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Orion Enga Childrens Fund JV Ltd v Kipi [2025] PGSC 65; SC2768 (25 August 2025)

SC2768

PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]


SCA 87 OF 2024


BETWEEN:
ORION ENGA CHILDRENS FUND JV LTD
Appellant


AND:
KAIME KIPI in his capacity as Chairman of the Governing Council for Port Moresby Technical College
First Respondent


AND:
THE HONOURBALE JAMES MARAPE, PRIME MINISTER AND CHAIRMAN FOR THE NATIONAL EXECUTIVE COUNCIL
Second Respondent


AND:
DOCTOR UKE KOMBRA, Secretary for Education and Chairman for National Education Board
Third Respondent


AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent


WAIGANI: LOGAN J, CROWLEY J, KHAN J
29 AUGUST 2024; 25 AUGUST 2025


EDUCATION – Higher and Technical Education Reform Act 2020 (Reform Act), ss 5, 6, 8, 12 and 14 – Transfer of Port Moresby Construction Training Facility (POM-CTF) land, assets, liabilities, management and control from Department of Education to Department of Higher Education, Research, Science and Technology under Reform Act – POM-CTF subject to pre-existing management agreement between the State and an out-sourced manager, approved by the National Executive Council pursuant to the Public Private Partnership Act 2014 – meaning, effect and duration of management agreement – whether transfer under Reform Act continued to be subject to that management agreement as at time of granting of declaratory relief by National Court with respect to the transfer


PRACTICE AND PROCEDURE – DECLARATIONS – Necessity for joinder of a party whose rights and interests might be affected by granting of declaration – Constitution s 59 – whether party to management agreement between the State and an out-sourced manager, approved by the National Executive Council pursuant to the Public Private Partnership Act 2014 – denied procedural fairness by granting of declaratory relief concerning whether transfer of POM-CTF land, assets, liabilities, management and control from Department of Education to Department of Higher Education, Research, Science and Technology under Reform Act continued to be subject to that management agreement in circumstances where that manager not joined as a party to the proceedings for that declaratory relief – obligations of parties to proceedings regarding disclosure to the court when promoting by consent the granting of declaratory relief


Facts:


On 12 June 2014, acting under the Public Private Partnership Act 2014, the National Executive Council resolved to approve the outsourcing of the management of the Port Moresby Construction Training Facility (POM CTF) to the appellant, the Orion Enga Children’s Fund JV Ltd for a period of 10 years with an option to extend.


On 19 November 2014, an agreement in writing entitled the “POMCTF Agreement” was made between the State and the appellant in respect of that outsourcing. The agreement provided that the 10-year out-sourcing period would run from the date of the agreement, with an option to extend that period.
In a letter dated 9 February 2024, the Governing Council of the Port Moresby Technical College (the first respondent) notified the appellant of resolutions passed by the first respondent earlier that month that the POM CTF be returned to Port Moresby Technical College on 12 June 2024.


In a letter dated 5 March 2024 the appellant put to the first respondent that this request was misconceived and had no legal basis.


On 16 May 2024, the first respondent instituted proceedings in the National Court, seeing orders in its favour to the effect that the POM CTF facility and the land on which it was situated should be as of 12 June 2024 under the control of the first respondent. The appellant was not joined as a party to this proceeding.
In the result the court made orders on 14 June 2024 to the effect that POM CTF be placed under the control of the Department of Higher Education Research Science and Technology.


On 21 June 2024, the court made further orders, to the effect that the appellant hand over all POM CTF facilities to Port Moresby Technical College by 19 July 2024.


The present appeal was instituted by the appellant on 19 July 2024. Pending the hearing and determination of the appeal, a stay is operative in respect of the various orders made by the National Court.


The appellant contended that the making of the National Court orders in its absence denied it an opportunity to be heard and thereby violated s 59 of the Constitution by denying it natural justice. It also contended that, on the true construction of the National Executive Council decision and the agreement of 19 November 2014, the 10-year management period of the POM CTF ran from 19 November 2014, not 12 June 2014.


HELD, quashing the orders of the National Court:

  1. The orders made on 14 June 2024 entailed a denial of natural justice to the appellant.
  2. On the true construction of the National Executive Council decision and the agreement of 19 November 2014, the 10-year management period of the POM CTF ran from 19 November 2014, not 12 June 2014.
  3. This 10-year management period was unaffected by the Higher and Technical Education Reform Act 2020

Cases cited
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374


Counsel
Ms G Kogora with Mr S Pind, as counsel assisting, for the appellant
Mr E Kasi, for the first respondent
No appearance for the second respondent
Ms R Lawrence, for the third respondent
Mr J Karenge, for the fourth respondent


  1. BY THE COURT: On 12 June 2014, the National Executive Council resolved (Decision 185/2014) to outsource the management of the Port Moresby Construction Training Facility (POM CTF) to the appellant, the Orion Enga Children’s Fund JV Ltd. This decision was a sequel to the acceptance by the State of the ownership of the POM CTF as a legacy gift from Exxon Mobil Limited. More particularly and as extracted from the relevant minute of the decision, the National Executive Council:

2. accepted the transfer of the ownership of Port Moresby Construction Training Facility (POM CTF) as a legacy gift from Exxon Mobil Limited to the State;

3. approved the outsourcing of the management or POM CTF to the Joint Venture (Orion/Enga Children's Fund) for 10 years subject to renewal under the Public Private Partnership Policy (PPP);

4. approved for the State through the Department of Education to enter into a Management Agreement with the Joint Venture for POM Facility which will include integration of POM Technical College and Australia Pacific Training Centre (APTC) as contained in the Integration plan; and

...

  1. In turn, a sequel to this decision was that, on 19 November 2014, an agreement in writing entitled the “POMCTF Agreement” was made between the State and the appellant.
  2. The terms of the POMCTF Agreement included the following:
  3. The definitions clause (cl. 13) contained the following:
  4. “Agreement Date” is not defined. However, the POMCTF Agreement is dated 19 November 2014 on the execution page. Each party to the appeal proceeded on the basis that the “Agreement Date” was 19 November 2014. Reading the POMCTF Agreement as a whole and to the end of giving it business efficacy, we agree that is its correct construction.
  5. Each party to the appeal also proceeded on the basis that the POMCTF agreement had been approved in accordance with the requirements of the Public Private Partnership Act 2014 (PPP Act). Subsection 5(6) of the PPP Act provides, materially:

Subject to the approval of the National Executive Council, a Relevant Public Body may, either itself or in conjunction with any other person, or another Relevant Public Body, finalise an agreement to be executed in the manner as provided for under Subsections (3),(4) or (5) which commits the Relevant Public Body to -

(a) enter into a public private partnership arrangement;

...

  1. Given the terms of s 5(6) of the PPP Act and the joint position of the parties, we consider it appropriate likewise to proceed on the basis that the POMCTF Agreement was a “public private partnership arrangement” entered into in accordance with the PPP Act. Notably, s 5(6) of the PPP Act anticipates that such an arrangement will be “finalised” following the approval of the National Executive Council.
  2. The Reform Act commenced in 2020. That Act included the following provisions:

PART 11. - TRANSFER OF PUBLIC HIGHER EDUCATION INSTITUTIONS.

Division I. - Formal transfer of institutions.

4. APPLICATION OF PART 11.

Part II applies to the transfer of a public higher education institution or group of institutions to the Department.

5. MINISTER TO DETERMINE DATE OF TRANSFER.

The date of transfer of a public higher education institution or a group of institutions must be determined by the Minister by a notice published in the National Gazette.

6. TRANSFER OF PUBLIC HIGHER EDUCATION INSTITUTIONS.

(1) From the transfer date for a public higher education institution or group of institutions, the institution -

(a) is deemed to be under the Ministry for Higher Education, Research, Science and Technology and the Department; and

(b) is subject to the operation of this Act and the Higher Education (General Provisions) Act 2014; and

(c) is deemed to be an approved public higher education institution in accordance with

Subdivision VI.2.A of the Higher Education (General Provisions) Act 2014; and

(d) must be registered by the Departmental Head in accordance with Section 33 of the Higher Education (General Provisions) Act 2014.

(2) From the transfer date of the public higher education institution or group of institutions, the programs offered by the institution are deemed to be accredited in accordance with Subdivision VI.3.A of the Higher Education (General Provisions) Act 2014.

(3) Registration and accreditation under Subsections (1) and (2) are provisional upon assessment of the institutions in accordance with the Higher Education (General Provisions) Act 2014.

Division 2. - Transitional provisions - Teachers colleges and technical colleges.

7. APPLICATION OF DIVISION 2.

This Division applies to a teachers' college or technical college that is a transferred institution.

8. ARRANGEMENTS FOR EDUCATION AGENCIES.

Arrangements between the State and education agencies, in place immediately before the transfer date, must continue, subject to the operation of this Act and the Higher Education (General Provisions) Act 2014.

9. GOVERNING COUNCIL ARRANGEMENTS.

(1) The Governing Council of a transferred institution immediately before a transfer date must

(a) continue to govern the institution for a period of up to six months from the transfer date; and

(b) work with the Department to affect the appointment of a new Council in accordance with Part XB of the Higher Education (General Provisions) (Amendment) Act 2020.

(2) During the transition period mentioned in Subsection 1 the members of the existing Governing Council are entitled to such fees and entitlements as they had been before the transfer date.

...

12. DEPARTMENTAL STAFF OF DEPARTMENT OF EDUCATION AFFECTED BY THIS ACT.

The Department and the Department of Education will use their best endeavours to transfer or redeploy staff of the Department of Education affected by this Act.

...

14. TRANSFER OF LAND, ASSETS AND LIABILITIES.

(1) On the transfer date of a State-owned institution, the Department of Education must transfer, all land, assets, liabilities, rights and entitlements in relation to a State-owned transferred institution to the Department.

(2) On the transfer date, the Department of Education must transfer all monies which were, immediately before the transfer date, allocated to or standing to the credit of a transferred institution, to the Department.

(3) If in any contract, instrument or other document, reference is made to a transferred institution immediately before the transfer date, such reference is to be taken for all purposes as a reference to a transferred institution under this Act.

(4) Proceedings commenced in a court in relation to a transferred institution that are pending or in progress immediately before the transfer date, may be continued, completed and enforced under this Act.

...

  1. It was common ground between the parties that, in terms of the Reform Act, the appellant was an “education agency” and the POM CTF was an “agency institution” (each as defined by s 2 of the PPP Act).
  2. By a letter dated 9 February 2024 signed by its Chairman and Deputy Chairman, the Governing Council of the Port Moresby Technical College (the first respondent) notified the appellant of resolutions passed by the first respondent earlier that month that:

...

  1. Having recited these resolutions, the appellant was requested by the letter to establish no later than 25 February 2024 “their team to facilitate the formal transfer” of the POM CTF.
  2. Later that month, the Acting Secretary of the Department of Higher Education, Research, Science and Technology (the predecessor in office to the third respondent) advised the first respondent’s College principal that “reclamation of the [POM CTF facility] is deemed imperative”. It is clear on the face of this letter that the Acting Secretary was of the view that the term of the POMCTF Agreement would end in June 2024.
  3. No less clear from a letter dated 5 March 2024 from the appellant to the Chairman of the first respondent is that the appellant had a very different view of its rights following the NEC approval decision of 12 June 2014. The appellant put to the first respondent that its decision to instruct the appellant to “relinquish the training facility [to the technical college governed by the first respondent] is grossly misconstrued and has no legal basis”.
  4. On 16 May 2024, the first respondent instituted proceedings in the National Court in which it sought various orders premised on a variety of propositions which the first respondent assumed were correct in law – that the NEC approval decision of 12 June 2014 was either: contrary to the PPP Act or if valid authorised an agreement which expired in June 2024; or was superseded by the Reform Act, and that it was entitled to the management and control on and from 12 June 2024 of the POM CTF facility and the land on which it was situated.
  5. Notably, the appellant was not joined as a party to the proceeding when it was instituted. Apart from the first respondent as applicant, the only other parties were then the present second respondent, the Prime Minister in his capacity as Chairman of the National Executive Council, the present third respondent, the Secretary of the Department of Education and the present fourth respondent, the State.
  6. In the result, the then parties came consensually to promote to the court, and the court made, the following orders on 14 June 2024:

1. The Port Moresby Technical College is now placed under the control of the Department of Higher Education Research Science and Technology (DHERST) by virtue of section 5 and Section 6 of the Higher Technical Education Reform Act 2020 and National Gazette No. G343 dated Friday. 28lh Mar 2021.

2. The Port Moresby Construction Training Facility (POM-CTF) and the land upon which the facility is located described as Portion 474 Millinch Fourmile Moresby-Konedobu, NCD is now transferred and under the management of Port Moresby Technical College by operation of s 14(1) of the of the Higher Technical Education Reform Act 2020.

3. A declaration that the NEC Decision No. 185 of 2014 to outsource the management of the facility to a private joint venture agreement between Orion Enga Children’s Fund Joint Venture Limited for a period of 10 years has lapsed on Wednesday, 12th June 2024 and the POM-CTF now reverts back to the State under the custody of DHERST and is rightfully transferred to the Port Moresby Technical College.

4. A declaration that any actions by any other party other than Port Moresby Technical College in consultation with DHERST to assume control and management over the POM-CTF shall be illegal null and void by virtue of Section 5, Section 6 and Section 14 of the Higher Technical Education Reform Act 2020.

5. An order that the POM-CTF shall be handed over to Port Moresby Technical College forthwith or within a reasonable time, or by an arrangement between Port Moresby Technical College and Orion Enga Children's Fund Joint Venture Limited who are occupying the facility.

6. Each party shall pay their own costs of the proceeding.

7. The terms of these Orders are abridged, to the date of the settlement by the Court, which shall take place forthwith.

8. The proceeding is adjourned to 11a.m. on 21 June 2024 for a directions hearing to enable time for the plaintiffs to ascertain how much time Kumul Petroleum Academy says it needs to vacate the facilities which are the subject of these Orders.

  1. On 21 June 2024, the court made further orders, each of which was premised on the validity and correctness in law of the orders made on 14 June 2024. Those further orders included an order (Order 1) that by 8:00 am on 19 July 2024, all facilities not being used by the appellant be handed over to the Port Moresby Technical College. There was a further order that, subject to other orders directed to the end of a mediated outcome, all facilities being used by the appellant be handed over to the Port Moresby Technical College by 8:00 am on 19 July 2024. Evidently because it had been served with a copy of the orders made on 14 June 2024, there was an appearance before the court by the appellant on 21 June 2024. The appellant sought and obtained an order that day by which it was joined as a party to the proceeding.
  2. The present appeal was instituted by the appellant on 19 July 2024. Pending the hearing and determination of the appeal, a stay is operative in respect of the various orders made by the National Court.
  3. As refined during interchange between the Court and counsel during oral submissions, the resolution of this appeal involves the answering of two key questions:

A denial of natural justice?

  1. In Papua New Guinea, an obligation to observe the principles of natural justice in the exercise of either administrative or judicial power is not left to implication. Neither is the minimum content of those principles. Rather, s 59 of the Constitution provides:

59. PRINCIPLES OF NATURAL JUSTICE.

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

  1. It is made explicit in s 59 that the existence and extent of the obligation is subject to such qualifications as are found in the Constitution or the legislation concerned. There are none which are relevant in this case.
  2. A duty to afford natural justice or to act fairly is generally regarded as having two limbs, per Kioa v West [1985] HCA 81; (1985) 159 CLR 550, at 582-585:
    1. absence of bias or the appearance of bias in a decision-maker; and
    2. the affording of an opportunity to be heard, which is to say that a person who may be affected by the decision (in the sense that it directly relates to personal liberty, status, preservation of livelihood and reputation or proprietary rights and interests) knows the essential details of the case put against him or her and, before the decision is made, has a reasonable opportunity to respond to that case.
  3. It is the second of these limbs which arises for consideration in this case. Whether the obligation arises in a given case is inherently fact specific.
  4. The appellant submitted that, in the events which had transpired by 14 June 2024, for the court to make the orders of 14 June 2024 without extending to it an opportunity to be heard entailed a denial of natural justice. We understood the State as fourth respondent to concede in oral submissions that such a denial had occurred. As might be expected, the third respondent, who is an officer of the State, did not promote a different position in oral submissions. The second respondent did not take an active part in the appeal, being apparently content to abide the order of the Court.
  5. Somewhat surprisingly, with respect, the first respondent did not concede that there had been any denial of natural justice to the appellant. As developed in oral submissions, this seemed to entail two propositions. The first was that no rights of the appellant were affected, because those with respect to the POM-CTF facility and the land on which it was situated had expired by 14 June 2024. The second was that it had, on 21 June 2024, been joined as a party.
  6. It was clear from the appellant’s letter of 5 March 2024 that the appellant had a very different view to the first respondent as to the meaning and effect of the National Executive Council decision of 12 June 2014 and the POMCTF Agreement, as read in conjunction and even after the commencement of the Reform Act. The appellant did not accept the first respondent’s view that its rights would cease on 12 June 2024.
  7. Irrespective of whether the appellant was or was not right in its view, a subject to which we shall turn later in these reasons for judgement, the relief which the first respondent sought, and the orders it came consensually to promote with the other then respondents in the National Court on 14 June 2024 were each premised on the correctness of the first respondent’s view of the operation of the National Executive Council decision of 12 June 2014, the POMCTF Agreement, as read in conjunction and the Reform Act. That view was not uncontroversial. Moreover, the first respondent knew that prior to the commencement of the proceeding. Further, even if they did not know it beforehand, each of the other then parties to the National Court proceeding knew that, because the appellant’s letter of 5 March 2024 was in evidence on 14 June 2024.
  8. It is clear to the point of demonstration that the appellant should always have been joined at the outset as a party to the proceeding, given the relief which was sought. The relief sought affected the appellant’s rights, as the appellant saw them. Even if, through ignorance of a constitutionally entrenched right to be afforded natural justice in the exercise of judicial power, or inadvertence, the first respondent did not join the appellant at the outset of the proceeding, the first respondent should have sought the amendment of the originating summons so as to join the appellant prior to promoting to the court the orders which came to be made on 14 June 2024.
  9. Moreover, in promoting those orders on 14 June 2024, the first respondent should have drawn to the court’s attention the existence of the appellant’s letter of 5 March 2024 and, with that, a controversy as to whether its rights had expired by 12 June 2024. A declaration does not go by consent. It entails an exercise of a judicial discretion. The court must be satisfied that it is appropriate to make the order. A busy National Court judge does not have the time to comb through each and every supporting affidavit to decide whether it is appropriate to exercise the judicial discretion to grant declaratory relief. The judge is entitled to expect that why it is appropriate will be highlighted with necessary candour by counsel when a party has legal representation. The first respondent failed to do this on 14 June 2024.
  10. So, too, did the third and fourth respondents. The State and its officers were also promoting the making of the orders on 14 June 2024. In so doing, they had all the duties of a model litigant. Even if the first respondent had failed to highlight the existence of a different view held by the appellant, the third and fourth respondents should have highlighted this. We rather thought that the concession made in oral submissions was made on reflection, rather than manifesting a view held on 14 June 2024 as to a need for the appellant to have an opportunity to be heard. If that view was held by the State at the time, the fact that the State had not instituted the proceeding would have offered no reason to sit by and see orders made in the absence of the appellant. The State would have been under a duty to prevent what it saw as a contravention of s 59 of the Constitution in the making of the orders on 14 June 2024.
  11. In Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 411, Lord Diplock identified three broad heads upon which decisions of subordinate courts and of the executive might be quashed. One such head was what he termed “procedural impropriety”. He explained why he preferred this term to denial of natural justice in this way:

“I have described the third head as ‘procedural impropriety’ rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.”

  1. By the time this explanation was given, Papua New Guinea’s Constitution had been in force for a decade. The constitutional term which is used is the rules of natural justice. No narrow approach should be taken into the meaning of such a constitutional term. So it may be that s 59 does embrace all of what Lord Diplock termed a “procedural impropriety”. Even if it did not, a failure to observe procedural rules that are expressly laid down in the legislative instrument by which jurisdiction is conferred could render the resultant decision illegal, depending upon whether adherence to such rules could be regarded as mandatory.
  2. It is not necessary in the circumstances of this case to delve further into that subject. That is because on any view the rules of natural justice were breached when the appellant was not afforded an opportunity to be heard before the orders of 14 June 2024 were made. The learned primary judge was badly let down by those who appeared before him that day.
  3. Given the second question for resolution, the appeal did provide the appellant, and the respondents for that matter, with an opportunity to be heard about whether the appellant’s rights had ceased by 12 June 2024. If they had ceased, it would be pointless quashing the orders made on 14 June 2024, or the consequential orders of 21 June 2024.

Had the appellant’s rights ceased by 14 June 2024?

  1. The National Executive Council decision of 12 June 2014 authorised the State to enter into an agreement of 10 year’s duration. It did not specify that that 10-year period ran from the date of the decision. This seems to us to be consistent with the reference in s 5(6) of the PPP Act to “finalise an agreement”. That provision anticipates that an agreement will be “finalised” after the National Executive Council approval for its making has been given. Here, the National Executive Council conferred the authority to enter into an agreement but left it to the parties to specify from when the ten-year period ran. The only constraint was that, subject to any option, the period could not be greater than 10 years.
  2. On its true construction, the POMCTF Agreement provided for a 10-year period which ran from the date of that agreement, 19 November 2014, to 19 November 2024.
  3. The Reform Act did not extinguish, much less purport to extinguish, the rights and duties created by the POMCTF Agreement. If it did, a question would arise as to whether the Act transgressed s 53 of the Constitution by providing for an acquisition of property other than on just terms.
  4. The submissions of the active party respondents that the appellant’s rights in respect of the POM-CTF facility and the land on which it is situated had ceased by 14 June 2024 cannot be accepted.
  5. In relation to the POM-CTF facility and the land on which it is situated, the legal entity which owned that facility and that land, before and after the Reform Act was the State. Departments of government are not, in the absence of a peculiar deeming provision (and the Reform Act contains no such provision) separate legal entities. They are just branches of the executive government of the State. A major purpose of the Reform Act was the reorganisation of the administration of public higher education institutions. The administration of such institutions was to pass from the Department of Education to the Department of Higher Education, Research, Science and Technology. But this was to occur subject to “arrangements between the State and education agencies, in place immediately before the transfer date” (s 8) and subject to “liabilities, rights and entitlements in relation to a State-owned transferred institution” (s 14(1)).
  6. The POM-CTF facility and the land on which it is situated were never owned by the appellant. They were always owned by the State. But by virtue of the POMCTF Agreement the appellant did have an exclusive licence in respect of that facility and that land and related rights and obligations for the duration of that agreement, including as extended by any exercise of the option for which it provided. At the earliest, that licence and those rights and obligations ceased on 19 November 2024. By its conduct in supporting the making of the orders of 14 June 2024, the State repudiated the POMCTF Agreement and brought it to a premature end. The first respondent actively procured that repudiation by promoting those same orders.
  7. The effect of that repudiation was that the appellant never got an opportunity to exercise, if it chose, the option for which the POMCTF Agreement provided. That opportunity has now been lost by effluxion of time, because 19 November 2024 has passed and the agreement would have expired in any event if not repudiated. With that expiry, the State has lost its opportunity to bring that agreement to an end even without fault on the part of the appellant by the giving of a notice.

Remedies

  1. It follows from the foregoing that the denial of natural justice which occurred on 14 June 2024 materially affected the appellant. The orders made that day must therefore be quashed. So, too, must be the orders made on 21 June 2024. These were consequential and assumed the correctness in law of the orders made on 14 June 2024.
  2. It was put for the respondents, somewhat faintly, we ought not to grant any relief, because the appellant could have requested the National Court to have vacated the orders it made on 14 June 2024. The declarations made that day were in the nature of final orders and the appellant was entitled to exercise its right of appeal against them. There has been no suggestion that the appeal was one which could only be brought by leave.
  3. It is desirable to make a declaration as to the true meaning and effect of the National Executive Council decision of 12 June 2014 and the POMCTF Agreement, as read in conjunction and of the Reform Act. Such orders should also declare that, in the events which have transpired the rights, obligations and duties as created by the National Executive Council decision of 12 June 2014 and the POMCTF Agreement, as read in conjunction have ceased. The existing stay order must also be brought to an end.
  4. It may be that the appellant is entitled to compensation from one or more of the respondents for the repudiation of that agreement. At one stage in the course of submissions, we considered that an additional order might be the remission of the proceeding to the National Court for the hearing and determination of a compensation application. However, the effect of the Claims By and Against the State Act 1996 (s 5) is that the State and its emanations are entitled to prior notice of claims before proceedings are instituted. As we observed to the parties, the operation of that Act should not be subverted. The giving of prior notice has as a purpose the avoiding by the State of the costs of litigation by affording an opportunity to assess the prospective merits of a claim and perhaps seek its compromise by a negotiated outcome. It will therefore be for the appellant to give such notice and take such action as it may be advised in respect of any compensatory claim.
  5. Costs must follow the event. Save in respect of the second respondent, who was not an active party to the appeal, the respondents must pay the appellant’s costs in respect of the appeal. There is no reason to distinguish between them. Each promoted the making of the orders of 14 June 2024. The appellants should also have the costs of their appearance before the National Court on 21 June 2024.

Orders

  1. The appeal be allowed.
  2. The orders made by the National Court in proceeding OS 117 of 2024 on 14 June 2024 and 21 June 2024 be quashed.
  3. In lieu of those orders, it be declared that:
  4. The stay ordered by this Court on 13 August 2024 cease.
  5. The costs of and incidental to this appeal, and the costs of the appearance of the appellant on 21 June 2024 in the National Court, be paid by the first, third, and fourth respondents, to be taxed if not agreed.

________________________________________________________________
Lawyers for appellant: Holingu Lawyers
Lawyers for first respondent: Jaminan Partners and Lawyers
Lawyers for third respondent: Ace Lawyers
Lawyer for fourth respondent: Solicitor General

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