Marape v Ok Tedi Fly River Development Foundation Ltd [2018] PGSC 96; SC1753 (24 December 2018)

SC1753

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 158 OF 2018

HON JAMES MARAPE MP, MINISTER FOR FINANCE
First Appellant

THE NATIONAL EXECUTIVE COUNCIL
Second Appellant

HARRY KORE, SECRETARY, DEPARTMENT OF
MINERAL POLICY AND GEO-HAZARDS MANAGEMENT
Third Appellant

DR KEN NGANGAN, SECRETARY, DEPARTMENT OF FINANCE
Fourth Appellant

DAIRI VELE, SECRETARY, DEPARTMENT OF TREASURY
Fifth Appellant

HAKAUA HARRY, SECRETARY, DEPARTMENT OF
NATIONAL PLANNING AND MONITORING
Sixth Appellant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Appellant

V

OK TEDI FLY RIVER DEVELOPMENT FOUNDATION LIMITED
Respondent

Waigani: Cannings J, Makail J, Polume-Kiele J
2018: 17, 24 December

PRACTICE AND PROCEDURE – objection to competency of appeal on various grounds – judgment the subject of appeal was interlocutory and leave to appeal not sought – issues raised in notice of appeal were not raised in National Court – failure to obtain approval of Attorney-General prior to filing appeal: Attorney-General Act 1989, Section 7(i); Public Money Management Regularisation Act, Section 10.

Facts

The respondent to an appeal objected to competency of the appeal on four grounds: (1) the appellants did not obtain or seek leave to appeal, which was necessary as the judgment appealed from was interlocutory and the appeal involved questions of fact; (2) the issues referred to in the notice of appeal were not raised in the National Court; (3) the appeal was filed in breach of Section 7(i) of the Attorney-General Act 1989; and (4) the appeal was filed in breach of Section 10 of the Public Money Management Regularisation Act 2017.

Held:

(1) The judgment appealed against was not interlocutory and leave to appeal was not required. Further, if the judgment under appeal were regarded as interlocutory, it entailed granting an injunction, in which case per force of Supreme Court Act, Section 14(3)(b)(ii), leave to appeal was not required.

(2) The fact that issues raised in the notice of appeal were not raised in the National Court, even if there was adequate opportunity to raise them, is not a matter going to the jurisdiction of the Court. It is a matter for submissions at the hearing of the appeal.

(3) The failure to obtain approval for a brief-out from the Attorney-General is only a matter going to the jurisdiction of the Court if no approval whatsoever is obtained. Here the Attorney-General gave retrospective approval so there was no material breach of Section 7(i) of the Attorney-General Act.

(4) There was, for similar reasons provided in relation to Section 7(i) of the Attorney-General Act, no material breach of Section 10 of the Public Money Management Regularisation Act.

(5) All grounds of objection failed, therefore the objection to competency was dismissed, with costs.

Cases cited

The following cases are cited in the judgment:

Application by Herman Joseph Leahy (2006) SC855
Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853
Comrade Trustee Services Ltd v Arnold Daugle (2011) SC1105
Curtain Brothers (PNG) Ltd v University of Papua New Guinea (2005) SC788
Ezekiel Sigi Anisi v Tony Waterupu Aimo (2013) SC1237
Kitogara Holdings v NCDIC [1988–89] PNGLR 346
Marape v O’Neill (2016) SC1487
Michael Kuman v Digicel (PNG) Ltd (2017) SC1638
Papua Club Inc v Nusaum Holdings Ltd (2005) SC812
Philip v Makiba (2018) SC1725
Punagi v Pacific Plantation Ltd (2011) SC1153
Sakaraias Akap v Kenneth Korakali (2012) SC1179
Telikom PNG Ltd v ICCC (2008) SC906
Valu v Ngangan (2018) SC1723
Van Der Kreek v Van Der Kreek [1979] PNGLR
Yakham v Merriam [1998] PNGLR 555

OBJECTION

This was an objection to competency of an appeal.

Counsel

A Mana, for the Appellants
G J Sheppard & G Salika, for the Respondent

24^th December, 2018

1. BY THE COURT: This is a ruling on an objection to competency of an appeal to the Supreme Court. The objection is made by the respondent, Ok Tedi Fly River Development Foundation Ltd, under an amended notice of objection to competency filed 17 December 2018.

2. The appeal, SCA No 158 of 2018, which the respondent says is incompetent, is brought by the appellants, the Minister for Finance the Honourable James Marape MP and six others including the State, against the extempore decision of Justice Koeget made on 5 September 2018 in the National Court at Waigani in proceedings described as OS No 75 of 2018, Ok Tedi Fly River Development Foundation Ltd v Hon James Marape, Minister for Finance & 6 Others.

NATIONAL COURT CASE: OS 75 OF 2018

3. The case is about control of a trust account set up to provide compensation to traditional landowners for environmental pollution associated with the Ok Tedi mine in Western Province. The trust account is the “Western Province Community Mine Continuation Agreement Region People’s Dividend Trust Account”, also known as the “WPPDTA-CMCA”. It has been established by instruments executed and subsequently amended by various Ministers for Finance or the Secretary for Finance under the Public Finances (Management) Act in the period from 2007 to 2017.

4. The respondent was the plaintiff in the National Court and filed the proceedings in the Daru Registry. The defendants were:

1. Hon James Marape, Minister for Finance;
2. The National Executive Council;
3. Harry Kore, Secretary, Department of Mineral Policy & Geo-hazards Management;
4. Dr Ken Ngangan, Secretary, Department of Finance;
5. Dairi Vele, Secretary, Department of Treasury;
6. Hakaua Harry, Secretary, Department of National Planning & Monitoring;
7. The Independent State of Papua New Guinea.
   

5. On 5 September 2018 Koeget J, after a series of hearings at Daru, Tabubil and Waigani, made an order, apparently on determining a notice of motion by the plaintiff, in the following terms:

THE COURT ORDERS THAT:

1. A declaration pursuant to Order 23, Rule 6(b) of the National Court Rules 1983 (as amended) (“the NCR”), sections 22, 23, 57, 58 and 155(4) of the Constitution, sections 5 and 15 of the Laws Adoption and Adaptation Act Chapter 20, section 3 of the Underlying Law Act 2000 that it [sic] has standing to bring these proceedings on behalf of the beneficiaries of the Western Province Community Mine Continuation Agreement Region People’s Dividend Trust for the enforcement of their human rights and freedoms under the Constitution, including equitable compensation and restitution consequential upon making the Orders herein.
   
2. An order that within seven days of the date of this order, the Board of Trustees [sic] provide to the Plaintiff, through its lawyers, an account of the Trust Property in the form required by section 19(3) and (4) of the Public Finances (Management) Act 1995 (as amended), in respect to the Trust Property from November 1995 to the present day.
   
3. An order that following the receipt of the account ordered to be provided in Order 3 [sic] hereof, or after the time limited for the provision of such account (whichever is sooner), the Plaintiff are [sic] at liberty to institute fresh proceedings to: (a) identify any illegal payments found to have been made by the Board of Trustees, as constituted from time to time, from the Trust property, and the parties to whom such payments were made, and/or (b) recover such payments, and/or (c) recover damages for such other breaches of the trust duties as the Plaintiff may reclaim.
   
4. Terms 2 and 3 of the orders of the Court made on 3 August 2018 are made permanent such that: (a) the Plaintiff is substituted forthwith for the existing Trustees of the Western Province Community Mine Continuation Agreement Region People’s Dividend Trust Account (“WPPDT-CMCA”) established pursuant to the instrument executed on 12 June 2007 by Honourable Mr John Hickey and amended by Honourable Mr James Marape on 9 April 2014, and Dr Ken Ngangan dated 30 October 2017; (b) The Australia and New Zealand Banking Group (PNG) Ltd (“ANZ”) shall only operate the bank account comprising the Trust Property, that is account no. 12767475, on the exclusive authority and direction of the proper officer of the Plaintiff and no other person or entity.
   
5. Costs to the Plaintiff.
   
6. Time is abridged to the time of settlement by the Registrar which shall take place forthwith.
   

GROUNDS OF APPEAL

6. There are five grounds of appeal, which can be summarised as follows:

1. that the appellants were not given proper notice of the proceedings of 5 September 2018;
   
2. that the National Court erred in declaring that the respondent had standing to commence the proceedings in the National Court in that it was not a legitimate representative of the beneficiaries of the trust account;
   
3. that the National Court erred in ordering the board of trustees to provide an account of trust property to the respondent in that the respondent lacked standing to commence the National Court proceedings and the order was ambiguous etc;
   
4. that the National Court erred in declaring that the respondent is at liberty to commence fresh proceedings as the respondent comprises only 12 individuals and has no entitlement to the trust property;
   
5. that the National Court erred in ordering that the respondent is substituted forthwith for the existing trustees of the trust account and that the ANZ Bank only operate the bank account on the exclusive authority and direction of the respondent’s proper officer in that the respondent lacked standing to commence the National Court proceedings and the respondent had no claimable interests prior to the date of its incorporation, 23 September 2016, etc.
   

GROUNDS OF OBJECTION

7. The respondents object to the competency of the appeal on four grounds, set out in an amended notice of objection to competency filed 17 December 2018:

1. the appellants did not obtain or seek leave to appeal, which was necessary as the order appealed from is interlocutory in nature;
   
2. the issues referred to in the notice of appeal were not raised in the National Court;
   
3. the appeal was filed in breach of Section 7(i) of the Attorney-General Act 1989;
   
4. the appeal was filed in breach of Section 10 of the Public Money Management Regularisation Act 2017.
   

We address each ground of objection in turn.

GROUND OF OBJECTION 1: APPELLANTS DID NOT SEEK LEAVE TO APPEAL AGAINST INTERLOCUTORY JUDGMENT

8. The respondent argues that the appellants required leave to appeal before filing their notice of appeal, as the appeal is against an interlocutory judgment of the National Court. It is argued that leave was required under Section 14(3)(b) of the Supreme Court Act.

9. Section 14 (civil appeals to the Supreme Court) states:

(1) Subject to this section, an appeal lies to the Supreme Court from the National Court—

(a) on a question of law; or

(b) on a question of mixed fact and law; or

(c) with the leave of the Supreme Court, on a question of fact.

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

(3) No appeal lies to the Supreme Court without leave of the Supreme Court—

(a) from an order allowing an extension of time for appealing or applying for leave to appeal; or

(b) from an interlocutory judgement made or given by the National Court except—

(i) where the liberty of the subject or the custody of infants is concerned; or

(ii) in cases of granting or refusing an injunction or appointing a receiver; or

(iii) in such other cases prescribed by the Rules of Court as are in the nature of final decisions; or

(c) from an order of the National Court as to costs only that by law are left to the discretion of the National Court.

(4) An order refusing unconditional leave to defend an action shall not be deemed to be an interlocutory judgement.

10. The respondent argues that the order of 5 September 2018 is procedural in character, inherently open to be altered as time goes on, and therefore interlocutory. The order did not finally determine the proceedings in the National Court, which are ongoing, which is evident from the fact that not all the orders claimed under the originating summons have been the subject of judicial consideration. Therefore leave of the Supreme Court is required for an appeal against such an order.

11. We agree with the observation that there are some orders claimed in the further amended originating summons that remain to be determined by the National Court. They were not before the Court for its consideration on 5 September 2018. So the proceedings have not, in that sense, been finalised.

12. However we do not consider that that aspect of the National Court proceedings is determinative of the issue of whether the order of 5 September 2018 is an “interlocutory judgment”. It is necessary to focus on the terms and effect of the Court’s order and apply the test for determining whether a judgment is interlocutory or final derived from the leading case of Punagi v Pacific Plantation Ltd (2011) SC1153. If the order finally determines the litigation or if it finally determines certain issues between the parties, it is not interlocutory.

13. We note that the order of 5 September 2018 did not finally determine OS 75 of 2018, but it did finally determine some significant issues. We summarise the order as follows:

• Number 1 is a declaration as to standing to bring the proceedings, OS 75 of 2018. It is loosely expressed, as the subject of the sentence comprising the order is “it”. But “it” is not defined. Presumably “it” is intended to be a reference to the respondent.
  
• Number 2 is an order that within seven days “the Board of Trustees” provide an account of trust property to the respondent. This order is also loosely expressed as “the Board of Trustees” is not a party to the proceedings and that term is not defined in the order.
  
• Number 3 is an order that following receipt of the account provided under order 2 (the order actually states “provided in order 3” but clearly “order 2” was intended), the respondent is at liberty to commence “fresh proceedings” to recover illegal payments.
  
• Number 4 is an order that orders made on 3 August 2018 are “made permanent” such that (a) the respondent is substituted forthwith for the existing trustees of the trust account at the centre of the proceedings, the “WPPDTA-CMCA”; and (b) the ANZ Bank shall only operate the trust account on the exclusive authority and direction of the respondent’s proper officer.
  

14. We find that each of orders 1 to 4 is a final order as it finally determines a claim for relief expressly or impliedly sought in the further amended originating summons. Number 1 finally determines the issue of the respondent’s standing. Number 2 finally determines the question of whether the Board of Trustees had to provide an account of the trust account. Number 3 is a final order that the respondent is at liberty to commence “fresh proceedings”. Number 4 refers to previous orders that are “made permanent”. All orders are final by dint of their terms and their effect. None is interlocutory. The judicial decision by which the order of 5 September 2018 was made is therefore not an “interlocutory judgment”.

15. Furthermore, even if it were regarded as an interlocutory judgment, the order of 5 September 2018 was a case of ‘granting an injunction’, in which case Section 14(3)(b)(ii) would apply and leave to appeal against it was not required.

Ground of objection No 1 is refused.

GROUND OF OBJECTION 2: ISSUES RAISED IN THE NOTICE OF APPEAL WERE NOT RAISED IN THE NATIONAL COURT

16. This ground of objection states:

The issue or questions referred to in the notice of appeal were not raised in the National Court by the appellants, despite there being ample opportunity to do so.

17. The respondent argues that the appellants did not raise any of the points of law or fact raised in the notice of appeal in the National Court, though they had the opportunity to do so. Therefore they cannot raise the points on appeal.

18. We reject this argument because, even if an appellant includes in a notice of appeal a point of law that was clearly not raised in the National Court when there was an opportunity to raise it, this is not a matter that goes to the jurisdiction of the Supreme Court (Philip v Makiba (2018) SC1725). It is a matter for submissions at the hearing of the appeal. It is not a proper ground of objection to competency.

19. Furthermore, it must be noted that there are two competing lines of authority on whether it is permissible for an appellant in the Supreme Court to argue points of law that were not raised in the National Court.

20. One line of cases says it not permissible: Fly River Provincial Government v Pioneer Health Services Limited (2003) SC705, Curtain Brothers (PNG) Ltd v University of Papua New Guinea (2005) SC788, Chief Collector of Taxes v Bougainville Copper Ltd (2007) SC853, Sakaraias Akap v Kenneth Korakali (2012) SC1179 and Ezekiel Sigi Anisi v Tony Waterupu Aimo (2013) SC1237.

21. Another line of cases says that a party can raise in the Supreme Court a point of law not put before the National Court, if it seeks and obtains the leave of the Court to do so: Van Der Kreek v Van Der Kreek [1979] PNGLR 185, Papua Club Inc v Nusaum Holdings Ltd (2005) SC812, Application by Herman Joseph Leahy (2006) SC855, Telikom PNG Ltd v ICCC (2008) SC906 and Comrade Trustee Services Ltd v Arnold Daugle (2011) SC1105.

22. This ground of objection presupposes that the first line of authority is the dominant one, but that is not necessarily the case. The issue is a live one and can only be determined after submissions at the hearing of the appeal.

Ground of objection No 2 is refused.

GROUND OF OBJECTION 3: APPEAL FILED IN BREACH OF ATTORNEY-GENERAL ACT, SECTION 7(i)

23. This ground of objection states:

That the notice of appeal as filed on 28 September 2018, fails to comply with the requirements of section 7(i) of the Attorney-General Act 1989 in that the Attorney-General, had not at the time of filing of the appeal, or since, authorised and/or instructed Corrs Chambers Westgarth to appear for the appellant in this matter.

24. It relies on Section 7(i) of the Attorney-General Act, which states:

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

to instruct lawyers within or outside the country to appear for the State in any matter.

25. Before setting out the respondent’s argument in support of this ground of objection, we state some uncontentious facts:

• when Mr Mana of Corrs Chambers Westgarth Lawyers appeared before the primary Judge on 5 September 2018 (when he made an oral application for adjournment, which was refused) that firm had been instructed, by a letter dated 29 August 2018, by the Attorney-General, Hon Davis Steven MP, under Section 7(i), to appear for the appellants in the National Court proceedings, OS 75 of 2018;
  
• when Corrs Chambers Westgarth filed the present appeal, SCA 158 of 2018, on 28 September 2018, it carried no express instructions from the Attorney-General to file the appeal or appear for the State or the appellants in the Supreme Court proceedings;
  
• on 3 November 2018 the Attorney-General gave instructions in writing to Corrs Chambers Westgarth to act on behalf of the appellants in SCA 158 of 2018, expressing the view that the appeal is in effect an extension of the proceedings in OS 75 of 2018 and that the “brief out” was retrospective to the date of filing the appeal.
  

26. The respondent argues that the Attorney-General’s attempt to retrospectively instruct and authorise Corrs Chambers Westgarth to file the appeal is of no consequence as far as the competency of the appeal is concerned. Mr Sheppard submits that it is necessary that a law firm have express instructions of the Attorney-General before filing an appeal by the State (or an entity tantamount to the State). If such instructions are not in place the appeal is incompetent. He relies on two Supreme Court cases in support of that argument: Marape v O’Neill (2016) SC1487 and Valu v Ngangan (2018) SC1723.

27. Both cases go to the question of the circumstances in which it is necessary for a law firm to carry instructions from the Attorney-General to act for the State or an officer of the State or a State-related entity. The decision in Valu, which upheld an objection to competency of an appeal, established that the absence of necessary instructions is a matter going to the jurisdiction of the Supreme Court, and is a sufficient ground on which to rule that an appeal is incompetent.

28. However, the facts in both cases can be distinguished from those in the present case. In both cases the firms and the counsel who sought to appear in court proceedings had no instructions at all from the Attorney-General. Here, the Attorney-General has given instructions, retrospectively. We see nothing in the Attorney-General Act to prohibit that. We regard the retrospective operation of instructions as consistent with the policy and purpose of Section 7(i): to ensure that the Attorney-General is able to control and regulate State brief-outs. This is a matter properly falling within the statutory responsibility and discretion of the Attorney-General.

29. We rule that the effect of the instruction of 3 November 2018, made retrospective to 28 September 2018, was to enliven the jurisdiction of the Supreme Court with effect from 28 September 2018.

Ground of objection No 3 is refused.

GROUND OF OBJECTION 4: APPEAL FILED IN BREACH OF PUBLIC MONEY MANAGEMENT REGULARISATION ACT, SECTION 10

30. This ground of objection states:

That the notice of appeal as filed on 28 September 2018, by reason of the failure referred to in [ground of objection 3], does not comply with the requirements of section 10 of the Public Money Management Regularisation Act 2017 ... for the reason that the Attorney-General, had not at the time of filing of the appeal, or since, authorised and/or instructed Corrs Chambers Westgarth to appear for:

(i) the statutory officers named as the first, second, third fourth, fifth and sixth [sic]; and

(ii) the Independent State of Papua New Guinea

in this matter.

31. It relies on Section 10 of the Public Money Management Regularisation Act, which states:

(1) For the purposes of this Act, a public or statutory body shall not engage legal representation, commence any action or other proceeding in any court or tribunal or procure or contract for legal representation for any purpose other than in compliance with the Attorney-General Act 1989.

(2) Prior to the Attorney-General exercising his powers pursuant to Section 7 of the Attorney-General Act 1989 —

(a) the State Solicitor shall certify to the Attorney-General whether the lawyers to be appointed are, in the opinion of the State Solicitor, experienced and with sufficient professional competence in the area of law to represent a public or statutory body; and

(b) the Attorney-General shall satisfy himself that all procurement laws in Papua New Guinea have been complied with to the extent necessary for him to exercise his powers.

(3) Legal representatives of public and statutory bodies shall not receive or charge for any fees or disbursements other than taxed party-party or solicitor-client costs on the scale of fees of the appropriate Court.

(4) For the purposes of this section and Section 11 —

"public body" means an agency which is part of the State Services established under Part VII of the Constitution and includes a Provincial Government or Local-level Government established under the Organic Law on Provincial Governments and Local-level Government; and

"statutory body" means a body, authority or instrumentality (incorporated or unincorporated) established under an Act of the Parliament or howsoever otherwise for governmental or official purposes, including a subsidiary statutory body that is not a public body, and includes a body, authority or instrumentality (incorporated or unincorporated) established by a Provincial Government or Local-level Government or their subsidiary statutory bodies that are not public bodies.

32. This ground of objection relies on the same argument underpinning ground of objection No 3: the statutory brief-out requirements are prospective and cannot be cured by retrospective articulation, even if obtained. We rejected that argument in refusing ground 3. We reject it again. It would be contrary to the policy and purpose of the statutory provisions to prevent the Attorney-General from exercising his discretion in a retrospective manner.

Ground of objection No 4 is refused.

CONCLUSION
33. All grounds of objection to the competency of the appeal are refused. The objection to competency will be refused. The appeal will be referred to the Duty Judge. Costs will follow the event.

ORDER

1. The objection to competency is dismissed.
   
2. The appeal is referred to the Duty Judge, to give directions for hearing the appeal in accordance with Order 13 of the Supreme Court Rules.
   
3. The respondent shall pay the appellants’ costs of the objection to competency on a party-party basis, which shall, if not agreed, be taxed.
   

Judgment accordingly.

_______________________________________________________________
Corrs Chambers Westgarth Lawyers: Lawyers for the Appellants
Young & Williams Lawyers: Lawyers for the Respondent