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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT JUSTICE]
WS. 1343 OF 2002
BETWEEN:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Plaintiff
AND:
ZACHARY GELU, THE SOLICITOR GENERAL
First Defendant
AND:
MONOBURN EARTHMOVING LTD
Second Defendant
WAIGANI: KANDAKASI, J.
2002: 19th November
12th December
STATE SERVICES – Attorney General – Powers and functions of – Power to sue in the name of the State – Whether the Attorney General can sue to the exclusion of the Solicitor General? – The Solicitor General is the principal litigation lawyer for the State – The principle of separation of powers requires the Attorney General to exercise his power to sue in the name of the State through the Solicitor General – Whether the Attorney General can sue the Solicitor General? – Both being part of the State and given that the State cannot sue itself the Attorney General cannot sue the Solicitor General – ss.7,8 and 13 Attorney General and s. of the Claim By and Against the State Act.
PARTIES – PRACTICE & PROCEDURE – Attorney General suing the Solicitor General in the name of the State – Both as servants of the State and therefore part of the one and the same body – Hence the Attorney General cannot sue the Solicitor General – For a proper administration and functioning of the office of the Solicitor General without fear or favour it should not be open to Court action at the instance of the Attorney General or the executive government – The occupant of the office of the Solicitor General can only be sued in a clear case of personal impropriety or serious misconduct in office after exhausting all administrative remedies available to the Attorney General or the State.
JUDGEMENTS – National Court judgements - Departure from earlier judgements – Although a National Court judge is not bound by its own or other National Court judgements, good reason must exist to depart from it – Failure to appeal against earlier judgement by a party arguing for a departure from it in a subsequent is a factor against a departure – Whether the existence of a relevant provision not considered in earlier judgement is in itself a good reason to depart from an earlier judgment? – There can be a departure from an earlier judgement only where it has clearly misconceived, misinterpreted and or misstated the law – A party arguing for a departure from an earlier precedent has the onus to establish the need for such a departure.
Papua New Guinea Cases Cited:
PNG Forest Products Pty Ltd & Anor vs. The State & Anor [1995] PNGLR 85.
Peter Aigilo vs. Sir Mekere & Ors (No.1) (Unreported judgement delivered 15/06/01) N2102.
Paula Las Vurr vs. Teddy Vurr (Unreported Judgement delivered on 06/09/96) N1480.
Nombri Waime Ambre vs. The State [1995] PNGLR 453.
Kristian Jobsens Rederi vs. Steamship Trading Co. Ltd [1986] PNGLR 61.
Peter Kop Kiniwi vs. Vincent Auali & The State (Unreported Judgement delivered 09/06/98) N1722.
Banking Corporation vs. Jeff Tole (Unreported Judgement delivered on 27/09/02) SC694.
United States of American vs. W.R. Carpenters (Properties) Ltd [1992] PNGLR 185.
Nou Igo & Anors vs. The Secretary, Government Department of Local-Level Government & Anors [1995] PNGLR 285.
Papua New Guinea Banking Corporation vs. Peter Donigi & Ors (unreported judgement delivered on 02/11/01) SC691.
Akipa & Ors vs. Lowa & Ors [1990] PNGLR 502.
Hornibrook Constructions Pty Ltd vs. Kawas Express Corporations Pty Ltd [1986] PNGLR 301.
Supreme Court Reference No. 1 of 1982: re. Philip Bouraga [1982] PNGLR 178.
Acting Public Prosecutor vs. Konis Haha [1981] PNGLR 205.
Overseas Cases Cited:
Cannon Ltd vs. Singer [1974] 2 All ER. 577.
Dunne vs. Elibank-Murray.
Brinsom vs. Rocela Concrete Pipes Ltd [1982] 2 NSWLR 937.
Counsel:
Mr. M. Pokia and Mr. V. Mirupasi for the First Applicant/Second Defendant
Mr. A. Baniyamai for the Second Applicant/First Defendant
Mr. K. Kua for the Respondent/Plaintiff
13th December 2002
KANDAKASI, J: By notice of motion filed on 1st November 2002 by the second defendant (MEL), both Mr. Zachary Gelu, the Solicitor General, who is the first defendant in these proceedings (Mr. Gelu) and MEL are seeking to dismiss these proceedings. The main argument for that is a lack of capacity in the Attorney General who is bringing these proceedings against them in the name of the State. They rely on O.12 r.1 of the National Court Rules (NCRs), s.155 (4) and s.166 (1) of the Constitution and PNG Forest Products Pty Ltd & Anor vs. The State & Anor [1995] PNGLR 85. This follows my earlier upholding an argument for the Attorney General that an application for summary dismissal under O.12 r.40 (1) (c) of the NCRs is not available where fraud is involved. A reliance on O.8 r.27 (1) (c) of the NCRs by the applicants was abandoned.
Arguments
Arguing for the Attorney General, Mr. Kua maintains that there is no jurisdiction in this Court to entertain this application despite the authorities relied upon.
This application has been prompted by the fact that the proceedings are in fact by the Attorney General in the name of the State. The action concerns Mr. Gelu’s official conduct as Solicitor General in settling a claim by MEL after the entry of a default judgement with damages to be assessed against the State. The applicants argue that, the Attorney General Act 1989 (AG’s Act), as interpreted and applied by this Court in Peter Aigilo vs. Sir Mekere Morauta & Ors (1) (Unreported Judgement delivered on 15/06/01) N2102, (the Aigilo case), the Attorney General is not empowered to bring these proceedings. The power to do so is vested in the Solicitor General who is the principal lawyer for the State. They also argue that where the Solicitor General is a possible defendant in a claim by the State, as in this case, the Attorney General has no power to exercise the function of the Solicitor General. His recourse is to the National Executive Council (NEC) under s.149 (3) and (4) of the Constitution to approve an action against the Solicitor General and only upon such approval can the Attorney General bring an action in the name of the State naming the Solicitor General as a defendant.
In this case, they argue that NEC has not approved this action against the Solicitor General or the claim itself. As such the action is without proper authority and it should be dismissed.
Mr. Kua argues that, his client does have the expressed power under s.4 of the Claims By And Against the State Act 1996 (CBASA) to bring an action in the name of the State. He says, this provision was not drawn to the attention of the Court in the Aigilo case and hence not considered. Therefore, this Court is not bound to follow the judgment in the Aigilo case to be consistent with the provisions of s.4 of the CBASA. Counsel has not expressly argued that the judgement in the Aigilo case is at variance with the provisions of s.4 of the CBASA but I take that is his argument by implication. However, he has not demonstrated why the provisions of s.4 of the CBASA should take precedence over the judgement and the reasoning behind it.
The applicants also argue that, except in the clearest of cases where for instances there is a clear case of fraud perpetrated by the Solicitor General, he cannot be sued on account of what appeared to be a case of misjudgment or negligence. They further argue that the pleadings as they stand are framed in terms of a fraud against Mr. Gelu and MEL when in fact they amount to conduct which could be considered more of negligence than fraud. As such, they argue that, there is no basis on the merits to bring these proceedings against them.
Furthermore, they argue that, on basis of the default judgement in MEL’s claim the State was liable to meet MEL’s claim for damages for breach of a construction contract. Mr. Gelu considered the matter and decided to settle it out of Court to avoid further costs and interests in going to trial. That was within his powers and professional duty. Therefore there was nothing wrong with it in the absence of any clear case of fraud or serous misconduct on his part.
They go on to argue that, if Mr. Gelu committed an act of fraud or a serious misconduct resulting in the settlement, there are procedures available at law to deal with Mr. Gelu administratively before issuing these proceedings. That process could start with a disciplinary charge against him, followed by an inquiry into the matter and if found guilty, be dealt with appropriately. That should not however affect the effect of the settlement that was reached between the State and MEL. This argument proceeds on the basis of Mr. Gelu having ostensible authority of the State to settle.
However Mr. Kua argues that, this is a claim in fraud. Therefore the argument based on the ostensible authority of Mr. Gelu does not apply. This is because an establishment of a case of fraud can undo an agreement entered into in consequence of a fraud. He makes no submissions on the question of no disciplinary step being taken against Mr. Gelu before issuing these proceedings.
Neither of the parties were able to make any submissions with the support of any relevant authorities as to the question of whether it is possible for an Attorney General to sue his Solicitor General in a country having a system of government like our country. I therefore directed all counsel to conduct further research and place before me further written submissions for my consideration before judgement and that been done. The total effect of these submissions is that, it is unprecedented for an Attorney General to sue his Solicitor General. This is one of the first cases of its kind in all jurisdictions similar to that of ours.
Issues
These arguments present the following issues for determination:
The factual background will help enable a better understanding and a determination of the issues presented. It is thus important for us to consider the relevant facts from which these facts and issues arise.
Facts
The relevant facts for the applicants are in the affidavits of Mr. Vincent Mirupasi sworn and filed on 1st November 2002 and 5th November 2002. For the respondent, are the affidavits of Mr. Kerenga Kua sworn on 5th November and 18th November 2002, Mr. Francis Damem’s affidavit sworn on 18th November 2002 and Mr. Alexander MacDonald ‘s affidavit sworn on 24th October 2002.
From these affidavits, it is clear that MEL issued writ of summons No. 285 of 2000 against the State, claiming breach of a construction contract through Blake Dawson Waldron lawyers on 16th March 2000. On 11th August 2000, default judgement was entered against the State with damages to be assessed. MEL subsequently changed its lawyers to Murray & Associates and then to Mirupasi Lawyers.
Undercover of letter dated 29th May 2002 attention to Mr. John Kumara, Mirupasi lawyers filed and served a Notice of Change of Lawyers and also served a detailed submission on quantum or damages putting the total of MEL’s claim at K12.5 million with costs of K150, 000.00.
Mr. John Palek who was then in the employ of the Solicitor General’s office was required to comment on MEL’s settlement offer. He did that by 18th February 2001, to Mr. Gelu recommending settlement at K8.2 million, which he noted to be the amount, the parties agreed to settle. There is no evidence confirming any such agreement so the reference to K8.2 million could be an error or an oversight. His recommendation made reference to a number of cases in which the National Court allowed damages for loss of business, without the need for a strict proof of such losses. Mr. Kua’s firm Possman Kua Aisi (PKA) took the view that, that minute was useless because the cases Mr. Palek replied upon concerned minor claims.
Prior to that, MEL’s managing director, Blake Dawson Waldron and Murray & Associates, lawyers pursued for and on behalf of MEL negotiations for a possible out of Court settlement. The settlement negotiations were pursued through Mr. Sao Gabi and Mr. Francis Damem in their respective capacities as Attorney General and Mr. Gelu, the Solicitor General and other officers within his office on behalf of the State. Letters were written to the then Minister for Justice, Mr. Kilroy Genia and later Mr. Puri Ruing out of a concerned over delays in responses to the settlement offers or expediting the matter on behalf of the State.
In June 2001, PKA appears to have been instructed by the Attorney General to act for the State. It is not clear if PKA filed and served a notice of change of lawyers on MEL’s lawyers. But it is clear that correspondence was entered into between PKA and Murray & Associates lawyers who were than acting for MEL.
PKA decided that MEL should be required to established its claim after having made a deliberate choice not to apply for a set aside of the default judgement. In so doing, they relied on a brief outline contained in a schedule provided by the Department of Works (annexure "A" to Mr. MacDonald’s affidavit) without any detail or explanatory notes accompanying it. It is not clear if the Department of Works, (the Department that engaged MEL’s services) provided the Solicitor General with detailed instructions with all the supporting documents. But it is clear that further detailed information was needed which the State was not able to provide. So, MEL was asked to provide them, and was not provided. An application was thus made to the Court for MEL to provide a list of documents and further and better particulars of its claim within 21 days. MEL did not comply with those orders and that caused PKA to file and serve a notice to admit facts on MEL’s then lawyers, Murray & Associates. The notice was not complied with. Therefore, PKA filed a notice of motion on 22nd July 2002 seeking inter alia a dismissal of the proceedings.
On 30th July 2002, Mr. Gelu soon upon his appointment as Solicitor General took over from Mr.John Kumara and wrote to Mirupasi lawyers acknowledging receipt of the submissions made by those lawyers on behalf of MEL and counter offered to settle at K8.6 million. On 31st July 2002, MEL accepted the offer through Mirupasi lawyers. A deed of release was prepared and forwarded to Mr. Gelu for his signature to finalise the settlement. Mr. Gelu accepted the terms of the deed and signed it on behalf of the State. On the same day, Mr. Gelu wrote to PKA informing them of the settlement and confirmed that, that effectively terminated their retainer by the State.
On 9th August 2002, the motion filed by PKA for dismissal of MEL’s claim came before me but the parties informed me that the matter was settled out of Court. A copy of the relevant deed of release evidencing that was produced. On that basis, Mr. Kua produced a notice of discontinuance for Mr. Pokia to endorse on behalf of his client, MEL and he did and I accepted it. That left only the issue of costs outstanding to be resolved by the parties.
On 17th October 2002, these proceedings were filed followed by an interim application on 21st October 2002 by the Attorney General for several interim relieves. Part of the application was granted with a number of directive orders aimed at expediting the matter, given the importance of the offices that were involved in the proceedings and the level of attention this case has received in the media. I understand however that, an application was subsequently made by the Attorney General to the Supreme Court resulting in a stay of the directive orders. So the case was left to proceed in the normal way under the NCRs.
In his affidavit of 18th November 2002, Mr. Damem says two days prior to Mr. Gelu’s appointment as Solicitor General, he had specifically instructed Mr. Gelu to stay away from MEL’s claim, the subject of WS. No. 285 of 2000. He also says he specifically advised Mr. Gelu that PKA had been instructed by himself, pursuant to his powers under s.7 (i) of the AG’s Act so Mr. Gelu was to keep away from the case. He also says that at no time did he instruct Mr. Gelu to act on behalf of the State under s.13 (2) of the AG’s Act in relation to this matter. Therefore he says, it came as a complete shock to him that Mr. Gelu had taken over the conduct and carriage of this matter and signed a deed of release for and on behalf of the State on 30th July 2002.
Mr. Kua in this affidavit of 18th November 2002 says that, following instructions from the Attorney General, undercover of letter date 29th June 2001, he filed a notice of change of lawyers in July 2001. He does not say he served that notice on the lawyers for MEL. Subsequently, by letter dated 5th June 2002, the Attorney General withdrew instructions from PKA because of lack of funds and the Attorney General’s view that this matter only involved an assessment of damages and that the office of the Solicitor General could ably deal with the matter. They were therefore asked to deliver the file to the Solicitor General.
On 17th June 2002, PKA acknowledged the termination of their engagement but asked for a delay in the implementation of the termination until after mid-July 2002 as they were of the view that, there was a good prospect of dismissing the MEL’s claim. The Attorney General wrote back to PKA on 16th July 2002 withdrawing his letter of 5th June 2002 and requested PKA to continue to act for the State. After that was the letter of 31st July 2002 from the Solicitor General informing PKA of the settlement he had reached with MEL resulting in the termination of the brief to PKA. PKA took issue on their termination, the benefits of that and the validity of the termination. Those issues were taken further in detail by PKA in a letter to the Solicitor General on 2nd August 2002.
None of the affidavit evidence before me reveals what if any, consultation took place between the Attorney General and the Solicitor General to enable the brief out to PKA and for them to appear for the State in WS. No. 285 of 2002. Also, there is no evidence of any consultation if any, between Mr. Gelu and Mr. Damem in their respective capacities as Solicitor General and Attorney General for the need for PKA to continue to act for the State. That was necessary once Mr. Gelu was appointed Solicitor General, which might have changed the circumstances justifying the brief out by the Attorney General. In these circumstances, I find that the Attorney General chose to instruct PKA, without any consultation with and a recommendation from the Solicitor General as to the need and the justification for that brief out.
Consideration of the issues raised
Of the issues raised, I consider the issue of jurisdiction has to be first dealt with as it affects the power and ability of this Court to entertain this application.
It is settled law that the ultimate source of power for the National Court is s.155 (3) and (4). That is usually resorted to as a last resort. Section 166 (1) of the Constitution reinforces that by vesting in the National Court an unlimited jurisdiction to deal with all matters subject only to the Constitution itself and any specific legislation that might vest jurisdiction in another Court. Paula Las Vurr vs. Teddy Vurr (Unreported Judgement delivered on 06/09/96) N1480 and Nombri Waime Ambre vs. The State [1995] PNGLR 453, are examples of cases acknowledging that.
The argument in this case is that O.12 r.1 is broad in its terms and is of general application only. It does not provide this Court with a jurisdiction to dismiss an action summarily. In so arguing Mr. Kua relies on a number of principles. The first is on the maxim "generalia specialibus non derogant" and a passage in Halsburys Laws of England, 4th Edn, Vol. 44 par.875, "ordinarily special provisions are to be constructed to over ride general provisions." The second is on the following passage from Cannon Ltd vs. Singer [1974] 2 All ER 577 at p.583:
"Put formally, it seems to me that the proper principle to apply if an enactment contains two similar prohibitions, one wide and other applying only to a limited class of case wholly within the wide prohibition, is to treat the wide prohibition as not applying to cases within the limited prohibition, especially if the limited prohibition is made subject to some exception and the wide prohibition is not."
The third is on the interpretation that has been given to the equivalent of our O.12 r.1 in the New South Wales Supreme Court Rules. The purpose here is to prevent multiplicity of proceedings so that all relevant matters are determined together (as commented upon by the authors of Riches Supreme Court Procedure, NSW Vol. 1 at par.40.1.2 relying on an unreported judgement of the Supreme Court in Dunne vs. Elibank-Murray).
Finally, it is on the case of Brinsom vs. Rocela Concrete Pipes Ltd [1982] 2 NSWLR 937 per Cross, J., which was cited in Kristian Jobsens Rederi vs. Steamship Trading Co. Ltd [1986] PNGLR 61 at p.64. This is on the proposition that there are four sources of jurisdiction under the rules where a defendant can ask the Court to dismiss summarily. These are:
The argument is that the intent of Part 13 r.5 is to lay down the principles pursuant to which this inherent powers maybe exercised. Anything beyond that is ultra virus. Ultimately, the argument is that since the application by the applicants cannot be brought within any of the four sources per Brimson vs. Rocela Concrete Pipes Ltd, (supra) there is no jurisdiction within this Court to entertain the applicant’s application to grant the relief sought.
I do not find Mr. Kua’s arguments convincing for two reasons. First, if his arguments were upheld it would effectively place the National Court in a concrete box with no room to move either way. Unlike the Courts in Australia or elsewhere, the National Court in Papua New Guinea draws its source of power or jurisdiction from the Constitution, which comes from its people. That power or jurisdiction is unlimited except as the Constitution may provide and in cases where jurisdiction is placed in another Court. In other words, National Court is not necessarily restricted to causes of action or powers found in the common law and hence limited in its approach and exercise of its unlimited and inherent jurisdiction. See Peter Kop Kiniwi vs. Vincent Auali & The State (Unreported Judgement delivered 09/06/98) N1722.
Secondly, Mr. Kua’s argument goes contrary to the intent and or the spirit of having provisions such as O.1 r.7 which empowers the Court to dispense with strict compliance of the NCRs in the interest of doing justice in appropriate cases. It also defies the logic and good sense in the judgements supporting the proposition that the NCRs are only a means to an end and not an end in them. A recent pronouncement on the nature of the rules and the effect of any non-compliance is the Supreme Court judgement in Papua New Guinea Banking Corporation vs. Jeff Tole (Unreported Judgement delivered on 27/09/02) SC694. It also goes against the clear wording of O.12 r.1, which reads:
"The Court may, at any stage of any proceedings, on the application of any party, direct the entry of such judgement or make such order as the nature of the case requires, not withstanding that the applicant does not make a claim for relief extending to that judgement or order in any originating process."
This is a general all empowering provision that entitles the National Court to make such orders and enter such judgements as are necessary to do justice in a particular case. This is consistent with the fourth category in Brinsom vs. Rocela Concrete Pipes Ltd. The judgement in PNG Forest Products Pty Ltd & Anor vs. The Independent State of Papua New Guinea [1992] PNGLR 85, is also consistent with that position. It was held in that case that, in addition to the specific powers given to the National Court by O.12 r.40, to enter summary judgements, the Court has an inherent power to protect itself from abuse of its process. Counsel for the Attorney General was not able to draw my attention to any authority that provides to the contrary in our country.
In my view, the National Court cannot be limited in its jurisdiction. The ultimate law of the land, the Constitution gives this Court an inherent and unlimited jurisdiction in all matters going before it, except where the Constitution specifically provides to the contrary or where an Act of Parliament vests in another Court a particular jurisdiction to deal with a matter. Also, as my brother Sheehan J. said, the Court has an inherent jurisdiction to protect itself from any abuse of its process. If that power or jurisdiction is not inherent in the Court, then in my view at least that power is given to the Court by s.155 (4) and s.166 (1) of the Constitution.
It follows therefore that, the Court cannot be limited in its jurisdiction to entertain any application for either a dismissal in part or whole of a proceeding. Such applications could be made on the basis of an abuse of its process, or lack of capacity in a party to come to Court at the first place. It could even be for a failure to disclose a reasonable cause of action or the proceeding amount to an embarrassment and or that it is frivolous and vexatious.
In the present case, the applicants are applying to dismiss these proceedings on the basis that the Attorney General lacks the capacity or the locus standi to bring these proceedings against its Solicitor General in relation to the latter’s discharge of his official duties and responsibilities.
Locus standi goes to the very root of a person’s right to be in Court at the first place. If a party lacks the capacity to bring a matter to Court, no Court can allow such a person to go any further. This is necessary to save further costs and avoid any embarrassment, loss or damage the parties to such proceedings may be forced to incur. This issue is quite independent of the actual cause of action itself.
In the United States of American vs. W.R. Carpenters (Properties) Ltd [1992] PNGLR 185, Brown J. dismissed the proceedings that were brought in the name of the United States Embassy in PNG on the basis that it lacked the capacity to bring the proceedings. The Court was not able to find any law that permitted the proceedings to be brought in the name of the embassy. It also found that the name could not be substituted. There are numerous other cases, resulting in similar results for lack of locus standi. Examples of such cases are Nou Igo & Anors vs. The Secretary, Government Department of Local-Level Government & Anors [1995] PNGLR 285 and Papua New Guinea Banking Corporation vs. Peter Donigi & Ors (unreported judgement delivered 02/11/01) SC691.
These authorities demonstrate that the lack of any specific provisions in the NCRs or elsewhere is no impediment to this and the Supreme Courts dismissing claims by people without locus standi or the capacity to bring proceedings at the first place.
For these reasons I dismiss the arguments against jurisdiction.
B. Power of the Attorney General to Sue
The remaining issues concern the ability of the Attorney General to sue in the name of the State to the exclusion of the Solicitor General. I will therefore deal with the remaining issues as one under the broad heading of the power of the Attorney General to sue in the name of the State with appropriate sub-headings when dealing with the other specific issues.
(1). The Aigilo Case
One of the principles covered in the Aigilo case is the principle of the separation of powers between the executive government and the civil service or politics and administration. That followed the judgement of the Supreme Court in SCR No. 1 of 1982: re. Philip Bouraga [1982] PNGLR 178.
In the context of the above principle, I concluded at page 23 of the judgement in that case that the Attorney General "has no power of direction or control over the exercise of the Solicitor General’s powers under the Attorney General’s Act."
I also concluded that the Solicitor General:
"... has the primary responsibility over the conduct of all litigation in all claims by and against the State. As such he has the first say both for a brief out or the instructing of another lawyer under s.7 (i) and a recommendation or request for payment under s.7 (j). Unless the Solicitor General has had his input on these powers, there could be no valid exercise of power. Consequently, any action taken by the AG without any input from the Solicitor General would be illegal and therefore null and void. It follows therefore that, if there is a conflict in representation on behalf of the State in any litigation or exercise of the Attorney General’s powers under s.7 (i) and s.7 (j) in so far as it concerns any litigation whether on foot or likely to be instituted, the representation of the Solicitor General prevails unless there is very good reason(s) to override it. The onus to override the views of the Solicitor General rests with the AG."
Earlier on I held that s.13 (2) of the AG’s Act has two purposes. The first is to prevent the Solicitor General from accepting instructions from private persons so that the Solicitor General focuses only on State litigation matters. The size and scope of the legal work required of the Solicitor General’s Office necessitated this. The second is to allow the Attorney General to instruct the Solicitor General on any of the matters falling within his powers and functions under sections 7 and 8 which the Solicitor General is obliged to accept. Further, I held that s.7 (i) is applicable where the Solicitor General is unable to fully discharge his duties and obligations or in cases where there is a lack of available expertise in a particular case or all the officers are fully committed. This was consistent with my view that s. 7 (e) of the AG’s Act does not vest in the Attorney General any power of direction or control of the Solicitor General in the exercise of the latter’s powers and functions. I held that the use of the words "instructions" in s.13 (2) and the word "instruct" in s.7 (i) of the AG’s Act did not vest in the Attorney General any power of direction or control over the Solicitor General in the performance of the latter’s powers and functions. I found that was the case given the absence of words or phrases such as "only in accordance with the instructions of the Attorney General" or "the Solicitor General shall appear in Court in accordance with the instructions of the Attorney General." This I found was strengthened by the use of the word "primary" in s.13 (1) of the AG’s Act.
At page 14 of the judgement I held that that the use of the word "primary" in s. 13 (1) of the AG’s Act, signifies that Parliament:
"... vested all litigation functions for and on behalf of the State in the Solicitor General. This follows on from the creation of the office of the Solicitor General by s.10 of the AG’s Act. The office is a term of lawyers headed by the Solicitor General who is required to have a minimum of five years practice experience as a lawyer. In that context, the primary purpose of creating that office is to conduct all litigation for and on behalf of the State at the first instance. In other words, when the State becomes a party in any matter before the courts in Papua New Guinea, the person having the primary duty and responsibility at the first place is the Solicitor General."
I also held that by the using the word "instruct" in s.7 (i) of the AG’s Act Parliament intended only to enable the Attorney General to instruct lawyers other than the Solicitor General. That was only for the kind of situations already mentioned. I found that not surprising because the Solicitor General was not given any power to brief out in such situations.
I also expressed the view that, the power under s.7 (i) can be exercised only upon the recommendation of the Solicitor General who has the primary responsibility to act for the State in all matters going or likely to go before the Courts. I found this consistent with the principle of separation of powers. Not only that, I held that this system was a safeguard to any abuse and corruption of the powers vested in the Attorney General and the incurring of expensive and unnecessary legal costs for the State. In that context, I found that the then established practice or system governing brief outs was consistent with the views I arrived at. Hence, I suggested that, that system should be adhered to and added that any brief out must meet the requirements of the Public Finances (Management) Act 1995. This was to ensure and afford transparency and that the State gets the best value for money on merit in addition to meeting any government policy directives or guidelines over which the AG is in charge.
(2). Section 4 of the CBASA and the Aigilo Case
Mr. Kua argues that I should depart from the Aigilo case. Two main reasons are advanced for that. The first is based on s.4 of the CBASA. Based on that section, it is argued for the Attorney General that he is given the expressed and exclusive power to sue in the name of the State. Section 4 reads:
"4. Suits by the State
Suits in behalf of the State including relator proceedings maybe proceedings, may be brought in the name of the State—
(a) by the Attorney General; and
(b) in respect of a suit brought in a District Court, by—
- (i) the Attorney General; or
- (ii) to a person appointed for the purpose by the minister."
The effect and meaning of this provision was not argued and considered in any way in the Aigilo case. It is therefore argued for the Attorney General that I should depart from that case. If I do that, they argue that, I should allow for an interpretation that enables harmony between s. 4 of the CBASA and the provisions of the AG’s Act. Further, they argue that, if I allow for such an interpretation, I should arrive at a conclusion that is different from the one reached in the Aigilo case.
Furthermore, counsel for the Attorney General argues that, the conclusion in the Aigilo case over looks the meaning of the words in s.13 (2) of the AG’s Act. His argument is that, s.13 (1) only provides for the primary function of the Solicitor General. It does not provide for where his instructions to carry out those functions come from. He then submits that subsection (2) addresses that issue and provides exclusively for the source of instructions for the Solicitor General which is the Attorney General. He goes on to argue that the Solicitor General can exercise his powers and functions only on the instructions of the Attorney General. In other words it is argue for the Attorney General that, s.13 (2) makes it very clear that the Solicitor General has only one exclusive client and that is the Attorney General. The State is a client of the Attorney General by virtue of s.4 of the CBASA and that the Solicitor General cannot act for the State without instructions from the Attorney General.
The second argument is based on sch. 2.9 (2) of the Constitution, which was applied in effect in Akipa & Ors vs. Lowa & Ors [1990] PNGLR 502. This argument was not elaborate in any way. But I take this argument as following the first. So in the context of that argument and the case relied upon, I take it that, the argument is that the mere existence or a literal interpretation and application of s. 4 of the CBASA is in itself sufficient to depart from the Aigilo case.
The Attorney General, Mr. Francis Damem was involved through Mr. Garo of Paraka Lawyers in the Aigilo case. It was the duty of counsel to draw to the Court’s attention the existence of s.4 of the CBASA, if it was considered relevant but he did not. The Attorney General then had the opportunity to appeal to the Supreme Court if he was not satisfied with the judgement. He failed to do that. That means in my view, that he had accepted the correctness of the judgement. Now when the judgement seems to operate against him or after having acted contrary to the effects of it, he is through these proceedings arguing against it. If I accept his arguments, I would in effect be allowing him to appeal against the decision in the Aigilo case, well past the appeal period and without a case being made out both procedurally and on the merits for a review. I consider this is a serious factor operating against the argument for departure. For once judgment is pronounced and subject only to the right of appeal, they should be allowed to prevail for the sake of finality on the issues determined and certainty in the legal principles stated in the judgements and for them to take their proper effect.
I do accept at the same time however that, there might be cases in which the law has been clearly misinterpreted or misstated or that the principles enunciated in a previous judgement may become obsolete due to changes in the circumstances and needs of the society which is never stagnant. The law does allow for a departure in such situations.
Counsel for the Attorney General was not able to draw my attention to any relevant authority on point. My own research as produced the judgement of the Supreme Court Acting Public Prosecutor vs. Konis Haha [1981] PNGLR 205. I consider what the Supreme Court said at page 211 of the judgement relevant. The Court said:
"Despite the fact that the Constitution gives decisions of the pre-independence full Court persuasive effect only, the present Supreme Court would only depart from the reasoning of the earlier judgement with the greatest reluctance. Certainty in the law is just as important as reform, and a departure from what has been accepted as legal principle for some time is only warranted where the present Supreme Court has come to a view that the early interpretation was clearly misconceived or that it is inappropriate to the circumstances of the country."
Although that was in the context of binding effects of pre-independence Supreme Court decisions, the principles enunciated there do in my view apply in all cases in which either the National or the Supreme Court is called upon to depart from their earlier decisions. There has to be certainty and consistency in the pronouncement of the law by both the Supreme and the National Courts for a proper guidance of the society in the conduct of their lives and to allow for a certainty in the rule of law. It is therefore, necessary for the party asking the Court to depart from its earlier decision to demonstrate a clear case for it. That demonstration must be in terms of the earlier decision clearly misconceiving, mistaking or misinterpreting the law and or a clear demonstration that the principles of law stated in the earlier decision are inappropriate to the prevailing circumstances and needs of the country. Where a party arguing for a departure fails to discharge that onus, the Court should not accept such a request.
The case of Akipa & Ors vs. Lowa & Ors (supra), relied on by Mr. Kua is an example of this Court departing from its earlier decision. But the judgement does not specifically state the requirements that must be met or the factors that must exist to enable such a departure. Nevertheless, working out from what did happen in that case, it is clear that, if a proper interpretation of a relevant provision in the NCRs not previously considered dictates a departure then, there can be a departure. Obviously, therefore the mere existence of a relevant provision is not in itself good enough. What does matter is its proper interpretation and application.
In the present case, apart from Counsel for the Attorney General submitting that, s.4 of the CBASA was not considered in any way in the Aigilo case, he does not assist with any submissions as to reasons and a need for a departure from that judgement. He makes no submission on the proper meaning and effect of s. 4 of the CBASA and whether that is in conflict with the Aigilo case in the context of the various principles considered and covered in that case. For example, he has not provided me with any assistance as to how the Attorney General, if he was a politician pursuant to s.4 of the Attorney General’s Act, could exercise the powers under s.4 of the CBASA. Likewise, counsel was not able to demonstrate in any manner why or how the interpretation as to the intent and purpose behind the legislative scheme in the creation of the office of the Attorney General and the Solicitor General under the AG’s Act was misinterpreted and stated in that case. Alternatively, he has not indicated in any way what is the correct intent and purpose of the AG’s Act, if the one identified in the Aigilo case is not what was intended by Parliament. Further, he has not even demonstrated in any manner why s.4 of the CBASA cannot be interpreted to harmonize with the decision and the reasons leading to the decision in the Aigilo case.
All that Mr. Kua has done is merely refer my attention to the existence of s.4 of the CBASA. Implicit in there is a submission for me to adopt a literal interpretation and application of the provisions of s. 4 of the CBASA. This submission however runs contrary to established principles of statutory interpretation that the literal or restrictive interpretation of statutory provisions in our jurisdiction is inappropriate to the circumstances of the country. That principle was first enunciated in PLAR No. 1 of 1980 [1980] PNGLR 326 per Wilson J who said:
"In my judgment there is no place in a developing country where the courts, as well as the Law Reform Commission, are given special responsibilities in the process of development, for the narrow interpretation of statutes without adequate regard to the social purpose of particular legislation. Development is difficult to achieve if courts adopt too conservative an approach to the interpretation of statutes. There has been a tendency in our National Judicial System, less evident in some recent decisions of the courts but still perceptible, to over-emphasize the literal meaning of a provision at the expense of the meaning to be derived from other possible contexts; the latter including the application of the "mischief" rule, the recognition of the general legislative purpose, as well as the obligations laid down under the Constitution such as, for example, the obligation upon the courts in interpreting the law to give "paramount consideration to the dispensation of justice" (s. 158(2) of the Constitution)."
Since then, both the Supreme and the National Courts have being interpreting the provisions of the Constitution and other statutory provisions adopting a fair large and liberal meaning to words in the legislation so as to give effect to the intent of Parliament. The only exception has been in cases where the meaning is so plain and clear that Parliament could not have intended another meaning. Recent examples of such authorities are the judgements in SCR No. 1 of 2000; Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council (Unreported judgement delivered 27/09/02) SC693 and Jack Livinai Patterson v. National Capital District Commission (Unreported judgement delivered on 05/10/01) N2145.
The clear import of this is that, the mere existence of a provision cannot be the basis for revisiting an earlier decision with a view to moving away from it unless the interpretation and the application of the provision in question makes that necessary. That means the test laid down in the Supreme Court judgement in Acting Public Prosecutor v. Konis Haha (supra) must be met. The test is whether the earlier decision misconceived, misunderstood or misinterpreted the law and or the principles enunciated in an earlier decision is not appropriate in all of the circumstances of the country or its needs.
If the provisions of s.4 of the CBASA are interpreted in accordance with the well-established principles of statutory interpretation, which I have discussed in the Aigilo case, there can be no conflict between s.4 of the CBASA and the judgement in that case. As already noted the Aigilo case makes it clear that Parliament purposely created the two different offices of the Attorney General and the Solicitor General. The former is the chief legal adviser to the NEC whilst the latter is the principle litigation lawyer for the State. The former performs only an advisory role to the NEC whilst the latter is entrusted with the power and duty to represent the State in all proceedings before the Courts in the country. The latter is not subject to any direction or control of the Attorney General in the exercise of his powers and function save only on policy issues.
The pertinent consideration there is the fact that the Attorney General can either be a politician or a civilian depending on who is the Minister of Justice. If the Minister for Justice is an admitted lawyer, he automatically becomes the Attorney General. Hence, if it were intended that the Attorney General should personally exercise the powers and functions or otherwise directly supervise and control the exercise of the powers and functions of the Solicitor General there would clearly be a case of conflict of interest. It could also open the way for a breach of the cardinal principle of separation of powers between the executive government and the civil service or the separation between politics and administration. In the system of government that we have adopted under our Constitution, the principle of separation of powers is very important. This was highlighted in the Supreme Court judgement in the Philip Bouraga case.
If s.4 of the CBASA was on its own and we did not have the AG’s Act, there might be room to argue that the result could be different. However, an interpretation of both s. 4 of the CBASA and the provisions of the AG’s Act has to be approached in a manner that is aimed at harmonizing the these legislation. This proceeds on the well-accepted principle of statutory interpretation that Parliament makes no mistake in enacting provisions of an act of Parliament. Indeed the need to harmonise provisions of what appears to be apparent conflicts in the provisions of an Act of Parliament has been acknowledged in the judgement of the Deputy Chief Justice in Akipa & Ors vs. Lowa & Ors (supra).
A plain reading of the provisions of s. 4 of the CBASA would appear to be in conflict with the intent and purpose of the provisions of the AG’s Act as interpreted and stated in the Aigilo case. But if this provision was viewed and or considered in the context of the intent and purpose behind the creation of the two different offices under the AG’s Act as identified and stated in the Aigilo case, there is harmony between s. 4 of the CBASA and the AG’s Act.
As already noted, the only argument to the contrary is a mere reference to the existence of s. 4 of the CBASA and it not being considered in the Aigilo case. There is not a mention of a possible and alternative intent and purpose of Parliament in creating the two different offices of the Attorney General and the Solicitor General under the AG’s Act. Further, there no is suggestion as to how the conflict that appears to exist between the AG’s Act and s.4 of CBASA could be resolved. Furthermore, there is no suggestion has to why or how else the interpretation and statement of the law in the Aigilo case is misconceived, misinterpreted and misstated or that they are inappropriate to the circumstances and needs of the country at this time of its history.
I have now had the advantage of reading a relevant publication on point by John, L. J. Edwards, The Attorney General, Politics and the Public Interest, Sweet & Maxwell, 1984, Scotland (Edwards). This was kindly referred to me by Honourable Duncan Colquhoun-Kerr, MHR, Federal Member of Parliament of Australia, Member for Denison, on my request. I most sincerely appreciate and acknowledge his help.
This publication at pages 74 - 75 acknowledges that many countries that have an Attorney General and a Solicitor General have had to deal with challenges to the independence of the Attorney General who is part of the executive government. This is driven by the risk of an inability of the Attorney General to separate his political interest from that of his quasi-judicial roles, which are inherent in his office. The experiences of most countries render scepticism more than not.
This renders what I said in the Aigilo case important in our country because of the high level of corruption in running the affairs of the nation and nothing serious being done practically to eradicate that. Most people in the executive government and the public service appear to be driven more by their personal interest at the expense of the greater interest of the nation. In the Aigilo case, I said, the principle of separation of powers is critically important as it involves Court action requiring only one qualified and experience at law to pass judgements and make representation on behalf of the State both in and out of Court in all Court related proceedings. The person better qualified there in terms of the qualifications for appointment of the Attorney General and the Solicitor General respectively dictate that importance. Whilst the Attorney General need not be experienced to any minimum period of years the Solicitor General is required to have up to a minimum of 5 years experience and he is therefore better qualified to represent the State in Court.
The views I had expressed in the Aigilo case are now fortified, by the comments of the learned author at page 391 in the context of the New Zealand position in these words:
"To appreciated the special relationship that exists in New Zealand between the Solicitor General and his ministerial superior, the Attorney General, it is essential to recognise at once that, in practical terms, it is the Solicitor General, the junior Law Officer, who is the chief legal adviser to the government. As such, he presides over the Crown Law Office, which is an independent department of the public service separate from the Department of Justice. The legal work of government, including the provision of opinions and advice on the widest range of governmental activities, is done by the legal staff of the Crown Law Office. Litigation, including prosecutions, in the lower courts is conducted by the Crown Solicitor for the districts concerned but other cases brought before the Supreme Court and the Court of Appeal, and appearances before commissions of inquiry or other tribunals, are generally handled by counsel from the Crown Law Office led, if the subject matter is of considerable importance, the Solicitor General himself. Only very rarely will the Attorney General appear as chief advocate for the Crown or the government."
Earlier on at pages 370 - 371, the learned author speaks in similar terms in the context of the Australian Commonwealth Acts, No. 91 of 1964 in these terms:
"The Solicitor General, who henceforth was to be appointed from among counsel practicing at the Bar, was formally designated as the second Law Officer of the Commonwealth with primary responsibility to appear as chief counsel for the Crown and on behalf of the Commonwealth in litigation, as well as furnishing opinions on questions of law referred to him by the Attorney General."
The learned author then at page 373, takes a comparative look at the various states in Australia and observes that: "In terms of legal expertise and judgement the burden rests on the shoulders of the Solicitor General, a non-political office." The learned author goes on to observe that in Victoria and New South Wales, eligibility to the Solicitor General’s position is restricted to members of the bar holding the rank of Queens Counsel, itself an appointment subject to the recommendation of the Chief Justice.
When this is viewed in the context of the PNG position, two similarities clearly appear. The first, is the qualification for appointment of the Attorney General and the Solicitor General though not exactly the same. The Solicitor General is by specific legislative provision required to be a lawyer of good practical experience and of good long standing at the bar. The legal qualification for the office of the Attorney General is not the same apart from being an admitted lawyer in some jurisdictions. He is in most cases a political head advising the executive government.
The second similarity is that the Solicitor General is the chief legal adviser and counsel for the State. He is the legal expert for the State on whose shoulder rests the duty to pass judgement on all legal issues affecting the State. He is the person in charge of the Solicitor General’s office, which is the equivalent of a Crown Law Office, consisting of a team of lawyers and in very important cases he personally has carriage of the matter.
The AG’s Act in Papua New Guinea was enacted in 1989. Parliament was therefore aware of the experiences relative to the office of the Attorney General and the Solicitor General in other jurisdictions. It hence, as I said in the Aigilo case, made no mistake in creating the two different offices. This is apparent from the wording for example in s.13 of the AG’s Act. That provision once again reads:
"13. Function of Solicitor – General
(1) The primary function of the Solicitor General is to appear as an advocate for the State in matters coming before the courts in Papua New Guinea.
(2) In the exercise of his functions under ss.(1) the Solicitor General shall accept instructions only from the Attorney General."
("Emphasis supplied")
As already noted and stated in the Aigilo case, the word "primary" as used in subsection (1) signifies the legislature’s intent:
"... that all litigation for and on behalf of the State before the courts should start with the Solicitor General. He is the principle lawyer for the State and the first in responsibility or is the first point of call in all litigation matters before the courts in the country."
On further consideration, the use of the word "advocate" in that subsection further strengthens that view. According to A.S. Hornby, Oxford Advance Learner’s Dictionary of Current English, Oxford University Press, 1986, the term "advocate" has two meanings. The first is the ordinary English language word to mean "a person who speaks in favour of somebody or something" while the second is in the legal sense to mean "a person who speaks in favour of somebody or something professionally in a Court of law." Given the provisions of s.13 (1) and the qualifications for appointment of the Solicitor General, there could be no argument that Parliament deliberately used the word "advocate". This was done in my view to show that, the person who is qualified to represent the State in all matters going before the Courts or likely to go before the Courts is the Solicitor General.
The combined effect of the words "primary" as interpreted in the Aigilo case and "advocate" as here noted is clearly this. The Solicitor General is the first person legally and professionally qualified to represent the State in all matters affecting the State and are before or are likely to end up in any Court in the country. Proceeding then on the well accepted principle that Parliament cannot make a mistake, I am of the view that, it did not intend to create a conflict between the intent and purpose behind the AG’s Act by enacting s.4 of the CBASA. Instead it was fully aware of what it had already provided for in AG’s Act and intended that s.4 would be consistent with that intent and purpose. In other words I am of the view that Parliament saw no difficulty in s.4 of the CBASA being harmonized with the intent and purpose behind the AG’s Act.
The intended harmony between the two in my view is also clear. Whilst, the Attorney General may appear to have a right or power of action under s.4 of the CBASA he has to exercise that power through the Solicitor General, who is the person authorised to be in Court on behalf of the State. The situation is akin to a "solicitor" and a "barrister" with the former performing only an advisory role while the latter appears in Court actions on behalf of a client in Court. The Attorney General is the chief solicitor to the State through the NEC and while the Solicitor General is the chief barrister for the State. For a proper governance and representation of the interest of the State which includes the consideration not to involve the State in unnecessary costs, the Attorney General is not at liberty to brief out to other lawyers to the exclusion and independent of the Solicitor General’s involvement. For the Solicitor General (barrister) is the only person entitled to received the necessary instructions from the Attorney General (solicitor) and where necessary and in appropriate cases to take out proceedings on behalf of the State.
This makes sense when considering the fact that there is no distinction between an Attorney General who is a politician and one that is a civilian when it comes to the powers and functions of the Attorney General and the exercise of them. It is widely accepted if not by law, at least by the general perception of society that a politician cannot conduct a Court case on behalf of the State. This is particularly so when they already have a Solicitor General with his team of lawyers who are better qualified and devoted to doing that job. That is in turn, consistent with the principle of the separation of powers between the executive government and the civil service or between politics and administration, which is necessary in any good democracy such as ours.
Indeed, it would be inconceivable in the present circumstances of the country for a politician to appear in a Court and argue a case for an on behalf of the State. The present circumstances of the country is one where there is an high level of abuse and corruption of power and privileges vested in politicians and senior bureaucrats, quite apart from the level of competence and experience required. More fundamental then that is the fact that Parliament had the advantage of learning and bearing in mind the experiences of the other countries at the time of enacting both the AG’s Act and later, the CBASA. So if it wanted the Attorney General to represent the State in any litigation it could have specifically provided for it in the CBASA but it did not.
There would of course be cases in which the Solicitor General could not discharge his responsibilities for the kind of reasons I mentioned in the Aigilo case. As I said in that case, Parliament foresaw this situation also and deliberately used the word "primary" in s. 13 (1) of the AG’s Act to signify that another person may have the secondary responsibility. But only if the Solicitor General who has the "primary" responsibility is not able to perform his tasks. This could be by way of a brief out. Parliament for a very good reason decided not to empower the Solicitor General to do brief outs. Instead, it vested that power in the Attorney General under s. 7 (i) of the AG’s Act.
The very good reason for that, in my view, was to avoid a ready resort to brief outs by the Solicitor General. If he was allowed to do that readily, that could defeat the purpose of creating the office of the Solicitor General, which is to represent the State in all litigation matters affecting the State. It would also open the floodgate to the State incurring expensive legal costs. Thus, Parliament decided to vest that power in the Attorney General to ensure that only matters not within the means and ability of the Solicitor General got briefed-out to lawyers other than the Solicitor General in accordance with the stated policies, if any, of the executive government which are consistent with the intent and purpose of the AG’s Act. In so doing, Parliament in my view, decided to create a means of check and balance on the need and a decision for a brief-out.
Logically, therefore the process as I said in the Aigilo case, has to start with the Solicitor General making a recommendation for a brief-out in a particular matter. This is in tune with the principle of separation of powers and to avoid possible cases of conflicts of interest, conflicts in legal view points and representation on behalf of the State as was the case in the Aigilo case, and even the proceedings preceding these proceedings.
I found in the Aigilo case, that the established practice was that, all brief-outs commenced with a recommendation from the Solicitor General. The Attorney General because of the provisions of s.13 (1) of the AG’s Act has not assumed any powers to independently brief any other lawyer. The brief-out in that case was one of the few in recent times in which the Attorney General had chosen to brief out on his own initiative. Hence, the cause for the preliminary issue raised in that case. I also found that the practice that has been established was consistent with the intent and purposes of the AG’s Act. I therefore suggested that both the Attorney General and the Solicitor General should endeavour at all times to maintain and follow that.
I then went on to say that, that accorded:
"Well with the scheme of AG’s Act and provided for a check and balance in the exercise of the respective powers and functions of the AG and the Solicitor General. It also keeps in tack the demarcation between politics and a fair administration of the affairs of the State without any fear or favour. If the position was otherwise then, this would be open for abuse and corruption of the system provided for by Parliament ... The AG would usurp the powers and functions of the Solicitor General, given the current inclination of people in influential positions in Government and statutory corporations almost readily going at will to enter into contracts and brief-out to very expensive law firms much to substantial losses to the State and the people.
...
It is this kind of conduct the legislative intended to protect through the AG’s Act and the provisions under consideration."
Further, I said:
"The powers vested in the AG under s.7 (1) in particular and the AG’s Act generally as well as the Constitution and any other law is not absolute. They have to be exercised for and in the best interest of the State. They are subject to important legislations like the Public Finance Management Act. Just because the AG has the power to instruct other lawyers by virtue of s.7 (1) of the Act, it does not follow that he has the right, the power or the authority to go around and instruct other lawyers. He must first be satisfied that the Solicitor General is unable to fully render the required service. He can only arrive at that decision on the basis of a submission to that effect to him from the Solicitor General. Unless there is a request for a brief out on good basis, such as lack of expertise or matters surpassing the abilities of the Solicitor General, the AG in my view has no power to instruct other lawyers on any litigation matter because the Solicitor General has the primary responsibility over them."
In the present case, counsel for the Attorney General does not argue as to where and how the law is misinterpreted in that judgement. He has only referred to the existence of the provisions of s.4 of the CBASA and s.7 (i) of the AG’s Act and placed emphasis on the use of the word "instruct" and "instructions" in s.13 (2) and (7) (i) respectively. He then argues that the Attorney General does have the power to instruct other lawyers and in the pursuance of those powers he has instructed PKA to represent the State in the claim by MEL and eventually these proceedings. As noted, no Court should be ready and willing to depart from the binding or persuasive effect of previous judgements. Only in a case where a person arguing for a departure first demonstrates a case of the previous judgement clearly misconceiving, misinterpreting or misstating the law and or demonstrates that the circumstances or the needs of the country dictate a departure from the previous judgement can there be a departure.
In the present case, with respect, counsel for the Attorney General has not discharged that onus in any way. I have not been placed with any convincing reason to depart from what I said in the Aigilo case.
This case has however, given me an opportunity to resolve what appears to be a conflict in the statement of the law in the Aigilo case when literally contrasted with the provisions of s.4 of the CBASA. But as I already said, in my view, there is no conflict between s.4 of the CBASA and the judgement in the Aigilo case when one considers the intent and purpose behind the creation of the offices of the Attorney General and the Solicitor General by the AG’s Act. As noted in the Aigilo case and in the course of this judgement, the Solicitor General is the principle lawyer for the State. He is responsible for the day to day conduct of all Court related action by and against the State.
The reasons and way in which that should work and has been working in all cases except in a few instances was as was noted in the Aigilo case and restated here already. I need not repeat them.
Hence for all of the reasons given above, in my view s.4 does not automatically give the Attorney General the power to instruct a lawyer other than the Solicitor General or himself to represent the State when he decides that the State should be a plaintiff. Of course, the decision whether or not to sue a person in the name of the State has to be decided upon by the Attorney General in accordance with s.4 of the CBASA Act. Nevertheless that has be with the endorsement or approval of the NEC under s.149 (4) of the Constitution, as what he does can bind the NEC by reason of him being part of it and by operation of the concept of collective responsibility. Once a decision is made to sue in the name of the State that can only be effected through the State’s chief barrister, the Solicitor General.
There is no evidence of this action being approved or endorsed by the NEC. Also there is no evidence of tenders being called for and PKA being appointed lawyers for the State in accordance with the requirements of the Public Finances (Management) Act 1995. Further and more importantly, there is no evidence of the Solicitor General making a decision in terms of not being able to represent the State. Furthermore, there is no evidence of the Attorney General consulting the chief advocate for the State in two important respects maybe because the Solicitor General is one of the defendants. The first is in respect of advice on the appropriateness or otherwise of the proposal and the basis for the action against the Solicitor General and MEL. The second is in relation to representation of the State in Court in these proceedings. This clearly shows that the proceedings have been brought irregularly and without proper authority.
Since the Solicitor General is named as a defendant in these proceedings it is necessarily to raises the question of whether the Attorney General can sue the Solicitor General? This requires a detailed consideration.
Whether the Attorney General can Sue
The Solicitor General
Both the Attorney General and the Solicitor General represent the State. They are both employees of the State. In my view therefore, one cannot sue the other for any conduct or an error or omission in the pursuance of each other’s respective duties and responsibilities. This is because in reality the State could be suing itself. Both logic and common sense dictate that this cannot happen.
In case, I was wrong in that view, I specifically requested Counsel to draw my attention to a case or an authority allowing an Attorney General to sue his Solicitor General. The onus to meet that request was more on Mr. Kua than his learned friends as he was asserting both in argument and in issuing these proceedings that his client does have the power to sue Mr. Gelu in his official capacity.
Mr. Kua did not refer me to any particular case or provision either in the country or abroad that supports his contention. He has only referred to passages in Halsbury’s Laws of England 4th Ed., Vol. 8 and a publication by Peter Higgs, entitled "Liability of the Crown in Australia, New Zealand and the United Kingdom" Law Book Co. Ltd., (1971) p. 109. But these concern the liability of the Crown (the State). They have nothing to do with an Attorney General suing his Solicitor General for any error or omission or conduct in the course of the latter’s official duties in relation to claims by third parties. They therefore, do not concern court action by the Crown or the State against the Attorney General or a Solicitor General.
Counsel for Mr. Gelu referred to a number of overseas cases. But they too concern the capacity of an Attorney General to act for the State or the Crown based on their respective Constitutions. They are therefore of no assistance.
Clearly, therefore, this action by the Attorney General is unprecedented. In all jurisdictions similar to ours, an Attorney General suing the Solicitor General is neither heard of nor ever contemplated. The experiences in New Zealand and some cases in Australia as noted by Edward (supra) at pp. 367-402 show that the Attorney General and Solicitor General have little or no instance of differences of opinion. This was always the case because of respect for the separation of powers and the professional integrity and independence of the office of Solicitor General. Only in one or two instances there has been a difference in opinion. That was particularly in the case of the Solicitor General either refusing to act on the instructions of the Attorney General or where the Attorney General refuses to authorise proceedings to be issued in the name of the State for good reasons. Where that has occurred, the solicitor general had resigned.
The lack of any Court action against the Solicitor General anywhere in the world in jurisdictions similar to ours, in my view, emphasis its importance, its integrity and professionalism. It also enables the Solicitor General to discharge his duties and responsibilities well and to the best of his abilities without favour and fear of being sued readily.
Hence, if the Parliament in Papua New Guinea wanted to depart from that position so as to enable the Attorney General to sue the Solicitor General over its official conduct that could have been specifically provided for in the AG’s Act or the CBASA. There is no provision in either of these Acts or else where that authorises the Attorney General to sue the Solicitor General. The present action is therefore without legislative or common law authority. I therefore deal with the issue without the aid of any precedent or authority.
Where the Solicitor General is personally implicated, it is within the powers of the Attorney General as the person responsible for the appointment of the Solicitor General to take appropriate action against him both administratively and if need be through the Courts but not as the Solicitor General. Since both the Attorney General and the Solicitor General are officers and employees of the State, they come under the public service machinery. There is provision under that machinery to deal administratively with errors or omissions or misconducts of officers.
As was noted by the Supreme Court in its judgement in Public Officers Superannuation Fund Board v. Sailas Imanakuan (Unreported judgement delivered 09/11/01) SC677, the preference world wide these days is that, people resolve their differences through means other than the Courts. This has become known as alternative dispute resolutions (ADR). This accords well in my view, with the well-established practice of dealing administratively at the first instance with all cases of misconduct by employees in the public service. Then only failing that and as a last resort refer or allow cases to go before the Courts.
It should be of great interest and benefit to the State to endeavour to resolve all claims both by and against it through ADR. This has the proven potential of saving a lot of costs and maintaining good relations and a quick and prompt resolution. Certainly, the last thing any sensible government or a member of that and the public service machinery would want to see is an exposure of the State to costs and an appearance of a disunity or disharmony between its ranks. It would allow for fairness and justice to take its proper cause for those that are affected. These are necessary for the sake of maintaining consistency and coherence in public affairs and administration, which are necessary elements for confidence in the system of government by the masses and people coming to deal with the government.
If the Solicitor General was found through such administrative process, guilty of a serious misconduct, only than should he be allowed to face the full consequence of his conduct according to law. This may include in appropriate cases, both criminal and civil suits against him. By then there would be another person already acting in the position of the Solicitor General. The appropriate actions could then be commenced against the former holder of that office, through the involvement of the new or acting Solicitor General. Where the error, omission or misconduct established against the Solicitor General as resulted in contracts with third parties those could not be affect. This proceeds on the principle of ostensible authority: See Motor Vehicles Insurance (PNG) Trust v. Kulubala Salem [1991] PNGLR 305, except in a clear case of fraud.
It seems these procedures were ignored and a resort to this Court action was readily arrived at without any prior consultation with the office of the chief legal advocate for the State, the Solicitor General. There is no dispute that the Attorney General has not taken any disciplinary steps against Mr. Gelu as the Solicitor General. Mr. Gelu is still in active duty and as such there is no vacancy in that office. He is therefore still the Solicitor General and he is the only person under s.13 of the AG’s Act having the primary duty and responsibility to appear in Court to represent the State unless a proper brief-out as taken place on his recommendation.
These proceedings have been brought without the Solicitor General’s recommendation or involvement for both the initial brief-out to Mr. Kua’s firm and the subsequent issuance of these proceedings. Of course, he could not be consulted and expected to recommend an action against himself in respect of these proceedings. That does not mean that the State is without a remedy. The Solicitor General has two deputies. One or both of them could have been allowed to take charge of these proceedings on behalf of the State. Before that, they could have been asked to consider the case against the Solicitor General and advise whether they would be in a position to act for the State in this matter. They would have then made a decision whether they were able to do that or not. If they were not able act then, they would have recommended a brief-out. Tenders would then have been called for interested lawyers to tender for the job. The deputy Solicitor Generals could then have been allowed to make their inputs as to which lawyer or law firm should act for the State. There is no evidence of any of these happening.
Conclusion
The conclusion from all the foregoing is simply that no convincing reason has been provided in terms of the requirements that must be met for me to depart for my earlier judgement in the Aigilo case as to the powers and functions of the Attorney General and the Solicitor General. Section 4 of the CBASA does not empower the Attorney General to issue proceedings in the name of the State to the exclusion of the State’s chief advocate, the Solicitor General. Instead, it can only be exercised through the office of the Solicitor General, which is the State’s Law Office. Where the Solicitor General himself is implicated, the disciplinary machinery under the Public Service must be fully exhausted before there can be a resort to a Court action. Exhausting the administrative process would enable the State to ascertain whether there is a case against the Solicitor General. If a case is established, than the NEC has to make a deliberate decision whether or not to sue its Solicitor General. If a decision is reached to sue him, then that action can only be taken through the Solicitor General on the instructions of the Attorney General. Since these proceedings have been brought independently of the Solicitor General or its Office, it is irregular and is a case of a usurpation of Solicitor General’s powers and functions. They are therefore null and void.
Merits of the Claim
What I have said so far only affects the capacity of the Attorney General to bring these proceedings against the named defendants. It does not however affect the merits or the demerits of the substantive cause of action. If indeed there was fraud leading to the deed of release which is the subject of these proceedings then, that is a matter that ought to be properly investigated and resolved.
Originally the applicants also sought to dismiss these proceedings for failure to disclose a cause of action for lack of particulars in the allegations against the defendants. Subsequently, all parties have agreed to abandon that part of the application as the plaintiff has agreed to amend the statement of claim to set out the full particulars of the allegations against the defendants. That being the case, it will be premature for me to comment on whether or not a reasonable cause of action is disclosed. But I do say however, that the allegations are serious and if there are any merit, it should be properly investigated and appropriate action taken. In view of that and the fact that this involves substantial amounts of money, I consider it appropriate to exercise the powers vested in me by s.155 (4) of the Constitution. I would therefore order these proceedings to be stayed pending such investigation and consultation between the Attorney General’s and the Solicitor General’s Offices on whether or not to pursue this action.
Since the Solicitor General is implicated, it would be appropriate for the Solicitor General to step aside and allow for the necessary disciplinary process to be instituted right away. Then allow for appropriate investigations to be immediately carried out with a view to determining whether there is in fact a case of fraud against Mr. Gelu and MEL. This is very important because a quick perusal of the allegations against them appears to me to be allegations more in terms of what the Solicitor General and MEL failed to do which sounds well in negligence more than in fraud. This is why it is necessary for a proper reconsideration of this action, this time by the State’s chief advocate, the Solicitor General, in a person other than the incumbent Mr. Gelu. If the investigations do confirm a case of fraud then the State would be at liberty to continue with this action against either or both Mr. Gelu and MEL or only against one of them. That has to happen through the Solicitor General’s Office.
Summary
In summary, I answer each of the questions raised in these proceedings as follows:
Based on the foregoing reasons I order that:
I will reserve arguments on the question of costs particularly as to who should bear the costs of the application in view of the fact
that there is lack of evidence of any consultation between the Solicitor General’s Office and the Attorney General and the
requirements under the Public Finance (Management) Act 1995 appearing not to have been met.
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Lawyers for the Plaintiff: Posman Kua Aisi
Lawyers for the First Defendant: Steven Lawyers
Lawyers for the Second Defendant: Mirupasi Lawyers
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