Review Pursuant to Constitution Section 155(2)(b); Joseph Kupo, Appointed representative of 188 former members of the Papua New Guinea Defence Force v Steven Raphael, Secretary for the Department of Defence Force, Brigadier General Peter Ilau, Commander of the Papua New Guinea Defence Force and The Independent State of Papua New Guinea (2004) SC751

• Jurisdiction: Papua New Guinea
• Judge: Salika J, Sawong J, Gavara–Nanu J
• Judgment Date: 28 May 2004
• Court: Supreme Court
• Citation: (2004) SC751
• Docket Number: SCR No 69 of 2002
• Year: 2004
• Judgement Number: SC751

Full Title: SCR No 69 of 2002; Review Pursuant to Constitution Section 155(2)(b); Joseph Kupo, Appointed representative of 188 former members of the Papua New Guinea Defence Force v Steven Raphael, Secretary for the Department of Defence Force, Brigadier General Peter Ilau, Commander of the Papua New Guinea Defence Force and The Independent State of Papua New Guinea (2004) SC751

Supreme Court: Salika J, Sawong J, Gavara–Nanu J

Judgment Delivered: 28 May 2004

1 JUDGMENTS AND ORDERS—By Consent—Application to set aside—Consideration for review

2 ADMINISTRATIVE LAW—Judicial Review—s155(2)(b) Constitution—Setting aside consent order—Applicant does not have to satisfy the Court as to why he did not appeal when there is no right of appeal against a consent order—Application need to satisfy court that there is cogent or convincing reasons or exception circumstance or there is matters in the interest of justice that the order should be reviewed or that there are clear legal ground meriting a review—Application refused.

3 Avia Aihi v The State (No 1) [1981] PNGLR 81, Avia Aihi v The State (No 2) [1982] PNGLR 44, Danny Sunu v The State [1984] PNGLR 305, The Independent State of Papua New Guinea v Colbert [1988] PNGLR 138, Frank A Griffin v Westpac Bank [1993] PNGLR 352 referred to

Facts

The applicants had obtained a judgment from the National Court ordering the State to pay them some money. After negotiations, their representative negotiated a settlement with the lawyers for the State. Subsequently he instructed their lawyers to draw up a consent order. This was clearly done and the National Court endorsed the consent orders. Pursuant to that order, the applicants were paid and received the sum agreed. After receiving the money, they did not challenge the consent order or sued this lawyer for professional negligence for acting without instructions. Some nine (9) years later they filed a s155(2)(b) application to review the consent order.

Held

1. In an application to set aside a consent order, the applicant need not satisfy the court as to why he did not appeal, as there is no right of appeal against a consent order.

2. The applicant must show to the court that there are cogent or convincing reasons or exceptional circumstances, or there are matters are in the interest of justice or that there are clear legal grounds meriting a review.

3. Where there is or are allegations of negligence of a lawyer, the applicant should pursue a claim against the lawyer for professional negligence and not invoke the Courts inherent review jurisdiction under s155(2)(b) of the Constitution.

___________________________

SC751

PAPUA NEW GUINEA

[In the Supreme Court of Justice in Waigani]

SCR NO. 69 of 2002

REVIEW PURSUANT TO CONSTITUTION

SECTION 155 (2) (b)

BETWEEN:

Joseph Kupo,

Appointed representative of

188 former members of the

Papua New Guinea Defence Force

(Applicant)

AND:

Steven Raphael,

Secretary for the Department of

Defence Force

(First Respondent)

AND:

Brigadier General Peter Ilau,

Commander of the Papua New Guinea

Defence Force

(Second Respondent)

AND:

The Independent State of

Papua New Guinea

(Third Respondent)

WAIGANI: Salika, J, Sawong & Gavara-Nanu, JJ

2003: 27th November

2004: 28th May

JUDGEMENTS AND ORDERS – By Consent – Application to set aside –

Consideration for review

ADMINISTRATIVE LAW – Judicial Review – Section 155 (2)(b) Constitution –

Setting aside consent order – Applicant does not have to satisfy the Court as to why he did not appeal when there is no right of appeal against a consent order –

Application need to satisfy court that there is cogent or convincing reasons or exception circumstance or there is matters in the interest of justice that the order should be reviewed or that there are clear legal ground meriting a review – Application refused.

FACTS

The applicants had obtained a judgment from the National Court ordering the State to pay them some money. After negotiations, their representative negotiated a settlement with the lawyers for the State. Subsequently he instructed their lawyers to draw up a consent order. This was clearly done and the National Court endorsed the consent orders. Pursuant to that order, the applicants were paid and received the sum agreed. After receiving the money, they did not challenge the consent order or sued this lawyer for professional negligence for acting without instructions. Some nine (9) years later they filed a s.155(2)(b) application to review the consent order.

HELD

1. In an application to set aside a consent order, the applicant need not satisfy the court as to why he did not appeal, as there is no right of appeal against a consent order.

2. The applicant must show to the court that there are cogent or convincing reasons or exceptional circumstances, or there are matters are in the interest of justice or that there are clear legal grounds meriting a review.

3. Where there is or are allegations of negligence of a lawyer, the applicant should pursue a claim against the lawyer for professional negligence and not invoke the Courts inherent review jurisdiction under s.155(2)(b) of the Constitution.

PAPUA NEW GUINEA CASES CITED

Avia Aihi v The State [1981] PNGLR 81

Avia Aihi v The State (No 2) [1982] PNGLR 44

Danny Sunu v The State [1984] PNGLR 305

The State v Colbert [1988] PNGLR 138

Griffin v Westpac Bank (PNG) Ltd [1993] PNGLR 353

L.R. Henao with S.D. Uyassi, for Applicants

R. Meten, for Respondents

28th May, 2004

BY THE COURT: This is an application by the applicants for judicial review pursuant to s.155(2)(b) of the Constitution seeking to invoke this court’s inherent discretionary jurisdiction to review a decision of the National Court.

The summary of the facts and circumstances giving rise to this application are as follows. The applicants’ brought proceedings on behalf of themselves and other retrenched members of the Papua New Guinea Defence Force. They commenced proceedings in the National Court in April 1989 by way of an Originating Summons (OS No. 58 of 1999) seeking entitlements following their retrenchment from the Defence Force.

On the 26th November 1990, the National Court gave judgment in favour of the applicants. Sometime after that judgment was given, discussions were held to identify who should benefit from the judgment.

As a consequence, on 11th of August, 1993, by decision number 129/93, the National Executive Council resolved inter alia to:

1. Note the requirement to conduct the audit and approve the audited list of 188 claimants.

2. Authorize retrenchment payments to be made to the 188 claimants.

3. Authorize the Department of Finance and Planning to make some payments in 1993 if funds are available and the balance in 1994.

The Departments of Defence Force and Personnel Management undertook a complete audit of the list of ex-servicemen and their entitlements. The audit identified 188 ex-servicemen, who should benefit from the National Court judgment of 26th November, 1990.

Thereafter, on the 3rd December, 1993 two different orders were entered pursuant to the judgment of 1990. The court records show that consent orders were made by Sheehan, J. (See exhibit ‘L’ of Loani Henao’s affidavit sworn 30th September, 2003 and filed 14th October, 2003). The terms of that order read:

“ Judgement by consent for plaintiffs in the sum set out in the draft order and initialled by the Court”

The consent order was for two million, five hundred thousand kina (K2,500,000.00) in full and final settlement. Following the consent order the sum of K2.5 million was paid and received by the applicants. It is this consent order the applicants now seek to review on the basis that they gave no instructions to their then lawyers to consent.

After receiving the K2.5 million the applicants did not challenge the...