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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO 157 OF 2018
BETWEEN
MINERAL RESOURCES CMCA HOLDINGS LIMITED
Appellant
AND
OK TEDI FLY RIVER DEVELOPMENT FOUNDATION LIMITED
Respondent
Waigani: Makail, J
2019: 1st & 9th May
SUPREME COURT – PRACTICE & PROCEDURE – Slip Rule – Application for leave – Leave sought to revisit judgment of Supreme Court – Alleged misapprehension of provision of Statute – Statutory interpretation – Proper construction to be given to Section 10 of Public Money Management Regularisation Act, 2017 – Attorney-General Act, 1989 – Section 7(i) – Supreme Court Rules – Order 11, rule 32
SUPREME COURT – PRACTICE & PROCEDURE – Objection to competency – Grounds of objection – Pleading of grounds – Grounds must be clear and unambiguous – Need to set out in detail grounds of objection – Submissions in written and oral form must outline grounds – Grounds on non-compliance with statutory requirements or condition-precedents must be clearly and adequately pleaded
Cases Cited
Marabe v. Tomiape (2007) SC856
Donald Valu v. Ken Ngangan & Ors (2018) SC1723
Hon. James Marape v. Hon. Peter O’Neill (2016) SC1487
The State v. Zacharry Gelu (2003) SC716
Counsel:
Mr. A. Mana, for Appellant
Mr. R. J. Webb SC with Ms. G. Salika, for Respondent
RULING
9th May, 2019
1. MAKAIL, J: It is said that in any litigation there must be finality to it. In giving effect to this notion, it is said that once a judgment is perfected, it is final and parties are bound by it unless it is set aside as irregular or quashed on appeal. In the case of a judgment of the Supreme Court, as the Supreme Court is the final Court in this jurisdiction, its jurisdiction to revisit its own judgment is limited. It may set aside its own judgment where it is established that it has ‘slipped’ pursuant to Order 11, rule 32 of the Supreme Court Rules (“SCR”).
Principles relevant to leave
2. A party who requests the Supreme Court to revisit its judgment must first obtain leave. Leave is discretionary and may be sought from a judge of the Court making the order from which the application arises pursuant to Order 11, rule 32(3) of the SCR. The applicant must satisfy the Court that the slip rule application would have a strong chance of success. To determine that question, the Court is guided by seven general principles identified by the Supreme Court in Marabe v. Tomiape (2007) SC856. These are:
(a) there is a substantial public interest in the finality of litigation;
(b) on the other hand, any injustice should be corrected;
(c) the court must have proceeded on a misapprehension of fact or law;
(d) the misapprehension must not be of the applicant’s making;
(e) the purpose is not to allow rehashing of arguments already raised;
(f) the purpose is not to allow new arguments that could have been put to the court before;
(g) the court must, before setting aside its previous decision, be satisfied, that it made a clear and manifest, not an arguable, error of law or fact on a critical issue.
Grounds of Objection to Competency
3. In this case on 28th September 2018 Corrs Chambers Westgarth Lawyers filed the notice of appeal in this matter without obtaining approval from the Attorney-General. It was not until 3rd November 2018 that the Attorney-General gave approval by letter to Corrs Chambers Westgarth Lawyers to act for the appellant in the appeal.
4. On 24th October 2018 Young and Williams Lawyers acting on behalf of the respondent filed a notice of objection to competency and subsequent to that, on 13th December 2018 filed an amended notice of objection to competency. By the amended objection the respondent relied on six grounds but pertinent to the present application are grounds five and six. They are in the following terms:
Ground Five
“That the notice of appeal as filed on 28 September 2018, fails to comply with the requirements of section 7(i) of the Attorney-General Act 1989 in that the Attorney-General, had not at the time of filing of the appeal, or since, authorised and/or instructed Corrs Chambers Westgarth to appear for the appellant in this matter.”
Ground Six
“That the notice of appeal as filed on 28 September 2018, by reason referred to in [ground of objection 5, does not comply with the requirements of section 10 of the Public Money Management Regularisation Act 2017 ...... for the reason that the Attorney-General, had not at the time of filing of the appeal, or since, authorised and/or instructed Corrs Chambers Westgarth to appear for the appellant in this matter.”
5. On 14th December 2018 the Supreme Court comprised of Cannings J, Makail J and Polume-Kiele J heard the respondent’s amended objection to competency and adjourned to 17th December to complete it. At the hearing it was accepted by the parties that the Attorney-General gave his approval by way of a letter dated 3rd November 2018 to Corrs Chambers Westgarth Lawyers to act for the appellant in this matter. It was argued for the respondent that the statutory brief-out requirements are prospective and cannot be cured by retrospective articulation, even if obtained after commencement of proceedings, as was in this case. The Court reserved its ruling.
Ruling of Supreme Court on Objection to Competency
6. On Christmas-eve the Supreme Court delivered its ruling dismissing the objection in its entirety. In relation to grounds five and six, the Court held that it would be contrary to public policy and purpose of statutory provisions to prevent the Attorney-General from exercising his discretion in a retrospective manner.
Grounds in support of Leave
7. In the present application the respondent relied on the following matters as constituting grounds for leave, in that, the Court inadvertently:
(a) Omitted to consider the fact that Section 10 of the Public Money Management Regularisation Act, 2017 (“PMMR Act”) was enacted after Section 7 of the Attorney-General Act, 1989 (“A-G Act”) and the impact of that on the two provisions.
(b) Omitted to consider whether the operation of Section 7 of the A-G Act was affected by Section 10 of the PMMR Act.
(c) Omitted to construe the terms of Section 10 of the PMMR Act to ascertain their policy and purpose.
(d) Omitted to consider whether the decision of the Court in Donald Donald Valu v. Ken Ngangan (2018) SC1723 was direct authority which required it to uphold the two grounds of objection.
(e) Failed to consider whether it sought to depart from the decision of the Court in Donald Valu v. Ken Ngangan.
8. The respondent submitted that the Supreme Court inadvertently omitted to consider whether Section 7 of the A-G Act was to be construed in light of or as affected by Section 10 of the PMMR Act. It further submitted that the requirements of Section 10(2) were not considered by the Court and if they were, the Court would have reached a different conclusion. It added that neither the notice of objection to competency nor its written submission treated Section 7(i) of the A-G Act and Section 10 of the PMMR Act as separate grounds of objection to competency and by inadvertently treating them as distinct the Court failed to have regard to the terms of Section 10.
9. Finally, it referred to the affidavit of its counsel sworn on 12th November 2018 and pointed out that by this evidence it was admitted by counsel for the appellant when asked whether Corrs Chambers Westgarth Lawyers had been certified by the Attorney-General to appear for the appellant pursuant to Section 7 of the A-G Act and Section 10 of the PMMR Act that he did not have the requisite certification from the Attorney-General at the time of filing of the notice of appeal. Despite this admission, the Court inadvertently omitted to take it into account and if it had, it would have found to the contrary.
Section 10 of the PMMR Act
10. Section 10 of the PMMR Act states:
“10. Legal representation of public and statutory bodies.
(1) For the purposes of this Act, a public or statutory body shall not engage legal representation, commence any action or other proceeding in any court or tribunal or procure or contract for legal representation for any purpose other than in compliance with the Attorney-General Act 1989.
(2) Prior to the Attorney-General exercising his powers pursuant to Section 7 of the Attorney-General Act 1989 —
(a) the State Solicitor shall certify to the Attorney-General whether the lawyers to be appointed are, in the opinion of the State Solicitor, experienced and with sufficient professional competence in the area of law to represent a public or statutory body; and
(b) the Attorney-General shall satisfy himself that all procurement laws in Papua New Guinea have been complied with to the extent necessary for him to exercise his powers.
(3) Legal representatives of public and statutory bodies shall not receive or charge for any fees or disbursements other than taxed party-party or solicitor-client costs on the scale of fees of the appropriate Court.
(4) For the purposes of this section and Section 11 —
"public body" means an agency which is part of the State Services established under Part VII of the Constitution and includes a Provincial Government or Local-level Government established under the Organic Law on Provincial Governments and Local-level Government; and
"statutory body" means a body, authority or instrumentality (incorporated or unincorporated) established under an Act of the Parliament or howsoever otherwise for governmental or official purposes, including a subsidiary statutory body that is not a public body, and includes a body, authority or instrumentality (incorporated or unincorporated) established by a Provincial Government or Local-level Government or their subsidiary statutory bodies that are not public bodies.”
11. Sub-section 2 (a) and (b) of Section 10, in my view, sets out two mandatory statutory requirements or condition-precedents that must be met before the Attorney-General may instruct lawyers within or outside the country to appear for the State in any matter. These are:
(a) The State Solicitor must certify to the Attorney-General that the lawyers to be appointed are, in his opinion, experienced and with sufficient professional competence in the area of law to represent a public or statutory body; and
(b) The Attorney-General must be satisfied that all procurement laws in Papua New Guinea have been complied with to the extent necessary for him to exercise his powers.
12. I consider that as these two statutory requirements or condition-precedents are mandatory and necessary to the grant of approval by the Attorney-General, a party alleging that they have not been complied with by way of an objection to competency must bring them to the notice of the opposing party and the Court. To do that, it should be done in this way. First, the objector must clearly and adequately plead them as grounds constituting the objection in the notice of objection and secondly, at the hearing, submissions in written and oral form must outline these statutory requirements or condition precedents and failure to comply with them. In other words, the grounds must be clear and unambiguous and the statutory requirements and breach must be set out in detail. A general reference to non-compliance with Section 10 of the PMMR Act will be, in my view, insufficient and adverse to the defence and of course of no assistance to the Court in determining whether these statutory requirements or condition-precedents have been complied with by the opposing party.
Section 7(i) of the A-G Act
13. Where these statutory requirements or condition-precedents are satisfied, they will trigger the operation of Section 7(i) of the A-G Act. Section 7(i) states:
“7. Duties, functions and responsibilities of the Attorney-General.
The duties, functions and responsibilities of the Attorney-General are —”
(i) to instruct lawyers within or outside the country to appear for the State in any matter;.........”
14. Section 7(i) has been judicially considered in Donald Valu v. Ken Ngangan. That case and the present case are distinguishable on their facts because in the earlier case it was not contested that the second appellant did not obtain approval from the Attorney-General to engage the lawyers to institute the appeal. In this case, the Attorney-General gave approval but it after the appeal was filed. Nonetheless, it was held in that case that the appellants failed to comply with Section 7 of the A-G Act and Section 10 of the PMMR Act. It was further held that the appeal was incompetent and dismissed it because the lawyers did not have the requisite authority to sign and file the notice of motion constituting the appeal under Order 10, rule 3(d) of the SCR. The Court did not hold that because the appellants did not comply with the requirements under Section 10(2)(a) and (b), the appeal was incompetent. It was rather on the ground that as the second appellant would be regarded as a statutory body within the meaning of Section 10(4) of the PMMR Act it was required to obtain approval from the Attorney-General to engage lawyers within or outside the country to appear for it in the appeal. This Court did not misapprehend the ruling in that case and any suggestion to the contrary must fail.
15. Applying the criteria set out at [12] above, it is noted that the respondent has pleaded in ground six of the objection that the notice of appeal did not comply with Section 10 of the PMMR Act because the Attorney-General did not at the time of filing of the appeal, or since, authorised and/or instructed Corrs Chambers Westgarth Lawyers to appear for the appellant in this matter. This sort of pleading is insufficient because it fails to clearly and adequately identify the breach by not setting out the statutory requirements or condition-precedents under Sub-section 2(a) and (b) of Section 10 of the said Act and how the appellant failed to comply with one or both of them.
16. On the other hand, on the current state of pleadings, the allegation that the appellant failed to comply with Section 10 of the PMMR Act is not because the State Solicitor failed to certify that Corrs Chambers Westgarth Lawyers were, in his opinion, experienced and had sufficient professional competence in the area of law to represent the appellant in the appeal and secondly, that the Attorney-General was satisfied that all procurement laws in Papua New Guinea have been complied with to the extent necessary for him to exercise his powers under Section 7(i) of the A-G Act. Rather, the allegation is that “the Attorney-General, had not at the time of filing of the appeal, or since, authorised and/or instructed Corrs Chambers Westgarth to appear for the appellant in this matter.” This pleading demonstrates that the complaint by the respondent is in relation to the Attorney-General not authorising and/or instructing the lawyers prior to filing and appearing in this appeal. This would entail a consideration of the evidence in writing of the Attorney-General’s approval. This is the essence and substance of the ground of objection.
17. Then this ground is replicated in the submissions of counsel for the respondent at the hearing. Turning to lines 1 to 3 on page 3 of the transcripts of the proceedings of 14th December 2018, it will be noted that at the beginning of his address, counsel for the respondent handed up amended submissions and the presiding member of the Court indicated parties that it proposed to allow each side 30 minutes for oral address. Counsel for the respondent indicated that he had not much to say in addition to what was set out in the written submission and commenced his address.
18. The transcripts further show that at line 38 of page 12 to line 10 on page 13, counsel for the respondent was encouraged to conclude his oral submission because his allotted time had expired, and he did so. Shortly thereafter the matter was adjourned to the following Monday 17th December 2018. When it resumed on that day, submissions in reply were made on behalf of the appellant. But it is pertinent to note that at line 40 of page 12 of the transcript of the proceedings of 14th December 2018, counsel for the respondent was noted as submitting that the only issue he wanted to raise was the issue regarding the failure to comply with the A-G Act and that everything he wanted to say was in the submission (written submission). At lines 7 to 9 of page 13 of the transcript, counsel concluded by submitting that what was required under the A-G Act was an authority for each proceeding in the case of an applicant, plaintiff or appellant.
19. According to the respondent, the written submissions handed up to the Court addressed those two grounds of objections at paragraphs 32 to 39 on pages 12 to 14. So I turn to the written submissions and it will be noted that apart from referring to and extensively quoting from the decisions of the Supreme Court in Hon. James Marape v. Hon. Peter O’Neill (2016) SC1487 and The State v. Zacharry Gelu (2003) SC716, at paragraph 32(b) that it was submitted that the notice of appeal was filed in breach of Section 10 of the PMMR Act. It will be further noted that further reference to Section 10 of the PMMR Act may be found at paragraph 39 of page 14 of the written submission. Other than these two references to Section 10, the respondent’s written submissions does not detail or outline the two statutory requirements or condition-precedents under Section 10(2)(a) and (b) of the said Act and show how the appellant failed to comply with them to render the letter of approval by the Attorney-General dated 3rd November 2018 under Section 7(i) of the A-G Act null and void.
20. It follows that the respondent’s submission that the Court inadvertently omitted to consider whether Section 7 of the A-G Act was to be construed in light of or as affected by Section 10 of the PMMR Act is not supported by its own submissions made at the prior hearing. Even if, according to counsel for the respondent, there was evidence that counsel for the appellant had admitted to Corrs Chambers Westgrath Lawyers as not having the requisite certification from the Attorney-General at the time of the filing of the notice of appeal, it would not improve the respondent’s case because counsel for the respondent did not alert the Court to this aspect either in the oral or written submissions. In any case, the evidence does not suggest that the appellant’s counsel admitted to failing to comply with these two statutory requirements under Section 10(2)(a) and (b) .
21. Finally, while that there is some merit in the respondent’s submission that neither the notice of objection to competency nor its written submissions treated Section 7(i) of the A-G Act and Section 10 of the PMMR Act as separate grounds of objection to competency, this ground and submission fails to appreciate the distinct requirements set out in Section 10(2)(a) and (b) of the PMMR Act and that if they were satisfied, would trigger the operation of Section 7(i) of the A-G Act. It is for this reason that the statutory requirements of Section 10(2)(a) and (b) and their breach must be clearly and adequately expressed in the pleadings and submissions to alert the opposing party and the Court to them. As this was not done in this case, this ground and submission must fail.
22. On the present state of pleadings, the appellant’s submission must be upheld because as it has submitted, the Court was asked at the prior hearing in relation to the objection to competency to determine the sole question whether the Attorney-General had given approval to Corrs Chambers Westgarth Lawyers at the time of filing of the notice of appeal, or since, to appear for the appellant in this appeal. This question was the centre of focus by the parties and the Court was invited to decide it based on Section 10(1) of the PMMR Act and Section 7(i) of the A-G Act. To rely on the failure to comply with Section 10(2)(a) and (b) of the PMMR Act is in effect introducing a new ground to the objection to competency.
23. As noted at [2] above, one of the principles relevant to the exercise of discretion conferred on the Court to revisit its own judgment and its setting aside is that, the application must not allow new arguments that could have been put to the Court before. In the present application, I am satisfied that the ground relied upon by the respondent is a new one that could and should have been sufficiently put to the Court for consideration at the prior hearing in December last year.
24. Two further considerations which would entitle the respondent to leave are that, it must be able to establish that the Court proceeded on a misapprehension of fact or law and that the misapprehension must not be its making. In the present case, I am not satisfied that if leave were granted, the respondent will be able to successfully demonstrate to the Court that the Court misapprehended the law under Section 10(2)(a) and (b) of the PMMR Act. On the contrary, it would be difficult for the respondent to deny being the party responsible for the misapprehension of the law when it omitted or simply glossed over Section 10(2)(a) and (b) without any detailed discussion as to what it entailed in ground six of its amended notice of objection, and likewise oral and written submissions at the prior hearing in December last year.
25. A final consideration which the Court will have regard to is that, the Court must, before setting aside its previous decision, it must be satisfied it made a clear and manifest, not an arguable, error of law or fact on a critical issue. For the reasons already given regarding the construction of Section 10(2)(a) and (b) of the PMMR Act in conjunction with Section 7(i) of the A-G Act, I am not satisfied that the respondent will be able to successfully demonstrate at the hearing proper that the Court made clear and manifest error in its consideration of these two statutory provisions regarding the critical issue whether the authority of the Attorney-General to instruct or engage the present lawyers for the appellant was not validly engaged.
Conclusion
26. For the foregoing reasons, I am not satisfied that the respondent has demonstrated that it has a strong chance of success if leave were granted. Leave will be refused with costs.
Order
27. The orders are:
1. The application for leave to make a slip rule application is refused.
________________________________________________________________
Corrs Chambers Westgarth Lawyers: Lawyers for Appellant
Young & Williams Lawyers: Lawyers for Respondent
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