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Reference by Igo Namona Oala [2011] PGSC 30; SC1128 (26 October 2011)

SC1128


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SCR 05 OF 2010


REFERENCE PURSUANT TO CONSTITUTION SECTION 18(1)


In the matter of:
SECTIONS 5, 11, 12, 14, 105 & 132 OF THE LAND ACT 1996


AND:
SECTION 33(2) OF THE LAND REGISTRATION ACT 1981


AND:
SECTION 34N OF THE LAND REGISTRATION (CUSTOMARY LAND) AMENDMENT ACT 2009;


AND:
LAND GROUPS INCORPORATION (AMENDMENT) ACT 2009


REERENCE BY:
IGO NAMONA OALA & OALA MOI


Waigani: Davani, J
2011: 28th September
26th October


Facts


The reference arises from proceedings in the National Court said to involve questions of constitutional interpretation. The State was given leave to intervene on the application of the Attorney General. Subsequently the Minister for Minerals and Energy sought leave to intervene and be represented by counsel instructed by him.


Held


  1. When the State is a party in litigation it is only the Attorney General you can instruct on behalf of the State. The Solicitor General "shall" act as advocate for the State if instructed by the Attorney General or the Attorney General can instruct another lawyer: Attorney General Act s13(2), at [39];
  2. Lawyers cannot appear for the State unless instructed by the Attorney General, at [59]; (obiter, at [48]):
  3. (a) the discretion to grant leave to intervene is a very wide one;
  1. the applicant must have a substantial interest in the issues to be decided in the case;
  1. it can be either a direct interest, in that the decision of the Court could immediately and directly affect the interest of the applicant to maintain or abrogate some particular right, power or immunity, or;
  1. the decision will bind another jurisdiction where the applicant is about to be a party in proceedings involving the same legal principles;
  2. the applicant's position/submissions should contribute new or fuller aspects to the issues, and not simply be repetitive of the submission of someone who is already a party;
  3. leave to intervene can be restricted to particular issues of interest to the applicant.

Counsel:


Mr P. Donigi, for Referrors
Mr D. Wood, for proposed Intervenor, the Attorney-General
Ms D. Doiwa, for proposed Intervenor, William Duma, Minister for Petroleum & Energy


DECISION


26th October, 2011


  1. DAVANI .J: Before me is a Reference under s.18(1) of the Constitution filed on 19th July, 2010 by Warner Shand Lawyers for Referrors Igo Namona Oala and Oala Moi ('Referrors'). Both Igo Namona Oala and Oala Moi have posed some questions for interpretation by the Supreme Court. Igo Namona Oala is a member of the Iduata Gubarei No.
  2. 2 Clan of Boera Village and Oala Moi is a member of the Koke Gubarei No. 1 Clan of Boera Village, both within the Hiri District of Central Province, Papua New Guinea.

Questions for determination by the Supreme Court


  1. Below are the questions for interpretation by the Supreme Court, which are;

a. Is Section 5 of the Land Act 1996 contrary to Section 53 of the Constitution and therefore void and of no effect?


b. Does an application under Sections 11 and 102 of the Land Act 1996 take precedence over a declaration/notice by the Minister under Section 5 of the said Land Act and if so is a declaration under Section 5 of the said Land Act and subsequent grant of the State Lease over Portion 2458 a compulsory acquisition of rights of the applicants created under Sections 11 and 102 of the said Land Act, and therefore:


  1. is contrary to Section 53 of the Constitution?
  2. is harsh and oppressive under Section 41 of the Constitution?
  3. is a termination of the right to privacy of the Referrors and Peter Donigi as the designer of the Donigi Plan for registering customary land contrary to Section 49 of the Constitution?
  4. is discriminatory against the Referrors and contrary to Section 55 of the Constitution and therefore void and of no effect?
  5. If the answer to either questions (a) or (b) above is in the affirmative, does it make all land titles issued by the Minister for Lands and Physical Planning over customary land in the exercise of his powers under Section 5 of the Land Act 1996 void and of no effect?
  1. Are Sections 5 and 132 of the Land Act 1996 laws that comply with Section 38 of the Constitution, and if not, are they void and of no effect?
  2. Is Section 12 of the Land Act 1996 limited to interests in land that is subject of State Leases or does it also apply to customary land? If it applies to customary land, is it then:
    1. contrary to Section 53 of the Constitution, and/or
    2. a law that does not comply with Section 38 of the Constitution; and

therefore void and of no effect?


  1. Is Section 14 of the Land Act 1996 limited in interests in land that is subject of State Leases or does it also apply to customary land? If it applies to customary land, is it then:
    1. contrary to Section 53 of the Constitution; and/or
    2. a law that does not comply with Section 38 of the Constitution, and

therefore void and of no effect?


  1. Is Section 132 of the Land Act 1996 contrary to one or all of Sections 32, 41, 49, 53 and 55 of the Constitution and therefore void and of no effect?
  2. In so far as Section 33(2) of the Land Registration Act 1981 have the effect of terminating prior customary rights and interests of the Referrors in Portions 2457 and 2458 is it contrary to Section 53 of the Constitution and therefore void and of no effect?
  3. Is Section 34N of the Land Registration (Customary Land) (Amendment) Act 2009 in so far as it terminates customary rights and interests in the subject customary land contrary to Sections 38 and 53 of the Constitution and therefore void and of no effect?
  4. Is Clause 12 of the Pro forma Constitution of Incorporated Land Groups provided for in the Seventh Schedule to the Land Groups Incorporation (Amendment) Act 2009 (Passed by Parliament but yet to be certified by the Speaker) which terminates the application of customary law, contrary to Sections 38 and 53 of the Constitution and therefore void and of no effect?

The National Court proceedings from which the Reference arises


  1. OS 485 of 2009 are the proceedings from which the Reference arises. In the National Court proceedings, Namona Oala and Moi Eno are both named as third and fourth plaintiffs. The first and second plaintiffs respectively are Boera Development Corporation Ltd and Apau Besena Company Ltd. Pepi Kimas as delegate of the Minister for Lands and the Independent State of Papua New Guinea are named as first and second defendants respectively.
  2. In the National Court proceedings, the plaintiffs seek the following orders;

1. Leave to be granted to the Plaintiffs/Applicants for judicial review pursuant to Order 16 Rule 3 of the National Court Rules.


2. A Declaration that Section 5 of the Land Act 1996, is contrary to one or all of Sections 32, 41, 49, 53 and 55 of the National Constitution and is therefore unconstitutional.


3. A declaration that the Notice published by the First Defendant in the National Gazette No. G70 dated Friday 17 April 2009 over the land described in the First Schedule hereto under Section 5 of the Land Act 1996 is contrary to one or all of Sections 32, 41, 49, 53, 55, 59, 60, 61 and 62 of the National Constitution and is therefore unconstitutional.


4. A Declaration that Section 132 of the Land Act 1996, is contrary to one or all of Sections 32, 41, 49, 53 and 55 of the National Constitution and therefore unconstitutional.


5. A Declaration that Sections 5 and 132 of the Land Act 1996 are not laws that comply with Section 38 of the Constitution.


6. A Declaration that the Plaintiffs, subject to the registration of their survey plan under the Survey Act 1969, are free to enter into any commercial arrangements or agreements with any third party developers or investors in respect to the said land.


7. Further and in the alternative:


a. A Declaration that the First Defendant lacks jurisdiction or power to publish a Section 5 Notice on receipt of the Application by the Plaintiffs for a lease and lease back under Sections 11 and 102 of the Land Act 1996 over a larger portion of land described in the Second Schedule hereto and which encloses and contains within its boundaries the land described as Portion 2458C, the subject of the Section 5 Notice;


b. A Declaration that the First Defendant is stopped from making a Section 5 Notice in respect to land described as Portion 2458C on receipt of the Sections 11 and 102 application for a leave and lease back by the Plaintiffs; and


8. An Order that the First and Second Defendants cause to be registered under the Survey Act 1969, the Survey Plan lodged by the Plaintiffs over the said subject land.


9. An Order that the First and Second Defendants cause to be issued to the First and Second Plaintiffs/Applicants a State Lease over the land described in the Second Schedule under Sections 11 and 102 of the Land Act 1996.


10. An Order that the Defendants pay the costs of and incidental to these proceedings.


11. Such further and other Orders as the Honourable Court deems fit."


  1. On 13th October, 2009, the National Court gave leave to the Referrors to apply for judicial review.
  2. On 19th October, 2009, the defendants in the Judicial Review proceedings filed an Application for Leave to Appeal against the grant of leave for judicial review, SCA 154 of 2009.
  3. On 20 April, 2010, the Supreme Court gave leave to the defendants to appeal and a stay of the National Court proceeding pending determination of the appeal.
  4. On 7th May, 2010, following the grant of leave in Appeal SCA 154 of 2009, the applicants filed their Appeal, SCM 6 of 2010. These proceedings are before the Supreme Court, yet to be determined.

Application to Intervene by the Attorney-General


  1. On 27th September, 2011, the Attorney-General filed an Application to Intervene seeking orders pursuant to O.4 r.19 of the Supreme Court Rules ('SCR') that the Independent State of Papua New Guinea (the 'State') be granted leave to intervene in the proceedings. O.4 r.19 of the SCR reads;

"19. Before a reference has been set down for hearing, any person who has an interest in the proceedings may make application to the Court or to a Judge for leave to intervene."


  1. It is necessary that I set out in full the grounds of that Application. They read;

1. For an order pursuant to Order 4 Rule 19 of the Supreme Court Rules that the Independent State of Papua New Guinea (the State) be granted leave to intervene in this proceeding.


2. The grounds for the application are that:


(a) The State has a direct interest in that it and/or its servants, agents or officers have the responsibility of enforcing and administering the laws the subject of the so-called Reference.


(b) The State and the Secretary of the Department of Lands and Physical Planning are parties to the National Court proceeding OS 485 of 2009, commenced by the Referrers and others, in which the Constitutional issues the subject of this Supreme Court Reference arise.


(c) On 19 November 2009, the State and Mr Pepi Kimas as delegate of the Minister for Lands filed an Application for Leave to Appeal in SCA No. 154 of 2009 (the AFL) against the decision of Justice Gavara-Nanu on 13 October 2009 in National Court proceeding OS 485 of 2009, in which His Honour granted leave to the plaintiffs to apply for Judicial Review of the Minister's decision to acquire land pursuant to a Section 5 Notice under the Land Act 1996.


(d) On 30 April 2010, the State and Mr Pepi Kimas as delegate for the Minister for Lands in SCA No. 154 of 2009 were granted leave to appeal the decision in National Court proceeding OS 485 of 2009.


(e) Following the grant of the AFL, the applicants filed an appeal by way of Notice of Motion in SCM 06 of 2010 which is pending hearing before the Supreme Court.


3. The affidavit in support of this Application is sworn by Dr Allan Marat on 27 September 2011.


Consent Order to Intervene


  1. On 28th September, 2011, I endorsed Consent Orders consented to by the lawyer for the Referrors and the lawyer for the Independent State of Papua New Guinea, the effect of which orders were that the Independent State of Papua New Guinea be granted leave to intervene in this Reference moving on Application filed on 27th September, 2011. The State's lawyer representing the Attorney-General is Blake Dawson Lawyers.

Objections to Competency of Reference SCR 1 of 2011


  1. Before the Court also is an Application for Directions filed on 27th September, 2011 by Posman Kua Aisi Lawyers, for and on behalf of the third intervenors in proceedings SCR 01 of 2011, MCC Ramu Nicco Ltd. The Application for Directions was deferred and adjourned to after my decision in this Application to Intervene.

Application to Intervene by Minister William Duma, Minister for Petroleum & Energy ('Minister Duma')


  1. On 21st September, 2011, Makap Lawyers filed an Application for and on behalf of Minister Duma to intervene in this Reference. This Application is opposed by the Referrors, through Mr Donigi of Warner Shand Lawyers.
  2. The grounds in support of the Application to Intervene are as follows;

1. For leave to be granted to Honourable William Duma, Minister, Department of Petroleum & Energy to intervene pursuant to Order 4, Rule 19 of the Supreme Court Rules.


2. Grounds relied upon are:


a. The Applicant has an interest in these proceedings as the State Minister responsible for the Petroleum & Energy sector and accordingly is responsible for overseeing the policy, administration and regulation of the Petroleum & Energy sector which extends to the Land Act, Land Registration Act and Land Groups Incorporation Act in so far as the State's and landowners' interests and benefits arising from the extraction and development of petroleum are concerned;


b. The Applicant has an interest in these proceedings as the State's political head and representative in the Petroleum & Energy sector who is responsible for overseeing and administering State policy in the industry; and


c. The Applicant was identified as a potential intervenor by the Court on 14th March 2011 and the Referrers were directed to serve the originating process on the Applicant;


  1. Minister Duma has filed affidavits which depose to and support his contentions that he should be made a party to this Reference.
  2. I note also another Application filed on 14th September, 2011 by Makap Lawyers which is also an Application for Leave to Intervene by the Minister, albeit brief, comprising one paragraph only. This application was not mentioned by Ms Doiwa for Minister Duma, so I take it this application will not be moved as it has been overtaken by the more lengthier application filed on 21st September, 2011.
  3. In his affidavit sworn on 27th September, 2001, Minister Duma deposes that as the political representative of the National Government overseeing the Petroleum & Energy sector in the country, his co-responsibilities, amongst others, include the oversight, administering and implementation of the National Government's policy within the Petroleum & Energy industry. He deposes that he is also responsible for administering and ensuring compliance of the Oil and Gas Act and compliance with that Act by the Petroleum developers and facilitators.
  4. He deposes further that he is also responsible for negotiating and developing the State's Petroleum related interests and directly represents the State in negotiating with and contracting developers and facilitators of Petroleum resources which are the State's properties. He deposes at par.5 of his affidavit that;

5. In relation to these proceedings, I wish to be joined as an Intervener for the following reasons:


  1. I am aware that Portions 2457 and 2458 are registered to Esso Highlands Limited and within those portions, Esso Highlands Limited carries out petroleum development operations and activities which are directly related to the PNG LNG Project which my Ministry and the Department of Petroleum and Energy are directly responsible for;
  2. This Reference challenges the validity of a declaration of land that was recognised as land now registered to Esso Highlands Limited, land that is crucial to the PNG LNG Project and development agreements between the projects would affect the State's interests in the PNG LNG Project but also leave the State open to suit by its contracted developers;
  1. The outcome of these proceedings will have direct implications on the Minister and Department of Petroleum & Energy in the event that declaration of State land is revoked and land declared as State land may in retrospect also come into question for which many petroleum activities are and have been conducted; and
  1. On 14th February 2011, this Court has recognized me as a potential intervener in these proceedings and directed the Referrers to serve the originating process on my Office to enable me to join these proceedings."

The Application to Intervene by Minister Duma and the objections raised by the Referrors


  1. In the application to intervene, the Attorney-General through his lawyers, neither support nor oppose the application by Minister Duma. The Referrors oppose the application, submitting that the Attorney-General is the only appropriate person or entity to represent the State's interest.
  2. The Referrors submit that Minister Duma does not have sufficient interest and is not the correct party to represent the State and/or the Department of Petroleum & Energy. Mr Donigi for the Referrors submits that the Minister for Lands & Physical Planning does have sufficient interest and standing, however, not Minister Duma.
  3. He submits that the difference between the two is that SCR 05 of 2010 raises questions that relate directly to the exercise of Ministerial power under certain provisions of the Lands Act 1996. That SCR 05 of 2010 does not raise any questions in relation to direct exercise of any powers of the Minister for Petroleum & Energy under the Oil and Gas Act 1998.
  4. Mr Donigi for the Referrors submits that the Attorney-General is the only correct party because he is the Principal Legal Advisor to the State as confirmed by s.3 of the Attorney-General Act. This section reads;

"3. ATTORNEY-GENERAL TO BE PRINCIPAL LEGAL ADVISOR


For the purpose of Section 156(2) of the Constitution, the Attorney-General is the principal legal advisor to the National Executive Council."


  1. Section 7 of the Attorney-General Act provides for the duties, functions and responsibilities of the Attorney-General. It reads;

"7. DUTIES, FUNCTIONS AND RESPONSIBILITIES OF THE ATTORNEY-GENERAL


The duties, functions and responsibilities of the Attorney-General are –


(a) in accordance with Section 8, to carry out the duties of the principal legal advisor to the National Executive Council and related duties; and

(b) to exercise the duties, functions and responsibilities conferred upon the Attorney-General or upon the principal legal advisor by the Constitutional Lawyers and Acts; and

(c) to exercise the functions vested in the Office of the Attorney-General by virtue of the underlying law including the bringing of proceedings known as relator proceedings; and

(d) to exercise powers delegated to him by the National Executive Council or a Committee of the National Executive Council; and

(e) in accordance with Section 10, to appoint a lawyer to be the Solicitor-General; and

(f) in accordance with Section 13, to review any decision of the Public Solicitor to refuse legal aid and assistance to a person and to grant such aid and assistance in his absolute discretion following a review; and

(g) in accordance with Section 15, to grant a certificate that a barrister or solicitor practising outside the country is authorized to appear before the National and Supreme Courts; and

(h) in accordance with Section 16, to grant a certificate to investment Promotion Authority that –

(i) a lawyer who is a non-citizen may commence practice as a lawyer in the country; and

(ii) a firm of lawyers registered as a foreign enterprise under the Investment Promotion Act 1992 may continue to practise as lawyers in the country; and


(j) to instruct lawyers within or outside the country to appear for the State in any matter; and

(k) to recommend to the Minister responsible for finance matters the payment by the State of an ex gratia sum of money in cases where the State is not under a legal liability but where it appears nevertheless that the State should compensate a person as an act of grace."
  1. Section 8 of the Attorney-General Act provides the ambit and powers of the Attorney-General. It reads;

"8. LEGAL ADVICE AND OPINION


(1) The Attorney-General, as the principal legal adviser, shall tender legal advice and opinion to the National Executive following a request to do so and shall of his own initiative give such advice where it appears to him necessary or appropriate for legal advice to be given on a matter.

(2) The Attorney-General may tender or offer legal advice or opinion to the National Executive Council on a matter coming before the Council.

(3) The Attorney-General may tender or offer legal advice or opinion to a Minister on a matter relating to the portfolio of that Minister.

(4) On matters affecting the conduct of the business of the State where legal issues arise or might arise, legal advice shall be provided by the Attorney-General, either in his capacity as principal legal adviser to the National Executive or under Subsection (2) or (3) to the exclusion of all other lawyers unless the Attorney-General, in his absolute discretion, authorizes the giving of legal advice by any other person."
  1. The other submission raised by the Referror is that Makap Lawyers was not properly authorised by the Attorney-General to appear for and on behalf of the State. I consider this to be a preliminary threshold issue and which I will consider first.
  2. The issues for determination by this Court are;

and relatedly,


(b) Whether Minister Duma can represent the State's interest in this matter?

First Issue - Can Minister Duma apply to intervene in this matter without firstly being briefed or authorised by the Attorney-General, to do so?


  1. Mr Donigi submits that Minister Duma should not be a party to the proceedings because, rightfully, it should be the State represented by the Attorney-General. He submits that no other Minister has standing to represent the State in that the Minister, as a member of the National Executive, has no powers except those that are allocated to him under legislation. Mr Donigi submits further that it is not sufficient for Minister Duma to state or depose as he did at par.3 of his affidavit, sworn on 12th September, 2011 and filed on 14th September, 2011 that "I have engaged Makap Lawyers to act on my behalf and this engagement has been ratified by the Attorney-General". (my emphasis)
  2. Mr Donigi submits that this statement implies that Minister Duma has the power to appoint Makap Lawyers and that the power of the Attorney-General is merely those of ratification, done by the Minister's letter of appointment of lawyers. He submits that this is contrary to s.7(i) of the Attorney-General Act.
  3. Mr Donigi submits further that Minister Duma must satisfy the Court that he has statutory powers to;
  4. What did Minister Duma mean when he used the word 'ratified' in his affidavit?
  5. The word 'ratified' carries with it a technical legal definition. Stroud's Judicial Dictionary defines it as;

"Ratification requires;


(a) That the agent's act must be one in the doing of which he purports to act for his principal;

(b) The act must be of a kind which the agent was at the time empowered to do for his principal;

(c) At the time of the ratification, the principal must have had the legal capacity of doing the act himself (per Wright .J Firth v. Steines [1897] 2QB 70; the second of these requirements was regarded as not essential by the majority Court of Appeal (Durant v. Roberts [1900] 1QB 629) but that case was reversed in House of Lords (sub nom Keighley v. Durant [1901] UKLawRpAC 21; [1901] AC 240)..."
  1. I interpret the second leg of the definition to mean that Minister Duma must be empowered to do the act of engaging Makap Lawyers for and on behalf of the Attorney-General which the Attorney-General will then ratify. Is that the general scheme of the Attorney-General Act?
  2. The law relating to the ability of the Independent State of Papua New Guinea to sue and be sued, is found in the "Acts of Parliament" (see s.247(2) of the Constitution). The two relevant Acts are the Attorney-General Act and Claims By and Against the State Act. I have already set out the relevant provisions of the Attorney-General Act.
    1. The Attorney-General is given the power to instruct any lawyer to act for the State (s.7(i) of the Attorney-General Act). This power is to be read together with s.13 of the Attorney-General Act which provides for the functions of the Solicitor-General and which reads at s.13(3) and (4) that;

"(3). The primary function of the Solicitor-General is to appear as an Advocate for the State in matters coming before the Courts in Papua New Guinea.


(4) In the exercise of his functions under sub-section (1), the Solicitor-General shall accept instructions only from the Attorney-General."

(my emphasis)


  1. The issue of representation for and on behalf of the State in any litigation or "in any matter" (s.7(i) of the Attorney-General Act) was decided in the State v. Zachary Gelu, Solicitor-General and Manoburn Earthmoving Limited (2003) SC 716. In that case, the Supreme Court after considering all the relevant provisions of the Attorney-General Act, the Constitution and the Claims By and Against the State Act, held that in exercising the primary statutory function of appearing as an advocate for the State in matters before the Courts, the Solicitor-General must accept instructions from the Attorney-General who is the Principal Legal Advisor to the National Executive. The Supreme Court said at pg. 12;

"Alternatively, the Attorney-General may in the exercise of his discretion instruct any lawyer within or outside the country to act for the State (s.7(i) of the Attorney-General Act)." (my emphasis)


  1. The Supreme Court said further at pg.14;

"It is clear from the provisions we have examined that the Attorney-General is the Principal Legal Advisor who represents the interests of the State in terms of legal advice or opinion and where the State is a party before the Courts..."

(my emphasis)


  1. The Supreme Court also found and held that by s.4 of the Claims By and Against the State Act, that the Attorney General may bring suits on behalf of the State in the National Court and the District Court or in the case of the District Court, by any person appointed for that purpose by the Minister (pg.14).
  2. Finally, the Supreme Court held that the provisions of the Attorney-General Act "... are clear in their terms" (pg.17) and that it was not necessary to resort to principles of statutory interpretation where the language of legislation is unclear. They found that the both legislations did not fall within the "unclear" category (pg.17).
  3. Therefore, to answer the first issue, in practice, where the State is a party in any litigation before the Courts, the Solicitor-General "shall" act as an Advocate for the State if instructed to do so by the Attorney-General in accordance with s.13(2) of the Attorney-General Act. Alternatively, the Attorney-General, in the exercise of his discretion, can instruct a lawyer, other than the Solicitor-General, within or outside the country, to act for the State.
  4. Having found that it is only the Attorney-General who can brief out for and on behalf of the State, it is not necessary to consider the second issue. However, interesting submissions have been raised by both counsel which prompts me to venture further.

Second Issue - Whether Minister Duma can represent the State's interest in this matter?


  1. Having considered the first issue, I find it only proper for the purposes of putting into the proper perspective the issue of intervention by a Minister of the State on any matter, where the Minister has not received a formal briefing from the Attorney-General's Office. It means that I must consider the law on Intervention by Intervenors, which although similar to an application to join, should be considered separately as in this case, as an application to intervene applies only to Supreme Court References.
  2. There are several cases in this jurisdiction where the law on intervention or at least O.4 r.17 is discussed at length. In Mopio v. Speaker of Parliament [1997] PGSC 10; [1977] PNGLR 420, the Court heard that leave would be granted because the applicant's interests were "vitally concerned" (par.2).
  3. In Wonom v. The State [1975] PGSC 43; PNGLR 311, where the issue was the form of an indictment in criminal proceedings after independence (the Public Prosecutor contending that it should be the State against ... and the Public Solicitor contending that it should be the Queen against ...), the principal legal adviser was given leave to intervene (at par.4) but no reason was given.
  4. There are more recent cases where leave to intervene was given, however, no reasons were stated by the Court.
  5. I have also had recourse to several Australian High Court cases to assist me. I discuss these below;
  6. In Lazy v The State of Victoria [1997] HCA 31; (1997) 189 CLR 579, a case concerning the regulation of duck shooting, Brennan CJ considered the Court's jurisdiction to grant leave to non-parties to intervene (at 601-604) and said this;

"...


Accordingly, its exercise should not affect the legal interests of persons who have not had an opportunity to be heard. Therefore, a non-party whose interests would be affected directly by a decision in the proceeding – that is, one who would be bound by the decision albeit not a party – must be entitled to intervene to protect the interest liable to be affected.


...


A declaration of a legal principal or rule by this Court will govern proceedings that are pending or threatened in any other Australian Court to which an applicant to intervene is or may become a party. Even more indirectly, such a declaration may affect the interests of an applicant either by its extra-curial operation or in future litigation.


Ordinarily, such an indirect and contingent affection of legal interests may not support an application for leave to intervene. But where a substantial affection of a person's legal interests is demonstrable (as in the case of a party to pending litigation) or likely, a precondition for the grant of leave to intervene is satisfied. Nothing short of such an affection of legal interests will suffice.


Where a person having the necessary legal interest to apply for leave to intervene can show that the parties to the particular proceedings may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene. The grant may be limited, if appropriate, to particular issues and subject to such conditions, as to costs or otherwise, as will do justice as between all parties. In that situation intervention may prevent an error that would affect the interests of the intervener. Of course, if the intervener's submission is merely repetitive of the submission of one or other of the parties, efficiency would require that intervention be denied.

(my emphasis)


  1. In Re Ludeke; Ex Parte Customs Officers' Association of Australia [1985] HCA 31; (1985) 155 CLR 513 (14th May, 1985), Mason .J was construing a provision of the Conciliation and Arbitration Act 1904, which like the Papua New Guinea Supreme Court Rules, gives a specific power to grant leave to intervene. He refers to some general principles applicable in the United States and draws some analogy from the comments of Dixon J. in Australian Railways Union v. Victorian Railway Commissioners [1930] HCA 52; (1930) 44 CLR 319, were Dixon J is of the opinion that even where States are given leave to appear in the High Court on the Constitutional issues they should be confined to matters of direct interest to them. Mason .J said;

"MASON J. Section 36(2) of the Conciliation and Arbitration Act 1904 (Cth) recognizes that the Commission has power to grant leave to intervene in any matter before it. By providing that the power "shall not be exercised except in a case where the Commission is of the opinion that it is desirable that a person or organization should be heard", the subsection acknowledges that the grant of leave to intervene is a matter within the discretion of the Commission (see also s.40(1)) and that a grant will not be made unless the Commission considers it desirable that the applicant be heard.


Intervention is a procedure unknown to the common law. It is very much the creature of statute as the United States experience demonstrates. These Courts are often empowered to allow intervention. In some instances the exercise of the discretion is largely uncontrolled, as it is with s.36(2); in other instances it is regulated, in particular by a requirement that the applicant have an interest in the property or transaction which is the subject of the action (Federal Rules of Civil Procedures, r.24(a)(2). In general, the applicant is required to have an interest which is a substantial interest, a legal interest or one which is known and protected by the law. In this respect the applicant must be interested in the outcome or the result of the litigation because he has a legal right which will be directly affected thereby or a legal liability which will be directly enlarged or diminished by the judgment – the interest must be direct and immediate rather than merely consequential (59 Am. Jur. 2d 138-139).


Much of the same approach was adopted by Dixon J. when he expressed in Australian Railways Unions v. Victorian Railway Commissioners [1930] HCA 52; (1930) 44 CLR 319 the principle according to which intervention is allowed in constitutional cases in these terms (at pg.331):


""Normally parties, and parties alone, appear in litigation. But, by a very special practice, the intervention of the States and the Commonwealth as persons interested has been permitted by the discretion of the Court in matters which arise under the Constitution. The discretion to permit appearances by counsel is a very wide one; but I think we would be wise to exercise it by allowing only those to be heard who wish to maintain some particular right, power or immunity in which they are concerned, and not merely to intervene to contend for what they consider to be a desirable state of the general law under the Constitution without regard to the diminution or enlargement of the powers which as States or as Commonwealth they may exercise."

(my emphasis)


  1. From the above discussions, the following could be said to be the general guidelines or principles to be applied by a Court when considering an application to intervene. These are;

Can the Minister for Petroleum & Energy intervene in this Reference?


  1. Although, it cannot be denied that the Minister does have an interest in the proceedings as he deposes in his affidavit of 27th September, 2011 that he "is the political representative of the National Government overseeing the Petroleum and Energy sector in the country" and that his "co-responsibilities, amongst others, include the oversight, administering and implementation of the National Government's policy within the Petroleum & Energy industry.", that he is also "responsible for administering and ensuring compliance of the Oil and Gas Act and compliance of that Act by the petroleum developers and facilitators", that the Attorney-General as the Principal Legal Advisor to NEC, is required to provide legal advice and opinion to the NEC unless of course he authorises the giving of legal advice by either the Solicitor-General (s.13(3)(4) of the Attorney-General Act) or any lawyer within or outside the country (s.7(i) of the Attorney-General Act).
  2. In this case, the Attorney-General did not authorise Makap Lawyers to act for the Minister for Petroleum & Energy described as Minister Duma in this decision.
  3. Amidst all the discussions on the law, the most pertinent concern for this Court or any Court faced with a similar issue, in my view, is whether the Attorney-General will adequately and efficiently present fully, all submissions on the issues/questions posed before the Supreme Court, to assist it reach a just, correct determination. (Lazy v. The State of Victoria (supra)).
  4. Although, the land, the subject of the proceedings, Portions 2457 and 2458 are both registered to Esso Highlands Limited, the Reference to be argued by the Attorney-General is in relation to provisions of the Land Act that were applied by the Department of Lands in granting the State Lease to Esso Highlands Ltd, more particularly s.33(2) of the Lands Registration Act which gives the bearer of title, indefeasible title to the land in question. I am of the view that these are legal issues that the Attorney-General through his appointed lawyers, can capably argue.
  5. This Reference is a challenge to ss.5, 11, 12, 15, 102 and 132 of the Land Act. In my view, the Attorney-General is in a position to capably argue the matter and need not have another law firm appear for the Minister, especially as in this case, where proper brief-out procedures were not followed. The Attorney-General has the interests of the State at heart, and will conduct himself, through his lawyer, as he should.
  6. I do not agree with Ms Doiwa that Minister Duma should be given the opportunity to defend this Reference because this Reference could undermine all petroleum and development and would leave the State open to suits by customary landowners. That is a task the Attorney-General can do.
  7. It is not necessary for Minister Duma to separately represent himself unless of course he is doing so as William Duma, the individual.
  8. Although, Ms Doiwa submits that the outcome of this proceeding will affect the development agreements and the Ministry of the Department of Petroleum & Energy as the relevant State authorities, again, I reiterate, that the Attorney-General through its lawyers and legal advisors, are there to ensure that the interests of the State are protected which includes the development agreements and the interests of title holders.
  9. Of course, if the present Intervenor was an entity, body or individual not representing the State, then I would grant leave to intervene because I will accept that these individuals or entity must protect their own personal interests, subject of course to them demonstrating their interests.

The Attorney-General's representation of the Department of Petroleum & Energy


  1. The Attorney-General, through his appointed lawyer, neither consents nor objects to the application to intervene by the Minister for Petroleum & Energy. However, the Attorney-General's grounds for intervening are set out in the earlier part of this ruling. It demonstrates the State's direct interest in this Reference including that of its servants, agents or officers. It states that clearly at grounds 2(a). I am satisfied that the Attorney-General can capably present submissions on the questions posed for determination.

Conclusion


  1. I find that a law firm cannot appear for the State unless it is briefed by the Attorney-General to do so. That as the NEC's Principal Legal Advisor, the Attorney-General is at liberty to give the appropriate advice in relation to legal representation for the Department of Petroleum & Energy. However, as in this case, the Attorney-General has exercised his powers under the Attorney-General Act, to brief Blake Dawson Lawyers to act for it. That includes representation for the Department of Petroleum & Energy.
  2. I am also cognizant of the fact that the Supreme Court Directions Judge had issued directions to all interested parties to consider intervening, however, the decision to intervene must be carefully made after consideration of all issues, which will include the issue of legal representation.
  3. I will dismiss the application to intervene filed by Makap Lawyers.
  4. Being fully aware of these requirements, Minister Duma, a lawyer by profession, should have sought the views of the Attorney-General, rather than file this application.

Formal Orders


  1. The formal orders of the Court are;

__________________________________________________


Warner Shand Lawyers: Lawyers for the Referrors
Blake Dawson Lawyers: Lawyers for the Intervenor, Attorney-General
Makap Lawyers: Lawyers for the Intervenor, William Duma, Minister for Petroleum & Energy

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