Keko v Barrick (Niugini) Ltd [2019] PGSC 92; SC1870 (29 October 2019)

SC1870

PAPUA NEW GUINEA
[IN THE SUPREMECOURT OF JUSTICE]

SCA NO 115 OF 2016

BETWEEN
ANDITA KEKO AND 13 OTHER LANDOWNER AGENTS AS NAMED IN THE SCHEDULE TO THIS ORIGINATING SUMMONS
First Appellant

AND:
JUSTICE FOUNDATION FOR PORGERA LTD
Second Appellant

AND:
BARRICK (NIUGINI) LTD
First Respondent

AND:
HONOURABLE BYRON CHAN, MP MINISTER FOR MINING OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

AND:
THE ATTORNEY GENERAL AS NOMINAL DEFENDANT FOR THE GOVERNOR GENERAL OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Respondent

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent

Waigani: Salika CJ, Collier and Miviri JJ
2019: 29 October

SUPREME COURT – CIVIL APPEAL – failure of appellants to have regard to relevant legislation answering appeal – whether court should grant leave to appellants to discontinue appeal after arguments heard – whether costs should be awarded on party/party or indemnity basis

HELD: At the conclusion of argument in the appeal, the appellants conceded that s 46 of the Public Finances (Management) Act 1986 was a complete answer to the issues raised in their appeal. The appellants sought to “withdraw” the appeal at that point. The Court refused to grant leave to the appellants to discontinue the appeal as the case had been heard. The Court dismissed the appeal with costs against the appellants on an indemnity basis.

Cases Cited

Paul Paraka Lawyers v Public Officers Superannuation Fund Board [2014] SC1363

Legislation Cited

Public Finances (Management) Act 1986
Public Finances (Management) Act 1995

Counsel

Mr M. Finnane QC with Mr A. Kostopoulos and Mr P. Harry, for the Appellants
Mr M. M. Varitimos QC with Mr R. Bradshaw and Mr W. Mininga, for the First Respondent

REASONS FOR JUDGMENT

29 October, 2019

1. BY THE COURT: We have heard both the appellants and the first respondent in this appeal.
   
2. At the conclusion of the first respondent’s submissions, Mr Finnane QC, Counsel for the appellants, began his reply on behalf of the appellants. Inresponse to a question from the Bench concerning the operation of s 46 of the Public Finances (Management) Act 1986, Counsel for the appellants asked for a short adjournment to allow the appellant’s time to reconsider their position. The Court agreed to grant them that short adjournment.
   
3. On resumption of the hearing, the Court was informed by Counsel for the appellants that the appellants sought towithdraw the appeal, and further that they sought an order that costs be awardedon the normal party/party basis.
   
4. Mr Varitimos QC, Counsel for the first respondent, submitted that the matter should be discontinued by the appellants in accordance with the Supreme Court Rules, rather than the appellants purporting to “withdraw” the appeal. Counsel for the first respondent then submitted that costs should be awarded to the first respondent on an indemnity basis, on the basis that the entire appeal was unmeritorious from the beginning, and a complete waste of time of all involved.
   
5. We have considered all that has been said by both Counsel. As the facts of these proceedings clearly showed, the Governor-General, on advice, signed the relevant Mining Development Contract on 12 May 1989 on behalf of the State in the absence of a specific provision in any law as to the person or authority empowered to execute that agreement. Section 46 of the Public Finances (Management) Act 1986 – as then in force in this country – clearly provides a complete answer to the claim of the appellants in this appeal. That section specifically provided that where there was no provision in any law as to the person or authority empowered to execute a contract or agreement on behalf of the State, the contract or agreement could be executed by, inter alia, the Head of State, acting on advice. We note that this provision is in similar terms to s 47 of the Public Finances (Management) Act 1995 which repealed and replaced the 1986 Act.
   
6. The appellants accept that s 46 of the Public Finances (Management) Act 1986 provides a complete answer to their appeal.
   
7. We have considered the statement of Counsel for the appellants, who sought to “withdraw” the appeal on the basis that s 46 of the Public Finances Management Act 1986 “was not brought to his attention”. However as is apparent from page 1358 of the transcript of the proceedings in the National Court, Counsel for the first respondent specifically raised the issue of s 46 of the Public Finances (Management) Act 1986 before the trial Judge. The appellants were represented by their current lawyers at that National Court hearing.
   
8. To that extent, we reject the submission that s 46 of the Public Finances (Management) Act 1986 was not brought to the attention of the appellants or their Counsel.
   
9. Even if s 46 of the Public Finances (Management) Act 1986 were not brought to the attention of Counsel for the appellants prior to the hearing of this appeal, we note that it is the responsibility of the lawyers and Counsel for the appellants to be familiar with relevant legislation,case law, and legal principles applicable to the claims of their clients.
   
10. We have heard the arguments of both the appellants and the first respondent. In respect of the appellants’ request to “withdraw” the appeal, or the suggestion that it be discontinued – we consider that neither of these options is acceptable. The appeal is complete, and it is too late in our view for the appellants to discontinue it.
    
11. The appropriate order is that the appeal be dismissed with costs against the appellants.
    
12. Further, we consider the appellants should pay the costs of the first respondent on an indemnity basis. In this respect we rely on the Supreme Court case of Paul Paraka Lawyers v Public Officers Superannuation Fund Board [2014] SC1363. We note in particular the following comments of Justice Gabi (with whom Justice Sakora agreed) in that case:

7. With respect to costs, it is important to bear in mind that the appellant abandoned several reliefs it claimed in its notice of motion of 16th May 2008 and yet he appealed against those aspects of the case as well. The respondents have asked for costs of the appeal on an indemnity basis.

8. The award of costs on an indemnity basis is discretionary. An order for costs on an indemnity basis may be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable or blameworthy that he should be so punished by such an order (see Rex Paki vs. MVIL (2010) SC1015). The question is whether the conduct of the appellant in this matter is such that it caused the respondent to incur unnecessary costs.

9. The law is clear on the question of conflict of interest in this jurisdiction. The appellant had no chances of success on the question of conflict of interest. As a senior lawyer in the jurisdiction, the appellant knew or ought to have known that the likelihood of getting up on that point was remote and yet he persisted with the argument. Secondly, he abandoned a number of reliefs in his notice of motion but the appeal covered those aspects of the case as well. It is clear to me that this is an unmeritorious appeal. Where an appeal is without merit and the actions of the appellant have caused the respondent an enormous amount of wasted time, effort and money, the conduct of the appellant must be considered to be improper, unreasonable and blameworthy.

12. The conduct of the appellants in this matter – in particular in apparently not having regard to the transcript of the National Court proceedings, and not having regard to s 46 of the Public Finances(Management) Act 1986 – has caused all the parties to unnecessarily incur costs in these proceedings in an appeal which is completely unmeritorious. It has also resulted in a waste of valuable Supreme Court resources – as was correctly pointed out by Mr Varitimos for the first respondent, the Court has given time and an entire morning of hearing to claims of the appellants that lacked merit from the beginning.

13. Finally, for Counsel for the appellants to make such a sweeping submission that there was no authority reposed in anyone in Papua New Guinea to sign the Mining Development Contract the subject of this litigation – this is not only a baseless submission, it is an insult to this country.

14. Before coming to practice law in Papua New Guinea, it would be appropriate for Counsel to have at least read a copy of the Constitution of this country and its laws. Counsel should not be so presumptuous or naïve as to believe that this is a country that does not have laws to protect its processes.

THE COURT ORDERS THAT:

1. The appeal in this matter that is SCA No. 115 of 2016 is now dismissed with the first respondent’s costs to be paid by the appellants on an indemnity basis.

Harry Lawyers: Lawyers for the Appellants
Bradshaw Lawyers: Lawyers for the First Respondent