N3207

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 906 OF 1996

BETWEEN:

PNG INTERNATIONAL HOTELS PTY LTD
First Plaintiff

AND:

DORADO PTY LTD
Second Plaintiff

AND:

THE REGISTRAR OF LAND TITLES
First Defendant

AND:

THE PAPUA NEW GUINEA NATIONAL LAND BOARD
Second Defendant

AND:

THE DEPARTMENT OF LANDS & PHYSICAL PLANNING
Third Defendant

AND:

THE MINISTER FOR LANDS & PHYSICAL PLANNING
Fourth Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

AND:

BEECROFT NO. 20 PTY LTD
Third Party

Waigani: Davani, .J
2007: 10 July
21 August

PRACTICE AND PROCEDURE – application to join – applicant not a party to original proceedings – principles on joinder to be proven – applicant has an interest – necessary for it to join – O. 5 r. 8 of National Court Rules.
	
PRACTICE AND PROCEDURE – Consent orders – orders taken out on non-existent proceedings – orders a nullity – distinction between a nullity and an irregularity discussed – Consent orders must be set 	aside – O. 12 rs 1, 8(3) (b) 8 (4) and O. 1 r. 8.

Cases cited:

Anlaby v Praetorius (1888) 20 QBD 764;
Bruce v Oldhams Press Ltd [1936] 3 ALL ER 287; 
London Passenger Transport Board v Moscrop [1942] 1 ALL ER 97; 
Marsden v Marsden [1972] 2 ALL ER 1162; 
Avia Aihi v The State [1981] PNGLR 181;
Paul Torato & Ors v Sir Tei Abal & Ors [1987] PNGLR 403; 
Kitogara Holdings v NCDIC [1988-89] PNGLR 346;
Donigi v. the State [1991] PNGLR 376; 
Peter Lipsey v Independent State of PNG [1993] PNGLR 405;
Leo Hannet and Elizabeth Hannet v ANZ Banking Group (PNG) Ltd SC505; 
Dick Mune v Paul Poto, (1996), SC508;
Pinpar Development Ltd v. TL Timber Development Ltd (1999) N1857;
Paul John v Gerd Lindhardt and Servicom Pty Limited (1999) N1938;
AGC (Pacific) Limited v. Sir Albert Kipalan and 4 others (24/2/00) N1944; 
Megeria v Romanong (2001) N2313;
Simon Mali v Independent State of PNG (2002) SC690; 
Coecon Limited v National Fisheries Authority (2002) N2182;
Joseph Kupo v Stephen Raphael, Secretary for the Department of Defence Force (2004) SC751; 
Unapi Luna Pakomeyu v. James Siai Wamo (2004) N2718; 
Jack Nou v. Michael Cherake (2004) N2539; 
Pius Nui v Senior Sergeant Mas Tanda (2004) N2765; 
PNG National Stevedores Pty Limited v The Hon Andrew Baing N1706; 
Application by Wili Kili Goiya SC408; 
TST Holdings Pty Ltd & anor v Tom Pelis SC534; 

Counsel:

F. Alua, for first and second Plaintiffs/Respondents
P. Ame, for all Defendants
G. Brooks and J. Holingu, for Beecroft No. 20 Pty Limited

RULING

21 August, 2007

1. DAVANI .J:  Beecroft No. 20 Pty Ltd (Beecroft/applicant) moves by Notice of Motion filed by Gadens Lawyers on 13 June, 2007 seeking the following orders;

1.	To be added as a party to the proceedings for the purposes of this motion;

2.	That the consent orders of the National Court made on 15 December, 2006 be quashed or set aside;

3.	Costs on full indemnity basis;

4.	That upon granting 1, 2 and 3 above, the proceedings be dismissed and file closed.

2.     The application is opposed by the plaintiff and the first, second, third, fourth and fifth defendants. For the record, Rageau Manua and Kikira Lawyers act for the first and second plaintiffs. Philip Ame Lawyers act for the five defendants. 

Preliminary

3.     The application was first mentioned before me on 10 July, 2007 where Beecroft sought to rely on several affidavits including the affidavit of Jonathan Holingu, lawyer, sworn on 12 June, 2007 and the affidavit of Wong Bing Kong sworn on 19 June, 2007. Objection was raised by plaintiffs counsel in relation to reliance on these affidavits. I heard submissions by both counsel on the objection and ordered that I would not rely on the both affidavits. My reasons are published.

4.     The only affidavits now before the court which the applicant will rely on is that of Jason Brooks sworn on 5 July, 2007 and Kari Boga Rea sworn on 13 July, 2007. The court also takes judicial notice of relevant court documents on the court file in proceedings WS 906 of 1996. 

Issues for determination 

5.     The issues for determination are whether;

i.	Beecroft be added as a party to these proceedings for the purposes of this motion; and

ii.	If Beecroft is added as a party, whether the consent orders entered on 13 December, 2006 should be set aside and quashed, as a nullity.

6.     I first deal with issue no. 1.

 I should also point out that I heard both applications together, i.e the application to join and the application to set aside because the events that occurred are all intertwined, that it was necessary for me to hear submissions on the application to join, at the same time as the application to set aside. There were no objections raised by plaintiff and defendants counsel in relation to the course taken by Beecroft’s counsel.

Application to join

7.     Should Beecroft be added as a party for the purposes of this motion? 

8.      Order 5 r. 8 (1) of the National Court Rules (‘NCR’) is the provision on joinder. It reads;

"8.	Addition of parties. 

(1)	Where a person who is not a party—

(a)	ought to have been joined as a party; or

(b)	is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated on,the Court, on application by him or by any party or of its own motion, may, on terms, order that he be added as a party and make orders for the further conduct of the proceedings.
…"

9.     Before discussing the law on joinder, it is necessary that I set out the undisputed facts relating to the chronology of events in these proceedings and Beecroft’s association with the land in question being Allotment 44 Section 7 Granville (‘the land’). I will not rely on facts that are disputed and that are the subject of other court proceedings involving the same parties.

10.     Below is chronology of events which are not disputed, which are taken from the court file and which speak for themselves. 

CHRONOLOGY

Date
	Event	
16 Dec 1987	PNG International Hotels Pty Ltd (PNGIHL) obtained lease over the land
	
20 Apr 1995	PNGIHL lease forfeited by Gazettal
	
18 Jul 1996	Notice for tenders for Lease by Gazettal
	
13 Sept 1996	PNGIHL commences WS 906 of 1996
	
18 Sept 1996	PNGIHL obtains injunctive Orders in WS 906
	
11 Dec 1996	Doherty J strikes out the Writ of Summons in WS 906
	
12 Feb 1997	PNGIHL commences OS 48 of 1997 for judicial review
	
21 Mar 1997	Salika J confirms in his ruling that WS 906 of 1996 was struck out, and he lifts injunctive orders. The court file is effectively closed.
	
24 Apr 1997	Beecroft Gazetted as new lease holder over the land
	
30 May 1997	Beecroft entered on register as Registered Proprietor of land
	
15 Mar 1998
	Leave granted in OS 48 of 1997 for judicial review
	
8 May 2000	Beecroft’s lease to land is forfeited by Notice in the Gazette by the Minister for Lands
	
May 2000
	Beecroft commences CIA 142 of 2000 challenging the forfeiture of its lease to the land
	
5 Apr 2001	Kandakasi J hears proceedings and finds that forfeiture to land by Minister for Lands has no legal basis. He revokes the forfeiture and awards solicitor-own client costs against the Minister for Lands
	
27 Oct 2006	Rageau Manua Kikira lawyers file Notice of Change of Lawyers in WS 906 of 1996
	
15 Dec 2006	Consent Orders entered in WS 906 of 1996 canceling Beecroft’s title to the land - Beecroft and Gadens unaware of entry of "Consent Orders"
	
4 Jan 2007	Beecroft makes application to Registrar of Titles for replacement of Title Deed to the land
	
30 Jan 2007	Gadens searches National Court Registry. Gadens cannot locate WS906 of 1996 but locates OS 48 of 1997 and notes that leave was granted in 1998 for judicial review – Gadens assumes that WS 906 is a completed matter.
	
8 Feb 2007	Gadens letter to Registrar of Titles advising again that PNGIHL’s title to the land was forfeited in 1995 and that the Orders he (Registrar) had sent to Gadens of 18 September 1996 related to a now defunct Court file and again asking Registrar to confirm Beecroft’s title
	
25 May 2007	Registrar’s letter to Gadens issuing Beecroft with a summons to produce Owners Copy of Title, despite previous application in January by Beecroft for a replacement title. Registrar advised Gadens that Beecroft’s title was "issued in error". Registrar of Titles still makes no mention of "Consent Orders" entered in December 2006
	
28 May 2007	Gadens responds to Registrar of Titles advising that the orders of 18 September 1996 are not in force. Gadens also states why Beecroft is the legitimate title holder and asks Registrar to confirm Beecroft’s title.
	
4 June 2007	Registrar writes to Gadens saying he has cancelled the title of Beecroft which was entered in error, and enclosing Consent Orders in WS 906 of 1996 as made on 15 December 2006. That is the first time Gadens is advised, by any source of the Consent Orders of December 2006
	
6 June 2007	Gadens attends National Court Registry and locates Court file WS 906 of 1996 and copies all documents
	
12 June 2007	Gadens gets old files out of archives, obtains instructions from client in Malaysia and prepares application to set aside Consent Orders and files Judicial Review proceedings
	
12 June 2007	Article in National Newspaper saying PNGIHL is the owner of the State Lease and intends to build a Hotel
	
13 June 2007	Beecroft files Notice of Motion to join WS 906 of 1996 and set aside Consent Orders and serves PNGIHL and defendants
	
14 June 2007	Beecroft files OS 327 of 2007 seeking to judicially review the decision of the Registrar to purportedly cancel its title
	
15 June 2007	Parties appear before Her Honour Davani J and matter is adjourned on the basis that the Motion was short served – return date of 10 July 2007

11.    Should Beecroft be joined in the proceedings? 

12.    The principles on joinder are well established in this jurisdiction and the common law jurisdiction. They were discussed by his Honour Justice Kandakasi in Umapi Luna Pakomeyu v. James Siai Wamo (2004) N2718 where he enunciated principles adopted by Justice Sakora in AGC (Pacific) Limited v. Sir Albert Kipalan and 4 others (24/2/00) N1944. These principles are;

1.	Whether the applicant has sufficient interest in the proceedings;

2.	Whether the applicants joinder as a party is necessary to ensure that all matters in dispute in the proceedings can be effectively and completely adjudicated on. 

13.    Beecroft wishes to join the proceedings so it can then apply to set aside consent orders of 15 December, 2006. These orders read as follows;

"CONSENT ORDER

THE COURT ORDERS BY CONSENT OF PARTIES:-

1.	The first plaintiff’s title and/or interest in respect of the property described as Allotment 44, Section 7, Granville, National Capital District being a State business lease, Volume 106 Folio 167 is given full force and effect of the time the first plaintiff’s title was registered, being on the 15th December 1987, to the date of issuance of the official owners copy of the State lease issued pursuant to the Land Registration Act and/or Land Act after it has been shown to the satisfaction of the Registrar that registered proper copies of the State Lease has been lost or destroyed.

2.	Any other title or subsequent title or interest granted, issued, assigned or transferred or charged in relation to Allotment 44, Section 7, Granville, Port Moresby, National Capital District is declared void and such grant, issuance, assignment or charged stands cancelled from the date of this order.

3.	The defendants or their/it/his servant(s) be restrained from dealing with or issuing any other title in respect of the land or property described as Allotment 44, Section 7, Granville, Port Moresby, being State lease Volume 106Folio 167 unless the plaintiff’s title is cancelled or revoked in accordance with the laws of Papua New Guinea.

4.	The orders be abridged.

5.	Each party pay their own costs.

Dated the 15th day of December 2006.

BY THE COURT 

………(signed)…………..
REGISTRAR"

14.    The action before the court on which the original consent orders were obtained is that filed by Patterson Lawyers on 15 September, 1996. The relief sought in the Writ of Summons and Statement of Claim is very nearly the same as the consent orders of 16 December, 2006. 

15.    The facts set out herein are undisputed. After the grant to it of the State lease to the land, Beecroft continued to pay the annual land rent fee of K40,000.00 because it believed, acting on official documentation received from the Office of the Registrar of Titles and gazettals that it was the holder of the State Lease to the land, and had been since April, 1997. On 16 March, 2000, Beecroft was issued with a Notice to Show Cause why its lease should not be forfeited. By notice in the National Gazette No. G. 49 dated 8 May, 2000, the Minister for Lands purported to forfeit the lease held by Beecroft. Beecroft continued to pay the annual fee of K40,000.00 and continued to correspond with the Department of Lands as to the improvement covenants on the Lease. On 16 March, 2000, Beecroft was issued with a Notice to Show Cause why its lease should not be forfeited. Land Rent payment was still up to date. 

16.    By notice in National Gazette No. G. 49 dated 8 May, 2000, the Minister for Lands forfeited the Lease held by Beecroft. This was when Beecroft commenced proceedings in the National Court pursuant to s. 142 of the Land Act 1996 by filing a Notice of Appeal seeking to have the purported Notice of Forfeiture revoked as having no legal basis. On 5 April, 2001, the appeal was heard by his Honour Justice Kandakasi who found the forfeiture of Beecroft’s lease to be without any good basis and not according to law. He made orders revoking the forfeiture and awarding costs to Beecroft on a solicitor/client basis. These orders were entered on 22 August, 2001.

17.    Beecroft continued to pay annual land rent to the Department of Lands.

18.    By notice in National Gazette No. G. 188 dated 26 September, 2006, the Registrar of Titles gave notice that he intended to issue PIHL official copy of Lease over the property. Similar notice was published in the Post Courier. Then followed series of correspondence between the Registrar of Titles and Gadens Lawyers in relation to the Registrar’s actions.

19.    The chronology of events table also demonstrate Beecroft’s later involvement in ascertaining its status over the lease.

20.    Mr Brooks referred the court to several authorities which dealt with the issue of when a party can be joined. He submitted that the test for the proper joinder of an applicant under O. 5 r. 8 has been the subject of a number of cases most of which deal with the test of "necessity" under O. 5 r. 8 (1) (b) which has been given a narrow construction in those cases. These were that "the applicant… has an interest in the matter the subject of the proceedings and if relief sought is granted, that it will affect that interest" (Umapi Luna Upakomeyu (supra); that "…the court retains the discretion to join or severe (if already joined) if the interests of justice demands so" (AGC (Pacific) Ltd (supra); where an applicant seeks to join an associate, the court held that if the claim against the defendant is possible, that it "ought" to be joined (Pinpar Development Ltd v. TL Timber Development Ltd (1999)) N 1857;

21.    That if a party wishes to join the proceedings as an intervener, against the wishes of the plaintiff, that in order for it to be "necessary" to join a party, that party’s legal rights had to be affected. (Donigi v. the State [1991] PNGLR 376) or persons "directly affected" should be joined (Jack Nou v. Michael Cherake (2004) N 2539). 

22.    Obviously, the consent orders have effectively cancelled Beecroft’s legal title to the land. I find that it is necessary that Beecroft be joined for the purposes of the hearing of the motion for the court to consider the circumstances under which the consent orders were taken out and to the extent, whether the consent orders were properly taken out.

23.    I order that Beecroft No. 20 Pty Ltd join these proceedings as a third party. I also order abridgement of time as well.

24.    This then takes me to the hearing of the application to set aside consent orders.

Application to set aside consent orders. 

25.    Mr Brooks for Beecroft submits that the consent orders should be set aside because proceedings on which these orders were taken out are non-existent having been dismissed some years ago.

26.    Mr Brooks submits that there were no proceedings on foot at the time the consent orders were made. He submits that the Writ of Summons was struck out in 1996 and that therefore the consent orders were made on proceedings that were non-existent, that those orders are an irregularity and a nullity and should be set aside as of right.

27.    I have perused the court file to ascertain whether orders were made for these proceedings to be struck out or dismissed.

28.    The court file shows that on 11 December, 1996, Justice Doherty struck out Writ of Summons No. 906 of 1996 but allowed certain restraining orders to continue. These restraining orders were to continue to allow the plaintiff to file application for leave for judicial review to preserve the status quo and to remain until such time the plaintiff filed proceedings by way of judicial review. The proceedings for judicial review were filed as OS No. 48 of 1997. 

29.    On 3 February, 1997, leave was granted to second plaintiff Dorado Pty Ltd for judicial review. These orders were entered on 17 October, 1998. I note again another court order of 25 March, 1998 entered on 15 April, 1998 in proceedings OS 48 of 1997 where leave was granted to the plaintiff for judicial review. These proceedings did not proceed any further. It appears the file may have been closed and archived. 

30.    Mr Brook’s submissions are also that the orders to strike out were later confirmed by his Honour Justice Salika on 21 March, 1997. Apart from the entered orders, the defendants’ lawyers also support the position that there were no proceedings on foot, because WS 906 of 1996 was struck out. These are written submissions filed by Philip Ame Lawyers on 17 March, 1997, where Mr Ame stated and confirmed that proceedings WS 906 of 1996 were struck out by her Honour Justice Doherty (par. 1.5). Mr Ame also submitted that because proceedings WS 906 of 1996 was struck out that "…everything including the orders made under the Writ of Summons should not exist. Therefore, the very existence of the order against the defendant is without any cause of action and without any evidence at all." (see par. 2.5 of P. Ame’s written submissions). I will re-emphasize the relevance of these submissions later below.

31.    Justice Salika’s orders of 21 March, 1997 were made after consideration of defendant’s motion (Mr Ame’s) seeking orders that the plaintiffs have no cause of action because of her Honour’s (Doherty .J) orders of 11 December, 1996, and that no new proceedings had been instituted. His Honour found that when her Honour made her orders of 11 December, 1996, striking out the Writ of Summons, he said the effect of that was "…that there is no current action on foot insofar as this Writ of Summons is concerned." His Honour also directed the lifting of restraining orders that had remained after her Honour made the orders striking out those proceedings.
32.    As such, as at 21 March 1997, as far as proceedings WS 906 of 1996 were concerned:

a.	the Writ of Summons in WS 906 had been struck out in December 1996 and no proceedings were on foot. This fact is not contested by the parties.; and

b.	there were no restraining orders in place against the Department of Lands, Registrar of Titles or any of the other defendants preventing them from dealing with the State Lease as they saw fit; 

c.	because proceedings OS 48 of 1997 had already been commenced by PNGIHL, the effect of Justice Salika's ruling was that the file in WS 906 of 1996 was now closed.

33.    For reasons known only to plaintiffs counsel at that time, the Lawyers for the plaintiffs filed a Notice of Trial on 8 February, 1999. The Court endorsement forms on the Court file show that this matter had gone before the Court on a few occasions after Justice Salika's Orders. The matter was stood over generally and trial dates vacated. Basically the matter was in abeyance for a decade and for whatever reason it did not come to the Court's attention that there were actually no proceedings on foot.

34.    On 27 October, 2006 Rageau Manua Kikira Lawyers filed a Notice of Change of Lawyers for the plaintiffs. 

35.    In December 2006 the plaintiffs new lawyers revived these proceedings and on 15 December, 2006 the parties to the proceedings agreed to the purported Consent Orders which were apparently entered by His Honour Justice Los, a few days before the Court vacation.

36.    The effect of these Consent Orders was to confirm the title to the land by PIHL and to declare void any title issued subsequent to the forfeiting of PNGIHL's lease in April 1995. As such, the consent Orders effectively cancelled Beecroft's title to the land.

37.    Beecroft contends that as registered proprietor of the State Lease in question since 1997, it was not approached to either give its consent to the purported "Consent Orders" entered in WS 906 of 1996 on 15 December, 2006, or at least to make known its position to the court.

38.    Was the consent order properly taken out by the parties?

39.    PNGIHL initially commenced proceedings WS 906 of 1996 by Writ of Summons on 13 September, 1996 seeking Orders that the Land Board and others be restrained from seeking tenders for the subject state lease and that the forfeiture notice issued to it in respect of its previous lease was null and void. No claim was made in the Writ of Summons that any subsequent title such as that issued to Beecroft in April 1997 be declared void.

40.    Even if the Writ of Summons was on foot, the terms of the Consent Orders were simply not available under the Writ of Summons because it was not pleaded. Pleadings in a civil claim play a very vital role. They lay the foundation for a claim and dictate the kind of evidence the parties can call and the grant of relief subject to evidence proving it.

41.    A court should not grant a relief that has no foundation in the pleadings i.e Statement of Claim, even if there is evidence of it or in this case, agreement. (see Bruce v Oldhams Press Ltd [1936] 3 ALL ER 287; Paul John v Gerd Lindhardt and Servicom Pty Limited (1999) N1938; London Passenger Transport Board v Moscrop [1942] 1 ALL ER 97) 

42.    The plaintiffs lawyers did not provide any response to submissions by Beecroft’s counsel on Doherty .J’s orders. But only in relation to Justice Salika’s orders did they say that it is only a draft and not a final order. I note on the court file, his Honour’s written reasons being his handwritten notes, the draft typed ruling which has his corrections and the final judgment which has the National Court’s crest on it.

43.	Mr Philip Ame, lawyer for first, second, third, fourth and fifth defendants, has always maintained that these proceedings were struck out. This is reflected in Mr Ame’s written submissions before the court and from court documents he filed and which are in this court file. These are;

i.	Notice of Motion filed by Ame Lawyers on 5.12.96 for and on behalf of the defendants seeking orders amongst others that proceedings WS 906 be dismissed "for disclosing no cause of action" and be dismissed "for abuse of process". In fact, in a further motion filed on 15.1.97 by Ame Lawyers, it sought orders at par. 5 that "The continuance of orders from a notice of motion after the writ was dismissed is an abuse of the process."

ii.	Written submissions, filed on 17.3.97 by Ame Lawyers, support the position that WS 906 of 96 was struck out. I have set out above the full text of Mr Ame’s submissions at par. 2.5.

44.    With that always being the position, Mr Ame, with the benefit of that knowledge, proceeded to endorse the consent orders, the subject of this application. I find this to be very unethical practice and unbecoming of a lawyer.

45.    The law in relation to the setting aside of consent judgments is very clear and which was put to me by both counsel, Mr Brooks and Mr Alua. Consent orders should not be set aside easily by the court and that the courts must always exercise great caution when such applications are put before it. But the only discretion remaining in the court after entering the consent judgment or order appears to be a power to vary or discharge such a judgment or order if it has not been finalized. But this discretion will only be exercised where grave injustice is to affect the party likely to be affected. (see Paul Torato v Sir Tei Abal [1997] PNGLR 403; Marsden v Marsden [1972] 2 ALL ER 1162; Coecon Limited v National Fisheries Authority PNG (2002) N 2182).

46.    I also accept Mr Alua’s submissions that a party aggrieved by a decision of the National Court who was not a party to the proceedings in the court below, can file an appeal. He referred the court to Kitogara Holdings v. NCDIC [1988 – 89] PNGLR 346. 

47.    But is this such a case?

48.    I have seen that consent orders were taken out on proceedings that were non-existent. The plaintiff’s lawyers have not shown otherwise. I do not accept their submissions in relation to Justice Salika’s orders. Even if Salika .J’s orders were draft orders, which I find not to be the case, the fact remains that there was an original order to strike out proceedings, which have not been set aside. These are the orders of her Honour Justice Doherty. And this fact is supported by the defendants’ lawyers, who have always acted for the defendants, since these proceedings were filed. Mr Ame is in a very good position to state otherwise, but he did not do so. As to why parties continued to rely on these proceedings is unknown to me because neither Mr Ame nor Mr Alua made submissions on this. No doubt, the Consent Orders were erroneously entered.
49.    In this respect, the purported Consent Orders are in a sense outside the jurisdiction provided by the National Court Rules, particularly that;

a.	The Writ of Summons was struck out in 1996 and therefore the "Consent Orders" had no basis at all. 

b.	The purported "Consent Orders" were not available on the original leadings, in any event; 

c.	The Consent Orders are contrary to established legal principles and are clearly an abuse of process and a legal nullity.

d.	Beecroft was not informed of the hearing of the consent orders and so did not appear to make known its position and given an opportunity to contest the "Consent Orders". 

50.    The 'Consent' Orders were made completely ex-parte the applicant Beecroft, and to this day Beecroft has not been formally served any documents.

51.    It was only by letter of 17 October 2006 that Beecroft was informed by the Registrar of Titles of other Orders made in these proceedings in September, 1996. The Registrar never informed Beecroft of any proposed Consent Orders to be made in December 2006, despite being informed of Beecroft's title by Gadens Lawyers, and of course, being involved in the application that went before Kandakasi .J, that I referred to earlier.

52.    Gadens Lawyers attempted to search the National Court Registry in late 2006, and early 2007. The court file in these proceedings could not be located. Nevertheless, the court file in OS 48 of 1997 was located and it was assumed that these proceedings were defunct. 

53.    It was not until 4 June, 2007 (letter from Registrar of Titles to Gadens) that Beecroft had any idea that these proceedings were still on foot. Since that time Gadens has had to locate the Court file and then copy all Court documents, file this application and also file judicial Review proceedings. 

54.    The 'Consent' Orders were brought to the attention of the applicant Beecroft only on 4 June, 2007 by the Registrar of Titles. 

55.    I find there has been no delay by Beecroft in bringing this application. But, I must say that I find the behaviour of the parties herein, particularly Mr Ame and the Registrar of Titles, a matter of enormous concern to this Court. 

56.    I find also that the court was clearly misled at the time of the making of the Consent Orders because;

a.	The parties more particularly Mr Philip Ame, did not advise the Court that there were actually no proceedings on foot as the Writ of Summons had been struck out more than 10 years previously and His Honour Justice Salika had made a further ruling supporting that, the effect of which was that the file was closed; and 

b.	The parties, more particularly the Registrar of Titles and Mr Ame, did not inform the Court of the rights and interests of Beecroft to the land; 

c.	The parties failed or neglected to bring to the Court's attention that the purported Consent Orders were simply not available on the Writ of Summons, even if the proceedings had still been on foot 

d.	It is abundantly clear that to the extent that the 'Consent' Orders were proposed, consented to, and made by the parties herein, matters of obvious relevance were concealed from the court. That these acts of material non-disclosure can only be seen to have been calculated and deliberate to gain advantage and to deceive the Court.

57.    I am inclined to agree that the purported "Consent Orders" were a deliberate attempt to mislead the Court and were a clear abuse of process.

58.    What are the courts powers on the setting aside of consent orders?

59.    Whilst there are clearly difficulties for parties who have consented to orders applying to set aside those orders they consented to, I find that those rules on consent orders cannot be applicable to applications to set aside orders where the application is made by an entity or party that did not consent to them but who is detrimentally affected-by these orders.

60.    Even where orders are made by consent of the lawyers for the parties without the consent of the parties themselves it is possible for the court to set aside those orders.

61.    Beecroft concedes that the general principle is that Consent Orders or judgments cannot be set aside in the Court from which they emanate but that there are limited exceptions. (See Joseph Kupo v Stephen Raphael, Secretary for the Department of Defence Force (2004) SC 751; Pius Nui v Senior Sergeant Mas Tanda (2004) N2765; Simon Mali v Independent State of PNG (2002) SC 690; Paul Torato & Ors v Sir Tei Abal & Ors PNGLR [1987] 403; PNG National Stevedores Pty Limited v The Hon Andrew Baing N1706; Peter Lipsey v Independent State of PNG [1993] PNGLR 405; Coecon Limited v National Fisheries Authority (2002) N2182; Kitogara Holdings v NCDIC [1988-89] PNGLR 346)

62.    In this case, there are clear and cogent and convincing and irrefutable reasons why this case is an exception to the general rule. This is because there were no proceedings on foot in which to enter the Consent Orders. The Consent Orders are a nullity in the truest sense of the word.

63.    Should Beecroft have appealed to the Supreme Court?

64.    Section 17 of the Supreme Court Act creates a strict 40 day time limit for appealing against a decision of the National Court. The applicant Beecroft cannot avail itself of this appeal procedure.

65.    Similarly, as a non-party to proceedings that have not arisen from Judicial Review proceedings, Beecroft can arguably not appeal by way of SCM.

66.    The only possible form of Appeal to the Supreme Court is by way of Supreme Court Review under s.155 (2) (b) of the Constitution. This is a power given to the Supreme Court and it is not limited by time and may be exercised in special circumstances where some injustice is manifested (see Avia Aihi v The State [1981] PNGLR 181. S. 155 (3) of the Constitution gives the National Court inherent jurisdiction to review exercise of any judicial act. However, this power relates to review of inferior tribunals and not a power to review a decision of another judge of the National Court (see Dick Mune v Paul Poto, unreported judgment of the Supreme Court dated 27 September, 1996, SC 508 at pg. 9).

67.    Beecrofts counsel also relies on s. 155 (4) of the Constitution to set aside judgment. This provision gives concurrent jurisdiction to both the National and the Supreme Courts. However, these powers are in the nature of prerogative writs which are by nature supervisory powers over subordinate courts, semi-judicial and administrative tribunals. Therefore the Supreme Court has no power to review a decision of another Supreme Court (See Application by Wili Kili Goiya SC 408; TST Holdings Pty Ltd & anor v Tom Pelis SC 534). In the same way, the National Court cannot review a decision of another National Court except in circumstances where a judgment may be set aside pursuant to statue or common law.

68.    The applicant Beecroft is also seeking Judicial Review of the Registrar's decision to purport to cancel its title, but this is a different matter to the Consent Orders now being challenged herein.

69.    Up to this point there has been no previous or simultaneous challenge to the 'Consent' Orders. Beecroft, now, for the first time, requests the court to set aside or vary or quash the 'Consent' Orders, relying on the common law and statute.

70.    Mr Brooks made submission on the irregularity of the consent orders. Order 1 r. 9 of the NCR states that;

"9.	Application to set aside for irregularity

An application to set aside any proceeding for irregularity shall not be allowed unless it is made within a reasonable time, or if made after the party applying has taken any fresh step with knowledge of the irregularity."

71.    Mr Brooks also relies on this courts general jurisdiction to set aside orders as provided under O. 12 r. 1, O. 12 r. 8 (3) (b) and O. 12 r. 8 (4) of the NCR.

72.    In this case, I have found that the consent orders are a nullity because they were taken out on proceedings that were non-existent. It is not a situation as in Anlaby v Praetorius (1888) 20 QBD 764 where if it is an irregularly entered judgment, it should be set aside as of right. And of course, bearing in mind O. 1 r. 8 of the NCR, that non-compliance with rules of court does not render proceedings void. The distinction made is between proceedings that are a nullity and those that are a mere irregularity. To the first, O. 1 r. 8 is not applicable and the court has no discretion, but to set it aside.

73.    The phrase "ex debito justitae" is not to be confused with a "nullity". A party who asks for a judgment to be set aside ex debito justitiae is simply asking the court to exercise its discretion in one way, mainly, to set aside judgment.

74.    You cannot amend a nullity, nor can you start again. This is one such case. There is extensive discussion on the difference between an irregularly entered judgment and a nullity in Leo Hannet v Elizabeth Hannet v ANZ Banking Group (PNG) Ltd SC 505 dated 16 August 1996 and relied on by me in Megeria v Romanong (2001) N2313 dated 18 May, 2001.

75.    Moreover, the Consent Orders being a clear nullity means that this Court has no discretion and must set aside the Consent Orders as of right. Additionally, this court does not have the power to quash the consent orders, as sought by Mr Brooks, but to only set aside.

76.    With respect, the Consent Orders entered by Los J in a very real sense, do not even amount to a Court decision because there were no proceedings on foot to enter the purported Consent Orders. Essentially, there are no rules of Court that are applicable to a situation such as this, with the exception of O. 12 r. 1 of the NCR which would cover this scenario, that the court may, at any stage of any proceedings, on the application of any party, make such orders as the nature of the case requires

77.    What of the costs of this application?

78.    Beecroft has had to return to court to protect its rights. Despite numerous correspondences to the Registrar of Titles, the Registrar, the plaintiffs and the defendants proceeded to consent to orders which effectively cancelled Beecrofts ownership to the property. As to the propriety of the Registrar’s actions, this is now the subject of a judicial review. But the plaintiff and defendants must pay the costs of this application, on a full indemnity basis.

Formal orders of the Court.

79.    In relation to the application to set aside, these are the court’s formal orders;

1.	The consent orders of the National Court of 15 December, 2006 are set aside as being a nullity;

2.	The named plaintiffs and defendants shall pay Beecroft’s costs of this application on a full indemnity basis;

3.	Time is abridged to time of settlement which shall take place forthwith.

80.    I need not make an order to dismiss the proceedings as submitted by Mr Brooks, because the proceedings are no longer in existence by virtue of Doherty .J and Salika .J’s orders.
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Rageau, Manua and Kikira Lawyers: Lawyer for the first and second plaintiffs
Ame Lawyers: Lawyer for all defendants
Gadens Lawyers: Lawyer for Beecroft No. 20 Pty Limited