Ms Magee’s
affidavit,
or to cast a shadow of doubt by reference to objective facts.
96 Thus the evidence in the application was
confined to the two opposing affidavits (with numerous exhibits) and additional
exhibits
tendered separately throughout the hearing of the application. As a
welcome aid to marshalling the facts, the parties also jointly
prepared a
detailed chronology of facts. As a whole, the overt facts are not controversial
but it is the complexion cast on them
that differs and, as I would emphasise,
there is a powerful underlying political and historical context.
97 The commencement point is an account of the
facts concerning accrual of the respondents’ rival interests in seeking to
displace
BCL and become the redeveloper of the Panguna mine.
Accrual of the respondents’ rival interests in Panguna
98 I choose the starting point as
February 2016. By that time, Central had entered into a first joint venture
agreement with SMLOLA
and the MGU in pursuit of an exploration licence over land
that was proximate to the Panguna mine. They could not pursue an exploration
licence over the land of the mine itself as that land (SML 1) was already
subject to BCL’s exploration licence and therefore
‘out of
bounds’. By this time, Central had already obtained and prepared
geotechnical and aero-physical data and information
about the Panguna mine,
which was being shared confidentially with some prospective equity investors in
Central. It is said that
Central had been given a ‘mandate’ by
SMLOLA (which if written, was not in evidence), which I take to be an
endorsement
or approval given by SMLOLA, to enable Central to plan and proceed
with its support as a landowner association.
99 These early steps were being taken ahead of the
arrival of the statutory deadline for BCL to submit any application to extend
its
two-year exploration licence granted under the 2015 Mining Act. That was a
critical event. The licence was due to expire on 7 or
8 September 2016.
Any application had to be lodged by 8 or 9 July 2016.
100 As a distinct part of this application, the
respondents raised a threshold issue on the question whether there was proper
proof
that BCL had ever applied, or applied validly, for an extension; and if
there was not, then I was asked, seriously by Senior Counsel
for the
respondents, to determine that the application had to fail because BCL therefore
had no economic interest to protect under
any action that it might bring for the
purposes of rule 32.05. This was a perplexing submission in the face of all
that occurred
afterwards in the assessment and determination of an extension
application. But I am bound to deal with the submission.
Was there an extension application made by BCL?
101 The respondents’ evidence was
that, by mid‑July 2016, Mr Duncan (a director and the secretary of
Central) was engaged
in confidential discussions with the ABG Mining Minister
about the respondents’ prospects of redeveloping the Panguna mine.
An
affidavit sworn on behalf of the respondents by Central’s chief executive
officer, Justine Magee, swears on information
and belief that on
8 September 2016, in Buka, Bougainville, Mr Duncan met with the then
President of the ABG (President Chief Dr
Momis), together with the then
Minister for Minerals and Energy (Mr Robin Wilson) who ‘said words to
the effect that BCL had
not filed any extension application for EL-1 as at that
date. He also said that the ABG was very supportive of RTG [Mining] being
the development partner for
Panguna’.[68]
102 I suppose the point to be made about this, by
the respondents, is that they took an opportunity to commence a rival pursuit of
an exploration permit over the land of the Panguna mine, not by any improper or
questionable means, but actuated by what they had
been told by the ABG (which,
it must be kept in mind, was not only the regulator of mining but also a 36%
shareholder in BCL) regarding
BCL not having applied for an extension
application within time, thus opening the way for the respondents to apply for
an exploration
licence.
103 In the only affidavit
sworn in support of BCL’s application, Mr Phillips states that its
contents were ‘from my own
knowledge save where otherwise stated’.
Such verbiage is standard form usage in affidavits in interlocutory
applications.
The proviso ‘save where otherwise stated’ enables a
deponent without personal knowledge on a particular matter to state
facts from
information and belief, as long as the source of the information is identified.
104 About the extension application,
Mr Phillips makes this statement of mixed fact and law: ‘In 2016 BCL
applied to extend
EL‑1 and pursuant to the Mining Act, the EL was
deemed to be extended pending determination of BCL’s application’.
The respondents objected that I should
not receive this part of his evidence
because it was not apparent if he was truly speaking as a matter of his personal
knowledge,
and if not, he does not say how he knows that BCL made the extension,
so that either way, he cannot go on to assert a legal conclusion.
105 It is curious that Mr Phillips, with the aid of
agents in Bougainville, is not definite about something calling for plain
documentary
demonstration. He does not give a specific date in 2016 − not
even a month.[69] He does not say
whether he was acting for BCL in 2016. He does not produce a copy or extracts
of the extension application or some
written verification of lodgement from the
Bougainville Mining Registrar. I notice there are provisions in the 2015
Mining Act which
require an applicant to lodge the application in triplicate,
accompanied by a prescribed application fee. If manner and form requirements
are met, then the application is registered by the Mining Registrar. Under the
2015 Mining Act, there is a Bougainville Register
of Tenements containing
details of applications for tenements, and is receivable by all courts (in
Bougainville) as prima facie
evidence.[70] It could have been
received in this Court.
106 One might have thought
it would have been a very easy, and certainly prudent step, in a case of this
calibre to ensure that there
was precision in the evidence and some documentary
primary or secondary evidence of BCL’s application for an extension.
Likewise,
one might have thought, for the same reasons, that if the respondents
were to make such an issue of this, they could have themselves
adduced evidence
of searches conducted of the Bougainville Register of Tenements, or of some
other basis to establish if and when
an application had been made by BCL. Even
throughout the conduct of the present application, there was no attempt by
BCL’s
lawyers to nullify this issue by filing supplementary material
verifying the lodgement of the application.
107 As
the affidavit stands, according to the statement made in the opening part of his
affidavit, Mr Phillips has sworn ostensibly
from his personal knowledge
that BCL submitted an extension application. Although exiguous, that is
nevertheless an evidentiary
basis for prima facie proof of the fact which shifts
the onus to the respondents to adduce any countervailing evidence to show that
an application was not filed by BCL.
108 Beyond
the hearsay evidence of the conversation with the President and the Minister
(which are both significant) as stated in
Ms Magee’s affidavit, the
subsequent objective and incontrovertible evidence is that a Warden’s
hearing occurred in Panguna
on 11 December 2017 as part of statutory process to
hear and assess the landowners’ views about BCL’s extension
application.
A decision was in turn made by the Minister, aided by the
Warden’s report. Thus I am being asked by the respondents to conclude
that there is no proof of the lodgement of an extension application in the face
of the fact that a Warden’s hearing on an extension
application actually
occurred, followed by a statutory process of advice and decision-making
culminating in a decision by the Executive
Council refusing an extension of
BCL’s exploration licence. On a presumption of procedural regularity, all
of this is explicable
only by the fact that BCL had lodged an extension
application and that it was accepted for lodgement by the Bougainville Mining
Registrar
under the 2015 Mining Act.
109 As so
much was made of this by the respondents, I can also add that such a conclusion
is supported elsewhere from the judicial
review proceedings brought by BCL that
are pending in the National Court of Justice for judicial review of the
Minister’s decision
to refuse the extension. That proceeding assumes
there was a regular extension application. For that proceeding, I have
ascertained
from public sources that the National Court allowed CMEL (the JV Co)
to be joined to the judicial review proceedings as an interested
or affected
party.[71] The judgment of the
National Court in that joinder application recites at paragraph 5 that:
‘On or about the 5th of July 2016, the applicant [BCL] applied
for an extension of term in accordance with Section 109 of the Bougainville
Mining Act...’ On an appeal from that judgment to the Supreme
Court of Justice of Papua New
Guinea,[72] Yagi and Murray JJ
recite as a fact in their joint judgment: ‘On 5th July, BCL
applied for an extension of its Exploration Licence
EL01’.[73] Likewise, Thompson
J as the third member of the National Court, recited: ‘BCL submitted its
application for an extension on
5 July 2016, and so its existing EL01 was
extended pursuant to Section 101, until the refusal of the application on
16 January 2018’.[74] Perhaps
more pertinently, his Honour also said:
CMEL referred in its submissions to BCL as ‘claiming’ to be the holder of an EL and ‘claiming’ to have submitted an application for an extension. CMEL did not give any reason for this, and did not produce any evidence to rebut the documentary evidence that BCL was the holder of EL01 and that the Respondents [i.e., the various decision makers] received and dealt with BCL’s application as a valid application for an Extension.[75]
110 From those sources, there is sufficient for me to say that, for the purposes of this application, I too can proceed on the objective evidence and on the same basis as the National Court that BCL’s application for an extension was received, and dealt with, as having been validly made to the ABG. Accordingly, I disallow the objection to this part of Mr Phillips’ affidavit. I reject the respondent’s submission that there is no proof of lodgement of BCL’s extension application. There is sufficient to shift the evidentiary onus to the respondents to disprove his evidence. The most that I have on the evidence is an argumentative letter from CMEL to the Mining Registrar dated 14 November 2017 at a later point in time.[76] That letter shows that CMEL had submitted an application for an exploration licence over the same area as BCL’s licence in May 2017, which the Registrar rejected on the grounds that BCL’s licence still existed as an extension application. That itself is significant. The letter cites a legal opinion and argues that:
(2) The only available evidence demonstrates that BCL’s Extension Application is not valid because the Extension Application was:
(a) actually submitted out of time; or
(b) is statutorily deemed to have been submitted out of time; or
(c) was not accompanied by the required application fee.
111 I do not have this ‘only
available evidence’ from the respondents. Moreover, paragraph 5(a) of
that letter notably
tells the Registrar, ‘you should not have accepted and
registered the Extension Application’. I think that serves to
show that
BCL’s extension application was a reality and was lodged and accepted.
And, as the objective evidence unquestionably
shows, the application as lodged
came to be assessed and, ultimately, after a Warden’s hearing, a decision
was made on it by
the organs of government under the 2015 Mining
Act.
112 In this application for pre-action
discovery, care has to be taken in making an all‑purpose finding of fact
lest it be transposed
for use in another context, or amount to an issue
estoppel. But, as the respondents made such an issue about this question, I am
impelled to find, at least for the purposes of this application, there certainly
is objective evidence to show that BCL made the
extension application on which
it claims to have staked an economic interest, and which underlies this
application for pre‑action
discovery. There is objective evidence to show
an acquiescence or conventional basis for accepting that the Warden’s
hearing
was duly convened to assess BCL’s extension application. Once
lodged, the Mining Registrar could not receive any other application
covering
the same exploration area.
113 I shall return to
the narrative of the facts.
The joint venture by Central with landowners at Panguna
114 By February 2016, Central and the MGU and SMLOLA had entered into a joint venture agreement to obtain an exploration licence over land proximate to the Panguna mine land. By September 2016, CMEL had been incorporated as the JV Co. It seems that the respondents, believing what they had been told by the ABG about BCL’s failure to lodge an extension application, developed a confidential commercial strategy for a staged progressive expansion of mining activities at the Panguna mine. Mr Duncan (active in the affairs of Central and the joint venture) became engaged in discussions with the key players in Bougainville; that is, the ABG Minister for Mining and Mineral Resources, and the leadership of SMLOLA and the MGU. The materials show that the respondents, not yet having an exploration permit and having no more than a mandate from SMLOLA, had embarked upon a process of direct engagement with government ministers and officials to, it seems, gain political support to be regarded as suitable to be the redeveloper of the Panguna mine; that is, to be regarded as more suitable than BCL, and as more acceptable to the customary landowners, being free of the burden of any ‘legacy issues’ concerning the historical operation of the mine and the civil war. Believing that BCL’s permit had lapsed, on 16 November 2016, the JV Co prepared and, it is said, attempted to submit an application for an exploration licence covering the same ground as BCL’s exploration permit.
Presentation to the officials of the ABG
115 At a meeting on 14 December 2016, a
documented presentation in the names of RTG Mining and CMEL (the JV Co) was made
in person
to members and officials of the ABG to explain CMEL’s
redevelopment proposal for the Panguna
mine.[77] The respondents say that
this presentation occurred at the invitation of President Momis who had, in
September that year, informed
CMEL and the Panguna landowners that: BCL (in whom
the ABG had a one-third shareholding) had breached the terms of its exploration
licence; BCL had failed to secure a statutory land access and compensation
agreement in the two-year period of its licence; the exploration
licence had
expired; and the ABG would not extend
it.[78]
116 The
presentation to the ABG carried the banner: ‘A Presentation to the
Autonomous Bougainville Government - the New Panguna
Mine - a Panguna Landowner
Initiative for all Bougainvilleans’. The term, ‘Landowner
Initiative’, gained currency
as a descriptor in the later materials. The
presentation is said to have been made by Central, with RTG Mining there by
invitation.
The presentation was delivered by Mr Duncan, as a director of
CMEL, and also by a representative of RTG Mining, Mr Carrick, who
prepared
the technical aspects within the presentation. It is said, without any
identification of personnel, that the presentation
was also conducted with the
involvement of SMLOLA and the MGU who were speaking for the Panguna
landowners.[79]
117 It is not necessary to refer to all the details
of the presentation but its content, rightly or wrongly, caused stirrings. Its
essential features were these (with my underlining for a later issue):
(a) the redevelopment proposal was based on a unique model involving Central being in a 50% owned Bougainvillean venture with the MGU and the SMLOLA, which would give Bougainvilleans higher participation and involvement in management than was required under the 2015 Mining Act;
(b) RTG Mining had the financial capability of access to the equity and debt markets; and
(c) there would be effective community consultation and awareness, and an understanding of the communities’ needs and aspirations; as well as observance of the world’s best environmental practices, and environmental and social responsibility.
118 It is notable that the
respondents’ presentation showed the expected, ‘Average Community
Payments Per Annum’.[80] One
of those payments was: ‘Land owners project interest @ 10% —
dividends (100% equity)’. That is, as I was
made to understand it, the
landowners comprising SMLOLA and, I presume, MGU would be given a 10% equity in
the joint venture project.
Under provisions of the 2015 Mining Act, a mine
developer is required to make a 5% free equity ownership interest available to
the
landowners, and is also required to make available, for purchase, an
additional 5% as working equity ownership interest for the
landowners.[81]
119 Some of the presentation to the ABG included
Central outlining negative points about the prospect of BCL being able to return
to the Panguna mine. The ‘bullet point’ component of the
presentation, which later antagonised BCL, is entitled: ‘BCL
— Track
Record’, and states:
- Environmental damage, and
- Led to the conflict
- Landowner compensation (K13m)
- Compensation for environmental damage
- Compensation to the victims of the Conflict
- Minority shareholders of Rio 27%
- PNG 36%
63%
- No social license
- Administrators, not mine builders
- No successful track record in building community support in Panguna
- Mining License has been cancelled
- Exploration license was breached and has expired (7 September 2016)
BCL SHOULD BE WOUND UP AND CASH DISTRIBUTED TO ADVANCE RECONCILIATION
120 Another section of the respondents’ presentation was entitled: ‘BCL — Myths’. These were presented as the myths:
121 As I see it, the theme of this
presentation, in the era of the 2015 Mining Act, was to emphasise that RTG
Mining and CMEL were
putting forward a proposal for the redevelopment of the
Panguna mine on a completely ‘clean slate’, based conspicuously
on
landowner consent and participation; operating experience; effective community
consultation and awareness, in order to achieve
a consensus of community
support; and involved a landowner-based
approach.
122 One aspect of this presentation
concerned RTG Mining’s ‘track record’ of major gold mines
around the world,
including the Masbate Gold Project, situated in a heavily
populated, mountainous, and tropical rainfall area in the Philippines.
The excursion to the Masbate mine
123 In January 2017, at the request of
the ABG officials, Ms Magee and Mr Duncan conducted a site visit of the Masbate
Gold Mine for
ABG officials, including the Minister for Mineral and Energy
Resources as well as other ABG ministers. Ms Magee swears: ‘At
this
gathering, Mr Wilson [the then Minister] said words to the effect that BCL had
not filed any extension application for EL-1
as at that date, and he also said
that the ABG was very supportive of RTG being the development partner for
Panguna’.
124 These events led to
correspondence, starting in March 2017, from BCL’s lawyers to RTG Mining
which claimed that statements
in the presentation were ‘without foundation
and/or misleading and deceptive, and which otherwise seek[] to interfere with
the tenements and other rights held by BCL in relation to the Panguna mining
project’.[82] Its letter
stated that BCL’s engagement with the ABG and landowner groups had
resulted in a resolution being passed in Buka
by nine landowner associations, on
23 February 2017, ‘stating their support for the reopening of the Panguna
mine with BCL
as the developer and operator’. (If written, that
resolution was not in evidence.) BCL sought retractions and promises not
to
republish the offending statements. There is no other evidence before the Court
about that resolution in Buka.
125 In response,
lawyers for RTG Mining stated that the JV Co was asked by the ABG and the
Panguna landowners to make the presentation
to government, and that it was made
on information provided by the ABG and the landowners, and included being
informed that ‘BCL
will never have landowner consent’. In the
correspondence, the lawyers for RTG said that BCL was attempting to bully RTG,
and that: ‘It would be willing to correct and address any of the areas of
the presentation, for which it was responsible, which
you can demonstrate were
incorrect. It cannot, however, take responsibility for, nor correct, opinions
of the Panguna Landowners,
which seem to be both reasonably and genuinely
held.’
126 The correspondence ended with BCL
saying that it would take legal action if RTG Mining interfered or procured a
third party to
interfere with BCL’s ‘tenement interests, including
its interest under the Bougainville Copper Agreement or if it makes
any further
statements in relation to BCL that are misleading and deceptive’. Pausing
there, the reference to BCL’s
‘tenement interests’ is
questionable. BCL’s Special Mining Lease had been taken away under the
2015 Mining Act.
As I understand the situation, BCL had no proprietary interest
over land at Panguna. What BCL had was a statutory right to seek
an extension
of its deemed exploration licence for which, the material states, it had never
obtained a land access and compensation
agreement from the customary landowners.
127 Allegations of misleading and deceptive conduct
in the presentation to ABG are not relevant to any of the documents sought. The
presentation to the ABG officials and the trip to the Masbate mine was, as I saw
it, being used by BCL forensically to show what
the respondents ‘were
getting up to’ in their measures to supplant BCL and extoll their better
suitability to government.
If this was an attempt to put the respondents in a
bad light, in aid of arousing some credibility to an allegation of bribery and
unlawful payments, then I ought say at this juncture that I do not see it as
carrying any weight on proof of ‘reasonable cause
to believe’. I
think the respondents were entitled to pursue the economic opportunity in
meetings with government, especially
in coalition with SMLOLA. The relevance of
the presentation was to showcase to the ABG, what the material refers to as, the
‘landowner
initiative’ or the ‘landowner consortium’ at
Panguna. The presentation to the ABG can be taken to have been made
to highly
informed and discerning members and officials of government, who could certainly
not be classed as gullible or ignorant.
It would have been open for BCL to take
action for corrective orders against RTG Mining in a Bougainville or PNG court
for any misleading
or deceptive statements made in the presentation to
government.
The apparent support by the ABG for SMLOLA involvement, and the activities of Messrs Daveona and Miriori
128 The respondents’ materials say
that, by March 2017, the ABG gave its initial support to what can be called the
SMLOLA plan
or the ‘landowner initiative’ to redevelop the mine in
joint venture with CMEL. That was until a ‘sudden change
of
attitude’ came with the appointment of Vice President Raymond Masono
as the new Minister of Mineral and Energy Resources,
which resulted in the ABG
becoming supportive of BCL to redevelop the
mine.[83]
129 In the politics and intrigue of the situation,
and as best as I can distil from the materials, it appears to me that despite
the
disfavour born of BCL’s legacy issues after the civil war and the
remaining questions of landowner compensation for the adversities
of past mine
operations, there could nevertheless have been a political expedience in seeing
BCL as ‘better the devil you own’
(a phrase used in the
materials[84]), particularly to
enable a constancy in dealing with BCL for the remaining and brooding
compensation issues to Panguna landowners.
In that context, it is to be kept
steadily in mind that ABG was a shareholder in BCL.
130 I pause here to emphasise that throughout this
judgment, I am doing no more than providing a narrative for contextual purposes,
derived from an assimilation of the materials, and not presuming to make
findings of fact about the fluctuating political events
or history in
Bougainville.
131 The prospect of the ABG
derogating from its previous support for the ‘Landowner consortium’
led to a heightened objection
by the customary landowners and their leaders to
BCL becoming the redeveloper of the Panguna mine. This energised the personal
involvement
of Mr Daveona as (then ostensibly) Chairman of SMLOLA, and Mr
Miriori as President of the MGU.
132 What follows
is of crucial importance.
133 On 4 March 2017, Mr
Miriori and Mr Daveona jointly published a signed press release with the closing
words: ‘Stop BCL once
and for all. The Bougainville Peace Agreement is at
stake’.[85] That written
public protestation sets a factual orientation for an evaluation of later events
and throws plentiful light on the
landowner objections made at the
Warden’s hearing and, ultimately, the Minister’s decision to refuse
the extension application.
In full, the press release
said:[86]
4 March 2017 Press Release by Lawrence Daveona, Chairman of the Special Mining Lease Osikaiyang Landowners Association (SML) and Philip Miriori, President of the Me’ekamui Government of Unity (MGU).
For 17 years since the Bougainville Conflict was settled, both MGU and SML customary landowner groups have been working separately and often in conflict with each other. The causes of this conflict go back to 1964, when Bougainville Copper Mine Limited first occupied and destroyed our ancestral land and our way of life. Without landowner consent, BCL built the world’s largest open cut copper mine generating untold wealth which was never shared with the landowners. This must never happen again.
We the leaders of both the SML and the MGU have come together in recent months to try and resolve our differences in an attempt to unify all the Panguna customary landowners for the first time since 1964.
The incentive to reconcile is the impending and current threat by BCL to re‑enter our lands to carry out new exploration and mining. It was a fundamental principle of the Bougainville Peace Agreement, reflected in the Bougainville Mining Act, that customary landowners own the minerals on their land and they have the right to deny access to any explorer [such as BCL] which they think will cause damage to their land and disruption to their way of life.
In 2014, the Autonomous Bougainville Government passed the Bougainville Mining Act which gave BCL a 2 year exploration license over the former special mine lease area. BCL did not negotiate a land access and compensation agreement and so did not enter the EL area during this 2 year period. BCL refused to meet customary landowners to discuss proper compensation and conditions of access. The exploration licence has now expired but BCL want the ABG to extend the licence for a further 5 years. This is opposed by all Panguna landowners. For the Chairman of BCL to state publicly last week that he has the support of the Panguna landowners is false.
The SML and MGU emphasise that no company must be allowed to explore without resource landowner consultations and agreements. No consent has been given to BCL by either the SML or MGU. BCL has outstanding legacy issues which Francis Ona, our revolutionary Commander, calculated at US$10 Billion.
At a formal meeting on 3 March 2017 the leaders of the SML and MGU fully reconciled Mr Miriori and Mr Daveona have agreed to work together as one voice for the benefit of all Panguna landowners and the people of Bougainville in the now unified SML.
SML now seeks an urgent meeting with President Momis to discuss this matter and recent events by BCL on behalf of the landowners to stop BCL once and for all. The Bougainville Peace Agreement is at stake.
SML Chairman: (Signature)
Lawrence Daveona
MGU President: (Signature)
Philip Miriori
Witness: (Signature)
Ioro 2 COE Deputy Chairman:
Samson Kaissy
134 As noted earlier, in the same month, a new Minister for Mining in the ABG Government was appointed, Mr Raymond Masono. He was also Vice President of the ABG. It is said that he and the ABG government (which is a shareholder in BCL) were supporting BCL to be the redeveloper of the mine. Within the Ministry of Minerals and Energy Resources, there was an ‘Office of Panguna Mine Negotiations’ in Buka. There is in evidence a letter from a Director of that office, Mr Babato, to the Minister dated 29 March 2017.[87] The letter requested the imposition of a travel ban on Mr Duncan to prevent him from entering Bougainville. He is the Company Secretary of Central and a director of the CMEL. He was involved in the presentation to the ABG in about December 2016.[88] According to Mr Babato:
[A]lthough, MGU and SML had agreed to work together to bring peace and unity among SML members there is one huge difference on the part of the MGU [of which Miriori was then President] which is supporting RTG to develop Panguna Mine while SML [of which Daveona was holding himself out as Chairman] is backing ABG and BCL as preferred developer of Panguna mine.
135 According to this letter, the basis of the request for a travel ban on Mr Duncan was that he was said to be ‘interfering with the process the landowners and ABG had worked hard to establish to engage with BCL to redevelop the mine in Panguna’. Mr Babato also said: ‘Presently, his [i.e. Duncan’s] group is dishing out cash to different individuals and groups to undermine the process ABG has put in place to address the issues in Panguna and he even offered to pay SML bills including the legal costs’. He appears to be saying that Mr Duncan was destabilising as a means of gaining control of SMLOLA or influence over it. It is hard to make sense of this last sentence. SMLOLA was in joint venture with Central and, according to Mr Miriori’s news releases, SMLOLA was firmly against BCL ever being allowed to return to Panguna. I add these excerpts from the remainder of the Director’s letter (with my underlining) which may provide some idea of what might be meant by ‘splashing cash around’, and also shows some of the activity of Mr Daveona:[89]
...
RE: REQUEST TO IMPOSE TRAVEL BAN ON MR RENZIE DUNCAN
...
They [the SML leaders] further claimed that during recent months there have been awareness campaigns targeted at the various village locations and the SML association is at liberty to ask if ABG has given the group [Duncan’s group] approval to do what they are doing.
It was further asserted that Central offered SML to discuss paying off the BCL landowner 1990 outstanding compensation and would then chase BCL for the funds due under the Deed of Settlement. This meant that Central would make funds available quickly to SML and then chase BCL to recoup the money so that SML focuses on the important issues.
In return, SML sells the debt to Central for a small amount but get the money straight away. Moreover, Mr Duncan also had a proposal for SML in relation to the main claim for US $10B to discuss.
...
Seriously, Renzie Duncan’s presence in Panguna is causing a lot of confusion and restlessness among the population in Panguna thus contradicting the Bougainville Peace Agreement.
As such, there is a potential conflict situation up there and if ABG does not take appropriate action to put a stop to Duncan’s activities things could go out of hand. Obviously, Duncan’s unethical behaviour in soliciting support from MGU to gain mineral rights in Panguna is matter of very grave concern amongst the landowners.
In line with that understanding SML Executives had resolved to request the Autonomous Bougainville Government to take immediate action to look into this issue and also do a search with this person with the Australian Federal Police (AFP) and PNG Immigration Office and put a travel ban on him entering Bougainville Region again. ABG’s Urgent action on this foreign citizen would prevent further confusion and tensions that may arise amongst SML people and other mine lease areas.
...
Needless to say that although, MGU and SML had agreed to work together to bring peace and unity among the SML members, there is one huge difference on the part of the MGU which is supporting the RTG to redevelop Panguna Mine while SML is backing ABG and BCL as preferred developer of Panguna Mine.
Significantly, on 17/03/17 SML Chairman Lawrence Daveona emailed the OPN requesting immediate action to be taken against Duncan for causing instability and disunity amongst the Panguna people.
In particular, Daveona has requested OPN to caution MGU President, Philip Miriori and his Lawyer, Mr Renzie Duncan ... through the ABG Mining Minister and Vice President to do something about their destabilising activities here in Panguna.
...
136 This appears to be Mr Daveona’s
first, and remarkable, self-change of position. As the signed press release on
4 March
2017 shows, he joins Mr Miriori to say ‘stop BCL once and for
all’ and that the Peace Agreement was at stake . Yet later
that month,
the letter from the Director, Mr Babato, has Mr Daveona in a pro-BCL position by
joining the calls for a travel ban against
Mr Duncan.
137 I think great care has to be taken throughout
this application to distinguish between Mr Daveona’s personal positioning,
and the more pertinent evidence of the landowners’ or SMLOLA’s
position and allegiances. To be fair, similar care should
also be taken with
respect to Mr Miriori’s views and those of the landowner members of
SMLOLA, although, the materials do not
show a fluctuation in
Mr Miriori’s allegiance to the interests of SMLOLA with whom Central
is in joint venture.
138 The evidence does not
reveal what became of this request for a travel ban. I do not think it matters
as, at all events, come
April 2017, a second joint venture agreement was made
between Central, CMEL, SMLOLA, and MGU which affirmed the first joint venture
agreement and extended its scope to include the Panguna
mine.[90]
139 The prospect of BCL obtaining a renewal of its
exploration licence with government support led to lengthy and strongly worded
news releases from SMLOLA, which were quoting Mr Miriori’s views, and
referring to him as ‘President’ or ‘Chairman’.
Through
Mr Miriori, SMLOLA intensified its objection to the ABG’s support for
BCL.[91] This is shown clearly in
the following excerpts from a news release dated 21 April 2017:
Panguna landowners have reacted angrily to a news report that the PNG Government supports disgraced ex-Rio company BCL in its bid to convince authorities it should be given exploration rights at the mine site.
The President of the SML Landowners Association, Philip Miriori, said his group was 100% opposed and that many others Bougainvilleans shared this view.
...
“Many Bougainvilleans were angered at the statements about PNG Government support for BCL.”
...
“All this will do is further motivate our people to stand up against BCL, stronger and more vocally.”...
“Most people in Bougainville know of Francis Ona’s words: ‘BCL should never be allowed to return to Bougainville’. ”
...
“We said we will never accept BCL. It is the same company that caused turmoil in Bougainville which lasted more than 10 years. It is run by ex-Rio people. And it continues to break its promises, try to bully us and misrepresent us, as it tries to drive a wedge between our people and ignore our rights as the owners of the minerals”.
“It is time people woke up to this. In 28 years, BCL has done nothing for Bougainville or PNG except make empty promises or ignore us. Why would we even consider giving BCL anything — they have given us nothing and they owe millions in unpaid rent and hundreds of millions in compensation for ruining the environment.”
“There is a better way forward which will finally get rid of BCL and bring some real hope back for Panguna and the future of Bougainville independence and prosperity.”[92]
140 Another news release, dated 1 May 2017, reflected Mr Miriori’s view that BCL was making false claims about having unanimous landowner support. In speaking for SMLOLA, he carried had the designation, ‘Chairman Miriori’. These are excerpts of what he said:[93]
Recent press articles suggest both the Governments of Bougainville and Papua New Guinea are considering supporting Bougainville Copper Mine (BCL) to redevelop Panguna Mine.
...
SMLOLA Chairman Philip Miriori said “this blatant disrespect is offensive and indicative of an unchanging attitude in BCL — a company run by former Rio Tinto executives who made the decision to abandon Panguna, leaving it with a shocking legacy of environmental damage and a tragic history which led to the loss of thousands of lives.”
Chairman Miriori said “BCL want to remove us and have easy access! Simply outrageous! The law has changed so that we, the Customary Landowners now own the minerals but, BCL believe we should be removed to let them do as they like with our minerals — never. Their views are outdated, arrogant and seek to ignore the law which rightfully confers ownership on us and sets up an obligation on an Exploration Licence holder to secure and negotiate land access agreements. SMLOLA is vetoing BCL’s return.”
“The ABG has actually referred to BCL as the “devil you own,” Chairman Miriori said. “It is foolish to think that the devil will serve you — he will turn on you. The devil should not be invited back onto our land. As Francis Ona said, BCL should never be allowed back to Panguna.”
...
BCL falsely claim ‘unanimous landowner support’
Chairman Miriori says “they repeatedly claim unanimous landowner support but we have met only recently, face to face and made our position very clear - No to BCL forever. The SMLOLA, as Customary Landowners of the Panguna Pit are the critical Landowner Association.”
...
Why is BCL a different company?
Isn’t it the same company that previously operated the mine that led to massive environmental damage and a civil war - with no compensation paid whatsoever or any acknowledgement of responsibility? In fact quite recently in the press BCL stated the 1990 rental payment is the last compensation they will pay! And to date no SMLOLA landowners has received the 1990 compensation promised as paid.
...
Why does the previous Exploration Licence matter?
...
During their previous 2-year term, BCL could not even secure Landowner consent to access the land. Mr Miriori said “BCL were invited to meet with us and yet they did not even try. Why would we expect them to suddenly change? If their previous EL is renewed they again will not be able to secure land access as we have absolute control and again nothing will happen for 5 years. It will just be a land-banking exercise where all Bougainvilleans lose. All Bougainvilleans will suffer - again.”.
“The situation reminds one of the old saying ‘the leopard does not change its spots’”, says Chairman Miriori.
How could it even be suggested that BCL shows a willingness to deal with the legacy issues from the previous mine?
BCL has repeatedly and expressly denied any responsibility for the legacy issues such as the environmental damage and the devastating civil war. It has been 28 years and nothing so far. The ABG has announced it will pursue Rio who would automatically and rightly join BCL in any legal action against them as BCL operated the mine and held the related licences. Is the ABG going to now sue the ABG?
Mr Miriori said “The statement that BCL has shown a willingness to deal with the legacy issues is preposterous! In fact, a recent article in the Post Courier on they say the land rental payment is finally paid after 27 years, and that is it! There will be no more.”
...
141 Then, on 9 May 2017, CMEL as the joint venture vehicle applied for an exploration licence. That was rejected by the Mining Registrar on the grounds that, according to the 2015 Mining Act, BCL’s exploration licence still subsisted whilst its renewal application was pending.[94] This is another oddity, because on the occasion of making their presentation to the ABG, the respondents were told that the extension application had not been filed and the exploration permit had expired.
The Leader’s Forum and an unexecuted Memorandum of Understanding
142 It is not all clear to me how and
why, but it seems that by this time, there was confusion or manoeuvring between
Mr Miriori (manifestly
anti BCL) and Mr Daveona (showing signs he was going to
support BCL and the ABG, despite his earlier anti-BCL stance shared with
Mr
Miriori ) over the Chairmanship of SMLOLA. I gather that, on 30 May 2017, a
‘Leader’s Forum’ was held in Panguna
between the ABG and key
stakeholders to the Panguna mine negotiations. No evidence was provided about
the factors or state of affairs
leading to the conduct of that forum. As an
outcome, there was tendered in evidence an undated and unsigned document with
the title,
‘Memorandum of Agreement Between The Autonomous Bougainville
Government And The Stakeholders To The Panguna Mine negotiations’
(‘the MOU’).[95]
That document appears to have an ABG emblem or insignia, but there is no
indication by whom the memorandum was drafted.
143 There are fourteen parties to the MOU. It
states that there are nine Panguna Mine lease and Mine affected
landowners.[96] Eight of the
parties are described as ‘Panguna Mine Landowners’. The first of
those is SMLOLA, representing the owners
of the land on which the mine is
situated. Curiously, the signature clause in the MOU identifies
Mr Daveona, and not Mr Miriori,
as the Chairman of SMLOLA. The other
landowner groups were ‘Mine affected’, in that they represented
owners of other
land on which ancillary operations of the mine had been
conducted, such as the tailings area and the port area. Elsewhere in the
MOU,
five parties are described as ‘other Stakeholders’. They include
the MGU, in relation to which Mr Miriori is described
as President. The ABG is
the remaining party to the MOU, for whom seven high-ranking government
officeholders are named as signatories,
including the President and the
Minister.
144 The unsigned MOU endorses BCL as
‘the preferred redeveloper of the Panguna mine’, something on which
BCL relied on
as part of this application. But that is directly contrary to the
anti-BCL position so clearly stated by Mr Daveona in the joint
press release he
made with Mr Miriori in March 2017, and is diametrically opposed to the position
taken against BCL, as reflected
in Mr Miriori’s statements as Chairman or
President of SMLOLA in the April 2017 and May 2017 news releases.
145 Where relevant, the MOU states (with my
underlining):[97]
1.1 Whereas following the Leader’s Forum on the 30th May 2017 in Panguna between ABG and key stakeholders to Panguna Mine negotiations, the Parties have agreed to work in mutual cooperation and unity in pursuing meaningful dialog to reopen the Panguna Mine.
1.2 Whereas following the Forum the parties are now desirous and committed to discuss in good faith and with genuine commitment in reopening the Panguna Mine.
1.3 Whereas the Stakeholders to Panguna Negotiation comprised of;
(a) The nine (9) Panguna Mine lease and Mine affected landowners namely:
- Special Mining lease Osikaiyang Landowners Association Inc.,
- Upper Tailing Landowners Association Inc.,
- Mid-Tailings Landowners Association Inc.,
- Lower Tailings Landowners Association Inc.,
- Port Mine Access Road Landowners Association Inc.,
- Bolave Fish Owners Association Inc.,
- Arawa Poraka Resources Owners Association Inc.,
- Rorovana Ukaiasaria Uruawa Landowners Association Inc., and
(b) The Youths of Panguna;
(c) Panguna Former-combatants;
(d) Panguna Women;
(e) Panguna Churches;
(f) Ioro 1 & 2 Community Governments;
(g) Mekamui Government of Unity.
1.4 Whereas the Stakeholders to Panguna Mine Negotiations have unanimously agreed to work with the Autonomous Bougainville Government to reopen Panguna Mine;
1.5 Whereas the general consensus from key stakeholders to Panguna Mine Negotiation is to haveBougainville Copper limited
as the preferred developer to redevelop the Panguna Mine.
1.6 Whereas the Stakeholders to Negotiating the Panguna Mine are important partners per the process established under the Bougainville Mining Act 2015 for any mining investment in Bougainville to be consensus and consultative between all stakeholders and the government with the developer.
1.7 Whereas the mining law of Bougainville vests the ownership of all minerals below the surface of the customary land to be the property of the owners of the customary land, however the government has the legal mandate for granting applications for all mining related purposes and regulate the mining industry on Bougainville.
...
3.1 The Stakeholders to Panguna Negotiation agree unanimously to reopen the Panguna Mine as soon as practical but no later than June 2019.
3.2 The ABG agrees that the Office of Panguna Mine Negotiations will continue to remain and agrees for the Office to be relocated to Panguna. The Office will oversee all Panguna negotiation dialogues between the Parties and facilitates any disputes between Stakeholders to Panguna Negotiations at the technical level.
3.3 The Stakeholders to Panguna Mine Negotiations agree to inform the ABG and “put to the table” any encumbering issues pertaining to Panguna Mine negotiations and all parties agree to address these issues in the current process of dialogue and consultations.
3.4 All Stakeholders to Panguna Mine Negotiations agree to comply with the processes under the Bougainville Mining Act 2015 including exercising their rights where required under the Act in dealing with the developer.
BOUGAINVILLE COPPER LIMITED 4.1
4.2 All stakeholders to Panguna Negotiations fully endorse
4.3 The ABG and the Stakeholders to Panguna Mine negotiation agree for
4.4 All parties agree that after the signing of this Agreement ABG will facilitate the process of conducting the Wardens Hearing under the Bougainville Mining Act 2015.
4.5 All parties agree to allow
...[98]
146 This is perplexing, and unexplained
by any evidence in this application. It is perplexing because, on 4 March 2017,
Mr Daveona
and Mr Miriori had published their joint press release (in which
Daveona is designated as Chairman of SMLOLA) which strongly denounced
the
prospect of BCL returning to Panguna. Then, in the same month, as noted
earlier, Mr Raymond Masono (Vice President of the ABG)
was appointed as the new
Minister for Mining in the ABG which changed its position and came to support
BCL as the redeveloper of
the mine. March 2017 is also the same month in which
it was said that Duncan was ‘splashing money around’. Then, in
April and May 2017, there were strong anti-BCL news releases issued by Mr
Miriori as President of SMLOLA. Yet, in May 2017 it seems
there was a
Leader’s Forum in Panguna ‘For purposes of negotiating the future of
Panguna Mine’;[99] which
produced the MOU endorsing BCL as the preferred developer of the mine. In the
unexecuted MOU, Mr Daveona is named as the Chairman
of SMLOLA.
147 It does not appear that the MOU was ever
signed. That could be because, on 8 May 2017, Mr Miriori as plaintiff, and
still identifying
himself as the Chairman of SMLOLA, brought the leadership
proceedings with SMLOLA as his co-plaintiff against Mr Daveona (identified
in Court documents as the ‘Former Chairman’ of SMLOLA), and also
against Mr Dennis Nasia (identified as ‘Former
Public Officer’ of
SMLOLA).[100] In those
proceedings, Mr Miriori sought initially to restrain Mr Daveona from conducting
an Annual General Meeting of SMLOLA, which
was due to be held on 10 May 2017 at
Dapera village. The notice of motion was later amended to, first, restrain
Mr Daveona from
acting as Chairman of SMLOLA and from carrying out any
negotiations on its behalf in relation to the re-opening of the Panguna Mine;
secondly, to restrain all parties from signing the MOU; and thirdly, to stay
enforcement of the MOU.[101]
148 In evidence, there is an affidavit sworn by Mr
Miriori in the leadership proceedings, which helps understand the power plays.
Where relevant, he swore (with my
underlining):[102]
...
...
...
(a) the First or Second Defendant had no right to call a AGM. This right was vested in the Chairman of the Association (myself) following the directions of the Board of Management ...
...
(d) it is a historical fact that the First Defendant [Daveona] is a strident supporter of Bougainville Copper Mining Limited resuming management of Panguna Mine. Evidence of such support is contained in PNG Exposed Blog published 26th June 2013;
(e) the strategy of BCL trying to remove me as Chairman of the Second Plaintiff [SMLOLA] is too apparent as I have argued that the Second Plaintiff should have the right to appoint a Joint Venture partner. The Second Plaintiff has moved in this direction and is promoting RTG Mining to take over the management of Panguna Mine;
(f) the model development by RTG Mining is the Masbate Gold Project in the Philippines.
...
149 Also in evidence was a supplementary affidavit of Mr Daveona filed in the leadership proceeding, in which he describes himself as ‘the former Chairman’ of SMLOLA. He makes reference to the Leaders’ Forum in Panguna which seems to have led to the production of the MOU. He swears:[104]
Bougainville Copper Limited . Bougainville
Copper Limited to operate the Panguna Mine. Bougainville
Copper Limited as the
preferred Developer whilst only one person did not support the re-opening of the
mine. Bougainville Copper
Limited ....
150 The National Court granted an injunction to restrain the signing of the MOU.[106] On the application of Mr Miriori, the Court also ordered judicial mediation of the leadership dispute. That mediation was conducted over several months by the Honourable Judge Kandakasi. It brought about what was described in press release from SMLOLA dated 5 December 2017 as a ‘customary reconciliation process’.[107] That press release was signed by both men and also states:
...both men as leaders in Panguna have reconciled and are keen to build unity amongst all members to support the initiatives of the Chairman, Mr Phillip Miriori.
...Mr Daveona now has a better appreciation of the deal delivered by the SMLOLA Executive with RTG Mining Inc., which they have worked hard on for more than 18 months and is keen to be part of the process to professionally and sensitively redevelop Panguna so that all the SMLOLA members, all Bougainvilleans and the Autonomous Bougainville Government (“ABG”) are winners in this historic process.
Both Mr Miriori and Mr Daveona will work co-operatively with both the ABG and the National Government and call on both Governments to respect the wishes of the landowners.
It is recognised that there is still much to be done, including an extensive awareness program among the members, to ensure that all understand the care being taken to respect and treat fairly all Bougainvilleans this time around, whilst also working with a partner to ensure the highest of environmental standards ...
151 The outcome of the mediated reconciliation was documented in a signed Deed of Settlement prepared by Corrs Chambers Westgarth in Port Moresby and presumably made on or about 5 December 2017.[108] The principal provisions of the deed stated:[109]
...
1.1 Chairman/Secretary
(a) Daveona and Nasia acknowledge and agree that:
(i) Miriori is the validly elected chairperson of the Landowners Association and has been so since 29 December 2015:
(ii) Daveona is not the chairperson of the Landowners Association and has not been the chairperson of the Landowners Association at any time since 29 December 2015; and
(iii) Nasia is not the secretary of the Landowners Association and has not been the secretary of the Landowners Association at any time since 29 December 2015.
...
1.3 Support for Landowners Association
(a) Daveona and Nasia acknowledge and agree that they will not act, or omit to act, in a way that is contrary to, or inconsistent with, the interests, aims, objectives or positions of the Landowners Association or Miriori, including, without limitation, in respect of any matter relating to the development of the Panguna mine.
(b) Daveona, Miriori and Nasia agree that they will work cooperatively with each other in seeking to further the interests, aims, objectives and positions of the Landowners Association and Miriori including, without limitation, in respect of any matter relating to the development of the Panguna mine. This will include for the sake of clarification, working together to unite the members behind the aims and objectives of Miriori and the Landowners Association in the appointment of RTG Mining Inc. as the developer for any redevelopment of the Panguna Mine.
...
3. Payment to Daveona and Nasia
(a) The Landowners Association agrees to contribute towards the payment of a portion of the outstanding fees and disbursements for which Daveona and Nasia are liable connection with the National Court proceedings (including legal costs associated with the mediation) capped at a total of K300,000 payable by the Landowners Association by equal monthly instalments over three months.
...
152 As part of the insinuation of bribery
or illicit payments in this application, BCL characterised this agreement as Mr
Daveona’s
conversion on the Road to Damascus. That played a strong part in
the advocacy of the application. But I would say respectfully that
this was
overdone. It is important to see, first, that this reconciliation agreement is
not one made with the respondents. Brokered
in the context of a judicial
mediation, the agreement is the settlement of a legal proceeding between two men
disputing each other’s
claims to the leadership of SMLOLA. The obligation
to contribute towards Mr Daveona’s legal costs was incurred by SMLOLA and
not by any of the respondents. Secondly, the outcome is not astonishing.
Although the agreement binds Mr Daveona to in effect abandon
support for BCL and
to support the interests of SMLOLA in joint venture with Central, the documented
fact is that it was only in
March 2017 that Mr Daveona (ostensibly as Chairman
of SMLOLA) had firmly nailed his colours to the mast with Mr Miriori, and joined
him in publicly urging that BCL should be ‘stopped once and for
all’. Soon after that, at a time when a newly appointed
Minister for
Mineral and Energy resources (Vice-President Masono) showed the ABG as coming in
to support BCL, Mr Daveona then ‘changed
sides’ and came to show
support for BCL as preferred developer and, to that end, he held himself out as
Chairman of SMLOLA
(the joint venturer with Central) until he was restrained by
the National Court from doing so.
153 Thus, I do
not think it right to suppose that ‘something wrong’ may have
happened because Mr Daveona might have been
induced, for money, to undergo a
‘conversion’ and turn against BCL. Rather, on the objective facts,
it is plain that
he has agreed to return to his clearly stated original position
in March 2017 - ostensibly as Chairman of SMLOLA - of being strongly
opposed to
BCL, and to be re-aligned with the preference of SMLOLA to be joint venturers
with Central. If Biblical metaphors are
to used, I suggest it is more apposite
to refer to the Old Testament story of the prodigal son.
The announcement to the ASX and TSX on 5 December 2017
154 On 5 December 2017, RTG Mining made an announcement to the ASX and the TSX regarding the reconciliation.[110] Where relevant, the announcement said (with my underlining):
The Board of RTG Mining Inc. (“RTG”, “the Company”) is pleased to announce that Mr Philip Miriori has been confirmed as Chairman of the Special Mining Lease Osikaiyang Landowners Association (“SMLOLA”) and all Court actions will now be withdrawn and come to an end. Mr Miriori has entered into and signed a formal written reconciliation agreement with Mr Lawrence Daveona, following a customary reconciliation process.
Both men have agreed to work together cooperatively, to progress the plans for the proposed redevelopment of the old 1.5Bt1 Copper-Gold Project at Panguna. Both the Chairman and Mr Daveona have also pledged support for RTG as the preferred development partner. Attached is a copy of the Press Release by the SMLOLA.
This is an historic and important step for the landowners, with RTG being the first mining company that has been endorsed by the SMLOLA in 30 years. RTG is pleased to have been afforded the opportunity to play a constructive role in this important reconciliation process
As previously announced, the SMLOLA members are the owners of the minerals at the old Panguna Mine, being the owners of the customary lands under which the minerals lie. The SMLOLA are the only landowner association whose consent is required for the issue of an exploration licence. The SMLOLA has entered into a joint venture agreement, under which they have nominated RTG as the preferred developer for any reopening of the Panguna Mine. Once again, RTG would like to thank the SMLOLA for the unwavering support they have shown to RTG and we look forward to working with the team, including Mr Daveona, to progress the Exploration Licence application currently before the Autonomous Bougainville Government (“ABG”).
...
Our legal advice confirms that BCL does not have a first right of refusal over the Project or the grant of an exploration licence, but it is recognised that the ABG must first determine its position on any apparent renewal application of BCL before considering the application of the SMLOLA consortium.
Despite the legal advice that the renewal application by BCL did not satisfy the requirements of the Mining Act, should the ABG choose to continue with the planned Warden’s Hearing on 11 December 2017, both Mr Miriori and Mr Daveona have indicated they will recommend strongly to their members to deny their consent.
...
155 On the same day as that announcement, Mr Miriori as Chairman of SMLOLA and Mr Daveona issued this joint press release (with my underlining):[111]
Mr Philip Miriori, the Chairman of the Special Mining Lease Osikaiyang Landowners Association (“SMLOLA”) and Mr Lawrence Daveona are pleased to report to all members, that following a customary reconciliation process, both men as leaders in Panguna have reconciled and are keen to build unity amongst all members to support the initiatives of the Chairman, Mr Philip Miriori.
Both Mr Miriori and Mr Daveona are appreciative of the mediation process led by the Honourable Judge Kandakasi over recent months and believe it was instrumental in allowing both men to better understand the merits of their respective views. They have now agreed to work together, co-operatively, towards a redevelopment of Panguna. Mr Daveona now has a better appreciation of the deal delivered by the SMLOLA Executive with RTG Mining Inc., which they have worked hard on for more than 18 months and is keen to be a part of the process to professionally and sensitively redevelop Panguna so that all the SMLOLA members, all Bougainvilleans and the Autonomous Bougainville Government (“ABG”) are winners in the historical process.
Both Mr Miriori and Mr Daveona will work co-operatively with both the ABG and the National Government and call on both Governments to respect the wishes of the landowners.
It is recognised that there is still much to be done, including an extensive awareness program among the members, to ensure that all understand the care being taken to respect and treat fairly all Bougainvilleans this time around, while also working with a partner to ensure the highest of environmental standards. Both Mr Miriori and Mr Daveona are confident that they can work well together and undertaking to work tirelessly to protect the member’s rights as owners of the minerals at Panguna and ensure any redevelopment of Panguna is with the partner of their choice.
156 The reference in that last paragraph
to ‘an extensive awareness program among the members [of SMLOLA] ... this
time around
...’ is notable because it aids an understanding of some later
references to payments which are openly acknowledged as having
been made by
Central or the JV Co for such purposes.
157 It
will give some insight into the political interests ingrained in what underlies
the facts of this application to quote part
of a press release issued two days
later, on 7 December 2017, by the Minister and Vice President of the ARB,
Mr Masono, which stated
(with my
underlining):[112]
The Panguna Mine in Central Bougainville will be redeveloped under the Bougainville Mining Act 2015 and by a developer or developers who respect the Autonomous Bougainville Government and its laws and who enter its mining industry through the main door. The ABG Vice President and Minister for Mining Mr Raymond Masono was commenting on a statement by RTG of a ‘deal’ supposedly made between Mr Phillip Miriori and Mr Lawrence Daveona to support RTG to develop the Panguna Mine. It would seem ironic that two people who were fighting over the leadership of the Osikayang Landowners Association in Court, a mediation case which is still the subject of a court decision should suddenly reconcile to support a company that does not have respect for the legitimate government and its mining laws. The ABG, the landowners and the people of Bougainville will not entertain companies who use the backdoor or break and enter through the window using self-centred individuals who think they have a monopoly of the people’s resources or who represent their interests.
The Landowners will decide who the preferred developer would be through a transparent process undertaken by the ABG Department of Mineral & Energy Resources (DOMER) currently underway. This process has not yet been exhausted and any deals supposedly made between landowner leaders, companies and/or the National Government, and in particular RTG are premature at this stage.
Said Mr Masono ‘of all peoples, Mr Phillip Miriori and Mr Lawrence Daveona should know that the Panguna Mine is not any ordinary mine; it has a history of its own and a very bad history at that. The Mine no longer belongs only to the Landowners, because Bougainvillean blood was spilled over this particular mine’. Moreover, whilst the resources in Panguna and in other parts of Bougainville might belong to the people, the ABG has a responsibility to protect its people from unscrupulous companies whose sole interest it is to exploit our people for their own economic interests. We have seen how Bougainvilleans were exploited by foreigners since colonial days and the ABG does not want a repeat of the past. ‘I am actually surprised that certain individuals can so easily sell their birth right for as little as K40,000 a month to a foreign company when foreign exploitation was one of the issues against which our people fought and died’, said Mr Masono. At the same time the ABG rejects companies that think they can bribe their way into the people’s resources by giving certain individuals money to gain landowner consent’, said Mr Masono.
158 The ABG is a substantial shareholder in BCL. As far as economic interests are concerned, the reconciliation would be regarded as unfavourable to government. The press release has mixed messages of dissatisfaction, notably: ‘The Mine no longer belongs only to the Landowners, because Bougainvillean blood was spilled over this particular mine’. Within the rhetoric, for the purposes of this application BCL seizes on the Minister’s sensational reference to ‘unscrupulous companies’ that ‘bribe their way’, and to individuals that ‘sell their birth right’. The reference to payment of K40,000 is unexplained, although I was told by counsel that it equates with the lodgement fee of an application to the Bougainville Mining Registrar. That is the next part of the narrative.
The Mining Warden’s hearing on 11 December 2017 and the announcement about it to the ASX and the TSX on 12 December 2017
159 Despite the respondents’
tenacity in saying that there was no evidence that BCL truly lodged a valid
extension application,
the incontrovertible fact is that a Warden’s
hearing occurred on 11 December 2017 in Panguna. It is still not apparent how
the respondents can sensibly ask me to confine myself to Mr Phillips’
affidavit and make a finding that there was no admissible
evidence of an
extension application having been lodged by BCL. Surely the facts speak for
themselves. A legislative process must
have been instigated and accepted for
the Warden’s hearing to have occurred. There has to be a presumption of
regularity.
The respondents were driven to submit that, just because a
Warden’s hearing occurred and, on the chain of authority, the Minister
then made a decision on the application does not therefore mean that the
Minister was right to do so. I cannot allow the respondents
to use a pre-action
discovery (interlocutory) application in Victoria to obtain a finding that a
Minister of government in a foreign
State made an invalid decision in the
exercise of powers under the laws of that State.
160 There is no direct
affidavit evidence, from a person who was there, about what happened at the
Warden’s hearing. However
on 12 December 2017, RTG Mining made
announcements to the TSX and the
ASX.[113] Those announcements
contain the only evidence on this application about what occurred at the
Warden’s hearing. Although representatives
of BCL were present at the
Warden’s hearing, there was no evidence from BCL to enlarge or contradict
the facts as stated in
those announcements.
161 The announcements stated where relevant (with
my underlining):
The Board of RTG Mining Inc. (“RTG”, “the Company”) (TSX Code: RTG, ASX Code: RTG) is pleased to provide an update on the Warden’s Hearing for
At the outset, it is important to acknowledge the Autonomous Bougainville Government (“ABG”) representatives on the day being the Warden and Mining Registrar conducted an orderly forum, ensuring both the opposition to BCL and its supporters were given an opportunity to express their views.
BCL has stated it lodged a compliant extension application for Exploration Licence (“EL”) 1 in July 2016, which legal advice to the SMLOLA states was not validly lodged. Based on this legal advice, the SMLOLA filed an objection to the extension application with the Warden stating it is invalid because it was submitted out of time and was incomplete which means that the EL expired 15 months ago. This was also consistent with statements to the SMLOLA members on several occasions by the ABG confirming they had not received an extension application from BCL, as early as 8 September 2016. Interestingly BCL’s position only yesterday changed, within just four days, suggesting now that it was not processed on time, blaming the ABG.
Despite the right to do so, the SMLOLA chose not to stop the Warden’s Hearing yesterday as it was keen to give its members the opportunity to speak their mind, given the depth of emotion behind their views. The purpose of the Warden’s Hearing was to determine whether the purported extension application by BCL has the necessary support of the SMLOLA members, being the owners of the minerals and customary land within the EL boundary.
SMLOLA’s objection is only one of in excess of 100 formal written substantive objections lodged in respect of the Extension Application. Other objections call on the ABG to cancel BCL’s EL pursuant to the ABG’s own Notice to Show Cause dated 21 July 2016, based on a blatant breach (admitted by BCL) of section 112(1) of the Mining Act because Rio Tinto transferred more than the statutory maximum 25% shareholding without seeking the ABG’s approval. Another objector lodged a Petition with 2,000 supporters expressing opposition to BCL. Another objector points out that BCL’s EL was granted without consent or compensation to the customary landowners and therefore constitutes the unfair (and unconstitutional) deprivation of their lawful property. Other objections make the point that BCL was granted a 2 year EL, but was unable to gain landowner consent and access before its expiry on 7 September 2016, having made no progress on the redevelopment during the full 2 year term.
The Warden’s Hearing was held yesterday, with a strong majority held message from the SMLOLA members, they will never grant BCL access to their lands and do not support an extension of BCL’s previous EL1 or the grant of a new EL to them.
This position was also supported by a Petition, signed and supported by around 2,000 members of the SMLOLA stating ‘No to BCL Forever’ which demonstrates the position of many of the landowners.
All those who supported BCL, for the most part, were calling on BCL to compensate them for the past atrocities which they hold BCL accountable for, which to date BCL have neither accepted nor compensated them.
...
SMLOLA and RTG respect the ABG’s role as the independent regulator to fairly and impartially grant and administer exploration licences. Contrary to recent false allegations published in the media, the SMLOLA plan for the Panguna Mine has been developed over the last 5 years, in full consultation with the ABG. This included full and comprehensive briefings to President Momis (over 20 meetings) and the two previous Mining Ministers of the ABG, to ensure the plan had the ABG’s support. Following a suggestion of the ABG, it also included flying a number of ABG Ministers to the Masbate Mine in the Philippines (being the last mine developed by the RTG management) in late January this year.
...
RTG accepts that, in representing the owners of the land and the minerals contained within it, the SMLOLA executive are charged with the responsibility of seeking to commercialise their mineral ownership interests in a manner that protects the members, a role which RTG can see they take very seriously. This has been a full time job for the executive, which has also required the employment of a team of landowners to assist in negotiations, awareness campaigns and protecting the members’ rights. For this Central has ensured these persons have been fairly compensated on arms’ length terms in an honest and transparent manner and at normal commercial rates. The ABG were in fact advised of that plan long ago (before the current Mining Minister’s appointment, which may explain the confusion) and expressed no concerns.
162 That last statement that Central
ensured that SMLOLA executives and an employed team of landowners ‘have
been fairly compensated
[by Central] on arm’s-length terms in an honest
and transparent manner and at normal commercial rates’ came to form the
platform of BCL’s application. To a mind predisposed to testing for
probity, those words might be thought to have a proleptic
quality – to
reveal implicitly a consciousness or anticipation of a possible objection or
challenge based on legal propriety.
163 As a
matter of ordinary behavioural experience, or conceptions of the worst form of
business misconduct, I would think that a
maker of bribes or illicit payments on
a venture of this scale and significance would have nothing to say at all in
public about
payments of any money. The fact is that SMLOLA and Central (as the
payment maker) were in a 50/50 joint venture in post-civil war
conditions for
the resumption of mining activity which, according to the materials, caused or
at least contributed to environmental
damage and the onset of war itself. In
those circumstances, I see nothing specious in the conduct of awareness
campaigns. The intention
to conduct such campaigns was stated as part of the
documented presentation made in December 2016 by RTG Mining and the JV Co to
the
ABG.[114] Under the heading of,
‘A Social Licence to Mine’, the presentation stated amongst other
things that there would be ‘Effective
Community Consultation and
Awareness’ and ‘Seek to understand community’s needs and
aspirations’.[115] That
aligns with some of the stated objectives of SMLOLA as an incorporated
association, which are:
To receive, organize and administer funds, compensation payments, grants and gifts from the National Government, Autonomous Bougainville Government, the developer of Panguna Mine and others in PNG and overseas in pursuance of its objectives.
To undertake education, training and awareness campaigns and programs on environmental issues, development, human rights, land and resources rights for the Panguna People.
164 The announcements make no reference
to payments by RTG Mining, only Central. RTG Mining is a minority shareholder
in Central
with minority Board control. There is no reference anywhere else in
the materials about payments being made by RTG Mining to SMLOLA
or any other
persons.
165 It was significant that, soon after the
Warden’s hearing, a press statement was made on 21 December 2017 by the
ABG President,
Dr John Momis, about an Executive Council decision to impose an
indefinite moratorium on mining and exploration in Panguna. The
statement said
(with my underlining):[116]
The President of the Autonomous Government of Bougainville, Honourable Dr John Momis, MHR, has announced that the Bougainville Executive Council in its meeting today, made a thoughtful and considered decision to impose an indefinite reservation moratorium from any exploration or mining over the Panguna project in the best interest of the landowners and of the people of Bougainville, after debating over the advice received from the Bougainville Mining Advisory Council.
It is with much regret that the basic requirement for obtaining the landowners consent under the Bougainville Mining Act 2015 could not be met. The voice of the Panguna landowners was clearly heard during the Mining Warden Hearing that resulted in a narrow divide between those supporting the mine to be opened by BCL and those that oppose. Further to this, to develop the mine today by any other developer will be untenable under current circumstances. Hence, we will not allow this project once again to reignite the wounds of the Bougainville crisis and distract our focus for restoring peace and our preparation for our referendum in 2019.
Whilst imposing this moratorium over the Panguna project, my Government will continue to consult with the Panguna Landowners and the people of Bougainville on an appropriate arrangement or best alternative models of development of the mine if the people still have an appetite to develop the mine in the future.
166 On 16 January 2018, the BCL Board notified the ASX that it ‘has received a notice from the Autonomous Bougainville Government Minister for Mineral and Energy Resources, acting in accordance with the advice of the Bougainville Mining Advisory Council, that the extension of the term of the exploration licence sought by BCL has been refused’.[117] Any written communication of the Minister’s decision and expectable reasons, or any decision in solemn form, was not in evidence on this application. The decision was reported by BCL in a Media Release dated 28 February 2018, as well as in an Appendix to a Preliminary Final Report lodged with the ASX. The report said:[118]
In July 2016 the company [i.e. BCL] applied to extend the EL [i.e. exploration licence]. The ABG commenced the processing of the application in October 2017 and on 16 January 2018 issued a Notice of refusal to grant the renewal of the application for the following reasons:
167 The indefinite moratorium affected
any exploration as well as mining. Therefore, as I see it, for all
practical purposes, the outcome of BCL’s extension application became
something
of no real avail; and likewise, a refusal of the application was of no
avail to the joint venture pursuits of the respondents and
SMLOLA, the first
step of which would be to obtain an exploration permit.
168 In concluding the foregoing narrative of the
facts, it was no exaggeration for the respondents’ senior counsel to
describe
the facts as internecine and as being set in a complex, dynamic,
political, and variable climate in Bougainville. Those conditions,
of
themselves, mean that great caution is required in drawing inferences from the
facts as a basis for saying there are reasonable
grounds to believe that a
serious wrongdoing might have occurred.
169 That
leads to the next event: BCL’s pursuit of documents before bringing the
rule 32.05 application.
The pre-application request for documents
170 By letter dated 15 January 2018 (the
day before formal notification of the refusal decision), BCL’s lawyers (in
Melbourne)
requested that RTG Mining’s solicitors (in Perth) produce the
documents sought in the present application, under threat of
a court application
to compel pre-action
discovery.[119] An identical
letter was sent the Company Secretary of Central in Sydney.
171 The letter explains the known background and
refers to, in particular: the announcements to the stock exchanges on 5 and 12
December
2017; the reconciliation agreement between Mr Miriori and Mr Daveona;
the request for a travel ban on Mr Duncan; and the subsequent
public
statements made by Vice President Masono. From there, the letter from
BCL’s lawyers speaks of BCL having the following
‘concern’:
Further, the matters set out in this letter give rise to a reasonable basis for concern on the part of BCL that payments, benefits or inducements may have been offered or made available to one or more of Mr Miriori, SMLOLA and/or Mr Daveona or other parties (whether directly or indirectly) for the purpose of enabling RTG and/or Central and/or Mr Duncan to advance the commercial interests of RTG/Central and to interfere with BCL’s commercial interests in connection with the Panguna project.[120]
172 The letter requested, in part,
documents referable to the payment of any ‘benefit’ as that term is
defined in Division
70 of the Commonwealth Criminal Code having the
heading, ‘Bribery of foreign public officials’.
‘Benefit’ includes ‘any advantage’
paid to a
‘foreign public official’, both of which are defined in the
Criminal Code.
173 Avoiding the statutory
details of this particular part of the Criminal Code, a person
commits a Commonwealth crime if a benefit is provided to another person to whom
the benefit is not legitimately due; and
the giver of the benefit acts with the
intention of influencing a ‘foreign public official’ in the exercise
of their
official duties as a foreign public official in order to obtain or
retain business, or obtain or retain a business advantage, that
is not
legitimately due. A ‘foreign public official’ is defined in s 70.1
to include: ‘(a) an employee or official
of a foreign government body; (b)
an individual who performs work for a foreign government body; and (c) an
individual who holds
or performs the duties of an appointment, office or
position under a law of a foreign country or of part of a foreign
country’.
A ‘foreign government body’ is defined to include
‘the government of a foreign country or of part of a foreign
country’ or ‘an authority of the government of a foreign company or
of part of a foreign country’. I shall assume
by its foreign subject
matter that this part of the Code has an extra-territorial operation, as a
criminal prosecution by an Australian
prosecuting authority.
174 To state a ‘concern’ or to
insinuate a crime would require weighty evidence. BCL is not a public
prosecuting authority.
There is no suggestion that the respondents bribed an
ABG official or public office holder to refuse the extension application.
BCL’s extension application was refused on the basis of a Mining
Warden’s hearing at which, it was reported, the voice
of the Panguna
customary landowners was projected and heard.
175 I
could not be sure from the submissions, but the suggestion was that taking the
ABG officials on a visit to the Masbate Mine
in the Philippines could be
regarded as a ‘benefit’ in money’s worth. BCL submitted that
it was the sort of benefit
that an Australian parliamentarian might have to
declare. I do not think that is an apposite example. The Criminal Code
looks to benefits to obtain or retain a business advantage that is not
‘legitimately due’. As I see it, the visit to
the Masbate mine had
the legitimacy of being part of the presentation made by the respondents to the
ABG, which was made at the request
of the ABG who had advised the respondents
that BCL had not lodged an extension application by the due date. It was a
visit that
was not covert or conducted by stealth. In resource planning and
management (particularly in post-civil war Bougainville), I think
that a view of
the Masbate mine would surely have been necessary and important for ABG
purposes, as part of an assessment of the
suitability of the respondents as the
prime movers of a redevelopment in joint venture with SMLOLA.
176 If BCL’s reference to Criminal Code
‘benefits’ was directed to benefits conferred on SMLOLA or Mr
Miriori or Mr Daveona, I cannot see how SMLOLA could be
regarded as a foreign
government body or authority, and I cannot see how Mr Miriori or Mr Daveona
could be regarded as ‘foreign
public officials’ acting in the
service of a foreign
government.[121] SMLOLA was a
voluntary association of landowners. It was not a government authority or
statutory body. Mr Miriori or Mr Daveona
were not statutory officials or
performing a statutory role. They were officeholders of a voluntary association
who, so BCL emphasised
for other purposes, was not a statutory approved
landowner association under the schema of the 2015 Mining Act.
177 BCL does not identify any foreign official who
could be said to have been influenced, or how the payments had any connection
with
the Minister’s decision as ultimately made. Furthermore, if the
purpose of illicit payments or benefits was to gain some illegitimate
business
advantage, I cannot see how the views or impressions formed by the government
officials about the Masbate operations somehow
translated into opposition to BCL
by the landowners at the Warden’s hearing. Indeed, the ABG’s
position was to favour
the return of BCL to Panguna. Above all else, in this
application, BCL does not seek any particular discovery concerning the
‘benefit’
conferred in hosting the visit.
178 The response to BCL’s pre application
request from the lawyers for RTG Mining was expectable. They denounced
‘the
scandalous nature’ of BCL’s
assertions’.[122] It is
sufficient to provide these excerpts from their response:
...
From the outset, I note you have written in substantively identical terms to your letter of the same date to Central Exploration Pty Ltd (Central).
This highlights the scandalous nature of your client’s assertions in respect of RTG.
Your client is well aware that RTG is a minority shareholder in Central. RTG only has the right to nominate two of the five directors to the Board of Central.
RTG has been nominated as the preferred development partner for a joint venture in which RTG has an indirect interest should Central Me’ekamui Exploration Limited (CMEL) be successful in securing an exploration licence at Panguna.
The actions to which you refer in your correspondence are not actions of RTG.
... I should make plain that RTG strongly denies that it has made any payments or benefits, ... There is simply no basis for your client to profess to have a “reasonable concern” that such payments, benefits or inducements have been made by RTG. RTG’s involvement in the applications being pursued by CMEL is to support the proposed applications with the benefit of the RTG Management team’s extensive technical experience gained from various mining projects successfully completed around the world and RTG’s ability to access capital sufficient for the purposes of any proposed redevelopment of the mines.
Further, the recent statements of President Momis make it plain that the cause of BCL’s issues in Bougainville relate to their conduct in the past, that is the legacy issues from the past operation of the Panguna Mine by BCL. Quite clearly RTG could not and did not play any role.
These matters emphasise the scandalous nature of your client’s assertion that RTG would engage in criminal conduct (such as destroying evidence) or breach of the Crimes Act. These are improper (in a professional sense) allegations to be made by you in your correspondence. You should have satisfied yourself that there was a proper basis to raise these allegations against RTG.
...
Your letter to RTG, in the identical manner of your letter to Central, identifies no possible cause of action that could be raised in the Federal Court of Australia or the Supreme Court of Victoria or for that matter any Court of Australia. Similarly, RTG does not accept your letter constitutes valid compliance by your client or the requirements of the Civil Disputes Resolution Act 2011.
...
Should your client wish to satisfy its obligations under the Genuine Disputes Resolution Act then you should set out in your reply precisely what potential cause of action your client considers may be available to it and in what jurisdiction. It should also address why it raises the requests of a minority shareholder. If your client properly articulates its proposed claim (that is, it identifies its dispute) my client will respond consistent with and in fulfilment of its obligations under the Genuine Disputes Resolution Act.[123]
179 These excerpts from Central’s response (dated 24 January 2018) to the same request for documents, should also be quoted:
...
Your letter conspicuously fails to identify any contemplated cause of action available to your client under federal law or under the laws of the State of Victoria. It conspicuously fails to assert any justiciable claim for relief in any Australian jurisdiction.
...
Insofar as it asserts a “reasonable belief” that my client [Central] might engage in criminal conduct or has engaged in criminal conduct, your letter is scandalous and professionally improper.
As you are aware, on any application for pre-action discovery, the test requires that an applicant identify a potential cause of action. Whilst accepting that the burden faced by an applicant for pre-action discovery is less than showing a prima facie case, your letter fails to identify any facts that could meet even this low threshold.
180 Central’s response went on to state these additional factual matters concerning the conduct of the Warden’s hearing:
This hearing was attending by 500 or more people. The majority of those attending spoke against BCL being given a licence to return to Panguna to redevelop the mine. The overwhelming reason for the customary landowners opposing BCL was stated as the legacy issues of the past. Your client is well aware of these. They include both the social and environmental impacts arising from BCL’s operation of the mine, the lack of compensation for such matters and the dispute which escalated into the civil war in Bougainville.
As I am instructed, many of those who spoke in favour of BCL stated they were doing so because they wanted BCL to compensate them for these past legacy issues. Clearly, the overriding issue that BCL faced throughout its efforts (which were unsuccessful) to secure support for its return to Bougainville were the legacy issues in respect of which my client played no part.
Moreover, on 22 December 2017, the Bougainville Executive Council, by the President, Dr John Momis, announced an indefinite moratorium on applications for mining tenements over the Panguna Mine Site, a moratorium which he states in an interview with the ABC reported on 8 January 2018 was implemented to close the door on BCL not mining. The President, Dr John Momis, also made the following comments about BCL’s proposal to redevelop the Panguna Mine in the same ABC interview:
“The majority of people are opposed to BCL because of what they have done in the past.”
“Because of BCL’s failure to assist with the restoration of Bougainville since the crisis.”
“BCL does not seem to have changed its attitude towards the Mine and the Landowners.”
“People felt BCL no longer deserves to have the Social Licence.”
“BCL does not deserve a Social Licence, because of what they have done.”
It is important to note that the Autonomous Bougainville Government (ABG), under the leadership of President John Momis, is a 36.4% shareholder in BCL and despite this shareholding, still determined to deny BCL’s purported extension application for EL 1.
181 Lastly, the letter stated Central’s position on the suggestion of improper payments as follows:
Your client is well aware that the joint venture Central is party to, as part of its operations, has employees and consultants in Bougainville. Their remuneration is transparent and at arm’s-length. Central emphatically denies it or the joint venture has made any improper payments or provided any improper benefit or inducement to any one or more of Mr Miriori, [SMLOLA] and/or Mr Daveona or any other party. No improper payments have been made so as to advance Central’s commercial interests or to interfere with BCL’s commercial interests (such as they are at the moment).
...
In the circumstances set out above, your client’s “request” is refused.
Did BCL make all reasonable enquiries?
182 As a precondition to an order for
discovery under rule 32.05, an applicant is required under rule 32.05(a) to show
that it has
made ‘all reasonable enquiries’. That contemplates a
reasonable exhaustion of alternative sources of information and,
in any
particular case, involves a pragmatic balancing of
considerations.[124] What is
reasonable will depend on the nature of the case and basis for seeking possible
legal remedy.
183 The respondents submit that BCL
made only limited enquiries by correspondence, within a brief time period, and
that the enquiries
could have been pursued further. The correspondence from
BCL’s lawyers started on 15 January
2018.[125] The request for
documents was met on 24 January 2018 with a strongly worded letter of
resistance, on the grounds of a lack of proper
basis for the serious allegations
being made, and a failure to observance obligations under the Genuine
Disputes Resolution Act.[126]
The exchange ended in a response from BCL on the following day which, as is
often the case, showed that further argumentative correspondence
was not going
to advance matters and that a court application would be made.
184 I cannot reach the conclusion that BCL failed
to make all reasonable enquiries. The letters from BCL’s lawyers to the
lawyers
for RTG Mining and Central were, of course, directed to the only viable
sources of information and, merits aside, posited the essential
facts on which
BCL was going to assert that there was ‘a reasonable basis for
concern’ that payments and benefits had
been given to interfere with
BCL’s interests in Panguna. The issue was always going to be whether, on
such a serious allegation,
those facts were sufficient to give rise objectively
to a ‘reasonable cause to believe’ and what the prospective relief
would be, and in which jurisdiction.
185 I think
further correspondence and enquiries between the lawyers would have only led to
more argumentative correspondence. The
correspondents were measured and
experienced in their field, but the verbal energies were propelling the matter
to Court.
186 I cannot think of what other enquiries
Mr Phillips could have made. He could hardly have politely asked ABG officials
or SMLOLA
officers or selected customary landowners if they had taken bribes or
obtained Criminal Code benefits. To seek to have the police (that is,
the Australian Federal Police) or Australian government officialdom involved
would
have posed disruptions and repercussions and possible embarrassment. I
can understand why enquiries were confined to the alleged
tempter rather than
the tempted.
187 Therefore, I reject the
submission that reasonable enquiries were not made by BCL for the purposes of
rule 32.05. I also think
the resistance from the respondents’ lawyers in
the correspondence was not unreasonable or suggestive of an avoidance on
tactical
or specious grounds. They were justified in calling stringently for a
proper basis to BCL’s request and to be advised of the
facts upon which
BCL was making such serious allegations. The respondents maintained that
position consistently in their opposition
to the application when it came to
contending that there was still no evidence from BCL, under paragraph (c)
of rule 32.05, to show
‘a reasonable cause to believe’ that BCL may
have the right to obtain relief in this Court. That is the essential
precondition
to obtaining an order under the rule.
188 Soon after this exchange of the lawyers’
correspondence, a media release from BCL dated 28 February 2018, stated that, on
23 January 2018, the ABG had given notice of its formal decision to impose a
moratorium over exploration and mining over the pre‑existing
EL-1 licence
area.[127] The actual notice of
decision is not in evidence. The media release also stated:
The leadership of the SML landowner association remains unresolved and continues to be the subject of further National Court hearings. The Landowner leadership and associated disunity has been a major factor influencing the ABG decision not to renew the EL and impose a moratorium over the EL area.[128]
189 The next step was the challenge by BCL to the legality of the refusal decision, which I mentioned earlier in this judgment. As a matter of timing, of events, something more should be said now about the judicial review proceedings for completeness.
190 On 24 or 25 January 2018, BCL
commenced the review proceedings in the National Court of Justice at Waigani in
PNG to seek judicial
review to quash the refusal
decision.[129] The proceedings
were brought against the Minister for Mineral and Energy Resources (Vice
President Masono) and five other defendants,
all of whom were involved in the
decision-making process to refuse BCL’s extension application; namely, the
Bougainville Mining
Advisory Council, the Chief Mining Warden, the Bougainville
Executive Council, the Mining Registrar of the ABG, and the ABG itself.
191 The grounds of judicial review are widespread
and not all self-explanatory. I will not rehearse them in detail. It is
sufficient
to say that the dominant ground of judicial review is that the
Minister’s decision proceeded on an irrelevancy because it was
apparently
based on the question of whether or not BCL had the ‘social licence to
operate the mine’ (my emphasis). BCL contends that its application
was to extend its exploration licence, and that was treated erroneously
as a matter of law as if it were the same as an application for the grant of a
mining lease. The latter involves different statutory considerations than
the former. BCL contends that, for the purposes of assessing an application
to
extend an exploration licence, ‘majority consent’ is not
‘required’ under the 2015 Mining Act.
192 As an alternative to that primary contention,
BCL looks to the procedural conduct of the Warden’s hearing and contends
that
it did have majority consent from the customary landowners to extend the
exploration licence. BCL contends there were substantial
procedural errors in
the conduct of the Warden’s hearing that led to an unfair hearing and
incorrect assessment. Likewise,
BCL contends as against the Minister that he
failed to take into account that BCL did have majority consent and a social
licence
from the landowners to seek an extension of the exploration licence, and
also to conduct the proposed activities under the extended
exploration
licence.[130]
193 Similar grounds of review are put as against
the Bougainville Mining Advisory Council, on whose advice the Minister acted.
But,
in addition, BCL’s case is that the Council was biased or that it
acted unreasonably ‘in the Wednesbury sense’.
That is a familiar
reference to the canonical judgment of the English Court of Appeal in
Associated Provincial Picture Houses Ltd v Wednesbury
Corp[131] on the judicial
reviewability of a particular type of administrative decision; namely,
‘something so absurd that no sensible
person could ever dream that it lay
within the powers of the authority...’ The basis to BCL’s grounds
of review is that
the Council appeared to be:
preferring the views of less than 3% of formally identified Landowner Customary Representatives and of the disputed ‘officers’ of the unapproved Special Mining Lease Osikaiyang Association Inc. (SMLOLA) instead of the documented support for the Extension Application of more than 90% of the formally identified Landowner Customary representatives previously recognised by [the ABG].[132]
194 There is also a suggestion that the
Council might have had doubts about the veracity of the signed written support
on which BCL
was relying.[133] If
so, BCL’s case on review is that the Council acted unreasonably or was
biased in ‘failing to require further due
diligence or verification’
before proceeding to refuse the extension
application.[134]
195 On 10 April 2018, the National Court
made a procedural order in the review proceedings and granted BCL leave to seek
judicial
review. It also made an ancillary order to stay the operation of the
Minister’s decision to refuse the extension application,
pending the
substantive determination of the judicial review proceedings. So, as things
stand, there is a moratorium on mining and
the question of an extension of
BCL’s exploration licence is in suspense. As at the time of this
judgment, this Court has
not received any notification from the parties
regarding whether that proceeding has been heard or determined by the National
Court
of Justice.
196 Although it did not form a
conspicuous part of the opposition to the application, I have asked myself
the question whether BCL’s
position in the judicial review proceedings is
inconsistent with the core of the underlying basis of the present application,
which
moves on the basis that something wrong (insinuated to be bribery) has
happened and landowners might have been bribed at the hands
of the respondents
to object to BCL’s extension. Yet, BCL’s case in the judicial
review proceeding is put on the basis
that, at the critical time of the
Warden’s hearing, BCL did have the written support of a majority of the
blockholders of the
land that makes up exploration licence EL-1 but the Warden
and then the Mining Advisory Council failed to properly consider or account
for
that support. Might it be that the supposed bribes were ineffectual?
197 I think the judicial review proceedings are to
be seen as a double prong attack which might appear to be inconsistent, but not
in a way that undermines the availability of rule 32.05 as a matter of
substance or residual discretionary consideration. As I see
it, this
application proceeds on the basis that there was a valid decision made by the
Minister according to the ‘votes on
the floor’ (so to speak) of the
hearing but that there might have been (on facts not yet known but possibly to
be discovered)
corruption in the formation and expression of the
landowners’ attitude on the day of the Warden’s hearing. On the
other
hand, the judicial review proceedings assumes no bribery or impropriety in
the formation and the giving of the ‘votes on the
floor’, but looks
to challenge the legality of the assessment of the objections and the refusal
decision according to the facts
as discernible and the applicable law in
Bougainville as known.
198 The account of the
complex facts and circumstances given so far in this judgment now leads to the
dispositive issue whether BCL
has satisfied the precondition in rule 32.05
of having to show reasonable cause to believe that it has or may have the right
to obtain
relief.
199 It is settled that a mere assertion
of a belief is insufficient without grounds, and that a hunch or flimsy
foundation is not
enough to attract rule 32.05. Similarly, one might think that
a reasonable cause to suspect that an applicant may have the right
to obtain relief - therein lies a dual infirmity - is not the same as
‘reasonable cause to believe’, and
that it might be unjust for a
mere suspicion of a wrongdoing to be enough under rule 32.05 for a Court to
order discovery of documents
to see if the applicant has the right to make a
case against the prospective defendant.
200 The
difference between the two states of mind - suspicion or belief - was explained
by the High Court of Australia in George v
Rockett.[135] That case was
decided in a distinct statutory context in which proof of suspicion and proof of
belief, as differentiated states
of mind, was required to justify a search
warrant. In a unanimous judgment, the Court said:
Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam [citation omitted], ’‘... in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’” The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.
...
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
201 In construing the requirements of
paragraph (a) of rule 32.05, there have been State and Federal authorities that
maintain a distinction
in the workings of the rule between belief and suspicion,
and other states of mind like hunch and
speculation.[136] But the once
identical Federal Court rule 7.23 was amended to say ‘if the prospective
applicant reasonably believes’.
That change was thought to be
‘apparently part of a worthy and well intentioned endeavour to use plain
English’, but
which ‘may therefore have had the inadvertent and
unintended consequence of introducing a subjective element to what was
previously
a purely objective
test’.[137] In
Pfizer Allsop CJ viewed federal cases that maintained the dichotomy
between belief and suspicion as having ‘a tendency to create an
overly
abstracted conceptualisation of refined statements of mind which, if the words
of the rule are not kept in mind, can lead
in application to a misstatement of
the essence of the rule, focussed as it is on what may be the
position’.[138] It was also
said to be ‘unhelpful and likely to mislead to use different words such as
“suspicion” or “speculation”
to re-express the
rule’.[139]
202 The thinking to be borrowed from Pfizer
is that, on a preliminary discovery application, a degree of speculation is
unavoidable or is inevitable because the application
is inherently allowed to be
based on a belief that there ‘may’ be a right to obtain relief.
Thus, as stated by Perram
J in Pfizer:
In practice, to defeat a claim for preliminary discovery it will be necessary to show that the subjectively held belief that there may be a right to relief does not exist, or, if it does, that there is no reasonable basis for thinking that there may be (not is) such a case. Showing that some aspect of the material on which the belief is based is contestable, or even arguably wrong, will rarely come close to making good such a contention. Many views will be held with which one disagrees, perhaps even strongly, but this does not make such a view one which is necessarily unreasonably held. Nor will it be an answer to an application for preliminary discovery to say that the basis relied upon may involve a degree of speculation. Where the language of FCR 7.23 relates to a belief that a claim may exist, a degree of speculation is unavoidable. The question is not whether the belief involves some degree of speculation (how could it not?); it is whether the belief resulting from that speculation is a reasonable one.[140]
203 It is a question of degree. As Perram J went on to observe:
[T]he concept of speculation operates on a broad spectrum. There will, obviously enough, be cases where the prospective applicant’s claims are so speculative as to warrant the dismissal of the preliminary discovery application. But what must be shown by the prospective respondent to defeat the application in such cases is not the existence of speculative reasoning on the part of the prospective applicant, but rather that the applicant’s belief that there may be a right to obtain relief in the circumstances is a belief not reasonably held.[141]
204 Along slightly different lines in
this Court, Riordan J took the view in Alex Fraser Pty Ltd v Minister
for Planning[142] that the
mental condition of having a suspicion or hunch should not be mutually exclusive
with the mental condition of having a ‘reasonable
cause to believe’,
and if a belief could leave something to surmise or conjecture then ‘a
reasonable suspicion, conjecture
or assertion may each fall within the ambit of
a reasonable belief’.[143]
205 If it comes to matter, I think there is an
uneasiness in naturally or mechanically equating or extrapolating ‘a
reasonable
cause to believe’ with ‘a reasonable cause to
suspect’. I think speculation and suspicion are preliminary mindsets,
and
not interchangeable with belief. Suspicion is instinctive by nature whereas
belief is, as stated in George v Rockett an ‘inclination of the
mind towards assenting to, rather than rejecting, a proposition’. And as
this application shows,
great care would be required before a Court could compel
discovery on nothing more than a suspicion or speculation of bribery, or
some
other illicit conduct.
206 But it has to be
accepted as sensible, as highlighted in George v Rockett, that a belief
as distinct from personal knowledge of something can, depending on the
circumstances, leave something to surmise or conjecture. The allowance
to be made for any surmise or conjecture will depend on the circumstances and
the subject
matter of the belief.
207 I would
respectfully suggest that the observations in Alex Fraser Pty Ltd v
Minister for Planning are best understood in conjunction with Perram
J’s statement in Pfizer that the point of focus is whether the
belief resulting from a degree of speculation is a reasonable one, and
with Allsop CJ’s cautionary advice in Pfizer that it is not
helpful to re-express the rule using words such as ‘suspicion’ and
‘speculation’.
208 The facts as I have
narrated them so far ought give an understanding of the history of the Panguna
mine; the temper of the times
in post-civil war Bougainville; the new statutory
conditions and empowerment of customary landowners as owners of the minerals
under
their land; the openly expressed hostility by SMLOLA to BCL in 2017, in
the face of support from the ABG; the quest for stability
and unity in
Bougainville as part of the pre-referendum politics of the State; and the
internal leadership politics of SMLOLA, in
which Mr Miriori and the joint
venture with SMLOLA came to prevail as the way forward. This all culminated in
SMLOLA’s opposition
to the return of BCL to Panguna and, ultimately, in
the Minister acknowledging after the Warden’s hearing, at which the
landowners
had been heard, that BCL did not have the social licence to operate
the mine.
209 Thus, the application comes to be
judged on an evaluation of the objective evidence according to which BCL says it
has ‘reasonable
cause to believe’, and any objective evidence in
derogation. So how exactly did BCL put its case on this application?
The grounds of the application
210 In Mr Phillips’ affidavit in
support of the application, he states that discovery is sought to help BCL
establish ‘whether
it has a cause of action’ in tort for unlawful
interference with BCL’s property rights, misrepresentation, conspiracy,
and injurious falsehood.
211 BCL’s written
submissions filed before the hearing of the application were pitched at a very
general level. They said (with
my underlining):
212 Putting to one side the public
announcements made by RTG Mining to the ASX in Australia, on 5 December
2017 and 12 December 2017,
those submissions assert the possibility (to be
investigated) of prospective causes of action in tort based on acts, facts, and
circumstances
that occurred in the territory of Bougainville; which, on the face
of it, was the place where any possible infliction of loss and
damage occurred;
and which involved the exercise of foreign governmental power and the
application of foreign statutory law. Nothing
was said in BCL’s written
submissions on the question of how these causes were actionable within the
jurisdiction of this Court.
Assuming jurisdiction, under the prevailing
choice-of-law test in Australia, it would require the forum court to apply the
law of
the place of the wrong[144]
and, absent proof of that foreign law as a fact, the local Court must then
assess whether it can, or ought not, proceed on a presumption
that the broad or
general principles of the common law of Australia are the same as could be
expected in the common law, or system
of unwritten law of PNG or
Bougainville.[145]
213 BCL’s written submissions did not descend
to explain the factual basis and legal content of those posited causes of
action.
As the respondents had submitted in writing, there is no tort of
unlawful interference with property rights in Australian law, although
there is
a tort of causing loss by unlawful means. In essence, that wrongdoing involves
the use of unlawful means to interfere with
the actions of a third party in
which BCL has an economic interest, and an intention to cause loss to BCL either
as an end in itself
or to enable the wrongdoer to advance its own business
interests by conduct that was known to be, in the nature of things, injurious
to
BCL.[146]
214 As the respondents also submitted, there is no
tort of misrepresentation in Australian law. Nor is there a relationship
between
BCL and the respondents such as to attract the law of contractual or
pre-contractual misrepresentation. There is, however, a tort
of deceit. That
requires BCL to show that the respondents made a false representation to BCL
knowing it to be false, or being reckless
about its truth or falsity, and making
it with the intention that it would be relied upon by BCL, and as a result of
which BCL suffered
damage.[147]
215 The tort of injurious falsehood mentioned by
BCL involves the malicious publication of a false statement to third parties
about
BCL or its property, or its business, so as to intentionally cause loss,
or where loss was the most natural and probable consequence
of the false
statement.[148] This tort, I
discern, was referrable to the contents of the presentation made by the
respondents to the ABG in December 2016.
216 The
remaining tort identified by Mr Phillips is conspiracy to injure. That wrong is
committed if two or more persons, acting
in mutual agreement and with an
intention to cause injury to another, carry out an unlawful act or carry out a
lawful act by unlawful
means.[149]
The requirement of an intention to injure is critical to liability. It means
that persons, even those acting collectively, may advance
their own business or
economic interests by lawful means even if a foreseeable consequence of their
actions is the damage or disadvantage
to the interests of
another.[150]
217 BCL does not identify the conspirators against
whom it believes it may have a right to obtain relief. In the operative context
of this application, one would think that they would have to include the
respondents as aspirants to redevelop the Panguna mine.
It does not appear that
the JV Co or SMLOLA, or the MGU as non-parties to the application, are viewed as
being in any secret plot
to undermine support for BCL. The facts, as I have
exposed them, show the openly stated opposition taken by SMLOLA and Mr Miriori
(and for a while, Mr Daveona in March 2017) to BCL being allowed to redevelop
the mine. But expressing opposition to the return
of BCL is not
unlawful.
218 Ultimately, in closing submissions,
BCL relied on the absence of a requirement under rule 32.05 for an applicant to
fully articulate
the cause of action it may have in mind
commencing.[151] That is true to
the extent that what the rule requires is a belief in ‘a right to obtain
relief’. But for that to be
meaningful, and for the belief to have any
conviction, the relief must derive from an identified and contended cause of
action obtainable
in proceedings justiciable in the Supreme Court of Victoria.
Eventually, for BCL, it was enough to say that there is evidence from
the ASX
announcement on 12 December 2017 that payments were made by Central to a
team of landowners to assist in negotiations and
awareness campaigns. If the
documents, as sought in this application, were to show those payments had been
made to induce persons
to refuse or object to BCL’s extension, then, so
BCL submitted, it was ‘beyond argument’ that it may have a
right to obtain relief; that is, relief of one form or another. But, I add,
under rule 32.05 it would have to be relief obtainable
in this Court.
219 For that reason, BCL submitted it was not
necessary for this Court to make any assessment of the lawfulness or otherwise
of the
payments made to the team of landowners. It was enough, so BCL’s
submission went, to show that there appeared to be or there
might be
‘something wrong’ about such payments, and the only way to find out
was for the Court to order discovery of
the documents by which payments were
made, and that was especially so because Central had said in its announcement to
the stock exchanges
that the payments were ‘transparent’ and at
‘arm’s length’. BCL expostulates: if the payments truly
were
‘transparent’, then an order for discovery of documents showing the
payments cannot therefore be regarded as invasive
or fishing, or confidential or
otherwise protected, or privileged from production.
220 But, Ms Magee, holding positions of
responsibility in both respondents and as the contact person named in the ASX
announcement
of 12 December 2017, swore that to her knowledge RTG Mining and
Central had not made any unlawful payments or given any unlawful
benefits or
inducements.
221 BCL submits that I should not
accept any of Ms Magee’s evidence because, for her to say ‘to my
knowledge’ does
not reveal the extent or source of her knowledge, and does
not reveal what inquiries she or others on her direction had made, or
what
documents had been checked. BCL submitted that for the publicly described
‘transparent’ and ‘arm’s
length’ payments,
Ms Magee should have stated what payments were made, to whom, and for what
purpose, so as to dispel any apprehension
that the payments may be unlawful.
The submission went further: in calling the payments ‘transparent’,
but refusing
to produce the documents evidencing the payment, served to show
that her evidence should be treated by the Court as false or weightless.
222 I think those submissions went too far.
Ms Magee’s affidavit was responding to material in Mr Phillips’
affidavit,
much of which did not rise above an insinuation of wrongdoing and did
not state matters of fact with which to truly grapple in response.
I would not
accept that the absence of any documents from Ms Magee to show the payments made
to the team of landowners to assist
in the awareness campaign and other
exercises of that nature provides, in and of itself, forensic evidence of a
concealment giving
rise to a ‘reasonable cause to believe’ that the
payments may have been unlawful - that is, an unwillingness to hand
over all
such documents meant she must have something to hide.
223 In propounding the application, the onus was
squarely on BCL to show objectively the grounds for believing that there were
unlawful
payments. Without that, there was no call for Ms Magee at the behest
of BCL to volunteer a detailed account of payments for the
awareness campaign or
other expenditures about when, how, to whom, and for what purpose payments were
made. To do that would in
effect give de-facto discovery. They are business
documents that are innately private to the conduct of the joint
venturer.
224 Nor do I accept BCL’s broader
submission that, in this application, the issue is: did the respondents do
anything unlawful
to advance their interest in redeveloping the Panguna mine and
might there have been ‘something wrong’ about the payments?
I think that avoids a proper engagement with the dominant precondition of
the rule and is, indeed, fishing to see what happened.
Rather, the burden was
wholly on BCL to first show by objective evidence that it was reasonable to
believe that there may have been
‘something wrong’ with the
payments, and not attempt to use rule 32.05 to obtain documents by Court order
to try and
satisfy the rule by looking to see if there was ‘something
wrong’.
225 In closing spoken submissions,
the elements of BCL’s case of saying that ‘something wrong might
have happened’
came to be articulated. It started with the statement
that, by February 2016, the respondents were proposing in consultation with
SMLOLA to obtain the project to redevelop the mine. In order to advance
themselves, the respondents had to first ‘get rid
of’ BCL’s
exploration licence. BCL says the respondents went about that quest
by:[152]
(a) making a visual presentation to the ABG that contained misleading and deceptive statements about BCL’s historical mining at Panguna and the part that its mining played in conditions bringing about the civil war, and generally putting BCL in a bad or undeserving light;
(b) taking ABG Ministers and government officials on a view of the Masbate mine in the Philippines (and suggesting that could be conferral of a ‘benefit’ under the Criminal Code);
(c) as the ASX announcement of 12 December 2017 said, employing a team of Panguna landowners ‘at normal commercial rates’ to assist SMLOLA in negotiations, awareness campaigns and protecting the member’s rights’;
(d) having Mr Duncan reportedly ‘dishing out cash’ to different individuals and groups’ in Panguna;
(e) having RTG Mining giving funds of $1,472,368 to Central within the same time frame as the payments in (c) and (d) and which ‘disappeared’ as an accounting ‘impairment’; and
(f) Mr Daveona’s change of mind in abandoning his support for BCL, and receiving K300,000 (from SMLOLA) towards his legal fees of the leadership proceedings, an event which led the Vice President of the ABG, Mr Masono, to issue a press release in which he is quoted as saying, ‘I am actually surprised that certain individuals can so easily sell their birthright for as little as K40,000 a month to a foreign company’, and ‘the ABG rejects companies that think they can bribe their way into the people’s resources by giving certain individuals money to gain landowner consent’.
226 In closing spoken submissions, BCL
also attended to the question of jurisdiction and actionability in this Court.
Its focal point
became the announcements made by RTG Mining to the ASX and
the TSX on 5 and 12 December 2017 concerning the Warden’s hearing.
The announcement on 12 December naturally attracted attention as it
referred to the employment of a team of landowners to assist
in awareness
campaigns who ‘had been fairly compensated on arm’s-length terms in
an honest and transparent manner and
at normal commercial rates’.
BCL’s application sought the production of documents to show the payments
made by Central
to any representative or officer or member of SMLOLA, as had
been referred to in that announcement. BCL submitted that if those
documents
showed that the payments were in truth, unlawful or illicit, and therefore
contrary to what was said in the ASX announcement,
there may be an action to be
taken in this Court by BCL for a contravention of the various statutory
proscriptions in Australia,
under the Competition and Consumer Act and
the Corporations Act as well as the ASX Listing Rules, for misleading and
deceptive conduct in trade and commerce, described as being a ‘statutory
tort’.
227 This strikes me as dubious, and
as being extrinsic to the event about which BCL is aggrieved, that is the
Minister’s refusal
of its extension application. As a general
proposition, it may be accepted (as it was by the respondents) that there can be
a misleading
and deceptive statement made in Australia in contravention of
Australian laws, even though the subject matter of such a statement
concerned
facts and matters that had occurred outside Australia. But, the announcement to
the ASX was a statement to the market
at large. Real and serious questions or
legal problems would arise about identifying who was misled and deceived, and in
what particular
way, as would legal issues about reliance, causation, and
damages. Moreover, and more importantly, I cannot see how a possible action
based on that ASX announcement translates or commutes to the loss to BCL, being
occasioned by the making of a decision by the responsible
Minister of the ABG to
refuse BCL’s application for an extension of the exploration licence.
228 BCL also looked to the announcements made by
RTG Mining to the ASX on 5 December 2017 to prospectively stake a claim in
this Court.
That announcement concerned the reconciliation agreement between Mr
Miriori and Mr Daveona. Nothing in that announcement concerns
payments. The
announcement concerns SMLOLA’s involvement as joint venturer and says:
‘The SMLOLA are the only landowner
association whose consent is required
for the issue of an exploration licence’. As I understood BCL’s
submission, that
statement to the market might be actionable in Australia as
being misleading and deceptive for two reasons. First, because SMLOLA
is not an
approved landowner association under the 2015 Mining Act. Nor is it the
‘only’ landowner association (so the
MOU showed), as there are other
landowners and associations of other customary land to be used for ancillary
post-extractive operations
of the mine. Secondly, the statement was said to be
misleading and deceptive because SMLOLA’s ‘consent’ is not
required for the issue of an exploration licence. BCL says the only legislative
requirement for an explorer, before it can enjoy
the use of a licence, is under
s 105 of the 2015 Mining Act, to make a land access and compensation agreement
with the customary
landowners over the land to be explored.
229 As the MOU indicates, there were seven or eight
other landowner associations and stakeholders in Panguna, if one includes all
land additional to the actual mine area. But this announcement to the ASX on
5 December 2017 concerns specifically the exploration
licence which is over
the land that comprises the former Special Mining Lease area. As I follow the
facts, that brings in SMLOLA
(the joint venturer) as the relevant association of
customary landowners, approved or not. Whether it is called consent (a point
of
legal argument) or the statutory term ‘permission’, or the political
term ‘social licence’, it was the
extent of the objections made at
the Warden’s hearing to BCL that explained the refusal of the extension
application.
230 This too was an ASX announcement
to the market at large. Nothing in it concerned payments and the outcome of the
extension application.
Nothing is referable to any of the documents as sought in
this application. Above all, if BCL regard that statement to the ASX as
misleading and deceptive, then it is already in a position to commence
proceedings without recourse to rule 32.05.
231 Thus, for the purposes of this application and
in understanding the relief that might be sought, I do not understand BCL to be
focussing on the various tortious causes of action as it originally identified
for interference with its economic interests. Questions
could well arise as to
whether BCL truly had proprietary or economic interests in the relevant sense.
Its exploration licence had
expired. It no longer had a tenement. What it had
was a statutory right to apply for an extension of its expired licence, which
it
exercised unsuccessfully.
232 I hope I do no
disservice to BCL’s submissions, and I make no criticism, but in the way
the application was propounded,
the approach was not to analyse the availability
of the prospective causes of action as identified by BCL, but to contend that
there
was sufficient in the evidence to give grounds for a belief that something
legally wrongful might have happened at the hands of the
respondents involving
the payment of money to take away the support for BCL as redeveloper of the
Panguna mine, with the result that
it was denied an extension of its exploration
licence. The twist is that in the review proceedings, a good part of
BCL’s attack
on the Minister’s decision is the failure to correctly
recognise and count the landowners of blocks forming Special Mining
Lease 1 who
supported BCL to the extent of forming a majority.
The reasonableness of BCL’s grounds for a belief
233 The respondents contend that
BCL’s application is based on nothing more than a hunch or suspicion or
speculation and there
is no evidence to show that something wrongful has
happened to, in effect, influence landowners to swing away from BCL and object
to the extension. They contend, in essence, that the documented facts show that
the landowners in SMLOLA, who were in joint venture
with Central, were openly
hostile to the return of BCL, and although there was a period between March and
December 2017 when Mr Daveona
(as distinct from the constituency of SMLOLA)
expressly supported BCL (along with the ABG), the fact is that the landowners
did not.
Their views were heard at the Warden’s hearing and their
objections came to necessarily inform the decision to refuse.
234 I would make the following findings or
evaluations from the evidence.
235 First: after the commencement of the
2015 Mining Act, the respondents were as mining entrepreneurs entitled to pursue
an opportunity
to take steps to redevelop the Panguna mine, even if that meant
supplanting BCL. To that end, by February 2016, Central had entered
into a
joint venture agreement with SMLOLA and the MGU. The respondents believed
that the pre-existing BCL exploration permit had
expired. That belief was
created by what they were told by the ABG, which is not only responsible for
administering the 2015 Mining
Act and granting mining tenements, but was also a
substantial shareholder in BCL.
236 Second: the
respondents appear on the evidence to have been acting without stealth in their
pursuit. They were invited by the
ABG to make a presentation about their joint
venture proposal to redevelop the mine. There was nothing improper or conniving
in
hosting ABG officials to a visit to the Masbate mine in the Philippines.
Indeed, it would be a proper exercise of the duties of
a Minister and other
officials to go and see the mine for themselves, especially as the presentation
offered the ability to deliver
‘World’s Best Environmental
Practices’.
237 Third: statements made in
the respondents’ documented presentation to the ABG - ‘The New
Panguna Mine – A Panguna
Landowner Initiative For All
Bougainvilleans’ - could realistically be regarded as statements to the
discerning and well informed,
and not the gullible. Within the content of the
presentation, government officials would have been well aware of the historical
and economic matters in Bougainville and the enduring legacy issues from
BCL’s past conduct of the Panguna mine. The representations
are all
documented in the presentation material. If any of those representations were
thought by BCL to be misleading and deceptive,
they may be actionable by BCL in
Bougainville under the applicable local law. In pre-application correspondence,
BCL declined the
respondents’ invitation to identify any
misrepresentations to be corrected. In any event, the conduct of the
presentation
to the ABG has no bearing or relevance at all on the
Minister’s decision on the extension application.
238 Fourth: what distinguished the
respondents’ pursuit, was the involvement of SMLOLA as joint venturer.
The customary landowners
were given ownership of minerals under the 2015 Mining
Act. It appears to be sound and commercially and politically appealing, or
stabilising, to satisfy all interests with a well-resourced mining outfit and
customary landowner as joint venturers. Fundamentally,
it simply makes no sense
to believe that Central would have to bribe the members of SMLOLA, its joint
venture partner, to take objection
to BCL. It is plain, on the documented
evidence, from those who were speaking publicly for SMLOLA without inhibition
that the post-civil-war
sentiment amongst those landowners of what once was the
‘Special Mining Lease’ area is one of antipathy to BCL. It is
clear
there were simmering grievances about unpaid or overdue compensation to the
landowners for the environmental and other damage
done by mining at Panguna.
The legacy issues for BCL were real and burdensome and a simmering source of
resentment. Despite that,
it seems from about March 2017, the ABG (as
shareholder) and its newly appointed Minister came to show support for the
prospect of
BCL becoming the mine redeveloper, an alignment which seemed to
intensify the landowners’ opposition. I detect from the materials
that the legacy issues of due compensation to customary landowners became,
politically, a contest between ‘better the devil
you own’ (and in
which the ABG was a substantial shareholder) as against the Miriori or SMLOLA
view that ‘the leopard
does not change its spots’.
239 Fifth: I venture to say that the politicised
question of suitable redeveloper of the mine unavoidably permeated the
leadership
dispute between Mr Miriori and Mr Daveona, to the extent that it
would not have been in BCL’s interests or the ABG’s
interests to
have Mr Miriori as Chairman of SMLOLA. That might explain Mr Daveona’s
claims to be the Chairman of SMLOLA and
why Mr Miriori had to take legal action
to restrain Mr Daveona from so acting. In all of this, there is no
evidence that the customary
landowners (the rank and file as distinct from the
leaders) had a change of mind and became willing to support a return of BCL.
The objective evidence is glaringly to the contrary, for the customary
landowners had already refused to make any agreement to give
BCL access to any
land that was the subject of BCL’s two-year exploration licence. That of
itself reveals manifestly the pre-existing
hostile attitude of the landowner
members of SMLOLA towards BCL.
240 Sixth: after
the joint venture agreement with SMLOLA in February 2016, one can isolate for
special interest the period between
March 2017 and the making of the
reconciliation deed in December 2017, and then the Warden’s hearing on 11
December 2017.
The facts are perplexing and not transparent, but they do not
support an inference of bribery. What emerges, however, is that as
at March
2017, Mr Miriori and Mr Daveona were jointly anti-BCL, and then Mr Daveona
became pro-BCL in line with the ABG showing its
support of BCL, but he then
resumed an anti-BCL or pro‑RTG Mining position when legally
challenged about holding himself out
as Chairman of SMLOLA. At all times,
SMLOLA remained as joint venturer with the respondents. As I have said earlier
in this judgment,
there was no ‘conversion’ by Mr Daveona. It
was merely shifting political sands. The concentration in this application
has
been on the politically charged attitudes and allegiances of the operatives: Mr
Miriori, Mr Daveona, and some in the ABG. But
the attitude of those that truly
matter the most - the customary landowners - came to be shown at the
Warden’s hearing, where
they spoke with their objections to BCL and were
heard. Ultimately, their objections were enough to lead to a refusal of the
extension
application by the ABG whose interests may well have remained with
BCL, but whose fidelity had to remain with the operation of the
2015 Mining Act
and the views and unity of the landowners.
241 Seventh: Central’s relationship of being
in a joint venture with SMLOLA would have necessarily and undoubtedly had
outlays
and expenses of many varieties for such a major undertaking with
customary landowners. They were both operating under a new and
different
statutory regime, and with uncertainty and apprehensions in the post-civil war
and political milieu in Bougainville. The
landowners had become mineral owners
and subject to new laws and governance. It is reasonable to think that the
respondents who
were new to Bougainville (and described publicly by the Minister
in the political discourse as ‘foreigners’) would, as
newcomers to
Bougainville and acting by means of a joint venture with landowners, be bound to
make expenditures and payments of various
types as part of the joint venture and
a campaign to garner support and confidence from the customary landowners. It
seems to me
natural to suppose that the respondents would be expected to engage
in meaningful and direct activities such as ‘awareness
campaigns’ or
the spread of information and other such activities with SMLOLA as joint
venturer. For such activities, people
(more likely within the customary
landowners) would have to be employed and properly paid. These are more capable
of being seen
as payment for joint venture programs and expenses rather than
bribes or illicit payments. I think that is the sense in which the
payments
could be described as transparent. Far too much has been made of the verbiage
of the announcement to the ASX on 12 December
2017.
242 Eighth: I think BCL’s reliance on the
accounting entry of ‘impairment’ expenses of US$1,472,368 in the
2017
Annual Report of RTG Mining was clutching at straws. Just because an
expense or debt is not considered to be recoverable as an asset
with a carrying
value does not give grounds to believe that RTG was somehow financing a bribe or
illicit payment presumably to SMLOLA
or Mr Daveona.
243 Ninth: I think too much was made by BCL of the
reference made in correspondence, in March 2017, within the Ministry of Minerals
and Energy Resources to a request for a travel ban concerning Mr Duncan, who was
reported as ‘dishing out cash to different
individuals and groups’,
and questioning the conduct of awareness
campaigns.[153] The Office of
Panguna Mine Negotiations was not itself asking for a travel ban and advancing
its own grounds for such a ban. The
letter contains inadmissible hearsay
allegations made by others identified only as ‘SML Leaders’ and
‘SML Executives’
to people only identified as ‘different
individuals and groups’. I do not regard this letter as having any
probative
force to justify a reasonable belief that bribes or illicit payments
were being made. The letter is politically charged against
Duncan and Central
as there was at the time, as the letter says, the prospect of the ABG engaging
with BCL to redevelop the mine.
244 Tenth: the
only reference in all of the facts of this case to ’bribe’ was
uttered by Mr Masono as the responsible
Minister and the Vice President of
the ABG in his Press Release in December
2017.[154] The use of the word
‘bribe’ was in the context of the deed of reconciliation made
between Messrs Daveona and Miriori
about which Mr Masono expressed his
surprise ‘that certain individuals could so easily sell their birth right
...’ That
hearsay document could not be admissible as evidence of the
truth of its statements but only for the fact that it was said, if that
be
relevant as original evidence. Therefore, the fact that it was said does not
give it any probative value.
245 I mean no
disrespect, but in the sudden circumstances of its publication, these statements
cannot be viewed as facts or as serious
allegations of bribery. If
Vice President Masono truly knew or had grounds to believe that a crime of
bribery had occurred, then
presumably steps would have been taken to investigate
and prosecute the wrongdoer. That is why, I think, that the Vice
President’s
statements on which BCL seems to place much weight should be
seen as no more than dramatic political comments in response to the
loss of Mr
Daveona’s support for BCL (in which ABG was a shareholder). That change
occurred not surreptitiously, but came
about after a mediation conducted by a
Judge of the National Court.
246 The subsequent
Press Statement by President Momis, on 21 December 2017, which announced the
moratorium was of a different character.
He said pertinently: ‘[W]e will
not allow this project once again to reignite the wounds of the Bougainville
crisis and distract
our focus for restoring peace and our preparation for our
referendum in 2019’.[155] I
think such a statement only serves to show that amidst the complicated and dense
facts, there is a bigger picture in this case
on which a judgment should be
based on this application; that is, to see outside the details, the significance
of the history, and
the legacy issues that dogged BCL and that affected the
customary landowners to openly oppose the return of BCL for many years.
The
competing hypothesis from BCL is that the opposition to BCL was (by reference to
an ASX announcement) induced by bribes or illicit
payments made to a team of
landowners undertaking awareness campaigns, and maybe payments and inducements
paid to a mercurial Mr
Daveona. This lacks evidence as well as
reasonableness.
247 Eleventh: as BCL’s
exploration permit was granted to it as a priority or privilege under the 2015
Mining Act, the extension
application became the first post-civil war occasion
of BCL being put to a test of acceptability by the customary landowners under
post-civil war conditions and new laws. In those conditions, what the
respondents offered was a joint venture legal relationship
that enabled the
customary landowners to be part of the commercialisation of their own newly
granted interest in the minerals under
their land. It seems to me that with all
the ‘heavy baggage’ of the legacy issues, this is what BCL was up
against in
obtaining what was termed the ‘social licence’ to
redevelop the mine. Even though the ABG was a shareholder in BCL,
legal process
required the view and objections of the customary landowners to be considered,
and in any case, they had previously
withheld their agreement under the 2015
Mining Act to allow BCL to have access to the land to be explored.
248 Twelfth: the materials do not readily reveal a
situation of an astonishing result in the decision to refuse, so as to arouse
naturally a belief that ‘something has gone wrong’ or something has
corrupted the refusal decision. The refusal, based
on an absence of a social
licence, could not be said to be objectively incredible or surprising or that
‘something had gone
wrong’. It was in tune with what both Mr
Daveona and Mr Miriori had jointly said on behalf of SMLOLA and the MGU in
their
joint press release in March 2017: ‘[S]top BCL once and for
all’. Come December 2017, and away from the leadership and
political
machinations, it was the landowners who spoke and who were heard at the
Warden’s hearing. The Minister’s refusal
decision followed
commensurately.
249 For those accumulated reasons,
I do not think that BCL has adduced the evidence to show reasonable grounds
under rule 32.05 for
its ostensible belief that it may have a right to obtain
relief in this Court for which to seek pre-action discovery. When one considers
the hard, objective, and prevailing historical facts that greatly compromised
BCL’s position for any prospect to redevelop
the Panguna mine, any
assertion that something wrong has happened in the refusal decision referrable
to a corruption of its previous
supporters comes off an extremely weak base. On
reflection, I think BCL’s application proceeds not on a belief. It
proceeds
on a hypothesis that there might have been bribes and
illicit payments, and it is using rule 32.05 to obtain documents to try and
prove or disprove a hypothesis.
In my view, that is not a legitimate use of
rule 32.05.
250 My evaluation of the grounds
of belief makes unattainable by pre-action discovery any of the documents sought
in paragraphs 47(i),
(ii) and (iii), and also paragraph 47(v) of Mr
Phillips’ affidavit, which concerns payments of any Criminal Code
‘benefit’. To the extent that paragraph 47(v) refers to
benefits provided by RTG Mining, there was no evidence in this
application that
RTG Mining was involved in making payments, given the particular role it played
as the provider of technical expertise
and in raising capital.
251 Paragraph 47(iv) of Mr Phillips’
affidavit seeks two classes of documents by separate reference to the stock
exchange announcements
on 5 and 12 December
2017.[156] The first announcement
was the reconciliation agreement that confirmed Mr Miriori as Chairman of SMLOLA
and said that SMLOLA had
entered into a joint venture agreement under which RTG
Mining was nominated as the preferred developer. The second announcement
(the
day after the Warden’s hearing) included a statement that SMLOLA had
lodged an objection to BCL’s extension application
before the hearing, on
the ground that the application was lodged out of time, but SMLOLA chose not to
stop the Warden’s hearing.
252 To ask for
pre-action discovery concerning the joint venture arrangements under which RTG
was nominated is far too broad and is
invasive. I would not allow it. In the
way the application was conducted, it is not apparent to me how such documents
would come
to inform a decision by BCL whether to commence proceedings on the
grounds contemplated. Likewise, I cannot see the link between
SMLOLA’s
abandoned objection to the conduct of the Warden’s hearing and the grounds
of this application, and how such
a class of document would assist to make a
decision whether to sue. In both cases, I think the discovery is being sought
improperly
as part of a broad investigative exercise.
Conclusion and proposed orders
253 My decision therefore is to wholly
refuse this application. I would wish to add that with all the complexities in
this case as
I have endeavoured to expose them, I see no unjust deprivation in
this outcome. As things stand (as far as I know), BCL’s
review
proceedings in the National Court are still pending. That proceeding turns on
known or available facts and a statutory regime,
and not facts to be still
discovered. In the review proceedings, BCL contends that majority support from
the customary landowners
for its extension application was not needed as a
matter of law, but contends that if it was needed, then BCL had majority support
from the landowners which was not properly assessed or recognised in the way the
Warden’s hearing was conducted. If BCL succeeds
in quashing the
Minister’s refusal decision, it will do so on substantive legal and
factual grounds on the question of whether
it truly did have the requisite
support of the customary landowners, rather than insinuations of bribery and
corruption which, so
I have concluded, lack a reasonable basis on the objective
evidence.
254 I will order that the application be
refused, and, that the originating motion be dismissed. I can see no
patent reason why the
costs of the application should not follow the event, and
to be taxed on the standard
basis.[157] If any party seeks to
move the Court for any different or ancillary orders, I would invite sequential
written submissions first
from the respondents by 14 May 2021 and then in
response from the applicant by 21 May 2021.
[1] See Bougainville Copper Ltd v RTG Mining and Another (2018) 56 VR 129.
[2] See the explanation of the rule’s provenance and its validity as given by Finn J in Airservices Australia v Transfield Pty Ltd [1999] FCA 886; (1999) 92 FCR 200.
[3] Order 15A rule 6 of the Federal Court Rules 1979 was identical to the Victorian rule 32.05. Later, the Federal Court Rules 2011 (Cth) brought in a new replacement rule 7.23. That new rule does not use the Victorian expression: ‘Where there is reasonable cause to believe ...’. Rule 7.23 speaks in the active voice, stating: ‘(1) A prospective applicant may apply to the Court ... if the prospective applicant: (a) reasonably believes that he or she may have the right to obtain relief in the Court from a prospective defendant whose identity has been ascertained’. That change is regarded as having introduced a subjective element, but nevertheless requires the belief of the prospective applicant to be objectively reasonable: see Poole v Australian Pacific Touring Pty Ltd [2017] FCA 424 (Bromwich J).
[4] Per Allsop CJ in Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193; (2017) 257 FCR 62, 64 [2], 66 [8] (‘Pfizer’); [2017] FCAFC 193, [2], [8].
[5] (1998) 3 VR 435, 445 per Ormiston JA, Batt and Charles JJA agreeing. See also an earlier decision of the predecessor Appeal Division of this Court in Scarletti Pty Ltd and Others v Millwood Printing Co Pty Ltd (Unreported, Full Court, 28 July 1994) 11–12.
[6] See Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64, 79 [58].
[7] See St George Bank Ltd v Rabo Australia Pty Ltd [2004] FCA 1360; (2004) 211 ALR 147, 153–4 [26].
[8] See Airservices Australia v Transfield Pty Ltd [1999] FCA 886; (1999) 92 FCR 200, 202–3 [5].
[9] See ‘How ABG Works’ on the ABG website: http://www.abg.gov.pg/government/how-abg-works.
[10] See ‘Official Joint Statement of the Joint Supervisory Body Meeting in Port Moresby by Co-Chairs Hon. James Marape MP, Prime Minister of Papua New Guinea and Hon. Dr Chief John Momis, GCL, MHR, President of the Autonomous Region of Bougainville’. (Document is not itself dated.)
[11] Affidavit of Craig William Owen Phillips sworn 29 January 2018 (‘Phillips Affidavit’) [5].
[12] Court Exhibit I [15].
[13] Phillips Affidavit [3].
[14] See J Woodbury, ‘The Bougainville independence referendum: Assessing the risks and challenges before, during and after the referendum’, January 2015, Australian Defence College, Centre for Defence and Strategic Studies, p 6.
[15] D Vernon ‘The Panguna Mine’ in AJ Regan and HM Griffin (eds) Bougainville Before The Conflict.
[16] Operative on 9 June 2005.
[17] Bougainville Constitution s 23.
[18] 2015 Mining Act, ss 8 and 9.
[19] Ibid s 14.
[20] Ibid s 16(e).
[21] Ibid s 10(b).
[22] Ibid s 126(2).
[23] Ibid s 10(a).
[24] Ibid s 35(1).
[25] Ibid s 364.
[26] Ibid s 366.
[27] Ibid s 367(2) and (3).
[28] Ibid s 101(1).
[29] See Part 7 Division 3 and Part 10 Division 2 of the 2015 Mining Act. Section 97(1)(e) requires an application for an exploration permit to comply with Part 10 Division 2.
[30] 2015 Mining Act s 246(2)(e).
[31] Ibid s 250(3)(c). See definition of ‘permission’ in s 32(1) of the 2015 Mining Act.
[32] Ibid s 103(1)(a).
[33] Ibid s 103(2).
[34] Ibid s 103(3).
[35] See exhibit CP-17 of the Phillips Affidavit (p. 2, para 1).
[36] 2015 Mining Act s 101(1).
[37] Ibid s 101(3).
[38] Ibid s 109(2)(b).
[39] Ibid s 249(1).
[40] Ibid s 246(1).
[41] Ibid s 250(2) and (3)(c).
[42] Phillips Affidavit [8] and exhibit CP-7.
[43] Affidavit of Justine Alexandria Magee sworn 4 March 2018 (‘Magee Affidavit’) [10].
[44] Ibid [11].
[45] See Court Exhibit K and L.
[46] See Court Exhibit L.
[47] Magee Affidavit [35].
[48] See Exhibit F, penultimate paragraph.
[49] Magee Affidavit [16]. There are no trust documents or verifications of such an arrangement in evidence.
[50] Exhibit JAM-2 to the Magee Affidavit.
[51] See Court Exhibit A.
[52] See Phillips Affidavit, exhibit CP-15, [5].
[53] Exhibit CP-12 to the Phillips Affidavit.
[54] Exhibit CP-14 to the Phillips Affidavit.
[55] Exhibit CP-19 to the Phillips Affidavit.
[56] Said to be equivalent to AUD$120,000.
[57] Court Exhibit B.
[58] See pp 35 and 54 of the Notes in Exhibit B.
[59] See transcript, pp 132–4 and 213–7.
[60] Phillips Affidavit [47].
[61] See commentary in Civil Procedure Victoria Vol 1, [32.05.12] and reference there to Interwest Hotels Pty Ltd v Commonwealth Bank of Australia.
[62] There was also an affidavit of Amy Joanne Rumble sworn 15 May 2018 that exhibited some correspondence between the lawyers.
[63] See the affidavit of A J Rumble sworn 15 May 2018.
[64] See FAI Home Security Pty Ltd v Price and Others [1999] VSC 274.
[65] [2013] VSC 292, [142]–[147].
[66] Ibid.
[67] Pfizer (n 4), 95 [126]; [2017] FCAFC 193 [126].
[68] Magee Affidavit [28].
[69] Senior Counsel for BCL stated in the course of submissions ‘I think it is common ground that had to be 60 days before the expiry, so it had to be July, I think it was, and we say we filed it on 7 July’, T150.
[70] See s 254(2) and s 254(3).
[71] See SCA No 159 of 2018 SC1777 (Dingake J).
[72] See SCA No 159 of 2018 SC1917 (Yagi, Murray and Thompson JJ).
[73] Ibid [3] (Yagi and Murray JJ).
[74] Ibid [49] (Thompson J).
[75] Ibid [59].
[76] Court Exhibit F.
[77] Phillips Affidavit, exhibit CP-1.
[78] Ibid, exhibit CP-3.
[79] Ibid.
[80] Ibid, exhibit CP-1, 26.
[81] 2015 Mining Act s 10 and s 41(1)(c).
[82] Phillips Affidavit, exhibit CP-2.
[83] Ibid, exhibit CP-17, 3.
[84] Magee Affidavit, exhibit JAM-6, 93.
[85] Magee Affidavit, exhibit JAM-6.
[86] Ibid, exhibit JAM-6, 90.
[87] Phillips Affidavit, exhibit CP-21.
[88] Phillips Affidavit, exhibit CP-1, 7.
[89] Ibid, exhibit CP-21.
[90] Magee Affidavit [19].
[91] Magee Affidavit, exhibit JAM-6, 91–2.
[92] Ibid.
[93] Ibid 93–6.
[94] See Court Exhibit F.
[95] Court Exhibit M.
[96] There are only eight parties identified by name in clause 1.3 of the MOU.
[97] Court Exhibit M, clauses 1.1 to 1.7 and 3 to 4.5.
[98] Magee Affidavit, JAM-6.
[99] Court Exhibit M.
[100] Phillips Affidavit, exhibit CP-12.
[101] Ibid, exhibit CP-14.
[102] Ibid, exhibit CP-13.
[103] I cannot be sure, but materials suggest that the meeting date was 15 May 2017.
[104] Phillips Affidavit, exhibit CP-15.
[105] Not in evidence on this application.
[106] Phillips Affidavit, exhibit CP-8, 2.
[107] Phillips Affidavit, exhibit CP-16.
[108] Phillips Affidavit, exhibit CP-19
[109] Ibid, exhibit CP-19, cl 1.1, 1.3 and 3.
[110] Ibid, exhibit CP-16.
[111] Ibid, exhibit CP-16.
[112] Ibid, exhibit CP-20.
[113] Ibid, exhibit CP-17.
[114] Ibid, exhibit CP-1, 18.
[115] Ibid.
[116] Magee Affidavit, exhibit JAM-7.
[117] Magee Affidavit, exhibit JAM-2.
[118] Ibid, see exhibit JAM-4, 69, 81.
[119] Phillips Affidavit, exhibit CP-22.
[120] Ibid, exhibit CP-22, 4.
[121] Criminal Code Act 1999, see Chapter 4, Division 70, s 70.2.
[122] Phillips Affidavit, exhibit CP-27.
[123] Ibid.
[124] CGU Insurance Ltd v Malaysia International Shipping Corp Berhad [2001] FCA 1223; (2001) 187 ALR 279, 286 [25].
[125] Phillips Affidavit, exhibit CP-22 and CP-23.
[126] Ibid, exhibit CP-27 and CP-28.
[127] See Magee Affidavit, exhibit JAM-4, 69.
[128] Ibid.
[129] See Court Exhibit D ‘Statement Pursuant to Order 16 Rule 3(2)(a) of the National Court Rules’ dated 25 January 2018.
[130] Ibid, para 4.1(c)
[131] [1947] EWCA Civ 1; [1948] 1 KB 223, esp. 229–30.
[132] Court Exhibit D, para 2.1(e)(i).
[133] Ibid, para 2(e)(iii).
[134] Ibid.
[135] [1990] HCA 26; (1990) 170 CLR 104, 115–16.
[136] See Williams, Civil Procedure Victoria, Vol 1 [32.05.12]. See esp., St George Bank Ltd v Rabo Australia Ltd [2004] FCA 1360; (2004) 211 ALR 147 (Hely J).
[137] Poole v Australian Pacific Touring Pty Ltd [2017] FCA 424 (Bromwich J).
[138] Pfizer (n 4)[2017] FCAFC 193; , (2017) 257 FCR 62, 3 [8]; [2017] FCAFC 193, [8].
[139] Ibid.
[140] Ibid 94 [121]; [2017] FCAFC 193, [121].
[141] Ibid 94–5 [123]; [2017] FCAFC 193, [123].
[143] Ibid [47]–[52].
[144] See John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503; Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491.
[145] See Nygh’s Conflict of Laws in Australia (8th ed), 362–4.
[146] See Hardie Finance Corp Pty Ltd v Ahern [No 3] [2010] WASC 403, [685]–[698].
[147] See Tresize v National Australia Bank Ltd [2005] FCA 1095; (2005) 220 ALR 706.
[148] See Griffith v ABC (No 1) [2007] NSWSC 711, [3].
[149] McKernan v Fraser [1931] HCA 54; (1931) 46 CLR 343.
[150] JSC BTA Bank v Khrapunov [2018] UKSC 19; [2020] AC 727, 744 [10].
[151] See Beston Parks Management Pty Ltd v Sexton and Another [2008] VSC 392.
[152] Transcript 136.
[153] Phillips Affidavit, exhibit CP-21.
[154] Ibid, exhibit CP-20.
[155] Magee Affidavit, exhibit JAM-7.
[156] Phillips Affidavit, exhibits CP-16 and CP-17.
[157] See rule 63.30 and rule 63.31.
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