In re Application of Peter Naroi [1983] PGNC 41; [1983] PNGLR 176; N420 (8 June 1983)

N420

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

RE: APPLICATION OF PETER NAROI

IN THE MATTER OF THE MINING ACT

AND IN THE MATTER OF A JUDGMENT OF THE MINING WARDEN DELIVERED ON 29 JANUARY 1976.

Waigani
Andrew J

15 March 1983
8 June 1983

PRACTICE AND PROCEDURE - National Court - Setting aside consent order - Consent order of Mining Warden’s Court - No appeal to National Court - Application to be made to court making order - When court should interfere.

JUDGMENTS AND ORDERS - Consent Order - Setting aside - By court making order - When court should interfere.

Held

There being no right of appeal from the Mining Warden’s Court where complaints are investigated with the consent of the parties under s. 134(2) of the Mining Act (Amalgamated) 1977, an application to set aside a consent order can only be made to the Mining Warden’s Court which made the order.

Observations on when a court should interfere to set aside an order based on a compromise.

Cases Cited

Marsden v. Marsden [1972] 2 All E.R. 1162.
Neale v. Gordon Lennox [1902] UKLawRpAC 38; [1902] A.C. 465.

Application

This was an application to set aside a consent order obtained in the Mining Warden’s Court.

Counsel:

I. Nwokolo, for the applicant.
J Fuller, for the respondent.
Cur. adv. vult.

8 June 1983

ANDREW J: The applicant seeks a declaration that a judgment pronounced by the Mining Warden’s Court at Panguna on 29 January 1976, was obtained in circumstances which render the same invalid and unenforceable. The plaintiff in those proceedings, Peter Naroi, was found to be the owner by purchase of land at Mokaruai on which he had planted large numbers of coconut and cocoa trees. The defendant, Bougainville Copper Ltd, was the holder of a special mining lease within the plaintiffs land.

Both parties were represented by counsel at the Mining Warden’s Court and an order was made by consent in the following terms:

"The defendant shall pay to the plaintiff the sum of K50,000 being compensation payable under Clause 15(d) of the Schedule to the Mining (Bougainville Copper Agreement) Act 1977, in full settlement of all claims by the plaintiff for damages to the land including the crops, bush fences, livestock, dwellings, trade store and other improvements (if any) therein and the loss of enjoyment thereof caused by the operation of the defendant."

The respondent, Bougainville Copper Ltd, submits that no appeal lies where consent is given to a decision of the Mining Warden and that consequently the National Court has no jurisdiction to entertain this application.

The Mining (Bougainville Copper Agreement) Act 1967, (Ch. No. 196), refers to the Mining Ordinance 1928-1966 of the Territory of New Guinea. That Act established Warden’s Courts and regulated their powers and procedures. The Act was repealed and replaced by the Mining Act (Amalgamated) 1977. Section 134(2) provides that the Warden may, with the consent of both parties investigate any complaint and by s. 134(2), where such consent is given, the decision of the Warden shall be final and there shall be no right of appeal.

The applicant, Peter Naroi, maintains that he never gave any instructions to any lawyer to act for him in relation to the negotiations he had been conducting with the respondent company for compensation payments. He says he gave no authority to the Public Solicitor to enter into any consent judgment. He agrees that he was present at the Mining Warden’s Court in January 1976, but that he was not a party. He thought the proceedings were about fish compensation and although he was shown a cheque for K50,000, he says that it was never given to him but was immediately banked by the respondent’s representative into the Panguna branch of the PNG Banking Corporation after the bank had closed and, he says, by special arrangement through the rear exit into the Bank.

In my judgment, this application should properly be brought before the Mining Warden’s Court. There is no right of appeal to the National Court. Where it is alleged that a compromise was entered into by counsel in excess of his authority that is properly a matter for the court which approved the compromise by making the order.

There are however, several serious allegations which have been made in this case particularly against counsel who appeared at the Mining Warden’s Court and because of this and because the matter has been argued before me, I think that it is appropriate that I review the authorities in this area for the guidance of the Mining Warden’s Court.

In regard to the circumstances in which the court should interfere to set aside an order based on a compromise, the authorities all show that the court should view such applications as this with extreme caution and that a court will not grant such an application except in a case which calls clearly for interference with the order made: See Marsden v. Marsden [1972] 2 All E.R. 1162; Watkins J in that case said (at 1165) that:

"It is a discretionary remedy to be exercised with care and with regard to the injustice or otherwise of allowing an order to stand. Applications have failed in the past although an applicant has been present in court and heard, without understanding them, the terms of the compromise announced. There are a number of other instances of non-interference by the courts which I do not think it necessary to mention. Some if not all of them were referred to in the House of Lords in Neale v. Gordon Lennox (1902) A.C. at 470, 471 where the Earl of Halsbury LC stated:

But when two parties seek as part of their arrangement the intervention of a Court of justice to say that something shall or shall not be done, although one of the parties to it is clearly not consenting to it, but has in the most distinct form said that the consent to refer — to take it from the jurisdiction of the ordinary tribunal — shall only be on certain terms, to say that any learned counsel can so far contradict what his client has said, and act without the authority of his client as to bind the Court itself, is a proposition which I certainly will never assent to. My Lords, it appears to me that that is decisive of this case. A great many cases have been quoted, but it seems to me that of every one of those it would be true to say that no Court has suggested that the Court had not the power to do such a thing. It has been said, ‘If you allow this, everybody would be making similar applications’. That is a policy. It has been said in such and such a case the parties were present in Court and did not immediately repudiate the transaction, and therefore we are not satisfied that they did not consent".

Watkins J in Marsden v. Marsden (supra) at 1166 continued:

"So far as I have been able to ascertain, in no case has the court interfered to set aside a consent order save at a time before the order of the court has been perfected .... I think it is well settled law that the court will not interfere at a time after perfection of the order".

In my view, this case is a good example of why such applications are treated with extreme caution and why they are rarely granted as a matter of policy. The applicant has made all sorts of allegations which are largely hearsay. Yet he has had the use of the K50,000 which he was awarded over seven years ago and is not complaining about this. He did nothing about the matter until three and a half years after the award. He was present at the court when the order was made and his story of the cheque being placed in his account after the bank was closed takes us into the realms of fantasy.

In my opinion, if he is to persist with the allegations against counsel then counsel should be entitled to be present or his evidence should be taken on commission and there should be appropriate undertakings as to security for costs.

I dismiss the application and order that the applicant pay the respondent’s costs.

Application dismissed.

______________________________

Lawyer for the applicant: I. Nwokolo.
Lawyer for the respondent: Gadens.