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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO. 576 OF 2013
BETWEEN
:
KEN OWA AS CHAIRMAN OF MOIWA LAND GROUP INCORPORATED
First Plaintiff
AND
MOIWA LAND GROUP INCORPORATED
Second Plaintiff
AND
JACOB POPUNA – THE PUBLIC CURATOR
First Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
AND
STEVEN PURI
Third Defendant
Waigani: Nablu, AJ
2015: 22nd July and 30th September
JUDICIAL REVIEW – Decision of Public Curator to appoint an agent – Public Curators Act ss. 4, 10 – Wills, Probate and Administration Act ss. 1 & 44 - Decision of Public Curator subject to Public Law – Susceptible to judicial review – Meaning of administration of deceased estate – Error of law committed by Public Curator – Only three lawful ways which Public Curator assumes jurisdiction of deceased estate.
JUDICIAL REVIEW – Application granted – Declaratory order and order in the nature of certiorari granted – Interest of justice – Grant of relief discretionary – Other relief for appointment as the Public Curators' agent refused.
Cases cited:
Cecilia Bonny v. Dorothy Amino (2009) N3591
Ereman Ragi v. Maingu (1994) SC 459
Julius Pololi v. Bryan James Wyborn (2013) N5253
Konze Kara v. Public Curator of PNG (2010) N4048
Mision Aiski v. Manasupe Zurenouc (2005) SC 797
Ron Napitalai v. Casper Wallace (2010) SC1016
Young Wedau v. Alfred Daniel (1995) PNGLR 357
Counsel:
F.Kuvi, for the Plaintiff
M.Maiteng, for the First and Second Defendant
J.Kumura, for the Third Defendant
30th September, 2015
1. NABLU, AJ: The plaintiff was granted leave to review the decision of the Public Curator to appoint Steven Puri, the third defendant as an agent pursuant to Section 4 of the Public Curator Act on 29th July 2011. The decision was published in the National Gazette No. G209 of 2011 on 4th August 2011.
2. In the substantive notice of motion filed pursuant to Order 16 Rule 5(1) of the National Court Rules, the plaintiff sought various relief. One such relief, is for the Court to appoint the first plaintiff as the agent for the Public Curator and to be given the power to act as administrator of the Moiwa Timber Rights Purchase Area (TRP) of Jimi Valley in the Baiyer District of Western Highlands Province. He also seeks orders to revoke the decision to appoint Steven Puri as the Public Curator's agent and an injunction, to restrain him from interfering with the plaintiff's performance of any duties or functions as Agent and Administrator of the Moiwa TRP.
3. The Colonial Administration of the Territory of Papua and New Guinea in October 1967 acquired customary land in Jimi Valley, Baiyer District, Western Highlands Province. The land was described as "Ruti". It was acquired from the traditional landowners, the Moiwa Tribe. The land was acquired for the purposes of harvesting timber. The Moiwa Tribe and the Administration signed a Moiwa Timber Rights Purchase Agreement for a forty (40) year period. The consideration for the land was paid in the sum of $ 53, 010.00 (Australian Dollars). However, the amount of AUD $ 47,120.00 was withheld for investment with the Treasury Department and the balance was distributed to the landowners. The investment was to mature in 2007. Since the maturity of the investment, the landowners have not been paid their dividends.
4. It is unclear how the matter was referred to the Public Curator. However, in the evidence before me, in the Affidavit of Paul Wagun which was filed on 7th April 2015, the former Public Curator states that he formed the opinion, on legal grounds under Section 44 of the Wills, Probate and Administration Act 1951 that the entire Jimi TRP Trust was initially vested in him "...to take original and initial action to set in motion the process of transferring the fiduciary trusteeships of all the deceased trustees to living trustees or alternatively to solely act for all the trustees and so discharge their fiduciary obligations to call upon appropriate and relevant parties (Treasury Department and PNG Forest Authority to account fully by powers of disclosure vested in me pursuant to the Public Curator Act 1951)..." (Paragraph (3) of the Affidavit). On 29th July 2011, the Public Curator appointed Steven Puri as his agent pursuant to Section 4 of the Public Curators Act. The former Public Curator stated that the appointment was based on genuine meritorious grounds. The third defendant's father was the surviving witness to the trust arrangement. He was the colonial interpreter and mediator who witnessed the signing of the Jimi TRP Trust Deeds. The plaintiff challenges the Public Curator's decision to appoint Steven Puri as his agent.
5. The plaintiff has not clearly stated the grounds of review he relies on application. Upon perusal of the Statement of Support pursuant to Order 16, there appears to be two (2) main grounds of review.
6. The first respondent's decision to appoint the third defendant as agent and administrator was made in breach of the principles of natural justice. Secondly, the decision of the first respondent was unreasonable.
7. The parties have conceded to the following legal issues for determination by this Court. They are as follows;
8. I am of the view, that the second and third legal issues identified by Parties have not been pleaded properly, and that those legal issues should be determined in civil proceedings commenced by writ, where the facts of the matter are in dispute. This is a judicial review proceeding, which requires the plaintiff to prove that a decision was made in breach of the law, there was a denial of a natural justice or breach of a mandatory statutory process. I am of the view that the crucial issue before this Court for determination is whether the First Defendant breached the law when he appointed the third defendant as his agent pursuant to Section 4 of the Public Curator Act?
9. The first and second defendant's counsel raised the following preliminary issues. They are;
10. I consider the issues raised by counsel, relevant and therefore, I will determine them first before delving into the merits of the matter.
11. The first and second defendant's counsel has raised issues such as; whether the decision to appoint the third defendant is public law or a matter of private law. If it is found to be of a public law nature, then it is susceptible to judicial review. If it is a matter of private law then the plaintiff's remedy lies in Contract Law.
12. Mr Maiteng of counsel for the first and second defendant submitted the case of Ereman Ragi v. Maingu (1994) SC 459 to support his contention that judicial review remedy is only available in relation to issues of public law.
13. He submitted further that, Section 4 of the Public Curator Act, empowers the Public Curator to appoint an agent to act on his behalf to administer estates of deceased persons. The Act does not provide a statutory process on how such appointments are made. The relationship between the Public Curator and his agent is governed by private law or agency laws. Therefore, the plaintiff have no remedy under judicial review.
14. I am of the view that the law is clear, Section 2 of the Public Curator Act provides that, the Public Curator's duties, functions and responsibilities are provided for under the Public Curator Act. The Public Curator is responsible for the administration of deceased persons' estates. Such function is a public function and is susceptible to Public Law.
15. In Ereman Ragi v. Joseph Maingu (supra), the respondent was employed by the State Services and Statutory Authorities Superannuation Fund Board as the board secretary. In a restructure of the Board, the respondent's position ceased to exist and he was dismissed. On appeal, the Supreme Court held that, the plaintiff's employment was a matter of private law and not public law; therefore his remedy lay in damages.
16. In Young Wedau v. Alfred Daniel (1995) PNGLR 357, the appellant appealed against the decision of the National Court to refuse leave for judicial review of Papua New Guinea Harbours Board's decision to terminate him as a legal officer. The Supreme Court dismissed the appeal and held that the nature of the appellant's work as a legal officer was not one of a "public office", therefore his rights were of a private law nature and not susceptible to judicial review. The appellant's private law rights, such as the right to seek damages for breach of contract or unlawful dismissal are not affected.
17. This principle of law is now settled in the case of Ron Napitalai v. Casper Wallace (2010) SC1016, where the Supreme Court held that PNG Ports Corporation Ltd was a not a government body or public authority and its decision was not subject to judicial review. PNG Ports was an incorporated body under the Companies Act and not a creature of statute. Judicial review was not available to the respondents whose dismissal from employment, was of a private law nature. The appeal was upheld and the decision of the trial judge in granting leave for judicial review was quashed.
18. The Supreme Court when considering the facts of the earlier decisions of Ereman Ragi (supra) and Young Wedau (supra), found that the facts of those cases were not distinguishable from the facts of that case. The trial judge erred in law when not applying the principles in those cases. The fact that PNG Ports was not created by Statute but was incorporated under the Companies Act supported the contention that the respondent's employment was that of a private law nature as opposed to a public law nature.
19. Whilst those cases are helpful, the facts differ from the present case. Those cases related to unlawful termination of employees. This case relates to the exercise of the Public Curator's power to appoint an agent pursuant to a statutory provision. I am of the view that the appointment of an agent is a matter of public law. This is based on two reasons. Firstly, the power to appoint an agent is exercised pursuant to a statutory provision namely Section 4 of the Public Curator Act. Secondly, the Public Curator is a public authority responsible for the administration of deceased estates which is a government function.
20. In Julius Pololi v. Bryan James Wyborn (2013) N5253, and Konze Kara v. Public Curator of PNG (2010) N4048, His Honour Justice Hartshorn was of the view that Public Curator was a corporation that had perpetual succession, a seal and is entitled the "Public Curator of Papua New Guinea".
21. His Honour, arrived at that view after having regard to Section 2 of the Public Curator Act.
22. Section 2(2) states that;
"The Public Curator –
23. In Cecilia Bonny v. Dorothy Amino (2009) N3591, His Honour Justice Cannings was of the view that the Public Curator is a Statutory – Office – holder whose functions are provided for under the Public Curator Act.
24. In PNG Power Ltd v. Ian Augerea (2013) SC1245, when considering the applicable principles which should be applied when identifying a government body or entity. At paragraph 65 the Supreme Court stated that;
"...the Public Curator was a government institution which comes under the Department of Justice and Attorney General, which carries on a very critical function namely, the administration of intestate deceased estates, which is a traditional welfare, governments function or service. The Public Curator is appointed by the National Government and paid out of public funds through government appropriations and is accuntable [sic] to the people through the government of the day and Parliament. The Public Curator does not charge and collect professional fees at rates like those charged by other professionals in the private sector for his services and the office does not exist for generating profits for the government."
25. The Supreme Court held that, notwithstanding the different views, the test which should be applied to ascertain whether an entity is a government body, is that, the entity has some form of control, ownership and funding from the government.
26. In addition to that, the Supreme Court was of the view that the purpose of which the office was established should also be a relevant consideration. Despite the appearance of a private corporate status and structure if it was established for an important public purpose, that was, traditionally a purpose which was a government function, that would render the entity a government body.
27. I am not persuaded that the appointment of the agent of the Public Curator is a matter of private law. The plaintiff is aggrieved by the decision of the Public Curator to appoint the third defendant. The decision was made by a public authority, invoking powers under a legislative enactment namely, the Public Curator Act. It is not a commercial business decision, it has the hallmarks of an administrative decision. Therefore, been an administrative decision by a public body it is susceptible to judicial review.
28. Accordingly, I do not accept the first and second defendant's argument.
29. The next issue raised by the first and second defendants was whether the plaintiff failed to exhaust administrative remedies before coming to this Court. These issues are dealt with at the leave stage, but the fact that it was argued at the time of seeking leave, does not bar the defendants from raising the issue in the substantive hearing when the issues and facts are clearer, and evidence by the parties are before the Court.
30. The first and second defendants argue that the plaintiff did not utilize the complaints mechanism under Section 34 of the Public Curators Act. Section 34 of the Public Curators Act stated that an interested creditor, next of kin or person in the estate of a deceased person, that the Public Curator is administering under this Act, may on the neglect or refusal of the Public Curator to do anything in relation to the administration of the estate; or the Public Curators action or threatened action in breach of his duty in relation to the estate may apply, to the National Court or Judge pursuant to an affidavit.
31. I am of the view that the complaints provision is not applicable in the circumstances, the provision only relates to decisions or actions by the Public Curator in refusing or neglecting to act in relation to the administration of the estate or in instances where the Public Curator is doing or threatening to do, any act in breach of his duty with reference to the estate. The provision does not relate to the decision of the Public Curator to appoint a person to act as his agent as the administrator of the estate pursuant to Section 4 of the Public Curators Act. The complaints provisions is specifically for persons you have complaints in the way the Public Curator's administration of the deceased' estate. The issue before the Court is the decision of the Public Curator to appoint the third defendant as his agent.
32. Therefore, Counsel's submissions are misconceived and without merit.
The Law
33. It is necessary for me to reproduce Section 4 of the Public Curator Act for ease of reference.
"4. PUBLIC CURATORS AGENTS.
(1) The Public Curator may appoint a person to act as his agent for the purpose of administration of an estate.
(2) A person appointed under Subsection (1) may, at the request of the Public Curator, act as his agent –
- (a) for such purposes; and
- (b) with such powers; and
- (c) subject to such conditions and limitations, as are contained in the appointment.
(3) A person appointed under Subsection (1) shall act under the direction of the Public Curator.
(4) An agent appointed under Subsection (1) who is not an officer of the Public Services shall, if required by the Public Curator, give such security for the due performance of his duties as the Public Curator thinks proper.
(5) The Public Curator may pay to an agent appointed under Subsection (1) a commission, not exceeding 10% in respect of all moneys collected by him or by reason of his agency." (Emphasis mine)
34. The meaning of the term "administration" in the Public Curators Act, has the same meaning as provided for under Section 1 of the Wills, Probate and Administration Act, and includes an order under Section 10 or 11 of the Public Curator Act and an order under Section 110 of the Wills, Probate and Administration Act (Section 1 of the Public Curator Act). Section 110 relates to the administration of small estates before a Court of summary jurisdiction.
35. The other relevant section of the Act state that:
10. ORDERS TO ADMINISTER
(1) On the application of the Public Curator, the National Court or a Judge may grant to the Public Curator an order to administer the estate of any deceased person leaving property within the jurisdiction where–
(a) the deceased left no executor, widow, widower or next of kin resident within the jurisdiction, who is willing and capable of acting in the execution of the will or the administration of the estate; or
(b) the executors named renounce probate of the will of the deceased, and all the persons primarily entitled to administration decline, by instrument filed with the Registrar, to apply for administration; or
(c) probate or administration is not applied for within three months after the death of the deceased; or
(d) after the expiration of 30 days after the death, there is no reasonable probability of application being made within the period of three months after the death; or
(e) the estate or any portion of the estate is liable to waste, and the executor, widow, widower or next of kin–
(i) is absent from the locality of the estate; or
(ii) is not known; or
(iii) has not been found; or
(iv) requests the Public Curator in writing to apply for the order; or
(f) the estate, or any portion of the estate, is–
(i) of a perishable nature; or
(ii) in danger of being lost or destroyed; or
(g) great expense may be incurred by any delay.
(2) The National Court or a Judge may–
(a) before granting the order applied for under Subsection (1), require the Public Curator–
(i) to give such notices; or
(ii) to cite such persons; or
(iii) to produce such evidence, as the Court or Judge thinks proper; or
(b) make a temporary order for collection and protection only, or limited to a portion of the estate or otherwise.
(3) Except as otherwise expressly provided, an order under Subsection (1) gives the Public Curator the same powers, rights and obligations in respect of the estate as he would have had if administration had been granted to him.
(4) Except as otherwise expressly provided, all laws referring to the administration of the estates of deceased persons apply to the administration of estates by the Public Curator.
11. ORDERS TO ADMINISTER IN CASE OF REASONABLE SUSPICION OF DEATH.
(1) Where it is made to appear to the National Court that there is reasonable ground to suppose that a person has died, whether within or outside the jurisdiction of the Court, leaving property within the jurisdiction, the Court or a Judge may order and empower the Public Curator to administer the estate of the person.
(2) Until revoked, an order under Subsection (1) empowers the Public Curator–
(a) to collect, manage, and administer the personal estate of the supposedly dead person; and
(b) to enter on and receive the rents and profits of, and otherwise manage, his real estate; and
(c) to pay and discharge the debts and liabilities of that person,
in the same way as if the person were dead and the Public Curator had obtained an order to administer the estate of the person under Section 10.
(3) The Public Curator shall not proceed to any distribution of the assets without an order of the National Court or of a Judge, specially authorizing him to make the distribution.
36. Section 1 of the Wills, Probate and Administration Act, the term "administration" in relation to the estate of a deceased person, means letters of administration whether- general, special or limited or with the will annexed, or otherwise.
37. Until probate or administration is granted, the property of a deceased person vests in the Public Curator, in the same manner and the same extent as formerly personal estate in England vested in the Ordinary (see Section 44 of the Wills, Probate and Administration Act).
Ground One of Review:
38. In the first ground of review, the plaintiff argues that the Public Curator denied the plaintiff natural justice.
39. The defendants argued that it is the Public Curator's prerogative to appoint an agent to act for him pursuant to Section 4 of the Act. There is no requirement for the Public Curator to gauge the views of affected persons nor is there any express provision requiring him or her to give reasons for his decision to appoint an agent.
40. I am of the view that Section 4 of the Public Curator Act is clear, the Public Curator has wide powers to appoint an agent. There is no procedure provided for under Section 4 of the Act for the appointment of an agent. I also note that the power to appoint an agent is discretionary, this is clear from the use of the term "may" in the section.
41. The exercise of the discretion must however, be made with careful consideration of all the relevant factors. The Public Curator administers the Public Curator Act and exercises the powers and functions provided in the Act, therefore, greater deference should be paid to the administrator on the grounds on which he makes such administrative decisions. It is the Public Curator's perogative to appoint an agent and that should be left to him to make such decision as the public official responsible for administering deceased's estates.
42. The first ground of review is misconceived and is therefore dismissed.
Ground Two of Review:
43. The plaintiff argues that the Public Curator's decision was unreasonable within the Wednesbury principles of unreasonableness.
44. The common law principles of unreasonableness emanate from the classic case of Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 233. The Wednesbury principles of unreasonableness as they are commonly referred to, has been adopted and applied in numerous cases in this jurisdiction. A succinct summary of the principles was pronounced by the Supreme Court in the case of Ombudsman Commission v. Peter Yama (2004) SC 747. They are as follows;
(1) It must be a real exercise of discretion;
(2) The body must have regard to matters which it is expressly or by implication referred by the statute conferring the discretion;
(3) It must ignore irrelevant considerations;
(4) It must not operate on the basis of bad faith or dishonesty;
(5) It must direct itself properly in law; and
(6) It must act as any reasonable person would act and must not be so absurd in its action that no reasonable person would act in that way.
45. It is the sixth principle which is often referred to as the one that succinctly summarizes the Wednesbury principles.
46. In the present case, a number of the principles of unreasonableness are applicable.
47. In the evidence before me, I have find that part of the statutory process prescribed by the Act have been compiled with, it is open for the court to consider whether the decision to appoint was reasonable. Lord Green MR in Associated Provincial Pictures House Ltd v. Wednesbury Corporation (supra) stated that:
" The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere".
48. I am of the view that the decision by the Public Curator to appoint the third defendant as his agent is flawed. According to the affidavit of Paul Wagun filed on the 7th of July 2015, he states that he was the Public Curator at the time and he assumed jurisdiction to deal with Jimi TRP Trust Funds. He assumed legal administrative authority to act for the deceased trustees. He states that he formed the opinion, based on good faith and by operation of law, he acted as the initial actor with powers vested in him pursuant to Section 44 of the Wills, Probate and Administration Act to transfer the fiduciary trusteeship of all the deceased trustees to the living trustees or alternatively to solely act for all the trustees and so discharge their fiduciary obligations.
49. I am of the view, that there are three modes on how a deceased estate is passed on to the Public Curator. Pursuant to Sections 10 or 11 of the Public Curator Act where the Public Curator initiates the proceedings and obtains an order from the National Court, Judge. The second avenue is pursuant to Section 44 of the Wills, Probate and Administration Act which states provides that prior to "... probate or administration is granted, the property of a deceased person vests in the Public Curator..." Finally, the Public Curator assumesjurisdiction when the letters of administration are granted to him.
50. The law is clear that inorder for an appointment to be lawful and made properly within the powers provided for under Section 4, the Public Curator should have applied for and have been granted letters of administration or he should have sought an order pursuant to Section 10 or 11 (as the case may be) of the Public Curator Act. There is no evidence that such orders were obtained. Section 4 of the Public Curator Act is clear, a person is entitled to be appointed as an agent for the purposes of administration of the deceased estate. This means that the Public Curator must be granted letters of administration or an order under Section 10 of the Public Curator Act.
51. I uphold the Counsel for the plaintiff's submission and I am of the view that the decision to appoint the third defendant is unreasonable, because there is a fundamental breach of the law. Accordingly, I uphold ground two of review.
52. The plaintiff has made out one ground of review. The next step is to consider what appropriate relief should be granted. The grant of relief is a discretionary matter. Even though the plaintiff has proven one ground of review, the onus is still on the plaintiff to make a case for the appropriate relief. (See Mision Aiski v. Manasupe Zurenouc (2005) SC 797.)
53. According to the notice of motion filed pursuant to Order 16 Rule 5(1) of the National Court Rules, the plaintiff seeks to be appointed as the administrator of the Moiwa TRP Area of Jimi Valley. He also seeks to revoke the appointment of the third defendant on the 29th July 2011 as the agent and administrator. Costs be in the cause and other Orders.
54. After hearing full arguments from Counsel for the parties and in particular the plaintiff, I am not persuaded that the relief sought in paragraphs 3, 4 and 5 of the plaintiff's Notice of Motion filed on 30th October 2013 are available in judicial review. The primary relief available under Order 16 Rule 1 are orders in the nature of mandamus, prohibition, certiorari or quo warranto. Consequential orders in the nature of declaratory orders are also available under Order 16 Rule 2 of the National Court Rules. I am of the view, that the relief sought by the plaintiff is misconceived. Firstly, this Court has the power to grant prerogative writs. This Court does not have the jurisdiction to appoint the plaintiff as the administrator of the deceased estate that is the prerogative of the Public Curator. This Court also does not have the power to revoke the appointment of an agent; that is the Public Curator's function.
55. The Court has the discretion to refuse relief where there has been a long delay and if the relief is granted it would not be good for administration or prejudice the rights or interest of a person pursuant to Order 16 Rule 4 of the National Court Rules. The decision subject of review was made in 2011 which is four (4) years ago. The defendants argue that any relief granted is futile on the basis that the third defendant was instrumental in bringing the money into the country and it is pending distribution. The plaintiff is still at liberty to apply for letters of administration to administer the deceased estate for Moiwa TRP.
56. Notwithstanding the length of time in reviewing this decision, I am of the view that the interest of justice require that the decision to appoint the third defendant as an agent is quashed on the grounds that the Public Curator committed a fundamental error of law. The Public Curator can only appoint an agent to administer an estate on his behalf. After the initial vesting of the property of a deceased person pursuant to Section 44 of the Wills, Probate and Administration Act. The administration of a deceased estate can only occur where the Public Curator obtains a court order pursuant to Sections 10 or 11 of the Public Curator Act or upon the grant of letters of administration by the National Court pursuant to the Wills, Probate and Administration Act. However, when weighed against the finding that the proper legal process was not followed and there was a fundamental error of law and breach of a fundamental statutory process under the Public Curator Act, the decision must be quashed in the interest of justice. On that basis it would appear that the plaintiff may not be without a remedy, they may still have the remedy of applying for letters of administration to administer the deceased estate for the Moiwa TRP, available to them.
57. Based on the evidence before me, I am of the view that it is in the interest of justice that this Court exercise its discretionary powers to order declaratory orders and an order to quash the decision of the Public Curator to appoint the third defendant. In the exercise of my discretion, I also refuse the other relief sought.
58. Costs will follow the event, the defendants are to pay for the plaintiff's costs of and incidental to the proceedings which may be taxed if not agreed. I have exercised my discretion to apportion the costs between the defendants for avoidance of doubt.
Court Order
Orders accordingly.
Rageau Kikira Manua Lawyers: Lawyers for the Plaintiff
Twivey Lawyers: Lawyers for the First and Second Defendant
Kumura Lawyers: Lawyers for the Third Defendant
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