N6382
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 621 OF 2014

BETWEEN

DR. LAWRENCE KALINOE
SECRETARY, DEPARTMENT OF JUSTICE & ATTORNEY-GENERAL
 Plaintiff
 
AND
DR. PHILIP KEREME
CHAIRMAN, PUBLIC SERVICES COMMISSION
First Defendant

AND
KETI KENOSI
(Second Defendant)

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
	
Waigani: Makail, J
2016: 11th  & 15th August 

PRACTICE & PROCEDURE – Preliminary issue – Legal capacity of Plaintiff – Legal capacity to sue – Claims By & Against the State Act, 1996 – Section 4

PRACTICE & PROCEDURE – Suits on behalf of the State – Legal capacity of the Independent State of Papua New Guinea – Proceedings may be commenced in the name of the State by the Attorney-General – Constitution – Section 247 – Claims By and Against the State Act, 1996 – Section 4

Cases cited:

Papua New Guinea cases	

Francis Damem, Attorney General and Secretary for Justice Department v. Public Service Commission, Zacchery Gelu and Secretary of Department of Personnel Management (2005) N2900
SCR. No. 4 of 1980; Re Petition by MT Somare [1981] PNGLR 265; SC204

Overseas cases	
Attorney-General; ex rel. McWhirter v. Independent Broadcasting Authority [1973] QB 629 
Gourient & Others v. Attorney-General & Union of Post Office Workers [1977] 3All ER 70 

Counsel:

Mr. L. Kandi, for Plaintiff
No appearance, for First and Second Defendants
Ms. I. Mugugia, for Third Defendant

PRELIMINARY RULING 
15th August, 2016

1.	MAKAIL, J:    The preliminary ruling of the Court will decide the fate of the Plaintiff’s application for judicial review.  The review itself is against the decision of the First Defendant to annul the decision of the Plaintiff and reinstate the Second Defendant to her former position in the Department of Justice and Attorney-General with back-dated pay. 
2.	This ruling does not deal with the merits of the application for judicial review but the competency of the proceeding.  The proceeding in which the application for judicial review is being made has gone passed the leave stage, a prerequisite to the hearing of the substantive review under Order 16, rule 3 of the National Court Rules and was listed for trial on 22nd July 2016 when the Court raised the issue of legal capacity of the Plaintiff to bring this proceeding against the Defendants.

3.	Submissions made on behalf of the Plaintiff supported the view that the proceeding was competent because the issue was resolved by the Court when it granted leave to apply for judicial review, this being that the Court was satisfied that the Plaintiff had sufficient interest or locus standi when it granted leave.  This submission was premised on the argument that legal capacity and sufficient interest are expressions having a common meaning, hence can be used interchangeably.

4.	It was emphasized that the Plaintiff had commenced the proceeding in his capacity as the Secretary of the Department of Justice and Attorney-General.  He was aggrieved by the decision of the First Defendant and sought review of the decision, a remedy available under Section 18 of the Public Services (Management) Act, 2014.

5.	As Departmental Head, his responsibilities included, amongst other things, to “administer part of the Public Services (Management) Act 2014, as specifically delegated to him by the Secretary responsible for Public Service matters and, in particular, the provisions relating to recruitment, employment contracts and discipline of officers in the Public Service (section 22(4) of the Public Service (Management) Act 2014)”.

6.	Secondly, Section 4 of the Claims By and Against the State Act, 1996 (“CB&AS Act”) and Section 7 (c) of the Attorney-General Act, 1989 (“A-G Act”) do not operate as a bar to citizens, other than the Attorney-General making an application for judicial review under Order 16 of the National Court Rules.

7.	Reference was made to the English cases of Attorney-General; ex rel. McWhirter v. Independent Broadcasting Authority [1973] QB 629 and Gourient & Others v. Attorney-General & Union of Post Office Workers [1977] 3All ER 70 and the case of SCR. No. 4 of 1980; Re Petition by MT Somare [1981] PNGLR 265; SC204 to make a distinction between private interest suit, the latter requiring an Applicant to establish some sort of interest which is of national or public importance to be granted standing to bring proceedings mostly of a constitutional nature before the Court.
8.	There were submissions made in relation to relator proceedings by the Attorney-General under Section 4 of the CB&AS Act.  It was said that it did not apply in this case as the decision of the First Defendant concerned a personal matter involving an officer in the Department which fell within the duties and responsibilities of the Plaintiff.  

9.	In any event, it would be unprecedented for the Attorney-General himself to bring proceedings of this nature.  Such a matter should be left to the Departmental Head to take care of and take up in Court.  It was done in the past in the case of Francis Damem, Attorney General and Secretary for Justice Department v. Public Service Commission, Zacchery Gelu and Secretary of Department of Personnel Management (2005) N2900 and should be allowed to continue.

10.	Submissions were made opposing the view that proceedings should be commenced by the State, it having the legal capacity to sue.  For if the State were a Plaintiff, it would offend against the requirement of Section 8 of the CB&AS Act where the State must be given an opportunity to be heard on the application for leave for judicial review. 

11.	All these is well and good.  But I think there must be a distinction made between legal capacity to sue and sufficient interest.  The former is the ability of a Plaintiff to commence proceedings and the latter is a complaint about a right being breached or violated.  That right can be legal or equitable, personal or public or pecuniary or otherwise.  The capacity to sue is performed by a natural person or legal entity, e.g. a company.  In most cases, a natural person must be 18 years or over to have the capacity to sue. 

12.	The question of sufficient interest does not arise in this instance because there is no question that the Plaintiff has sufficient interest, it being settled by the grant of leave.  I find those English and local cases cited by the Plaintiff having no bearing on the question of legal capacity to sue. 

13.	The answer to the question is found in Section 247 of the Constitution.  It is the Independent State of Papua New Guinea that has legal capacity to sue.  The legal capacity of the State is recognised in the Constitution. Section 247 states:

“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”.

14.	The Act of Parliament which provides for the legal capacity of the State to sue and be sued is the CB&AS Act.  Section 4 is relevant and states:

“4.	Suits by the State.

Suits on behalf of the State, including relator 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)	a person appointed for the purpose by the Minister.” (Emphasis added).

15.	There is no question that this proceeding is not a relator proceeding, thus the Plaintiff’s submission that the Attorney-General could not possibly bring relator proceeding is quite correct.  But it is quite extraordinary for the Plaintiff to say that it would be unprecedented if the Attorney-General were held to be the party to file an application for judicial review over a personal matter concerning an officer in the Department.  

16.	Why would he not?  In my view, Section 4 of the CB&AS Act is quite clear.  It is the State that can bring proceedings of this nature by the Attorney-General.  The Attorney-General cannot deny or shy away from this responsibility.  Indeed it is one of the responsibilities under Section 7 (b) of the A-G Act which states “to exercise the duties, functions and responsibilities conferred upon the Attorney-General or upon the principal legal adviser by the Constitutional Laws and Acts;”.

17.	So in an application for judicial review, the State having the legal capacity to sue is the Plaintiff and the Attorney-General is the lawyer for the State. Court documents must be drafted naming the State as the Plaintiff and the Attorney-General as the lawyer for the State.

18.	On the other hand, it is not expressed in Section 247 of the Constitution and Section 4 of the CB& AS Act that the Secretary of the Department of Justice and Attorney-General has legal capacity to sue.  With respect, where the Plaintiff got his authority to say that he has legal capacity to sue, that I do not know, save to say that he had misapprehended that having legal capacity to sue is the same thing as having sufficient interest.

19.	This misapprehension of the law is fatal to the competency of the proceedings because it is clear that the Plaintiff does not have the legal capacity to sue.  It is the State and surprisingly the State is being named as a Defendant in this proceeding.  So we have a situation where instead of the State being the Plaintiff, it is now one of the Defendants to defend the application for judicial review.  It is an unsatisfactory state of affair and puts the State in an awkward position.

20.	The awkward position of the State was quite evident when its counsel was unable to address this preliminary question because she informed the Court that she was caught in a “dilemma” whether to support the Plaintiff’s submission or oppose it.  The State’s dilemma is noted but it would seem that none of the parties had paid close attention to the dictates of Section 247 of the Constitution and Section 4 of the CB&AS Act.  

21.	After all, it was not denied that the Plaintiff as the Departmental Head is a servant and agent of the State and that would have immediately put him on notice that this proceeding should have been commenced in the name of the State by the Attorney-General.  This is so basic and fundamental and cannot be said to be unprecedented.  Given this any suggestion that to hold that he does not have legal capacity to sue will have adverse consequence on this case and many other pending similar cases is irrelevant.

22.	His submission that the State must be named as a Defendant because of the requirement of Section 8 of the CB&AS Act where the State must be given an opportunity to be heard on the application for leave for judicial review is misconceived.  The application of section 8 does and will not arise if the State is the Plaintiff.  In other words, why would the State need to comply with the requirement under Section 8 when it is the Plaintiff and is seeking leave to apply for judicial review?  That requirement applies only when the State is a Defendant.

23.	The case of Francis Damem, (supra) does not assist the Plaintiff because the issue of legal capacity was not raised and considered by the Court when the former Secretary for Justice and Attorney-General sought judicial review of the decision of the Public Services Commission under Section 18 of the Public Services (Management) Act, 1995 to annul his decision and reinstate Mr. Gelu as the Solicitor-General.

24.	Similarly, if the State were the Plaintiff and the proceeding were filed by the Attorney-General behalf of the State, the question of service of the Court documents, viz, originating process and notice to the Secretary for Justice and Attorney-General under Order 16, rule 3 (3) of the National Court Rules would not arise.  Why? It is the State through the Secretary for Justice and Attorney-General himself who is being aggrieved by the decision of the First Defendant and seeks judicial review.  This reasoning is to the advantage of the Plaintiff otherwise he might be faced with the embarrassment of having to serve the Court documents on himself which might have happened in this case.

25.	Furthermore, when it comes to payment of costs of the proceedings, it is quite illogical that, the State should be liable for the Plaintiff’s costs.  It is like the State paying itself.  Quite an extraordinary outcome!

26.	Finally, for public policy and good administration reasons, the Attorney-General should be the lawyer on record for the State and should be filing proceedings in the name of the State.  By virtue of Section 4 of the CB&AS Act and Section 7 (b) of the A-G Act, he is and should be the lawyer not only for his Department but also other Government Departments, e.g. Department of Finance, Department of Works and Implementation, Department of Defence, Department of Health, Police and so forth.

27.	I consider this factor quite important because in that way, he would be able to coordinate and account for how many cases commenced by the State, provide advice on which cases should be commenced by the State and his Department and line Departments so as to avoid conflicting decisions by Government Departments and ultimately, controlling costs of litigation and government expenditure, further noting that the Attorney-General by virtue of Section 7 (i) of the A-G Act does approve payment of legal costs as part of his function in instructing lawyers within or outside the country to appear for the State in any matter.     

28.	By the same token, by virtue of Section 7 (i) (supra), he may instruct (brief-out) lawyers within or outside the country to act for the State and Government Departments in any matter, say for instance, matters coming before the Courts.  In that case, proceedings can be filed in the name of the State by the Attorney-General and briefed out to private lawyers to appear for the State.  If the Departmental Head or even the Minister responsible for the Ministry under which the Department comes under may wish to be a party to the proceeding, it is permitted under the principles of vicarious liability.  In this respect, it was not suggested in this instance, that the State should be removed as a Defendant and made a Plaintiff.  Given this, I give no consideration to a possibility of amending the parties.

29.	In all the above circumstances, I conclude that the Plaintiff does not have legal capacity to commence this proceeding.  It follows I find that the proceeding is incompetent.  It is dismissed.  Since the proceeding was undefended, I make no order as to costs.

Ruling and orders accordingly,
________________________________________________________________
Wagambie Lawyers:  Lawyers for Plaintiff
 Solicitor-General:  Lawyers for Third Defendant