Home | Databases | WorldLII | Search | Feedback Supreme Court of Papua New Guinea

Valu v Ngagan [2018] PGSC 62; SC1723 (30 October 2018)

SC1723
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM NO. 13 OF 2018

BETWEEN
DONALD VALU, Chief Executive Officer of KONEBADA PETROLUEM PARK AUTHORITY
First Appellant

AND
KONEBADA PETROLUEM PARK AUTHORITY
Second Appellant

AND
DR. KEN NGAGAN, Secretary of Finance
First Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEWGUINEA
Second Respondent

Waigani: Cannings J, Makail J & Geita J
2018: 29^th & 30^th October

SUPREME COURT – PRACTICE & PROCEDURE – Objection to Competency – Authority of lawyers to act for appellants – Signing of notice of motion for appeal – Authority of lawyers to sign – Attorney-General Act, 1989 – Section 7 – Public Money Management Regularization Act, 2017 – Section 10 – Konebada Petroleum Park Authority Act, 2008 – Sections 5 & 9

Cases cited:
Waghi Savings and Loan Society Ltd v. Bank South Pacific Ltd (1980) SC185

Counsel:
Mr. L. Evore, for Appellants
Mr. M. Wangatau, for Respondents

RULING ON OBJECTION TO COMPETENCY

30^th October, 2018

1. BY THE COURT: From the material before us and what we have heard from counsel for the parties, we are able to work out that the second appellant is an Authority established under Section 5 of the Konebada Petroleum Park Authority Act, 2008 (“KPPA Act”). It has and is run by a Board established under Section 9 of the KPPA Act.

2. On 17^th November 2017 Jema Lawyers acting on behalf of the appellants commenced proceedings in OS (JR) No 887 of 2017 and sought leave for judicial review of certain decisions and actions of the first respondent in relation to assets and funds of the second appellant.

3. No approval was obtained from the Board to commence OS (JR) No 887 of 2017 proceedings. It was not until 5^th December 2017 that approval was obtained. On 21^st June 2018, the National Court refused the application for leave holding that the appellants failed to establish the requisite standing to bring the application for leave because no approval was obtained from the Board prior to commencing proceedings under Section 9 of the KPPA Act.

4. The primary judge further held that Jema Lawyers were not authorised to act for the appellants because the appellants did not obtained approval from the Board under Section 10 of the Public Money Management Regularisation Act, 2017 (“PMMR Act”).

5. On 25^th June 2018 Jema Lawyers filed this appeal as lawyers for the appellants to challenge the decision of the primary judge to refuse the application for leave. Four days later, on 29^th June 2018 the appellants obtained an order to stay the decision of the National Court and further, amongst other things, restrained the first respondent, his servants, agents and associates from accessing, dealing, disposing and conducting any transactions on the funds of the second appellant held at Bank South Pacific Ltd including conducting an investigation into the affairs of the Board. The order has not been set aside and is currently in force.

6. On 13^th July 2018 the respondents filed an objection to competency. The objection is based on the failure by the appellants to obtain approval from the Attorney-General prior to engaging Jema Lawyers to institute this appeal. As a result, they allege that Jema Lawyers have no authority to sign and file the notice of motion constituting the appeal. The respondents refer to Order 10, rule 3(d) of the Supreme Court Rules, Section 7 of the Attorney-General Act, 1989 (“AG Act”) and Section 10 of the PMMR Act, as source of the Court’s power to strike out the appeal as being incompetent.

7. The respondents’ objection turns on the question of authority of Jema Lawyers to institute and prosecute this appeal for the appellants. There is no contest that the ground of objection raises the question of whether the jurisdiction of the Court has been correctly engaged by the appellants: Waghi Savings and Loan Society Ltd v. Bank South Pacific Ltd (1980) SC185.

8. The respondents submit that Section 10 of the PMMR Act is mandatory and as an Authority, the second appellant was obliged to comply with Section 7 of the AG Act, and obtain approval from the Attorney-General prior to engaging Jema Lawyers to institute this appeal.

9. The appellants did not contest these submissions but contend that as a separate entity with capacity to sue and be sued, it was open to the second appellant to engage its own lawyers to act for the appellants and Section 10 of the PMMR Act, should not operate as a bar to their right to engage a lawyer of their own choice.

10. Section 10 of the PMMR Act states:

“10. Legal representation of public and statutory bodies.

(1) For the purposes of this Act, a public or statutory body shall not engage legal representation, commence any action or other proceeding in any court or tribunal or procure or contract for legal representation for any purpose other than in compliance with the Attorney-General Act 1989.

(2) Prior to the Attorney-General exercising his powers pursuant to Section 7 of the Attorney-General Act 1989 —

(a) the State Solicitor shall certify to the Attorney-General whether the lawyers to be appointed are, in the opinion of the State Solicitor, experienced and with sufficient professional competence in the area of law to represent a public or statutory body; and

(b) the Attorney-General shall satisfy himself that all procurement laws in Papua New Guinea have been complied with to the extent necessary for him to exercise his powers.

(3) Legal representatives of public and statutory bodies shall not receive or charge for any fees or disbursements other than taxed party-party or solicitor-client costs on the scale of fees of the appropriate Court.

(4) For the purposes of this section and Section 11 —

"public body" means an agency which is part of the State Services established under Part VII of the Constitution and includes a Provincial Government or Local-level Government established under the Organic Law on Provincial Governments and Local-level Government; and

"statutory body" means a body, authority or instrumentality (incorporated or unincorporated) established under an Act of the Parliament or howsoever otherwise for governmental or official purposes, including a subsidiary statutory body that is not a public body, and includes a body, authority or instrumentality (incorporated or unincorporated) established by a Provincial Government or Local-level Government or their subsidiary statutory bodies that are not public bodies.”

11. We accept the respondents’ submission that Section 10 is expressed in mandatory terms. This means that all public or statutory bodies must comply with the AG Act. According to Section 7(j) the duties, functions and responsibilities of the Attorney-General include instructing lawyers within or outside the country to appear for the State in any matter.

12. The second appellant would be categorised as a statutory authority under Section 10(4) of the PMMR Act and therefore required by Section 10(1) to comply with the AG Act and obtain approval from the Attorney-General to engage lawyers within or outside the country to appear for it in this appeal. Thus, notwithstanding that the second appellant is a separate entity and capable of suing and being sued, it must still comply with the requirement of Section 10 of the PMMR Act and seek approval from the Attorney-General to engage lawyers to act for it.

13. As there is no contest that the second appellant did not obtain approval from the Attorney-General prior to engaging Jema Lawyers to institute this appeal, we are satisfied that the appellants have failed to comply with Section 7 of the AG Act and Section 10 of the PMMR Act. We are further satisfied that Jema Lawyers did not have the requisite authority to sign and file the notice of motion constituting the appeal under Order 10, rule 3(d) of the Supreme Court Rules.

14. We come to the conclusion that the appellants did not correctly engage the jurisdiction of the Court and the appeal is incompetent. The appeal will be dismissed in its entirety and the order staying the National Court proceedings and restraining the respondents dated 29^th June 2018 will be discharged forthwith.

15. The orders are:

1. The respondents’ objection to competency is upheld.

2. The appeal is dismissed as being incompetent.

3. The order for stay dated 29^th June 2018 is discharged forthwith.

4. The appellants shall pay the respondents’ costs of the objection and appeal on a party/party basis, to be taxed if, not agreed.
________________________________________________________________
Jema Lawyers : Lawyers for Appellants
Acting Solicitor-General : Lawyers for Respondents