Peter Mangope & Four Others and Jack Bom Tongope v Rolence Maprik Haba, Representative of Tipa Clan, Hela Province and Alembo Wagarere & 14 Others and Thomas Pole, Ben Mangope & Others and William Bando, Acting Provincial Administrator, Hela Province and Hon Anderson Agiru MP, Governor, Hela Province and Hela Provincial Government and The Independent State of Papua New Guinea (2015) SC1459

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Kariko J, Bona J
• Judgment Date: 28 October 2015
• Court: Supreme Court
• Citation: (2015) SC1459
• Docket Number: SCA N0 117 of 2014
• Year: 2015
• Judgement Number: SC1459

Full Title: SCA N0 117 of 2014; Peter Mangope & Four Others and Jack Bom Tongope v Rolence Maprik Haba, Representative of Tipa Clan, Hela Province and Alembo Wagarere & 14 Others and Thomas Pole, Ben Mangope & Others and William Bando, Acting Provincial Administrator, Hela Province and Hon Anderson Agiru MP, Governor, Hela Province and Hela Provincial Government and The Independent State of Papua New Guinea (2015) SC1459

Supreme Court: Cannings J, Kariko J, Bona J

Judgment Delivered: 28 October 2015

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...