Toale Hongiri Incorporated Land Group v Wolotou Incorporated Land Group [2012] PGSC 34; SC1201 (1 November 2012)

SC1201

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 101 0F 2011

TOALE HONGIRI INCORPORATED LAND GROUP
First Appellant

TIASAPI INCORPORATED LAND GROUP
Second Appellant

SOUWOLO INCORPORATED LAND GROUP
Third Appellant

SOUWOLO HAPOROPAKE INCORPORATED LAND GROUP
Fourth Appellant

AND

WOLOTOU INCORPORATED LAND GROUP
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

RENDLE RIMUA
IN HIS CAPACITY AS ACTING SECRETARY
OF PETROLEUM AND ENERGY
Third Respondent

MICAH PITPIT
COMMISSIONER LAND TITLES COMMISSION
Fourth Respondent

LUHALIPU INCORPORATED LAND GROUP
Fifth Respondent

ASE TIPURUPEKE INCORPORATED LAND GROUP
Sixth Respondent

Waigani: Cannings, J; Sawong, J; Collier, J
2012: 29 October, 1 November

CIVIL PRACTICE AND PROCEDURE – Notices of Objection to Competency of Appeal – parties engaged in alternative dispute resolution – "draft consent orders" presented to Court – orders made by Court – whether orders were "consent orders" – whether parties to "draft consent orders" parties to National Court proceedings – whether Court's appellate jurisdiction validly invoked – whether decision below interlocutory – "question of fact".

A respondent to an appeal objected to the competency of the appeal on the grounds that:

• the orders relevant to the appeal were "consent" Orders;
  
• the decision of the primary Judge was an interlocutory decision and leave to appeal had not been sought;
  
• the appellants lacked standing;
  
• some grounds of appeal involved questions of fact and leave to appeal had not been sought;
  
• the appellants, under terms of reference for an alternative dispute resolution process relevant to the matter, were required to exhaust available alternative avenues before appealing; and
  
• procedural requirements had not been complied with.
  

Held:

(1) The relevant Orders were not consent orders and therefore Section 14(2) of the Supreme Court Act does not bar the appeal.

(2) Leave was not required to appeal as the orders are not interlocutory (Section 14(3) Supreme Court Act) and the grounds of appeal concern questions of law and/or questions of mixed fact and law (Section 14(1) Supreme Court Act).

(3) The appellants have an interest in the subject matter of the appeal and therefore have standing.

(4) As the Orders were not consent orders, the terms of reference relating to the alternative dispute resolution process do not prevent the appellants from appealing to the Supreme Court.

(5) The claims relating to procedural requirements are unsubstantiated or lack merit.

(6) Remarks: if at least one ground of appeal has substance, an objection to competency should not succeed.

Cases cited:
Coca Cola Amatil (PNG) Ltd v Yanda (unreported, Supreme Court of Papua New Guinea, 31 August 2012; Lenalia, Kawi and Logan JJ)
Dillingham Corporation of New Guinea Pty Ltd v Diaz [1975] PNGLR 262
Jeffrey Turia v Gabriel Nelson (2008) SC949
Simon Mali v Independent State of Papua New Guinea (2002) SC690
Talibe Hegele v Tony Kila (2011) SC1124
Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185

Counsel:
Mr J Haiara, for the First and Second Appellants
Mr M Miva, for the First Respondent
Mr P Ame, for the Fifth and Sixth Respondents

1. BY THE COURT: Before the Court are two Notices of Objection to Competency of an appeal ("Notices of Objection to Competency") against orders of Kandakasi J made on 24 August 2011 and 13 September 2011 in National Court proceedings WS No 1177 of 2007. The appeal was commenced by Toale Hongiri Incorporated Land Group (first appellant), Tiasapi Incorporated Land Group (second appellant), Souwolo Incorporated Land Group (third appellant) and Souwolo Haporopake Incorporated Land Group (fourth appellant). The Notices of Objection to Competency have been filed by Luhalipu Incorporated Land Group and Ase Tipurupeke Incorporated Land Group, respectively the fifth and sixth respondents to the relevant appeal.

2. That there are a number of Notices of Objection to Competency which the Court is required to consider, rather than merely one, is an aspect of this case which is unusual. Another unusual aspect of this case is that the orders made by his Honour on 24 August 2011 against which the appellants have appealed were made on the basis of "draft consent orders" presented to the Court by the fifth and sixth respondents. On 13 September 2011 his Honour declined to either set aside the Orders of 24 August 2011 or stay the operation of those Orders.

3. It is useful to set out the background to the current proceedings before turning to consideration of the grounds raised in the Notices of Objection to Competency.

Background

4. The Orders made by his Honour on 24 August 2011 appeared to finalise the results of alternative dispute resolution (ADR) of landownership disputes concerning the Gobe Oil Fields. It seems to be common ground that a land dispute first arose in Gobe with the discovery of the Gobe Oil Fields in the Southern Highlands Province and Gulf Province in 1991. Several Land Titles Commission hearings were held in relation to the dispute, and by consensus the parties entered into a benefit sharing agreement called "the Lae-Inter Agreement". Thereafter a Ministerial Determination was made, whereby the disputants received interim beneficiary rights and an entitlement to receive royalty and equity. Those rights were conferred on the basis that they would lapse at the commencement of the landownership determination process. As it transpired, all thirty-two Incorporated Land Groups ("ILGs") with an interest in the dispute opted for resolution of land ownership by way of ADR. Terms of Reference ("TOR") were developed in 2009 to facilitate that process.

5. On 23 August 2011, Luhalipu Incorporated Land Group and Ase Tipurupeke Incorporated Land Group presented "draft consent orders" to the Court for endorsement. The draft consent orders were as follows:

1. The customary landowners shown in Schedule 1 of this Order recognize each other traditional land boundaries before the discovery of Oil and Gas in the Gobe Oil Development Areas known as PDL 3 and PDL 4 and the facilities area.
   
2. The customary landowners in Schedule 1 acknowledge the Souwolo and Wolotou clans as clans having land in the PDL 3 and PDL 4 respectively and that as above.
   
3. That the Department of Petroleum and Energy, Mineral Resources Development Company (MRDC) and other relevant Governmental Institutions recognize only the clans in Schedule 1 as customary land owning group in the Gobe PDL 3 and PDL 4 and the facilities area.
   
4. That for the purpose of benefit sharing, the landowners in Schedule 1 of this Order recognize their beneficiaries and negotiate benefit sharing.
   
5. That parties be given 7 days to consolidate, agree and present to ADR Court the Benefit Sharing Agreements (BSA) by parties named in Schedule 1, inclusive of Souwolo and Wolotou ILG (Clans) and their beneficiaries.
   
6. That parties agree that all royalty and equity monies payable to the landowners however outstanding claims due held by the State and its agents, particularly Department of Petroleum and Energy (DPE) and Mineral Resources Development Company to be paid into the National Court Trust Account pending further Orders.
   
7. That the majority of principle landowners and their beneficiaries agree for 20% of all royalty and equity monies to be set aside until disputing parties settle their disputes. And 80% of the monies be made available for disbursement to the agreed parties according to the BSA.
   
8. Matter returns to the Court at 9.30 am on 13 September 2011 with BSA.
   

SCHEDULE 1

(1) Ase Tipurupeke Clan
(2) Moloko Tipurupeke Clan
(3) Haukerake Tipurupeke Clan
(4) Luhalipu Clan
(5) Yenidou Bogasi Clan
(6) Imawe Kewa Clan
(7) Muti Clan
(8) Isaweri Makof Clan
(9) Makena Clan
(10) Mukard Dupan Clan
(11) Museneri Clan
(12) Afu Clan
(13) Wafi Clan
(14) Lu'u Clan

SCHEDULE 2

(1) Souwolo Clan
(2) Wolotou Clan

6. The matter was stood over overnight and returned to Court on the morning of 24 August 2011. After an interchange between his Honour and Mr Ame (for the applicants presenting the draft consent orders, namely Luhalipu Incorporated Land Group and Ase Tipurupeke Incorporated Land Group), Mr Palma for the Department of Petroleum and Energy, and Mr Uyassi for the Waiyemi clan, his Honour made "consent" Orders in the same terms as those presented. It is not in dispute that:

• At the time of those orders, none of the customary landowners identified in Schedule 1 were parties to the proceedings (although two subsequently became the fifth and sixth respondents to the appeal currently before the Court).
  
• The only parties to the proceedings at the time of the orders of 24 August 2011 were Wolotou ILG as plaintiff, and the following parties named as defendants:
  
  • Independent State of Papua New Guinea (first defendant);
  • Micah Pitpit – Commissioner Land Titles Commission (second defendant);
  • Toale Hongiri ILG (third defendant);
  • Tiasapi ILG (fourth defendant); and
  • Rendle Rimua – Secretary Department of Petroleum & Energy (fifth defendant).
    
• The current appellants before the Court, namely the third and fourth defendants in the proceedings before the National Court, were not parties to the "consent" Orders. Further, it is clear that:
  
  • they were not informed that the matter was being heard by his Honour on 24 August 2011;
    
  • they were not informed that the draft consent orders were being presented to his Honour; and
    
  • they were not present in Court on 24 August 2011 when the relevant Orders were made.
    

Appeal and associated events

7. On 2 September 2011, the appellants filed a notice of appeal against his Honour's Orders. The appellants contended, inter alia, that:

• His Honour was aware that the appellants were represented by Steeles Lawyers together with a number of other clans but failed to enquire whether the appellants were represented and had consented to the draft consent orders put before his Honour on 24 August 2011.
  
• His Honour failed to conduct due and proper enquiries to ascertain whether or not the appellants were aware of the proposed consent orders and had endorsed the proposed consent orders.
  
• His Honour failed to adjourn the matter to another date to enable the appellants to appear and be heard prior to making Orders in circumstances where there was no proper application before the Court and the appellants were neither notified nor aware of the matter being heard.
  
• The "consent" Orders were in substantially different terms from the agreement reached between the disputing parties during the ADR process at Gobe in 2009.
  

8. The appellants also filed an application for stay of his Honour's Orders on 6 September 2011.

9. The parties returned before his Honour on 13 September 2011. At the hearing, the parties who are now the appellants informed his Honour that they had filed an appeal in the Supreme Court and submitted that further negotiation with other parties was pointless in light of Orders made by the Court. The appellants also sought orders from his Honour, including orders setting aside the "consent" Orders made on 24 August 2011. His Honour declined to make such orders.

10. In the Supplementary Notice of Appeal filed 14 September 2011 the appellants further complained that:

• his Honour refused to revisit or set aside the Orders of 24 August 2011; and
  
• rather – his Honour directed the appellants and other parties to continue negotiating to resolve outstanding issues.
  

11. On 13 September 2011, further parties were joined as parties to the appeal. On 23 September 2011 the Supreme Court ordered that the enforcement of the Orders of 24 August 2011 and the conduct of subsequent proceedings be stayed pending determination of the appeal to the Supreme Court against his Honour's Orders.

12. As his Honour's Orders of 24 August 2011 were predicated on draft consent orders, no reasons for judgment were given. His Honour's reasoning of 13 September 2011 for refusing to set aside his previous Orders or stay those Orders is apparent from the transcript of that hearing.

13. Currently in the Court is an Amended Supplementary Notice of Appeal filed on 21 September 2011. This notice was filed pursuant to orders of Injia CJ dated 20 September 2011, directing that (inter alia):

• leave be granted to Luhalipu ILG and Ase Tipurupeke ILG to join in the appeal as fifth and sixth respondents; and
  
• the appellants file an amended notice of appeal to reflect the addition of new parties.
  

14. With the exception of an amendment effecting the joining of those parties, the Amended Supplementary Notice of Appeal is identical to the Supplementary Notice of Appeal filed on 14 September 2011 (which had, in turn, superseded the original Notice of Appeal filed on 2 September 2011).

15. In the Amended Supplementary Notice of Appeal the appellants rely on eleven grounds of appeal. It is helpful to set these grounds of appeal out in full:

(a) Under all the circumstances of the case the judgment and orders of the learned Judge is unfair, harsh and oppressive having regard to and for reasons that when the learned Judge was conducting hearing on 24th August 2011:-

[1] failed to satisfy itself that the Appellants and the other parties in the proceedings were served and notified of the matter returning in Court for hearing.

[2] the learned Judge as facilitator of the Gobe ADR process was aware that the Appellants were represented by Steeles Lawyers together with five other clans of the Imawe Bogasi clan except two sub-clans in Wolotou and Yenidou Bogasi ILGS.

[i] but failed to enquire whether the appellants were represented or present in Court and had consented to the orders proposed for endorsement by Ame Lawyers.

[ii] failed to conduct due and proper enquiries so as to ascertain whether or not:-

[A] Appellants were aware of the orders proposed for endorsement by Ame Lawyers; and

[B] had endorsed the Orders.

[3] learned Judge erred in law in failing to adjourn the matter to another date so as to enable the Appellants to appear and be heard prior to making the Orders in circumstances where there was no proper application before the Court and appellants were neither notified nor aware of the matter being heard and have not formally endorsed the Orders in accordance with ordinary practice.

(b) The learned judge erred in law and the Judgment and the Orders are irregular in that, the Appellants were completely omitted from being heard on 24th August 2011 thereby denying them natural justice.

(c) the learned judge erred in law in making orders which were substantially different from the agreement reached between the disputing parties during ADR process at Gobe in 2009 which the learned judge had facilitated and was aware of.

(d) The learned judge erred in law in failing to find that the Imawe Bogasi clan which the appellants are part of was identified and agreed as the major customary landowner of both the Gobe PDL 4 and PDL 3 areas during the Gobe ADR process, which the learned judge had facilitated and was aware of but omitted the Appellants as landowners in the orders made by the Court.

(e) The learned judge erred in law in making the orders he did on 24th August 2011 when the National Court lacked jurisdiction pursuant to section 15(1) of the Land Titles Commission Act 1962 when the matter was before the Land Titles Commission for rehearing.

(f) The learned judge erred in law in making the Orders he did which were not similar to the agreement reached by the parties during the Court sanctioned ADR process at Gobe.

(g) The Learned Judge erred in law in conducting further hearing of the proceedings on 24th August 2011 when there was no provision in the Terms of Reference for Mediation and or in the various Mediated Agreement for the Court to make the Orders made by Court on 24th August 2011.

(h) The Learned Judge erred in law in conducting further hearing of the proceedings after the conclusion of the ADR process instead of referring the unresolved disputes to the Land Titles Commission for determination pursuant to Clause 13 of the Terms of Reference for Mediation and thereby the Court being functions officio.

3.2 During the conduct of the hearing on 13th September 2011;

[i] The Learned Judge erred in law in refusing to set aside the Orders of the Court made on 24th August 2011, when the Appellants, the First Respondent and the Souwolo and Moloko Tipurupeke clans informed the Court that they never consented to the Orders of the Court made on 24th August 2011 and take issue with those orders but instead directed the aggrieved parties to negotiate further with the other parties to reach compromise agreement in circumstances where;

[1] The formal ADR process had been completed in 2009;

[2] Clause 13 of Terms of Reference [TOR] provides for unresolved disputes to be referred to LTC for determination.

[3] The LTC was therefore seized of the unresolved disputes pursuant to Clause 13 of TOR.

[4] National Court was functions officio and lacked jurisdiction.

[j] The Learned Judge erred in law in directing those parties and clans still having issues with the Court Orders of 24th August 2011, including the Appellants herein to continue to negotiate in circumstances where:-

[1] the Orders of the 24th August 2011 finally disposed off all the customary landownership issues in respect of Gobe Petroleum Project Areas; PDL 3 and 4; and

[2] the only issue to be negotiated and agreed was benefit sharing by those persons identified by the Court per Schedules 1 and 2 of the Court Orders.

[k] And as a consequence of the learned judge proceeding to hear and determine the issue of customary landownership in the absence of the Appellants on 24th August 2011 without their consent as aforesaid and refusing to set aside the Orders on 13th September 2011 there was a miscarriage of justice.

Notices of objection to competency

16. A notice of objection to competency has been filed in relation to the notice of appeal at each stage of the appellate process by the fifth and sixth respondents. In this Court last Monday, Mr Ame for the fifth and sixth respondents informed the Court that his clients were not pursuing the Notice of Objection to Competency filed on 21 September 2011, and were relying on the Notices of Objection to Competency filed on 26 September 2011 ("the first Notice of Objection to Competency") and 14 October 2011 ("the second Notice of Objection to Competency"). The first Notice of Objection to Competency was clearly filed in relation to the Supplementary Notice of Appeal filed on 14 September 2011. The Court notes that, curiously, the fifth and sixth respondents ask the Court to read both Notices of Objection to Competency together in relation to the Amended Supplementary Notice of Appeal, notwithstanding that the first Notice of Objection to Competency does not actually address the Amended Supplementary Notice of Appeal currently before the Court. As a result, there are (combined) eighteen grounds of objection to the competency of the appeal. Again, it is useful to set out those grounds of objection in full:

• In relation to the first Notice of Objection to Competency the grounds are:
  
  1. The whole SUPPLEMENTARY NOTICE OF APPEAL filed challenging the Consent Orders of the 24th August 2011 contravenes Section 14 (2) of the Supreme Court Act which prohibits Appeals from Consent Orders therefore the said whole Supplementary Notice of Appeal is incompetent.
     
  2. The whole Notice of Supplementary Notice of appeal is incompetent on the grounds, the same was filed without first seeking leave of the Supreme Court pursuant to Section 14 (3) (b) of the Supreme Court Act as the Consent Orders were an interlocutory judgement as the Appellants have pursuant to Clause 13 of the Alternative Dispute Resolution Term of Reference (ADR TOR) have the option to have their dispute determined by the LTC.
     
  3. The Notice of Supplementary Notice of Appeal is incompetent on the basis that the grounds do not single out any interest in land owning by the Appellants that are affected by the Orders.
     
  4. The Supplementary Notice of Appeal is incompetent in that the Consent Orders does not cater for the Appellants because the Consent Orders have no land boundary with the Appellants therefore they can't enter into an Agreement with them (the Appellants).
     
  5. The Supplementary Notice of Appeal is incompetent in that the First Appellants have not been given any Consent by the Imawe Bogasi Stock clan who don't have inter clan boundaries to represent them in the proceedings, therefore they as non parties to the Gobe Land Dispute are non land owning clans or claimants with the Gobe Oil Development and area including the facilities.
     
  6. The Supplementary Notice of Appeal is incompetent on the basis, the Grounds (a) (1) (2), 3 (b) (f) (g) (h), 3.2 (1) (i) (2) (3) (4) (1), (1) (2) and (k) raise issues of facts for which leave have not been sought pursuant to Section 14 (1) (c) of the Supreme Court Act.
     
  7. The Supplementary Notice of Appeal is incompetent in that since the Appellants as the parties still in dispute therefore, firstly they have to exhausted the available avenues like Land Titles Commission pursuant to Clause 13 of the Terms of Reference for Gobe Land Dispute Alternative Dispute Resolution before they can appeal to the Supreme Court.
     
  8. The Supplementary Notice of Appeal is incompetent in that since the Gobe Land Alternative Dispute is a process of consensus Consent Orders of the 32 Incorporated Land Groups an appeal does not lie pursuant to Section 14 (2) of the Supreme Court Act.
     
  9. The Supplementary Notice of Appeal is incompetent in that whole Appeal does not particularize the laws breached the trial judge on the 24th August 2011 which becomes the subject of the Supplementary Notice of Appeal.
     
  10. The Supplementary Notice of Appeal is incompetent in that all 32 ILGS including the Appellants by way of ADR opted for ADR therefore they should present their Consent Order with parties they agreed with for the endorsement by the learned Judge and having not done that, they cannot appeal against some other clans Consent Orders.
      
• In relation to the second Notice of Objection to Competency the grounds are:
  
  1. The whole AMENDED SUPPLEMENTARY NOTICE OF APPEAL filed on the 21st September 2011 challenging the Consent Orders of the 24th August 2011 contravenes Section 14 (2) of the Supreme Court Act which does not allow Appeals from Consent Orders therefore the whole Amended Supplementary Notice of Appeal is incompetent.
     
  2. The Amended Supplementary Notice of Appeal is incompetent in that the same was not served in accordance with Order 7 Rule 12 of the Supreme Court Rules.
     
  3. The whole Amended Supplementary Notice of Appeal is incompetent on the basis that Order 7 Rule 24 of the Supreme Court Rules does not allow for an amendment to the Supplementary Notice of Appeal or two Supplementary Notices of Appeal to be filed in relation to one Notice of Appeal.
     
  4. The Amended Notice of Supplementary Notice of Appeal is incompetent on the basis that 32 Incorporated Land Groups including the 3 Appellants have consented to the Gobe Land Dispute Alternative Dispute Resolution (ADR) Terms of Reference (TOR) and pursuant to Clause No. 13 of the Terms of References those clans having no issue with each other have their dispute resolved by ADR by the Consent Orders as done on the 24th August 2011 whilst those clans still in dispute are at liberty to have their dispute determined by the Land Titles Commission hence the First, Second and Third Appellants have no right of Appeal.
     
  5. The whole amended Supplementary Notice of Appeal is incompetent on the basis, the issue of facts raised in all the grounds of the Amended Supplementary Notice of Appeal require leave pursuant to Section 14 (1) (c) of the Supreme Court Act.
     
  6. The Amended Supplementary Notice of Appeal is incompetent as being abuse of the process as the First and Second Appellants having filing an Appeal on the 6th September 2011, including Application for the Stay to stay Court Orders of the 24th August 2011 appeared in the National Court on the 13th September 2011 before Kandakasi J, and applied to have the Court Orders of the 24th August 2011 set aside, which His Honour refused therefore First and Second Appellants should have filed a separate appeal against the refusal of the application to set aside the Orders of the 24th August 2011.
     
  7. The Amended Supplementary Notice of Appeal is incompetent in that as no right of Appeal lies as the Toale Hongiri and Tiasapi ILGs have no land claim in the Gobe Petroleum Development Area as their interest in land is vested with the Imawe Bogasi Stock clan and not Sub clans of Imawe Bogasi.
     
  8. The whole Amended Supplementary Notice of Appeal is incompetent in that the Appellants have not filed a separate proceeding in the National Court to set aside the Consent Orders for fraud or mistake.
     

17. Reading the Notices of Objection to Competency together, it is clear that the objections fall into the following categories:

1. The Orders of his Honour were "consent" Orders, and s 14(2) of the Supreme Court Act 1975 prohibits appeals against consent orders: first Notice of Objection to Competency Ground 1; second Notice of Objection to Competency Ground 1.
   
2. The decision of his Honour was an interlocutory decision for which leave to appeal was required, but neither sought nor obtained: first Notice of Objection to Competency Ground 2.
   
3. The appellants have no standing to appeal because they do not have relevant land ownership interests: first Notice of Objection to Competency Grounds 3, 4 and 5; second Notice of Objection to Competency Ground 7.
   
4. A number of grounds of appeal involve a question of fact, however no leave has been granted by the Supreme Court in respect of such grounds: first Notice of Objection to Competency Ground 6; second Notice of Objection to Competency Ground 5.
   
5. The TOR requires the appellants to have exhausted available alternative avenues of dispute resolution before appealing to the Supreme Court: first Notice of Objection to Competency Grounds 7, 8 and 10; second Notice of Objection to Competency Ground 4.
   
6. The appellants have not complied with procedural requirements in respect of the appeal: first Notice of Objection to Competency Ground 9; second Notice of Objection to Competency Grounds 2, 3, 6 and 8.
   

18. In light of this background it is appropriate to now turn to the issues before the Court.

Consideration

19. A proper ground of objection to competency of an appeal is one that draws the Court's attention to a question of jurisdiction: Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185; Jeffrey Turia v Gabriel Nelson (2008) SC949 at [7]; Talibe Hegele v Tony Kila (2011) SC1124 at [6]-[7]. Principles relevant to the approach taken by the Court in considering a notice of objection to competency of an appeal were recently reiterated by this Court in Coca Cola Amatil (PNG) Ltd v Yanda (unreported, Supreme Court of Papua New Guinea, 31 August 2012; Lenalia, Kawi and Logan JJ). In particular, at [25] their Honours said as follows:

[25] Considerable care needs to be taken in deciding whether or not to give notice of an objection to competency. The decision calls for an understanding of the true nature and purpose of an objection to competency and the making of a discriminating choice by a practitioner based on that understanding. If, truly, the court lacks jurisdiction because, for example, the appeal is only on a question of fact and leave to appeal has not been obtained, it would be an imprudent respondent who did not object to the competency of the appeal. If, though, by reference to one at least of the grounds of appeal, it can be seen that the court's jurisdiction has validly been invoked, the case is not one for an objection to competency. All that the taking of a misconceived objection to competency by a respondent does is to delay the hearing of the appeal on the merits. ...

(emphasis added)

20. It follows that a key question is whether there is at least one ground of appeal which has substance, because if that is the case the objections to competency should be dismissed.

21. In the view of the Court it is clear that, indeed, the objections to competency in these proceedings should be overruled. This is because not only do we consider that there is at least one ground of appeal with substance (as contemplated by Coca Cola Amatil (PNG) Ltd) but we take the view that the grounds raised by the fifth and sixth respondents in their Notices of Objection to Competency are without merit. We take this view for the following reasons.

(1) "Consent" orders

22. We are not persuaded that the orders made by his Honour on 24 August 2011 were "consent orders" within the meaning of Section 14(2) of the Supreme Court Act, which provides:

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

23. As explained by the Supreme Court in Simon Mali v Independent State of Papua New Guinea (2002) SC690 in relation to Section 14(2):

The provision is quite clear, and prohibits parties who have negotiated for settlement and eventually arrived at mutually acceptable terms for settlement or compromise from subsequently seeking to undo all these by challenging the result by appeal. There are perfectly good reasons for this prohibition, one of which we suggest would be to ensure that parties embark upon and conduct negotiations for settlement with frankness, full trust and confidence that bona fides will prevail and the final agreement(s) will be respected as binding between them. The other reason, and closely associated with this is in the public interest as stated by Brennan J (as he then was) in Permanent Trustee Co (Canberra) Ltd v. Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195 at 198.

24. As their Honours later observed in terms of that case:

For the appellants' lawyers to be talking about ban on appeals, lack of evidence of fraud etc. there would have to have been consent orders obtained and entered by following the "customary practice", in what may be described as, we would suggest, the proper and regular way. The Consent Order would have to have been "regularly entered", a phrase usually associated with default judgments. And that, simply put, means, firstly, obtaining the written consent of the State's lawyer to settle out of court, evidence by an endorsement on the draft in the form used in Drew v. Towers Investment Pty Ltd (supra). Only then, we would suggest, should any application be made to the court for its sanctioning of the settlement of the action, demonstrated by the judge's signature endorsed on the draft also. Once again, only then, armed with the two endorsements on the draft order should the lawyer(s) approach the Registrar (or his delegate) to formally enter the orders, by sealing and engrossing copy of the draft order without any alterations (see, once again, Drew v Towers Investment Pty Ltd, (supra)).

25. At the hearing before his Honour on 24 August 2011, the application to his Honour to endorse the "draft consent orders" then presented to the Court was moved by strangers to National Court proceedings WS No 1177 of 2007. Luhalipu Incorporated Land Group and Ase Tipurupeke Incorporated Land Group only became parties to the appeal currently in this Court by leave of Injia CJ on 20 September 2011 when they were joined as respondents to that appeal. They were not "parties" who had consented to the draft consent orders presented to Kandakasi J. Whether or not they "consented" to the draft orders put to his Honour is irrelevant.

26. The Orders of his Honour made on 24 August 2011 were not "consent orders" within the meaning of Section 14(2) of the Supreme Court Act. They were obtained by persons who were not parties to the proceedings, in the absence of persons who were parties to the proceedings. We accept the submission of the appellants that Ground 1 of both Notices of Objection to Competency must fail.

(2) Interlocutory decision

27. We are not persuaded that the orders of his Honour were "interlocutory" as contemplated by Section 14(3)(b) of the Supreme Court Act. Mr Ame for the fifth and sixth respondents submits that the orders were not final because, inter alia:

• the orders contemplate that the parties to the orders be given seven days to present to the ADR Court the Benefit Sharing Agreements by parties named in Schedule 1, inclusive of Souwolo and Wolotou ILG (Clans) and their beneficiaries (Order 5); and
  
• the orders contemplate that disputes may continue, in particular Order 7 which requires that royalty and equity monies be set aside until disputing parties settle their disputes.
  

28. However we do not accept this contention. Although his Honour's orders do contemplate ongoing activity in relation to the resolution of the dispute between the parties, Order 3 is clearly dispositive in excluding anyone other than the clans identified in Schedule 1 from recognition by relevant Governmental Institutions (including the Department of Petroleum and Energy) as customary land owning groups in the Gobe PDL 3 and PDL 4 areas. It follows that, in terms of these orders, the appellants were excluded from future recognition as customary land owning groups notwithstanding their involvement in the both the dispute and the alternative dispute resolution processes over a number of years.

29. Further, while not conclusive, we note that on 23 September 2011, in granting a stay on the enforcement of the Court's Order of 24 August 2011, Injia CJ observed:

[6] It is clear to me that the Order was dispositive of the substantive claim in the WS proceedings as it gave full effect to the various agreements that were concluded under a Court-annexed ADR process that was facilitated by the Court, involving accredited Mediators. ...

(emphasis added)

30. His Honour later observed:

[9] I am satisfied that the orders made were final in nature in that parts of the order finally disposed of the rights of the parties including the appellants, in particular the first respondent who is the principal plaintiff in the WS proceedings.

We agree.

31. It follows that Ground 2 of the first Notice of Objection to Competency fails.

(3) Standing of the appellants

32. We note that minimal submissions were made by Mr Ame on behalf of the fifth and sixth respondents in respect of the claimed lack of relevant land ownership interests in the appellants. Those submissions included:

• the appellants lay no claim to the specific area to which his Honour's Orders relate because they are not the original claimants; and
  
• the 14 clans named in Schedule 1 to his Honour's Orders recognise only each other and not the appellants.
  

33. These objections are not convincing. It is not in dispute that the first and second appellants were joined as parties to the National Court proceedings by Court Order on 5 May 2008. To that extent the first and second appellants appear to have an interest in the subject matter of the National Court proceedings. We further note that the third and fourth appellants were joined by order of the Supreme Court on 20 September 2011. To that extent, those appellants have an interest in the subject matter of the appeal.

34. The claim of the fifth and sixth respondents that the appellants lack standing itself lacks merit in this light, and further in light of the absence of submissions of any weight. It follows that Grounds 3, 4 and 5 of the first Notice of Objection to Competency and Ground 7 of the second Notice of Objection to Competency must fail.

(4) Questions of fact raised in appeal, without leave

35. We note that Section 14(1)(c) of the Supreme Court Act requires leave to be sought for an appeal on a question of fact. No similar leave is required where the appeal concerns a question of law (Section 14(1)(a)) or a question of mixed fact and law (Section 14(1)(b)).

36. In Ground 6 of the first Notice of Objection to Competency the fifth and sixth respondents challenge a number of grounds of appeal as raising issues of fact for which leave has not been sought or obtained by the appellants. Ground 5 of the second Notice of Objection to Competency makes a sweeping claim to the effect that the whole Amended Supplementary Notice of Appeal is incompetent because of facts raised in all grounds of that Notice of Appeal. In summary, the fifth and sixth respondents contend that the grounds of appeal identified in Ground 6 of the first Notice of Objection to Competency raise the following issues of fact:

• the failure of his Honour to satisfy himself of service and notice on other parties;
  
• the failure of his Honour to adjourn the matter on 24 August 2011;
  
• the omission of the appellants from being heard; and
  
• the conduct of the lawyer for the fifth and sixth respondents and the 12 other clans who are parties to the draft consent orders.
  

37. In response the appellants submit that where inferences or conclusions are drawn from the primary facts which cannot reasonably be drawn, there is an error of law, and that the grounds challenged raise either both mixed questions of fact and law, or simply questions of law.

38. The nature of a "question of law" compared with a "mixed question of fact and law" was considered by Prentice DCJ in Dillingham Corporation of New Guinea Pty Ltd v Diaz [1975] PNGLR 262 at p 270. There his Honour commented as follows:

The difficulty courts have in deciding whether questions relate to fact or law, is revealed in numerous judgments. ... Denning LJ (as he then was) tried to enlighten the distinction between "fact" and "law" in the following terms:

"On this point it is important to distinguish between primary facts and the conclusions from them. Primary facts are facts which are observed by witnesses and proved by oral testimony, or facts proved by the production of a thing itself, such as an original document. Their determination is essentially a question of fact for the tribunal of fact, and the only question of law that can arise on them is whether there was any evidence to support the finding. The conclusions from primary facts are, however, inferences deduced by a process of reasoning from them. If and so far as these conclusions can as well be drawn by a layman (properly instructed on the law) as by a lawyer, they are conclusions of fact for the tribunal of fact and the only questions of law which can arise on them are whether there was a proper direction in point of law and whether the conclusion is one which could reasonably be drawn from the primary facts: ... If and so far, however, as the correct conclusion to be drawn from primary facts requires, for its correctness determination by a trained lawyer – as, for instance, because it involves the interpretation of documents, or because the law and the facts cannot be separated, or because the law on the point cannot properly be understood or applied except by a trained lawyer – the conclusion is a conclusion of law on which an appellate tribunal is as competent to form an opinion as the tribunal of the first instance." (British Launderers' Research Association v Central Middlesex Assessment Committee and Hendon Rating Authority [1949] 1 All ER 21 at pp 25, 26.)

39. Subsequently in Waghi Savings and Loan Society Ltd v Bank of South Pacific Ltd (1980) SC185 Kapi J observed:

Where primary facts are found (which cannot be challenged on appeal except by leave of the court) the question of law is what is the proper conclusion to be drawn from those facts. It has been shown in decided cases that where inferences or conclusions are drawn from these primary facts which cannot reasonably be drawn, then this is an error of law. ...

40. In this case we are not persuaded that the questions raised by the appellants in their grounds of appeal are questions of fact for which the leave of the Court is required. We take this view because:

• Whether, under all the circumstances of the case and having regard to a number of factors, the judgment and orders of his Honour were unfair, harsh and oppressive is a question of law, or at the very least a mixed question of fact and law. The Court is asked to draw a conclusion from the facts presented, not to find those facts. The material in Grounds 3(a)(1) and (2) of the Amended Supplementary Notice of Appeal are facts presented to support the claim in Ground 3(a) itself.
  
• Whether the appellants were denied natural justice in light of their omission from the Orders of his Honour (as alleged in Ground 3(b) of the Amended Supplementary Notice of Appeal) is a question of law.
  
• Whether his Honour erred in declining to make Orders similar to those agreed upon by the parties (as alleged in Ground 3(f) of the Amended Supplementary Notice of Appeal) is a question of law.
  
• Whether his Honour erred in conducting a further hearing contrary to the TOR (as alleged in Ground 3(g) of the Amended Supplementary Notice of Appeal) is a question of law.
  
• Whether his Honour erred in conducting a further hearing after the conclusion of the ADR process (as alleged in Ground 3(h) of the Amended Supplementary Notice of Appeal) is a question of law.
  
• Whether his Honour erred in refusing to set aside previous Orders (as alleged in Grounds 3.2(i) and 3(k) of the Amended Supplementary Notice of Appeal) is a question of law.
  
• Whether his Honour erred in directing those parties and clans still having issues with the Court Orders to continue negotiating (as alleged in Ground 3(j) of the Amended Supplementary Notice of Appeal) is a question of law.
  

41. It follows that Ground 6 of the first Notice of Objection to Competency and Ground 5 of the second Notice of Objection to Competency must fail.

(5) Exhausting alternative avenues

42. As in our view the Orders of 24 August 2011 were not consent orders, it does not follow that the appellants are prevented from appealing to the Supreme Court against his Honour's Orders. Accordingly it follows that Grounds 7, 8 and 10 of the first Notice of Objection to Competency and Ground 4 of the second Notice of Objection to Competency must fail.

(6) Procedural requirements

43. The fifth and sixth respondents claim in Ground 9 of the first Notice of Objection to Competency that the appellants failed to "particularise laws breached". They also claim in the second Notice of Objection to Competency that:

• the appellants failed to comply with Order 7 Rule 12 of the Supreme Court Rules 1984 in respect of service of the Amended Supplementary Notice of Appeal (Ground 2);
  
• the Amended Supplementary Notice of Appeal was filed while the Supplementary Notice of Appeal was still extant, contrary to Order 7 Rule 24 of the Supreme Court Rules (Ground 3);
  
• no appeal was lodged within 40 days of his Honour's Orders of 13 September 2011 as required by Section 17 of the Supreme Court Act (Ground 6); and
  
• the appellants have not filed separate proceedings in the National Court to set aside his Honour's Orders for fraud or mistake, which would be proper procedure (Ground 8).
  

44. In our view these grounds are either unsubstantiated or lack merit. We note, for example, Ground 3 of the second Notice of Objection to Competency, and observe that the appellants filed an Amended Supplementary Notice of Appeal following a direction from the Supreme Court on 20 September 2011 to do so.

Conclusion

45. The objections of the fifth and sixth respondents to the grounds of appeal raised by the appellants in the Amended Supplementary Notice of Appeal are not substantiated. The appellate jurisdiction of the Court in respect of the Amended Supplementary Notice of Appeal has been validly invoked. The appropriate orders are to dismiss the objections to competency, with costs.

Orders:

46. The fifth and sixth respondents' objections to the competency of the Amended Supplementary Notice of Appeal as found in the Notices of Objection to Competency filed on 26 September 2011 and 14 October 2011 are dismissed.

47. The fifth and sixth respondents are to pay the costs of the first and second appellants of and incidental to the hearing of the objections to the competency of the Amended Supplementary Notice of Appeal, to be taxed if not otherwise agreed.

Judgment accordingly.
_____________________

Steeles Lawyers: Lawyers for the 1st & 2nd appellants
Pac-Oceania Lawyers: Lawyers for the 1st respondent
Ame Lawyers: Lawyers for the 5th & 6th respondents