SC1220

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 7 OF 2011

BETWEEN:

MANDALI PEALI NAIYA ASSOCIATION INC.
First Appellant

AND:
TITUS AYAPE HARIWA, CHAIRMAN MANDALI PEALI NAIYA ASSOCIATION INC, DANIEL WAGIA, EKARI ERIC HAYGU, TAMBALI KONO, JAMES ANGOBE, TOM PEWALE MULUNGU, GERSHOM DOGONO, HALIMBU TRIBU, ALEX AKIPE, ALIABE KULU FOR AND ON BEHALF OF THEMSELVES AND ON BEHALF OF MANDALI PEALI CLAN
Second Appellant

AND:

HONOURABLE WILLIAM DUMA, MINISTER FOR PETROLEUM & ENERGY
First Respondent

AND:

RENDLE RIMUA, SECRETARY FOR PETROLEUM & ENERGY
Second Respondent

AND:

SIMON TOSALI, SECRETARY FOR TREASURY
Third Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Sakora, J; Yagi, J; Logan, J
2013: 25 February

PRACTICE AND PROCEDURE – Appeal – Decision of National Court of PNG – Refusal of leave to amend application for judicial review of Ministerial determination regarding identification of landowner beneficiaries – Where application to review current determination out of time pursuant to s 169(10) of the Oil and Gas Act 1998 as amended - where default of appearance at appeal by appellants

HELD

Appeal dismissed 

COSTS 

Whether costs should be awarded on an indemnity basis – Where primary Judge ruled the application to be time-barred per s 169(10) of the Oil and Gas Act 1998, citing earlier case law authority in which the National Court had made similar ruling on the operation of s 169(10) – Where Respondents had written to the Appellants in advance advising them that the appeal was misconceived on the basis of the time bar – Where appellants had conceded correctness of earlier case before the National Court - Where appellants failed to appear on hearing of appeal in Supreme Court

HELD 

 Costs on the indemnity basis

Cases cited:

Umapi Luna Pakomeyu v James Siai Wamo [2004] PNGC 64; N2718 (12 November 2004) 

Counsel:
No appearance for the Appellants
Mr Lome, for the First and Second Respondents

Reasons for Judgment 

1.	BY THE COURT (Ex tempore, revised from transcript) This is an appeal from a judgment in the National Court (Davani J) whereby, as a consequence of a refusal of a grant of leave to amend an application for judicial review, the application was itself dismissed.

2.	The appellants had sought by their judicial review application the review of a determination made under the Oil and Gas Act 1998 (the Act). The determination, which was subject of the application, G59 of 24 March 2010, had been superseded by a later determination, G178 of 4 August 2010, which, amongst other things, revoked and replaced determination G59. In turn, determination G 59 had replaced a yet earlier determination under the Act, determination G72 of 25 April 2008. 

3.	At the time when the proceeding in the National Court was commenced in April 2010, determination G59 was the current determination. On 17 January 2011 the appellants applied for leave was to amend the statement of claim so as to include determination G178 of 4 August 2010. They claimed not to have been aware before then of the later determination, that is, G178 of 4 August 2010. 

4.	There was some debate before the National Court as to whether the amendment application should also have been extended to the originating summons. It is unnecessary or us to embark for consideration on whether that was indeed necessary. It is sufficient for present purposes to record that her Honour declined the application for leave to amend on the basis of a view which she formed as to the operation of s 169(10) of the Act. In that subsection, it is provided that a ministerial determination made pursuant to the section 'shall not be reviewable before any court unless an application for review is made within 28 days of the ministerial determination'. The amendment application before the National Court was made well outside that 28-day period. 

5.	In declining to permit amendment the learned primary judge applied an earlier decision of the National Court, Umapi Luna Pakomeyu v James Siai Wamo [2004] PNGC 64 of 12 November 2004 (Pakomeyu v Wamo). In that case, Kandakasi J said:

The delay in this case is in respect of two distinct time requirements. The first is the delay in coming within the provisions of s 169(10) of the The Act 1998 as amended. 
[…]
Indeed, the wording in s 169(10) is in the mandatory 'shall' as opposed to the discretionary 'may'. This means in my view, that a person aggrieved by a ministerial determination under the Oil and Gas Act 1998 as amended has to come strictly within the time limit under s 169(10). Hence, any application for review outside that period would be incompetent.  

6.	It should be added that it was common ground before her Honour that Kandakasi J had correctly stated the effect of s 169(10) in Pakomeyu v Wamo. Having refused leave, her Honour, as a consequence, dismissed the application. It is against that order of dismissal that the appellants have appealed to this court. 

7.	This morning, when the case was called on, there was no appearance by or on behalf of the appellants. There was, though, an appearance on behalf of the first and second respondents. In their written outline of argument, as expanded in oral submissions, the respondents sought an order of dismissal on two bases. Firstly, and as they had originally intended, they sought dismissal on the basis that there was no merit in the appeal because the appeal was seeking to challenge an order of dismissal based on a refusal of leave in circumstances where leave necessarily had to be refused because the amendment sought raised a challenge outside the time limit in the Act. The basis for that submission was the judgment of the National Court in Pakomeyu v Wamo applied by the primary judge. The other basis of challenge was dismissal in default of appearance. That basis for dismissal emerged for reasons that became obvious only this morning when there was no appearance by or on behalf of the appellants. 

8.	Whilst we are disposed to dismiss this appeal on the basis of a default on the part of the appellants to appear, in so doing, we make it plain that, in any event, we consider that an order of dismissal would have followed on the basis that there is no reason to doubt the correctness of her Honour's view that leave to amend was futile, having regard to the time limit set out in s 169(10) of the Act and the construction of that provision in Pakomeyu v Wamo. 

9.	Also raised is a question as to costs. Obviously, in the ordinary course, costs would follow the event in respect of dismissal, but the question raised by the respondents is whether or not there ought to be a special order as to costs? In that regard, the respondents tendered a letter of 7 February 2013 that had been sent on behalf of the respondents to those acting for the appellants, Messrs Steele Lawyers. We were informed that there was no response to the letter. The letter put that the appeal was misconceived as the subject matter of the appeal (refusal of the amendment) was time-barred by s 169(10) of the Act. 

10.	This was not the first occasion on which the prospect that the appeal was futile had been put to the appellants. On 18 December 2012 the appellants had sought a stay, or perhaps more accurately, a restraining order, in respect of the payments of royalties under the current determination. Whilst that restraint application failed, it is fair to say that the question of the operation of s 169(10) was canvassed at the hearing of that application and that at that time the appellants were legally represented. 

11.	These further observations should be made. Justice Kandakasi's judgment in Pakomeyu v Wamo and also the alternative of the seeking of judicial review under the Constitution were made apparent to the appellants even at the time when her Honour delivered her reasons for judgment. The case has proceeded through interlocutory stages to its listing today while the appellants were legally represented,

12.	It is against that background this that the respondents seek a special order for costs.

13.	The appellants by their lawyers have engaged in conduct which is not acceptable in a proceeding before Papua New Guinea's highest Court. Apart from the discourtesy evident in an absence of appearance on the day their appeal was to be heard, they have done so against the background of having their attention drawn, at least on two occasions, to an authority which is apparently against them and which they were not minded to challenge in the proceeding in the National Court under appeal. 

14.	In these circumstances, our view is that the exceptional step of awarding costs on an indemnity basis is warranted. It will be a matter for the appellants to determine themselves whether or not, having regard to the conduct of their legal practitioners, they may have remedies as against that firm in respect of the burden that will be upon them from an order for costs on an indemnity basis. 

Orders:

1.	The appeal is dismissed.
2.	The Appellants are to pay the First and Second Respondents' costs of and incidental to this appeal to be taxed on the indemnity basis. 

_____________________________________________________________
No Appearance for the Appellants
Greg Manda Lawyers: Lawyer for the First and Second Respondents