Margaret Angui v Paul Wagun

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 17 January 2011
• Citation: (2011) N4194
• Court: National Court
• Year: 2011
• Judgement Number: N4194

Full : OS Nos 343 & 514 of 2009; Margaret Angui and Helen Angui v Paul Wagun, Public Curator Dorothy Angui, Michael Pukiasausa, John Kesie & Joseph Wanahau and the Independent State of Papua New Guinea (2011) N4194

National Court: Cannings J

Judgment Delivered: 17 January 2011

N4194

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NOS 343 & 514 OF 2009

MARGARET ANGUI

First Plaintiff

HELEN ANGUI

Second Plaintiff

V

PAUL WAGUN, PUBLIC CURATOR

First Defendant

DOROTHY ANGUI

Second Defendant

MICHAEL PUKIASAUSA, JOHN KESIE & JOSEPH WANAHAU

Third Defendants

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fourth Defendant

Kimbe: Cannings J

2010: 27, 28 January,

2011: 17 January

JUDGMENT

JUDICIAL REVIEW – application for judicial review of decision of Public Curator re administration of deceased estate – whether decision amenable to judicial review.

PUBLIC CURATOR – complaints against Public Curator – Public Curator Act, Section 34

The Public Curator made a decision in 2007 regarding the distribution of the assets of a deceased estate. In 2009 the Public Curator reconsidered his 2007 decision and indicated that he would amend it. The plaintiffs were granted leave to apply for judicial review of the 2009 decision on various grounds, including denial of natural justice and ultra vires (it being argued that the Public Curator acted contrary to the Wills, Probate and Administration Act, that he took into account irrelevant considerations etc). This was a hearing of the application for judicial review.

Held:

(1) At the hearing of an application for judicial review it is open to the court to determine the application by addressing issues that were not fully considered at the hearing of the application for leave.

(2) The application for judicial review was misconceived and premature as (a) the Public Curator did not in 2009 make a decision amenable to judicial review and (b) the plaintiffs did not exhaust their statutory remedies under Section 34 of the Public Curator Act.

(3) The application for judicial review was accordingly refused and the matter remitted to the Public Curator for reconsideration in light of observations of the Court arising from the issues argued before it.

Cases cited

The following cases are cited in the judgment:

Cecilia Bonny v Dorothy Amino (2009) N3591

Geno v The State [1993] PNGLR 220

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122

NTN v PTC [1987] PNGLR 70

Ombudsman Commission v Donohoe [1985] PNGLR 348

Richard Pagen v Ila Geno (2008) N4031

SCR No 41 of 2001; Application by Lawrence Bokele (2002) SC682

Young Wadau v PNG Harbours Board [1995] PNGLR 357

JUDICIAL REVIEW

This was an application for judicial review for a decision of the Public Curator regarding the distribution of assets of a deceased estate.

Counsel

J Unido, for the plaintiffs

J N K Popuna, for the 1st defendant

J Wanahau, for the 2nd & 3rd defendants

17 January, 2011

1. CANNINGS J: This case is about the estate of an East Sepik man, Willie Angui, who died in 2004. Mr Angui died intestate, ie without leaving a will. The primary asset he left behind is an oil palm block, Portion 911, Section 6, Sarakolok, near Kimbe. A dispute has been going on about who should get the block or more specifically about who is entitled to what share of the proceeds of his estate. Because he died intestate, the Public Curator has assumed the central role in resolving this dispute.

2. The plaintiffs, Margaret Angui and Helen Angui, are biological daughters of the late Mr Angui and they are aggrieved by what they claim to be a decision of the Public Curator in July 2009 to amend a decision he made in May 2007 regarding the estate. They applied for leave to seek judicial review of the Public Curator’s July 2009 decision. The National Court granted leave on 8 October 2009 and this is now the substantive judicial review.

THE ANGUI FAMILY

3. Willie Angui had three wives through customary marriage. His first wife (her name has not been adduced in evidence) is the plaintiffs’ biological mother. She and Mr Angui separated many years ago and she is now deceased. His second wife, a Tolai woman called Theresa, has no role in the present dispute as she and Mr Angui separated many years ago and she is also deceased. His third wife, Dorothy, is directly involved in the proceedings. She is the second defendant. She is the plaintiffs’ stepmother and she and the plaintiffs are at loggerheads.

4. Supporting Dorothy are the third defendants, Michael Pukiasausa, John Kesie and Joseph Wanahau. Michael and John are Dorothy’s biological sons. Joseph is her nephew. The late Mr Angui is not the biological father of either Michael or John. They are the late Mr Angui’s stepsons.

5. The late Mr Angui married Dorothy in 1982. He had by that time separated from Margaret and Helen’s mother and married Theresa. In 1987 he and his two wives, Theresa and Dorothy, moved on to the block at Sarakolok. Dorothy brought her two sons from previous marriages, Michael and John. After a while Theresa left the block and, according to Dorothy’s evidence, she and the late Mr Angui, and the two boys, Michael and John, set about developing it, building a home on it and planting and harvesting oil palm, which has since then yielded the family a regular income.

6. Dorothy says that it was only when their father died in 2004 that Margaret and Helen showed any interest in him or the block. They had been living in Morobe Province for many years, Dorothy says, and did not visit their father while he was alive or contribute towards development of the block.

THE PUBLIC CURATOR’S ROLE

7. The Public Curator became involved in the dispute in 2007 when Margaret went to Port Moresby and approached him regarding distribution of the assets of her late father’s estate. The Public Curator made a three-page written decision dated 3 May 2007, distributing the estate in three equal shares to Margaret, Helen and Dorothy.

8. Margaret and Helen say that Dorothy, Michael and John – who have continued to live on the block and harvest the oil palm – never took any notice of the May 2007 decision and refused them access to the block. This led them in 2009 to commence proceedings known as OS No 343 of 2009, by which they sought a court order to endorse the May 2007 decision of the Public Curator. Those proceedings have been joined and heard together with OS No 514 of 2009, the application for judicial review that is now before the court.

9. Relations between the parties were very strained during 2009.

10. On the one hand, Margaret and Helen were upset that the Public Curator’s May 2007 decision was not being followed and they were being denied access to the block.

11. On the other hand, Dorothy, Michael and John felt that the May 2007 decision was wrong as it did not recognise Michael and John and gave too much of the estate to Margaret and Helen who had contributed nothing to development of the block.

12. In early 2009 Dorothy’s nephew, Joseph (one of the third defendants) moved on to the block and became the spokesman for Dorothy, Michael and John. Joseph wrote a letter dated 14 February 2009 to the Public Curator, asking that he reconsider his May 2007 decision as it failed to take account of Michael and John’s interest in the block and the contribution they had made to its development.

13. Joseph’s letter had the desired effect as, in April 2009, the Public Curator, Mr Wagun, travelled to West New Britain, inspected the block, interviewed Dorothy, John, Michael and Joseph, and appeared to come to a different view of how the estate should be distributed.

14. On 10 July 2009, Mr Wagun wrote a letter to the statutory regulator, the Oil Palm Industry Corporation (OPIC), providing his altered view on the matter. The letter is a critical piece of evidence as it conveys the decision of the Public Curator, which is the subject of the judicial review. Before setting out the letter it is important to record one other development in 2009: Margaret and Helen had convinced OPIC that the block should be put under suspension. This meant there was no oil palm harvested and all payments pending were withheld pending resolution of the dispute.

15. That explains why Mr Wagun’s letter to OPIC was headed “Lifting of Suspension Block 911, Section 6, Sarakolok, Kimbe – Estate of Willie Angui”. Mr Wagun stated:

I wish to bring to your attention that the above matter is under review since my independent investigation to verify facts relating to an early decision I made in respect to this particular block. All my facts from the earlier decision was based on Margaret Angui’s side of the story which at that time appeared to be supported by the intestacy law.

After my investigations on the ground, I was saddened to discover that almost 80% of Margaret’s story was inconsistent with the truth I discovered whilst on the ground.

Whilst she is the biological daughter by law and her beneficial interest is not denied, her interest is subject also to other provisions of law relating to “equitable contribution”, a very important fact left...