Tulapi v Augerea [2022] PGNC 304; N9784 (28 July 2022)

N9784

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 70 OF 2020

DANIEL TULAPI
Plaintiff

V

IAN AUGEREA, REGISTRAR, NATIONAL COURT
Defendant

Waigani: Cannings J
2022: 30^th June, 15^th, 28^th July

JUDGMENTS AND ORDERS – draft consent order – whether necessary for draft consent order to be endorsed by the Court – whether Registrar obliged to sign, seal and enter draft order endorsed by the Court – manner of endorsement.

RES JUDICATA – whether proceedings commenced by originating summons that related to previous proceedings were res judicata in relation to the prior proceedings.

The plaintiff commenced proceedings against the defendant, the Registrar of the National Court, seeking declarations and orders regarding a draft consent order that he claimed had settled previous proceedings in his favour. The plaintiff argued that the National Court in the previous proceedings confirmed the draft consent order and that the Registrar was obliged to sign, seal and enter it but failed to do so. The plaintiff sought relief in three categories: (1) declarations and orders to confirm, endorse and enter the draft consent order; (2) orders that various other directions and orders made in the previous proceedings be enforced; and (3) declarations as to the facts supporting the terms of the draft consent order. The defendant opposed all relief sought by the plaintiff and argued a preliminary point that the proceedings were res judicata.

Held:

(1) Though the present proceedings were related to previous proceedings, the cause of action in the present proceedings was different to the cause of action in the previous proceedings. Therefore, the doctrine of res judicata did not apply.

(2) Unless and until a draft consent order is endorsed by a Judge, the Registrar is under no obligation and is not authorised to sign, seal or enter it.

(3) Here, the draft consent order was not endorsed by the Judge to whom it was presented, so the Registrar was under no obligation to sign, seal or enter it; and would have acted ultra vires had he done so.

(4) The first and primary relief sought by the plaintiff – declarations and orders to give effect to the draft consent order in the previous proceedings – was refused.

(5) As a matter of fact and law the previous proceedings had been dismissed, so the second category of relief sought by the plaintiff – orders that various other directions and orders made in the previous proceedings be enforced – was refused.

(6) It would not be appropriate to consider making declarations as to the facts supporting the terms of the draft consent order as those facts were only relevant to the relief sought in the previous proceedings. Therefore, the third category of relief sought by the plaintiff was refused.

(7) All claims for relief were refused and the proceedings were dismissed.

Cases Cited

The following cases are cited in the judgment.

GR Logging Ltd v Dotaona (2018) SC1690
Tulapi v Yer (2010) N4095
Tulapi v Yer (2019) N8170
Waluka v Taubuso (2009) N3848

Counsel

D Tulapi, the Plaintiff, in person
M Hane-Nou, for the Defendant

28^th July, 2022

1. CANNINGS J: The plaintiff, Daniel Tulapi, has commenced proceedings against the Registrar of the National Court, Ian Augerea, seeking declarations and orders regarding a draft consent order which, he claims, settled previous proceedings, OS 115 of 2010, in his favour.

2. OS 115 of 2010 was an originating summons filed on 17 March 2010 under which the plaintiff was seeking declarations as to the effect of monies paid to him pursuant to the orders of the Port Moresby District Court in proceedings commenced in the 1990s and orders as to calculation and payment of interest he claimed was due to him pursuant to the Port Moresby District Court orders (see Tulapi v Yer (2010) N4095).

3. The plaintiff argues that the National Court in OS 115 of 2010 on 4 July 2019 confirmed the draft consent order and that the Registrar was obliged to sign, seal and enter the order but has failed to do so.

ORIGINATING SUMMONS

4. The plaintiff seeks relief in three categories:

(1) declarations and orders to confirm, endorse and enter the draft consent order;

(2) orders that various other directions and orders in OS 115 of 2010 be enforced; and

(3) declarations as to the facts supporting the terms of the draft consent order.

5. That categorisation of relief is my understanding of what the plaintiff is trying to achieve in these proceedings, based on what is a rather complex originating summons. I now set out the originating summons verbatim, except for the numbers in square brackets at the end of each paragraph, which I have added to indicate the category of relief into which the remedy sought in the paragraph falls. It will be observed that the relief sought in most paragraphs is repetitious of what is sought in other paragraphs.

6. The originating summons states:

The Plaintiff claims orders and declarations that:

1. The National Court proceedings file number OS No. 155 of 2010 in the matter titled, Daniel Tulapi-vs-The State & 3 Others be reviewed by the court. [3]
   
2. An order that the directional court orders made by his Honour Dingake J in the proceedings OS No 115 of 2010 on 12^th April 2019 and the further orders made by Mr Justice Dingake on 14^th June 2019 be enforced forthwith by the court. [2]
   
3. The Court endorse and seal with the court seal the duly executed draft consent orders confirmed by the court on 4^th July 2019 and lodged by the plaintiff for court seal pursuant to Order 12 rule 18, 19, 20 and 21 of the National Court Rules. [1]
   
4. An order that proceedings OS No 115 of 2010 was settled by duly executed consent orders for court’s endorsement on 3^rd May 2019 between the State and Daniel Tulapi, the Plaintiff. [1]
   
5. A declaration that the court in OS No 115 of 2010 on 4^th July 2019 confirmed the duly executed consent orders between Daniel Tulapi (Plaintiff) and the State (Defendant) pursuant to the terms of the directional orders made on 14^th June 2019. [1]
   
6. An order pursuant to order 4 rule 33(b) of the National Court Rules that the court endorse and seal the draft consent orders pending sealing by the court Registry and Registrar. [1]
   
7. An order pursuant to order 4 rule 46 of the National Court Rules that the court enforce the directional orders made on 12^th April 2019 and order made on 14^th June 2019 and 4^th July 2019 respectively. [2]
   
8. An order that pursuant to Order 2 rule 9 and rule 10 that the court direct the Registrar and any clerk in the Court Registry to seal and file the draft consent orders for settlement duly executed between the plaintiff (Daniel Tulapi) and the State pursuant to court directional orders in the proceedings OS No 115 of 2010 to the benefits and in favour of Daniel Tulapi. [1]
   
9. An order pursuant to order 2 rule 9 and rule 10 that the court Registry file and seal the terms of the duly executed consent orders pending proceedings P.S No 115 of 2010, Daniel Tulapi-vs-The State. [1]
   
10. An order that the file OS No 115 of 2010 be joined together with this enforcement proceedings. [1]
    
11. An order pursuant to Order 12 rule 16, 17, 18, 19, 20 and rule 21 that the Registrar shall seal with the seal of the court the consent settlement orders duly executed between Daniel Tulapi Plaintiff and The State the defendant the consent settlement pursuant to the Claims By and Against the Sate act 1989 [sic]. [1]
    
12. An order pursuant to Order 12 rule 20(2) (b) that the judgment by consent be entered in terms of the consent orders lodged by the Plaintiff for court seal in the proceedings OS No 115 of 2010. [1]
    
13. A declaration that duly executed consent orders was entered into between the State and the Plaintiff to enforce the certificate of judgment endorsed by the Solicitor General under the Claims By and Against the State Act 1996 that directed and authorized the Secretary for Department of Finance to pay calculated interest under the Judicial Proceedings Interest (Debts & Damages) Act 1962. [3]
    
14. A declaration that the Secretary for Finance, Dr Ken Ngangan calculated interest in the sum of K4,926,880.00 payable to Daniel Tulapi the plaintiff pursuant to court order made by his Honour Gavara-Nanu J on 13^th October 2010 and pursuant to court orders made by their Honours Salika CJ on 14^th November 2006 in the proceedings OS No 118 of 1999 and orders made were made by Cannings J on 15^th July 2010 concerning the certificate of Judgement in proceedings DCC No 1620 of 1997 and OS No 118 of 1999 respectively. [3]
    
15. A declaration that Secretary for Department of Finance Ken Ngangan wrote to the Attorney General & Minister for Justice and Solicitor-General on 31^st October 2013 to clear administratively the payment of calculated interest sum of K4,926,880.00 to plaintiff Daniel Tulapi. [3]
    
16. A declaration that the Supreme Court cleared and clarified by Injia CJ as he then was that Secretary for Department of Finance pay calculated interest payable under the certificate of judgment in DCC No 1620 of 1997 and confirmed on OS No 118 of 1999 by Salika CJ. [3]
    
17. A declaration that the State and Plaintiff Daniel Tulapi under those circumstances duly executed the consent settlement orders for courts confirmation and endorsement pursuant to directional Court orders made by Dingake J. [1]
    
18. Any other order the court deems fit in the circumstances. [2]
    

DEFENDANT’S POSITION

7. The defendant opposes all relief sought by the plaintiff and argues as a preliminary point that the present proceedings are res judicata in relation to OS 115 of 2010. I will deal with the preliminary point first.

ARE THESE PROCEEDINGS RES JUDICATA?

8. Res judicata is a legal doctrine meaning ‘the case has already been decided’. If a defendant can show that the case against him has already been resolved in a previous case the new case can be dismissed as being res judicata. It is one way in which a case can be dismissed as an abuse of process.

9. Ms Hane-Nou, for the Registrar, submitted that the present case is another attempt by the plaintiff to secure judgment against the State emanating from proceedings against the State that he commenced in Port Moresby District Court in the 1990s. That was the subject matter of OS 115 of 2010, which was resolved by the final decision of the National Court per Justice Dingake of 4 October 2019. She submitted that the preconditions for application of res judicata, as set out by the Supreme Court in GR Logging Ltd v Dotaona (2018) SC1690, have been satisfied in that:

(1) the earlier decision of Dingake J in OS 115 of 2010 was judicial;

(2) the decision was pronounced;

(3) the decision-maker (the National Court) had jurisdiction over the parties and the subject matter;

(4) the decision was final and on the merits;

(5) the earlier decision determined the question that is raised in the present case (ie whether the State is liable to the plaintiff emanating from the proceedings he commenced in Port Moresby District Court); and

(6) the parties are, or are effectively, the same.

10. I have examined the order of Dingake J of 4 October 2019. It is a final order, disposing of OS 115 of 2010, reported in Tulapi v Yer (2019) N8170, which states:

1. The plaintiff/respondent is ordered not to file with this Court any proceedings based on the purported enforcement of District Court decision in Case No 1620 of 1997, which has been a subject of litigation and final judicial determination by this Court and or the Supreme Court.
2. The plaintiff/respondent should he wish to commence any proceedings related to the aforesaid District Court decision should first seek leave of this Court to do so and consequentially the Registrar of this Court or any registry staff member is prohibited from accepting filing of any proceedings related to the aforesaid District Court decision and which falls squarely within the orders granted by Sakora J, on the 16^th of February 2012 and the aforesaid decision on appeal made on the 29^th of August, 2013 by the Supreme Court (Batari, Gabi and Kassman JJ).
3. Pursuant to Order 12, rule 40 (1)(a)(b) and (c) of the National Court Rules and/or under Constitution Section 155(4) and/or the Court’s inherent power, the notices of motion filed by the plaintiff on 17^th of February, 2014, 30^th of June, 2014 (Doc Nos 53 and 54), 5^th of September, 2018 (Doc No 74), 19^th of October, 2018 (Doc No 79), be dismissed.
4. The defendant’s costs of and incidental of this application be paid by the plaintiff on a party-to-party scale.
5. No further proceedings bearing or related to this matter are to be instituted by the plaintiff in the Courts, until all previous Court Orders on costs, together with today’s in this Court have been fully complied with by the plaintiff.
   

11. I agree with the argument that five of the preconditions in GR Logging Ltd are satisfied. But one is not: number 5. Though the subject matter of the present case can be said to relate to OS 115 of 2010, the cause of action is different. The plaintiff’s principal contention in the present case is that the Registrar failed to perform a statutory duty to endorse an order of the National Court. The cause of action in OS 115 of 2010 was entirely different. Therefore res judicata does not apply. The preliminary point is refused.

12. I will now address each category of relief sought in the originating summons.

1. DECLARATIONS AND ORDERS TO CONFIRM, ENDORSE AND ENTER THE DRAFT CONSENT ORDER
   

13. The plaintiff’s principal propositions underlying this case, in particular his claim for declarations and orders to confirm, endorse and enter the draft consent order, are these:

(a) on 3 May 2019 he and the then Attorney-General, Hon Alfred Manase MP, agreed to settle OS 115 of 2010 and executed a two-page draft consent order;

(b) on 4 July 2019 the draft consent order was presented in Court to the presiding Judge, Dingake J;

(c) Dingake J confirmed the order and invited the plaintiff to progress the matter in accordance with the National Court Rules;

(d) the plaintiff presented the order to the Registrar, who was obliged to sign, seal and enter it, but the Registrar refused to do what he was obliged by the National Court Rules to do.

14. I will now test each of those propositions.

Proposition (a): on 3 May 2019 the plaintiff and the Attorney-General agreed to settle OS 115 of 2010 and executed a two-page draft consent order.

15. There is evidence before the Court of such an agreement and draft order, which is in the following terms:

PAPUA NEW GUINEA )

IN THE NATIONAL COURT )

OF JUSTICE AT WAIGANI )

OS NO 115 OF 2010

BETWEEN:

DANIEL TULAPI

Plaintiff

AND:

DR KEN NGANGAN

Secretary Department of Finance

First Defendant

AND:

CAROLINE JARUGA

Principal Legal Officer

Department of Finance

Second Defendant

AND:

TANUVASA TANUVASA [sic]

Solicitor General

Third Defendant

AND:

INDEPENDENT STATE OF PAPUA NEW GUINEA

c/o Attorney General & Minister for Justice Honourable Alfred Manase (MP)

Fourth Defendant

COURT ORDER BY CONSENT

THE COURT ORDERS THAT:

1. The sum of K4,926,880-00 (four million nine hundred and twenty six thousand and eight hundred and eighty kina) shall be paid by the first Defendant namely Secretary for Department of Finance (Ken Ngangan) forthwith pursuant to paragraph eight (8) of the Plaintiff’s notice of motion filed on 8^th February 2019 document No 91 on Court file.
   

Pursuant to the Certificate of Judgement shall be paid to the Plaintiff (Daniel Tulapi) forthwith pursuant to paragraph nine (9) of the Plaintiff’s notice of motion filed on 8^th February 2019, document No 91 of the Court file.

3. The first Defendant shall within 21 days take steps under Section 14(3) of the claims by and against the state act 1996 settle payment to the Plaintiff the sum of K4,926,880-00 and the sum of the K3,150,320.22 respectively pursuant to the Court Order for payment made by the Court on 13^th October, 2010 for payment and settlement by the Defendants to the plaintiff and pursuant to the Judicial proceedings (interest On Debts & Damages) Act.
   
   4. Costs be in the cause.

BY THE COURT

___________________

JUDGE

I, DANIEL TULAPI the Plaintiff consent to the within orders.

{SIGNED}

.....................................

DANIEL TULAPI

PLAINTIFF

Dated the 3^rd day of May, 2019

I, ALRED MANASE, Attorney General on behalf of the State and the defendants consent to the within orders.

{SIGNED}

......................................

Honourable Alfred Manase LLB MP

Attorney General & Minister for Justice

Dated 3^rd day of May 2019

16. The defendant does not concede that the above draft consent order is genuine. I am in no position to make findings of fact that would verify the genuineness of the document and the agreement purporting to have led to the signing of the draft consent order. For present purposes, I will assume, without finding, that the draft consent order is genuine.

Proposition (b): on 4 July 2019 the draft consent order was presented to Dingake J for endorsement.

17. This proposition is uncontested. The plaintiff presented the draft consent order of 3 May 2019 to Dingake J in the National Court on 4 July 2019. The proceedings before the Court were OS 115 of 2010.

Proposition (c): Dingake J confirmed the draft consent order and invited the plaintiff to progress the matter in accordance with the National Court Rules.

18. The second half of this proposition is correct: Dingake J invited the plaintiff to progress the matter, OS 115 of 2010, in accordance with the National Court Rules.

19. However the first half – that Dingake J confirmed the draft consent order – is not correct. I have examined the transcript of the proceedings on 4 July 2019. Dingake J had directed that OS 115 of 2010 return before him that day to assess whether the parties had a settlement that could be endorsed by the Court. The plaintiff appeared in person and informed his Honour that settlement had been reached. He presented the draft consent order dated 3 May 2019. The defendants were represented by Mr Kandi of M S Wagambie Lawyers who stated that he had not seen the draft consent order before and was in no position to say that it was genuine. The plaintiff challenged Mr Kandi’s right of appearance but his Honour overruled the plaintiff and was satisfied that Mr Kandi had the requisite authority.

20. The exchanges that occurred between bench and bar are recorded in the transcript. The relevant parts, leading to adjournment of OS 115 of 2010 to the registry, record what occurred between about 10.36 am and 10.47 am on 4 July 2019. The transcript states:

HIS HONOUR: Where is the consent order?

MR TULAPI: I got it, your Honour. I have got several documents to present to the court which is - - - -

HIS HONOUR: No, I just want the consent. Today was for purposes of confirming the status of the matter and endorsing any settlement that may have been reached by the parties.

MR TULAPI: Correct, your Honour.

HIS HONOUR: Where is the settlement agreement reached by the parties?

MR TULAPI: This is the settlement and this is my affidavit in support of the draft copy signed by the Attorney General.

HIS HONOUR: Mr Kandi?

MR KANDI: Yes, thank you.

HIS HONOUR: Do you act for the Attorney General?

MR KANDI: I act for the defendants who are named in these proceedings on instructions from the Attorney General.

HIS HONOUR: Yes, that is what I am saying.

MR KANDI: Yes.

HIS HONOUR: Your client has signed a settlement agreement?

MR KANDI: I am not aware of that unfortunately.

HIS HONOUR: You want to have a look at this?

MR KANDI: Yes, please. This will be the first time I will be - - - -

HIS HONOUR: There is a settlement agreement signed there by Mr Tulapi and the Attorney General, your client. Can you see that?

MR KANDI: I can but I cannot confirm the authenticity of these purported consent orders and I hand it back, your Honour.

HIS HONOUR: You have authority to act for the Attorney General?

MR KANDI: Yes, I have. Pursuant to a further order by this court on 5 December, the Attorney General did give a specific instruction on this particular matter and I have filed a - - - -

HIS HONOUR: Yes, is that the Attorney General who signed?

MR KANDI: That is the Attorney General, the Deputy Prime Minister now.

HIS HONOUR: Yes. But you see that Honourable Alfred Manase, Attorney General and Minister of Justice signed the settlement agreement, you see that?

MR KANDI: Yes, I see the signature.

HIS HONOUR: Your client?

MR KANDI: And I do not think that is my client’s signature.

HIS HONOUR: It is not the minister’s signature?

MR KANDI: It is not the minister’s signature.

HIS HONOUR: It is a fraud?

MR KANDI: Maybe. I have never been given the opportunity to discuss on that. This is the first time I am seeing and it is very interesting for myself and maybe for the court.

[10.40am] HIS HONOUR: Remind me again of your authority, where is it? Let me see a copy.

MR TULAPI: In due of course, I will be - - - -

HIS HONOUR: No, no.

MR TULAPI: - - - -objecting to his appearance.

HIS HONOUR: No, no, just have a seat.

MR KANDI: Your Honour would recall that he persisted that I produced - - - -

HIS HONOUR: Yes, I remember.

MR KANDI: - - - -this authority.

HIS HONOUR: I remember, yes.

MR KANDI: I did once.

HIS HONOUR: I am just trying to remind - - - -

MR KANDI: Yes, I did once.

HIS HONOUR: Fresh and - - - -

MR KANDI: And that was by the former Attorney General so he wanted a specific one from the current Attorney General.

HIS HONOUR: Yes.

MR KANDI: And this authority is annexure A to - - - -

HIS HONOUR: Annexure A?

MR KANDI: Rather, annexure B, your Honour.

HIS HONOUR: Annexure B.

MR KANDI: It is a brief out letter pursuant to section 7(i) of the Attorney-General Act.

HIS HONOUR: Yes.

MR KANDI: And brief-out dated 14 February 2019.

HIS HONOUR: Yes, I see that.

MR KANDI: Yes.

HIS HONOUR: Yes, I see it there.

MR KANDI: It is on this basis that I appear now.

HIS HONOUR: Yes.

MR KANDI: Previously, last time I did not appear because I did not have the – although I had the previous instruction from the former Attorney General, the person on the other side wanted a specific one from the current one. So this is the current authority that I have. Unless my friend says I have got to get something else from someone else.

HIS HONOUR: Mr Tulapi?

MR TULAPI: Yes, your Honour.

HIS HONOUR: Yes, I can hear you now.

MR TULAPI: I - - - -

HIS HONOUR: I am not going to spend too much time on this.

MR TULAPI: Yes, your Honour.

HIS HONOUR: You have – this matter is set down today to confirm, to endorse settlement agreement. The lawyer for the defendants duly instructed by the Attorney General is unaware of the settlement.

MR TULAPI: Your Honour - - - -

HIS HONOUR: And how do I endorse it when the other party says he has not settled?

MR TULAPI: Your Honour, I will be seeking orders from the court to compel the defendants to appear in court because he does not have the authority from the Attorney General. I have seen - - - -

HIS HONOUR: No, he does, I have seen the authority.

MR TULAPI: Yes, your Honour, I have seen that. It is purportedly signed on 14 February and, your Honour, this is not signed by the – the instructions are clear. He does not have the authority to act on behalf of the State, the Independent State of Papua New Guinea, the Attorney General. What it says here, your Honour, with due respect is, “I refer to the above matter. By virtue of my powers vested in me under section 7(i) of the Attorney-General Act 1989, I hereby formally engage your firm to act on behalf of the Secretary for Department of Finance in the above proceedings.” We have got several defendants in this proceeding. He does not act for the Attorney General. He has instructions to act for the Finance Secretary.

HIS HONOUR: From the Attorney General, where is the settlement of the parties?

MR TULAPI: The settlement has been settled by the Attorney General under the Attorney-General Act.

HIS HONOUR: And the same Attorney General who gave him authority?

MR TULAPI: It is not the same Attorney General.

HIS HONOUR: I mean the office, I am not talking individuals. The office, office.

MR TULAPI: The office of the Attorney General.

HIS HONOUR: Yes.

MR TULAPI: Yes, this authority is defective. Your Honour, with due respect, to me it appears to me that I have in fact – when I received this yesterday, I was served his affidavit yesterday I had gone to see the Attorney General who is now the Deputy Prime Minister; personally went and saw him and - - - -

HIS HONOUR: Very well, this is what I am going to order.

MR TULAPI: This is defective, your Honour, this is not an authority from the Attorney General.

HIS HONOUR: This is what I am going to order. I will not – I am not satisfied that the parties have settled and that there is anything for me to endorse given that - - - -

[10.45am]MR TULAPI: Your Honour, I am objecting to Mr Kandi’s appearance. The court cannot entertain Mr Kandi in this court and make any rulings yet because I am objecting to his appearance. He is – I am objecting.

HIS HONOUR: You are overruled. This is my order. Today’s matter was set down to confirm the status of the matter and endorse any settlements that may have been reached by the parties. I am not satisfied, having listened to Mr Tulapi for the plaintiff and Mr Kandi for the defendants that the parties have settled this matter and that there is any settlement to be endorsed. Consequently, I will adjourn this matter to the registry for the parties to progress the matter in terms of the rules.

MR TULAPI: Your Honour - - - -

HIS HONOUR: That is my order.

MR TULAPI: Yes, I understand. Your Honour, I am – the court must give me an opportunity to file an application to object. I am seeking an application.

HIS HONOUR: I am done with the matter, Mr Tulapi. I said you can proceed in terms of the rules to progress the matter so you do not need any authority for anything. You can progress the matter in terms of the rules.

MR TULAPI: Your Honour, this is the authority of the Attorney General.

HIS HONOUR: Anyway, that is - - - -

MR TULAPI: It is irrevocable, your Honour, this is a consent order.

HIS HONOUR: I am done with your matter, Mr Tulapi. If you proceed to argue with this court, you are subject to a contempt proceeding.

MR TULAPI: Yes, I do accept but, your Honour, the - - - -

HIS HONOUR: The order of the court has been made. You either obey it or disobey it and then there will be consequences for disobeying the authority of the court. If you are unhappy with the order of the court, you know what to do but that is my order.

MR TULAPI: To appeal?

HIS HONOUR: Yes. Yes, thank you, very much.

21. The following passage extracted from the transcript, bears repeating. His Honour states towards the end:

This is my order. Today’s matter was set down to confirm the status of the matter and endorse any settlements that may have been reached by the parties. I am not satisfied, having listened to Mr Tulapi for the plaintiff and Mr Kandi for the defendants that the parties have settled this matter and that there is any settlement to be endorsed. Consequently, I will adjourn this matter to the registry for the parties to progress the matter in terms of the Rules.

22. His Honour clearly stated that he was not satisfied that the parties had settled and that there was any settlement to be endorsed. His Honour adjourned the matter to the registry “for the parties to progress the matter in terms of the Rules”.

23. The plaintiff submitted before me that his Honour’s invitation to progress the matter in terms of the Rules was an indication that the draft consent order could be given effect by the Registrar. I reject that submission. His Honour was saying nothing of that sort.

24. The first part of proposition (c) – that Dingake J confirmed the draft consent order – is, I reiterate, rejected. Dingake J did not confirm or endorse the draft consent order in any way.

(d) The plaintiff presented the order to the Registrar, who was obliged to sign, seal and enter it, but the Registrar refused to do what he was obliged by the National Court Rules to do.

25. It is correct that the plaintiff presented the draft consent order, in the form of an order of the Court, to the Registrar for his signing, sealing and entry. It is not correct, however, that the Registrar was obliged to sign, seal and enter it.

26. I set out the proper and accepted procedure for the endorsement of draft consent orders in Waluka v Taubuso (2009) N3848 in the following way:

A judge to whom a draft consent order is presented has a discretion to exercise: to endorse or refuse to endorse the judgment. A draft consent order should only be endorsed when customary practices have been followed: written consent to the order, of all parties or their lawyers, must be evidenced by endorsement on a draft; the Judge should endorse the draft order; an application to enter a consent order should not usually be made ex parte or in chambers (Simon Mali v The State (2002) SC690). In my view, if one or more of the parties is a governmental body, the Judge should exercise considerable caution before endorsing the draft order by ensuring that the draft order has been approved and signed by the lawyer on the record for that governmental body. This is especially the case if public money is involved.

27. Unless and until a draft consent order is endorsed by a Judge, the Registrar is under no obligation and is not authorised to sign, seal or enter the draft order. In the present case the draft consent order had not been endorsed by Dingake J or any other Judge. The Registrar was under no obligation to sign, seal or enter it; and would have acted ultra vires had he done so.

28. Proposition (d) is rejected. It follows that I refuse to grant any of the first category of relief sought in the originating summons.

2. ORDERS THAT VARIOUS OTHER DIRECTIONS AND ORDERS IN OS 115 OF 2010 BE ENFORCED
   

29. As a matter of fact and law the previous proceedings, OS 115 of 2010, have been dismissed. It follows that the second category of relief sought by the plaintiff – orders that various other directions and orders made in OS 115 of 2010 be enforced – is refused.

3. ORDERS THAT VARIOUS OTHER DIRECTIONS AND ORDERS IN OS 115 OF 2010 BE ENFORCED
   

30. It would not be appropriate to consider making declarations as to the facts supporting the terms of the draft consent order as those facts were only relevant to the relief sought in OS 115 of 2010. Therefore, the third category of relief sought by the plaintiff is refused.

CONCLUSION

31. These proceedings will be entirely dismissed. Costs will follow the event.

ORDER

(1) All relief sought by the plaintiff is refused and the proceedings are dismissed.

(2) The plaintiff shall pay the costs of the proceedings to the defendant on a party-party basis, which shall, if not agreed, be taxed.

__________________________________________________________________
Legal Services Unit, National Judicial Staff Service: Lawyers for the Defendant