Simon Puraituk, Director, Papua New Guinea National Museum & Arts Gallery and the Board of Trustees of the Papua New Guinea National Museum & Arts Gallery v The Independent State of Papua New Guinea and Alfred Hagen, Director, Aero Archaeology Limited and Aero Archaeology Limited and Bismark Shipping Limited N3204

• Jurisdiction: Papua New Guinea
• Judge: Davani J
• Judgment Date: 14 September 2007
• Court: National Court
• Citation: (2007) N3204
• Docket Number: OS 839 OF 2006
• Year: 2007
• Judgement Number: N3204

Full Title: OS 839 OF 2006; Simon Puraituk, Director, Papua New Guinea National Museum & Arts Gallery and the Board of Trustees of the Papua New Guinea National Museum & Arts Gallery v The Independent State of Papua New Guinea and Alfred Hagen, Director, Aero Archaeology Limited and Aero Archaeology Limited and Bismark Shipping Limited N3204

National Court: Davani J

Judgment Delivered: 14 September 2007

N3204

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 839 OF 2006

BETWEEN:

SIMON PURAITUK, DIRECTOR, PAPUA NEW GUINEA NATIONAL MUSEUM & ARTS GALLERY

First Plaintiff

AND:

THE BOARD OF TRUSTEES OF THE PAPUA NEW GUINEA NATIONAL MUSEUM & ARTS GALLERY

Second Plaintiff

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Third Plaintiff

AND:

ALFRED HAGEN, DIRECTOR, AERO ARCHAEOLOGY LIMITED

First Defendant

AND:

AERO ARCHAEOLOGY LIMITED

Second Defendant

AND:

BISMARK SHIPPING LIMITED

Third Defendant

Waigani: Davani .J

2007: 31 July

14 September

PRACTICE AND PROCEDURE – Declarations – an equitable relief – limitations period – does not apply to equitable reliefs - s.16, s.18 of Frauds and Limitations.

PRACTICE AND PROCEDURE – Pleadings – issues of law including statutory, legal and equitable claims and defences – all available issues of law should arise and be pleaded on pleadings – Court to exercise discretion.

Cases Cited:

Papua New Guinea Cases

The Administration v Blasius Tirupia (re Vunapaladig and Japalik land) [1971-72] PNGLR 229;

Massive v Okuk and Kendarop [1985] PNGLR 263, SC 301;

NCDIC v Bogibada Holdings Pty Ltd [1987] PNGLR 135, N601;

Paul John v Gerd Lindhardt and Servicom Pty Limited (1999) N1938;

Manufacturers Council of Papua New Guinea Inc. v. Commissioner-General (2003) N2441.

Overseas Cases

Bruce v Oldhams Press Ltd [1936] 3 ALL ER 287;

London Passenger Transport Board v Moscrop [1942] 1 ALL ER 97;

Inwards v Baker [1965] 2 QB 29; [1965] 1 ALL ER 446;

ER Ives Investment Ltd v High [1967] 2 QB 379;

Crabb v Arun District Council [1975] 3 ALL ER 866;

Counsel:

D. Koeget, for the plaintiffs

V. Narokobi, for first and second defendants

DECISION

14 September, 2007

1. DAVANI .J: Before me is notice of motion filed on 10 May, 2007 by Narokobi Lawyers for and on behalf of the first and second defendants, seeking the following orders;

1. That the entire proceedings be dismissed as being statute-barred pursuant s. 16 (1) (a) of the Fraud and Limitations Act 1988 (‘Frauds Act’);

2. Alternatively, that the proceedings be dismissed pursuant to the doctrine of promissory estoppel;

3. Following granting of either of the above orders, the defendants are at liberty to export the “Swamp Ghost” and thereafter, plaintiffs, its servants and agents are to inform all State agencies to allow the Swamp Ghost’s export;

4. Costs and other orders.

2. The application is opposed by the plaintiffs. Both counsel rely on several affidavits which I will refer to throughout.

Background

3. The subject matter of these proceedings is a war relic, aircraft, described as a Boeing B-17E no. N.41-2446 otherwise known popularly as the “Swamp Ghost”. This war relic is a second World War US Air Force flying fortress. It was salvaged from the Agiambo swamp in the Oro province and transported to Lae where it is awaiting transportation to the United States of America.

4. The Swamp Ghost crash landed in the Agiambo swamp on 23 February, 1942 when it ran out of fuel after a bombing operation on a Japanese installation in Rabaul.

6. It lay in the Agiambo swamp for 64 years and was re-discovered by a Royal Australian Airforce Helicopter crew in 1972. Since then war veterans, aeroplane enthusiastics, historians and philanthropists have shown interest to salvage and restore the aircraft for display purposes. In 1999, the PNG National Museum and Arts Gallery entered into a Memorandum of Agreement (MOA) with a Californian based aircraft registration company known as Military Aircraft Restoration Corporation (‘MARC’) permitting it to salvage and remove the Swamp Ghost to the United States of America (‘USA’) to be restored for display purposes in the USA. This agreement was executed by Mr Soroi Eoe on behalf of the PNG National Museum and Arts Gallery, the first plaintiff in these proceedings. This Memorandum of Agreement is before the court attached to the affidavit of Camillus Narokobi, sworn on 17 November, 2006.

7. On 2 November, 2001, MARC entered into a Memorandum of Assignment with Aero Archaeology Ltd, a company based in Pennsylvania, USA. In that Memorandum of Assignment, the MARC assigned all its rights and obligations it had in the Swamp Ghost over to Aero Archaeology Ltd (‘AAL’). This Memorandum of Assignment was consented to by the PNG National Museum & Art Gallery.

8. On l0 November, 2005, the first plaintiff issued an Export Permit No. 05/007 to Mr. Alfred Hagen, the Director of AAL granting AAL approval to export the Swamp Ghost.

9. On 16 June 2006, AAL and a team of engineers, salvaged the Swamp Ghost, dismantled it and transported it to Lae, where the aircraft parts are stored in a container in the third defendants premises, awaiting export to the USA.

10. On 24 May, 2006, the Public Accounts Committee (PAC) made interim findings and held, amongst others, that the PNG National Museum & Art Gallery, immediately cease all dealings with foreign salvagers until a political decision is made concerning the export of “war surplus.” (see pg. 12 of annex. ‘C’ to Simon Puraituk’s affidavit sworn and filed on 13.11.06).

11. By letter of 23 May, 2006, the first plaintiff requested Mr. Alfred Hagen of Aero Archaeology Ltd and the Director General of the PNG Internal Revenue Commission to halt the export of the Swamp Ghost, pending deliberations and decision by the National Government on the fate of the Swamp Ghost.

12. By originating summons filed on 13 November, 2006, the plaintiff as the Director of Papua New Guinea National Museum and Art Gallery and the Board of Trustees of the PNG National Museum and Art Gallery, applied to the Court for Declarations that;

- The Board of Trustees of the PNG National Museum and Art Gallery do not have powers or authority to enter into a contract with Aero Archeology Limited, the second defendant, with respect to the sale of the Swamp Ghost;

- That the said Board of Trustees do not have power or authority to sell or dispose of State property which includes the Swamp Ghost;

- That the Memorandum of Agreement of 1999 executed between the Board of Trustees and the Military Aircraft Restoration Corporation is null and void and unenforceable in law;

- That consent given to the Memorandum of Assignment in 2001 executed between the Military Aircraft Restoration Corporation and Aero Archeology Limited by Mr Soroi Eoe, then director of the Board of Trustees of PNG National Museum and Art Gallery, is null and void and unenforceable in law;

- The Memorandum of Agreement of 1999 executed between the Board of Trustees of the PNG National Museum and Arts Gallery and Military Aircraft Restoration Corporation and consent given to the Memorandum of Assignment to 2001 executed between Military Aircraft Restoration Corporation and Aero Archeology Limited, by Mr Soroi Eoe the then Director of the Board of Trustees of PNG National Museum and Arts Gallery was in contravention with the procedures and processes under the Public Finance Management Act 1995.

- the Memorandum of Agreement 1999 executed between the Board of Trustees of PNG National Museum and Arts Gallery and Military Aircraft Restoration Corporation and the consent given to the Memorandum of Assignment of 2001 executed between Military Aircraft Restoration Corporation and Aero Archeology Limited by Mr. Soroi Eoe the then Director of the Board of Trustees of PNG National Museum and Arts Gallery, does not bind the State.

13. On 15 November, 2006, Narokobi Lawyers filed Notice of Intention to Defend these proceedings, for and on behalf of the first and second defendants.

14. On 20 November, 2006, Narokobi Lawyers filed Notice of Motion seeking orders that these proceedings be dismissed for failure to disclose a reasonable cause of action or alternatively, that security for costs be paid failing which proceedings will be dismissed. Other orders were also sought.

15. I do not know if that motion was moved, however, on 10 May, 2007, Narokobi Lawyers filed the motion which is now before me.

Application to dismiss and other orders sought

16. As stated above, the defendants seek to have the proceedings dismissed for being statute barred and in the alternative, dismissed, based on the doctrine of promissory estoppel and if granted, that the defendants will then export the Swamp Ghost.

17. The issues posed before the court are the following;

1. Whether the proceedings can be dismissed either under s. 16 (1) (a) of the Frauds and Limitations Act 1988 (‘Frauds Act’)), or alternatively

2. Whether the proceedings can be dismissed based on the doctrine of promissory estoppel.

18. I deal first with the first issue.

i. Is this claim statute barred? – Mr Narokobi submits that it is. He relies on s. 16 (1) of the Frauds Act. This provision reads;

“16. Limitation of actions in contract, tort, etc.

(1) Subject to...