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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS 823 OF 2009
BETWEEN:
NETWORK CONSTRUCTION LIMITED
First Plaintiff
AND:
BENNY KUSAK WAPPI
Second Plaintiff
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant
Waigani: Hartshorn, J.
2010: 14th April,
: 4th May
Consent Order - Application to set aside - s. 155(4) Constitution
Facts:
The State applies to have a consent order of this court set aside and for other consequential orders. The Plaintiffs oppose the application and seek to have the State’s notice of motion dismissed on the grounds that any allegation that the Consent Order was obtained by fraud or misrepresentation should be rejected as no particulars have been provided, that there is no error on the face of the record or any procedural irregularity, and that all customary procedures were followed in obtaining and entering the Consent Order.
Held:
1. This Court has the inherent power under s. 155(4) Constitution to set aside a consent order even when it is a final order and determines the relief sought: Simon Mali v. The State (2002) SC690.
2. The power to set aside a consent order can be exercised in at least two situations: (1) where there are errors on the face of the Court’s record; and (2) where there are procedural irregularities associated with the consent order being obtained.
3. There was procedural irregularity in obtaining the Consent Order as the Solicitor-General did not have instructions from the Attorney General to settle this proceeding: Polem Enterprises Ltd v. Attorney General of Papua New Guinea Mr. Francis Damen (2008) SC911, applied. The consent order is set aside.
Cases cited:
Papua New Guinea Cases
Pius Nui v. Senior Seargeant Mas Tanda (2004) N2765
Polem Enterprises Ltd v. Attorney General of Papua New Guinea Mr. Francis Damen (2008) SC911
Simon Mal v The State (2002) SC690
Simon Mali v The State (2008) N3442
The State v. Zachary Gelu and Anor (2003) SC716
Overseas Cases:
Harvey v. Phillips [1956] HCA 27
Permanent Trustee Co (Canberra) Ltd v. Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195
Sheonandan Prasad Singh v. Abdul Fateh Mohammad Reza (1935) 62 Ind App 196
Waitemata City Council v. MacKenzie [1988] NZCA 142; [1988] 2 NZLR 242
Counsel:
Mr. S. Javati, for the Plaintiffs
Mr. W. Mapiso, for the Defendant
14th April, 2010
1. HARTSHORN, J: The State applies to have the consent order of this court ordered and entered on 26th November 2009 (Consent Order) set aside and for other consequential orders.
2. The grounds relied upon by the State are that:
a) this court has jurisdiction to set aside a consent order,
b) there are errors on the face of the court's record,
c) there are procedural irregularities as to how the Consent Order was obtained.
3. The Plaintiffs oppose the application and seek to have the State’s notice of motion dismissed on the grounds that:
a) any allegation that the Consent Order was obtained by fraud or misrepresentation should be rejected as no particulars have been provided,
b) there is no error on the face of the record or any procedural irregularity,
c) all customary procedures were followed in obtaining and entering the Consent Order.
4. The Consent Order is as follows:
"1. Judgment is entered against the State to pay the First Plaintiff the amount of K1,998,355.08 being for mobilization fee for the construction of the Wewak Court House Complex Project.
2. The Plaintiffs are to discontinue the proceeding and resume work on the construction of the Wewak Court Complex Project as soon as the mobilization fee is paid.
3. Cost to the Plaintiffs if not agreed to be taxed."
5. The draft of the Consent Order that was handed to the presiding judge was signed by Mr. S. Javati, Counsel for the Plaintiffs and Mr. Devete, the Solicitor General, for the State. The Consent Order was ordered and entered on 26th November 2009 although there was no order for abridgement of time.
Law
6. This Court has the inherent power under s. 155(4) Constitution to set aside a consent order even when it is a final order and determines the relief sought: Simon Mali v. The State (2002) SC690. This power can be exercised in at least two (2) situations; where there are errors on the face of the Court’s record and where there are procedural irregularities associated with the consent order being obtained. I exercised this power to set aside a consent order in Simon Mali & Ors v. The State (2008) N3442. I also refer to the decision of Cannings J. in Pius Nui v. Senior Seargeant Mas Tanda (2004) N2765. Given the above, I am satisfied that this court has jurisdiction to hear this application.
Procedural irregularity
7. I will consider whether there was any procedural irregularity associated with the obtaining of the consent order, first.
8. In the affidavit of Mr. Devete, the Solicitor General of Papua New Guinea, sworn on 24th March 2010, Mr. Devete deposes amongst others, to the circumstances that led to him signing the draft consent order and that he signed the draft consent order relying on the advice of a lawyer in his office who had carriage of the matter.
9. In the affidavit of Mr. Javati, counsel for the Plaintiffs, sworn 31st March 2010, Mr. Javati deposes amongst others, that as to the second order of the Consent Order,
"I was advised by Ms. Tiankin that those were the express instructions of the State Solicitor, Mr. Minjihau and Mr. Kimmins who were instructing Ms. Tiankin."
10. From this it can be deduced that Mr. Devete relied upon the advice of Ms. Tiankin to sign the draft consent order and that Ms. Tiankin was being instructed by the State Solicitor and Mr. Kimmins.
11. Nowhere in his affidavit does Mr. Devete depose that he received instructions from the Attorney General of Papua New Guinea to settle this proceeding or that he had any communication with the Attorney General concerning the matter.
12. The effect of the Consent Order is to settle the proceeding with judgment being entered against the State, the First Plaintiff being paid a mobilisation fee, the proceeding being discontinued and the Plaintiffs resuming construction of the Wewak Court Complex.
13. As to the roles and functions of the Solicitor General and the Attorney General, the law is settled. 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."
14. Then in Polem Enterprises Ltd v. Attorney General of Papua New Guinea Mr. Francis Damen (2008) SC911, the Supreme Court said that as to the Gelu case (supra):
"It is good law. It is clear that the Solicitor-General has no power to settle cases against the State except on the instructions of the Attorney General......... the Solicitor-General must have instructions from the Attorney-General before settling a case."
15. Given the evidence of Mr. Devete and Mr. Javati to which I have been referred, I am satisfied that Mr. Devete did not have instructions from the Attorney General to settle this proceeding. As the Consent Order effectively settled this proceeding and Mr. Devete signed the draft consent order without the authority of the Attorney General, I am satisfied that there was procedural irregularity associated with the obtaining of the Consent Order.
16. What has occurred here is similar to the fact situation in Mali (2008) (supra). My observations in that case are relevant here. I made reference to the case of Harvey v. Phillips [1956] HCA 27, a decision of the High Court of Australia, where;
"a compromise has been agreed upon by counsel acting..... in excess of some limitation that has been expressly placed on his authority"
17. 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] UKLawRpAC 38; (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"
18. 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."
19. In Mali (2008) (supra), I also observed that 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....."
20. However in the more recent New Zealand Court of Appeal case of Waitemata City Council v. MacKenzie [1988] NZCA 142; [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."
21. As I said in Mali (2008) (supra), 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".
22. In this instance, I am satisfied on the evidence that the Consent Order was ordered and entered without the Solicitor General having the authority to consent from the Attorney General.
23. Finding as I have; have the rights of the Plaintiffs’ been or will they be materially prejudiced? There is no material evidence filed as to any prejudice to the Plaintiffs. They may be inconvenienced if the Consent Order is set aside, but their claim against the State is still on foot. I am not satisfied that the Plaintiffs have been or will be materially prejudiced if the Consent Order is set aside.
24. As to the submissions of the Plaintiffs’, as I have determined that there was procedural irregularity, it is not necessary to consider the questions of misrepresentation, fraud, error on the face of the record and customary procedures.
25. 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 ordered and entered on 26th November 2009.
26. As to costs, given that the reason the application to set aside had to be made was because of the actions of officers of the Defendant, the costs of the applications should be costs in the cause.
Orders
b) the Defendant is granted leave to file and serve an amended defence within 14 days from today,
c) the application of the Plaintiffs’ contained in the Notice of Motion filed 6th April 2010 to dismiss the Defendant’s Notice of Motion filed 24th March 2010 is refused,
d) the costs of and incidental to the applications referred to in 27 (a) and (c) above are costs in the cause,
e) the proceeding is adjourned to the registry for the Registrar to allocate a date for a directions hearing,
f) the time for entry of these orders is abridged to the date of settlement by the Registrar which shall take place forthwith.
________________________________________________
Mawa Lawyers: Lawyers for the Plaintiffs
Office of the Solicitor – General: Lawyers for the Defendant
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