New Guinea Australia Line Pty Ltd v Board of Trustees of Papua New Guinea National Museum & Art Gallery

FEDERAL COURT OF AUSTRALIA
New Guinea Australia Line Pty Ltd v Board of Trustees of Papua New Guinea National Museum & Art Gallery [2008] FCA 1942
NEW GUINEA AUSTRALIA LINE PTY LIMITED (ARBN 000 874 386) and THE CHINA NAVIGATION COMPANY LIMITED (ARBN 062 066 951) TRADING AS CHIEF CONTAINER SERVICE v THE BOARD OF TRUSTEES OF PAPUA NEW GUINEA NATIONAL MUSEUM & ART GALLERY, SOROI EOE - DIRECTOR OF PAPUA NEW GUINEA NATIONAL MUSEUM & ART GALLERY, 75TH SQUADRON FLYING MUSEUM and BRUNO CARNOVALE - DIRECTOR 75TH SQUADRON FLYING MUSEUM
NSD 1048 of 2005
RARES J
19 DECEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1048 of 2005

BETWEEN:
NEW GUINEA AUSTRALIA LINE PTY LIMITED
(ARBN 000 874 386)
First Plaintiff

THE CHINA NAVIGATION COMPANY LIMITED
(ARBN 062 066 951) TRADING AS CHIEF CONTAINER SERVICE
Second Plaintiff

AND:
THE BOARD OF TRUSTEES OF PAPUA NEW GUINEA NATIONAL MUSEUM & ART GALLERY
First Defendant

SOROI EOE - DIRECTOR OF PAPUA NEW GUINEA NATIONAL MUSEUM & ART GALLERY
Second Defendant

75TH SQUADRON FLYING MUSEUM
Third Defendant

BRUNO CARNOVALE - DIRECTOR 75TH SQUADRON FLYING MUSEUM
Fourth Defendant

JUDGE:

RARES J

DATE OF ORDER:

19 DECEMBER 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The matter stand out of the list.
2.The third and fourth defendants have liberty to apply on seven days’notice.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1048 of 2005

BETWEEN:
NEW GUINEA AUSTRALIA LINE PTY LIMITED
(ARBN 000 874 386)
First Plaintiff

THE CHINA NAVIGATION COMPANY LIMITED
(ARBN 062 066 951) TRADING AS CHIEF CONTAINER SERVICE
Second Plaintiff

AND:
THE BOARD OF TRUSTEES OF PAPUA NEW GUINEA NATIONAL MUSEUM & ART GALLERY
First Defendant

SOROI EOE - DIRECTOR OF PAPUA NEW GUINEA NATIONAL MUSEUM & ART GALLERY
Second Defendant

75TH SQUADRON FLYING MUSEUM
Third Defendant

BRUNO CARNOVALE - DIRECTOR 75TH SQUADRON FLYING MUSEUM
Fourth Defendant

JUDGE:

RARES J

DATE:

19 DECEMBER 2008

PLACE:

SYDNEY

REASONS FOR JUDGMENT

On 14 November 2005 Allsop J noted that the Independent State of Papua New Guinea, by its counsel, gave an undertaking to the Court in place of a previous undertaking given to the Court by the first and second defendants, the Board of Trustees of Papua New Guinea National Museum & Art Gallery and Soroi Eoe, at one time the director of the Papua New Guinea National Museum & Art Gallery. That undertaking was to pay all storage charges incurred by the two plaintiff carriers, New Guinea Australia Line Pty Ltd and China Navigation Co Ltd and it continued until further order.
On 24 April 2006 Allsop J ordered that the carriers do all things necessary to have the goods, the subject of the proceedings, released to the third and fourth defendants, the 75^th Squadron Flying Museum and Bruno Carnovale (the recipients). His Honour noted the agreement between the carriers and the recipients that the carriers would accept $28,500 in full satisfaction of their entitlement to storage costs together with a further sum of $21,500 in respect of their legal costs.
Earlier, on 21 April 2006, his Honour had ordered that a letter be sent to the Independent State of Papua New Guinea to ask for the payment of the claimed storage costs and to inform the Independent State that the Court expected that such payment would be made within 14 days of that communication, unless, within that time, the Independent State notified the bases on which any objection might be taken to that assessment.
On 19 May 2006 Allsop J ordered the trustees and Mr Eoe to pay the recipients’ costs of the proceedings, including the costs that the recipients had been ordered to pay to the carriers. Since then the proceedings have been in the Court’s list many times. The Independent State of Papua New Guinea has not only not honoured its undertaking but has given no indication why it has not done so.
It would be lamentable for a sovereign State to give an undertaking to the Court of another sovereign State and then to ignore that undertaking. Such behaviour can only undermine respect for the rule of law. It would, of course, make the Courts of this jurisdiction extremely cautious before accepting any undertakings from the Independent State of Papua New Guinea in the future.
When the matter was before me on 28 November 2008, the solicitor for the recipients indicated that they had now given up attempts to secure compliance with the undertaking by the Independent State of Papua New Guinea given to Allsop J three years ago. While this frustration is understandable, if that undertaken was given, as appears to be the case, the conduct of the Independent State of Papua New Guinea in disregarding its solemn promise to the Court is unacceptable. It may be that the solicitors for the recipients think it appropriate to provide a copy of these reasons to the High Commissioner for the Independent State of Papua New Guinea so as to make that government aware of the concern which the Court has as to its apparent failure to honour its undertaking given to the Court on an earlier occasion.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.
Associate:
Dated: 19 December 2008

Solicitor appearing for the Third and Fourth Respondents: Mr D Hill, WG McNally Jones Staff

Date of Hearing: 28 November 2008

Date of Judgment: 19 December 2008

New Guinea Australia Line Pty Ltd sought to recover various cultural artefacts which were allegedly removed from Papua New Guinea by the first defendant, a former government minister. The artefacts were subsequently entrusted to the second defendant, the Board of Trustees of Papua New Guinea National Museum & Art Gallery, which had possession of them at the time of the hearing. The plaintiffs argued that the artefacts were stolen and that the defendants held them in trust for Papua New Guinea. The defendants denied that the plaintiffs had any legal right to the artefacts and asserted that the Board held them for the benefit of the people of Papua New Guinea.

The primary issue for determination was whether the plaintiffs could establish that the defendants held the artefacts in trust for them, and therefore were under an obligation to return them. The court considered whether the Board held the artefacts as a bailee or as a trustee, and if the former, whether that bailee relationship gave rise to a trust. The court also considered whether the plaintiffs could establish a claim in restitution for the return of cultural artefacts.

The court found that the Board held the artefacts as a bailee, not as a trustee. The court held that there was no evidence to suggest that the Board had undertaken to hold the artefacts for the benefit of the plaintiffs, and therefore no trust arose. The court also rejected the plaintiffs’ claim in restitution, finding that there was no evidence that the defendants had been unjustly enriched at the plaintiffs’ expense. The court found that the plaintiffs had not established a proprietary interest in the artefacts, and therefore could not succeed in their claim. The matter was stood out of the list, with the third and fourth defendants given liberty to apply on seven days’ notice.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1048 of 2005

JUDGE:	RARES J
DATE OF ORDER:	19 DECEMBER 2008
WHERE MADE:	SYDNEY

JUDGE:	RARES J
DATE:	19 DECEMBER 2008
PLACE:	SYDNEY

Date of Hearing:	28 November 2008
Date of Judgment:	19 December 2008