Lipsey v The State [1993] PNGLR 405 (2 April 1993)

PNG Law Reports 1993

[1993] PNGLR 405 - Peter Lipsey v The State 

[1993] PNGLR 405

N1154

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PETER LIPSEY

V

THE INDEPENDENT STATE OF PNG

Waigani

Sheehan J

9 December 1992

11 December 1992

2 April 1993

JUDGMENTS AND ORDERS - By consent - Application to set aside for fraud, mistake, or lack of authority in counsel - State counsel acting on behalf of the State has apparent normal authority to bind.

Facts

Judgment by consent was entered for the plaintiff against the defendant State in June 1992. Mr Keta of the Solicitor General's office acted for the State. Some six months after the judgment, the State sought to have the judgment set aside on the grounds that Mr Keta acted without authority.

Held

1.       The counsel for the State acted with the apparent normal authority and settled this matter by execution of an agreement of final compromise of the issues between the parties.

2.       A consent order finalises the matters between the parties. The only discretion remaining in the Court after entering the consent judgment or order is a power to vary or discharge such judgment or order, if it has not been finalised, i.e. the order has not been sealed. But this discretion will only be exercised where grave injustice is shown to be likely to the party affected.

Cases Cited

de Lasala v de Lasala [1979] UKPC 10; [1979] 2 All ER 1146.

Marsden v Marsden [1972] 2 All ER 1162.

Counsel

M Kouro, for the plaintiff.

W Akuani, for the defendant.

2 April 1993

SHEEHAN J:  On 11 June 1992, judgment by consent was entered for the plaintiff against the State. That judgment resulted from a joint approach to the Court by Mr Keta of the Solicitor General's office, acting on behalf of the State, and Mr Gene of the Public Solicitors office, acting for the plaintiff. A formal agreement to settle, drawn up in writing, was submitted to Mr Justice Sakora for approval, and judgment was duly entered and sealed.

Now, some six months later, the State seeks to have the judgment set aside on the grounds that Mr Keta acted without authority; that is, although Mr Keta was a counsel in the Solicitor General's office, he was not specifically instructed by the Solicitor General, Mr Damen, or empowered to act in this matter. Other counsel had been instructed. Nonetheless, it is said, Mr Keta had, in fact, proceeded to settle the claim without proper instructions or authority. The judgment should, therefore, be set aside.

The application is opposed by counsel for the plaintiff, who submitted that Mr Keta, as counsel for the State, was at all material times counsel in the employ of the State, acting for the State in this and other matters. He was acting with uncontested authority when the settlement agreement was executed, and it is now simply too late.

I have been unable to find any PNG decision on this matter, but the law is nonetheless clear. Common law in force prior to 1975 shows essentially that "... when a final judgment has been passed and entered, the Court cannot set it aside unless a fresh action is brought for that purpose, although it has been entered by mistake". "A Court has no power to vary a consent judgment or order made previously in that Court and, therefore, the only means open to a party to set aside a consent judgment or order on the gound of fraud or mistake is to bring a fresh action for that purpose". See UK Supreme Court Practice 1991 vol 2 paras 4606-4615. Basically, the consent order finalises the matters between the parties. The only discretion remaining in the Court after entering the consent judgment or order appears to be a power to vary or discharge such a judgment or order if it has not been finalised, i.e. the order has not been sealed. But it is to be noted this discretion will only be exercised where grave injustice is shown to be likely to the party affected.

The law is fully set out in Marsden v Marsden [1972] 2 All ER 1162, where a range of cases going back to the 19th century are discussed. Post 1975, the decision of Lord Diplock in de Lasala v de Lasala [1979] UKPC 10; [1979] 2 All ER 1146 provides a clear summary of this issue.

"Where a party to an action seeks to challenge, on the ground that it was obtained by fraud or mistake, a judgment or order that finally disposes of issues raised between the parties, the only ways of doing it that are open to him are by appeal from the judgment order to a higher Court or by bringing a fresh action to set it aside".

That seems to me to effectively settle this matter. The State's counsel, acting with the apparent normal authority, settled this matter by execution of an agreement of final compromise of the issues between the parties. The order of the Court finalising that has long been sealed. That being so, the only options available to the State are to appeal that consent order or file a fresh suit. It cannot succeed in this action. Having had the matter finalised by consent, it is not open to the State to now ask the Court that formalised that consent order to set it aside. The application is dismissed.

Lawyer for the plaintiff: Public Solicitor.

Lawyer for the defendant: Solicitor General.