SC1366

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM 15 OF 2006

JOSHUA KALINOE, CHIEF SECRETARY TO GOVERNMENT
First Appellant

AND:

GABRIEL YER, ACTING SECRETARY FOR DEPARTMENT OF FINANCE
Second Appellant

AND:

SIMON TOSALI, SECRETARY FOR THE DEPARTMENT OF TREASURY
Third Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Appellant

AND:

PAUL PARAKA trading as PUAL PARAKA LAWYERS
Respondent

AND

SCM 03 OF 2007

HON. BIRE KIMISOPA, MP MINISTER FOR JUSTICE
First Appellant

AND:

WINNIE KIAP, SECRETARY NATIONAL EXECUTIVE COUNCIL
Second Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Appellant

AND:

PAUL PARAKA trading as PAUL PARAKA LAWYERS
Respondent

Waigani: Kandakasi, David, Murray, JJ.
2014: 30th June
04th July
10th July

CONTRACT LAW - Legal service contract with State or public authority - Application of Public Finance (Management) Act - Need for public tender with terms and conditions on which the State invites tender - Successful tender - Need for contract specifying terms of the contract including price or costs for legal services - Agreements on lawyer professional costs still open to challenge on reasonableness and Court having power to determine issue.

CAUSES OF ACTION - Action to recover a lawyers professional legal costs - Pre-requisites - Costs to be in taxable form - Unless agreed, need for taxation and certificate before commencement of proceedings - Bill of costs to give sufficient detail about work done, time taken and fees charge - Client to be kept inform of legal costs and right to have the lawyers costs taxed - No cause of action accrues to a lawyer unless his bill of costs has been taxed - Lawyer obliged to inform client of clients right to have his lawyers costs taxed and render his bill of costs in taxable form in accordance with the Lawyers Act 1989.

JUDICIAL REVIEW - Leave for - Principles and considerations - kinds of orders and reliefs to be granted at time of granting leaving - Improper to arrive at conclusive determination and grant of substantive reliefs at leave stage - Query whether proper to make orders for payment of certain sums of money within specific time frames and certain manner against the State can be made in judicial review and other proceedings - Such orders inappropriate and improper.

PRACTICE & PROCEDURE - Judicial review - Inappropriate and improper to seek by notice of motion substantive relief and for reliefs not specifically pleaded - Appropriate to grant other reliefs in appropriate cases on proper prove after grant of leave with any consequential reliefs only after grant of substantive relief of judicial review - Orders for payment of certain sums of money being a consequential relief against the State cannot fix time and manner of payment and cannot be granted until after grant of leave and upon grant of judicial review.

PRACTICE & PROCEDURE - Case management - Status conference - purpose of - Court to check and ensure parties are ready for hearing date - Parties obligation -Raise any matter that might prevent hearing from proceeding - Parties may be precluding from raising matters they should have raise at, prior to and soon after status conference.

PRACTICE & PROCEDURE - Adjournments - Law or principles governing - Party seeking adjournment must make proper application with supporting affidavit evidence - Onus on applicant to make a case for adjournment - Applicant onus to demonstrate having taking all steps necessary to prepare for and proceeding with Court fixed event - Failure to - No basis to grant adjournment. 

Papua New Guinea Cases Cited:

Joshua Kalinoe & Ors v. Paul Paraka (2007) SC874
Joshua Kalinoe & Ors v. Paul Paraka; Hon Biri Kimisopa & Ors v. Paul Paraka (2010) SC1024
PNG Deep Sea Fishing Ltd v. Critten (2010) SC1126
Melina Limited trading as CN Mercantile v. Fred Martens (2001) N2183.
OK Tedi Mining Limited v. Niugini Insurance Corporation and Ors (1) [1988-1989] PNGLR 35
Vitus Kais v. Sali Tagau; Tropic Timbers Ltd v. Vitus Kais (2012) N4810
Able Construction Ltd v. W.R. Carpenter Ltd (2014) N5636
Collins v MVIT (1990) PNGLR 580
Ume More v. UPNG [1985] PNGLR 40
PNGBC v Jeff Tole (2002) SC694
Kamali Renali v. Peter Loko (2012) SC1186
Daniel Tulapi v. Steamships Trading Company Ltd (2012) SC1210
Peter Makeng v. Timbers (PNG) Limited (2008) N3317
Jack Livinai Patterson v. National Capital District Commission (2001) N2145
Sarea Soi v Imawe Kewa Land Group Inc (2004) N2560
Marsh v. Haye [1981] PNGLR 392
Tolom Abai and Others v. The State N1762
Dominica Philip v The National Education Board (2008) N4024
Kekedo v. Burns Philp (PNG) Ltd & Others [1988-89] PNGLR 122
Wamp Nga Holdings Ltd v. Popuna Nau (2011) N4378
Gabriel Dusava v The Honourable Madam Justice Teresa Doherty (as she then was) Steven Oli and John Numapo (1999) SC629
Leto Darius v The Commissioner of Police & The State (2001) N2046
Application of Demas Gigimat [1992] PNGLR 322
Isaac Lupari v Sir Michael Somare (2008) N3476
PNG Power Ltd v Ian Augerea (2013) SC1245
Mision Asiki v Manasupe Zurenuoc (2005) SC 797
The State v. Downer Construction (PNG) Ltd (2009) SC979
Frederick Martins Punangi v. Sinai Brown as Minister for Public Service & Ors. (2004) N2661
Ruth Kaurigova v. Dr Russo Perone & Ors (2008) SC964
Jennifer Jean Scott v. Micheal George Scott and Mary Van Duseon (2009) N388
Pansat Communications Pty Limited v. Morea Vele and The Independent State of Papua New Guinea (1999) SC604

Counsel:

P. Mawa, for the Appellants.
H. Nii, for the Respondent.
 
04th July 2014 (edited and published 10th July 2014)

1.	BY THE COURT:	These are two separate appeals arising out of two separate proceedings and two separate decisions of the National Court. The decisions concern two separate decisions of public officers or authorities on behalf of the State. The factual background however, is the same and the same legal issues are presented. It is therefore, convenient for us to deal with these appeals together as one save only, to point out the differences where they exist.

Issues for determination

2.	Apart from a few factual issues, a number of important substantive and procedural legal issues are presented in this case. We need however to focus on three main issue which are broad enough to cover all of the other issues. The three main issues are:

(1)	Can substantive reliefs be sought and granted upon motion at the leave stage in an application for judicial review without such reliefs being specifically sought in the substantive claim?

(2)	Is a lawyer entitled to seek and secure judgment for payment of specific sums of money in untaxed professional legal fees against the State without first having his or her costs taxed or without specific agreement on the actual costs?

(3)	Can a plaintiff in a judicial review proceeding move for and secure judgment for payment of certain sums of money by the State within a specified time and in a certain manner?

3.	These are simple and straight forward issues which could have been determine much earlier but for steps Paraka Lawyers (Paraka) took as will be pointed out in due course, prevented that from happening. At our hearing of these appeals, learned counsel for Paraka did not raise any serious issue on the legal position on each of these questions or issues and indeed most of the State's arguments.

Background and Relevant Facts

4.	Before, getting into a consideration and answer to any of the issues, we consider it important that we should set out the relevant background facts, which is simply this. On 19th December 2002, the then Attorney General, the late Francis Damem, began briefing-out to Paraka starting with 56 matters. These were followed by two further briefs-outs of 10 and 100 matters respectively on 23rd March 2004 and 6th December 2004. That brought the total briefs to Paraka to 267 matters. However, for reasons only know to Paraka Lawyers and those involved in its facilitation, the State paid a total of K41, 999, 648.32 to Paraka since 18th September 2002 when a sum of K3, 993, 497.70 was paid. That payment we note was made about two months prior to the first brief out on record dated 19th December 2002.

5.	On 6th June 2006, Mr. Joshua Kalinoe, then Chief Secretary to the National Government issued a letter directing Mr. Gabriel Yer, the then Secretary for Finance to cease all further payments to Paraka. Then by letter dated 11th October 2006, the then Minister for Justice Hon. Bire Kimisopa, with the endorsement of the National Executive Council (NEC) by decision dated 1st November 2006, decided to establish a Departmental Inquiry in the legal brief-outs and payment of the substantial sums of money to Paraka. Meanwhile, the decision also amongst others terminated all brief-outs and withdrew all files and stopped all payments to Paraka. On 16th October 2006, the then Attorney General acted on the Minister's decision. Paraka responded with the issuance of two separate judicial review proceedings, respectively referenced, OS No. 829 of 2006, on 10th November 2006 and OS 876 of 2006, on 29th November 2006. 

6.	On 17th November 2006, which was seven days after the issuance of the first of the two proceedings, the late Hinchliffe, J issued the following orders out of OS No. 829 of 200: 

"1.	Leave is granted for Judicial Review pursuant to Order 16(3) of the National Court Rules.

2.	The stop-payment directive of the Chief Secretary through his letter dated 6th June 2006, to the Acting Secretary for Finance is stayed pending the determination of the substantive judicial review pursuant to Order 16, Rule 8(a) of the National Court Rules.

3. 	The Third Respondent identify funds and issue a special warrant for the sum of K6, 499,436.44 to the Second Respondent forthwith, who in turn shall arrange the payments to be made to the Plaintiff by or before 1:30pm today, Friday 17th November, 2006.

4.	Further or in the alternative, the Second Respondent identify savings/funds and pay the Plaintiff all of its outstanding legal fees of K6, 499,436.44 by or before 1:30pm today, Friday 17th November, 2006.

5. 	Once the cheque is paid to the Plaintiff pursuant to Orders under either paragraph 3 & 4 hereof, the Respondents by themselves or through their agents and servants are restrained from cancelling or countermanding or putting a stop-payment to the cheque.

6.	The Respondents, by themselves or through their servants and agents and employees, including their respective Ministers and other Ministers including their servants and agents are restrained from issuing any further stop-payment directives, or from taking any steps whatsoever to frustrate, or delay or cease payment in legal fees owing to the Plaintiff upon the necessary clearance by the Attorney General, pending the determination of the substantive judicial review.

7.	The Second and Third Respondents shall pay the plaintiff out of monies lawfully available any subsequent legal fees of the Plaintiff that have been or may be sent to them by the Attorney General pending determination of the substantive judicial review.

8.	That the Minister for Justice and Attorney General, by themselves, or through their servants and agents be restrained from issuing any directives, or any form of advise whatsoever to the Second and Third Respondents for the purposes of stopping, frustrating or delaying or ceasing payments of legal fees owing to the Plaintiffs legal firm pending determination of the substantive judicial review.

9.	That the parties are to appear before the Court at 1:30pm today, Friday 17th November, 2006 to advise the Court of the compliance to Orders in paragraph 3 and 4 herein and for further directions."

7.	On the same day of the above order, the Chief Secretary, the Acting Secretary of the Department of Finance and the State lodged appeals SCM 15 of 2006. At the same time, the State successfully applied for and secured a stay of the orders of Hinchliffe J, pending a hearing and determination of the appeal. 

8.	In respect of Paraka's second judicial review proceedings, namely, OS 876 of 2006 issued on 29th November 2006, the same Judge, late Hinchliffe J, on 14th December 2006, granted leave for judicial review. Then on 2nd March 2007, His Honour made the following orders in favour of Paraka:

"1.	That the Secretary of for Treasury (Mr. Simon Tosali) or any Officer acting in that position or in their absence the Deputy Secretary for the Treasury (Ms Nino Saruva), forthwith upon receipt of this Order identify funds and release a special warrant for the sum of K6,438, 673.06 to the Secretary for Finance (Mr. Gabriel Yer) or any Officer acting in that position and/or in their absence the Deputy Secretary for Finance (Mrs. Doriga Henry), who shall arrange for a cheque for the same amount to be made payable to Paul Paraka Lawyers by or before 3:00pm today, 2nd March 2007.

2.	That the Bank of Papua New Guinea, through Mr. Ezekiel Bangin, Manager (Governor Accounts) and or through his officers and agents of the Bank clear the Department of Finance cheque once issued pursuant to orders in paragraph 1 herein and have the appropriate Bank warrant issued forthwith to the Plaintiff/Applicant's Bank, the Bank of South Pacific, Port Moresby by 3:00pm today, 2nd March, 2007, to be credited to the Plaintiff's Bank Account.

3. 	A direction that the Bank of Papua New Guinea, through its servants and agents including Mr Ezekiel Bangin disregard any stop-payment directive either verbally or in writing from any officers, agents of the servants of the Department of Finance including the Secretary for Finance and any other agents or servants of the State and comply with the Orders set out in paragraph 2 herein forthwith.

4.	That the Secretaries for Finance (Mr. Gabriel Yer) or any Officer acting in his place and Treasury (Mr. Simon Tosali) or any Officer acting in his place and Mr. Ezekiel Bangin of the Bank of Papua New Guinea appear before the Court at 3:45pm today, 2nd March, 2007 to advise the Court of the compliance of the Court Orders."

9.	The following day on 03rd March 2007, the State lodged appeal, SCM No. 3 of 2007, against the orders of Hincliffe JJ. Pending a hearing and determination of the substantive appeal, the State, on 5th March 2007, successfully sought and obtained a stay of Hinchliffe J.'s orders of 02nd March 2007.

Preliminary matter

10.	Paraka took a number of steps and positions some of which were repeated. The decisions of the Supreme Court in Joshua Kalinoe & Ors v. Paul Paraka (2007) SC874 and Joshua Kalinoe & Ors v. Paul Paraka; Hon Biri Kimisopa & Ors v. Paul Paraka (2010) SC1024, bear witness to some of those steps. The effect of these were that, an expedited hearing and determination of these two appeals were unnecessarily delayed until they finally came before us on 30th June 2014 for hearing. The Court should in future guard against this kind of conduct and aim to get to a hearing of the substantive matters promptly.

11.	Before we could get on with a hearing of the substantive appeals, Paraka continued his best efforts through counsel to have the hearing of the appeals delayed, yet again. This was despite specific orders of the full Supreme Court as for instance as late as 02nd May 20014 in SCM 3 of 2007, for the parties to take all steps necessary to have these appeals heard without further unnecessary delay. Without first filing and serving a formal application with supporting evidence in affidavits form, Mr Nii of counsel for Paraka orally applied for an adjournment of the hearing of both of the appeals to the next sittings of the Supreme Court. The application was respectively grounded on counsel being recently instructed in respect of SCM 15 of 2006, without the appeal book and his client not having certified the appeal book in SCM 3 of 2007.

12.	Despite the seniority of counsel appearing for Paraka, he did not assist us in any respect with any case law or rules of court. He did not for instance draw our attention to the relevant principles governing adjournments and demonstrate how his clients applications met the requirement for adjournment. PNG Deep Sea Fishing Ltd v. Critten, is the latest Supreme Court decision setting out the principles that govern adjournments. These principles are:

(a)	Applications for adjournment must be made promptly when the need arises;
(b)	The application must be supported by an affidavit;
(c)	The affidavit must set out facts and not speculations, arguments, submissions, opinions and conclusions of the deponent but depose to facts going into:

 (i)	steps taken to prepare and attend to the schedule event;

(ii)	what factor (s) or event (s) if any, beyond his or her control prevented him or her from preparing and proceeding with the set event;

(iii)	how the adjournment will not result in any prejudice to the other party but in justice to him or her, the applicant; and

(iv)	what steps he or she has and or will soon be taking to ensure that the event sought to be adjourned will occur without further delay on the new adjourned date;

(d)	Unless an applicant is able to make out a case in terms of the above, no adjournment should be expected and can be granted;

(e)	Whether or not to granted an adjournment is within the Court's discretion which must be exercised on proper factual and legal basis and not otherwise; and

(f)	When considering the application, the Court is obliged to take into account the interest of the opposing party and any possible prejudice or harm that might be occasioned by an adjournment. 

13.	Applying these principles, we noted that Paraka did not meet any of the above requirements. We also noted that, these matters were fixed for hearing at a directions hearing conducted by Makail J., on 10th June 2014. All the parties, including Paraka were represented at that directions hearing. If for whatever reason, he was not ready, he should have opposed the fixing of these appeals for hearing. We did note that 23rd June 2014, was fixed for a status conference. We also noted that, there was some confusion over when the status conference was conducted, whether on the scheduled date of 23rd or earlier on 20th June 2014. However, we found that was of no consequence because we took the view that, at a status conference the Court merely checks and ensures compliance of its earlier orders and directions and confirm the date fixed for hearing. The only exception would be cases in which there has been some serious intervening event that was beyond the control of the parties such as death of one of the parties or counsel, which would clearly prevent the hearing from proceeding. We also noted that, if there was such an intervening event, it was incumbent on the party affected to immediately draw that to the attention of the Court and apply for a vacation of a scheduled Court event. Depending on when such an event occurs this could be done at the schedule status conference if not possible earlier or soon after the conduct of the status conference.

14.	In this case, there was no intervening event that could have affected Paraka's preparation for hearing and proceed with the hearing of these two appeals. Counsel for Paraka not being instructed with a copy of the appeal book in respect of SCM 15 of 2006, was a matter within Paraka's control. The appeal books were filed and served well in advance of the directions hearing and was the subject of reference in one of Paraka's failed repeated applications seeking to dismiss the appeals for want of prosecution. As for SCM 3 of 2007, the compiling and service of the appeal book was the subject of specific orders of the full Court on 02nd May 2014. Those orders amongst others, directed the compiling, filing and serving of the appeal in accordance with an index that was prepared by the State to which Paraka unnecessarily took issue and delayed the prosecution of the appeal thereby. In either case, Paraka did not file and serve any affidavit setting out the facts relied upon to make the application. Hence, Paraka did not make out a case in accordance with the principles of law set out above. We therefore declined his application for adjournment.

15.	Turning now to a consideration of the main issues before us, we will do so in the order in which we have set them out above. Accordingly, we will consider the first issue first.
Can substantive reliefs be sought and granted upon motion at the leave stage in an application for judicial review without such reliefs being specifically sought in the substantive claim?

16.	This issue can be broken down to three sub-issues as follows:

(1)	Can a party seek a substantive relief by motion?
(2)	Can a party be allowed to get a relief not sought and prayed for in the pleadings or originating process?
(3)	Is it proper for a party to ask for and obtain substantive reliefs at the leave stage in a judicial review proceeding?

Seeking substantive relief by motion

17.	We deal firstly with the first of the three sub-issues. This is a simple and straight forward issue which can easily be disposed off in this way. It is settled law that, no substantive relief can be sought and granted on motion. Motions are mainly for interim and interlocutory matters. As Cannings J observed in His Honour's decision in Vitus Kais v. Sali Tagau; Tropic Timbers Ltd v. Vitus Kais, this is:

 "a basic rule of practice and procedure which has been well entrenched since the decision of Kapi DCJ in John Momis v. Attorney-General [2000] PNGLR 109. It has been endorsed by the Supreme Court in cases such as NCDC v Yama Security Services (2003) SC707 and Yer v Yama (2009) SC996. The rule is now expressly stated in Rule 9 of the Motions Rules the National Court Rules, Order 4, Rule 49(9)) which states that except as otherwise expressly provided by the Rules:

'motions shall be for relief on interlocutory matters only and not for the substantive relief claimed in the originating process.'"

18.	On the strength of the above authorities and the legal position they represent, we have no hesitation in answering the question under consideration in the negative. This is subject to our consideration and answer to the third sub-issue.

Seeking and allowing relief not pleaded

19.	Turning now to the second sub-issue, we note the legal position is also very clear.	 There is a long line of authorities which speak in volumes that, a party cannot be allowed to get a relief not properly pleaded, prayed for and include in his or her pleadings. The learned trial judge here correctly noted this legal position and applied it as early as in his decision in Collins v MVIT. There His Honour precluded in his assessment of damages in a loss of dependency claim, a child whose name was not included in the pleadings. A lot of subsequent decisions of both the National and Supreme Courts have accepted or noted this legal position and applied them. The Supreme Court line of cases start with the decision in Ume More v. UPNG, to the decision in PNGBC v Jeff Tole with the more recent ones like the one in Kamali Renali v. Peter Loko and Daniel Tulapi v. Steamships Trading Company Ltd.

20.	In view of this clear legal position we have no difficulty in answering the second sub-issue in the negative also.

Substantive relief at leave stage in judicial review proceedings

21.	This now leaves us to deal with the last of the three sub-issues. As with the first two sub-issues, the law on this issue is also clear. The starting point is O.16, r. 3 (8) of the National Court Rules. These provision in relevant parts read as follows:

 "Where leave to apply for judicial review is granted, then –

(a) if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until otherwise orders; and

(b)if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ."
(underlining ours)

22.	The then learned Deputy Chief Justice and now Chief Justice considered this provision in full in Peter Makeng v. Timbers (PNG) Limited. After duly considering this provision His Honour said:

"There is no provision in O 16 which gives the Court jurisdiction to grant a stay or interim injunctive relief before leave for judicial review is granted. Order 16 r 3 (8) is the only applicable provision on grant of stay or other interim relief. There is no contest amongst the parties as to the meaning of O 16 r 3 (8).On the contrary, Order 16 r 3 (8) gives the Court jurisdiction to grant a stay or interim relief only after leave for judicial review has been granted." (underlining ours) 

23.	Before rejecting arguments by counsel for the plaintiff that O.16, r 3 (8) was subject t s. 155(4) of the Constitution and that the Constitutional provision was inapplicable, His Honour went on to say:

"It is settled principle that O 16 provides the exclusive procedure for judicial review applications: Attorney General Michael Gene v Hamidian Rad [1999] PNGLR 278. Therefore other provisions in the National Court Rules which apply to judicial review can only apply by express adoption under O 16. For instance, see r 3(8)(b) (interim relief), r 7 (2) (claim for damages), r 9 (5) (continuation of proceedings by pleadings). The court's jurisdiction to grant interim relief in judicial review proceedings, which could be granted in an action commenced by writ, is given by O 16 r 3 (8)(b)."

24.	His Honour then proceeded to make the following observations about O.16, r. 3(8) after giving consideration to a few authoritative judgments and publications:

"... It follows from the above passage that given the similarity of a stay order and an interim injunction, other interim injunctive relief would also be available in a case where prohibition or certiorari is claimed, under r 3 (a).

... Second, the grant of leave for judicial review is a pre-condition to a grant of stay and any other interim relief in any judicial review matter. By the grant of leave, the Court grants itself jurisdiction to grant the relief sought, whether such relief be interim or substantive. 

... Third, if the relief sought is an order of prohibition or certiorari, a stay of proceedings under (a) is not automatic upon grant of leave. An order of the court on stay is necessary to effect a stay and it is discretionary. 

... Fourth, if the relief sought is not prohibition or certiorari but some other relief, which is available in judicial review, such as mandamus or quo warranto ( see O 16 r 1 ), the Court may at any time of the proceedings, after leave is granted, grant such interim relief as could be granted in an action begun by writ. By virtue of clause 13 (1) of Judicial Review Amendment Rules 2005, the rules applicable to Motions in judicial review matters are those prescribed by the National Court Rules as amended by the Motion Amendment Rules 2005 which amongst others, provides the procedure for urgent ex parte applications." 

25.	Thereafter, after some further consideration of other points His Honour considered relevant and commented on the procedure to follow in judicial reviews in this terms:

"In terms of the procedure for grant of leave for judicial review, an application for leave is made by Originating Summons. The Originating Summons should not plead any other relief. It should simply seek leave to apply for judicial review of the subject decision which should be particularized. A Motion seeking leave for judicial review and/or an order for stay or any other interlocutory relief is not required to be filed at the leave stage. The current practice by many lawyers of filing an Originating Summons seeking leave and also stay or other interim relief and then filing a Motion seeking the same relief as in the Originating Summons should cease as it only confuses the procedure and is inconsistent with the provisions of O 16 r 3 and O 16 r 5 (2)."

26.	We are respectfully of the view that, His Honour's interpretation and understanding of the provisions of O.16, r.3 (8) and O.16, r.5(2), in terms of the above is correct. Accordingly, we adopt them as our own and add for clarity sake that, O.16, r.5(1) and (2) provides as to the steps to take once leave has be grant. Hence how the whole process of judicial review should work out is as follows:

(1) 	An Originating Summons is filed seeking only one relief, namely leave for judicial review together with a Statement as described by O.16, r. 3(2)(a) and an affidavit verifying the facts relied by the applicant.

(2)	Copies of the documents under (1) above should then be served on Secretary for Justice, not less than 2 days before the date set for its hearing (O.16, r.3).

(3)	If leave for judicial review is granted, a notice of motion seeking judicial review must then be filed and served in accordance with the provisions of O. 16, r.5 (2) and proceed to a hearing in accordance with and in due compliance of the provisions of r.5 (3) - (5).

(5)	If any urgent or interim relief is also sought this should be included in the notice of motion and may be argued earlier if need be or otherwise in accordance with motions rules prior to a hearing and determination of the substantive review.

(6)	After attending to any pressing urgent or interim matter, the substantive review application should proceed to a hearing without delay, a date for which, should be fixed within 21 days from the grant of leave.

27.	Carefully noting the foregoing discussions, two things are immediately clear to us. First, prior to the grant of leave for judicial review or at the leave stage, no party can ask for and obtain any other relief. Secondly, following on from that, it is clear that, one cannot seek and obtain a substantive relief at the leave stage. That would come after or with the hearing and determination of substantive review.

28.	The combined effect of our answers to the three sub-issues clearly dictate a negative answer to the first major issue before us, and we so answer. With this answer to the legal question in mind, we now need to apply the stated principles to the facts of this case.

Application of the law to the facts

29.	Applying the above principles of law to the facts of this case as outline above, a number of serious errors clearly stand out. These are:

(1)	The two originating summons in both cases bear witness to the fact that, the originating summons did not only seek leave for judicial review. Instead they clearly sought a whole lot of other reliefs at the same time in the same and one document or process. This was clearly in breach of the procedure prescribed by O.16, r. 3 (8) and r. 5(1) of the National Court Rules as elaborated above;

(2)	The notice of motion in OS 826 of 2006 compounded the problem, by seeking exactly the same reliefs sought in the originating summons, without first seeking and securing leave for judicial review. Hence, without first separately considering and granting leave for judicial review the learned trial judge erroneously assumed jurisdiction to then consider and grant the other reliefs he granted in respect of those proceedings;

(3)	In respect of the proceedings under OS 876 of 2006, although leave for judicial review was separately sought and granted, the motion was filed and service prior to the grant of leave for judicial review. Paraka could not legally do that, until after the grant of leave for judicial review.

 (c)	Apart from the grant of leave for judicial review, his honour erroneously granted other reliefs which we find were final in nature in the way he ordered the payment of the substantial amounts of money in the respective sums of K6,499,436.44 and K6,438,673.06, giving a total of K12,938,109.50. The proceedings concerned two separate decisions aimed at preventing payments of those and other money to Paraka. By making the orders to pay in the terms he ordered, his Honour effectively rendered a pursuance of the substantive judicial review application an exercise in futility; and

(d)	Finally, pleadings in the originating summons only sought orders for payment of unspecified amounts of money in legal fees. Hence, without amendments to what was in the pleadings, Paraka was at no liberty to ask for orders in the way he did. It follows therefore that, the learned trial judge clearly fell into a serious error when he granted, in the way and terms he did, Paraka's request. For there was no foundation in the pleadings for such a large sum of money.

30.	Our above findings should sufficiently form the foundation to grant the State and its servants appeals. However, since the other two main issues were also raised and argued before us. We will consider and answer them as well. Accordingly, we will commence that exercise with a consideration of the second main issue. 

Is a lawyer entitled to seek and secure judgment for payment of specific sums of money in untaxed professional legal fees against the State without first having his or her costs taxed or without specific agreement on the actual costs?

31.	The second main issue concerns how and when a lawyer can be in court seeking to enforce a claim for his or her professional fees. The Lawyers Act 1989 governs this subject. Sections 62, 63, 66 and 69, in particular are relevant here. These provisions have been the subject of a number of decisions mainly from the National Court from which the legal position is very. It is therefore not necessary to quote any of these provisions in detail except only for the pertinent parts. Having said that, we note that the starting point is the provisions of s. 62 (1), which reads:

"62.	Action to recover costs.
(1)	A lawyer shall not bring proceedings to recover costs due to him until the end of a period of one month after a bill of the costs has been delivered in accordance with this Act."

32.	The rest of the subsections (2) - (5) of s. 62 provide as to what form a bill of costs in taxable form should take, its content, prove of the contents and service of or delivery of the bill to a client. Section 63 then provides as to how a lawyer's bill of costs in taxable form gets taxed. Section 66 allows for a lawyer and his or her client to enter into an agreement on the lawyers professional fees. This provision also provides as to what could and could not be provided for in such a agreement. The final provision, s. 69 provides that, by an agreement of a client and his lawyer, the clients right to taxation may be excluded.

33.	From the various decisions of the Courts,  the following position is very clear:

(1)	No lawyer can commence proceedings to recover his costs unless his costs have been first rendered in taxable form to his client and has been taxed.

(2)	The bill of costs in taxable form must give sufficient details of the kind or nature of work down, the necessity for that, time take and the fees charged. Anything falling short of that renders a purported bill of costs no bill of costs for the purposes of the Act and a lawyer to sue upon

(3)	A client is entitled to have his or her lawyers costs taxed, by reason of which, the lawyer must keep his client informed of his running costs and the clients right to taxation.

(4)	Even if there is a specific agreement on costs that excludes taxation, a client has the right to test in court the reasonable of the costs in Court and the Court has the power to consider and determine the reasonableness of a lawyers costs.

(5)	If the client is a public authority or the State, the process leading to the retainer or appointment of the lawyer must be in due compliance of the Public Finance (Management) Act, which includes amongst others public tender.

34.	On the basis of the above position at law, the answer to the second main question would be without any hesitation, no. With that answer in mind we now proceed to consider and apply these principles of law to the facts of the case at hand. 

Application of the principles to the present case

35.	We first note that, since this involves the State, the Court had to be provided with evidence demonstrating first that, there was a public tender for the provision of legal services to the State. Secondly, there had to be evidence of the terms on which the tender was called for and on which the successful bidder would be engaged. Thirdly, there had to be evidence of Paraka responding to that tender and coming out as the successful bidder. Fourthly, following any such success, there had to be evidence of the State entering into a service contract with Paraka, clearly setting out the terms on which the firm was engaged. There is a complete lack of any such evidence touching any of these aspects presented in the Court below and shown to us for the purposes of these appeals.

36.	Similarly, there is a complete lack of evidence of; (1) Paraka, having rendered a bill of costs in accordance with the provisions of the Lawyers Act as noted above; and (2) Paraka advising his client, the State, of the States right to have his professional fees taxed if the State took issue with the whole of or part of their bill of costs. This was necessary unless there was an agreement in accordance with the provisions of s. 66 of the Lawyers Act, following successful tender. If Paraka had any such agreement, evidence of that had to be placed before the trial judge as well as evidence of having advised the State of its right to have the reasonableness of the terms of the agreement and the amount of costs his was claiming, either as a whole or in part determined by the Court unless there was clear acceptance of the bill in its entirety by the State. 

37.	It is also clear that, the amount of costs Paraka was claiming was well in access of a K1 million. These were certainly beyond the financial limits of the Attorney General in terms of the Public Finance (Management) Act. Hence it required the consideration and approval of the NEC. There is not a single evidence of Paraka's costs being submitted to the NEC and the NEC having approved the totality or part of the amounts Paraka claimed.

38.	Further, if somehow all of the above were established in Paraka's favour, he still had to meet a few more legal requirements before seeking and securing the orders from the Court. Subject to our further discussion on this, the first of these legal requirements was the requirement for notice under s.5 of the Claims By and Against the State Act (CBASA). Paraka produced no evidence of giving such notice. Secondly, in absence of any evidence of any acceptance or admission of Paraka's claims, the amounts due and owing to him had to be established by evidence through a proper trial by appropriate and direct evidence. The decision and the orders the subject of these appeals were arrived at through an interlocutory application by notice of motion. That was obviously wrong and highly irregular for the reasons we gave in our answer to the first main issue. Thirdly, this involved judgment and orders for payment against the State, s.13 (2) and 14 of the CBASA required certification of judgment and s.14 provided for the way in which the judgments against the State could be satisfied. This is the subject of the third and final main question before us. We will elaborate on this when we shortly get to dealing with that question. But for now for the purposes of the discussions now, we point out that these additional legal requirements were not met.

39.	In summary, we are firmly of the view that, given the lack of the kinds of evidence pointed out above, the learned trial judge was in no position to make any findings of fact on any of important aspects as we outlined above. It is therefore no surprise that, the learned trial judge made no such findings of fact. It follows therefore that, without any factual or legal foundation, Paraka was in no position to ask for and the learned trial judge had no basis to grant the kinds of relief and or the orders Paraka asked for. Yet with the greatest respect the learned trial judge did. This was clearly wrong and it must be corrected immediately. We propose to do so by the final orders we will soon come to make at the end of this judgment. 

40.	We now come to the third and final of the three main issues. This issue revolves around a number of relevant and applying provisions of the CBASA.

Can a plaintiff in a judicial review proceeding move for and secure judgment for payment of certain sums of money by the State within a specified time and in a certain manner?

41.	This issue has two parts to it, namely:

(a)	Can a party move for and secure orders for payment of money in a judicial review proceeding?

(b)	Can a plaintiff ask for and secure orders for payment of certain sums of money within a specified time and in a certain manner against the State? 

42.	Both of these issues concern the true nature of judicial review and the kinds of orders that can be made against the State when it comes to a judgment for a payment of certain sums of money. We will deal firstly with the first of these two issues sub-issues first.

Can a party move for and secure orders for payment of money in a judicial review proceeding?

43.	This issue requires a consideration and appreciation of the true nature of judicial review. Accordingly, we will turn to that consideration first and note in that context that, firstly, O. 16 of the National Court Rules provides an exclusive procedure for judicial review applications. Secondly, we note that, judicial review concerns only the decision making process of a public authority and not the decision itself. As such, the Court can only either affirm the decision, the subject of the review or, quash the decision in part or in whole by way of correcting an error, abuse or unreasonableness, or the decision making authority exceeding has exceeded its powers. The Court cannot make any decision that substitutes or arrives at a new decision from the decision, the subject of the review, for that belongs to the authority whose decision is under review. Hence judicial review is a restricted process, available not just for anybody but people whose rights or interests have been directly affected by reason of which, they have a real interest in the matters giving rise to the proceedings and their eventual outcome. The kinds of relief that can be granted and the grounds on which that can be granted are well trodden and defined by rules of court and the relevant practice and procedure around them. 

44.	In short the, circumstances under which judicial review is available are in cases where the decision making authority:

(a)	Lacked power to make the decision;
(b)	Exceeded or abused its power;
(c)	Committed an error of law;
(d)	Breached the principles of natural justice;
(e)	Arrived at a decision which no reasonable tribunal would have reached;
(f)	Took into account irrelevant considerations in its decision making process;
(g)	Failed to take into account relevant considerations in its decision making process.

45.	Similarly, we note in short that, the kinds of relief that can be properly sought and granted in appropriate cases is also clear. The authorities suggest that judicial reviews are available for applications for:

(1)	An order in the nature of:

(a)	mandamus,
(b)	prohibition,
(c)	certiorari, or
(d) quo warranto;

(2)	A declaration or an injunction if the nature of the case or the circumstances would warrant a grant of the kind of orders under (1) above against persons or bodies against whom such orders could be made and that it would be just and convenient for such reliefs to be granted;

(3)	Award of damages to the applicant if he –

(a)	includes in the statement in support of his application for leave under Rule 3 a claim for damages arising from any matter to which the application relates; and

(b)	the Court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his application, he could have been awarded damages.

46.	It is also accepted and is clear law that, the reliefs under (2) and (3) and any other reliefs that are consequential to the grant of judicial review are capable of being granted by the Court. The point that needs to be repeated and clearly made is this, these other reliefs are dependent upon the grant of judicial review. Hence, they cannot be sought and granted on their own. It is also clear that, whether or not all or any of these reliefs should be granted in any one case is entirely in the discretion of the Court. This Court made that clear in its decision in Mision Asiki v Manasupe Zurenuoc (2005) SC 797 in these terms: 

"It is one thing to establish an error of law or a breach of natural justice and for the court to uphold an application for judicial review. It is another, separate, step to establish a case foar a remedy. In judicial review proceedings the remedies to be granted are at the discretion of the court." 

47.	On the basis of the law as we stated and discussed above, our answer to the first part of the third and final main question is this. As long as a claim for payment of certain sums of money is consequential or dependent on the main relief of judicial review, such a claim can be included. In terms of at what stage should such a relief be granted, the answer to that is obvious. As a consequential relief, a claim for payment of certain sums of money can only be granted after the grant of the substantive relief which is judicial review resulting in one of the kinds of order or relief's listed under item 1 in paragraph 43 above. With this answer in mind we will now turn to the second of the two sub-issues under the third main issue.

Can a plaintiff ask for and secure orders for payment of certain sums of money within a specified time and in a certain manner against the State?

48.	 Before getting into further involved discussions under this question, we observe that, this is a general question concerning all claims against the State. This question necessarily arises where the State or any public authority which is considered part of the State is a party and more so as a defendant that might be required to pay. Before getting into the specific discussion of the issue presented, we reiterate that this question should arise only after a grant of substantive relief of judicial review and should arise only as a consequential issue.

49.	All claims by and against the State is governed by the CBASA. The starting point in all claims against the State is s.5. This provision requires notice of one's intention to make a claim against the State within six months from the date when his or her cause of action accrued, or within such further times, the Attorney General or the Court may extend on the application of a claimant. That was always the position, until the decision of this Court in Mision Asiki v. Manasupe Zurenuoc and later the majority decision in The State v. Downer Construction (PNG) Ltd.

50.	In the Mision Asiki case, this Court followed the National Court decision in Frederick Martins Punangi v. Sinai Brown as Minister for Public Service & Ors., to eventually hold that the notice requirements do not apply to judicial review proceedings which is a special proceeding that is separate from an action in contract or tort. In the Downer Construction case, the majority gave a narrow and restricted meaning to the word "claim" as used in s. 5, the word "suit", as defined in s. 2, the word "action" and the phrase "court before which the action is instituted" as used in s. 5(2) (c) (ii) of the CBASA. This effectively led the majority to exclude arbitration from the need to give notice of one's intention to make a claim. On the other hand the minority view took a broader purposive approached and held to the contrary. 

51.	A careful reading of the reasoning in the above decisions, it is clear to us that decision in the Mision Asiki case and majority decision in Downer Construction case, with the greatest respect appear not to have given any careful consideration to the fact that, a claim against the State would in the main be based either in contract or in tort. Any relationship a person or an incorporated entity may have with the State would be based on contract from any employment setting to the provision of any kind of goods and services. The only except to this would be the State's own departments, authorities and instrumentalities as between themselves, which are merely an extension of the State. Any breach of any contractual obligation or duty by the State would entitle the other contracting party to sue for either specific performance and or reinstatement of the relationship or damages or both and as the law may permit. 

52.	All claims for judicial review would be dependent on a contractual relationship as in the beyond argument cases of employment, other contracts for and of services to more arguable cases. Those in the latter category would be cases in which the State grants certain rights or licenses such as State Leases over state land and the many kinds of licenses the State and its departments and instrumentalities grant from time to time. The grant of such rights or licenses are dependent on those who are granted such rights or licenses meeting certain prescribe terms and conditions and the State effectively undertaking to allow them to have the peaceful and quite use and enjoyment of the rights or license it grants them on the terms and conditions specified in the grant or the relevant and governing legislation. Of course, any breach of the terms and condition on which the grant was first founded could entitle the State to revoke the grant and take such steps as a necessary to give effect to that fact, as in the cases of deportation of an alien who has breached his or her visa conditions. 

53.	This broader view acknowledges the fact that, judicial review in itself, is not a cause of action. Instead, it is a special procedural process to address, steps, actions, inactions or decisions arrived at by other actors of the State which affect the rights and interest of other people who have a relationship with the State based mainly on contract or statue. Hence, the cause of action would be based on contract, as briefly explained above. 

54.	All other persons making a claim against the State would be third parties and therefore strangers who have come into contact with the State through its servants and agents. Such contact may have resulted in harm, loss or injury to the third parties through the wrongful actions or inactions of State servants and agents to form the foundation for a claim base on a tort. 

55.	Viewing the CBASA broadly did the minority view in the Downer Construction CASE, would render it necessary for anyone having a claim against the State to give notice of their intention to make a claim against the State first. This ties in well with the whole purpose of requiring the giving of notice, which is to give the State early notice of one's intention to make a claim to enable the State to make its own enquiries and decide whether to settle or defend the claim. Such a broad approach also avoids discrimination against different litigants based more on what process they chose to use rather than having only one requirement to apply to all claims against the State. Whilst we appreciate that Parliament can discriminate by legislation, it is restricted to assisting an already disadvantaged group of people, such as children for their protection and elevating their position to some acceptable levels. The opposite cannot be allowed to be the case. Hence, when it comes to statutory interpretation, the Courts are duty bound to be mindful of this and ensure that, in their interpretation and application of the law, there is no discrimination or mischief caused except as may be expressly provided for by any positive legislation for good reason. 

56.	The upshot of this discussion is this. Had it not been for the decision in the Mision Asiki case, we would not be slow to say, Paraka was required to give notice of its intention to make its claims against the State.

57.	The next relevant provision of the CBASA is s.12 (2). This provision stipulates:

"Notwithstanding anything in the National Court Rules, a court giving judgement against the State may not include any order as to time or method of payment for satisfaction of the judgement."

58.	The words used by this provision are absolutely clear, so much so that no art of interpretation is required. The provision recognises and preserves the power of a Court to arrive at a decision or judgment against the State. However, once the Court has arrived at a decision, this provision precludes the Court from fixing time frames and the manner in which payments due under a judgment or decision can be made. This is understandable and is one which leads us to the next two relevant provisions. 

59.	The next two provisions are ss. 13 and 14, which provide for the way in which a judgment against the State can be satisfied. In relevant parts they read:

" 13.	No execution against the State.

(1)	In any suit, execution or attachment, or process in the nature of execution or attachment, may not be issued against the property or revenue of the State.

(2)	Where a judgement is given against the State, the registrar, clerk or other proper officer of the court by which the judgement is given shall issue a certificate in Form 1 to the party in whose favour the judgement is given.

14.	Satisfaction of Judgement against the State.

(1)	The certificate referred to in Section 13(2) shall be served on the Solicitor-General by—
....
 (2)	The Solicitor-General shall, within 60 days from the date of service upon him of a certificate under Section 13(2), endorse the certificate in Form 1.

(3)	Upon receipt of the certificate of a judgement against the State bearing the Solicitor-General's endorsement that judgement may be satisfied, the Departmental Head responsible for finance matters shall, within a reasonable time, satisfy the judgement out of moneys legally available.

(4)	Any payment in satisfaction of judgement may, in the absolute discretion of the Departmental Head responsible for finance matters, be made by instalments, provided the judgement is thereby satisfied within a reasonable time.

(5)	No action—

(a)	for or in the nature of mandamus; or
(b)	for contempt of court,

or otherwise lies against the Solicitor-General or the Departmental Head responsible for finance matters in respect of the satisfaction of a judgement under this Act, other than for failure to observe the requirements of Subsection (2), (3) or (4), as the case may be, or unless other exceptional circumstances can be shown to the satisfaction of the court."

60.	This Court in Pansat Communications Pty Limited v. Morea Vele and The Independent State of Papua New Guinea (1999) SC604 (per Kapi DCJ, Hinchliffe J, Sheehan J.) considered these provisions in detail. It then interpreted these provisions in the following way with which we agree unreservedly and endorse as correct:

"... s 13 has to be read with s 14 of the Act. Section 14 requires the Solicitor-General and the Departmental Head responsible for financial matters to comply with certain requirements in relation to a judgment given against the State. The first is that the Solicitor-General should endorse a Certificate of Judgment within 60 days of service upon him of the Certificate (s 14 (2)). The second is that when such Certificate is served upon the responsible Departmental Head for finance matters, he shall satisfy the judgment out of moneys legally available within a reasonable time (s 14 (3)). Payment in satisfaction of the judgment may be made by way of instalments ( s 14 (4)).

Subsection 14 (5) specifically prohibits any action for mandamus or contempt of court proceedings against the Solicitor-General or the responsible Departmental Head in respect of the satisfaction of a judgment other than for failure to observe the requirements set out in s 14 (2), (3) and (4) of the Act. This prohibition is no different in effect to the prohibition under s 13 (1) of the Act except that the prohibition here is specifically against an action for mandamus or contempt of court proceedings.

However, there is an express exception to this prohibition in the latter part of s 14 (5). This effectively means that an action for an order for mandamus or contempt of court to enforce the requirements set out in s 14 (2) and (3) of the Act may be brought against the appropriate officer. Where there is a failure by the Solicitor-General or the Departmental Head responsible for financial matters to comply with the requirements under s 14 (2) and (3) of the Act, an action for mandamus or contempt of court may be brought against them to ensure compliance."

61.	Having regard to the above discussions, we have no hesitation in answering the second sub-issue of the third main issue in the negative. This now leaves us to consider its application to the case before us.

Application of the law to the facts

 62.	In the case before us, we found that, Paraka did not demonstration to the Courts satisfaction that he properly secured the brief-out or engagements from the State for the provision of legal services. This proceeded on the basis, that no evidence was produced before the trial judge and drawn to our attention in the appeal that the due process under the Public Finance (Management) Act was followed. Similarly Paraka failed to demonstrate to our satisfaction that, he entered into a legally binding agreement with the State on the terms of his engagement. Further, he failed to demonstrate to our satisfaction that, he rendered his bill of costs in taxable form as required and in accordance with the Lawyers Act, which was accepted by the State or failing such acceptance, taxed with a certificate of taxation issue, which then formed the foundation for his claims and the orders the learned trial judge eventually issued. Furthermore, the exact amounts in excess of K6 million each were not specifically pleaded. That legally served as a bar to making any orders for any sum of money. Despite that, the learned trial judge erroneously made orders for the payment of such large sums of money. Finally, we have found that, the decisions and orders the learned trial judge arrived at were on an interlocutory application and not out of a trial proper resulting in judgment and orders in the normal way.

63.	The above summary of what we have found in this case clearly demonstrates that the decisions and orders of the learned trial judge were highly irregular and seriously flawed from the outset. We are firmly of the view that, if the learned trial judge correctly directed his mind to the matters we have discussed in all of the foregoing, he would not have arrived at any of the orders he arrived at safe only for the grant of leave for judicial review. Hence, there was a serious impediment to the learned trial judge making the orders he made. If however he correctly arrived at his decisions and the orders he made, (which we maintain he did not) he was expressly precluded by s.12 (2) of the CBASA, from making the orders in the terms he made. Those orders in effect precluded and prevented the normal process under ss. 13 and 14 of the CBASA, to take their normal course for the orders for payment properly arrived at. The orders also had the effect of improperly, interfering with the due process of financial administration of the State through the Departments of Finance and Treasury as well as that of the Bank Papua New Guinea. 

Decision and orders of the Court

64.	On the basis of the facts as we found and the law as discussed and state above, we are of the view that both appeals should be allowed. Proceeding on that basis the Court makes the following orders:

(1)	Both appeals SCM 15 of 2006 and SCM 3 of 2007 are allowed.

(2)	Except only for the orders granting leave, the decision and orders of the National Court in National Court proceedings, OS 829 of 2006 and OS 876 of 2006, respectively arrived at on 17th November 2006 and 02nd March 2007 are quashed and set aside.
 
(3)	The substantive proceedings in both of the above National Court proceedings are remitted back to the National Court for a proper progressing of the substantive judicial review applications to expedited hearings.

(4)	In view of the long period of time that has been allowed to past mainly on account of the Respondent, Paraka Lawyers, they are required to take all of the steps that need to be taken to have their review applications heard at the first available date after today and in any event without delay.

(5)	The Respondent shall pay all of the Appellants costs in both Appeals and the costs of the National court proceedings leading to the appeals.

____________________________________________

Paul Mawa Lawyers: Lawyers for the Appellant
Kombri Lawyers: Lawyers for the Respondent