Undialu v Hamaga [2024] PGSC 159; SC2711 (7 October 2024)

SC2711

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCAPP 19 OF 2024
REVIEW PURSUANT TO SECTION 155 (2)(b) OF THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA

BETWEEN:
PHILIP UNDIALU,
Governor for Hela Province
Applicant

AND:
ANTHONY HAMAGA
as the Chairman of Moran Local Level
Government Special Purpose Authority
First Respondent

AND:
MORAN LOCAL LEVEL GOVERNMENT
SPECIAL PURPOSE AUTHORITY
Second Respondent

AND:
SAMUEL PENIAS
as the Secretary for Department of Finance
Third Respondent

AND:
THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Fourth Respondent

WAIGANI: HARTSHORN J
4, 7 OCTOBER 2024

SUPREME COURT – practice and procedure - Application for leave to review

Cases cited
Avia Aihi v. The State (No.2) [1982] PNGLR 44
Application by Anderson Agiru (2002) SC686
Application by Herman Leahy (2006) SC855
Application by John Maddison and Bank of South Pacific Ltd (2009) SC984
Alphonse Tay v. Newcome Gerau (2011) SC1097
Lae Bottling Industries Ltd v. Lae Rental Homes Ltd (2011) SC1120
Luke Marano v. Jack Nouari (2013) SC1307
State v. Toka Enterprises Ltd (2013) SC1266
Benjamin Sengi v. The State (2015) SC1425
Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568

Counsel:
T. Jugari for the Applicant
B. Lakakit for the First Respondent
J. Palma for the Second Respondent
M. Tukuliya for the Fourth Respondent

Oral decision delivered
on 7^th October 2024

1. HARTSHORN J: This is a decision on a contested Application for Leave to Review. The decision or orders sought to be reviewed were made on 27^th March 2024 (Decision Reviewed).

Background

2. The Applicant, Hon. Philip Undialu, Governor of Hela Province, applies for leave to review, pursuant to s. 155 (2) (b) Constitution. The Decision Reviewed includes a direction for the Moran Petroleum Development License 5 Oil Project Development Levy for 2022 and 2023 to be paid within 7 days. The Decision Reviewed was purportedly made with the consent of all parties to the subject National Court proceeding.

Preliminary

3. The State takes issue with the lawyers representing the Applicant in this proceeding as they do not have the lawful approval of the Attorney General to do so and such approval is required, it is submitted. Reliance is placed upon Section 7 (i) Attorney General Act. It is submitted that the Provincial Government is part of the State. The Applicant, the Governor of Hela Province, purports to represent the Hela Provincial Government, and so a “brief out” is required from the Attorney General to appear for the Applicant by his lawyers, it is submitted.

4. As to reliance upon s. 7 (i) Attorney General Act, the Attorney General (Amendment) Act, 2022 was certified on 4^th March 2022. The Amendment Act repealed and replaced s. 7 Attorney General Act. The relevant section concerning “brief outs” is now Section 7 (2) (i) and not Section 7 (i). Pursuant to the Amendment Act, s. 7 (1) Attorney General Act now provides:

“For the purpose of this section, the State refers to public bodies and statutory bodies as defined under the Public Finances (Management) Act 1995.”

“public body” in the Public Finances (Management) Act 1995, is defined as;

a) a body, authority or instrumentality (corporate or unincorporate) established by or under an Act or a Constitutional Law.”

5. Here, the Applicant is suing as the Governor of a Province. I am not satisfied that the Governor of a Province falls within the definition of “State” as referred to in s. 7 (1) Attorney General Act, as Amended. Consequently, the lawyers for the Applicant do not require a brief out pursuant to s. 7 (2) (i) Attorney General Act, as amended, as they are not appearing for the “State.”

6. Further, as mentioned, the lawyers for the State in this instance have taken objection by relying on an incorrect and now non-existent section of the Attorney General Act.

7. Consequently, this objection of the State is rejected.

8. As mentioned, this Application applies for leave.

9. Leave is required as the right of appeal was not exercised in the time permitted by statute: Order 5 (1) Supreme Court Rules and Avia Aihi v. The State (No.2) [1982] PNGLR 44; Application by Anderson Agiru (2002) SC686; Application by Herman Leahy (2006) SC855; Application by John Maddison and Bank of South Pacific Ltd (2009) SC984; Alphonse Tay v. Newcombe Gerau (2011) SC1097 and Benjamin Sengi v. The State (2015) SC1425.

10. Where a right of appeal has not been exercised, three criteria must be satisfied before leave can be granted (I refer to the cases cited above). These are:

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

b) there are cogent and convincing reasons and exceptional circumstances, eg. some substantial injustice is manifest or the case is of special gravity; and

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

11. In Southern Highlands Provincial Government v. Ronald Kalu (2016) SC1568, Injia CJ (as he then was) said at [5]:

“The criteria for grant of leave for review is settled in various decisions of this Court: Lae Bottling Industries Ltd v. Lae Rental Homes Ltd (2011) SC1120. State v. Toka Enterprises Ltd (2013) SC1266, Luke Marano v. Jack Nouari (2013) SC1307. The applicant must have standing to bring the application. If the applicant is a party in the proceedings of the court below from which the judgment under review was given, the question of standing does not arise. The applicant must offer a reasonable explanation as to why an appeal against the judgment was not filed within time. The application for leave for review must not be delayed. If there has been a delay in lodging the application, a reasonable explanation must be given. The application must be prosecuted promptly. If there has been a delay in prosecuting the application, a reasonable explanation must be offered. If the court finds that there has been a delay and no reasonable explanation has been offered for the delay in lodging and prosecuting the application, the court may, nonetheless, grant leave for review if there are exceptional circumstances showing manifestation of substantial injustice that give rise to serious issues of facts or law that warrants a full review of the judgment. It is also necessary for the applicant to demonstrate that it is in the interest of justice to warrant a review of the judgment.”

Consideration

12. The first consideration is whether the appellant has standing. The respondent submits that the appellant does not have standing as:

a) the Governor of a Province does not have the legal capacity to take an action in Court under the Organic Law on Provincial and Local Level Governments. (Organic Law)

b) the Applicant was not a party to the 2005 Revised Moran Development Agreement and is not an entity or beneficiary under s. 98 Organic Law.

13. As to the Governor not having legal capacity under the Organic Law, counsel conceded that the Organic Law does not provide that a Governor does not have standing to commence a legal proceeding. Further s. 22 Organic Law provides that a Governor is politically and constitutionally responsible for a Province.

14. In addition, in this instance, the Applicant, as Governor, signed the Southern Highlands Province/Hela Provincial Government Benefit Split Agreement formalised on 5^th March, 2021, concerning the distribution of amongst others, Central Moran Petroleum Development Project benefits.

15. I am satisfied that the Applicant has standing as:

a) he is the political and administration head of Hela Province.

b) the Central Moran Petroleum Development Project area falls within the boundaries of Hela Province.

c) pursuant to the SHP/HPG Benefit Split Agreement, which the Applicant signed, the Hela Provincial Government has rights assigned or transferred to it by the Southern Highlands Province.

16. Having determined that the Applicant has standing, the next consideration is whether there are cogent and convincing reasons. The first consideration in determining cogent and convincing reasons is the reason for not filing an appeal within time.

17. Here, the Applicant submits that he was unaware of the subject National Court proceeding and did not become aware of the Decision Reviewed until 3^rd July 2024 when he was forwarded a message to that effect by the third respondent. To my mind, this is a plausible and reasonable explanation, particularly given that the Applicant and Hela Provincial Government were not named as parties to the subject National Court proceeding.

18. The next consideration is whether there has been a delay in filing this application for leave to review. The application for leave to review was filed on 11^th July 2024. Notwithstanding that this is two months after the expiry of the appeal period, it is only eight days after the Applicant became aware of the Decision sought to be served. I am satisfied therefore, that reasonable explanations have been given for not filing an appeal within time and the time taken to file the application. There was no delay in filing the application for leave to review in these circumstances.

19. Given this, the next question is whether there are clear legal grounds, meriting a review of the Decision Reviewed.

20. From a perusal of the grounds of review in this application for leave to review, I am satisfied and proceed on the basis that there are clear legal grounds meriting a review of the Decision Reviewed. This because in particular, it may be argued that the primary judge fell into error:

a) in endorsing orders by consent when they were presented without giving an opportunity to the Appellant to be heard and when the primary judge was aware or should have been aware that the Development Levy Funds pursuant to the Organic Law and the Oil and Gas Act are only payable to Provincial Governments and not a Local Level Government Special Purpose Authority.

b) in endorsing orders by consent without making enquiry into the standing of the plaintiff and also when the proceeding involved a substantial amount of public money.

c) in endorsing orders by consent when the material evidence was shallow and demonstrated a lack of standing of the plaintiff. Further, from a perusal of the evidence and submissions before the Court and the information from counsel for the second respondent, that the primary judge made the Decision Reviewed, after hearing only cursory submissions, if any - merely relying upon the consent of the parties then present, I am satisfied that the overall interests of justice are best served by the Applicant being granted leave to review the Decision Reviewed.

ORDERS

1. Leave is granted to the Applicant to apply for a review of the whole of the judgment and Orders of the National Court made by the Deputy Chief Justice on 27^th March 2024 in proceeding OS 25 of 2024: Anthony Hamaga and Another v. Sam Penias and The State, pursuant to s. 155 (2)(b) Constitution and Order 5 Rule 3 Supreme Court Rules.

2. The Costs of the said application for leave to review are costs in the Review.
________________________________________________________________
Lawyers for the appellant: Stout Lawyers
Lawyers for the first respondent: Lakakit Lawyers
Lawyers for the second respondent: Adam Ninkama Lawyers
Lawyers for the fourth respondent: Lawama Lawyers