N4194
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NOS 343 & 514 OF 2009

MARGARET ANGUI
First Plaintiff

HELEN ANGUI
Second Plaintiff

V

PAUL WAGUN, PUBLIC CURATOR
First Defendant

DOROTHY ANGUI
Second Defendant

MICHAEL PUKIASAUSA, JOHN KESIE & JOSEPH WANAHAU
Third Defendants

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Kimbe: Cannings J
2010: 27, 28 January,
2011: 17 January

JUDGMENT

JUDICIAL REVIEW – application for judicial review of decision of Public Curator re administration of deceased estate – whether decision amenable to judicial review.

PUBLIC CURATOR – complaints against Public Curator – Public Curator Act, Section 34

The Public Curator made a decision in 2007 regarding the distribution of the assets of a deceased estate. In 2009 the Public Curator reconsidered his 2007 decision and indicated that he would amend it. The plaintiffs were granted leave to apply for judicial review of the 2009 decision on various grounds, including denial of natural justice and ultra vires (it being argued that the Public Curator acted contrary to the Wills, Probate and Administration Act, that he took into account irrelevant considerations etc). This was a hearing of the application for judicial review.

Held:

(1)	At the hearing of an application for judicial review it is open to the court to determine the application by addressing issues that were not fully considered at the hearing of the application for leave.

(2)	The application for judicial review was misconceived and premature as (a) the Public Curator did not in 2009 make a decision amenable to judicial review and (b) the plaintiffs did not exhaust their statutory remedies under Section 34 of the Public Curator Act.

(3)	The application for judicial review was accordingly refused and the matter remitted to the Public Curator for reconsideration in light of observations of the Court arising from the issues argued before it.

Cases cited

The following cases are cited in the judgment:

Cecilia Bonny v Dorothy Amino (2009) N3591
Geno v The State [1993] PNGLR 220
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
NTN v PTC [1987] PNGLR 70
Ombudsman Commission v Donohoe [1985] PNGLR 348
Richard Pagen v Ila Geno (2008) N4031
SCR No 41 of 2001; Application by Lawrence Bokele (2002) SC682
Young Wadau v PNG Harbours Board [1995] PNGLR 357

JUDICIAL REVIEW

This was an application for judicial review for a decision of the Public Curator regarding the distribution of assets of a deceased estate.

Counsel

J Unido, for the plaintiffs
J N K Popuna, for the 1st defendant
J Wanahau, for the 2nd & 3rd defendants

17 January, 2011

1. CANNINGS J: This case is about the estate of an East Sepik man, Willie Angui, who died in 2004. Mr Angui died intestate, ie without leaving a will. The primary asset he left behind is an oil palm block, Portion 911, Section 6, Sarakolok, near Kimbe. A dispute has been going on about who should get the block or more specifically about who is entitled to what share of the proceeds of his estate. Because he died intestate, the Public Curator has assumed the central role in resolving this dispute.

2. The plaintiffs, Margaret Angui and Helen Angui, are biological daughters of the late Mr Angui and they are aggrieved by what they claim to be a decision of the Public Curator in July 2009 to amend a decision he made in May 2007 regarding the estate. They applied for leave to seek judicial review of the Public Curator's July 2009 decision. The National Court granted leave on 8 October 2009 and this is now the substantive judicial review.

THE ANGUI FAMILY

3. Willie Angui had three wives through customary marriage. His first wife (her name has not been adduced in evidence) is the plaintiffs' biological mother. She and Mr Angui separated many years ago and she is now deceased. His second wife, a Tolai woman called Theresa, has no role in the present dispute as she and Mr Angui separated many years ago and she is also deceased. His third wife, Dorothy, is directly involved in the proceedings. She is the second defendant. She is the plaintiffs' stepmother and she and the plaintiffs are at loggerheads.

4. Supporting Dorothy are the third defendants, Michael Pukiasausa, John Kesie and Joseph Wanahau. Michael and John are Dorothy's biological sons. Joseph is her nephew. The late Mr Angui is not the biological father of either Michael or John. They are the late Mr Angui's stepsons.

5. The late Mr Angui married Dorothy in 1982. He had by that time separated from Margaret and Helen's mother and married Theresa. In 1987 he and his two wives, Theresa and Dorothy, moved on to the block at Sarakolok. Dorothy brought her two sons from previous marriages, Michael and John. After a while Theresa left the block and, according to Dorothy's evidence, she and the late Mr Angui, and the two boys, Michael and John, set about developing it, building a home on it and planting and harvesting oil palm, which has since then yielded the family a regular income.

6. Dorothy says that it was only when their father died in 2004 that Margaret and Helen showed any interest in him or the block. They had been living in Morobe Province for many years, Dorothy says, and did not visit their father while he was alive or contribute towards development of the block.

THE PUBLIC CURATOR'S ROLE

7. The Public Curator became involved in the dispute in 2007 when Margaret went to Port Moresby and approached him regarding distribution of the assets of her late father's estate. The Public Curator made a three-page written decision dated 3 May 2007, distributing the estate in three equal shares to Margaret, Helen and Dorothy.

8. Margaret and Helen say that Dorothy, Michael and John – who have continued to live on the block and harvest the oil palm – never took any notice of the May 2007 decision and refused them access to the block. This led them in 2009 to commence proceedings known as OS No 343 of 2009, by which they sought a court order to endorse the May 2007 decision of the Public Curator. Those proceedings have been joined and heard together with OS No 514 of 2009, the application for judicial review that is now before the court.

9. Relations between the parties were very strained during 2009.

10. On the one hand, Margaret and Helen were upset that the Public Curator's May 2007 decision was not being followed and they were being denied access to the block.

11. On the other hand, Dorothy, Michael and John felt that the May 2007 decision was wrong as it did not recognise Michael and John and gave too much of the estate to Margaret and Helen who had contributed nothing to development of the block.

12. In early 2009 Dorothy's nephew, Joseph (one of the third defendants) moved on to the block and became the spokesman for Dorothy, Michael and John. Joseph wrote a letter dated 14 February 2009 to the Public Curator, asking that he reconsider his May 2007 decision as it failed to take account of Michael and John's interest in the block and the contribution they had made to its development.

13. Joseph's letter had the desired effect as, in April 2009, the Public Curator, Mr Wagun, travelled to West New Britain, inspected the block, interviewed Dorothy, John, Michael and Joseph, and appeared to come to a different view of how the estate should be distributed.

14. On 10 July 2009, Mr Wagun wrote a letter to the statutory regulator, the Oil Palm Industry Corporation (OPIC), providing his altered view on the matter. The letter is a critical piece of evidence as it conveys the decision of the Public Curator, which is the subject of the judicial review. Before setting out the letter it is important to record one other development in 2009: Margaret and Helen had convinced OPIC that the block should be put under suspension. This meant there was no oil palm harvested and all payments pending were withheld pending resolution of the dispute.

15. That explains why Mr Wagun's letter to OPIC was headed "Lifting of Suspension Block 911, Section 6, Sarakolok, Kimbe – Estate of Willie Angui". Mr Wagun stated:

I wish to bring to your attention that the above matter is under review since my independent investigation to verify facts relating to an early decision I made in respect to this particular block. All my facts from the earlier decision was based on Margaret Angui's side of the story which at that time appeared to be supported by the intestacy law.

After my investigations on the ground, I was saddened to discover that almost 80% of Margaret's story was inconsistent with the truth I discovered whilst on the ground.

Whilst she is the biological daughter by law and her beneficial interest is not denied, her interest is subject also to other provisions of law relating to "equitable contribution", a very important fact left out in my decision. Since the contention of equitable contribution directly affects her two half brothers and her step mother who are currently on the block, it is absolutely important that you do not interfere in my arbitration process by suspension of harvest and sales as it will add another dimension to the process and escalate the conflict further.

I request that you immediately arrange to uplift the suspension of harvest and sale on a 70/30 percentage until I finalise my decision.

70% of proceeds go to Dorothy Angui and her two sons and 30% to Margaret Angui respectively.

The matter is very urgent pending the court case outcome of Margaret Angui's case now before the Kimbe Court under OS 343 of 2009. You will be informed of the outcome of this case.

Yours faithfully

PAUL WAGUN
Public Curator and Official Trustee

GROUNDS OF REVIEW

16. Margaret and Helen have put forward seven grounds of judicial review of the Public Curator's 10 July 2009 decision:

(a)	The decision was ultra vires (beyond the powers available under) the Wills, Probate and Administration Act and the Public Curator Act.

(b)	The decision was made in breach of Section 84(1)(a) of the Wills, Probate and Administration Act.

(c)	The plaintiffs were denied natural justice.

(d)	The Public Curator failed to take account of relevant considerations.

(e)	The Public Curator was biased.

(f)	The Public Curator took into account irrelevant considerations.

(g)	No reasonable tribunal would have made the decision.

17. Before addressing these grounds it is necessary to deal with an important jurisdictional point raised by the Public Curator.

IS THE PUBLIC CURATOR'S DECISION AMENABLE TO JUDICIAL REVIEW?

18. Mr Popuna, counsel for the Public Curator, submits that, even though the National Court has granted leave for judicial review, there is nothing to review as the Public Curator's letter of 10 July 2009 is not evidence of a decision. I uphold this submission. All that Mr Wagun was doing by sending this letter to OPIC was requesting that OPIC lift the suspension on the block, as he considered that the suspension was hampering progress on resolution of the dispute. He was indicating that he was proposing to amend his 2007 decision and gave the reasons for this intended course of action. But the letter does not on its terms convey a decision.

19. The procedure of judicial review provided by Order 16 of the National Court Rules is concerned with reviews by the National Court of decisions of an administrative or judicial character. There has to be a decision before the Court's jurisdiction is invoked – a formal determination of a question – and it is necessary that it be a decision having the trappings of formality and officialdom and of a public character, eg determination of a question pursuant to a provision of an Act of the Parliament (Young Wadau v PNG Harbours Board [1995] PNGLR 357, Richard Pagen v Ila Geno (2008) N4031).

20. The Public Curator, being a statutory office-holder appointed under the Public Curator Act, makes many sorts of determinations in the discharge of his statutory powers, functions, duties and responsibilities, which may conceivably be amenable to judicial review. However, what he did in this case on 10 July 2009 by writing the letter to OPIC was not to make such a determination. He made no decision, which is amenable to judicial review. Therefore, the plaintiffs' application for judicial review must fail.

21. There is another reason, also advanced by Mr Popuna that the Court should decline to grant judicial review: there is a statutory procedure under the Public Curator Act for review of actions of the Public Curator, which has not been availed of by the plaintiffs. Section 34 (complaints against Public Curator) states:

(1) A person interested as creditor, next of kin, or otherwise in the estate of a deceased person that the Public Curator is administering under this Act, may—

(a) on the neglect or refusal of the Public Curator to do any act in relation to the administration of the estate; or

(b) on the Public Curator's doing, or threatening to do, any act in breach of his duty with reference to the estate,

apply on affidavit to the National Court or a Judge—

(c) for an order calling on the Public Curator to show cause before the Court or a Judge, on a day not less than two days after the service of the order on him, why he should not do or abstain from doing the act; and

(d) for an interim order in the nature of an injunction, if warranted by the facts of the case.

(2) An order under Subsection (1) may be granted subject to such conditions as to security for costs as the National Court or a Judge imposes.

(3) On the hearing of a complaint under Subsection (1), the National Court or a Judge may—

(a) receive proof of the matters in relation to the complaint orally or by affidavit; and

(b) make such order as the circumstances of the case require, and in particular as to payment of costs—

(i) by the complainant; or

(ii) by the Public Curator; or

(iii) from the estate administered by the Public Curator,

as, in the discretion of the Court or Judge, seems just.

(4) An order under Subsection (3)—

(a) has the same effect; and

(b) is enforceable by the same process,

as if it had been made by the National Court in a suit between the parties to the complaint.

22. Margaret and Helen, each being a "person interested as … next of kin … in the estate of a deceased person that the Public Curator is administering under this Act", could have "on the Public Curator's doing, or threatening to do, any act in breach of his duty with reference to the estate" – the decision foreshadowed by his letter of 10 July 2009 – applied to the Court under Section 34(1) "for an order calling on the Public Curator to show cause before the Court … why he should … abstain from doing the act" and "for an interim order in the nature of an injunction" to restrain him from making a decision.

23. The Court could then have heard their complaint and made such order under Section 34(3) "as the circumstances of the case require".

24. The failure of Margaret and Helen to approach the court under Section 34(1) is fatal to their application for judicial review. Their application for leave to seek judicial review should have been refused as they failed to exhaust their right to administrative or statutory review before asking for leave (Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122).

25. The fact that they were granted leave does not prevent the court, on the hearing of the substantive application for judicial review, dismissing the application for reasons that the court thinks would have justified refusal of leave. At the hearing of an application for judicial review it is open to the court to determine the application by addressing issues that were not fully considered at the hearing of the application for leave (NTN v PTC [1987] PNGLR 70, Geno v The State [1993] PNGLR 220). This is an ordinary and natural incident of the leave hearing, which is a filtering process intended to prevent obviously unmeritorious judicial review applications taking up the court's time (SCR No 41 of 2001; Application by Lawrence Bokele (2002) SC682). It will sometimes be the case – as here – that unmeritorious applications are not filtered out but their defects are exposed during the course of hearing preliminary points raised by the respondent at the hearing of the judicial review.

26. The application for judicial review will therefore be dismissed for two reasons: there is no decision to be reviewed and the plaintiffs failed to exhaust their statutory review rights before seeking judicial review.

27. However, as the grounds of judicial review have been argued in full I will make some observations on them, which may assist the disputing parties and the Public Curator in resolving this dispute.

OBSERVATIONS

28. The plaintiffs raised seven grounds of judicial review but they can be boiled down to two: (a) natural justice and (b) misapplication of Section 84 of the Wills, Probate and Administration Act. I see no basis at all for the argument that the Public Curator is biased against Margaret and Helen.

(a)	Natural justice

29. Margaret and Helen say that they were treated unfairly when the Public Curator came to West New Britain in April 2009 and inspected the block and interviewed Dorothy, Michael, John and Joseph but did not consult them – Margaret and Helen – before coming to his different view on how the proceeds of the estate should be apportioned. This to me is a legitimate grievance.

30. Natural justice is all about procedural fairness (Ombudsman Commission v Donohoe [1985] PNGLR 348). Section 59(2) (principles of natural justice) of the Constitution says "the minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly". In my view it was unfair of the Public Curator to state so emphatically in his letter of 10 July 2009 to OPIC that he had been misled by Margaret without giving Margaret a right to be heard on that very serious allegation. It would also be unfair of the Public Curator to make a decision along the lines foreshadowed in his letter of 10 July 2009 – to alter his May 2007 decision – without giving Margaret and Helen or their legal representatives a full opportunity to be heard.

(b)	Wills Probate and Administration Act

31. Section 84 (distribution on intestacy generally) is the provision that sets out how the estate of a person who dies intestate is to be distributed amongst their next of kin. It states:

(1) Subject to this section and to Sections 82 and 83, where a person dies intestate—

(a) if the intestate leaves a widow or widower—she or he is entitled, if the intestate leaves issue, to one-third or, if the intestate leaves no issue, to one-half of the estate; and

(b) if the intestate leaves a father and a mother but no widow or widower or issue—the estate shall be distributed equally between the father and the mother, and in the case of the latter for her own use; and

(c) if the intestate leaves a widow or widower a father and a mother but no issue—one-half of the estate shall be distributed equally between the father and the mother, and in the case of the latter for her own use; and

(d) if the intestate leaves a widow or widower and a father but no issue or mother—the father is entitled to one-half of the estate; and

(e) if the intestate leaves a widow or widower and a mother but no issue or father—the mother is entitled to one-half of the estate; and

(f) if the intestate leaves a father but no widow or widower, issue or mother—the father is entitled to the estate; and

(g) if the intestate leaves a mother but no widow or widower, issue or father—the mother is entitled to the estate; and

(h) if the intestate leaves a widow or widower but no issue, father or mother—the widow or widower is entitled to the estate; and

(i) subject to Paragraphs (a) to (h), the estate or the portion of the estate to which those paragraphs do not apply shall be distributed in equal shares among the children of the intestate living at his decease and the representatives then living of any children who predeceased the intestate, or, if there are no such children or representatives, among the next of kin of the intestate who are in equal degree and their representatives.

(2) In the application of Subsection (1)(i)—

(a) where a child—

(i) has any property, or any estate or interest in any property, by settlement of the intestate; or

(ii) was advanced by the intestate during his lifetime,

the child or his representative shall bring that property, estate, interest or advance into account in estimating the share (if any) to be taken by him in the distribution; and

(b) except as otherwise provided in this Division, the children of a person who died before the intestate take only the share that the person would have taken if living at the death of the intestate, and if more than one shall take in equal shares; and

(c) no representation shall be admitted amongst collaterals after brothers' and sisters' children; and

(d) brothers or sisters or, when they take as representatives, brothers' or sisters' children take in priority to grandparents; and

(e) where brothers' or sisters' children are entitled and all the brothers or sisters of the intestate have died before him—

(i) they do not take as representatives; and

(ii) all those children take in equal shares; and

(f) no distinction shall be drawn between males and females or between relationship of the whole blood and relationship of the half blood; and

(g) for all purposes of distribution and division a husband and his wife shall be treated as two persons.

(3) The father of a deceased illegitimate child shall not take under Subsection (1) as such unless, in the opinion of the National Court, he has, during the lifetime of the child recognised the child as his own and acted towards it as though it were his legitimate child.

32. It appears that the application of Section 84 to the facts of the present case would result in the following distribution of the estate of the late Mr Angui:

•	Dorothy would by virtue of Section 84(1)(a) get one-third as she is the widow of an intestate who has left issue (children); and

•	The remaining two-thirds of the estate would under Section 84(1)(i) be distributed in equal shares amongst Margaret and Helen and Michael and John, they being "the children of the intestate living at his decease". The fact that Michael and John are not the intestate's biological children would not appear to prevent them being regarded as his children. They are his stepsons and Section 84(2)(f) states that in the application of Section 84(1)(i) "no distinction shall be drawn … between relationship of the whole blood and relationship of the half blood".

33. Thus the distribution would be:

•	Dorothy = 33.33% = 1/3.
•	Margaret 16.67% = 1/6.
•	Helen 16.67% = 1/6.
•	Michael 16.67% = 1/6.
•	John 16.67% = 1/6.

34. Put another way:

•	The plaintiffs (Margaret and Helen) would get 33.33% or one-third (1/6 + 1/6).

•	The second and third defendants (Dorothy, Michael and John) would get 66.67% or two-thirds (1/3 + 1/6 + 1/6).

35. Interestingly, that distribution would be similar to that envisaged by the Public Curator in his letter of 10 July 2009 (30% to Margaret and 70% to Dorothy and her two sons).

36. I reiterate that the above is not a formal determination of the question of distribution of the estate. It is an observation that is offered to the parties as I consider that it will assist them and the Public Curator resolve the dispute.

WHAT ORDERS SHOULD BE MADE?

37. The primary order of the court will be to refuse the application for judicial review. As explained above, the application is unmeritorious, so all relief sought in OS No 343 of 2009 will be refused, as will all relief sought in the related OS No 514 of 2009. I will also dissolve an injunction granted by the National Court at Waigani on 18 September 2009, which enforced suspension of the oil palm harvest on the disputed block. This will allow the oil palm to be harvested and income to be generated. As to who should receive the income, the best thing to do as an interim measure is to distribute it in the manner proposed by the Public Curator in his letter of 10 July 2009: 30% to Margaret and 70% to Dorothy and her two sons.

38. Those orders will not by themselves resolve the dispute. There will still be uncertainty until such time as the Public Curator makes a final decision on distribution of the estate. I will craft the orders of the court in a way that will promote an orderly, fair and peaceful resolution of this dispute, according to law. I have taken a similar approach in other cases where block-holders have died intestate and a dispute has erupted in the family as to who gets the block, eg Cecilia Bonny v Dorothy Amino (2009) N3591. This is a common problem in West New Britain.

39. The Public Curator should make a quick 'preliminary' decision, having regard to the observations made by the court, so that any of the parties aggrieved by it can avail themselves of the right under Section 34 of the Public Curator Act to seek redress. I have therefore decided to invoke the inherent power of the National Court, under Section 155(4) (the national judicial system) of the Constitution, in circumstances that seem to me proper, to make the following orders, which are considered necessary to do justice in the circumstances of this particular case.

ORDER

(1)	All relief sought in OS Nos 343 & 514 of 2009 is refused.

(2)	The injunction of 18 September 2009 is dissolved.

(3)	Until further order of the Court, distribution of the proceeds of the oil palm harvest from Portion 911, Section 6, Sarakolok, shall be: 30% to Margaret Angui and 70% to Dorothy Angui, Michael Pukiasausa and John Kesie.

(4)	The question of distribution of assets of the estate of Willie Angui (deceased) is remitted to the Public Curator for reconsideration in light of the observations of the National Court made in its judgment.

(5)	The Public Curator shall, after giving all interested parties a right to be heard, within two months after the date of this order, inform the parties of his proposed decision on the question of distribution of assets of the estate of Willie Angui (deceased); after which time the parties shall have one month within which to apply to the National Court or a Judge for relief under Section 34(1) of the Public Curator Act.

(6)	If an application is made in accordance with order (5) to the National Court or a Judge, the application will be dealt with on its merits by the Court or the Judge. If no application is made in accordance with order (5), the Public Curator shall by notice of motion apply to the National Court in these proceedings for ratification of his proposed decision.

(7)	The parties shall bear their own costs.

(8)	Time for entry of the order is abridged to the date of settlement by the Registrar, which shall take place forthwith.

Orders accordingly.
____________________________
Muromu Lawyers: Lawyers for the Plaintiffs 
Jacob NK Popuna: Lawyer for the First Defendant 
Lawyers for the 2nd & 3rd defendants : Nil