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Orogen Minerals Ltd v Sode, Commissioner General of Inetrnal Revenue [2003] PGNC 46; N2467 (26 September 2003)

N2467

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

AP 264 of 1997
AP 265 of 1997
AP 266 of 1997
AP 267 of 1997

BETWEEN

OROGEN MINERALS LIMITED

Applicant/Plaintiff

AND:

DAVID SODE,
Commissioner General of Internal Revenue
Commission and Collector of Stamp Duties

1st Respondent/Defendant

AND:

MARK OPUR,
Commissioner of Taxation

2nd Respondent/Defendant

Waigani : Sakora J

2000 : 6 October
2003 : 26 September

PRACTICE & PROCEDURE – Appeal – Assessment of Stamp Duty – Powers of Court – Order for repayment of duty – Judgment – Order for interest – Error or Omission – The Slip Rule – Stamp Duties Act, ss 20A, 21; Judicial Proceedings (Interest on Debts and Damages) Act, s 6; National Court Rules, O. 8, r. 59, O. 12, r 6.

Counsel:
J. Mileng for the Applicant.
B. Nouairi for the Respondents.

DECISION

26 September 2003

SAKORA J: The plaintiff/applicant company moved the Court upon a Notice of Motion seeking the indulgence of the Court to revisit a judgment made on 17 July 1998 and correct the terms of that judgment to include an order for the calculation of interest at the rate of 8% per annum. And the interest sought to be included in the judgment orders is to be calculated on the amount of the stamp duty that the primary judge found to have been wrongly assessed by the defendants/respondents and, thus, ordered to be repaid to the plaintiff.

This case arose from an assessment made by the defendants on 9 July 1997 that certain documents of the plaintiff were subject to duty pursuant to the Stamp Duties Act (the Act). Following that assessment, which the plaintiff objected to, and which objection was disallowed by the defendants in purported exercise of powers pursuant to provisions of the statute, the plaintiff availed itself of its right to appeal to the National Court, contesting and disputing the assessment of duty on the subject documents.

The appeal went before Justice Woods of this Court on 17 July 1998 wherein his Honour upheld the appeal, quashing the stamp duty assessed on the documents, and making the following consequential orders:

• That the defendants repay to the plaintiff the amount of the stamp duty assessed and obliged to be paid by the plaintiff; and
• That the defendants pay the plaintiff’s costs.
  

The Court made no order for interest. The plaintiff had not applied for such an order as part of the relief.

Issues

The history of this case and the consequent application here raise the following issues for determination. First is the issue as to whether or not interest ought to have been ordered to be calculated on the wrongly assessed duty (and paid) in respect of those documents. Only when this issue is determined in the positive will it be correct or proper to proceed to consider and determine whether or not there was or had been an error or mistake, or indeed "accidental omission" in the judgment orders without mention of interest. Both issues of course raise issues of law only for determination.

Factual Background

After the objection and its disallowance or rejection, the plaintiff filed four appeals pursuant to s 21 (1) of the Act, each appeal arising out of substantially the same factual circumstances, raising the same issues. Accordingly, these were consolidated or amalgamated and heard together by the primary judge.

From his Honour’s judgment it appears that by assessment under the statute dated 9 July 1997 the plaintiff (then appellant) was required and obliged to pay stamp duty in respect of four documents or instruments, which were:

1. Deed of Assignment between the Mineral Resources Development Corporation (MRDC), Petroleum Resources Gobe P/L; the appellant (plaintiff); and Orogen Minerals (Gobe) Pty Limited.
2. Instrument of Transfer of Petroleum Development Licence No. 4.
3. Instrument of Transfer of Pipeline Licence.
4. Instrument of Transfer of Petroleum Development Licence No. 3.
   

The appellant company objected in writing to the Assessments pursuant to s 20A of the Act. The provision is in the following terms:

20A. Objections against assessments.

(1) Within 30 days after the date of an assessment or an amended assessment under this Act, and on the payment of duty and penalty in conformity with the assessment, a person who is dissatisfied with the assessment may object in writing to the Collector of Stamp Duties stating in detail the grounds for the objection.
(2) The Commissioner General shall consider the objection and serve notice in writing of his decision and reasons therefore, on the person who lodged the objection.
(3) Where, as a result of an objection being allowed, in whole or in part, the amount of any duty or penalty is reduced, the Collector of Stamp Duties shall make a refund of the amount so reduced to the party to the instrument by whom or on whose behalf the duty or penalty was paid, or to his executors, administrators or assigns.

By notices dated 15 April 1997 the appellant’s objections were disallowed. These appeals were filed in accordance with s 21 (1) of the Act. Then the respondents in their Statement of the Case under s 21 gave their reasons for disallowing the objections, listing some six (6) considerations.

The issue at the assessment and subsequent objection by the appellant was whether the company and/or any of its subsidiaries were liable to pay stamp duty in respect of the Assessed Documents, they being persons declared by the Minister to be, in respect of these documents, an instrumentality of the Government. The appellant’s case, therefore, was that it had been given exemption under s 6 of the Act. Reliance for this assertion was said to have come from the Declaration by the Minister for Finance (and then Deputy Prime Minister) under s 6 of the Act, notified in National Gazette No. G 72 of 5 September 1996.

The appeal before Justice Woods was allowed, with the Court declaring that neither the appellant nor any of its subsidiaries were liable for stamp duty on the documents and made consequential orders (supra). The Certificate of Judgment on this decision was issued on 20 August 1998. In the judgment the sum of K5,515.00 was ordered to be paid by the respondents to the appellant company. The appellant was awarded its costs as well.

The Notice of Motion dated 16 May 2000 seeks the following orders for relied:

1. That the judgment of his Honour Mr Justice Woods herein dated 17 July 1998 be corrected pursuant to Order 8 Rule 59 of the National Court Rules by including interest at 8% per annum in accordance with Order 12 Rule 6 (2) of the NCR on the amount of stamp duty to be refunded for the period from the date of payment of the stamp duty to the date refund is made;
2. That the Defendants pay the costs of these proceedings; and
3. Such further and other orders as this Honourable Court deems fit.
   

Interest

It is the applicant’s submission that the Court on appeal from a determination of the respondents had the power to order payment of interest on the amount ordered to be repaid to the applicant as wrongly assessed stamp duty. Furthermore, it is submitted that had counsel applied to the Court then for the ordering of interest on the amount to be repaid, the Court would have considered the matter and proceeded to exercise its discretion on it. In the alternative, if the Court did not consider the question of interest, or after considering it failed to make an award on interest, then this error or omission on the part of the Court would constitute proper circumstance for availing of Order 8 Rule 59 of the National Court Rules (NCRs).

The NCRs makes specific provision for interest under Order 12 Rule 6 (2) which is in the following terms:

6. Interest
   
   • (1) Where the Court directs the entry of judgment for payment of money and makes an order for payment of interest under the Judicial Proceedings (Interest on Debts and Damages) Act, interest shall, unless the order otherwise provides, be payable on so much only of the money as is from time to time unpaid.
     
   • (2) The rate of interest for the purposes of Sub-rule (1) is 8% yearly.
     

Whilst the primary National Court’s power over the appeal is derived from s 21(1) of the Act, and that s 21 (6) provides the circumstances under which the Court can reduce or indeed quash the assessment of duty, the applicant concedes that the Act makes no specific provision(s) for interest to be recovered (or repaid) upon the determination of the appeal.

Section 21 of the Act is in the following terms:

21. Appeal against assessment.
    
    • (1) Where, in relation to an objection under Section 20A, a person is dissatisfied with the decision on the objection, he may, within 60 days of the date of service of the notice under Section 20A (2), appeal to the National Court in accordance with the National Court Rules against the assessment stating therein the facts of the case and the grounds of appeal.
      
    • (2) [Repealed]
    • (3) [Repealed]
    • (4) [Repealed]
    • (5) On the hearing of the appeal, the National Court shall –
      
      • (a) determine the questions at issue; and
      • (b) assess the duty and penalty (if any) that the Court considers to be chargeable.
        
    • (6) Where the National Court’s assessment is less than the assessment of the Collector of Stamp Duties, the Court shall order the Collector of Stamp Duties to pay to the appellant –
      
      • (a) the amount of stamp duty or penalty paid by the appellant in excess of the amount assessed by the Court; and
      • (b) the costs incurred by the appellant in relation to the appeal.
        
    • (7) Where the National Court’s assessment is greater than the assessment of the Collector of Stamp Duties, the Court shall order the appellant to pay to the Collector of Stamp Duties –
      
      • (a) the amount of stamp duty or penalty by which the Court’s assessment exceeds the amount paid by the appellant; and
      • (b) the costs incurred by the Collector of Stamp Duties in relation to the appeal.
        
    • (8) Where the National Court’s assessment in the same as the assessment of the Collector of Stamp Duties, the Court shall order the appellant to pay to the Collector of Stamp Duties the costs incurred by the Collector of Stamp Duties in relation to the appeal.
      

It is the opinion of this Court that, whilst the primary jurisdiction of the National Court in respect of assessment of duty, and objection to such assessment, is derived from the Stamp Duties Act pursuant to s 21 (directly following the availing of s 20 A) of the Act, all other powers of the Court in respect of practice and procedure in determining the appeal are derived from the NCRs. And these, in addition to those specifically provided for under s 21 of the Act for the consideration and determination of the appeal, concern orders, directions and judgments that a court such as the National Court can give or make as a court of law, firstly, in determining the respective rights and obligations of the parties under or according to the law, and, secondly, in ensuring that those rights are protected and the obligations enforced.

Such powers relate to the ordering of interest pursuant to the Judicial Proceedings (Interest on Debts and Damages) Act as specifically provided for under O. 12, r. 6 (2) NCR (supra). In the instant case a judicial determination was made by the National in respect of the rights and obligations of the contending parties. Appeal was allowed, thereby rendering the determination of the respondent under the operating legislation unlawful and enforceable. A natural and legal consequence of this determination was an order for the respondent to repay to the appellant the sum of K5,515.00 that had been wrongly assessed against the appellant and paid.

Now, this order for (re) payment of monies is the very judgment that is envisaged by O. 12, r. 6 (2) NCR. And it is an order that the National Court has jurisdiction to make in proceedings brought under s 21 of the Stamp Duties Act. And thus, in this instance the learned privacy judge ought to have ordered to be calculated on the judgment amount of K5,515.00.

This brings me to the next issue. Was there an error, mistake, an "accidental omission" in the judgment when interest was not ordered, such that this Court can properly rectify the error or omission pursuant to what is popularly termed the ‘slip rule’ as envisaged by O. 8, r. 59 NCRs. The rule is expressed in the following terms:

59. Minute of judgment or order.
    

(1) Where there is a clerical mistake in a minute of a judgment or order, or an error in a minute of a judgment or order arising from an accidental slip or omission, the Court, on application by a party or of its own motion, may, at any time, correct the mistake or error.

(2) Rules 56, 57 and 58 of this Order do not apply to a correction made under sub-rule (1) of this Rule.

I have considered the cases cited and relied on by counsel for their respective cases. In the end result I am satisfied that this is the type of situation that the rule envisages, in order to correct any errors or omissions in the judgment so as to set the records straight. It is not intended, I would suggest, to be used as it seems to have been in this jurisdiction in recent times as a second or third "bite of the cherry"; coming back to Court over and over again, after exhausting all legal avenues (or despite those) only because one is not happy with the result. The ‘slip rule’, as properly understood, is not intended to be used in a "war of attrition", as it were, to prevent or prolong the enforcement of orders or judgments handed down by courts of competent jurisdiction. Such use would, I suggest, constitute abuse of the Court’s processes.

The omission to order interest on the sum to be refunded was an error, mistake or "accidental omission" properly requiring the invoking of the rule. It matters not that counsel for the appellant let the matter slip from his mind and, therefore, did not invite the Court to make orders on. The power to order interest is vested in the National Court in making orders pursuant to jurisdiction exercised under s 21 Stamp Duties Act. The power is always there under O. 12, r. 6 NCR and the Judicial Proceedings (Interest on Debts and Damages) Act.

I therefore, grant the appellants’ application in the terms of the Notice of Motion filed 1 June 2000, and Order as follows:

1. That the judgment of his Honour Justice Woods dated 17 July 1998 be corrected pursuant to O. 8, r. 59 NCR by including interest at the usual rate of 8% per annum in accordance with O. 12, r. 6 (2) NCR on the sum of K5,515.00 the amount of the stamp duty wrongly assessed and paid to be refunded for the period from the date of payment of such duty to the date the refund is made.
   
2. The respondents to pay the appellants’ costs of and incidental to these proceedings.

___________________________________________________________________
Lawyers for the Appellants: Parua Lawyers
Lawyers for the Respondents: In-house Lawyers