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Paliwa v Kombul [2008] PGNC 146; N3499 (26 September 2008)

N3499

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 1728 OF 2006

BETWEEN

MALLY PALIWA & 257 OTHERS
Plaintiffs

AND

BILLY KOMBUL
First Defendant

AND

WINNIE HENAO, PROVINCIAL POLICE COMMANDER- WHP
Second Defendant

AND

SAM INGUBA, POLICE COMMISSIONER OF PAPUA NEW GUINEA
Third Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Mount Hagen: Makail, AJ
2008: 26 September
: 11 September

INTERLOCUTORY RULING

CLAIMS AGAINST THE STATE - legal proceedings against the State before the courts - legal representative of the State - Solicitor General - principal advocate for State - to the exclusion of in house lawyers - unless Attorney General briefs out lawyers other than Solicitor General - Attorney General Act 1989 - section 7(i) - advocate defined - important State law office - Attorney General Act 1989 - sections 10,11,12&13 - legal capacity of State - Constitution - section 247 and Claims By & Against the State Act 1996 - section 2 - State sued under the principles of vicarious liability - principles of vicarious liability codified - Wrongs (Miscellaneous) Provisions Act Ch 297 - sections 1& 2.

PRACTICE & PROCEDURE - application for default judgment - clear default - whether there is still discretion to refuse application for default judgment - grounds on which to refuse default judgment discussed - no grounds established - in house lawyer having no authority or standing to represent State, its servants and agents - defence filed by in house lawyer void ab initio - defence struck out - application granted.

Cases cited:
Peter Agilio -v- Sir Mekere Morauta as Prime Minister & The State (No 1) (2001) N2103
The State -v- Zachary Gelu & Anor (2003) SC716
Simon Mali -v- The State (2002) SC690
Application by Rodney Rakun (2005) N2901
Vincent Kerry -v- The State (2007) N3127
Bela Kitipa -v- Vincent Uali & 3 Ors (1998) N1773
Kante Mininga -v- The State & Dr Scotty Maclfish (1996) N1458

Counsel:
Mr K. Sino, for the Plaintiff
No appearance, for 1st, 2nd & 3rd Defendants
Mr M. Nandape, for 4th Defendant

26 September, 2008

1. MAKAIL AJ: In this case, the Plaintiffs are villagers from Baiyer River of the Western Highlands Province who are suing the Defendants for damages suffered as a result of alleged negligent actions of the First, Second and Third Defendants when these Defendants failed to prevent or stop a tribal fight between the Plaintiffs and an enemy tribe which resulted in the enemy tribe destroying properties and livestock of the Plaintiffs on 16 June 2005.

2. I pause here to observe that, this is I think the second time I have come across a claim of this nature at the Mt Hagen National Court where it is alleged that members of the Police and the State were negligent in the discharge of their duties, in that they failed to prevent or stop a tribal fight between two warring tribes and as a result the enemy tribe destroyed properties and livestock of the Plaintiffs. The question is, should the police and the State be held liable for the unlawful actions of an enemy tribe like in this case? I cannot answer this question now because it is not before me for determination and so, I will leave it for another time when it arises.

3. Coming back to the issues at hand, the Plaintiffs’ lawyers served the Writ of Summons filed on 29 November 2006 on the Defendants on the following dates:

1. First Defendant on 18 March 2008,

2. Second and Third Defendants on 1 April 2008, and

3. Fourth Defendant on 7 May 2007.

4. Except for the First, Second and Third Defendants, the Fourth Defendant failed to file its defence within the time stipulated under section 9 of the Claims By & Against the State Act 1996 ("CB&AS Act"). Despite this failure, I note from the Court file that on 25 June 2007, the Acting Solicitor General filed a notice of intention to defend on behalf of all the Defendants and subsequently, on 8 May 2008, the Police Legal Officer filed another notice of intention to defend on behalf of the First, Second and Third Defendants.

APPLICATION

6. Although the First, Second and Third Defendants have filed their defence on 27 June 2008, the Plaintiffs seek to strike out their defence and enter judgment against them because they claim that these Defendants filed their defence out of time and did not seek leave of Court to do so. As well as that, they seek default judgment against the Fourth Defendant for its failure to file its defence.

7. On 11 September 2008 when the Plaintiffs application came before me for hearing, I heard brief submissions on the application but directed Mr Sino of counsel for the Plaintiffs and Ms Tindiwi of counsel for the Fourth Defendant to file written submissions on the question of proper legal representation of the Defendants and also for default judgment. I did so after it was discovered that the Police Legal Officer (in house lawyer for the First, Second & Third Defendants) had filed a defence for the First, Second and Third Defendants on 27 June 2008 and not the Acting Solicitor General.

8. This fact raises the issue of whether or not the Police Legal Officer has the authority or standing to file a defence for the First, Second and Third Defendants in legal proceedings where the State is sued as being vicariously liable for the actions and or omissions of its servants and agents like in this case. As I considered it an important issue before I proceed to decide the Plaintiffs’ application for default judgment, I directed both counsel to file and serve their respective written submissions on the issue of legal representation of the Defendants and also the application for default judgment by or before Friday 19 September 2008 and reserved my ruling until 26 September 2008.

9. Mr Sino and Mr Nandape in place of Ms Tindiwi belatedly complied with this direction and I did take their respective submissions into account in my deliberations and this is my ruling.

LEGAL REPRESENTATION OF THE DEFENDANTS

10. The first issue that I raised with counsel is; who has the authority or standing to represent the interest of the Defendants in this legal proceeding? Is it the Solicitor General or the Police Legal Officer?

11. I raised this question because from the Court file, the Police Legal Officer did file a defence for the First, Second and Third Defendants although it was filed out of time and without leave of the Court. On the other hand, the Acting Solicitor General did not file a defence for the Fourth Defendant.

12. In this case, it is not disputed that the Fourth Defendant is sued as being vicariously liable for the actions and or omissions of its servants and agents. The Plaintiffs allege that the First, Second and Third Defendants are servants and agents of the Fourth Defendant, they being members of the Police Force. It is also not disputed that in any legal proceeding where the State is sued for the actions and or omissions of its servants and agents, unless expressly stated otherwise the Solicitor General is always the lawyer on record representing the interest of the State. The problem arises or it becomes an issue where a lawyer other than the Solicitor General is put on record as lawyer representing either the interest of other Defendants being servants and agents of the State including the State or as representing the interest of the servants and agents of the State but not the State. It is the second situation which the Court is faced with today.

13. To answer this question, we need to look at the Attorney General’s Act 1989 ("AG’s Act") to see what it says about the legal representation of the State, its servants and agents.

14. First, section 10 establishes the office of the Solicitor General and it states:

"10. Establishment of Office of Solicitor-General.

(1) The Office of Solicitor-General of Papua New Guinea is hereby established as an office within the National Public Service.

(2) The Office of Solicitor-General shall consist of the Solicitor-General and such number of Assistant Solicitors-General as the Attorney-General considers necessary, together with other staff who shall be officers of the National Public Service".

15. This provision is very clear and it states that the office of the Solicitor General is established as an office within the Public Service and shall have a Solicitor General and a number of Assistant Solicitor Generals and other staff and they shall all be members of the National Public Service.

16. And section 11 provides for the appointment of the Solicitor General who is appointed by the Attorney General by notice in the National Gazette. His appointment is for a period not exceeding three years. It is in the following terms:

"11. Appointment of Solicitor-General.

(1) The Solicitor-General shall be appointed by the Attorney-General by notice in the National Gazette.

(2) The Solicitor-General shall be appointed for a period not exceeding three years".

17. Section 12 makes it a requirement for appointment to the position of Solicitor General that, first one must be a lawyer who is fully admitted to practice under the Lawyers Act 1986 and secondly, must have practiced for a period of at least 5 years prior to the appointment. It states as follows:

"12. Qualifications for appointment as Solicitor-General.

No person is eligible to be appointed as Solicitor-General unless he is a lawyer fully admitted to practise in accordance with the Lawyers Act 1986, who has practised as a lawyer within the country for a period of at least five years prior to his appointment as Solicitor-General".

18. I will return to discuss these provisions in more detail later on but for now, I think the important and relevant provision to the issue at hand is section 13. It states:

"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 function under Subsection (1), the Solicitor-General shall accept instructions only from the Attorney-General". (Underlining is mine).

19. Subsection 1 of section 13 makes it very clear that 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. I interpret this to mean that if the State is a party in any legal proceedings before the Courts, be it the Local Court, District Court, National Court or the Supreme Court in civil matters, it is the Solicitor General who is to appear for the State. This is because it is the primary function of the Solicitor General to appear as the advocate for the State.

20. Please note with me that the word "advocate" is used in section 13(1) of the AG’s Act and not words like "lawyer" or "counsel". I do not think it is a mistake by the draftsman to use the word "advocate" instead of "lawyer" or "counsel" in this provision. To my mind, there is one fundamental reason for using the word "advocate" which I will give shortly but first the plain English definition of the word "advocate" is defined by the Concise Oxford Dictionary, University Press 5th ed (1964) at page 20, as "one who pleads for another; one who speaks on behalf of; or Plead for, defend, recommend publicly".

21. For me, I’d like to say that an advocate is a person who speaks out or on behalf of a group of people on a subject matter or topic. He is really a "spokesman" of the group he represents.

22. Now coming back to the reason for the use of the word "advocate", and bearing in mind the definition of "advocate", it is my opinion that in the legal context, only advocates appear in Court because the role of an advocate is to plead for another, speaks on behalf of or defend the parties they represent in Court. Advocates are the spokesmen of the parties in legal proceedings before the Court.

23. This distinction is not so obvious in our jurisdiction for the obvious reason that, we have a fussed bar where lawyers, upon their admission to practice law in Papua New Guinea are both barristers and solicitors. However, this distinction or separation is clearly seen in countries like Australia and New Zealand where they have a separate bar for barristers and solicitors. The barristers are the advocates because they are the ones that go to Court and plead or speak on behalf of or defend litigants in legal proceedings before the Courts.

24. And so, to my mind, in that context, the primary role of the Solicitor General is to act as an advocate for the State in matters coming before the courts in Papua New Guinea. He is the spokesman for the State in any legal proceedings before the Court where the State, its servant and agents are parties. This is the primary role of the Solicitor General. Of course, there are other functions and duties of the Solicitor General like for example, giving a legal opinion on the prospect of success or otherwise of a case pending before the Court to the Attorney General and client departments. (Underlining is mine).

25. Furthermore, I am of the view that it is the Solicitor General who is the advocate for the State in matters coming before the Courts because this is his primary responsibility. It is his primary responsibility to the exclusion of the other lawyers. Now speaking of primary role or responsibility, His Honour Kandakasi J, in Peter Aigilo -v- Sir Mekere Morauta as Prime Minister & The State (No 1) (2001) N2103 defined the word "primary" in the context of section 13 of the AG’s Act as follows:

"In my view, the use of the word "primary" in subsection (1) is very important. The Oxford Advanced Dictionary of Current English, defines the word to mean "leading in time, order or development". The word has not been considered in any judgment in Papua New Guinea from my search of the reported and numbered judgments to date. Going by the ordinary meaning of the word, I am of the view that, the legislature intended by the use of that word that all litigation, be it in defence of the State or proceeding for and on behalf of the State, before the courts should start with the Solicitor General. He is the principal 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. This is why in my view, the setting out of the functions and powers of the AG in sections 7 and 8 of the AG's Act does not include any thing in particular to do with litigation. The use of the word "primary" in my view also signifies that another person may have the secondary responsibility only if the Solicitor General who has the primary responsibility is not able to perform his tasks for whatever reason.....".

26. His Honour defined the word "primary" in the context of whether or not the Solicitor General had the authority to settle any claims against the State without the consent or approval of the Attorney General. There, His Honour after considering the provisions of the AG’s Act and the powers and functions of the Attorney General and also the Solicitor General found that first, the Attorney General had no power of direction or control over the exercise of the Solicitor General’s power under the AGs’ Act and secondly, the Solicitor General has the primary responsibility over the conduct of all litigation in all claims by and against the State.

27. In this case, the issue is who is the legal representative of the State in legal proceedings coming before the Courts where the State is a party? I think after all the differing views amongst the judges as to whether or not the Attorney General had power or control over the Solicitor General in the exercise of his powers after the decision of Peter Aigilo (supra) in 2001, the Supreme Court in The State -v- Zachary Gelu (2003) SC 716 in 2003 eventually settled this issue where it said that the Attorney General has the overriding power or authority to represent the interest of the State in litigation matters.

28. There, the Supreme Court said in practice, where the State is a party in any litigation before the Courts, the Solicitor General may act as an advocate if instructed to do so by the Attorney General in accordance with section 13(2) of the AG’s Act. Where the Solicitor General is instructed, he must act in accordance with the instructions of the Attorney General such as to settle or not to settle a matter.

29. Earlier on in Peter Aigilo’s case (supra), Kandakasi J, was asked to determine two issues. The first issue was, to what extent can the Attorney General direct and control the Solicitor General in the performance of his statutory functions and duties prescribed by section 13(1) of the AG's Act? Secondly does the Attorney General have any independent or overriding power over the performance of the powers, duties and or responsibilities of the Solicitor General?

30. His Honour held inter alia that apart from section 7(i) of the AG's Act, there is no power in the Attorney General to either control or direct or even have a say in the conduct of any litigation for and on behalf of the State. Further, His Honour was of the view that where the Attorney General is providing legal advice, it is not the same as conducting litigation or appearing as an advocate for the State. Moreover, His Honour found that the Solicitor General had the primary responsibility over the conduct of all litigation in all claims by and against the State. That included the right to comment on any brief outs or the instructing of another lawyer under section 7(i) of the AG’s Act.

31. In Simon Mali -v- The State (2003) SC 690, the Supreme Court made a similar ruling to that in Peter Aigilo’s case (supra). The Supreme Court said:

"We accept the respondent State’s submission that the Attorney-General has no power (or responsibility) over the superintendence, control and direction over all the matters of litigation brought against the State. This power is vested in the Solicitor-General pursuant to s.13 Attorney-General’s Act, 1989...........

The decision whether or not a certain litigation should be settled out of Court is a professional decision of an advocate involved in that litigation. It certainly is not a decision intended to be made by someone in the exercise of an executive or political power or function. The point is emphasized when the position of an Attorney-General who is both a parliamentarian and a member of the executive government is appreciated. Such an Attorney-General would not have, has not the legislative and professional, capacity to make such a decision.

In this case, the Office of the Solicitor-General had the carriage of the State’s defence to the claim. The Attorney-General had no power to settle the claim as he did."

32. But as I said earlier, in 2003, the Supreme Court in Zachary Gelu’s case (supra), overruled the Peter Aigilo’s case (supra) and decided not to follow Simon Mali’s case (supra). The Supreme Court said:

"We have considered the decision in Peter Aigilo -v- Sir Mekere Morauta & Others (Aigilo Case) (Unreported Judgment of the National Court dated 15th June 2001, N2102 in the light of the provisions, we have examined of (sic) AG Act 1989 and CBAS Act 1996, we conclude that Aigilo case was wrongly decided and therefore should not be followed. Counsel for the Appellant urged the trial Judge to depart from his previous decision on the basis of the clear provisions of AG Act and CBAS Act but rejected these submissions and followed his own decision in Aigilo Case. In so doing, he fell into error."

33. The Supreme Court decided not to follow Simon Mali’s case (supra) on the basis that the relevant provisions of the AG’s Act and the CB&AS Act were not considered. I consider that the observation of the Supreme Court in Simon Mali’s case (supra) is obiter dictum only in that the issue in that case was whether or not a consent order may be set aside. The Supreme Court held that a consent order may be set aside for fraud, mistake or procedural irregularity.

34. In the decision of the Supreme Court in Zachary Gelu’s case (supra), it first observed that the Attorney General is given power to instruct any lawyer to act for the State under section 7(i) of the AG’s Act. This power is to be read together with the provisions relating to the functions of Solicitor General under section 13 of the AG’s Act which provides that 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 and in the exercise of his function under Subsection (1), the Solicitor General shall accept instructions only from the Attorney General.

35. Secondly, section 13 indicates the nature and the scope of the functions of Solicitor General. His main function is to "appear as an advocate for the State in matters before the courts." This is a specific and limited function. In exercising this function, Solicitor General shall accept instructions from the Attorney General under section 13(2) of the AG’s Act. In practice, where the State is a party in any litigation before the Courts, the Solicitor General may act as an advocate if instructed to do so by the Attorney General in accordance with section 13(2) of AG’s Act. Where the Solicitor General is instructed, he must act in accordance with the instructions of the Attorney General, such as to settle or not to settle a matter.

36. I consider that the dissenting decision of the Supreme Court in Zachary Gelu’s case (supra) from the decision of the National Court of Peter Aigilo (supra) and the Supreme Court decision of Simon Mali (supra) did not decide the issue of "principal advocate" of the State under section 13(1) of the AG’s Act. They only decided the issue of whether or not the Attorney General had power and control over the Solicitor General in the discharge of his duties including whether the Solicitor General had power or authority to settle any cases against the State out of Court. As noted earlier, that issue has been settled by the Supreme Court decision of Zachary Gelu, in that, by section 13(2) of the AG’s Act, the Solicitor General, in the discharge of his duties shall only receive instructions from the Attorney General in any litigation matters coming before the Courts. That includes settling any cases against the State out of Court.

37. In this case before me, I am deciding the issue of the "principal advocate" of the State. This is where I reject the submissions of Mr Nandape of counsel for the Fourth Defendant that section 9 of the AG’s Act gives the Attorney General the power or authority to delegate in writing his powers or functions to the Police Legal Officer to appear for the State in any legal proceeding where the State is a party. That is not what that provision says. What it does say is that the Attorney General may delegate his powers or functions in writing to another person to perform on his behalf. The delegation of powers or functions does not include delegating his powers or functions to the Police Legal Officer to act for the State.

38. I think what Mr Nandape really wanted to submit is that the Attorney General may brief out any State cases to other lawyers other than the Solicitor General like for example, private lawyers either in the country or overseas, like Australia to represent the interest of the State in legal proceedings coming before the Courts in Papua New Guinea. In that sense, I see no problem with the Attorney General exercising that power or authority as he is vested with that power or authority under section 7(i) of the AG’s Act which states as follows:

"7. Duties, functions and responsibilities of the Attorney-General.

The duties, functions and responsibilities of the Attorney-General are -

(i) to instruct lawyers within or outside the country to appear for the State in any matter; and.....".

39. But it is my opinion that section 7(i) does not include brief outs to in house lawyers of State departments like in this case, the Police Legal Officer to appear for the State in Court. I consider that what should have been the case and should be the case is that the Solicitor General is the advocate for the State to the exclusion of other lawyers unless lawyers other than the Solicitor General are briefed by the Attorney General to represent the interest of the State in any legal proceedings coming before the Courts where the State is a party under section 7(i) of the AG’s Act. But that does not include in house lawyers of State departments. I consider that the role of in house lawyers is confined or restricted to assisting the Solicitor General and his lawyers with proper and adequate briefs and instructions to properly defend any legal proceedings coming before the Courts where the State is a party. It should not be the other way around where in house lawyers run up to Court without notifying the Solicitor General of their appearances and the Solicitor General plays a second fiddle role in legal proceedings before the Courts where the State is a party.

40. For to do so, in my view would not only usurp the primary role of the Solicitor General as an advocate of the State but also demean the office of the Solicitor General which is a statutory office established under section 10 of the AG’s Act. It would also undermine the authority, integrity, reputation and of course the intelligence of the person occupying the position of the Solicitor General because in my opinion, it would be fair to say that the person who occupies that position is deemed to be a qualified lawyer having practiced law for not less than five years before his appointment. See section 12 of the AG’s Act.

I cannot think of a better way to emphasis the importance of the position and role of the Solicitor General than to say that it would be a "slap in the face" of occupant of that position if he is by passed, over looked, or not consulted by in house lawyers before they (in house lawyers) appear in legal proceedings before the Court where the State is a party, especially where the Solicitor General is appointed by the Attorney General. See section 11 of the AG’s Act.

41. In respect of the Police Legal Officer’s appearance for the First, Second and Third Defendants in this case, I cannot find the identical or similar provisions found in the AG’s Act in the Police Act 1998 which gives power or authority to the Commissioner of Police to first, establish an office of the Police Legal Officer, secondly to appoint Police Legal Officers and thirdly, to authorize them to appear as advocates for the Police Force in legal proceedings coming before the Courts.

42. In my view, this case is a classical example of Police Legal Officers assuming the role of the Solicitor General to appear as advocates in legal proceedings before the Courts where the State is a party. As I said, I do not find any identical or similar provisions in the Police Act giving them the mandate to appear as advocates in legal proceedings before the Courts in Papua New Guinea. I know from experience that this kind of practice where in house lawyers from State departments appear in legal proceedings coming before the Courts where the State is a party emerged during the early to mid 2000’s.

43. In my time as a lawyer in the office of the Solicitor General, this practice was unheard of or non existent. In house lawyers only assisted the Solicitor General and his lawyers with briefs and appropriate instructions to appear in cases where officers of the State and State departments are parties and it was the Solicitor General or his lawyers who appeared before the Courts in these cases. If in house lawyers wished, they tagged along to Court with the Solicitor General or one of his lawyers but they played a junior counsel’s role or an observer status role. The briefs and instructions from the in house lawyers were channelled through the office of the Attorney General who instructs the Solicitor General to appear for the State in Court in accordance with section 13(2) of the AG’s Act.

44. Thus, I do not find the case of the Application by Rodney Rakun (2005) N2901 which Mr Sino of counsel for the Plaintiffs refers, relevant to this case as it refers only to the power of the Attorney General to appeal any decision of the District Court relating to prosecutions under the Fisheries Act 1998. In that case, a fisheries officer laid information in the District Court against illegal fishermen. The information was struck out. As the Applicant was out of time to appeal, he applied for extension of time to appeal that decision to the National Court.

45. One of the issues raised at the hearing of the application for extension of time was whether or not the fisheries officer had the standing to appeal the decision to the National Court. Relying on section 219(3) of the District Courts Act, His Honour Injia DCJ held that the fisheries officer did not have standing to appeal the decision to the National Court. It is only the Attorney General who may appeal the decision of the District Court in striking out the information and that is only by leave of the National Court.

46. As for Mr Nandape, in his written submissions, he gives two reasons for this practice of involving or permitting in house lawyers to appear for servants and agents of the State in legal proceedings coming before the Courts. The first one is that, due to the overwhelming work load or increase in the volume of work and secondly the scarcity of lawyers within the office of the Solicitor General to attend to the State cases.

47. To my mind, these two reasons are not only without legal foundation but also lame excuses. There is simply no legal basis under section 13 of the AG’s Act for in house lawyers like in this case, the Police Legal Officer to take over and perform the role of the Solicitor General by appearing in legal proceedings where the State is a party. Conversely, I can find no legal basis for the Solicitor General to "delegate" or authorize the in house lawyers to represent the interest of the State, its servants and agents in any legal proceedings before the Courts.

48. Out of all the law offices in the country, I think that apart from their constitutional significance, (section 176 of the Constitution) the office of Solicitor General is equally as important as the office of the Public Prosecutor and the office of the Public Solicitor. This is because the Solicitor General is more often than not the person tasked to defend civil suits brought against the State. They range from tortuous actions to breach of contract, judicial review and constitutional cases, to mention a few but this is not an exhaustive list.

49. There is no doubt in my mind that the office of the Solicitor General is a very important law office. It deserves the highest praise and respect from everyone including politicians, bureaucrats, lawyers and the public. For those in house lawyers who think that they have the audacity or authority to by pass this important office and appear as advocates in legal proceedings where the State is a party, let me remind you all that it is the Solicitor General who is the authorized principal advocate of the State. For the politicians and bureaucrats responsible for government agency funding, I urge and admonish you all to seriously re look at this very important but most neglected office for funding, staffing and logistical support for the betterment of this office.

50. I make these observations with sadness because this important office had been neglected for far too long by the National Government, past and present. It is common knowledge that the volume of claims by and against the State has increased over the years and is still increasing day by day. It is also common knowledge that there are only a handful of lawyers employed in this office to attend to the ever increasing work load. I suppose the National Government is simply being ignorant of the situation facing this office or just being indecisive and disinterested. As a result, lawyers are working under constant pressure, are demoralized and have low self confidence. This is reflected in the way they conduct cases coming before the Courts. It is no wonder, there are so many cases against the State that go undefended and even if defended, not properly defended resulting in substantial monetary judgments against it.

51. To my mind, the reasons which Mr Nandape advances that first, due to the overwhelming work load or increase in the volume of work and secondly the scarcity of lawyers within the office of the Solicitor General to attend to the State cases which has led to in house lawyers taking over and performing the role of the Solicitor General by appearing in legal proceedings where the State is a party clearly demonstrates the indecisiveness of those in authority to ensure that this office is properly functioning.

52. I think the observations I make become very important and crucial at this time especially where there is an urgent need to extend its office from Waigani to the other centers in the country and build its man power capacity to meet the demands of the Courts, in particular the National Court where there are resident judges like here in Mt Hagen or Lae and Kokopo to properly and adequately attend to State cases.

53. Having said all these, it is my opinion that the Solicitor General is the principal advocate of the State and so this means that, any in house lawyers like in this case, the Police Legal Officer have no authority or standing (locus standi) to represent the State. It is the principal or primary responsibility of the Solicitor General. The finding I make extends to and applies to any other in house lawyers of other State departments. But I do not think it applies to State owned corporations, companies and perhaps the Provincial Governments which are separate legal entities under their respective legislations, thus have the capacity to sue and be sued in their own name and style.

54. So where does all these discussions lead us to in so far as the defence of the First, Second and Third Defendants is concerned? In other words, as I have found that the Police Legal Officer has no authority or standing to represent the State, does that mean that he also does not have the authority or standing to represent the First, Second and Third Defendants in legal proceedings before the Courts where servants and agents of the State and the State are parties including the filing of defence for them? If I find so, what is the effect of the defence filed by the Police Legal Officer on behalf of the First, Second and Third Defendants in this legal proceeding? Is it void or is it valid and should be allowed to stand?

55. Mr Sino of counsel for the Plaintiffs strongly submits that if the Court finds that the Police Legal Officer has no authority or standing to represent all the Defendants in this legal proceeding, then the natural consequence is that the defence filed by the Police Legal Officer on behalf of these Defendants is void ab initio. It ought to be struck out and default judgment should be entered against the First, Second and Third Defendants.

56. On the hand, Mr Nandape did not specifically address me on this issue but generally submits that the Court exercise its discretion by invoking its powers under section 155(4) of the Constitution to allow the defence of the First, Second and Third Defendants to stand and the Fourth Defendant be allowed to adopt it as its defence for purposes of this legal proceeding.

57. This leads me to the next point which is the issue of vicarious liability of the State. There is no dispute that the State has the legal capacity to sue and be sued. This capacity to sue and be sued is provided for under section 247 of the Constitution which states that:

"247. Legal capacity of the Independent State of Papua New Guinea.

(1) Papua New Guinea has power to acquire, hold and dispose of property of any kind, and to make contracts, in accordance with an Act of the Parliament.

(2) Papua New Guinea may sue and be sued, in accordance with an Act of the Parliament".

58. The law and procedures to sue in the name of the State or to sue the State are provided under the AG’s Act and the CB&AS Act.

59. In Papua New Guinea, the Parliament legislated the common law principles of vicarious liability through an Act of Parliament called the Wrongs (Miscellaneous) Provisions Act Ch 297 (WMP Act). Section 1 states:

"1. General liability of the State in tort

(1) Subject to this Division, the State is subject to all liabilities in tort to which, if it were a private person of full age and capacity, it would be subject -

(a) in respect of torts committed by its servants and agents; and

(b) in respect of any breach of the duties that a person owes to his servants or agents under the underlying law by reason of being their employer; and

(c) in respect of any breach of the duties attaching under the underlying law to the ownership, occupation, possession or control of property.

(2) Proceedings do not lie against the State by virtue of Subsection (1)(a) in respect of an act or omission of a servant or agent of the State unless the act or omission would, apart from this Division, have given rise to a cause of action in tort against the servant or agent or his estate.

(3) Where the State is bound by a statutory duty that is binding also on persons other than the State and its officers, then, subject to this Division, the State is, in respect of a failure to comply with that duty, subject to all liabilities in tort (if any) to which it would be subject if it were a private person of full age and capacity.

(4) Where functions are conferred or imposed on an officer of the State as such either by a rule of the underlying law or by statute, and the officer commits a tort while performing or purporting to perform the functions, the liabilities of the State in respect of the tort are such as they would have been if the functions had been conferred or imposed solely by virtue of instructions lawfully given by the Government.

(5) An Act or subordinate enactment that negatives or limits the amount of the liability of a Department of the Government or officer of the State in respect of a tort committed by the Department or officer applies, in the case of proceedings against the State under this section in respect of a tort committed by the Department or officer, in relation to the State as it would have applied in relation to the Department or officer if the proceedings against the State had been proceedings against the Department or officer.

(6) Proceedings do not lie against the State by virtue of this section in respect of anything done or omitted to be done by a person while discharging or purporting to discharge responsibilities of a judicial nature vested in him, or responsibilities that he has in connection with the execution of judicial process".

69. Sections 1(1)(a) & 2 are relevant for our purposes. What they are simply saying is that, even though the State is a big entity, it can still be held liable for the actions and or omissions of its servants and agents just like any individual person. But this liability of the State for the actions and or omissions of its servants and agents arises only in cases where the actions and or omissions give rise to a cause of action in tort just like in cases where it is a cause of action in tort against the servants or agents or the estate of the servants or agents.

As His Honour Cannings J said in Vincent Kerry -v- The State (2007) N3127:

"Vicarious liability is a common law principle by which one legal person (such as the State) is held liable for the acts or omissions of another person or group of persons over whom the first person has control or responsibility. The principles of vicarious liability have been codified by Section 1 (general liability of the State in tort) of the Wrongs (Miscellaneous Provisions) Act".

70. I consider that because of the principles of vicarious liability, generally the State will be liable for the actions and or omissions of its servants and agents if the Court finds their actions and or omissions wrongful or negligent. To establish vicarious liability of the State, the Plaintiffs must prove the following:

(a) the perpetrator of the tort is a servant or agent of the State.

(b) the particular act or omission would have given rise to a cause of action in tort against the servant or agent.

(c) the tort was committed by the servant or agent in the course of his employment.

71. In this case, it is not disputed that the Plaintiffs plead in their Statement of Claim that the First, Second and Third Defendants are servants and agents of the Fourth Defendant. The Plaintiffs allege that these Defendants are members of the Police Force. By their failure to prevent or stop a tribal fight between the Plaintiffs and an enemy tribe, the enemy tribe destroyed the Plaintiffs’ properties and livestock. The Plaintiffs further allege that the Fourth Defendant is vicariously liable for the actions and or omissions of First, Second and Third Defendants. Thus, this is in essence the claim of the Plaintiffs against the Defendants.

72. I consider that whether or not the Plaintiffs will establish their claim that the First, Second and Third Defendants are first servants and agents of the Fourth Defendant, secondly that they failed to discharge their duties and finally were acting in the course of their employment at the material time are matters for trial. For now, what is of importance and relevance is that, the Plaintiffs are suing the First, Second and Third Defendants in their capacity as servants and agents of the Fourth Defendant.

73. Proceeding on that premise, it is my opinion that in order for the Fourth Defendant to be held liable for damages for the actions and or omissions of the First, Second and Third Defendants, it must first be established that the First, Second and Third Defendants are servants and agents of the Fourth Defendants, secondly they failed to discharge their duties and finally, that their failure to discharge their duties occurred during the course of their employment.

74. What all these discussions mean is that, the Fourth Defendant is sued in this legal proceeding because of the alleged negligent actions and or omissions of the First, Second and Third Defendants. Without the actions and or omissions of the First, Second and Third Defendants, the Fourth Defendant cannot be held liable at all.

75. It follows that, when it comes to the representation of these Defendants in this legal proceeding, the only authorized person to represent the State and its servants and agents by virtue of the vicarious nature of the relationship, is in my view, the Solicitor General. Thus, there cannot be any room for arguments that the defence filed by Police Legal Officer on behalf of the First, Second and Third Defendants is a valid one. As I said earlier, unless the Attorney General instructs or briefs a lawyer other than in house lawyers, the Solicitor General is the only authorized advocate of the State and further still, based on the vicarious nature of the relationship of the State with its servants and agents, the Solicitor General would be the only authorized advocate for the servants and agents of the State.

76. In the end, I find as a matter of law, that the Police Legal Officer has no authority or standing to file the defence he filed for the First, Second and Third Defendants in this legal proceeding. Consequently, I find that the defence filed by the Police Legal Officer on behalf of these Defendants is void ab initio. I order that it be struck out forthwith. Having struck out the defence of these Defendants on the basis that it is void ab initio, I further order that default judgment be entered against them.

77. Having entered default judgment against these Defendants, this leads me to the last issue and that is, the application for default judgment against the Fourth Defendant.

APPLICATION FOR DEFAULT JUDGMENT

78. I note the Plaintiffs’ application for default judgment filed on 27 June 2008 seeks only to strike out the defence of the First, Second and Third Defendants and enter judgment on the basis that these Defendants did not seek leave of the Court to file their defence out of time. As I have found that the defence of these Defendants is void and have struck it out, and subsequently entered default judgment against them, there is no need for me to decide the Plaintiffs’ application to strike out these Defendants’ defence as being filed out of time.

79. The only matter left for me to decide now is whether or not the Fourth Defendant defaulted in filing its defence. Mr Sino of counsel for the Plaintiffs submits that notwithstanding the fact that the Fourth Defendant had sixty days after the filing of its notice of intention to defend on 25 June 2007, it failed to file its defence within time, which time expired on or around 07 August 2007 after it was served the Writ of Summons on 07 May 2007.

80. I have no difficulty in finding that the Fourth Defendant is in default of filing its defence as the Acting Solicitor General did not file one by or before 7 August 2007. The Fourth Defendant also had the opportunity to file an application for leave to file its defence out of time between 7 August 2007 and 11 September 2008, (date of hearing of this application).

81. In my view, it is a little too late to ask the Court to allow the Fourth Defendant to adopt the defence filed by the Police Legal Officer on behalf of the First, Second and Third Defendants. The situation in which the Defendants are in today would have been avoided in my opinion, if the Police Legal Officer in the first place respected the office of the Solicitor General by forwarding his brief or instructions to the Acting Solicitor General through the office of the Attorney General to prepare a defence for all of these Defendants and have it filed within time.

82. Hence, I reject Mr Nandape’s submission that the Court should exercise its discretion under section 155(4) of the Constitution to allow the defence of the First, Second and Third Defendants to stand and for the Fourth Defendant to adopt it. I find that this is not a case where it warrants the exercise of power under section 155(4) of the Constitution. If only the lawyers had correctly followed the dictates of the AG’s Act, parties would not be in this situation now. In my view, wrong and incorrect legal advice by lawyers is not a ground by which this Court may exercise the powers under section 155(4) of the Constitution like in this case.

83. Likewise, I reject the reasons given by Mr Nandape that he did seek instructions but did not receive them from the First, Second and Third Defendants to file a defence because there is no evidence by way of an Affidavit placed before me to show that he did so and that such instructions did not arrive. I also have no evidence placed before me to suggest that he did contact the Police Legal Officer and asked him for instructions. I am sure that if he did, the Police Legal Officer would have been ready with the information to assist him prepare the defence for the case at hand. Those kinds of information I would imagine were used to prepare the defence of the First, Second and Third Defendants which I have now found to be void for want of authority or standing of the Police Legal Officer.

84. I distinguish the facts of Bela Kitipa -v- Vincent Auali & 3 Ors (1998) N1773, His Honour Injia J, (as he then was) from this case, where His Honour categorized situations where applications for default judgments can be refused. These were;

1. The effect of the default judgment would prejudice the rights of other co-defendants; or

2. The pleadings are so vague or do not disclose a reasonable cause of action; or

3. The default judgment cannot be sustained in law.

85. But I find this case is almost the same as the case of Kante Mininga -v- The State & Dr Scotty Maclfish (1996) N1458, again, a decision by His Honour Injia J, (as he then was) where he refused to enter default judgment against the State after it failed to file its notice of intention to defend and also a defence. His Honour did so because the Second Defendant, (Dr Scotty Maclfish) did file a notice of intention to defend and also a defence. His Honour said that if he were to grant the application for default judgment against the State, it would prejudice Dr Scotty in his defence because he was sued in the capacity of a servant, agent or employee of the State at that time.

86. In this case, I have already found the defence of the First, Second and Third Defendants void and have struck it out. That being the case, in my view, there is simply no defence for these Defendants and so it would not prejudice their rights to defend this legal proceeding if I grant default judgment against the Fourth Defendant.

87. For these reasons, I am satisfied that the Fourth Defendant has defaulted in filing its defence and I so order that default judgment be entered against the Fourth Defendant with damages to be assessed.

ORDERS

I order as follows:

1. The First, Second and Third Defendants’ defence filed on 27 June 2008 is struck out as being void ab initio.

2. Default Judgment is entered against all the Defendants with damages to be assessed.

3. The matter is referred for Directions hearing on Monday 6 October 2008 at 9:30 am.

4. The Defendants shall pay the Plaintiffs’ costs of the application to be taxed of not agreed.

5. Time for entry of these Orders be abridged to the date of settlement by the Registrar which shall take place forthwith.

Sino & Co Lawyers: Lawyers for the Plaintiffs
Police Legal Officer: Lawyers for 1st, 2nd & 3rd Defendants
Acting Solicitor General: Lawyers for 4th Defendant