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Mali v State [2002] PGLawRp 15; [2002] PNGLR 548 (3 April 2002)

[SUPREME COURT OF JUSTICE]

SIMON MALI on his own behalf and as representative of 30 other members of Onepena clan, Kagua, Southern Highlands Province;

JOHN YASA on his own behalf and as representative of 20 other members of Ege clan, Kagua, Southern Highlands Province; and

PORAPAE PEBARO on his own behalf and as representative of 15 other members of Yako clan, Kagua, Southern Highlands Province

v

INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani: Hinchliffe, Sakora, Batari JJ
30 August 2001; 3 April 2002

PRACTICE & PROCEDURE – Representative action – conditions necessary to persue representative actions. Class action – conditions necessary to pursue class actions.

APPEAL – National Court decision to set aside consent order on ground of irregularity.

Facts

This is an appeal from the National Court decision to set aside consent orders for entry of judgement in damages against the State in the sum of K279,616.45 inclusive of interest and costs. There were several procedural irregularities in the proceedings. First, this was a class action law suit and the plaintiffs were not named nor were there any evidence of their consents filed in the Court. Second, the alleged consent orders were not endorsed by the Solicitor General on behalf of the State. Third, there was no evidence on the court file to confirm the presiding judge's endorsement of the consent orders in chamber in Mt. Hagen. The presiding judge did not recollect endorsing the order and there was no entry on the court file. The presiding judge recalls making an order to transfer the case from Mt. Hagen to Port Moresby and if there was a consent order, the consent order would have negatived the need for the transfer of the case to Port Moresby by the presiding judge. The State applied by way of a Notice of Motion to the National Court to set aside the consent orders on the grounds of procedural irregularities. The National Court granted the State's application to set aside the consent orders and the plaintiffs appealed to the Supreme Court against the decision of the National Court. In addition, the lawyers for the appellants also filed four additional appeal books in respect of four additional representative claimants under separate and distinct proceedings based on the similar incident of excessive use of force and destruction of the plaintiff's properties by members of the Police force. The lawyers suggested to the Court that there had been agreement between the parties (lawyers) that only one appeal book was to be filed, served and heard and this first appeal should be heard and the decision to be applicable to all five appeals.

Held

1. The Supreme Court has no jurisdiction to make orders in respect of appeals that are not properly before it for consideration and determination.

2. Obiter: It is not necessary for the State to file an appeal against the consent orders that have been entered irregularly.

3. The National Court had jurisdiction under Section 155(4) of the National Constitution to make such orders as are necessary to do justice in the circumstances of a particular case, including the power to make orders to set aside consent orders where there were errors on the face of the record.

4. In representative actions, the legal representatives are required by law to have the names of the plaintiffs included in a schedule (to the Writs) or for their written consents to be filed and these consents to be by way of an Authority to Act Form. [Order 5 Rules 3 & 8 of the National Court Rules]

5. Section 14(2) and 17 of the Supreme Court Act cannot be relied upon where the consent orders have been irregularly entered (see Drew v Towers Investment Pty Ltd [1973] PNGLR 450.

6. Consent Orders can only be signed by the authority of the Solicitor General and the Attorney General has no power to settle claims for and on behalf of the State. [Section 13 of the Attorney General's Act.]

Papua New Guinea cases cited

Drew v Towers Investment Pty Ltd [1973] PNGLR 450.
Kitogara Holdings Pty Ltd v National Capital District Interim Commission and The State SCR No. 3 of 1989 [1988-89] PNGLR 346.

Other cases cited

Ainsworth v Wilding [1896] UKLawRpCh 42; [1896] 1 Ch 673.
Flower v Lloyd (11).
Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235.
Huddersfield Banking Co. Ltd v Henry Lister & Sons Ltd (1859) 2 Ch 273, 280.
Jonesco v Beard (12).
Marsden v Marsden [1972] 2 A11 ER 1162.
Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195 at 198.
Rayner v Rayner (16).
Wilding v Sanderson [1897] UKLawRpCh 120; [1897] 2 Ch 534).

Counsel

V Mirupasi, for the appellants.
R Tuva, for the respondent.

3 April 2002

By the court. This is an appeal from the decision of Sheehan J handed down on 20 December 2000. In that decision the learned judge accepted the submissions of the respondent State and set aside Consent Orders that the appellants contend were ordered to be entered against the respondent on 7 July 2000. These orders, the appellants contend, authorised the entry of judgment in damages against the respondent in the sum of K279,616.45 inclusive of interest and costs.

The appellants, being aggrieved by the decision of the National Court, filed a Notice of Appeal on 24 January 2001, setting down a total of nine (9) grounds of appeal. Pursuant to an application for leave to appeal, leave was granted on 16 March 2001 (and entered 21 March 2001). We heard the appeal on 30 August 2001.

Out of the nine (9) stated grounds of appeal, a large number of which were, with respect, only repetitive, the issues raised by these for the court's consideration and determination can be conveniently summarised as follows: Firstly, whether the judge erred in law and/or lacked jurisdiction when he entertained the application of the respondent, and subsequently granted the orders sought, wherein the 7 July 2000 orders were set aside. Secondly, if the court did have the necessary jurisdiction, circumstances did not exist such as to warrant the orders to be set aside. Thirdly, and finally, the procedural irregularities that the respondent raised and relied upon, and which the court accepted to found its decision, did not warrant the orders to be set aside, these being "consent orders".

Factual background

The principal and named appellants, Messrs Simon Mali, John Yasa and Porapae Pebaro, instituted proceedings in what purported to be a class action suit (WS No. 840 of 1994) on 21 October 1994 against the respondent State. The State was sued for the acts and omissions of its servants or agents in conducting an illegal police raid in the respective villages of the appellants, causing what were alleged to be substantial damage to personal properties. The alleged incident was claimed to have taken place some six (6) years previously, on 27 November 1988.

Upon due service of the Writ of Summons on the defendant State, it had filed on its behalf a Notice of Intention to Defend on 7 November 1994. Subsequently no Defence was filed as required under O. 8, r. 4 of the National Court Rules (NCR), and the plaintiffs proceeded to apply for and were granted orders to enter judgment in default on liability against the State pursuant to O. 12, rr. 25, 26 and 28 NCR on 11 July 1995, with damages to be assessed.

The Court records and the documentation therein demonstrate that another five (5) years would elapse since default judgment for the plaintiffs/appellants to reactivate the proceedings to obtain the consent orders in question (on 7 July 2000). The Court below was of the opinion that this lapse of time (adding to the 12 years already since the incidents in question or cause of action arose) was "not all the fault of the State . . ." (p. 20 Transcripts, p. 113 Appeal Book).

After what the plaintiffs/appellants' lawyers claim to have been "ongoing negotiations" with the Solicitor-General (as the lawyer for the defendant State) to settle the claim for damages, an offer by the State in a letter dated 22 June 2000 was accepted on behalf of the appellants pursuant to, it is claimed, standing instructions, on the same date (affidavit of Vincent Mirupasi sworn 2 November 2000, pp. 81 – 84, Appeal Book).

On Friday 7 July 2000, learned counsel for the appellants travelled to Mt Hagen and saw Justice Sheehan in Chambers where and when he, Mr. Mirupasi, says the subject Consent Orders were endorsed by His Honour and entered on the same day by the Assistant Registrar. Following this, and seven (7) days later, a Certificate of Judgment was issued under the hand of the Solicitor-General. It would appear that subsequently, the State had filed on its behalf, a Notice of Motion dated 5 October 2000 seeking orders to have set aside both the Consent Orders of 7 July and the Certificate of Judgment dated 14 July 2000, and for the matter to be listed for trial on assessment of damages. This application was intended to be heard on 14 October 2000 in Mt Hagen; however, it eventually came before His Honour Justice Sheehan in Waigani on 20 December 2000 when he made the decision the subject of this appeal.

Preliminary Issue

As well as the claim for damages brought against the defendant State by the three (3) principal plaintiffs in the suit WS No. 840 of 1994 the subject of this appeal (supra), four (4) other proceedings had been commenced by Writ of Summons against the State by four (4) other principal plaintiffs on behalf of themselves and various unnamed others. These were adverted to at the hearing of the State's application, and elaborated upon as: WS No. 842 of 1994, WS No. 843 of 1994, WS No. 844 of 1994 and WS No. 524 of 1995, the plaintiffs being Diaya Kambere and 30 others unnamed, Buka Mu and 97 unnamed others, Warea Wapi and 81 unnamed others, and Charles Luta and 160 unnamed others, respectively (pp. 2 – 3 transcripts, pp. 95 – 96 Appeal Book).

It was suggested then by learned counsel for the appellants that there had been agreement between the negotiating lawyers that the Consent Orders to settle the claim for damages be entered in respect of all five (5) proceedings. To this suggestion, His Honour said this (p. 17 transcripts, p. 110 Appeal Book):

"All right. Right now you (Mr. Mirupasi) are staring at the orders being set aside because the only judgment that I could have signed was in fact in favour of the plaintiffs that were named as at 11 July 1995."

The only named plaintiffs as at 11 July 1995 were the five (5) principal plaintiffs in the five (5) separate proceedings (supra). And it is not without significance that the only proceedings that was the subject of 7 July 2000 Consent Orders was WS No. 840 of 1994, with the three (3) named principal plaintiffs as noted (supra). This is borne out by the 14 July 2000 Certificate of Judgment, as does also the appellants' Notice of Motion (as plaintiffs) taken before Justice Sheehan in Chambers on 7 July 2000. And the defendant State's application to set aside the Consent Orders (Notice of Motion dated 5 October 2000, supra) was in respect of this selfsame proceedings, and no other.

Further confirmation of this comes from the 11 July 1995 Default Judgment (p. 16 Appeal Book), in WS No. 840 of 1994 in respect of the three (3) named principal plaintiffs (supra). Despite this situation the lawyers for these appellants filed four (4) other appeals (SCA Nos. 11, 12, 13 and 14 of 2001) in respect of plaintiffs in the other four (4) proceedings (supra).

Mr. Mirupasi, counsel for these present appellants, suggested to us that there had been agreement between the parties (did he really mean between the lawyers?) that only one Appeal Book was to be filed, served, and the first appeal (this) "should be heard and for such arguments and the decision to be applicable to all five appeals". The Court has had to deal with this as a preliminary issue before embarking upon the consideration of the substantive arguments on the grounds of appeal.

It can be stated quite categorically that counsel's suggestion here is an extraordinary one, considering the circumstances we outlined above. And, in the light of the history of these proceedings (as we outlined above also), we would describe the suggestion as quite a remarkable one also, and, in turn, suggestive of abuse of the court's process or at least an intention to. Whether or not similar or like proceedings should be merged (or joined or consolidated) as envisaged by O. 5, rr. 1, 2 and 3 NCR and heard together as one, or whether separate hearings ought to be held, are matters properly for the Court's decision and appropriate orders or direction(s). Similarly, whether or not proceedings and their outcomes (judicial) ought to be as suggested by counsel here. These are not matters for agreement between the parties and/or their legal representatives. See also: the possible consequences of inconvenient joinder and the Court's powers under O. 5, r. 6 NCR.

Thus, as the Court below concluded, the only matter before us is the appeal SCA No. 10 of 2001 in respect of the proceedings WS No. 840 of 1994, and no other. This Court has no jurisdiction to make orders in respect of appeals or other matters that are not properly before it for consideration and determination.

Case for the appellants

It is the main submission of the appellants that the learned judge below erred in law in entertaining the respondent State's application and making the orders that he did, because the Court lacked the necessary jurisdiction pursuant to s 14 Supreme Court Act. This provision is in relation to Civil appeals to the Supreme Court, subsection (2) of which is in the following terms:

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

Thus it was argued, as the 7 July 2000 judgment entered in favour of the appellants was "by consent", there was "no provision to appeal that order." In this respect, it was submitted that the only conditions under which an appeal could lie against an order of the National Court made by consent were either upon proof of fraud, or by a person not a party to the consent and initially not made a party.

On this issue of "right of appeal" it was the further argument that, in any case, s 17 of the Supreme Court Act prescribing 40 days as the period within which to lodge an appeal had not been complied with, such a period having been let to lapse and no extension of time having been granted by a judge within those 40 days. Support for these contentions was said to be provided by what the Supreme Court had said about these two provisions in the case of Kitogara Holdings Pty Ltd v National Capital District Interim Commission and The State SCR No. 3 of 1989 [1988 – 1989] PNGLR 346.

The appellants further submit that the 7 July 2000 Consent Orders "was a final order in that it finally disposed of the proceedings. The judgment was perfected when entered." As such, the Consent Orders could not be set aside except in certain specified circumstances highlighted by case law from both within and outside the jurisdiction. And, as no such circumstances had been shown by the respondent State to exist in this case, the Consent Orders ought not to have been set aside.

The third leg of the appellants' submission was intended to be in respect of the procedural irregularities that the State dealt with at some length, with, if we might add, great emphasis. But nothing further was added apart from this brief statement in the appellants' written submissions:

"The procedural irregularities that the respondent and the Court relied upon were not irregularities at all. In any event, they did not provide a reason for setting aside the judgment. In particular there was no requirement for the persons represented by the plaintiffs in the proceedings to have their names included in a schedule or for their written consents to be filed."

Respondent State's case

The main contention of the respondent State on the s 14(2) Supreme Court Act argument is as argued in its application in the Court below. And that is that the purported Consent Orders of 7 July 2000 was neither endorsed by the Solicitor-General nor the Court, according to law and practice in this jurisdiction. Thus, it was argued, the circumstances of the case did not quite fall within those envisaged by the case relied upon by the appellants: Kitogara Holdings Pty Ltd (supra).

The State relies, instead, on the decision in Drew v Towers Investment Pty Ltd [1973] PNGLR 450, to support its contention. The pertinent part of the decision (appears at pp. 451 - 452) is in the following terms:

"Three questions have arisen in this application. The first is whether by reason of the action taken by the defendants upon the summons for directions they have 'taken a step' in the proceedings, secondly, whether the arbitration clause was sufficient to cover the matters in dispute in the action, and, thirdly, whether this is an appropriate case for the matter to be referred in accordance with the submission. The facts as to the making of the order for directions appear from the affidavit by the plaintiff's solicitor, Mr. Andrews, who deposes that shortly before appearing before the Registrar, and acting in accordance with customary practice in such matters, he telephoned Mr. Train, a partner in the firm of solicitors for the defendants, that he then attended him in his office, where in Mr. Andrew's presence, Mr. Train signed the foot of a draft order, under the words "I consent to the within order". Shortly afterwards Mr. Andrews attended the office of the Registrar handed him the proposed order signed by Mr. Train and indicated that the plaintiff also agreed to the proposed order, whereupon the Registrar sealed an engrossed copy of the said draft order without any alteration."

In this respect it is the State's submission that there was no Consent Orders that had been endorsed by both Mr. Kouro of the Solicitor-General's Office and the learned judge in Chambers. Thus, it is argued, the prohibition from appeal under s 14(2) Supreme Court Act (supra) does not apply. The State relies upon the transcripts of the proceedings below together with Mr. Mirupasi's affidavit sworn 2 November 2000.

Yet another source of or basis for attack on the Consent Orders is the point that the State did not appeal against the orders finally determining the plaintiffs' claim for damages. Rather, the State applied (by Notice of Motion and supporting affidavits) to the same Court that purportedly sanctioned those orders to have them set aside for procedural irregularities, relying upon the inherent powers of the Court pursuant to s 155(4) Constitution. And apart from the irregularity associated with the "customary practice" enunciated in the decision in Drew v Towers Investment Pty Ltd (supra), there was the irregularity associated with initiating proceedings with unnamed plaintiffs (and lack of evidence of consent of these to be parties) and proceeding to obtain judgment and orders in respect of them: O. 5, r. 8 (2) NCR.

Under these circumstances, the State submits that the learned judge was entitled to exercise, and was properly seized of, jurisdiction to remedy the injustice occasioned by the procedural irregularities committed by the legal representatives of the plaintiffs/appellants, as empowered by s 155(4) Constitution.

Conclusions

It is our considered opinion that the learned judge below did not fall into any error in, firstly, entertaining the State's application to set aside, and, secondly, making the necessary orders therefrom. We agree with the State's position that there was no appeal against the Consent Orders as suggested by counsel for the appellants in his reliance on s 14(2) Supreme Court Act. Such suggestion and reliance are, in our opinion, misconceived and mischievous.

The provision is quite clear, and prohibits parties who have negotiated for settlement and eventually arrived at mutually acceptable terms for settlement or compromise from subsequently seeking to undo all these by challenging the result by appeal. There are perfectly good reasons for this prohibition, one of which we suggest would be to ensure that parties embark upon and conduct negotiations for settlement with frankness, full trust and confidence that bona fides will prevail and that the final agreement(s) will be respected as binding between them. The other reason, and closely associated with this is in the public interest as stated by Brennan J (as he then was) in Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195 at 198.

Needless to say s 14(2) Supreme Court Act (supra) is not an absolute ban on questioning or challenging judgments or orders that are entered by consent of the parties. They are not beyond challenge or impeachment through the judicial process by virtue only of the fact that these are orders intended to express the consent, the agreement, of the parties themselves, and demonstrative of their intention to finally bring to an end their legal dispute(s). Case law recognizes a host of situations whereby these orders or judgments can be properly questioned or reviewed through the normal appeal and review processes: fraud, mistake, or on any other ground that can invalidate what may appear to be a consensus.

Mr Mirupasi cited the Australian High Court case of Harvey v Phillips [1956] HCA 27; (1956) 95 CLR 235, where, at pages 243–244, the following dictum of Lord Lindley was cited with approval:

"... nor have I the slightest doubt that a consent order can be impeached, not only on the ground of fraud but upon any grounds which invalidate the agreement it expresses in a more formal way than usual . . . To my mind the only question is whether the agreement on which the consent order was based can be invalidated or not. Of course if the agreement cannot be invalidated the consent order is good: Huddersfield Banking Co. Ltd v Henry Lister & Sons Ltd (1859) 2 Ch 273, 280."

Further elaboration on this comes also from another Australian case that was cited by counsel for the appellants: Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195 at 198 (per Brennan J as he then was):

"The general rule is that a perfected judgment cannot be recalled or varied, for the public interest requires that the judgment when it is entered should conclude the litigation: in public interest reipublicae ut sit finis litium . . . Until the final judgment is entered, the court retains a power to reconsider the matter, but when entered, the jurisdiction to reconsider is gone . . . Where the litigant has the right to set aside the judgment on the ground of fraud, however, the fraud must be alleged in a fresh action brought to try the issue (Flower v Lloyd (11); Jonesco v Beard (12). Similarly, where the judgment is entered by consent and a party alleges that the agreement pursuant to which the order was entered is void or voidable (Harvey v Phillips (13); Hudderfield Banking Co Ltd v Henry Lister & Sons Ltd (14) the issue must ordinarily be litigated in a fresh action (Wilding v Sanderson (15); Rayner v. Rayner (16)."

Counsel then cited two cases in this jurisdiction to support the s 14(2) Supreme Court Act argument, which we consider useful to reproduce the pertinent statements here. The first is the case of Torato v Abal [1987] PNGLR 403, per Bredmeyer J (at 413), which recited with approval the following passage from the Supreme Court Practice (1979):

"A consent order can be set aside in an action commenced for the purpose of any ground that would invalidate an agreement . . . If consent has been given by mistake, it may be withdrawn at any time before the judgment is passed and entered . . . But where 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 (Ainsworth v Wilding [1896] UKLawRpCh 42; [1896] 1 Ch 673 and Wilding v Sanderson [1897] UKLawRpCh 120; [1897] 2 Ch 534)."

In Re Peter Naroi [1983] PNGLR 176 at 177, Andrew J said the following:

"In regard to circumstances in which the Court should interfere to set aside an order based on a compromise, the authorities all show that the Court should view such applications as this with extreme caution and that a court will not grant such an application except in a case which calls clearly for interference with the order made: See Marsden v Marsden [1972] 2 All ER 1162."

It is to be noted that s 14(2) Supreme Court Act bars appeals by the parties to the litigation and the agreement to settle by consent orders. The ban does not operate to stop other persons not parties to the litigation but who are or have been adversely affected and thus aggrieved by the terms of the consent orders, and who, in any case, ought to have been joined as parties to the litigation: See Kitogara Holdings Pty Ltd (supra).

In relation to the appellants' ancilliary argument based on s 17 Supreme Court Act, the misconceived and mischievous epithets would apply equally here. There was no appeal as such by the State as would attract consideration of this provision as an alternative to the s 14(2) argument.

We agree with the learned judge below that he had jurisdiction to hear and determine on the State's application to set aside. And this jurisdiction is inherent by virtue of the National Court being a court of law as envisaged by or under s 155(4) Constitution which is in the following terms:

"Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seen to them proper orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case. (emphasis added)."

Accepting the State's submissions, His Honour found that there were errors on the face of the record, and, thus was properly seized of jurisdiction to correct the consequence(s) of those errors. The learned judge could not have put it any stronger or more succinctly when he declared:

"Yes, I have (jurisdiction). I said I do have the jurisdiction where there is an error patent on the face of the record that the consent order could not have been made. It could not have been made because it was made in respect of plaintiffs who did not exist at the time the judgment was given, all right (see: transcripts, pp. 18 – 19, pp. 111 – 112 Appeal Book)."

Contrary to what learned counsel for the appellants asserts, the legal representatives of the unnamed plaintiffs in all of the five (5) proceedings were required by law to "have their names included in a schedule (to the writs) or for their written consents to be filed". And these written consents would have had to come by way of an Authority to Act Form. The NCR under O. 5 makes the following pertinent rules:

"3. Joint right.

(4) Where, in any proceedings, the plaintiff claims relief to which any other person is entitled jointly with him –

(a) all persons so entitled shall be parties to the action; and

(b) any of them who do not consent to being joined as a plaintiff shall be made a defendant.

(1) Sub-rule (1) applies subject to any Act and applies unless the Court gives leave to the contrary.

2. Addition of parties.

(3) . . .

(4) A person shall not be added as plaintiff without his consent. (emphasis ours).

(5) . . ."

We accept the State's submission that in all actions or proceedings of a representative nature, all the intended plaintiffs must be named and duly identified in the originating process, be it Writ of Summons, Originating Summons or Statement of Claim endorsed on a writ. In this respect, pursuant to the Rules (supra), each and every intending plaintiff must give specific instructions (evidenced in writing) to their lawyers to act for them. There are good reasons for this, one being where costs of the litigation are concerned, if awarded against the plaintiffs. Some of the problems or consequences in a representative action are anticipated in the various sub-rules under O. 5, r. 13 NCR (Representation: Current interests).

We are, further, of the opinion that if His Honour had not found error patent on the face of the record in order to exercise inherent jurisdiction under s 155(4) Constitution, he would have been entitled or empowered to exercise jurisdiction in the light of procedural irregularities associated with the obtaining of the Consent Orders in question. We would hold that the discrepancies evident in what counsel for the appellants deposed to in his affidavit sworn 2 November 2000 (as to what happened or did not happen on 7 July 2000 in respect of the entry of the orders) and what he told the court below, and indeed what he told us in response to our queries from the Bench (as demonstrated by the two sets of transcripts before us), are sufficient to persuade us that the "customary practice" in obtaining and having entered consent orders, as set out in the case of Drew v Towers Investment Pty Ltd (supra) were never adhered to by the lawyers for the appellants. The absence of records to substantiate what Mr. Mirupasi asserts go also to satisfy us of the non-compliance with the "customary practice".

For the appellants' lawyers to be talking about ban on appeals, lack of evidence of fraud etc. there would have to have been consent orders obtained and entered by following the "customary practice", in what may be described as, we would suggest, the proper and regular way. The Consent Order would have to have been "regularly entered", a phrase usually associated with default judgments. And that, simply put, means, firstly, obtaining the written consent of the State's lawyer to settle out of court, evidenced by an endorsement on the draft in the form used in Drew v Towers Investment Pty Ltd (supra). Only then, we would suggest, should any application be made to the court for its sanctioning of the settlement of the action, demonstrated by the judge's signature endorsed on the draft also. Once again, only then, armed with the two endorsements on the draft order should the lawyer(s) approach the Registrar (or his delegate) to formally enter the orders, by sealing and engrossing copy of the draft order without any alterations (see, once again, Drew v. Towers Investment Pty Ltd, (supra)).

There was no evidence of the "customary practice" before His Honour, and he repeatedly adverted to this, as he also did in relation to his lack of recollection of Mr. Mirupasi's version of events: Transcripts pp. 10 – 13, Appeal Book pp. 103 – 106. It is instructive to, in a random way, reproduce some of those exchanges between Bench and Bar to demonstrate the point.

His Honour: What are you saying? It went before a judge, you moved the motion in an open court.

Mr. Mirupasi: I refresh your Honour's memory. In fact you granted the consent judgments at Mount Hagen when you were relieving his Honour Justice Hinchliffe.

His Honour: I granted it?

Mr. Mirupasi: Yes, after you read through all the documents, the motion, the affidavits, et cetera your Honour I say that in my affidavit of 2 November 2000.

His Honour: There is no endorsement on the file. When was that Mr?

(pp. 10/103)

His Honour: Do you have a copy of the sealed order or the initial order, my initial order?

Mr. Mirupasi: Yes. What I have is the sealed order but the initial was given to the registrar. On that basis, the orders were endorsed. And the orders were signed and sealed by the deputy or assistant registrar.

His Honour: I do not recall.

His Honour: I appreciate that you may have a sealed order and unless the contention is that it has been sealed by the registrar without going before a judge. Now, you say that you dealt with it in chambers.

Mr. Mirupasi: Yes.

His Honour: I am saying to you that there is no record of this on the file. The only note on the file is for 28 August 1996 when I was there . . . .

His Honour: . . . you say the draft orders were not accepted.

Mr. Mirupasi: That is right so I had to go back and redraft them in Paulus Dowa's office, I brought them back and your Honour endorsed them.

His Honour: Not re-endorsed it but a new one.

Mr. Mirupasi: Yes, and the endorsed copies were then given to the assistant registrar with . . .

His Honour: You mean, I authorised a final order?

Mr. Mirupasi: Yes.

(pp. 12/105)

His Honour: I do not see it. There is no record of it on the file. Why then would I have made subsequent orders transferring the matters to Waigani.

(pp. 13/106).

It has to be noted that nowhere in his affidavit (of 2 November 2000) does Mr. Mirupasi say that after re-drafting the orders in Paulus Dowa's office he went back to the judge's chambers for the judge's signature demonstrating endorsement of the settlement.

In the transcripts of the hearing of this appeal, there does not seem to appear any definite assertion that after being sent away to re-draft the orders and get them right or appropriate, Mr. Mirupasi returned to the judge's chambers for the judge to check on the re-draft and sign as endorsement. In any case, there is just no evidence of this. Thus, we would hold that the assistant registrar signed and sealed Consent Orders that had not been endorsed by both the Solicitor-General (or his delegate) and the judge.

We note also that, as well as the "customary practice" outlined in Drew v Towers Investment Pty Ltd (supra), the NCR under O 12 (Division 2) sets out the procedures to be followed in drafting the "minutes" of the judgment or order and lodging this with the Registrar for entry (rr. 10 – 23).

In respect of this procedural irregularities, we feel that three matters can be usefully and briefly commented on. Firstly, the application to enter Consent Orders ought not to have been made and entertained ex parte. Counsel for the State ought to have been present. If both parties had been represented that morning in Chambers, perhaps some aspects of the procedural irregularities would not have arisen.

Secondly, such proceedings (applications) ought to be held in public rather than in "seclusion" in a judge's chambers. We do not believe that justice at any level should be administered "in secret". It is not that the decision of the court may be wrong, but there is the overriding public interest that justice should be seen to be done so as to avoid the remotest possibility that any element of arbitrariness should enter into the Court's decision or behaviour.

In this case, perhaps if the application had been moved in open court with the benefit of electronic recording, with both parties represented, some of the questions surrounding what took place in chambers that morning would not have arisen.

Finally, the absence or lack of record(s) of what took place (or did not take place) on 7 July 2000 is a matter for concern. There was and is no record on the file of the judge's endorsement (signature) on the orders. If things had been as counsel for the appellants contends, then surely they ought to have been on the file. The National Court is a "court of record". And such a court is defined as: a court whereof the acts and judicial proceedings are enrolled for a perpetual memory and testimony, and which has authority to fine and imprisonment for contempt of its authority. The Oxford Dictionary of Law defines such a court as: a court whose acts and judicial proceedings are permanently maintained and recorded. In modern practice the principal significance of such courts is that they have the power to punish for contempt of court!

The last point to consider on the subject of consent orders is in relation to the powers of the Attorney-General vis-a-vis settlement of litigation out of court on behalf of the State.

We accept the respondent State's submission that the Attorney-General has no power (or responsibility) over the superintendence, control and direction over all the matters of litigation brought against the State. This power is vested in the Solicitor-General pursuant to s 13 Attorney-General's Act, 1989. This provision reads:

"13. Functions of Solicitor-General

(14) The primary function of the Solicitor General is to appear as an advocate for the State in matters coming before the courts of Papua New Guinea.

(15) In the exercise of his function under Subsection (1), the Solicitor General shall accept instructions only from the Attorney-General."

Section 156(1)(a) Constitution prescribes the principal responsibility of the Attorney General as being the Principal Legal Advisor (PLO) to the National Executive Council. He is one of the law officers of Papua New Guinea. And Subsection (2) provides for an ordinary Act of Parliament to make specific provisions in respect of the office of the PLO. The Attorney-General's Act (supra) (the Act) is the legislation envisaged by s 156 (2) Constitution. One of the direct consequences of the enactment of this Act was the repeal of the former Principal Legal Advisor Act (Ch 54).

The present Act creates two distinct offices, the first of which is the office of the Attorney-General under s 2. This particular situation arises when a member of the National Parliament in government is a legally qualified and fully admitted lawyer and is appointed as Minister for Justice. He automatically becomes the Attorney-General and member of the National Executive Council responsible for justice matters: the principal legal adviser to the National Executive (ss 3 & 4).

The second situation arises as envisaged by s 5 of the Act, which reads:

"5. Department Head as Attorney-General

Where the Minister responsible for the National Justice Administration –

(a) is a person to whom Section 4 applies, but is out of the country or is out of the speedy and effective communication or is otherwise unable to fulfil the duties of the office of Attorney-General;

(b) is not a lawyer fully admitted to practise under the Lawyers Act 1986, the Departmental Head of the Department responsible for the National Justice Administration is the Attorney-General and principal legal adviser to the National Executive."

The second office is the Office of the Solicitor-General established under s 10. It is an office within the National Public Service, comprised of the Solicitor-General and any number of Assistant Solicitors-General considered necessary by the Attorney-General: Subsections (1) and (2).

The Solicitor-General is appointed by the Attorney-General by notice in the National Gazette: s 11 of the Act. His functions are set out as provided under s 13 (supra):

The decision whether or not a certain litigation should be settled out of court is a professional decision of an advocate involved in that litigation. It certainly is not a decision intended to be made by someone in the exercise of an executive or political power or function. The point is emphasized when the position of an Attorney-General who is both a parliamentarian and a member of the executive government is appreciated. Such an Attorney-General would not have, has not the legislative and professional, capacity to make such a decision.

In this case the Office of the Solicitor-General had the carriage of the State's defence to the claim. The Attorney-General had no power to settle the claim as he did.

Now, recapping our conclusions, we hold the following:

1. There was no appeal by the State such as to attract the operation of ss 14(2) and 17 Supreme Court Act.

2. Even if there had been an appeal, the matter would have not gone before the National Court but rather to the Supreme Court in the usual way and the jurisdiction of the Supreme Court would not have been displaced by s 14(2) Supreme Court Act, as the procedural irregularities, firstly, in relation to unnamed and unidentified plaintiffs and the absence of evidence of consent to be parties, and secondly, the default of the appellants in relation to the "customary practice" for obtaining and entering consent orders, would entitle the invoking of the inherent powers of the Court pursuant to s 155(4) Constitution.

3. As it was the Court was properly seized of jurisdiction under the circumstances, pursuant to s 155(4) Constitution, to remedy the "error patent on the record".

In the end result we find that there is no merit in this appeal and we accordingly dismiss it with costs.

Lawyers for the appellants: Mirupasi Lawyers.
Lawyers for the respondent: Solicitor-General.