N7667
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS.NO. 552 OF 2018

FREDERICK IPARA for himself and on behalf of 16 other members of Waiwa Lumba Sub-clan of Pogera District, Enga Province, whose names appear on Schedule 1 attached to the Summons
Plaintiffs

V

WILLIAM GAUPE, ANGAPE KUKU, NAIYALA GAUPA, LAUWAMBO LIWAIDO & JOHN YANGUAN, in their capacities as the Clan Agents of Waiwa Lumba Sub-clan of Pogera District, Enga Province
Defendants

Waigani:  Kariko, J
2018: 7th & 17th December

PRACTICE & PROCEDURE – CIVIL JURISDICTION – Application to set aside consent order – Lack of authority to sign consent order   

Cases Cited:

Simon Mali v The State (2002) SC690 

Counsels:

Mr T Jugari, for the Plaintiffs
Mr J Kumbu, for the Defendant William Gaupe
Mr G Bon, for the remaining Defendants

RULING
17th December, 2018

1.	KARIKO, J: This is a contested application to set aside a consent order.

  Brief background

2.	On 14th August, 2018 the plaintiffs filed these proceedings seeking a number of declaratory orders to the effect that:

•	By a Ministerial Determination dated 7th February, 1996 the Waiwa Lunda Sub-clan is entitled to compensation, including  the Anawe and Anjolek Erodible Sediment Back Payment, from Pogera Joint Venture as the developer of the Pogera Gold Mine for the use of the clan’s land for the mine;
•	The defendants are the duly appointed clan agents authorised to negotiate compensation payments and other benefits with the State and the Pogera Joint Venture.
•	The plaintiffs are also members of the Waiwa Lunda Sub-clan and are therefore entitled to the compensation payments including the Anawe and Anjolek Erodible Sediment Back Payment.

3.	On 7th September, 2018 a consent order signed by lawyers for the parties was tendered and endorsed by the Court. 

4.	Pursuant to the consent order, the proceedings were then dismissed. 

5.	On 17th October, 2018 this application to set aside the consent order was filed by one of the five-named defendants, William Gaupe.

The law

6.	The Supreme Court in Simon Mali v. The State (2002) SC690 held that the National Court has inherent powers to set aside a consent order under section 155 (4) of the Constitution for reasons of fraud, mistake or procedural irregularity. 

Submissions

7.	The application to set aside the consent order was opposed.

8.	It was argued as preliminary points that the application is incompetent for reasons that no notice of intention to defend was filed by or for William Gaupe, and that Order 12 Rule 8 of the National Court Rules is incorrectly cited as the jurisdictional basis for the application. 

9.	I note that Gibson Bon Lawyers had earlier filed a notice of intention to defend on behalf of all defendants. The notice therefore covers Willim Gaupe. Further the notice of motion also cites s. 155(4) of the Constitution which gives the court jurisdiction to entertain the application. I therefore dismiss the objections to the competency of the application. 

10.	In his affidavit in support filed 25th October, 2018 William Gaupe claims that:

(1)	He did not instruct Bon Lawyers purporting to act on behalf of all the defendants to agree to the consent order, let alone act for him in these proceedings; and 
(2)	Two of the other defendants are deceased having died around 2002 so they could not have given authority for the consent order; and 
(3)	One other defendant is a very ill and bed-ridden so he could not have given authority for the consent order either.

11.	In those circumstances, the applicant alleged the consent order is a fraud and was irregularly entered into as it was obtained without the instructions of four of the five-named defendants but apparently upon the instructions of only the one remaining defendant John Yanguan. 

12.	In his affidavit evidence, John Yanguan deposes that: 

•	After he was served the originating summons, he gave notice to the other defendants to meet on 30th August 2018 at his residence to discuss the case filed against them. 
•	The eldest sons of the two deceased defendants and the bed-ridden defendant were invited to attend the meeting which they did and they were approved as clan agents replacing their respective fathers in accordance with custom. 
•	The meeting also noted the absence of William Gaupe but resolved, as the majority of the clan agents, to instruct Gibson Bon Lawyers to act for the defendants in the court action. 
•	Further, he (John Yanguan) was endorsed by the meeting to act as lead defendant and give instructions on their behalf to the lawyers.
•	In any case, William Gaupe benefits under the consent order.

13.	The plaintiffs supported the submission that the two deceased clan agents/defendants and the bed-ridden clan agent/defendant had been duly replaced according to custom and the majority of the clan agents/defendants through John Yanguan had properly authorised Gibson Bon Lawyers to enter into the consent order.

Consideration

14.	Even if three of the defendants were properly replaced as clan agents in the meeting of 30th August, 2018 the names of the defendants have never been amended to reflect that. Gibson Bon Lawyers entered appearance initially for all defendants as named in the originating summons and continued to act for those named defendants to the time the consent order was entered into. The fact therefore remains that those three defendants did not or could not have given authority for the consent order.

15.	There is also no evidence that William Gaupe was ever advised of the resolutions of the meeting of 30th August, 2018 or the proposed consent order before that order was entered into.

16.	I further note that the court file does not contain any affidavit of service filed in respect of service of the originating summons. That begs the question of whether the summons was served personally on each defendant in compliance with Order 6 Rule 3 of the National Court Rules.  

Conclusion

17.	In the end, I find the consent order should be set aside for reason of fraud and procedural irregularity.

18.	I will hear parties on costs before I issue the formal orders.  
________________________________________________________________
Hebrew Babe Lawyers: Lawyers for the Plaintiffs 
Parkil Lawyers: Lawyers for the Defendant William Gaupe
Gibson Bon Lawyers: Lawyers for the remaining Defendants