National Fisheries Authority v New Britain Resources Development Ltd

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn J
• Judgment Date: 12 August 2015
• Citation: (2015) N6078
• Court: National Court
• Year: 2015
• Judgement Number: N6078

Full : WS 475 of 2007; National Fisheries Authority v New Britain Resources Development Limited and East New Britain Provincial Government and The Independent State of Papua New Guinea and New Britain Resources Development Limited (First Cross-Claimant) and East New Britain Provincial Government (Second Cross-Claimant) and National Fisheries Authority (First Cross-Defendant) and The Independent State of Papua New Guinea (Second Cross-Defendant) (2015) N6078

National Court: Hartshorn J

Judgment Delivered: 12 August 2015

N6078

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS 475 of 2007

BETWEEN:

NATIONAL FISHERIES AUTHORITY

Plaintiff

AND

NEW BRITAIN RESOURCES

DEVELOPMENT LIMITED

First Defendant

AND

EAST NEW BRITAIN PROVINCIAL

GOVERNMENT

Second Defendant

AND

THE INDEPENDENT STATE OF

PAPUA NEW GUINEA

Third Defendant

AND

NEW BRITAIN RESOURCES

DEVELOPMENT LIMITED

First Cross-Claimant

AND

EAST NEW BRITAIN PROVINCIAL

GOVERNMENT

Second Cross-Claimant

AND

NATIONAL FISHERIES AUTHORITY

First Cross-Defendant

AND

THE INDEPENDENT STATE OF

PAPUA NEW GUINEA

Second Cross-Defendant

Waigani: Hartshorn J

2014: 3rd and 5th September

2015: 12th August

Application to set aside a judgment on the ground of fraud

Cases Cited:

Papua New Guinea Cases

Nil

Overseas Cases

AK Investment CJSC v. Krygyz Mobil Tel Ltd (PC) [2011] UKPC 7

Jonesco v. Beard [1930] AC 298

Kuwait Airways Corporation v. Iraqi Airways Corporation [2003] EWHC 31

Owens Bank Ltd v. Bracco [1992] 2 AC 443

Owens Bank Ltd v. Etoile Commerciale SA (1995) 1 WLR 44

Owens v. Noble [2010] EWCA 224

Re Munroe Schneider Associates (Inc) and Ors (1992) FCA 367

Three Rivers District Council v. Governor and Company of the Bank of England [2003] 2 AC 1

Wentworth v. Rogers (No 5) (1986) 6 NSWLR 534

Counsel:

Mr. G. M. Egan and Ms. M. Mai, for the Second Cross Defendant

Mr. I. R. Molloy and Mr. H. Leahy, for the Cross Claimants

12th August, 2015

1. HARTSHORN J: This is a decision on an application by the State, the second cross-defendant, to set aside a judgment that was entered against it in the cross claim in this proceeding on 24th October 2008 (judgment) on the ground that the judgment was obtained or procured by fraud.

2. The application is opposed by the cross claimants, New Britain Resources Development Ltd (NB Resources) and the East New Britain Provincial Government (ENBPG).

3. The application is made pursuant to Order 12 Rule 1 National Court Rules and s. 155 (4) Constitution. The cross claimants did not object to the jurisdictional basis upon which this application is made.

Background

4. The cross claimants and the State entered into an agreement to create an integrated fishing industry in East New Britain Province (Agreement).

5. Under the Agreement, NB Resources would construct a fish processing facility. The State agreed that when 75% of the first stage of the facility was built, NB Resources would be granted 20 fishing vessel licences. Although the necessary construction was purportedly completed, the licences were not issued.

This application

6. The State contends that the judgment should be set aside as amongst others:

a) at the time of the hearing of the motion for judgment before me, no reference was made in the written submissions handed up that NB Resources had not complied with its obligations under clause 3.2 of the Agreement;

b) as at 22nd July 2006 or thereafter, NB Resources had not achieved 75% of the construction of stage 1 as per the definition of “Stage 1” in the Agreement and NB Resources well knew this to be the case as at the date of the judgment on 24th October 2008;

c) NB Resources well knew that it had failed to satisfy most of the conditions precedent in the Agreement as at the date of the judgment;

d) Mr. Tseng on behalf of NB Resources fraudulently deposed that the State had no defence to the cross claim when he well knew that the cross claimants’ right to commence proceedings - the completion of 75% of stage 1 and the satisfying of conditions precedent - had not crystallised;

e) because of a( to d) above, the judgment was obtained by fraud and I was misled into ordering the judgment.

7. The cross claimants contend that the judgment should not be set aside as amongst others:

a) the evidence relied upon by the State in support of its application to set aside the judgment for fraud is not fresh evidence as is required;

b) there was no obligation upon the cross claimants to raise the matters now referred to by the State as the application for judgment was inter partes and any failure to raise the subject matters does not constitute fraud;

c) the allegations and particulars of the alleged fraud have not been properly and adequately drawn in the amended notice of motion . It has not been asserted that the alleged fraud is by non-disclosure or silence, that there was a duty of disclosure and that there was an intention to deceive. Further, the particulars of fraudulent intention have not been asserted;

d) if the application to set aside the judgment is not refused for the above reasons, then as to the merits of the matters that the State submits were not raised:

i) the cross claimants pleaded reliance upon the State’s breach of clause 4.8 (b) of the Agreement and so it was unnecessary to plead or prove 75% construction of stage 1 or the other preconditions;

ii) if there was a pre-requisite to the cross claim that 75% of stage 1 was to be constructed, there is evidence on behalf of the State that the construction did occur and a certificate was issued, and that the State would be liable to pay damages for breach of contract if the National Fisheries Authority continued to refuse to issue the fishing licences;

iii) the evidence concerning National Fisheries Authority details, land matters and the Investment Promotion Authority is all unsatisfactory. Further, it concerns matters that were not preconditions to the entitlement to fishing licences on execution of the Agreement;

iv) if there were preconditions requiring satisfaction, a party to a contract is not required to fulfil contractual obligations if the other party has breached the contract and manifested an intention not to perform.

Law

8. In Wentworth v. Rogers (No 5) (1986) 6 NSWLR 534, a case relied upon by both counsel, Kirby P set out the principles which were established by law relating to proceedings to have a judgment set aside on the ground that it was obtained by fraud. This case was adopted and applied in the Supreme Court case of Aircair Pty Ltd v. Co-Ordinated Air Services Pty Ltd [1988-89] PNGLR 549 and was referred to by Bredmeyer J as a very good review of some Australian and English authority. In Wentworth (supra), Kirby P, with whom Hope JA and Samuels JA concurred, at p538-539, stated a number of principles, “which are established by law”:

“First, the essence of the action is fraud. As in all actions based on fraud, particulars of the fraud claimed must be exactly given and the allegations must be established by the strict proof which such a charge requires: Jonesco v Beard [1930] AC 298 at 301; McHarg v Woods Radio Pty Ltd (at 497).

Secondly, it must be shown, by the party asserting that the judgment was procured by fraud, that there has been a new discovery of something material, in the sense that fresh facts have been found which, by themselves or in combination with previously known facts, would provide a reason for setting aside the judgment: see Lord Selbourne LC in Boswell v Coaks (No 2) (1894) 6 R 167 at 170, 174; 86 LT 365 at 366, 368; Cabassi v Vila (1940) 64 CLR 130 at 147; McDonald v McDonald (1965) 113 CLR 529 at 533; Everett v Ribbands (1946) 175 LT 143 at 145, 146; Birch v Birch [1902] P 130 at 136, 137-138; Ronald v Harper [1913] VLR 311 at 318. This rule has an ancient lineage : see, eg, Shedden v Patrick (1854) 1 Macq 535 at 615, 622; Halsbury’s Laws of England, 4th ed, vol 26, par 560 at 285. It is based upon a number of grounds. There is a public interest in finality of litigation. Parties ought not, by proceeding to impugn a judgment, to be permitted to relitigate matters which were the subject of the earlier proceedings which gave rise to the judgment. Especially should they not be so permitted, if they move on nothing more than the evidence upon which they have previously failed. …..

Thirdly, mere suspicion of fraud, raised by fresh facts later discovered, will not be sufficient to secure relief: Birch v Birch (at 136, 139); McHarg v Woods Radio Pty Ltd (at 498); Ronald v Harper (at 318). The claimant must establish that the new facts are so evidenced and so material that it is reasonably probable that the action will succeed. This rule is founded squarely in the public interest in finality of public litigation and in upholding judgments duly entered at the termination of proceedings in the courts.

Fourthly, although perjury by the successful party or a witness or witnesses may, if later discovered, warrant the setting aside of a judgment on the ground that it was procured by fraud, and although there may be exceptional cases where such proof of perjury could suffice, without more, to warrant...