Hegele v Kila [2011] PGSC 54; SC1143 (6 December 2011)

SC1143

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO 10 0F 2010

TALIBE HEGELE, KEN TILIYASO, TAMU ANGOEA, HIBURA TANDABE, HAME ANDREW, AGORI TEGE, MARK PHILIP, FOR THEMSELVES AND ON BEHALF OF THE MEMBERS OF THE IGIBU MOLIGO, IGIBU AGIA, DARA DABARA, IGIBU MAPIA, IGIBU MAMAGE, DARA ANGOYA, DARA ELABE, IGIBU WAYEAI, IGIBU BUDARA SUB-CLANS OF YUMBI CLAN OF MORAN
Applicants

V

TONY KILA FOR HIMSELF AND ON BEHALF OF
THE MEMBERS OF THE NANO WEBO CLAN
First Respondent

ANDREW ELABE
Second Respondent

Waigani: Cannings, Gabi &Yagi JJ
2011: 28 November, 6 December

APPEALS AND REVIEWS – decision of National Court to enter judgment by consent of parties – application by aggrieved persons who were not parties to National Court proceedings for leave to review National Court judgment under Constitution, Section 155(2)(b).

Judgment was entered by consent of two parties in National Court proceedings. Various persons with an interest in those proceedings were aggrieved by that judgment as they claimed that the defendant had falsely represented that he acted on their behalf. Two years and nine months later, and two years and five months after becoming aware of the judgment, the aggrieved persons (the applicants) applied to the Supreme Court for leave under Section 155(2)(b) of the Constitution for review of it. This is a ruling on the application for leave.

Held:

(1) The applicants had a right to appeal against the judgment of the National Court under Section 17 of the Supreme Court Act, notwithstanding that it was a consent judgment and that they were not a party to the National Court proceedings (Kitogara Holdings Ltd v NCDIC [1988-89] PNGLR 346 applied).

(2) Thus three criteria had to be satisfied for leave under Section 155(2)(b) to be granted:

(a) it is in the interests of justice to grant leave; and

(b) there are:

(i) cogent and convincing reasons and

(ii) exceptional circumstances, eg some substantial injustice is manifest or the case is of special gravity; and

(c) there are clear legal grounds meriting a review of the decision (Avia Aihi v The State [1981] PNGLR 81 applied).

(3) As to (b), the applicants had good reasons for not filing an appeal within time and the merits of the case sought to be argued are arguable. Thus there are cogent and convincing reasons warranting a review. Further, the case is of special gravity in view of the large amount of money apparently involved.

(4) As to (c), there are clear legal grounds meriting a review of the National Court's decision.

(5) However, as to (a), the application for leave was made after an inordinate delay (two years and five months after the applicants became aware of the National Court order) and no good reason was provided for it. So it was not in the interests of justice to grant leave.

(6) One of the three criteria was not satisfied. Therefore leave was refused.

Cases cited

The following cases are cited in the judgment:

Application by John Maddison & Bank South Pacific Ltd (2009) SC984
Avia Aihi v The State [1981] PNGLR 81
Danny Sunu v The State [1984] PNGLR 305
David Toll v The State (1989) SC378
Hegele v Kila & Elabe (2011) SC1124
Jeffrey Balakau v Ombudsman Commission [1998] PNGLR 437
Jeffrey Turia v Gabriel Nelson (2008) SC949
Ken Norae Mondiai v Wawoi Guavi Timber Co Ltd (2007) SC886
Kitogara Holdings Ltd v NCDIC [1988-89] PNGLR 346
New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522
Review Pursuant to Constitution, Section 155(2)(b); Application by Herman Joseph Leahy (2006) SC855
Tamali Angoya v Tugupa Association Inc (2009) SC978
Tay v Gerau (2011) SC1097
The State v Colbert [1988] PNGLR 138

APPLICATION

This was an application for leave to seek review under Constitution, Section 155(2)(b), of a judicial act of the National Court: an order made by consent of the parties to the National Court proceedings.

Counsel

M Nasil, for the applicants
S Soi, for the first respondent

6 December, 2011

1. BY THE COURT: This is a ruling on an application by Talibe Hegele and other representatives of the Yumbi Clan of Moran, Southern Highlands Province, for leave to seek review under Section 155(2)(b) of the Constitution of an order made by Justice Hartshorn in the National Court on 27 December 2007. Section 155(2)(b) of the Constitution states:

The Supreme Court ... has an inherent power to review all judicial acts of the National Court.

2. The order in OS No 687 of 2007 was made by consent of the parties to those proceedings:

• the plaintiff, Tony Kila on behalf of the Nano Webo Clan, who is the first respondent in the application now before the Supreme Court; and
  
• the defendant, Andrew Elabe on behalf of the Yumbi Clan, who, in his individual capacity, is the second respondent in the application now before the Supreme Court.
  

3. The order made legally binding a deed of release executed by Mr Kila and Mr Elabe on 1 October 2002 and provided for sharing of royalties and other benefits arising from a petroleum development licence regarding the Moran Oil Project.

4. Mr Hegele and other representatives of the Yumbi Clan – the applicants – were not parties to the National Court proceedings. They are aggrieved by the order of 27 December 2007. They say that Mr Elabe had no authority to represent the Yumbi Clan in those or any other proceedings, the National Court proceedings were conducted secretly by him and Mr Kila, the order of 27 December 2007 was the product of fraud and a conspiracy between the respondents and has had the effect of undermining a decision of the Provincial Land Court of 8 March 2006, which awarded ownership of the land that generates the royalties and other benefits to the Yumbi Clan, not the Nano Webo Clan. Mr Nasil, for the applicants, asserts that they did not become aware of the 27 December 2007 order until April 2008, that it was too late by then to appeal against it and that in any event an appeal was prohibited by Section 14(2) of the Supreme Court Act as the order was made by consent of the parties. Mr Nasil submits that in these circumstances leave should be granted as a matter of course, ie leave is not required to pursue their application for review. In the event that we find against the applicants on that point, Mr Nasil submits that leave should be granted as the applicants have been done an injustice and they should be granted the opportunity of having the 27 December 2007 order fully reviewed.

5. Mr Soi for the first respondent (the second respondent was not represented in the current proceedings) conceded that the applicants were not aware of the 27 December 2007 order until April 2008 but submitted that this Court should be fully aware of other proceedings commenced in the Supreme Court by the applicants, the effect of which is to give rise to an abuse of process by them. For this reason alone leave should be refused. In the alternative leave should be refused on the ground of inordinate delay in filing the application for leave.

ISSUES

6. The competing arguments give rise to the following issues:

1. What are the facts?
   
2. Is there an abuse of process?
   
3. Was an appeal against the order of 27 December 2007 prohibited?
   
4. Do the applicants require leave to apply for review?
   
5. Should leave be granted?
   

1 WHAT ARE THE FACTS?

7. The following chronology of events, beginning with the order sought to be reviewed, is relevant:

➢ 27 December 2007 – order made by the National Court (Hartshorn J) consent of the parties in OS No 687 of 2007.

➢ Early April 2008 – the applicants became aware of the 27 December 2007 order.

➢ 28 April 2008 – the applicants commenced fresh proceedings, WS No 459 of 2008, pleading fraud by the parties to the order of 27 December 2007 as a cause of action, and seeking an order setting aside the order of 27 December 2007.

➢ 13 October 2009 – the National Court (Salika DCJ) ordered in WS No 459 of 2008 that the parties are restrained from collecting any royalties or equity benefits until land ownership issues and the proceedings in WS No 459 of 2008 have been determined.

➢ 20 April 2010 – William Akuani Lawyers filed an application for leave under Constitution, Section 155(2)(b) to review the order of 27 December 2007: at the hearing of the present application, this application was abandoned.

➢ 12 May 2010 – the National Court (Kandakasi J) dismissed WS No 459 of 2008 entirely on the ground that the National Court lacked jurisdiction as the subject matter of the proceedings was ownership of customary land; on the same day, Mr Hegele filed an appeal to the Supreme Court against the order of 12 May 2010, in SCA No 50 of 2010.

➢ 14 September 2010 – application filed for leave under Constitution, Section 155(2)(b) to review the order of 27 December 2007: the application now before the Court, in SCR No 10 of 2010; on the same day an application for leave under Constitution, Section 155(2)(b) to review the order of 13 October 2009 in WS No 459 of 2008, was filed, in SCR No 19 of 2010.

2 IS THERE AN ABUSE OF PROCESS?

8. The argument that the applicants were engaging in an unnecessary multiplicity of proceedings was rejected earlier this year when the Supreme Court refused an objection to competency in SCA No 50 of 2010 (Hegele v Kila & Elabe (2011) SC1124). The Court held that the apparent multiplicity of proceedings is justified as each of the three Supreme Court proceedings relates to a different National Court decision. Though each National Court decision is related, they are different decisions, made by different judges, on different dates. We take the same approach and find no abuse of process on the part of the applicants.

3 WAS AN APPEAL AGAINST THE ORDER OF 27 DECEMBER 2007 PROHIBITED?

9. Two provisions of the Supreme Court Act are relevant at this point. Section 14(2) (civil appeals to the Supreme Court) states:

An appeal does not lie from an order of the National Court made by consent of the parties.

10. Section 17 (time for appealing under division 2) states:

Where a person desires to appeal to or obtain leave to appeal from the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Curt within 40 days after the date of the judgment in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.

11. The leading case on the interpretation of these two provisions is Kitogara Holdings v NCDIC [1988–89] PNGLR 346, which stands as authority for these propositions:

• The prohibition in Section 14(2) against an appeal against a consent order only applies in relation to those parties who actually consented to the order.
  
• A person does not have to be a party to the National Court proceedings to be able to appeal against a judgment of the National Court. Section 17 refers to "a person [who] desires to appeal". Any person whose interests are affected by or who is aggrieved by the order of the National Court and who might have been joined as a party to the National Court proceedings has a right of appeal (confirmed in Ken Norae Mondiai v Wawoi Guavi Timber Co Ltd (2007) SC886, Jeffrey Turia v Gabriel Nelson (2008) SC949 and Tamali Angoya v Tugupa Association Inc (2009) SC978).
  

12. The applicants were not parties to the National Court proceedings in OS No 687 of 2007. Therefore the prohibition in Section 14(2) did not apply. Their interests were affected by the order of 27 December 2007, they were aggrieved by it and they might have been joined as parties to the National Court proceedings. Therefore they had a right of appeal. An appeal was not prohibited.

4. DO THE APPLICANTS REQUIRE LEAVE TO APPLY FOR REVIEW?
   

13. In Review Pursuant to Constitution, Section 155(2)(b); Application by Herman Joseph Leahy (2006) SC855 the Supreme Court confirmed that the question of whether leave for review under Section 155(2)(b) is necessary and, if it is necessary, what criteria apply when deciding whether to grant leave, depends on the category of the case concerned.

Category 1: where there is a right of appeal

14. If there is a right of appeal but it has not been invoked (eg due to expiry of the statutory time limit of 40 days under the Supreme Court Act, Sections 17 (civil appeals) or 29 (appeals by persons convicted in criminal cases), three criteria have to be satisfied before leave can be granted:

(a) it is in the interests of justice to grant leave; and

(b) there are:

• (i) cogent and convincing reasons, and
• (ii) exceptional circumstances, eg some substantial injustice is manifest or the case is of special gravity; and
  

(c) there are clear legal grounds meriting a review of the decision.

15. In deciding whether there are cogent and convincing reasons, the reasons for not filing an appeal within time and the merits of the case sought to be argued, should be considered.

16. The above principles are based on the landmark decision of the Supreme Court in Avia Aihi v The State [1981] PNGLR 81. They have subsequently been developed and applied in many cases, eg Danny Sunu v The State [1984] PNGLR 305; The State v Colbert [1988] PNGLR 138; David Toll v The State (1989) SC378; New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988-89] PNGLR 522; and Jeffrey Balakau v Ombudsman Commission [1998] PNGLR 437.

Category 2: where an appeal is prohibited or limited by law

17. In these cases, leave is generally not necessary. However, it may be required by virtue of Rules of Court, eg under the Election Petition Review Rules.

Category 3: where there is no other way of coming to the Supreme Court

18. If an appeal is not expressly prohibited or limited by law but the applicant has no way of coming to the Supreme Court except under Section 155(2)(b), leave is necessary. But the Avia Aihi criteria do not apply. The only criteria to be satisfied are that there is an important point of law to be determined; and the application is not without merit.

The present case

19. The applicants had a right to appeal, which was not exercised within the 40-day time limit imposed by Section 17 of the Supreme Court Act. This is a category 1 case. The applicants require leave and it is incumbent on them to satisfy the three Avia Aihi criteria.

5 SHOULD LEAVE BE GRANTED?

20. We will deal with the three criteria in a different order to what is usually the case. The issues become:

• Are there cogent and convincing reasons and exceptional circumstances warranting review?
  
• Are there clear legal grounds meriting a review?
  
• Is it in the interests of justice to grant leave?
  

Cogent and convincing reasons and exceptional circumstances?

21. This criterion is satisfied as the applicants had good reasons for not filing an appeal within time and the merits of the case sought to be argued are arguable. Further, the case is of special gravity in view of the large amount of money apparently involved.

Clear legal grounds meriting a review?

22. This criterion is satisfied as the applicants have in supporting affidavits alleged a number of allegations of fraud or at least misrepresentation that prima facie warrant a review of the 27 December 2007 order.

Is it in the interests of justice to grant leave?

23. The application for leave was filed after an inordinate delay (two years and five months after the applicants became aware of the National Court order) and no good reason has been provided for the delay. In this regard the facts are comparable with those in Application by John Maddison & Bank South Pacific Ltd (2009) SC984 and Tay v Gerau (2011) SC1097, where delays of nine months and three years, five months, respectively, between the date of the National Court judgment sought to be reviewed and the date of filing the application for leave to seek review, were held to be so lengthy as to make it contrary to the interests of justice to grant leave. It is not in the interests of justice to grant leave.

Conclusion

24. As one of the essential criteria is not satisfied, we exercise our discretion by refusing to grant leave. Costs will follow the event.

ORDER

25. The Supreme Court will order that:

(1) the application by Talibe Hegele and other applicants for leave to seek review of the judicial act of the National Court at Waigani on 27 December 2007, in OS No 687 of 2007, entering judgment with the consent of the parties to those proceedings, is refused; and

(2) costs of the proceedings are awarded to the first respondent to be paid by the applicants on a party-party basis, to be taxed if not agreed; and

(3) time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.

Judgment accordingly.

________________________________________________

Nasil Lawyers: Lawyers for the Applicants
Soi & Associates Lawyers: Lawyers for the First Respondent