SC1459

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 117 OF 2014

PETER MANGOPE & FOUR OTHERS
First Appellants

JACK BOM TONGOPE
Second Appellant

V

ROLENCE MAPRIK HABA, REPRESENTATIVE OF TIPA CLAN, HELA PROVINCE
First Respondent

ALEMBO WAGARERE & 14 OTHERS
Second Respondents

THOMAS POLE, BEN MANGOPE & OTHERS
Third Respondents

WILLIAM BANDO, ACTING PROVINCIAL ADMINISTRATOR, HELA PROVINCE
Fourth Respondent

HON ANDERSON AGIRU MP, GOVERNOR, HELA PROVINCE
Fifth Respondent

HELA PROVINCIAL GOVERNMENT
Sixth Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Respondent

Waigani: Cannings J, Kariko J, Bona J
2015: 1 September, 28 October

PRACTICE AND PROCEDURE – appeal against order of National Court made in civil proceedings, referred to mediation – whether order made contrary to principles of natural justice.

ALTERNATIVE DISPUTE RESOLUTION – role of Judge mediator – whether a Judge appointed as mediator should assume normal role of a Judge to determine motions or other issues requiring judicial determination during course of mediation.

A party commenced proceedings by writ of summons in the National Court claiming compensation against a provincial government and the National Government for compulsory acquisition of customary land. A number of other parties joined the proceedings as plaintiffs. Rather than proceeding to trial, the proceedings were, with the consent of the parties, referred to mediation. A Judge of the National Court and another person, both accredited mediators, were appointed to conduct the mediation. The mediation started well, but was incomplete when a number of parties filed notices of motion in the National Court, seeking various orders regarding the future course of the mediation. The Judge mediator decided that he should hear the motions, in Court, to expedite completion of the mediation and the Court proceedings. The Judge made an order endorsing some of the terms of a draft consent order signed by some of the parties, requiring that amongst other things the sum of K736,100.00 be released to the trust account of the lawyers for one of the parties for operational costs connected with the mediation. Some of the plaintiffs appealed against that order, principally on the ground of denial of natural justice by the primary Judge, including failure to determine the three notices of motion before him and failure to obtain the actual consent of all parties prior to making the order and failure to endorse all of the terms of a draft consent order. At the hearing of the appeal some of the parties named as respondents to the appeal, who were plaintiffs in the National Court, supported the appellants. The appellants sought orders quashing the order appealed from and remitting the notices of motion to another Judge of the National Court.

Held: 

(1)	The principles of natural justice require that a Judge before whom a notice of motion is set down for hearing has a duty to hear the party moving the motion if the party requests that it be heard, be fair to all parties and be prepared to listen to all parties.

(2)	A Judge who makes a significant, substantive order must make the order as a consent order (having adhered to the requirements for making orders with the consent of all parties, as spelt out in Simon Mali v The State (2002) SC690) or following a hearing at which all parties are given a reasonable opportunity to be heard on the terms of the proposed order.

(3)	Here, the notices of motion, particularly those filed by the appellants and another party, which sought various orders including disqualification of the Judge from the mediation, were not heard by the Judge and this occurred without the consent of all parties who had requested that the motions be heard. Further the Judge conducted the hearing in a way that gave the appearance that he was not prepared to listen to all parties that amounted to a breach of natural justice.

(4)	The records of the Court failed to show that the order was made with the consent of all parties or following a hearing at which all parties were given a reasonable opportunity to be heard on the terms of the proposed order. This was another breach of natural justice.

(5)	There being a breach of the principles of natural justice in two respects, the appeal was upheld, the order of the Court was quashed and the proceedings were remitted to the National Court before another Judge.

(6)	Remarks: A Judge conducting a mediation should refrain from performing a judicial role in the same proceedings. To do so inevitably creates a risk that the Judge will bring to bear, and disclose to the public, in his judicial role, facts and information of which he has acquired knowledge during the mediation. Great caution must be exercised as the Judge might breach the duty of confidentiality pertaining to the mediation.

Cases cited

The following cases are cited in the judgment:

Hornibrook (NGI) Ltd v Mr Mogivi Wi (2012) N4702
Paul Paraka v Eastern Highlands Provincial Government (2005) SC809
Rimua v Ekanda (2011) SC1094
Simon Mali v The State (2002) SC690
Titus Waluka v Philip Taubuso (2009) N3848
Toulik v Kuek (2006) SC876

APPEAL

This was an appeal against an order of the National Court made in civil proceedings which had been referred for mediation. The order was made before the mediation was completed, by a Judge who was a mediator in the proceedings.

Counsel

L Putupen, for the Appellants
N Kubak & A Ipiai, for the First Respondent
D Tambili & R Mai, for the Second Respondents
P Iki, for the Third Respondent, Thomas Pole
D Kop, for the Third Respondent, Ben Mangope

28th October, 2015

1. BY THE COURT: This is an appeal against an order of the National Court made in civil proceedings which had been referred for mediation. The order was made before the mediation was completed by Justice Kandakasi, who was a mediator in the proceedings.

NATIONAL COURT PROCEEDINGS 

2. The National Court proceedings, WS No 386 of 2013, were commenced in May 2013 by the first respondent, Rolence Maprik Haba, who held himself out as authorised representative of the Tipa Clan of Tari, Hela Province. He was claiming approximately K5 million compensation against the Hela Provincial government and the National Government for compulsory acquisition of his Clan's customary land, which is now the site of Tari town and Tari Airport, an area of about 100 hectares. A number of other persons subsequently joined the proceedings as plaintiffs, and they have become parties to this appeal:

•	Peter Mangope and others were fourth plaintiffs, and are now the first appellants;

•	Jack Bom Tongope was a plaintiff and is now the second appellant;

•	Alembo Wagerere and others were second plaintiffs, and are now second respondents;

•	Thomas Pole and Ben Mangope were third plaintiffs, and are now third respondents (though they take different positions in the appeal, as explained below).

3. The defendants in the National Court included the Acting Provincial Administrator, the Governor of Hela Province, Hela Provincial Government and the State. They have been joined in the appeal as fourth, fifth, sixth and seventh respondents respectively, but have not taken part in the appeal.

4. The National Court proceedings were at a preliminary stage (the pleadings having closed) in August 2013 when Justice Kandakasi, with the consent of all parties, referred the matter to mediation. His Honour appointed himself and Mr Craig Jones, both accredited mediators, as co-mediators. The mediation commenced in January 2014.

5. It was incomplete when in mid-2014 a number of parties filed notices of motion in the National Court, seeking various orders regarding the future course of the mediation and National Court proceedings. His Honour evidently decided that he should hear the motions and related matters he considered should be determined, in Court, to expedite completion of the mediation and the Court proceedings.

THE ORDER APPEALED AGAINST

6. His Honour conducted a National Court hearing at Waigani on 2 September 2014 and made the order that has become the subject of this appeal. It states:

1.	The Court approves term 2(a) and (b) of the consent orders handed up to this Court to vary the Court Orders of 24th December 2013 for the National Court Registry to make the following payments:

(a)	The sum of K326, 100.00 be released to Robert Mai & Company Lawyers Trust Account to meet operational costs for processing of ILG certificates;

(b)	The sum of K410, 100.00 be released to Robert Mai & Company Lawyers Trust Account to meet operational costs for the presentation of ILG certificates in Tari and complete the Mediation.

2.	Term (c) of the Consent Order handed up to this court is deferred for endorsement by the general ILG membership at Tari.

3.	The Registrar of Incorporated Land Groups shall provide a Report by Monday 8th September 2014 and indicate what impediments if any to the issuing of ILG certificates for the Tari Airport clans.

4.	The presentation of ILG certificates is fixed for 19th – 23rd September 2014 in Tari, Hela Province.

5.	Each of the identified clans in the three Blocks shall determine the distribution mechanism of their allocation of funds held in trust.

THE APPEAL

7. Some of the plaintiffs, Peter Mangope (and four others) and Jack Bom Tongope, appealed against that order. They are the first appellants and second appellant respectively. They are represented by Putupen & Associates Lawyers. The notice of appeal contains eight grounds of appeal:

3.1	His Honour erred in not giving a fair hearing of the within appellants' notice of motion filed on 28/07/14 in breach of natural justice and Section 155(4) of the Constitution contrary to true spirit of mediation when the application was mentioned on 02/09/2014 in court.

3.2	His Honour erred in both law and facts in not hearing the appellants' application referred to in the preceding paragraph when in actual fact that application alleges issues of:

(a)	non-compliance of Court orders of 22/12/13 entered on 24/12/13;

(b)	misappropriation of public funds and or money not spent according to the terms of the Court orders of 22/12/13;

(c)	asking for acquittal of funds already allocated by the orders of the Court before any further funds can be approved and released from funds held in the National Court Trust Account;

(d)	termination of mediation pursuant to Rules 58 and 59 of the ADR Rules;

(e)	further conduct of the mediation process and handover of the balance of the K10 million held in the National Court Trust Account by the working committee;

(f)	conflict of interest and wrongdoings on the part of Robert Mai trading as Robert Mai and Company Lawyers contrary to Section 114 of the Lawyers Act and Rule 58 of the ADR Rules.

3.3	In making the orders, his Honour was unreasonable and of course unfair in not endorsing the lawyers' costs and the plaintiffs' cost submitted by consent of all parties, which amounts to discrimination and unfairness across the board after the committee had debated and approved it by way of consent orders.

3.4	The Court on its own varying the consent orders already signed by the counsels after considering all possible issues raised in the 3 applications filed by the appellants, the 6th respondents and Robert Mai & Company Lawyers was discriminatory, unfair and not in the good spirit of Mediation and of course contrary to court orders of 22/12/13 entered on 24/12/13.

3.5	The learned Judge was of the wrong view in entertaining a new group of people to take over the role and functions of the Court sanctioned working committee, which is responsible for bringing the mediation to end contrary to the Court orders of 22/12/13.

3.6	His Honour erred in disbanding the role and functions of the Tari Airport working committee contrary to Court orders of 22/12/13.

3.7	His Honour erred in not allowing the appellants to make their interlocutory application to restrain further payment out of the Trust Account and to protect the whole mediation process within the Court Orders of 22/12/13.

3.8	The Court below had failed to consider all affidavits filed by the appellants in the true spirit of mediation.

POSITIONS OF THE PARTIES

Supporting the appeal

9. Some of the parties named as respondents to the appeal, who were plaintiffs in the National Court, support the appellants. They are:

•	the first respondent, Rolence Maprik Haba of Tipa Clan (the plaintiff who commenced the National Court proceedings), represented by Kubak & Kubak, Solicitors & Barristers; and

•	some of the third respondents, Ben Mangope (and others), represented by Daniel Kop Lawyers.

Opposing the appeal

10. Some plaintiffs in the National Court, who are named as respondents, oppose the appellants. They are:

•	the second respondent, Alembo Wagarere and 14 others, represented by Robert Mai & Company Lawyers; and

•	one of the third respondents, Thomas Pole, represented by Warner Shand Lawyers.

Neutral

11. The fourth, fifth, sixth and seventh respondents, who were defendants in the National Court (the Provincial Administrator, the Governor, the Provincial Government and the State) did not take part in the appeal and their positions are deemed to be neutral. This reflects the fact that the real dispute in the National Court proceedings turned out to be amongst the plaintiffs.

RELIEF SOUGHT

12. The appellants and those parties supporting them seek orders quashing the order appealed from and remitting the unresolved notices of motion to another Judge of the National Court.

ISSUES

13. The grounds of appeal overlap considerably. Six grounds (1, 2, 3, 4, 7 and 8) can be combined. They all relate to an alleged denial of natural justice by the primary Judge. Only two grounds (5 and 6) entail arguments not related to natural justice. We have found those grounds difficult to appreciate and they were not pursued at the hearing of the appeal, so we deem them to have been abandoned. We consider that only two issues require our determination:

1.	was there a denial of natural justice, given the circumstances in which the order of 2 September 2014 was made?

2.	what orders should be made?

1 	WAS THERE A DENIAL OF NATURAL JUSTICE?

14. We have concluded, after examining the transcript of the proceedings of 2 September 2014, and considering the progress of the proceedings from their commencement in May 2013, the referral to mediation, the appointment of the primary Judge as a mediator, and his Honour's decision to hear notices of motion and to make orders as a Judge, while at the same time continuing to be a mediator, that there was a denial of natural justice, in two respects.

(a)	Failing to allow parties to be heard on motions before the Court

15. Three notices of motion, seeking orders as to the future course of the mediation, were before the Court on 2 September 2014, but his Honour did not allow them to be heard.

16. The first of them had been filed by Putupen & Associates Lawyers (on behalf of the appellants) on 28 July 2014. It sought an injunction to restrain the Registrar of the National Court from paying any more money out of the National Court Trust Account to Robert Mai & Company Lawyers until K1.85 million, claimed to have been paid to that firm for operational costs connected to the mediation, was acquitted.

17. The second was filed by Daniel Kop Lawyers on behalf of Ben Mangope (one of the third respondents) on 29 July 2014. It sought an order terminating the mediation or in the alternative an order that the primary Judge be disqualified as a mediator, due to his Honour's conduct of the mediation.

18. The third was filed by Robert Mai & Company Lawyers (on behalf of the second respondents), seeking an order for an additional disbursement of funds to that firm from the National Court Trust Account for further operational expenses connected with the mediation.

19. His Honour took the view that those motions were unnecessary and would frustrate the progress of the mediation. Rather than hearing them, and despite objection taken by counsel for some of the parties, in particular Mr Putupen for the appellants, his Honour directed the parties to discuss the issues outside the courtroom, and return later in the day with a draft consent order. (It is evident that the parties did do as they were told but did not reach agreement as to the future course of the mediation as, when the matter returned to court later that day, not all of them were present and represented.)

20. We consider, with respect, that that was not a proper course of action for the learned primary Judge to take. A Judge before whom a notice of motion is set down for hearing has a duty to hear the party moving the motion if the party requests that it be heard. A Judge must be fair to all parties and be prepared to listen to all parties (Paul Paraka v Eastern Highlands Provincial Government (2005) SC809). The orders being sought by the appellants and the third respondent Ben Mangope were very significant. They concerned the future course of the mediation, including whether his Honour should continue as a mediator. They also called into question the application of a substantial amount of public money (as funds had been allocated by the National Government for compensation to the Tari township customary landowners). We find, with respect, that his Honour's refusal to hear the notices of motion was a denial of natural justice.

(b)	Making what was ostensibly a consent order without the consent of all parties

21. The order of 2 September 2014 gave the appearance of being a consent order in that it began in paragraph (1) by stating that "The Court approves term 2(a) and (b) of the consent orders handed up to this Court to vary the Court Orders of 24th December 2013". However, we are satisfied that the order was neither in fact nor law a consent order for three reasons.

22. First, not all of the parties consented to all of the terms of the order.

23. Secondly, the requirements for entry of consent orders spelt out in the Supreme Court in Simon Mali v The State (2002) SC690 were not followed. Those requirements are: written consent to the order, of all parties or their lawyers, must be evidenced by endorsement on a draft; the Judge should endorse the draft order; an application to enter a consent order should not be made ex parte or in chambers (Titus Waluka v Philip Taubuso (2009) N3848, Hornibrook (NGI) Ltd v Mr Mogivi Wi (2012) N4702). None was met in this case.

24. Thirdly, some parts of the order were the product of the primary Judge's position as to how the mediation and the court proceedings should proceed, which was reached without his Honour allowing all parties the opportunity to make submissions on that matter. A draft consent order was handed up (albeit without the consent of all of the parties). His Honour approved some of the draft orders and disapproved others. This was contrary to the principle that a judge should not grant relief on a basis not argued nor grant a remedy not sought without giving the parties an opportunity to be heard on the basis or remedy. To do so is unfair to the parties as it deprives them of full knowledge of the case to be met and the possible consequences. Where a judge proceeds to decide a case on an issue not argued between the parties or to provide a remedy or make an order not sought or opposed by the parties, the parties are deprived of a worthwhile right to be heard, because the judge has not heard submissions from the parties on that issue or that order (Toulik v Kuek (2006) SC876).

25. His Honour as a consequence made an order that was neither a consent order nor an order that followed a hearing at which all parties were given a reasonable opportunity to be heard. It was a significant, substantive and controversial order, which went a long way towards completion of the mediation and determination of the civil proceedings. It included a further payment of a significant sum to Robert Mai & Company Lawyers (which was strongly opposed by some of the parties). This heightened the need to ensure that all parties were given a proper opportunity to be heard. However, that did not happen.

26. The principles of natural justice or procedural fairness are an integral part of the underlying law of Papua New Guinea, the minimum requirement of which, expressly recognised by Section 59 of the Constitution, is: "the duty to act fairly, and, in principle, to be seen to act fairly". These principles dictate that a person whose interests are likely to be affected by an administrative or, as in this case, a judicial decision, must be afforded an opportunity to be heard by the decision-maker, before the decision is made. We find that the manner in which the order of 2 September 2014 was made offended against those principles.

2	WHAT ORDERS SHOULD BE MADE?

27. Having concluded that the order of 2 September 2014 was made contrary to the principles of natural justice and therefore was attended by errors of law, it follows that the order should be quashed. We are not in a position to make an order in substitution for the order of 2 September 2014. The most appropriate course of action is for the matter to be remitted to the National Court, before another Judge. In particular the parties who filed the three notices of motion that were due to be heard on 2 September 2014 must be given the opportunity, if they so desire, to prosecute those motions.

REMARKS

28. We now remark on two matters that were raised during the hearing of the appeal, but which were not grounds of appeal.

29. First, the role of the primary Judge who, having been appointed a mediator, resumed the role of Judge when it became apparent that the future course of the uncompleted mediation would require some issues to be determined in Court. We think it was unwise for his Honour to do that.

30. If a Judge is appointed a mediator and the mediation is incomplete he or she should refrain from resuming the role of Judge unless the issue to be raised in Court is uncontentious and the resumption by the Judge mediator of a judicial role is with the express consent of all parties to the mediation. As Injia CJ explained in Rimua v Ekanda (2011) SC1094 it is necessary to maintain a clear demarcation at all times between a Judge mediator's adjudicative, judicial functions and that Judge's mediation functions. It will be almost impossible to avoid a blurring of these quite distinct functions if the Judge returns to the courtroom during the course of mediation. It will almost inevitably put the Judge in breach of the duty of confidentiality regarding all matters coming to the Judge's knowledge in the course of the mediation, which is imposed on the Judge upon appointment as a mediator. This duty arises under Rule 11 (confidentiality) of the ADR Rules, which states:

(1)	All participants in a mediation are subject to a duty of confidentiality and shall not, without the consent of all parties to the proceedings, disclose to any person not a party to the proceedings the nature or effect of any discussions and any documents produced during the mediation that are not otherwise discoverable.

(2)	Nothing said, or the nature or effect of any documents produced, during discussions in the course of the mediation between the Mediator and any participant in the absence of any one or more of the parties shall be disclosed directly or indirectly by any participant to the absent parties without the consent of all participants in those discussions.

31. A mediator, whether a Judge or not, is, by virtue of the definition in Rule 3(2) of the ADR Rules, a "participant" in the mediation and therefore subject to the duty of confidentiality. When a Judge mediator resumes a judicial role in the proceedings, the Judge will, unless the court proceedings are conducted in chambers or in camera or with the consent of all parties in public, be at great risk of disclosing to non-parties the nature and effect of discussions that have taken place during the mediation.

32. The resumption by a Judge mediator of a judicial role during the course of mediation should be assiduously avoided except in exceptional or urgent circumstances where the risk of a breach of the mediator's duty of confidentiality can be said to be totally excluded. Those circumstances did not exist here.

33. Secondly the terms in which the order of 2 September 2014 was expressed made it ambiguous. Paragraphs 1 and 2 referred to "the consent orders handed up to this Court" without specifying which orders (or more correctly draft orders) were being referred to. The date of those orders and who handed them up and whether the orders were signed by all parties or their lawyers should have been referred to. 

34. It is not a good practice to refer to other orders or court documents without specifying with particularity the document being referred to. Referring to other documents in a court order involves a risk that the recipient of the order or other persons with an interest in it, who might have some obligation to do or refrain from doing something, will not have access to the document being referred to. A court order should be drafted so that it is a standalone document, speaking for itself, without requiring the reader to refer to some other document.

CONCLUSION 

35. The appeal will be allowed as the order of 2 September 2014 was made contrary to the principles of natural justice. Costs will follow the event of the appeal.

ORDER

(1)	The appeal is upheld.

(2)	The order of the National Court of 2 September 2014 in WS No 386 of 2013 is quashed.

(3)	The matter is remitted to the National Court before another Judge.

(4)	Costs of the appeal shall be paid by the second respondents and the third respondent Thomas Pole, to the appellants and the first respondent and the third respondent Ben Mangope, on a party-party basis, which shall, if not agreed, be taxed.

Judgment accordingly,

Putupen & Associates Lawyers:	Lawyers for the appellants		
Kubak & Kubak, Solicitors & Barristers:	
Lawyers for the 1st respondent		
Robert Mai & Company Lawyers:	Lawyers for the 2nd respondents		
Warner Shand Lawyers:	Lawyers for the 3rd respondent, T Pole		
Daniel Kop Lawyers:	Lawyers for the 3rd respondent, B Mangope