Marape v Ok Tedi Fly River Development Foundation Ltd [2019] PGSC 33; SC1806 (9 May 2019)

SC1806

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 158 OF 2018

BETWEEN
HON. JAMES MARAPE, in his capacity as MINISTER FOR FINANCE
First Appellant

AND
THE NATIONAL EXECUTIVE COUNCIL
Second Appellant

AND
HENRY KORE, in his capacity as SECRETARY FOR DEPARTMENT OF MINERAL POLICY & GEOHAZARDS MANAGEMENT
Third Appellant

AND
DR KEN NGANGAN, in his capacity as SECRETARY FOR DEPARTMENT OF FINANCE
Fourth Appellant

AND
DAIRI VELE, in his capacity as SECRETARY FOR DEPARTMENT OF TREASURY
Fifth Appellant

AND
HUKAUA HARRY, in her capacity as SECRETARY FOR DEPARTMENT OF NATIONAL PLANNING AND MONITORING
Sixth Appellant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Seventh Appellant

AND
OK TEDI FLY RIVER DEVELOPMENT FOUNDATION LIMITED
Respondent

Waigani: Makail, J
2019: 1^st & 9^th May

SUPREME COURT – PRACTICE & PROCEDURE – Slip Rule – Application for leave – Leave sought to revisit judgment of Supreme Court – Alleged misapprehension of provision of Statute – Statutory interpretation – Proper construction to be given to Section 10 of Public Money Management Regularisation Act, 2017 – Attorney-General Act, 1989 – Section 7(i)- Supreme Court Rules – Order 11, rule 32

STATUTORY INTERPRETATION – Meaning of public and statutory bodies in the context of Section 10 (4) of Public Money Management Regularisation Act, 2017 considered

Cases Cited:

Hon. James Marape & 6 Ors v. Ok Tedi Fly River Development Foundation Limited (2018) SC1753
Mineral Resources CMCA Holdings Limited v. Ok Tedi Fly River Development Foundation Limited (2018) SC 1752
Marabe v. Tomiape (2007) SC856
Donald Valu v. Ken Ngangan & Ors (2018) SC1723

Counsel:

Mr. A. Mana, for Appellants
Mr. R. J. Webb SC with Ms. G. Salika, for Respondent

RULING

9^th May, 2019

1. MAKAIL, J: This is an application for leave to make a slip rule application pursuant to Order 11, rule 32 of the Supreme Court Rules (“SCR”). The respondent seeks to have the Supreme Court revisit its judgment delivered on 24^th December 2018: see Hon. James Marape & 6 Ors v. Ok Tedi Fly River Development Foundation Limited (2018) SC 1753.

Background Facts

2. The facts of this case are substantially identical to those in Mineral Resources CMCA Holdings Limited v. Ok Tedi Fly River Development Foundation Limited (2018) SC 1752. These are, on 28^th September 2018 Corrs Chambers Westgarth Lawyers filed the notice of appeal in this matter without obtaining approval from the Attorney-General. It was not until 3^rd November 2018 that the Attorney-General gave approval by letter to Corrs Chambers Westgarth Lawyers to act for the appellants in the appeal.

3. On 24^th October 2018 Young and Williams Lawyers acting on behalf of the respondent filed a notice of objection to competency and subsequent to that, on 13^th December 2018 filed an amended notice of objection to competency. By the amended objection the respondent relied on six grounds but pertinent to the present application are grounds five and six. They are in the following terms:

Ground Five

“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.”

Ground Six

“That the notice of appeal as filed on 28 September 2018, by reason referred to in [ground of objection 5, 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 the appellant in this matter.”

5. On 14^th December 2018 the Supreme Court comprised of Cannings J, Makail J and Polume-Kiele J heard the respondent’s amended objection to competency and adjourned to 17^th December to complete it. At the hearing it was accepted by the parties that the Attorney-General gave his approval by way of a letter dated 3^rd November 2018 to Corrs Chambers Westgarth Lawyers to act for the appellants in this matter. It was argued for the respondent that the statutory brief-out requirements are prospective and cannot be cured by retrospective articulation, even if obtained after commencement of proceedings, as was in this case. The Court reserved its ruling.

Ruling of Supreme Court on Objection to Competency

4. On Christmas-eve the Supreme Court delivered its ruling dismissing the objection in its entirety. In relation to grounds five and six, the Court held that it would be contrary to public policy and purpose of statutory provisions to prevent the Attorney-General from exercising his discretion in a retrospective manner.

Factual Difference

5. The only difference between this case and the other one is that, the appellants are different and that there are seven of them as opposed to one. Save for the Minister for Finance and the National Executive Council (“NEC”) being named as first and second appellants respectively, the third to sixth appellants are Departmental Heads of State departments of Mineral Policy & Geohazards Management, Finance, Treasury and National Planning and Monitoring. As it is the employer, the State is vicariously liable for acts and/or omissions of the Minister, NEC and Departmental Heads and their respective departments, this it is being named as the seventh appellant in this appeal.

Principles relevant to leave

6. A party who requests the Supreme Court to revisit its judgment must first obtain leave. Leave is discretionary and may be sought from a judge of the Court making the order from which the application arises pursuant to Order 11, rule 32(3) of the SCR. The applicant must satisfy the Court that the slip rule application would have a strong chance of success. To determine that question, the Court is guided by seven general principles identified by the Supreme Court in Marabe v. Tomiape (2007) SC856. These are:

(a) there is a substantial public interest in the finality of litigation;
(b) on the other hand, any injustice should be corrected;
(c) the court must have proceeded on a misapprehension of fact or law;
(d) the misapprehension must not be of the applicant’s making;
(e) the purpose is not to allow rehashing of arguments already raised;

(f) the purpose is not to allow new arguments that could have been put to the court before;

(g) the court must, before setting aside its previous decision, be satisfied, that it made a clear and manifest, not an arguable, error of law or fact on a critical issue.

Grounds in support of Leave

7. In the present application the respondent pointed out the difference between the appellant parties in the two appeals (SCA No 157 of 2018 and SCA No 158 of 2018) and how Section 10 of the Public Money Management Regularisation Act, 2017 (“PMMR Act”) and Section 7(i) of the Attorney-General Act, 1989 (“A-G Act”) apply to them. It added that the Supreme Court misapplied the decision in Donald Valu v. Ken Ngangan (2018) SC1723 which was direct authority for the proposition that approval must be sought and granted by the Attorney-General prior to commencement of proceedings and if that was done, the Court would have upheld the two grounds of objection.

8. The appellants’ counsel made it abundantly clear and repeatedly throughout his oral submission that according to the Preamble of the PMMR Act, the said Act applies to regularising the handling and managing of public money received by public and statutory bodies. In this case none of the appellants would be regarded as a public or statutory body within the meaning of Section 10(4) of the PMMR Act.

Section 10 of the PMMR Act

9. Section 10 of the PMMR Act is set out in full below:

“10. Legal representation of public and statutory bodies.

(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.”

10. Having regard to the Preamble and Section 10(4) of the PMMR Act, I am satisfied that the said Act has limited application to the Minister, the NEC, the State, its departments and Departmental Heads to the extent that the appellants are not required to comply with Section 10 and more so Sub-section 2(a) and (b) by establishing to the satisfaction of the Court that the State Solicitor has certified to the Attorney-General that the appellants’ lawyers, as appointed, in the opinion of the State Solicitor, are experienced and have sufficient professional competence in the area of law to represent the appellants and secondly, that the Attorney-General has satisfied himself that all procurement laws in Papua New Guinea have been complied with to the extent necessary for him to exercise his powers. This is because they cannot be regarded as a public or statutory body within the meaning of Section 10(4) of the PMMR Act.

Section 7(i) of the A-G Act

11. On the contrary, they come under Section 7(i) of the A-G Act which states that:

“7. Duties, functions and responsibilities of the Attorney-General.
The duties, functions and responsibilities of the Attorney-General are —”

(i) to instruct lawyers within or outside the country to appear for the State in any matter;.........”

12. In this instance, approval from the Attorney-General was given by letter dated 3^rd November 2018 to Corrs Chambers Westgarth Lawyers to act for the appellants in this appeal. There is nothing preventing the Attorney-General from giving a retrospective appeal as was held by the Supreme Court last year.
13. Finally, the case of Donald Valu v. Ken Ngangan was correctly applied by the Supreme Court to the peculiar facts of that case and that the Court did not misapprehend the ruling. Any suggestion by the respondent to the contrary must fail.

14. As noted at [6] above, one of the considerations which would entitle the respondent to leave is that, it must be able to establish that the Court proceeded on a misapprehension of fact or law. In the present case, I am not satisfied that if leave were granted, the respondent will be able to successfully demonstrate to the Court that the Court misapprehended the law under Section 10(2)(a) and (b) of the PMMR Act and Section 7(i) of the A-G Act.

15. A final consideration which the Court will have regard to is that, the Court must, before setting aside its previous decision, it must be satisfied it made a clear and manifest, not an arguable, error of law or fact on a critical issue. For the reasons already given regarding the construction of Section 10(2)(a) and (b) of the PMMR Act in conjunction with Section 7(i) of the A-G Act, I am not satisfied that the respondent will be able to successfully demonstrate at the hearing proper that the Court made clear and manifest error in its consideration of these two statutory provisions regarding the critical issue whether the authority of the Attorney-General to instruct or engage the present lawyers for the appellant was not validly engaged.

Conclusion

16. For the foregoing reasons, I am not satisfied that the respondent has demonstrated that it has a strong chance of success if leave were granted. Leave will be refused with costs.

Order

17. The orders are:

1. The application for leave to make a slip rule application is refused.

2. The appeal is adjourned to the next date for directions hearing, to be advised by the Court, in consultation with the parties.
   
3. The respondent shall pay the costs of the application, to be taxed, if not agreed.

________________________________________________________________
Corrs Chambers Westgarth Lawyers: Lawyers for Appellants
Young & Williams Lawyers: Lawyers for Respondent