SC1522
 
PAPUA NEW GUINEA 
[IN THE SUPREME COURT OF JUSTICE] 

  SCA 7 of 2016

BETWEEN

HONOURABLE PETER O’NEILL, 
PRIME MINISTER OF PAPUA NEW GUINEA
Appellant

AND
NERRIE ELIAKIM 
CHIEF MAGISTRATE
First Respondent

AND
THE INDEPENDENT STATE OF 
PAPUA NEW GUINEA
Second Respondent

AND
MATTHEW DAMARU & TIMOTHY GITUA 
as the Director & Deputy Director of National 
Fraud & Anti-Corruption Directorate
Third Respondents

AND
GEOFFREY VAKI, 
COMMISSIONER OF POLICE in his capacity 
		as the Police Commissioner of PNG
Fourth Respondent

AND
GARI BAKI, 
in his capacity as the Police Commissioner of PNG
Fifth Respondent

 Waigani: Kandakasi, Hartshorn and Kassman JJ 
2016: 6th July & 16th August 

Objection to Counsel for Third Respondents appearing without the consent of the Attorney General on the ground of issue estoppel

Cases cited: 

Blair v. Curran [1939] HCA 23; 62 CLR 464 
Carl Zeiss Stiftung v. Rayner & Keeler Ltd (No. 2) [1966] 3 WLR 125 
Carl Zeiss Stiftung v. Rayner & Keeler Ltd (No. 3) [1970] 1 Ch 506 
James Marape v. Peter O’Neill (2016) SC1487 
National Housing Corporation v. Paul Asakusa (2012) SC1165 
Olympic Airlines SA v. ACG Acquisition XX LLC [2014] EWCA Civ 821	
Simon Ekanda v. Rendel Rimua (2015) N6174	
State v. David Kofowei [1987] PNGLR 5
Virgin Atlantic Airways Ltd v. Zodiacs Seats UK Ltd [2014] AC 160 
Watt (formerly Carter) v. Ahsan [2007] UKHL 51

Counsel:

Mr. M.M. Varitimos QC and Ms. T. Twivey, for the Appellant
Mr. R. Saulep, for the First and Second Respondents
Mr. T.G. Lambert and Mr. M. Nale, for the Third Respondents
Mr. I.R. Molloy and Mr. C. Wara, for the Fifth Respondent 

16th August 2016

1.       BY THE COURT:  This is a decision on a contested objection as to whether Messrs Matthew Damaru and Timothy Gitua as the Director and Deputy Director of the National Fraud and Anti-Corruption Directorate are able to engage lawyers to act for them in this proceeding without the approval of the Attorney General.

2.    The appellant and the first, second and fifth respondents all object to the appearance of counsel for Messrs Damaru and Gitua in this proceeding on the ground that the approval of the Attorney General had not been obtained for such appearance and that Messrs Damaru and Gitua are estopped from contending that they are able to engage lawyers to act for them without the approval of the Attorney General.

3.    The Attorney General’s approval is necessary it is contended as Messrs Damaru and Gitua are parties to this proceeding as police officers and officers and servants of the State concerning matters arising out of their service and duties as police officers in the course of their employment by the State. Reliance is placed upon the Supreme Court decision of James Marape v. Peter O’Neill (2016) SC1487 (Hartshorn, Makail and Sawong JJ, delivered on 24th February 2016) (prior decision), which held that Messrs Damaru and Gitua did require the approval of the Attorney General to the engagement of lawyers to act for them in that proceeding. Messrs Damaru and Gitua were parties in that proceeding in the same capacities as they are parties in this proceeding.

4.    Messrs Damaru and Gitua contend that they are entitled to appoint lawyers and counsel to represent them without the approval of the Attorney General, that they are not estopped from making this contention and that the prior decision can be distinguished and should not be followed.

Whether Messrs Damaru and Gitua are estopped

5.    We consider first whether Messrs Damaru and Gitua are estopped from contending that they are able to engage lawyers to act for them in this proceeding without the approval of the Attorney General.

6.    In support of the contention that they are so estopped, it is contended amongst others that:

a)	the issue of whether they are required to obtain the approval of the Attorney General concerning their legal representation was decided by the Supreme Court in the prior decision;

b)	the Supreme Court determined this issue, despite contentions to the contrary, against Messrs Damaru and Gitua;

c)	the catchwords in the prior decision records:

	“Review of decision of single Supreme Court Judge as to whether 	approval of Attorney General required by sixth and seventh 	respondents (Damaru and Gitua) concerning their legal 	representation.”

d)	paragraph one of the prior decision stated:

	“BY THE COURT: This is a decision on an application by the fourth 	respondent to review the decision of Kirriwom J sitting as a single 	judge of the Supreme Court. The part of the decision of Kirriwom J 	that this decision is concerned with is in respect of the question of the 	engagement of lawyers by the sixth and seventh respondents, 	independently of the Attorney General.”

e)	the prior decision is therefore a decision or determination of the final Court of Appeal on a legal issue or question concerning the engagement of lawyers without approval of the Attorney General. It is clear from a consideration of the reasons that the discrete issue as to whether approval of the Attorney General is required has, in substance, been finally determined so as to give rise to an issue estoppel;

f)	paragraph 9 of the decision noted that it was contended that Messrs Damaru and	Gitua were not able to engage or instruct lawyers on their behalf independently of the Attorney General;

g)	the contrary argument on that issue is noted at [10] of the decision, where it is observed that Messrs Damaru and Gitua contended that they were entitled to engage or instruct lawyers of their choice independently of the Attorney General;

h)	having identified the issue, the Supreme Court determined that issue against that contended on behalf of Messrs Damaru and Gitua;

i)	the Supreme Court, being the final Court of Appeal, could not have been clearer at [29] where it was finally determined and held:

	“After having considered the submissions and evidence relied upon 	we are of the view that as the sixth and seventh respondents are joined 	to the proceeding as Police Officers and officers and servants of the 	State concerning matters arising out of their service and duties as 	Police Officers in the course of their employment by the State, they 	are required to obtain the approval of the Attorney General to their 	engagement of lawyers to act on their behalf in this proceeding. To 	the extent that Kirriwom J came to a different conclusion we are of 	the respectful view that His Honour erred in so doing.”

j)	it is contended that by reason of the determination of the issue, by the Supreme Court on Appeal, that Messrs Damaru and Gitua required the approval of the Attorney General concerning their legal representation, an issue estoppel arises precluding them from contending otherwise in this proceeding.

7.    On this issue, counsel for Messrs Damaru and Gitua submitted that there is no issue estoppel as the facts of this case are different to those in the prior decision, that s. 7 (i) Attorney General Act is flawed and that Messrs Damaru and Gitua were behind the arrest of the Attorney General and so it was unlikely that there would be a proper exercise of discretion by the Attorney General to a request for his approval concerning their legal representation.

Submissions on the law

8.    The appellant referred this Court to Halsbury’s Law of England on Issue Estoppel of 2015. At [1623] it is stated:

	“Issue estoppel means that a party is precluded from contending the 	contrary of any precise point which, having once been distinctly put in 	issue, has been solemnly and with certainty determined against him. 	Even if the objects of the first and second claims or actions are 	different, the finding on a matter which came directly in issue in the 	first claim or action, provided it is embodied in a judicial decision 	that is final, is conclusive in a second claim or action between the 	same parties and their privies. Issue estoppel will only arise where it 	is the 	same issue which a party is seeking to re-litigate. This principle 	applies whether the point involved in the earlier decision, and as to 	which the parties are estopped, is one of fact or one of law, or one of 	mixed fact and law.”

At [1624], it is stated as to the scope of the doctrine:

	“The conditions for the application of issue estoppel require a final 	decision on the issue by a court of competent jurisdiction and that:

	(1)	the issue raised in both proceedings is the same; and

	(2)	the parties to the judicial decision or their privies were the 	same persons as the parties to the proceedings in which the estoppel 	is raised or their privies.”

Then at [190] – [100] of Halsbury’s Laws of Australia on Issue Estoppel it is stated that:

	“The parties are bound in the sense that they are precluded in 	subsequent proceedings from asserting, as against other parties to the 	judgment, to the contrary of any issue fundamental to the judgment.”

9.     The appellant also contends that a decision on an interlocutory application may create an estoppel when it finally decides the issue between the parties, (Santos v. Delhi Petroleum [2002] SASC 272 at [399] – [400] per Lander J), and that an issue estoppel can even arise from an interim judgment of a foreign court on a procedural issue where there is an express submission of the procedural or jurisdictional issue to a foreign court, and the specific issue of fact is raised before and decided by the Court (Desert Sun Loan Corp v. Hill [1996] 2 All ER 847).

10.    The fifth respondent contends that:

a)	the principle of issue estoppel forbids parties or their privies from re-agitating an issue which has been previously decided: Mark Ekepa v. William Gaupe (2004) N2694;

b)	it makes no difference that they are raising arguments not previously raised. Issue estoppel extends even to prohibit a party raising an issue (not simply an argument) which could have been but was not previously raised;

c)	in this respect the Supreme Court in State v. Downer Construction (PNG) Ltd (2009) SC979 accepted the principle of issue estoppel as expressed by the High Court of Australia in Port of Melbourne Authority v. Anshun Pty Ltd (1981) 147 CLR 589. The point is correctly stated, it is contended, in Special Reference by Allan Marat (2012) SC1187, at [424] per Gavara Nanu J:

	“In Halsbury’s Laws of Australia at paragraph [190-50] the doctrine 	of res judicata (has) been given a much broader application and is 	stated this way: “The doctrines of res judicata and issue estoppel 	have been extended to apply to matters which were not raised in the 	prior proceedings but which could and should have been raised…. 	The principle is based on the policy that parties to proceeding should 	bring forward their whole case and not seek to reopen issues in 	subsequent litigation, not only to avoid the possibility of inconsistent 	decisions but also to make efficient use of court resources and judicial 	time.””

d)	in any event, the prior decision is correct. The reasoning, it is contended, is compelling.

Consideration

11.    In this instance the question is whether Messrs Damaru and Gitua are precluded by the doctrine of issue estoppel from contending that they do not require the approval of the Attorney General concerning their legal representation in this proceeding when this Court in another proceeding in which the parties or their privies were almost the same, decided that same question to the contrary.

12.    In addition to the decisions in this jurisdiction relied upon by the fifth respondent, we note the decision of this Court in National Housing Corporation v. Paul Asakusa (2012) SC1165 which held that the three prerequisites for the operation of the doctrine of issue estoppel are:

a)	the issue raised in the second proceeding is the same issue as that raised in prior proceedings;

b)	the issue was finally determined in the prior proceedings;	and

c)	the parties in the two proceedings are the same or, if they are not the same, the party against whom the issue estoppel is sought to be applied was a privy of a party to the prior proceedings and reasonably expected to be aware of the prior proceedings and entitled to be joined but failed without explanation to do so.

13.    We also refer to the decision of Hartshorn J in Simon Ekanda v. Rendel Rimua (2015) N6174 that amongst others gave consideration to a question raised of issue estoppel.

14.    In addition to these decisions it is helpful to consider some of the judicial pronouncements from Australia and England on this doctrine.

15.    The doctrine of issue estoppel was considered by the High Court of Australia in Blair v. Curran [1939] HCA 23; 62 CLR 464. At 531 – 533 Dixon J said as to res judicata and issue estoppel:

“A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared. The distinction between res judicata and issue estoppel is that in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.”

16.    In Cross on Evidence, 7th Australian ed, J.D. Heydon (2004) at [5080] it is stated succinctly that:

“Only a decision about a matter which it was necessary to decide - a decision which is fundamental or cardinal to the judgment - can create an issue estoppel. Hence it is necessary to understand what the author of the decision was required to decide.”

17.    In England, in the House of Lord’s in Carl Zeiss Stiftung v. Rayner & Keeler Ltd (No. 2) [1966] 3 WLR 125 at 160, Lord Guest stated that:

“Within recent years the principal has developed so as to extend to what is now described as “issue estoppel,” that is to say, where in a judicial decision between the same parties some issue which was in controversy between the parties and was incidental to the main decision has been decided, then that may create an estoppel per rem judicatam.”

Then in Carl Zeiss Stiftung v. Rayner & Keeler Ltd (No. 3) [1970] 1 Ch 506, Buckley J said, at 538G:

“To make good a claim of estoppel per rem judicatam the party asserting the estoppel must establish: (1) that there has already been a judicial decision by a competent court or tribunal, (2) of a final character, (3) of the same question as that sought to be put in issue by the plea in respect of which the estoppel is claimed, (4) between the same parties, or their privies, as the parties between whom the question is sought to be put in issue.”

18.    This passage was recently cited with approval by Rimer LJ in Olympic Airlines SA v. ACG Acquisition XX LLC [2014] EWCA Civ 821. Rimer LJ also stated at [56], as to the point referred to in Spencer Bower and Handley, Res Judicata, 4th ed, [8.23], that an express judicial determination of a particular issue will not create an issue estoppel unless it was necessary and fundamental to the court’s overall decision:

“The question is whether the determination was necessary and fundamental to the decision that resulted in the making of the order.”

19.    In Watt (formerly Carter) v. Ahsan [2007] UKHL 51 at [31] Lord Hoffman stated:

“Issue estoppel arises when a court of competent jurisdiction has determined some question of fact or law, either in the course of the same litigation (for example, as a preliminary point) or in other litigation which raises the same point between the same parties: see Thoday v. Thoday [1964] P 181, 189”

and then at [33]:

“It does not matter that a later decision, now approved by this House, has shown that it was erroneous in law: see In re Waring; Westminster Bank v. Burton-Butler [1948] Ch 221. The whole point of an issue estoppel on a question of law is that the parties remain bound by an erroneous decision.”

20.    Then recently in Virgin Atlantic Airways Ltd v. Zodiacs Seats UK Ltd [2014] AC 160, in the Supreme Court, Lord Sumption in a consideration of the law on res judicata, with which the other members of the Supreme Court agreed, said as to issue estoppel that it is:

“… the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: Duchess of Kingston’s Case (1776) 20 State Tr 355.”

21.    In this instance, this Court in the prior decision was concerned with the question of whether Messrs Damaru and Gitua in the capacities in which they were parties to that proceeding, required the approval of the Attorney General to the engagement of the lawyers who were to represent them in that proceeding. The Court decided that they did require the approval of the Attorney General.

22.    The capacities in which Messrs Damaru and Gitua were parties in the prior proceeding were as Director and Deputy Director of the National Fraud and Anti-Corruption Directorate. The Court found that as they had been joined to the proceeding in those capacities, they were joined as members of the police force and as such they are employees of the State: State v. David Kofowei [1987] PNGLR 5; s. 188 (1)(b) Constitution. Further, the police force of which they are members, and on behalf of which they were joined to the proceeding, is a State Service: s. 188 (1) (b) Constitution. 

23.    The capacities in which Messrs Damaru and Gitua are parties to this proceeding are the same.

24.    We note the following submission made on behalf of Messrs Damaru and Gitua, at [25]:
	
“Firstly, we say that the Supreme Court was correct in holding that the Third Respondents participation in that proceeding, so (sic) as in this and other related proceedings, is (sic) respect of a matter that is not of a purely personal nature to them but in their official capacities as policemen representing the interests of the State, hence (sic) require the approval from the Attorney General for the engagement of private lawyers.”

25.    We take it from this submission that it is conceded that in this proceeding Messrs Damaru and Gitua require the approval of the Attorney General to the engagement of the lawyers who are to represent them.

26.    In any event we are satisfied that the question that was decided in the prior proceeding was that Messrs Damaru and Gitua in their respective capacities in which they were parties in that proceeding required the approval of the Attorney General to the engagement of lawyers who were to represent them. Further, the contention in this proceeding that Messrs Damaru and Gitua in those same capacities, do not require the approval of the Attorney General to the engagement of lawyers to represent them in this proceeding, raises or is the same question. Consequently, the first condition necessary for an issue estoppel to arise has been satisfied. That is, the same question has been decided.

27.    The next consideration is whether the judicial decision which it is contended, created the estoppel is a final decision of a court of competent jurisdiction. 

28.     In this instance the court that made the decision in the prior proceeding is this Court - a court of competent jurisdiction. The decision is a final decision, as there is no appeal from the Supreme Court.

29.    We also note that as this Court in the prior proceeding was considering a review of a decision of a single Supreme Court Judge as to whether the approval of the Attorney General was required by Messrs Damaru and Gitua concerning their legal representation, this Court’s decision which it is contended, created the estoppel, was a necessary and fundamental decision to that Court’s overall decision in the prior proceeding.

30.    Consequently the point referred to in Olympic Airlines v. ACG Acquisition (supra) and Spencer Bower and Handley, that an express judicial determination of a particular issue will not create an issue estoppel unless it was necessary and fundamental to the court’s overall decision, has been satisfied. The decision in the prior proceeding being a necessary and fundamental decision that resulted in the making of the order in that case, is to be contrasted with the decision which was contended to have created an estoppel in Simon Ekanda v. Rendle Rimua (supra). In that case, the decision alleged to have created an estoppel was not a decision on a matter that it was necessary to decide in determining the particular issue that was before the court for determination.

31.    The second condition, therefore in our view, has been satisfied.

32.    The next consideration is whether the parties in the two proceedings are the same or if they are not, whether the party against whom the issue estoppel is sought was a party or a privy to a party in the prior proceedings. In this instance, the parties against whom the issue estoppel is sought, Messrs Damaru and Gitua, were parties in the prior proceeding in the same capacities as they are parties in this proceeding.

33.    When the other parties to the proceedings are considered, four parties to Marape v. O’Neill (supra) were not parties to this proceeding and three parties of this proceeding were not parties to Marape v. O’Neill (supra).

34.    It is the case that Hon. Peter O’Neill, the State and Messrs Damaru and Gitua are parties in both sets of proceedings. Further, Messrs Geoffrey Vaki and Gari Baki both appear in this proceeding in their capacities as “Police Commissioner of PNG”. In the prior proceeding the Royal Constabulary of PNG was a party. I am satisfied that Messrs Vaki and Baki and the Royal Constabulary of PNG can be considered as privies of each other in both sets of proceedings. This results in only Ms. Nerrie Eliakim, Chief Magistrate, in this proceeding, not being a party or a privy to the prior proceeding.

35.    In the circumstances, as the persons against whom the estoppel is sought are parties in both proceedings, and only one party in this proceeding was not a party or privy to a party in both proceedings, on the authority of National Housing Corporation v. Asakusa (supra), we are satisfied that the third condition that is necessary to be established for an issue estoppel to arise has been met in this instance.

36.    Consequently, as the three conditions have been satisfied, an issue estoppel arises. As an issue estoppel has been established, the persons against whom the issue estoppel is sought, Messrs Damaru and Gitua are estopped from contending that they do not require the approval of the Attorney General to their legal representation in this proceeding. 

37.    Further, as an issue estoppel has been established, the issue the subject of the estoppel cannot be questioned. As referred to in Halsbury’s Laws of England on Issue Estoppel at [1623]:

“Issue estoppel means that a party is precluded from contending the contrary of any precise point which, having once been distinctly put in issue, has been solemnly and with certainty determined against him.” 	

Given this finding it is not necessary to consider the other submissions of counsel.

Orders

38.

a)	The objections of the appellant, and the first, second and fifth respondents are upheld;

b)	The third respondents are estopped from contending that they do not require the approval of the Attorney General to their legal representation in this proceeding;

c)	The third respondents shall pay the costs of and incidental to the hearing of the objections of the appellant and the first, second and fifth respondents, to be taxed if not otherwise agreed.

_____________________________________________________
Twivey Lawyers:   Lawyers for the Appellant                                     
Saulep Lawyers:   Lawyers for the First and Second Respondents    
Jema Lawyers:    Lawyers for the Third Respondents                      
Nicholas Tame Lawyers:   Lawyers for the Fifth Respondent