N3442

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 840 OF 1994

BETWEEN:

SIMON MALI on his own behalf and 30 others
First Plaintiffs

JOHN YASA on his own behalf and 20 others
Second Plaintiffs

PORAPAE PEBARO on his own behalf and 17 others
Third Plaintiffs

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

WS 842 OF 1994

BETWEEN:

DIAYA KAMBERE on his own behalf and 10 others
First Plaintiffs

KALARE WAPI on his own behalf and 11 others
Second Plaintiffs

KENDA ZOMA on his own behalf and 8 others
Third Plaintiffs

KIMBU PAKI on his own behalf and 11 others
Fourth Plaintiffs

WARIA REMOSI on his own behalf and 5 others
Fifth plaintiffs

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

WS 843 OF 1994

BETWEEN:

BUKA MU on his own behalf and 10 others
First Plaintiffs

MANE MOKE on his own behalf and 5 others
Second Plaintiffs

RAPULA MALAME on his own behalf and 15 others
Third Plaintiffs

UMBA MU on his own behalf and 12 others
Fourth Plaintiffs

PENA NAYA on his own behalf and 6 others
Fifth Plaintiffs

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

WS 844 OF 1994

BETWEEN:

WAREA WAPI on his own behalf and 20 others
First Plaintiffs

KANDE LAPANA on his own behalf and 20 others
Second Plaintiffs

ROREPA LENDE on his own behalf and 20 others
Third Plaintiffs

ALUPA KEAPU on his own behalf and 18 others
Fourth Plaintiffs

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

Waigani: Hartshorn, J.
2007: 4 December,
2008: 11 April

CONSENT ORDER - Application to set aside – s. 155(4) Constitution

Facts:

The defendant (the State) seeks amongst others, to have the consent orders of this court dated 28 April 2003 and entered 7 May 2003 in four separate proceedings entering judgment for certain sums (consent judgments), set aside. 

Held:

1. This is an appropriate case for the court to exercise its inherent power under s.155(4) Constitution to set aside the orders of this court dated 28 April 2003 entered on 7 May 2003.

2. The proceedings are adjourned to the registry for the Registrar to allocate a date for a directions hearing.

Cases cited: 

Papua New Guinea Cases

Simon Mali v. The State (2002) SC690 
The State v. Zachary Gelu and Anor(2003) SC716

Overseas Cases

Sheonandan Prasad Singh v. Abdul Fateh Mohammad Reza (1935) 62 Ind App 196
Harvey v. Phillips [1956] HCA 27 
Permanent Trustee Co (Canberra) Ltd v. Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195 
Waitemata City Council v. MacKenzie [1988] 2 NZLR 242

Counsel:

Mr. Palek, for the Plaintiffs in WS 842/94, 843/94 and 844/94
Ms. Suelip, for the Plaintiffs in WS 840/94 
Mr. Waleilia, for the Defendant

11 April 2008

1. HARTSHORN, J: The defendant (the State) seeks amongst others, to have the consent orders of this court dated 28 April 2003 and entered 7 May 2003 in four (4) separate proceedings entering judgment for certain sums (consent judgments), set aside.

2. It was agreed that as the four (4)separate proceedings have similar fact situations, have been dealt with together previously by this court and in respect of each, the State seeks the same orders, the applications of the State in the 4 proceedings would be heard together.

3. Mr. Palek appeared for the plaintiffs in proceedings WS 842/94, 843/94 and 844/94. He informed the court that those plaintiffs neither consented nor opposed the orders sought by the State.

4. The plaintiffs represented by Ms. Suelip, opposed the State’s applications. Ms. Suelip had applied for an adjournment on the basis that she was not ready to proceed as her firm of lawyers needed time to ascertain if they were still acting for some of the plaintiffs.

5. I declined this application as Ms. Suelip was aware that the special fixture was proceeding on 4 December 2007 as she had represented some of the plaintiffs on 14 November 2007 when the special fixture was allocated.

6. Further, in the absence of instructions to the contrary, Ms. Suelip’s firm remained lawyers on the record for the plaintiffs in WS 840/94 and had sufficient time to prepare for the special fixture.

7. The plaintiffs commenced proceedings against the State in 1994 and 1995 for damages in respect of alleged police raids in their respective villages.

8. The consent judgments were entered by consent for various certain sums inclusive of damages, interest and costs on 28 April 2003 and were entered on the 7 May 2003 for all 4 proceedings.

9. The State filed the present applications to set aside the consent judgments on 19 August 2003.

Grounds

10. The grounds relied upon by the State to have the consent judgments set aside are:

a) the consent judgments were irregularly filed in reliance on a Deed of Release which was not pleaded in the plaintiffs’ statement of claim, or,

b) the claim was defective in that each of the plaintiffs did not manifest their consent or authority to be so represented, or,

c) at the material time the Solicitor General did not have the necessary instructions from the Attorney General or the State to

i) enter into a deed of settlement of the claims, or,

ii) sign consent orders on behalf of the State,

d) when the consent judgments were filed in Court, Mr. Zachary Gelu had no instructions or authority to represent the State either as Solicitor General or as advocate.

e) the consent judgments were filed by the learned Registrar pursuant to a consent on behalf of the State which consent was not or was no longer valid on the date of its filing.

Law

11. This court has the inherent power under s. 155(4) Constitution to set aside a consent order; Simon Mali v. The State (2002) SC690. This Supreme Court case concerned the setting aside of a previous consent order in one of the proceedings the subject of the present application by the State.

Lack of authority

12. I will consider Ground 10 (c) ii) above, first.

13. In the affidavit of Francis Damen, the then Attorney General of Papua New Guinea filed in all the proceedings, Mr. Damen deposes amongst others, that following a National Executive Council decision in August 2002 which directed the Attorney General and the Solicitor General not to settle claims against the State out of court, Mr. Damen instructed the then Solicitor General, Mr. Zachary Gelu that lawyers from the office of the Solicitor General were not permitted to negotiate or enter into agreements to settle unless Mr. Damen was made aware of such settlement and "had given instructions for the same".

14. Further, Mr. Damen deposes that he had never given instructions to Mr. Gelu to negotiate for or enter into a deed of settlement to compromise the claims of the plaintiffs’.

15. Notwithstanding this and s. 13(2) Attorney-General Act which requires the Solicitor General to accept instructions from the Attorney General, Mr. Gelu proceeded to settle the plaintiffs’ claims by entering into a deed of settlement and consenting to the consent orders.

16. There is no evidence filed on behalf of the plaintiffs that disputes Mr. Damen’s evidence. 

17. In the Supreme Court case of The State v. Zachary Gelu and Anor (2003) SC716, at page 12 the Court said;

"In practice, where the State is a party in any litigation before the courts, the SG (Solicitor General) may act as an advocate if instructed to do so by the AG (Attorney General) in accordance with s. 13(2) of the Attorney-General Act. Where the SG is instructed, he must act in accordance with the instructions of the AG, such as to settle or not to settle a matter."

18. To my mind, what has occurred here is similar to one of the circumstances referred to in the case of Harvey v. Phillips [1956] HCA 27, a decision of the High Court of Australia, as it is a case where; 

"a compromise has been agreed upon by counsel acting….. in excess of some limitation that has been expressly placed on his authority"

19. In Harvey's case (supra) reference was made to the judgment of Lord Atkin in Sheonandan Prasad Singh v. Abdul Fateh Mohammad Reza (1935) 62 Ind App 196, where he said that in such cases;

"In the first instance the authority (of counsel) is an actual authority implied from the employment as counsel. It may however be withdrawn or limited by the client; in such a case the actual authority is destroyed or restricted and the other party if in ignorance of the limitation could only rely upon ostensible authority. In this particular class of contract, however, the possibility of successfully alleging ostensible authority has been much restricted by the authorities such as Neale v. Gordon Lennox (1902)AC 465 and Shepherd v. Robinson (1919) 1 KB 474, which make it plain that if in fact counsel has had his authority withdrawn or restricted the Courts will not feel bound to enforce a compromise made by him contrary to the restriction, even though the lack of actual authority is not known to the other party"

20. Lord Atkin went on to say that;

"It is said that this power of the courts is to be exercised as a matter of discretion when in the circumstances of the case to allow the compromise to stand would involve injustice in view of the restriction on counsel’s authority."

21. The ability of the court to set aside or vary a perfected judgment; one that has been entered, as opposed to one that has not, has been doubted. In Permanent Trustee Co (Canberra) Ltd v. Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195 at198, Brennan J. said; 

"The general rule is that a perfected judgment cannot be recalled or varied, for the public interest requires that the judgment when it is entered should conclude the litigation…. Until the final judgment is entered, the court retains the power to reconsider the matter, but when entered, the jurisdiction to reconsider is gone….."

22. However in the more recent New Zealand Court of Appeal case of Waitemata City Council v. MacKenzie [1988] 2 NZLR 242 at 249, Casey J. in a judgment he delivered on behalf of the court said;

"I am disposed to accept that the Court in an action taken for that purpose does have an inherent jurisdiction to set aside a sealed consent order obtained without authority or as a result of a mistake if the interests of justice require it. While there are obvious reasons for upholding the indefeasibility of such orders, it seems unnecessary to go to the extreme limit of regarding them as absolutely inviolate (apart from the ‘slip rule’); to do so could transform procedures designed to further the ends of justice into instruments of injustice or oppression. So long as the rights of others have not been materially prejudiced, I can see no virtue in the formal operation of sealing sufficient in itself to constitute a bar to any prospect of restoring the parties to the position they should have been in all along.

Whatever the grounds for seeking to set aside the order, the ultimate question is whether such a step is called for in the interests of justice, having regard to all the circumstances of the case."

23. I respectfully agree with these comments and am of the view that they are in accord with the inherent power of this court under s.155(4) Constitution to make "…in such circumstances as seem…proper….orders as are necessary to do justice in the circumstances of a particular case". 

24. In this instance, the consent judgments were entered and the uncontested evidence is that the consent judgments were obtained without the Solicitor General having the authority to consent to the judgments. Adopting the condition expressed by Casey J., have the rights of others been or will they be materially prejudiced?

25. No evidence has been filed on behalf of the plaintiffs, even though the notices of motion were served upon their lawyers a considerable time ago. There is no material before the court as to any prejudice that has or may be suffered.

26. Clearly though, the plaintiffs’ are likely to be inconvenienced if an order is made setting aside the consent judgments. Ms. Suelip has contended that she believes that settlement money has been paid and the plaintiffs will be prejudiced if they have to pay back the settlement money received.

27. This is disputed by counsel for the State who contends that no settlement payments have been made. Again, there is no evidence before the court as to whether any such payments have been made.

28. Ms. Suelip further contends that there has been delay in moving these motions to set aside the consent judgments. The delay in prosecuting these motions is a cause of concern, they being moved over 4 years after they were filed. The response of counsel for the State was that the delay was caused by the court in the system that it uses for having matters listed for hearing. 

29. There may be some substance to this contention, but a perusal of the court file evidences that delays have also been caused by the actions of the parties and their lawyers. No one is singularly to blame and no one is blameless.

30. No applications have been made by the plaintiffs to have the State’s applications dismissed for want of prosecution.

31. Again, there is no evidence before the court as to how the delay in prosecuting the motions has prejudiced the plaintiffs. Further, the plaintiffs have been aware for a considerable period of time that these motions were on foot.

32. In all the circumstances therefore I am satisfied that this is an appropriate case for the court to exercise its inherent power under s.155(4) Constitution to set aside the orders of this court dated 28 April 2003 entered on 7 May 2003.

33. Given my decision on the above ground, it is not necessary for me to consider the other grounds contained in the defendant's notice of motion or the alternate order sought in paragraph 2.

34. The proceedings are adjourned to the registry for the Registrar to allocate a date for a directions hearing.

35. As to costs, given the delay in prosecuting the motions and that the reason the application to set aside had to be made was because of the actions of an officer of the defendant, I order that the costs of and incidental to these applications be costs in the cause.

______________________________________________

Allans Legal Services: Lawyers for the Plaintiffs in WS 842/94, 843/94, 844/94 
Mirupasi Lawyers: Lawyers for the Plaintiffs in WS 840/94 
Posman Kua Aisi Lawyers: Lawyers for the Defendant