Simon Mali on His Own Behalf and as Representative of 30 other Members of Onepena Clan, Kagua, Southern Highlands Province and John Yasa on His Own Behalf and as Representative of 20 other Members of Ege Clan, Kagua, Southern Highlands Province and Porapae Pebaro on His Own Behalf and as Representative of 15 other Members of Yako Clan, Kagua, Southern Highlands Province v The Independent State of Papua New Guinea (2002) SC690

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J, Sakora J, Batari J
• Judgment Date: 03 April 2002
• Court: Supreme Court
• Citation: [2002] PNGLR 548
• Docket Number: SCA No10 of 2001
• Year: 2002
• Judgement Number: SC690

Full Title: SCA No10 of 2001; Simon Mali on His Own Behalf and as Representative of 30 other Members of Onepena Clan, Kagua, Southern Highlands Province and John Yasa on His Own Behalf and as Representative of 20 other Members of Ege Clan, Kagua, Southern Highlands Province and Porapae Pebaro on His Own Behalf and as Representative of 15 other Members of Yako Clan, Kagua, Southern Highlands Province v The Independent State of Papua New Guinea (2002) SC690

Supreme Court: Hinchliffe J, Sakora J, Batari J

Judgment Delivered: 3 April 2002

SC690

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 10 OF 2001

Between:

SIMON MALI on his own behalf and as representative of 30 other members of Onepena clan, Kagua, Southern Highlands Province

1st Appellant

And:

JOHN YASA on his own behalf and as representative of 20 other members of Ege clan, Kagua, Southern Highlands Province

2nd Appellant

And:

PORAPAE PEBARO on his own behalf and as representative of 15 other members of Yako clan, Kagua, Southern Highlands Province

3rd Appellant

And:

INDEPENDENT STATE OF PAPUA NEW GUINEA

Respondent

Waigani : Hinchliffe, Sakora & Batari JJ

2001 : 30th August

2002 : 3rd April

V. Mirupasi for the appellants.

R. Tuva for the respondent

3 April 2002

BY THE COURT: This is an appeal from the decision of Sheehan J handed down on 20 December 2000. In that decision the learned judge accepted the submissions of the respondent State and set aside Consent Orders that the appellants contend were ordered to be entered against the respondent on 7 July 2000. These orders, the appellants contend, authorised the entry of judgment in damages against the respondent in the sum of K279,616.45 inclusive of interest and costs.

The appellants, being aggrieved by the decision of the National Court, filed a Notice of Appeal on 24 January 2001, setting down a total of nine (9) grounds of appeal. Pursuant to an application for leave to appeal, leave was granted on 16 March 2001 (and entered 21 March 2001). We heard the appeal on 30 August 2001.

Out of the nine (9) stated grounds of appeal, a large number of which were, with respect, only repetitive, the issues raised by these for the court’s consideration and determination can be conveniently summarised as follows: Firstly, whether the judge erred in law and/or lacked jurisdiction when he entertained the application of the respondent, and subsequently granted the orders sought, wherein the 7 July 2000 orders were set aside. Secondly, if the court did have the necessary jurisdiction, circumstances did not exist such as to warrant the orders to be set aside. Thirdly, and finally, the procedural irregularities that the respondent raised and relied upon, and which the court accepted to found its decision, did not warrant the orders to be set aside, these being “consent orders”.

Factual background

The principal and named appellants, Messrs Simon Mali, John Yasa and Porapae Pebaro, instituted proceedings in what purported to be a class action suit (WS No. 840 of 1994) on 21 October 1994 against the respondent State. The State was sued for the acts and omissions of its servants or agents in conducting an illegal police raid in the respective villages of the appellants, causing what were alleged to be substantial damage to personal properties. The alleged incident was claimed to have taken place some six (6) years previously, on 27 November 1988.

Upon due service of the Writ of Summons on the defendant State, it had filed on its behalf a Notice of Intention to Defend on 7 November 1994. Subsequently no Defence was filed as required under O. 8, r. 4 of the National Court Rules (NCR), and the plaintiffs proceeded to apply for and were granted orders to enter judgment in default on liability against the State pursuant to O. 12, rr. 25, 26 and 28 NCR on 11 July 1995, with damages to be assessed.

The Court records and the documentation therein demonstrate that another five (5) years would elapse since default judgment for the plaintiffs/appellants to reactivate the proceedings to obtain the consent orders in question (on 7 July 2000). The Court below was of the opinion that this lapse of time (adding to the 12 years already since the incidents in question or cause of action arose) was “not all the fault of the State . . .” (p. 20 Transcripts, p. 113 Appeal Book).

After what the plaintiffs/appellants’ lawyers claim to have been “ongoing negotiations” with the Solicitor-General (as the lawyer for the defendant State) to settle the claim for damages, an offer by the State in a letter dated 22 June 2000 was accepted on behalf of the appellants pursuant to, it is claimed, standing instructions, on the same date (affidavit of Vincent Mirupasi sworn 2 November 2000, pp. 81 – 84, Appeal Book).

On Friday 7 July 2000, learned counsel for the appellants travelled to Mt Hagen and saw Justice Sheehan in Chambers where and when he, Mr Mirupasi, says the subject Consent Orders were endorsed by His Honour and entered on the same day by the Assistant Registrar. Following this, and seven (7) days later, a Certificate of Judgment was issued under the hand of the Solicitor-General. It would appear that subsequently, the State had filed on its behalf, a Notice of Motion dated 5 October 2000 seeking orders to have set aside both the Consent Orders of 7 July and the Certificate of Judgment dated 14 July 2000, and for the matter to be listed for trial on assessment of damages. This application was intended to be heard on 14 October 2000 in Mt Hagen; however, it eventually came before His Honour Justice Sheehan in Waigani on 20 December 2000 when he made the decision the subject of this appeal.

Preliminary Issue

As well as the claim for damages brought against the defendant State by the three (3) principal plaintiffs in the suit WS No. 840 of 1994 the subject of this appeal (supra), four (4) other proceedings had been commenced by Writ of Summons against the State by four (4) other principal plaintiffs on behalf of themselves and various unnamed others. These were adverted to at the hearing of the State’s application, and elaborated upon as: WS No. 842 of 1994, WS No. 843 of 1994, WS No. 844 of 1994 and WS No. 524 of 1995, the plaintiffs being Diaya Kambere and 30 others unnamed, Buka Mu and 97 unnamed others, Warea Wapi and 81 unnamed others, and Charles Luta and 160 unnamed others, respectively (pp. 2 – 3 transcripts, pp. 95 – 96 Appeal Book).

It was suggested then by learned counsel for the appellants that there had been agreement between the negotiating lawyers that the Consent Orders to settle the claim for damages be entered in respect of all five (5) proceedings. To this suggestion, His Honour said this (p. 17 transcripts, p. 110 Appeal Book):

All right. Right now you (Mr Mirupasi) are staring at the orders being set aside because the only judgment that I could have signed was in fact in favour of the plaintiffs that were named as at 11 July 1995. (our underlining).

The only named plaintiffs as at 11 July 1995 were the five (5) principal plaintiffs in the five (5) separate proceedings (supra). And it is not without significance that the only proceedings that was the subject of the 7 July 2000 Consent Orders was WS No. 840 of 1994, with the three (3) named principal plaintiffs as noted (supra). This is borne out by the 14 July 2000 Certificate of Judgment, as does also the appellants’ Notice of Motion (as plaintiffs) taken before Justice Sheehan in Chambers on 7 July 2000. And the defendant State’s application to set aside the Consent Orders (Notice of Motion dated 5 October 2000, supra) was in respect of this selfsame proceedings, and no other.

Further confirmation of this comes from the 11 July 1995 Default Judgment (p. 16 Appeal Book), in WS No. 840 of 1994 in respect of the three (3) named principal plaintiffs (supra). Despite this situation the lawyers for these appellants filed four (4) other appeals (SCA Nos. 11, 12, 13 and 14 of 2001) in respect of plaintiffs in the other four (4) proceedings (supra).

Mr Mirupasi of counsel for...