SC2429

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 144 OF 2022

BETWEEN:
KAGUA-ERAVE DISTRICT DEVELOPMENT AUTHORITY
Appellant

AND:
SUGU CIGARS BUILDERS LIMITED
Respondent

Waigani:  Collier J, Auka J, Narokobi J
2023:  29th June, 25th July

PRACTICE & PROCEDURE – Appeal of consent orders – whether the Primary Judge erred in fact and law in endorsing the consent orders and failing to enquire as to whether lawyer had authority – s 14(2) of the Supreme Court Act – Appeal dismissed.

The appellant claimed that, between the provision of instructions by the earlier Chairman of the Authority to consent to settlement of litigation with the respondent in OS 144 of 2022, and the making of final consent Orders by the National Court on 17 August 2022 settling those proceedings, the Chairman of the Authority changed. The appellant appealed those consent orders on the basis that: (1) the primary Judge erred when no instruction was given by the new Chairman of the appellant to the appellant’s then lawyers to have the matter settled; (2) the primary Judge failed to enquire whether the appellant had properly consented to the proposed consent orders; and (3) the primary Judge erred in endorsing the consent orders on 17 August 2022 thereby denying the appellant the right to file an application in the National Court setting aside the Orders and invoking s 155(4) of the Constitution.  The Court considered s 14(2) of the Supreme Court Act, and the limited circumstances where a party to consent orders made in the National Court may appeal such orders. 

Held: 

The Court found that the appeal was entirely unreasonable and was contrary to s 14(2) of the Supreme Court Act. The Court ordered that the appeal be dismissed, confirmed the Consent Orders of the National Court made on 17 August 2022 and ordered that the appellant pay the costs of the respondent on an indemnity basis. 

Cases Cited:

Akiko v Mangape [2022] SC2262
Geosite Management Ltd v Kavo [2020] N8439
Hely-Hutchison v Brayhead Ltd [1968] 1 QB 549
Kitogara Holdings Pty Ltd v National Capital District Interim Commission [1988] PGSC 20 
Kupo v Raphael [2004] SC751
Mali v Independent State of Papua New Guinea [2002] SC690
Monogenis v O'Brien (trading as O'Briens Lawyers) [2022] SC2300
Singat v Commission of Police (2008) SC910
Tovon v Malpo [2016] N6240 

Legislation:

Constitution of the Independent State of Papua New Guinea  
District Development Authority Act 2014
National Procurement Act 2018
Public Finances (Management) Act 1995
Supreme Court Act 1975
Supreme Court Rules 2012 

Counsel

Mr A Ninkama, for the Appellant
Mr H Pora, for the Respondent

REASONS FOR JUDGMENT

25th July, 2023

1	BY THE COURT: INTRODUCTION: Before the Court is an appeal filed on 26 September 2022 against final orders made on 17 August 2022 in OS 144 of 2021 by consent of the parties (17 August 2022 Orders). 

2	Relevantly, the 17 August 2022 Orders were:

THE COURT, by consent of the parties, orders that:
1.	The 2nd Defendant shall, within seven (7) days from the date of endorsement of this order, make full payment of the One Million Kina (K1, 0000, 000.00) which was funded and paid by the Department of National Planning and Monitoring to the 2nd Defendant's Public Account (through Cheque Number 019148) for the purpose of Erave Market Rehabilitation Program, to the Plaintiff's account number 7004306374, Bank of South Pacific Limited forthwith for the Plaintiff to roll out the project to its completion.
2. 	Parties to bear their own costs for this proceedings.
3.	Time abridged. 

3	The 17 August 2022 Orders were signed by Mr Henry Pora of Henry Pora Lawyers for the “plaintiff” (now respondent) and Mr Yarepea Otmar of Don Wapu Lawyers for the “defendants” (now appellant) and were dated 2 August 2022. 

4	As a general proposition, s 14(2) of the Supreme Court Act 1975 provides that when a final order is entered into by consent of the parties in the Court below, an aggrieved party cannot appeal against the consent order. There are, however, limited exceptions to that general rule.

5	The appellant claims that the primary Judge erred: 

•	In fact and law, in endorsing the 17 August 2022 Orders when there was no instruction given by the new Chairman of the appellant to its then lawyers to have the matter consent and settled. 
•	In fact and law, by failing to enquire whether the appellant had properly consented to the 17 August 2022 Orders through its new Chairman, Honourable Maina Pano, who was elected and declared as the new member for Kagua-Erave on 6 August 2022. 
•	In law, by endorsing the 17 August 2022 Orders, thereby denying the appellant the right to file a necessary application in the National Court to set aside the 17 August 2022 Orders by invoking s 155(4) of the Constitution. 

6	The appellant sought the following orders:

4.1 	That the Appeal is upheld in its entirety. 
4.2	That the purported Consent Orders of the 17th August 2022 by the Mt. Hagen National Court is set aside. 
4.3	That the National Court file be removed from the archive and that the matter be progressed to its finality at the National Court. 
4.4	The costs of this Appeal be paid by the Respondent. 
4.5	Any other orders this court deems fit.  

Background and related matters

7	The appellant is a body corporate created by the District Development Authority Act 2014 (DDA Act). The appellant is a District Development Authority (DDA) and is responsible for the performance of the service delivery functions for the Kagua Erave District and as such, administers the management of the Kagua Erave District. 

8	The appellant argued that it submitted a proposal to the Department of National Planning and Monitoring (the Department) for the construction of several Rural Markets within the district. 

9	The respondent argued that it applied to the Department for funding allocation for the construction and rehabilitation of the Erave Market in Kagua Erave District in Southern Highlands Province.
 
10	The Department released K1,000,000.00 to the appellant. 

11	The respondent claimed that the K1,000,000.00 released by the Department was tied to its funding submission. 

12	In the originating summons filed 19 April 2021 in OS 144 of 2021, the then plaintiff (now respondent) sought:

1. 	An order in the nature of a declaration that the One Million Kina (K1, 000,000.00) released by the Department of National Planning via Bank of Papua New Guinea cheque 019148 dated 17th August. 2020, for the construction of the Erave District Market and paid into the Second Defendant's operating account, specifically Kagua Erave District Treasury Operating Account, is a tied grant for a specific project as earmarked and funded.
2. 	An order in the nature of a declaration that the K1,000,000.00 funding for the Erave District Market is a tied grant and therefore not a discretionary fund. hence the Defendants cannot exercise discretion to divert it to other projects.
3. 	An order in the nature of a declaration that the funding of the construct of the Erave District Market was consequential to a project proposal submitted to the Department of National Planning by the Plaintiff with endorsement from the Southern Highlands Provincial Government and Chief Executive Officer of the Second Defendant. 
4. 	An order in the nature of mandamus directing the Defendants to manage and forthwith release the K1, 000,000.00 to the Plaintiff for the procurement of materials and construction of the Erave District Market to commence, per the project proposal by the Plaintiff and per scope of work approved by the Chief Executive Officer of the Second Defendant dated 23rd February, 2021. 
5. 	Costs of the proceedings to be paid by the Defendants.
6. 	Such other orders the Court deems fit.

13	At that time Mr Wesley Raminai was the chairman of the appellant. The appellant was represented by Don Wapu Lawyers in the National Court proceedings.

14	Proposals were made by the appellant to the respondent for the payment of the K1,000,000 to be made to the respondent in fragments. 

15	The affidavit of Mr Yarepea Otmar of Don Wapu Lawyers filed 23 March 2022 confirmed that settlement negotiations were ongoing. 

16	On 22 February 2022 Don Wapu Lawyers informed the National Court that the parties intended to settle the matter and sought an adjournment for the terms of the settlement to be finalised. 

17	On 22 February 2022, the National Court made the following orders adjourning the matter to 14 March 2022 pending the outcome of settlement negotiations:

1. 	This matter is adjourned to 14th March, 2022 at 9:30am for parties to confirm formal settlement negotiation and or resolution reached, in the event resolution is reached, consent orders to be signed by both parties and to be handed up in court at the next returnable date. 
2.	In the event that settlement is not reached, or no evidence of settlement negotiation, the matter will be listed for trial with a trial date to be allocated.
3.	Time shall be abridged to time of settlement to take place forthwith
18	The Court did not sit on 14 March 2022 and writs for the 2022 National General Elections were issued in April 2022. 

19	On 6 August 2022, the Hon. Maina Pano was declared the new member elect for the Kagua-Erave Electorate. 

20	The matter was listed on 17 August 2022 and the parties handed up draft consent orders prepared by Don Wapu Lawyers and signed by lawyers for the parties on 2 August 2022. 

21	On 17 August 2022, the 17 August 2022 Orders were presented to the Mount Hagen National Court for endorsement and were formally endorsed.
 
22	The substantive matter did not proceed to trial. 

23	On 26 September 2022 the appellant filed the appeal the subject of these proceedings. 
24	On 11 October 2022 the respondent filed a notice of objection to the competency of the current appeal. On 29 November 2022, Hartshorn J dismissed the objection to competency.

25	On 15 December 2022 Hartshorn J dismissed an application filed by the appellant on 4 October 2022 for a stay of the National Court Orders in OS 144 of 2021.
Submissions AND Evidence
Appellant

26	The appellant relied on: 

•	the affidavit of Hon. Maina Pano filed 4 October 2022, and 
•	various affidavits filed by the appellant in the National Court proceedings, namely the: 

•	affidavit of Mr Wesley Raminai filed on 03 August 2021; 
•	affidavit of Dick Romo Mirupasi filed on 25 April 2022; and 
•	affidavit of Rala Yano Belo filed 25 April 2022.  

27	In summary, Mr Pano deposed:

•	On 6 August 2022 he was declared the new Member Elect for the Kagua-Erave District in the Southern Highlands Province in Papua New Guinea. 
•	By virtue of his election he is also the new Chairman of the Appellant. 
•	On 9 August 2021 he was sworn in as the new Member. 
•	On 23 August 2022 the 17 August 2022 Orders were served on him. 
•	He did not have knowledge of this proceeding and nor did the appellant’s lawyers inform him about the case. 
•	His instructed lawyers were unable to have the 17 August 2022 Orders set aside as the file was archived pursuant to Order 3 of those orders. 
•	On 30 August 2022 the respondent filed separate contempt proceedings in OS No 205 of 2022: Sugu Cigars Builders Limited v Hon Miana Pano & Ors. 

28	In summary, Mr Raminai deposed:

•	At the time of the swearing his affidavit (29 July 2021) he was the elected Member for Kagua Electorate, the Minister for Higher Education, Research and Technology and the Minister for Sports in the Marape/Basil Government. 
•	As the Member for the electorate he, through the appellant, must seek funding from various Government departments and donor agencies to develop his electorate. 
•	The appellant submitted Project Proposals seeking funding from various sources, one of which was a proposal concerning a Rural Market submitted to the Department for funding. 
•	The Deputy Prime Minister travelled to the electorate and pledged to fund some of the projects in the Kagua Erave District. One of these was in relation to the funding for the Rural Market Program. 
•	Following the pledge, a cheque in the sum of K1 million was raised by the Department and made payable to the Kagua Erave District Treasury Operating Account. 
•	This money remained in the account awaiting other sources of funding that were sought from various sources before the next group of projects in the electorate are announced. 
•	When rolling out these projects, the appellant, through the resolution of the appellant’s Board, would utilise the Southern Highlands Provincial Tenders Board for any interested applicants to bid for projects above K500,000.00 according to law. 
•	Any projects identified by the appellant’s Board below K500,000.00 would be awarded to various companies directly by the Board. 
•	As the Chairperson of the appellant, Mr Raminai did not have powers under law to release K1,000,000.00 in public funds to various companies or individuals to carry out certain projects within his electorate. In doing so, he would breach the law. 

29	In summary, Mr Mirupasi deposed:

•	He was the research officer for the Electoral Office of the Member for the Kagua Erave Electorate. 
•	Between January and February 2020, the appellant had put together its Project Proposal Submission requesting funding from the Department for the Kagua Erave Rural Market Program in which the priority projects were the Erave District Market development and construction as well as the Kagua District Market development and construction. 
•	The aim of the project was to help local people in the electorate by increasing economic activities. 
•	The Rural Market Program was the plan of the Governor for Southern Highlands Province, the Hon. William Powi. 
•	A cheque payment of K1 million was raised by the Department and made payable to Kagua District Operating Account for implementation to progress within the Kagua Erave District. 
•	The procurement of goods and services with this K1 million would mainly be done at the Kagua Erave District Level under the authority to pre-commit committee (APC) contained in the Public Finances (Management) Act 1995 (PFMA) and certified by the APC which is chaired by the Secretary for Treasury. 
•	He believed that the implementation of the Rural Market Program within the Kagua Erave Electorate which was the subject fund would be done in accordance with the APC provision under the PFMA, which was yet to be certified by the APC to ensure that proper legal national procurement processes and procedures for this project are initiated. 

30	In summary, Mr Belo deposed:

•	He was a research officer supporting Mr Mirupasi. 
•	On 21 April 2022 the appellants proposed to the respondents to settle the matter out of court and caused a letter to be sent to the respondent’s lawyers. 
•	In early January or February 2020 the appellant put together a Project Proposal Submission requesting K1 million in funding from the Department. 
•	The subject money was released to the appellant by the Department. 
•	On 1 October 2020 the Secretary for Finance caused a letter to be sent to the Governor of the Bank of Papua New Guinea authorising the payment to the appellant.  
•	He believed that the K1 million was not released based on the respondents alleged proposal of K1,593,682.76 but was released based on the appellants proposal of K1 million submitted to the Department. 
Submissions

31	In summary, the appellant submitted:

•	In Mali v Independent State of Papua New Guinea [2002] SC690, the Supreme Court decided that even consent orders can be set aside in exceptional cases. 
•	The present case is a case where a serious error or irregularity is apparent on the face of the record, as was the case in Mali and the Court has power to readily deal with the matter to safeguard against any abuse of its process: Geosite Management Ltd v Kavo [2020] N8439. 
•	Her Honour erred in endorsing the 17 August 2022 Orders when there was no instruction given by the new Chairman of the appellant following a resolution of the appellant board to its then lawyers to have the matter consent and settled. 
•	Don Wapu Lawyers did not confirm instructions before proceeding to endorse the 17 August 2022 Orders. 
•	The entry of the 17 August 2022 Orders was without authority because Don Wapu Lawyers had no instructions from the new Member for the Electorate or the appellant. 
•	Since the 17 August 2022 Orders involve the disbursement of public funds in excess of K500,000 the National Court erred in not enquiring as to the confirmation of instructions to settle. Such enquiring could easily have been made on insistence of an accompanying affidavit from the CEO or Chairman of the appellant. 
•	Pursuant to 5(c) of the DDA Act the appellant is the only body authorised to expend or pay or disburse monies belonging to it. 
•	Within a DDA, a Board is established to do all things necessary for the performance of the functions of the DDA: ss 10-12 of the DDA Act. 
•	Instructions to settle must come from the appellant through its board as chaired by the Member elect for the Electorate. 
•	Don Wapu Lawyers did not indicate that their instructions came from the appellant as required by the DDA Act. It appeared that the instructions came solely from Mr Raminai, the former Chairman of the appellant. 
•	The legal question the Judge in the National Court should have posed was whether the 17 August 2022 Orders were approved by the appellant through its lawyers. The National Court fell into error by failing to enquire as to whether the consent to settle was legally obtained given that the amount of money exceeded the financial threshold limit of K500,000.00 of the CEO. 
•	On the date the 17 August 2022 Orders were made, the appellant had a new Chairman. Don Wapu Lawyers ought to have confirmed instructions with the new Chairman before agreeing on behalf of the appellant to those Orders. 
•	Statutory bodies must not procure money over K500,000 themselves, and the money can only be taken on the authorities behalf.  Section 26 of the National Procurement Act 2018 (NPA) sets out that:

(1)	The procurement thresholds for all public and statutory bodies are - 
…
(b) 	the threshold level below which public and statutory bodies may procure themselves using a standardised procurement system approved by the Commission is from K5,001.00 to K500,000.00; and
(c) 	the threshold level above which public and statutory bodies shall not procure themselves but shall have procurements undertaken on their behalf by the Commission is above K500,000.00; and
… 
Section 27(2) of the NPA continues:

 (2) Public and statutory bodies shall not engage in any procurement within the thresholds established under Section 26 unless they have been certified by the APC Committee, in consultation with the Commission, that they have the capacity to engage in procurement processes that is sufficient in order to protect the use of public funds and ensure that good public financial management practices are followed and applied by the public or statutory body.
•	Section 32 of the Public Finances (Management) Act 1995 means that the Member of an Electorate does not have the financial authority to commit and rather that authority rests with the district treasurer and the CEO. Section 32 provides:

(1)	The Departmental Head of a Department may appoint officers to approve requisitions for the expenditure of moneys in the Department for which he is responsible in accordance with a warrant authority and may specify conditions for the exercise of that approval.
(2) 	The Minister may appoint designated officers to approve variations to contracts as regards time, price or other conditions within such limits as are specified in the Financial Instructions.
(3) 	An officer appointed under this section who wilfully refuses or neglects to comply with the provisions of this section is guilty of an offence under Section 112.
(4) 	A Departmental Head in relation to the Department of which he is Head may appoint Financial Delegates to approve expenditure in accordance with a Cash Fund Certificate.
•	Pursuant to sections 11 and 12 of the DDA Act, the Chairman did not have the authority to bind the appellant. 
Respondent 

32	The respondent relied on the following evidence:

•	affidavit in support of Mr Henry Pora filed 11 October 2022; and 
•	affidavit of Mr Markus Kamali filed 17 October 2022. 

33	Mr Pora deposed, in summary: 
•	He is the lawyer in carriage of the matter for the respondent, and was the lawyer for the respondent in OS 144 of 2021. 
•	OS 144 of 2021 was listed on 17 August 2022 and the parties handed up draft consent orders, prepared by Don Wapu Lawyers and signed by the lawyers for the parties on 2 August 2022. 
•	The consent orders were endorsed by the Court on 17 August 2022. 

34	Mr Kamali deposed in summary:

•	He was the managing director for the respondent. 
•	OS 144 of 2021 was filed and progressed when Hon. Wesley Raminai was the chairman of the Kagua Erave DDA. 
•	Proposals were made by the lawyers for the respondent for the payment of K1,000,000 to be made in fragments, which Mr Kamali refused as the money was for development funds and needed to be released without fragmentation. 
•	The money was earmarked for the construction of the Erave Market in the Kagua Erave District. The funding was made available by the Department upon direct application by the respondent. 
•	The money was deposited into the appellant’s bank account for supervision and accountability. The money was then supposed to be given to the respondent for construction. 
•	The National Court was aware of the settlement negotiations and various adjournments occurred at the request of the appellant. 
•	The settlement negotiations took place when Mr Raminai was the chairman of the appellant. This is confirmed in the affidavit of Mr Wapu filed 10 August 2022 in OS 144 of 2021. 
•	On 22 February 2022 Don Wapu Lawyers informed the National Court that the appellant intended to settle and sought an adjournment for the terms of settlement to be finalised. 
•	On 22 February 2022 the National Court adjourned the matter to enable the settlement negotiations to continue. 
•	Eventually, the appellant, through Don Wapu Lawyers, agreed to pay the respondent K1,000,000. 
•	On 17 August 2022 the parties handed up draft consent orders prepared by Don Wapu Lawyers and signed by lawyers for the parties on 2 August 2022 and the National Court endorsed the consent orders. 
Submissions

35	The respondent filed submissions on 14 June 2023. The respondent summarised the issues before the Court as whether:

•	The 17 August 2022 Orders were consent orders such that the appeal is not allowed: s 14(2) of the Supreme Court Act 1975;
•	The parties in this appeal are the same as in OS No 144 of 2021;
•	Fraud is alleged against the respondent as to the manner in which the consent order was obtained; and 
•	The National Court has jurisdiction to deal with an application to set aside the consent order which effectively concluded the proceedings. 

36	The respondent submitted, in summary:

•	Section 14(2) of the Supreme Court Act 1975 applies as the 17 August 2022 Orders were made by consent of the parties, and no appeal can arise from such orders.  
•	The parties to the current proceedings are the same as in OS No 144 of 2021, hence the appeal on the consent order cannot be allowed: Kitogara Holdings Pty Ltd v National Capital District Interim Commission [1988] PGSC 20. 
•	The parties have not changed, notwithstanding that the leadership of the administration had changed. It therefore was an administration issue and not a legal issue. 
•	There was clear evidence that the consent order was made regularly, unlike the situation in Mali. 
•	There was clear evidence that there was ongoing settlement discussions and that the National Court was made aware of these discussions.
•	There was clear evidence the appellant gave instructions to its then lawyers to settle the matter by signing the 17 August 2022 Orders.
•	The agreement to settle by the former administration of the appellant was binding on the new administration. 
•	The appellant did not allege fraud, misrepresentation, or any improper conduct on the part of the respondent in seeking and securing the 17 August 2022 Orders. 
•	The appellant’s allegation of a lack of instructions was a matter to pursue against its former lawyers: Singat v Commission of Police (2008) SC910. 
•	Grounds 1 and 2 of the appeal are frivolous, vexatious and lack merit in nature. The primary Judge was not under an obligation to inquire whether the appellant consented to the 17 August 2022 Orders when the appellant was legally represented. 
•	Ground 3 must also fail since the application filed by the appellant in the National Court was an abuse of process and incompetent.
•	The K1,000,000 would be used for the construction of the Erave Market. 
•	The money was not a discretionary fund and did not belong to the appellant. It did not fall within the budgetary allocations of the appellant. 
•	The money cannot be subjected to a tender process as it was a tied grant from the Department earmarked for a specific purpose upon application by the respondent. 
•	The respondent’s application for funding was recommended by the then-CEO of the appellant and the then-Administrator and Governor for Southern Highlands Province. 
•	The new Chairman has attempted to use his position to deny the respondent the lawfully allocated money for the construction of the Market.
•	The Hon. Maina Pano and the appellant should each and severally pay the costs of the appeal on an indemnity basis. 
•	The money did not belong to the appellant, and was not a grant or a discretionary fund. Rather, the money was Public Investment Program (PIP) money. 

CONSIDERATION

37	Section 14(2) of the Supreme Court Act 1975 states:

(2)	An appeal does not lie from an order of the National Court made by consent of the parties. 

38	In Kitogara, the Supreme Court held:

Section 14(2) of the Supreme Court Act operates so as to prevent only parties to the proceedings in which the consent order is obtained from appealing.

39	More recently the Supreme Court, in Akiko v Mangape [2022] SC2262, said:
11.	We will assume, as we think it is, that the Court’s reference to s 17(2) in Nelson Akiko above was rather to s 14(2) of the SC Act. With that, we find that the fact that the appellants are appealing against a consent order is inconsequential as the general prohibition under s 14(2) of the SC Act only applies to those persons who were parties to the Consent Order which includes the respondents herein. Given that, the appellants are free to and have the right to lodge their appeal as interested persons pursuant to s 17 of the SC Act. They have done so in this case.
40	In Mali, which is one of the primary authorities relied on by the appellant, the Supreme Court said:

The provision is quite clear, and prohibits parties who have negotiated for settlement and eventually arrived at mutually acceptable terms for settlement or compromise from subsequently seeking to undo all these by challenging the result by appeal. There are perfectly good reasons for this prohibition, one of which we suggest would be to ensure that parties embark upon and conduct negotiations for settlement with frankness, full trust and confidence that bona fides will prevail and that the final agreement(s) will be respected as binding between them. The other reason, and closely associated with this is in the public interest as stated by Brennan J (as he then was) in Permanent Trustee Co (Canberra) Ltd v. Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195 at 198.
Needless to say s.14(2) Supreme Court Act (supra) is not an absolute ban on questioning or challenging judgments or orders that are entered by consent of the parties. They are not beyond challenge or impeachment through the judicial process by virtue only of the fact that these are orders intended to express the consent, the agreement, of the parties themselves, and demonstrative of their intention to finally bring to an end their legal dispute(s). Case law recognizes a host of situations whereby these orders or judgments can be properly questioned or reviewed through the normal appeal and review processes: fraud, mistake, or on any other ground that can invalidate what may appear to be a consensus.
Mr Mirupasi cited the Australian High Court case of Harvey v. Phillips [1956] HCA 27; (1956) 95 CLR 235, where, at pages 243 – 244, the following dictum of Lord Lindley was cited with approval:
. . . nor have I the slightest doubt that a consent order can be impeached, not only on the ground of fraud but upon any grounds which invalidate the agreement it expresses in a more formal way than usual . . . To my mind the only question is whether the agreement on which the consent order was based can be invalidated or not. Of course if the agreement cannot be invalidated the consent order is good: Huddersfield Banking Co. Ltd v. Henry Lister & Sons Ltd (1859) 2 Ch 273, 280.
Further elaboration on this comes also from another Australian case that was cited by counsel for the appellants: Permanent Trustee Co (Canberra) Ltd v. Stocks & Holdings (Canberra) Pty Ltd (1976) 28 FLR 195 at 198 (per Brennan J as he then was):
The general rule is that a perfected judgment cannot be recalled or varied, for the public interest requires that the judgment when it is entered should conclude the litigation: in public interest reipublicae ut sit finis litium . . . Until the final judgment is entered, the court retains a power to reconsider the matter, but when entered, the jurisdiction to reconsider is gone . . . Where the litigant has the right to set aside the judgment on the ground of fraud, however, the fraud must be alleged in a fresh action brought to try the issue (Flower v. Lloyd (11); Jonesco v. Beard (12)). Similarly, where the judgment is entered by consent and a party alleges that the agreement pursuant to which the order was entered is void or voidable (Harvey v. Phillips (13); Hudderfield Banking Co Ltd v. Henry Lister & Sons Ltd (14)) the issue must ordinarily be litigated in a fresh action (Wilding v. Sanderson (15); Rayner v. Rayner (16)).
Counsel then cited two cases in this jurisdiction to support the s.14(2) Supreme Court Act argument, which we consider useful to reproduce the pertinent statements here. The first is the case of Torato v. Abal [1987] PNGLR 403, per Bredmeyer J (at 413), which recited with approval the following passage from the Supreme Court Practice (1979):
A consent order can be set aside in an action commenced for the purpose of any ground that would invalidate an agreement . . . If consent has been given by mistake, it may be withdrawn at any time before the judgment is passed and entered . . . But where 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 (Ainsworth v. Wilding [1896] UKLawRpCh 42; [1896] 1 Ch 673 and Wilding v. Sanderson [1897] UKLawRpCh 120; [1897] 2 Ch 534).
In Re Peter Naroi [1983] PNGLR 176 at 177, Andrew J said the following:
In regard to circumstances in which the Court should interfere to set aside an order based on a compromise, the authorities all show that the Court should view such applications as this with extreme caution and that a court will not grant such an application except in a case which calls clearly for interference with the order made: See Marsden v. Marsden [1972] 2 All ER 1162.
41	In Mali the Court was dealing with serious irregularities. These irregularities were conveniently summarised by Kandakasi J (as he then was) in Tovon v Malpo [2016] N6240:

32. 	Earlier in Simon Mali's case, the Court had a serious case of irregularity that was apparent on the face of the record. In that case, the purported consent order was made and entered on the same day. Three months later after the Solicitor General had issued a certificate of judgment under the Claims by and Against the State Act, the State filed a motion later, seeking a set aside of the orders for serious irregularities. The trial judge granted the application and set aside the consent orders. On appeal, the Supreme Court was of the view that, the trial judge did have the necessary jurisdiction to hear and determine the motion in the way he did…
33. 	A number of factors suggestive of serious irregularity on the face of the record caused the trial judge to take that approached with the subsequent endorsement of the Supreme Court. Those factors were:
(a) 	This was a class action with a number of proceedings, which did not name and include a schedule of the other plaintiffs the "principle plaintiffs" claimed to represent;
(b) 	There was no written consent from each of unnamed plaintiffs authorizing the issuance of the proceedings in their behalves in an Authority to Act form pursuant to O.5, r.3 of the National Court Rules;
(c) 	No lawyer for the State endorsed the draft consent orders, before the appellant's lawyer appeared before the trial judge alone and moved for the purported consent orders;
(d) 	There was no evidence of the presiding judge endorsing a draft of the purported consent orders before they could be formally entered;
(e) 	The presiding judge could not recollect ever endorsing any draft consent orders either in the terms of the purported consent order or otherwise;
(f) 	The purported consent orders effectively contradicted an order that was in fact made to have the proceedings transferred to Waigani from Mt. Hagen, which suggested no orders finalizing the proceedings were made;
(g) 	The purported consent orders were purportedly made in chambers rather than in an open court, especially when the foregoing factors existed;
(h) 	There was no court file endorsement indicating what transpired in court on the relevant day; and
(i) 	The purported settlement was endorsed or approved by the Attorney General and not the Solicitor General.
34. 	The decision in Simon Mali's case could be seen as an exception to the established law and practice as represented by the earlier judgements and confirmed by the later judgments like the one in Joseph Kupo's case. Counsel for the appellant in the Simon Mali case, did ably assist the Court with the relevant submissions on the relevant law and practice regarding the setting aside of consent orders. The Supreme Court did not with respect, give any serious consideration to those submissions may be because of the number of serious irregularities that were presented on the face of the record. Hence, the Supreme Court chose to give detailed considerations to the irregularities presented as did the learned trial judgment. This approach in my humble view was required or necessitated by the particular instances of irregularity identified and sufficiently dealt with by both the trial and appellate Courts.
42	In relation to an allegation by a party that its lawyer did not have instructions to act in a certain way, the Supreme Court in Kupo v Raphael [2004] SC751 found:

Further, the evidence we have set out above shows that the allegations they have made against their former lawyer might not be sustained. Even if the allegations are true, then they had recourse to sue their previous lawyers for professional negligence. In our view a party should not seek this court’s review jurisdiction where there are other remedies available. A lawyer’s professional negligence should not be used to invoke s.152(2) of the Constitution.
43	More generally on this point the Supreme Court in Singat observed:

22. 	This is a specific application of the general principle in the law of agency or law of principals and agents. It is well settled law that, an agent as the ostensible authority to bind his principal. An agent can bind his or her principal by entering into a contract on behalf of the principal, provided the agent acts within the scope of his or her apparent or ostensible authority, even if the agent lacks actual authority and the fact of any lack in authority not being communicated to the third or other parties. The Supreme Court in Rainbow Holdings Pty Ltd v. Central Province Forest Industries Pty Ltd adopted into our jurisdiction and applied these principles.
…
24. 	In our view, a lawyer who files documents in any court proceedings for and on behalf of a party or gives notice that he or she is acting for a party is deemed to have the necessary instructions if not the actual instructions, at least, his client’s ostensible authority to so act. It is no light matter for a lawyer to do that, because of the penalties that can follow a lawyer who acts without instructions under the Lawyers Act and the Lawyers Professional Conduct Rules.
25. 	In nearly all of the known cases, the issue of authority or no authority has arisen when the principals have tried to opt out of contracts entered into on their behalf by their servants or agents having the actual if not the ostensible authority to do so. Except in cases where the other contracting party has been informed of the servants or agents lack of authority or a limit in the servant or agents authority to enter into a contract, all such attempts have failed. The decisions in the Rainbow Holdings Pty Ltd v. Central Province Forest Industries Pty Ltd and Motor Vehicles Insurance (PNG) Trust v. Kulubula Salem are good examples of this.
(footnotes omitted)
44	In Geosite, which was one of the cases primarily relied on by the appellant, Kandakasi DCJ summarised the law in relation to whether the National Court had jurisdiction to set aside consent order finalising proceedings:

37.	Given all of the foregoing, the answer to the first main issue of whether the final consent orders can be revisited by a notice of motion in this case, is an obvious no. This necessarily gives rise to the question, then what is the correct mode or process to revisit the consent orders?
38. 	The question posed above was also before me in the Harry Tovon case. There, I had regard to a number of decisions on point. This included the decisions in Paul Torato & Ors v. Sir Tei Abal & Ors [1987] PNGLR 403, Peter Lipsey v. The Independent State of Papua New Guinea [1993] PNGLR 405, Griffin vs. Westpac Bank (PNG) Limited [1993] PNGLR 353, Joseph Kupo v. Steven Raphael, Secretary for the Department of Defence Force (2004) SC751 and a couple of others on point. Based on those authorities, I summarised the principles governing applications for set aside of consent judgment or orders finalising a proceeding in the following terms at paragraph 36: 
The principles governing applications for a set aside of orders by consent which finalize any proceeding can be summarized in this way:
(a) 	Like any other agreement, a consent order finalizing any proceeding that was arrived at by misrepresentation or fraud can be set aside on application of a party affected by the order;
(b) 	The majority of case authorities on point stand for the proposition that, claims of lack of instructions and or authority in a party's lawyer to consent  to an order cannot undo or result in a set aside of the consent order. Instead, the party concerned as a recourse against his lawyer if indeed the lawyer acted without instructions.
(c)	The principle stated in (b) above is founded on the doctrine of ostensible authority. This is necessary for the purposes of protecting the innocent third parties and to also safeguard, protect and encourage parties to have their disputes settled through their own direct negotiations or other forms of ADR by upholding their agreement subject only to fraud and misrepresentation brought whom to the other parties which may undo them;
(d) 	If the consent order is yet to be formally entered, an application by motion in the same court that made the order can be filed and pursued;
(e) 	If, however, the order has been formally entered, the order can be revisited only by a fresh proceeding or by an appropriate Supreme Court review application; and
(f) 	There is one exception to the above. Where a serious error or irregularity is apparent on the face of the record as was the case in the Simon Mali case, the Court has power to readily deal with the matter to safeguard against any abuse of its process. 
45	The appellant argued that this case falls within the “exception” outlined at (f) where there is a serious error or irregularity apparent on the face of the record. 

46	Ultimately, the Court in Geosite held:

1.	The provisions of O.4, rr.4 and 37 of the NCR provide for interlocutory applications by notice of motions prior to the conclusion of any proceeding and not after the conclusion of a matter.
2. 	The National Court has power under O.12, r. 8 of the NCR to revisit and set aside its own orders except in cases where the orders have dismissed the proceeding or have finally determined any matter in dispute between the parties and the motion for set aside is filed after the entry of the relevant orders.
3.	Section 155 (4) of the Constitution does not apply since O.12, r. 8 of the NCR already provides for the way in which the National Court can revisit its own orders and have them set aside. A ready resort to s. 155 (4) of the Constitution amounts to an abuse of that provision and an abuse of the Court’s process.
4.	The decision in Simon Mali v. The State (2002) SC690, could be an exception to correct parameters in which s. 155 (4) of the Constitution may be invoked based on the peculiar facts of the case, which do not exist in the present case.
5.	The claim that the Defendants’ former lawyers acted without instruction or authority warrants separate proceedings where the former lawyer can be heard in his defence before final judgment and not by notice of motion to his exclusion.
6.	The Defendants failed to plead specifically under O. 8, r. 14 of the NCR their claim of the plaintiff not meeting the condition precedents of notice of intention to make a claim under s. 5 of the CBASA and the requirements of the PFMA and are therefore precluded from raising the issues belatedly. The doctrine of acquiescence and lashes apply.
7.	Accordingly, the Court declined to assume jurisdiction and dismissed the Defendants’ application with costs to the plaintiff.
47	Applying these principles to the present case, it is plain that the appeal must be dismissed.

48	The evidence before the Court is that the Don Wapu Lawyers had instructions from the appellant to agree to the 17 August 2022 Orders made by the primary Judge. Mr Don Wapu had earlier on 10 August 2022 filed an affidavit in the National Court proceedings deposing that he acted for the appellant and Mr Raminai, and that his clients had given instructions to settle the matter by way of consent. There was no evidence that those instructions were withdrawn prior to 17 August 2022, or that Mr Wapu was not authorised as at 17 August 2022.

49	Prima facie, by operation of s 14 (2) of the Supreme Court Act, the consent Orders of 17 August 2022 cannot be appealed to the Supreme Court. As was made clear in Mali, the only – very limited – bases on which such Orders could be appealed would be:

•	fraud, 
•	mistake, or
•	serious errors or irregularities apparent on the face of the record.
50	Fraud or mistake are not pleaded by the appellant.

51	This leaves the appellant with establishing serious errors or irregularities apparent on the face of the record. It appears to us that the only alleged “irregularity” was the view of the incoming Chairperson that the agreement of the appellant to settle the litigation with the respondent should be withdrawn, after the 17 August 2022 Orders had been made. In our view that is not a serious error or irregularity on the face of the record, in the following circumstances.

52	First, the DDA Act does not give an incoming Chairperson the right to veto an existing decision of the Board, or indeed give the Chairperson any particular individual authority over and above that of the Board.

53	“Chairperson” is defined by s 3 of the DDA Act as meaning “the Chairperson of a Board”. “Board” means “the Board of an Authority established by Section 10.”

54	Part III of the DDA Act relevantly provides:

PART III – BOARDS 
10.	ESTABLISHMENT OF A BOARD FOR EACH AUTHORITY
A Board of each Authority is hereby established.
11. 	FUNCTIONS AND POWERS OF A BOARD. 
(1) 	The functions of the Board of an Authority are -
(a)	to ensure the proper, efficient and economical performance of the Authority's operations for the benefit of the people of the district; and
(b) 	to give directions to the Chief Executive Officer under Section 22(3)(a); and
(c) 	such other functions as are conferred on the Board by or under this Act.
(2) 	The Board has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
(3) 	Anything done in the name of, or on behalf of, an Authority by the Board, or with the authority of the Board, is taken to have been done by the Authority.
12. 	MEMBERSHIP OF A BOARD
(1)	A Board shall consist of the following members:
(a) 	the Member of Parliament representing the open electorate who shall be the Chairperson of the Board; and
(b) 	subject to Subsection (2), the heads of Local-level Governments in the district; and
(c) 	not more than three other members appointed by the Member of the Parliament representing the open electorate.
(2) 	Where the office of the head of a Local-level Government is or becomes vacant, the deputy head of the Local-level Government is deemed to be a member of the Authority until the office of the head of the Local-level Government is filled.
(3) 	One of the members appointed under Subsection (1)(c) shall be a woman.
55	It is unclear in the circumstances of this case – and certainly not apparent from the legislation – precisely how the Board of the DDA in this case practically operated. 

56	Such evidence as was before the Court suggests that Mr Raminai, the previous Chairperson, had implied actual authority of the Board in respect of the litigation with the respondent. The evidence is thin, however it exists in the form of correspondence from the then lawyer for the appellant, Mr Wapu, dated 21 April 2022, to the respondent, which correspondence was annexed to the affidavit of Don Wapu filed 10 August 2022 in the National Court proceedings. In that correspondence Mr Wapu, who acted for both Mr Raminai and the appellant at that time, referred to his client from whom Mr Wapu was obtaining instructions as “he” – presumably Mr Raminai. 

57	There is a wealth of authority that an office-holder such as the Chairman of the Board can hold implied actual authority of the Board. In particular we note the English decision in Hely-Hutchison v Brayhead Ltd [1968] 1 QB 549, where the Chairman of a defendant company acted as its de facto managing director, and frequently entered into contracts without the knowledge of the board and reported the matter afterwards. The pattern of conduct in that case was one of which the board had knowledge, and in which it acquiesced. It was held that, in those circumstances, the Chairman had implied actual authority to enter into relevant contracts.

58	It may be that the previous Chairperson, and potentially the existing Chairperson, has authority similar to the role of de facto managing director of the appellant, notwithstanding the legislative provisions giving authority to the Board and the statutory role of Chief Executive Officer created by the DDA Act. Certainly it is clear from the material before the Court that the previous Chairman, Mr Raminai, presumably with the agreement of the Board, consented to the 17 August 2022 Orders. There was certainly no evidence before the Court that the Board either disagreed with that course of action, or had withdrawn its agreement at the time the 17 August 2022 Orders were made. The only evidence is that after the 17 August 2022 Orders were made, the new Chairman did not agree with them. 

59	To that extent, there was no evidence that the-then lawyers for the appellant had acted without proper instructions or authority of the appellant.

60	Second, during the hearing Counsel for the appellant submitted that, in fact, the Authority had no power to pay the moneys ordered in the 17 August 2022 Orders to the respondent, as such payment would contravene the limitations on the authority of statutory bodies imposed by ss 26 and 27 of the National Procurement Act 2018. We note that this submission was made orally at the hearing, and not in written submissions filed in the proceedings. We also note however the subsequent oral submission of Counsel for the respondent that the relevant monies were “tied grants”, being funding under the Public Investment Program to assist Southern Highlands Provincial Administration and Kagua-Erave District in terms of market infrastructure facilities development and construction. Further, Counsel for the respondent submitted that the relevant monies were not subject to ss 26 and 27 of the National Procurement Act.

61	The evidence on which the appellant relied in support of its submission concerning the operation of ss 26 and 27 of the National Procurement Act was para 12 of the affidavit of Wesley Raminai filed 23 August 2021. There Mr Raminai deposed:

12.	In rolling out projects, my District Development Authority (DDA) through the resolution of my DDA Board will utilize the Southern Highlands Provincial Tenders Board for any interested applicants to bid for projects above the ceiling of K500,000.00 according to law.
62	In our view this evidence of Mr Raminai is not only irrelevant, but also unreliable. It is irrelevant because we do not consider that Mr Raminai’s opinion of what is “according to law” is in any way helpful. It is also unreliable because, to the extent that Mr Raminai in that affidavit at para 12 appeared to be casting doubt on the power of the DDA to pay to the respondent the K1,000,000.00 it sought, that evidence is entirely contrary to Mr Raminai’s subsequent instructions to Don Wapu lawyers to consent to the 17 August 2022 Orders whereby that money was paid to the respondent. 

63	In our view there is simply not adequate material for us to form the view, contrary to the agreement of the parties in the 17 August 2022 Orders, that the appellant lacked the power or authority to pay the respondent the money it sought.

64	Third, we reject the proposition that the primary Judge should have been put on notice of potential irregularities in the consent orders to which the parties agreed on 17 August 2022, and should have inquired into whether the-then lawyer for the appellant had authority to act for the appellant in agreeing to those Orders on the appellant’s behalf. The administration of justice by the National Court would be severely and unreasonably impaired if, on each occasion that a lawyer appeared for a party in that Court, the Judge was expected to inquire about the actual authority of the lawyer to act, and/or require updated and compelling evidence of that authority. Mr Wapu’s evidence that he had instructions from the appellant to agree to the 17 August 2022 Orders was more than adequate and reasonable to satisfy the primary Judge that he had authority to act on the appellant’s behalf.

65	Finally, and in any event, as the Supreme Court observed in such cases as Kupo and Singat, the appellant is presumably entitled to seek remedies against its previous lawyers for professional negligence if the lawyers actually acted without authority.
CONCLUSION 

66	The appeal is entirely without merit. The respondent has sought not only that the appeal be dismissed, but that its costs be paid on an indemnity basis by the Hon. Maina Pano and the appellant each and severally.

67	Although the award of costs is at the discretion of the Court, as a general proposition costs follow the event: Order 12 Rule 24 Supreme Court Rules 2012. In respect of costs being awarded on an indemnity basis the Supreme Court recently explained in Monogenis v O'Brien (trading as O'Briens Lawyers) [2022] SC2300:

27.	The respondent seeks his costs on an indemnity basis. In regard to an application for costs on a solicitor client basis or on an indemnity basis, in Timothy Patrick v. Pepi Kimas (2010) N3913, Gavara Nanu J said as to costs being awarded on a solicitor client basis:
“...the applicant must demonstrate that there are grounds upon which such award may be made; for instance, the applicant having to defend proceedings which are frivolous and vexatious and are an abuse of process. See, Gulf Provincial Government v Baimuril Trading Pty Ltd [1998] PNGLR 311; or that the applicant is being dragged into the Court and is made to suffer and incur unnecessary costs. See, Concord Pacific Ltd v Thomas Nen [2000] PNGLR 47.”
28. 	In Rex Paki v Motor Vehicles Insurance (PNG) Ltd (2010) SC1015, the Supreme Court stated that:
“The award of costs on an indemnity basis is discretionary. An order for costs on an indemnity  basis may be made where the conduct of a lawyer or a party to the proceedings is so improper, unreasonable or blameworthy that he should be so punished by such an order. The question is whether the conduct of the appellant in this matter is such that it caused the respondent to incur unnecessary costs.”
68	In our view, in seeking to appeal consent orders to which it had agreed, without reasonable cause, the appellant has caused the respondent to incur completely unnecessary legal costs. The conduct of the appellant should be punished by an order for indemnity costs. The Hon. Maina Pano was not a party to this appeal, and we do not consider it appropriate to order third party costs against him in this matter.
69.     The Court orders that:

(1)	The appeal be dismissed.
(2)	The Consent Orders made on 17 August 2022 in OS 144 of 2021 are confirmed. 
(3)	The appellant pay the costs of the respondent to be assessed on an indemnity basis.
________________________________________________________________
Adam Ninkama Lawyers: Lawyers for the Appellant
Henry Pora Lawyers: Lawyers for the Respondent