Simon Mali on his own behalf and 30 others and John Yasa on his own behalf and 20 others and Porapae Pebaro on his own behalf and 17 others v The Independent State of Papua New Guinea; WS 842 OF 1994; Diaya Kambere on his own behalf and 10 others and Kalare Wapi on his own behalf and 11 others and Kenda Zoma on his own behalf and 8 others and Kimbu Paki on his own behalf and 11 others and Waria Remosi on his own behalf and 5 others v The Independent State of Papua New Guinea; WS 843 OF 1994; Buka Mu on his own behalf and 10 others and Mane Moke on his own behalf and 5 others and Rapula Malame on his own behalf and 15 others and Umba Mu on his own behalf and 12 others and Pena Naya on his own behalf and 6 others v The Independent State of Papua New Guinea; WS 844 OF 1994; Warea Wapi on his own behalf and 20 others and Kande Lapana on his own behalf and 20 others and Rorepa Lende on his own behalf and 20 others and Alupa Keapu on his own behalf and 18 others v The Independent State of Papua New Guinea (2008) N3

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn, J
• Judgment Date: 11 April 2008
• Court: National Court
• Citation: (2008) N3442
• Docket Number: WS 840 OF 1994
• Year: 2008
• Judgement Number: N3442

Full Title: WS 840 OF 1994; Simon Mali on his own behalf and 30 others and John Yasa on his own behalf and 20 others and Porapae Pebaro on his own behalf and 17 others v The Independent State of Papua New Guinea; WS 842 OF 1994; Diaya Kambere on his own behalf and 10 others and Kalare Wapi on his own behalf and 11 others and Kenda Zoma on his own behalf and 8 others and Kimbu Paki on his own behalf and 11 others and Waria Remosi on his own behalf and 5 others v The Independent State of Papua New Guinea; WS 843 OF 1994; Buka Mu on his own behalf and 10 others and Mane Moke on his own behalf and 5 others and Rapula Malame on his own behalf and 15 others and Umba Mu on his own behalf and 12 others and Pena Naya on his own behalf and 6 others v The Independent State of Papua New Guinea; WS 844 OF 1994; Warea Wapi on his own behalf and 20 others and Kande Lapana on his own behalf and 20 others and Rorepa Lende on his own behalf and 20 others and Alupa Keapu on his own behalf and 18 others v The Independent State of Papua New Guinea (2008) N3442

National Court: Hartshorn, J

Judgment Delivered: 11 April 2008

N3442

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 840 OF 1994

BETWEEN:

SIMON MALI on his own behalf and 30 others

First Plaintiffs

JOHN YASA on his own behalf and 20 others

Second Plaintiffs

PORAPAE PEBARO on his own behalf and 17 others

Third Plaintiffs

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

WS 842 OF 1994

BETWEEN:

DIAYA KAMBERE on his own behalf and 10 others

First Plaintiffs

KALARE WAPI on his own behalf and 11 others

Second Plaintiffs

KENDA ZOMA on his own behalf and 8 others

Third Plaintiffs

KIMBU PAKI on his own behalf and 11 others

Fourth Plaintiffs

WARIA REMOSI on his own behalf and 5 others

Fifth plaintiffs

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

WS 843 OF 1994

BETWEEN:

BUKA MU on his own behalf and 10 others

First Plaintiffs

MANE MOKE on his own behalf and 5 others

Second Plaintiffs

RAPULA MALAME on his own behalf and 15 others

Third Plaintiffs

UMBA MU on his own behalf and 12 others

Fourth Plaintiffs

PENA NAYA on his own behalf and 6 others

Fifth Plaintiffs

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

WS 844 OF 1994

BETWEEN:

WAREA WAPI on his own behalf and 20 others

First Plaintiffs

KANDE LAPANA on his own behalf and 20 others

Second Plaintiffs

ROREPA LENDE on his own behalf and 20 others

Third Plaintiffs

ALUPA KEAPU on his own behalf and 18 others

Fourth Plaintiffs

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

Waigani: Hartshorn, J.

2007: 4 December,

2008: 11 April

CONSENT ORDER - Application to set aside – s. 155(4) Constitution

Facts:

The defendant (the State) seeks amongst others, to have the consent orders of this court dated 28 April 2003 and entered 7 May 2003 in four separate proceedings entering judgment for certain sums (consent judgments), set aside.

Held:

1. This is an appropriate case for the court to exercise its inherent power under s.155(4) Constitution to set aside the orders of this court dated 28 April 2003 entered on 7 May 2003.

2. The proceedings are adjourned to the registry for the Registrar to allocate a date for a directions hearing.

Cases cited:

Papua New Guinea Cases

Simon Mali v. The State (2002) SC690

The State v. Zachary Gelu and Anor(2003) SC716

Overseas Cases

Sheonandan Prasad Singh v. Abdul Fateh Mohammad Reza (1935) 62 Ind App 196

Harvey v. Phillips [1956] HCA 27

Permanent Trustee Co (Canberra) Ltd v. Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195

Waitemata City Council v. MacKenzie [1988] 2 NZLR 242

Counsel:

Mr. Palek, for the Plaintiffs in WS 842/94, 843/94 and 844/94

Ms. Suelip, for the Plaintiffs in WS 840/94

Mr. Waleilia, for the Defendant

11 April 2008

1. HARTSHORN, J: The defendant (the State) seeks amongst others, to have the consent orders of this court dated 28 April 2003 and entered 7 May 2003 in four (4) separate proceedings entering judgment for certain sums (consent judgments), set aside.

2. It was agreed that as the four (4)separate proceedings have similar fact situations, have been dealt with together previously by this court and in respect of each, the State seeks the same orders, the applications of the State in the 4 proceedings would be heard together.

3. Mr. Palek appeared for the plaintiffs in proceedings WS 842/94, 843/94 and 844/94. He informed the court that those plaintiffs neither consented nor opposed the orders sought by the State.

4. The plaintiffs represented by Ms. Suelip, opposed the State’s applications. Ms. Suelip had applied for an adjournment on the basis that she was not ready to proceed as her firm of lawyers needed time to ascertain if they were still acting for some of the plaintiffs.

5. I declined this application as Ms. Suelip was aware that the special fixture was proceeding on 4 December 2007 as she had represented some of the plaintiffs on 14 November 2007 when the special fixture was allocated.

6. Further, in the absence of instructions to the contrary, Ms. Suelip’s firm remained lawyers on the record for the plaintiffs in WS 840/94 and had sufficient time to prepare for the special fixture.

7. The plaintiffs commenced proceedings against the State in 1994 and 1995 for damages in respect of alleged police raids in their respective villages.

8. The consent judgments were entered by consent for various certain sums inclusive of damages, interest and costs on 28 April 2003 and were entered on the 7 May 2003 for all 4 proceedings.

9. The State filed the present applications to set aside the consent judgments on 19 August 2003.

Grounds

10. The grounds relied upon by the State to have the consent judgments set aside are:

a) the consent judgments were irregularly filed in reliance on a Deed of Release which was not pleaded in the plaintiffs’ statement of claim, or,

b) the claim was defective in that each of the plaintiffs did not manifest their consent or authority to be so represented, or,

c) at the material time the Solicitor General did not have the necessary instructions from the Attorney General or the State to

i) enter into a deed of settlement of the claims, or,

ii) sign consent orders on behalf of the State,

d) when the consent judgments were filed in Court, Mr. Zachary Gelu had no instructions or authority to represent the State either as Solicitor General or as advocate.

e) the consent judgments were filed by the learned Registrar pursuant to a consent on behalf of the State which consent was not or was no longer valid on the date of its filing.

Law

11. This court has the inherent power under s. 155(4) Constitution to set aside a consent order; Simon Mali v. The State (2002) SC690. This Supreme Court case concerned the setting aside of a previous consent order in one of the proceedings the subject of the present application by the State.

Lack of authority

12. I will consider Ground 10 (c) ii) above, first.

13. In the affidavit of Francis Damen, the then Attorney General of Papua New Guinea filed in all the proceedings, Mr. Damen deposes amongst others, that following a National Executive Council decision in August 2002 which directed the Attorney General and the Solicitor General not to settle claims against the State out of court, Mr. Damen instructed the then Solicitor General, Mr. Zachary Gelu that lawyers from the office of the Solicitor General were not permitted to negotiate or enter into agreements to settle unless Mr. Damen was made aware of such settlement and “had given instructions for the same”.

14. Further, Mr. Damen deposes that he had never given instructions to Mr. Gelu to negotiate for or enter into a deed of settlement to compromise the claims of the plaintiffs’.

15. Notwithstanding this and s. 13(2) Attorney-General Act which requires the Solicitor General to accept instructions from the Attorney General, Mr. Gelu proceeded to settle the plaintiffs’ claims by entering into a deed of settlement and consenting to the consent orders.

16. There is no evidence filed on behalf of the plaintiffs that disputes Mr. Damen’s evidence.

17. In the Supreme Court case of The State v. Zachary Gelu and Anor (2003) SC716, at page 12 the Court said;

“In practice, where the State is a party in any litigation before the courts, the SG (Solicitor General) may act as an advocate if instructed to do so by the AG (Attorney General) in accordance with s. 13(2) of the Attorney-General Act. Where the SG is instructed, he must act in accordance with the instructions of the AG, such as to settle or not to settle a matter.”

18. To my mind, what has occurred here is similar to one of the circumstances referred to in the case of Harvey v. Phillips [1956] HCA 27, a decision of the High Court of Australia, as it is a case where;

“a compromise has been agreed upon by counsel acting….. in excess of some limitation that has been expressly placed on his authority”

19. In Harvey's case (supra) reference was made to the judgment of Lord Atkin in Sheonandan Prasad Singh v....