Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Lipsey v State [1993] PGNC 49; N1154 (2 April 1993)

N1154

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS 1284 of 1990

BETWEEN:

PETER LIPSEY
Plaintiff

AND:

THE INDEPENDENT STATE OF PNG
Defendant

WAIGANI: SHEEHAN, J
1992: 9th & 11 DECEMBER
1993: 2 APRIL

Judgment by Consent. Application to set aside for fraud mistake or lack of authority in Counsel.

CASES CITED:

The following cases were cited in the judgment.
UK Supreme Court Practice, 1991 Vol. 2 paras 4606-4615.
Marsden v Marsden 1972 2 ALL.E.R 1162
de Lasala v de Lasala 1979 ALL.E.R. 1146

Mr M. Kovro for the Plaintiff
Mr W Akuani for the State

On 11 of 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 duly entered and sealed.

Now, some 6 months later the State seeks to have the judgment set aside upon the grounds that Mr Keta acted without authority; that is although 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 there 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 it being 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 show 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 ground of fraud or mistake is to bring a fresh action for that purpose". [see (UK Supreme Court Practice, 1991 Vol. 2 paras 4606-4615. This is basically because 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 been exercised where grave injustice is shown to be likely to the party effected.

The law is fully set out in Marsden v Marsden 1972 2 ALL.E.R 1162 where a range of cases going back to the 19th Century are discussed again, though post 1975, the decision of Lord Diplock in de Lasala v de Lasala 1979 ALL.E.R. 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 State: Solicitor General