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Gaigo, Representing Batari and Bais v Employer's Federation of PNG, Representing WR Carpenters [1979] PNGLR 92 (2 April 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 92 - Bobby Gaigo, Representing Mrs Henao Batari and Mrs Dai Bais v The Employer's Federation of PNG, Representing WR Carpenters 

[1979] PNGLR 92

N185

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

BOBBY GAIGO AGENT REPRESENTING HENAO BATARI AND DAI BAIS

V

THE EMPLOYERS’ FEDERATION OF PAPUA NEW GUINEA REPRESENTING W. R. CARPENTER (P.N.G.) LTD.

Waigani

Greville Smith J

15 March 1979

2 April 1979

LEGAL PRACTITIONERS - Right of audience - Person not admitted as barrister or solicitor - Purporting to appear as agent - National Court - No right of audience - Legal Practitioners Act 1954 s. 42[lxxxvi]¹ - Constitution, s. 57[lxxxvii]2.

COURTS AND JUDGES - Right of audience - Person not admitted as barrister or solicitor - Purporting to appear as agent - National Court - No right of audience - Legal Practitioners Act 1954 s. 42[lxxxviii]³ - Constitution, s. 57[lxxxix]4.

APPEAL - National Court - No right of appeal - Purported appeal from award in industrial tribunal - No alternative relief sought - Whether any remedy available - Appropriateness of treating as application for order nisi for writ of certiorari - Proceedings struck out.

In proceedings, purporting to be an appeal from an award made in an industrial dispute under the provisions of the Industrial Relations Act 1962, Mr. Gaigo, a non-lawyer purported to act and appear on behalf of two women the subject of the award, he having represented the women at the arbitration proceedings “because they were members of his clan”. Neither woman was under any legal disability or incapacity.

Held

(1)      Mr. Gaigo, being neither in substance nor in reality a party to the proceedings, had no right of audience before the National Court, nor any right to lend his name to such proceedings.

(2)      Mr. Gaigo, not being a person entitled to practise as a barrister or solicitor, was further prohibited from appearing before the National Court by the provisions of s. 42 of the Legal Practitioners Act 1954.

(3)      Further, no assistance could be derived from s. 57 of the Constitution of the Independent State of Papua New Guinea, there being:

(a)      no right or freedom in Div. 3 (Basic Rights) of the Constitution, in need of protection or enforcement;

(b)      no reason why either woman should not fully and freely exercise any rights she might have under the section, either by herself or with the aid of available qualified legal representation; and

(c)      no circumstances which would qualify Mr. Gaigo, as a person having an interest, within the meaning of s. 57(1) of the Constitution, in the protection or enforcement of any right or freedom arising out of or related to the arbitration, or otherwise relevant.

(4)      There is no statutory right of appeal from an award in an industrial dispute to the National Court.

(5)      Where no appeal lies and no alternative relief is sought, it may, in an appropriate case, be open to the court to treat the proceedings before it as an application for an order nisi for a writ of certiorari.

The Justices Acts (Queensland), Kennedy Allen, 3rd ed., p. 485, referred to.

(6)      Neither of the women being present in court, or available, and there being still sufficient time to obtain qualified legal advice and take any appropriate action for certiorari, the matter was not an appropriate one to be treated as an application for an order nisi for writ of certiorari, and the proceedings should be struck out.

Appeal

These were proceedings purporting to be an appeal from an award made in an industrial dispute under the provisions of the Industrial Relations Act 1962 and instituted (and intituled) by “Bobby Gaigo representing Henao Batari and Dai Bais”. At the hearing objection was made to the appearance of Mr. Gaigo for Henao Batari and Dai Bais and the jurisdiction of the National Court to hear the matter.

Counsel

R. B. Wood, for the respondents.

Cur. adv. vult.

2 April 1979

GREVILLE SMITH J: This matter was initiated by a document dated 19th January, 1979, lodged in the Registry of this Court. Such document was signed by one Bobby Gaigo, was intituled as above, and continued in terms exactly as follows:

“1.      Take Notice: The above mention names appellant appeals against the whole of decision before an arbitration consisting of Mrs. Margret Kila, made on the day of 19th December, 1978, at Port Moresby and Central Province and that any respondent or person aggrieved by notice of appearance in the Registry of National Court within twenty-eight days of the filling of this notice of appeal.

2.       The appellant appeal against the whole of said decision.

3.       The ground of appeal and particulars there are of:

(a)      That the hearing of tribunal were conducted in manner contrary to Natural Justice.

(b)      The decision was against the weight of evidences.

(c)      The tribunal was failed and exceeded its jurisdiction wrong in Law.

(d)      The tribunal failed and refused to take evidences from appellant.

4.       The appellant. Seek following orders:

(a)      That the decision be set aside and that an order issued or awarded to reinstate of said employees, and payment of wages loss to be paid resprotives to the 29th May, 1978, be awarded to the appellant.

(b)      That the respondents be ordered to pay cost of this appeal.

(c)      Such further or others orders as this deem fit.

Dated this 19th Day of January 1979

Bobby Gaigo

AGENT FOR THE APPELLANT” [sic]

When the matter was called, the said Bobby Gaigo came forward, announced that he appeared for the “appellant” and seated himself at the bar table. Mr. Wood of counsel then stated that he appeared on behalf of the Employers’ Federation of Papua New Guinea and on behalf of W. R. Carpenter (P.N.G.) Ltd., and that such appearance was qualified in that his instructions extended only to submitting and to arguing that, firstly, Mr. Gaigo had no right of audience before this court in the matter and, secondly, that no appeal lay from the tribunal in question to the National Court.

The material before me consisted of the initiating document aforementioned, a document signed by Mr. Gaigo and lodged with the Registry requesting that the matter be entered for hearing, and a nine page document which, without specific objection from Mr. Wood, I permitted Mr. Gaigo to hand to the court, purporting to be a written award, with reasons, made in an industrial dispute under the provisions of the Industrial Relations Act 1962, as amended. The document was not authenticated in any way, apart from Mr. Gaigo’s say-so, unless I could take judicial notice of the signature at the end of the document which purported to be that of “Margaret Kila, Chairman”, but Mr. Wood stated that he did not challenge the authenticity of the document and was good enough to agree that the arbitration referred to was an arbitration under the Industrial Relations Act, and that the award had been duly registered and notified in the Government Gazette in accordance with the provisions of that Act; in short, that the award was a valid award under the provisions of the Act.

After Mr. Wood had concluded his initial arguments firstly that Mr. Gaigo had no right of audience and secondly that no right of appeal lay from the industrial tribunal in question, I explained to Mr. Gaigo the basic nature and import of Mr. Wood’s submissions and asked Mr. Gaigo whether he had any arguments to offer in opposition to such submissions. Mr. Gaigo said that he had not, except that it was “most unfair for the respondents to take such points”.

On the first and title page of the nine page award document handed up by Mr. Gaigo the proceedings to which it relates are described as follows as being:

“In the matter of an industrial dispute

between:

Mr. BOBBY GAIGO, agent representing

Mrs. HENAO BATARI and Mrs. DAI BAIS

applicant

and

THE EMPLOYERS’ FEDERATION OF PAPUA NEW GUINEA, representing W. R. CARPENTERS (P.N.G). LTD.

respondent

and

In the matter of a claim for reinstatement of the two terminated employees. HENAO BATARI and DAIS BAIS and a claim for wages to be paid retrospective to 29th May, 1978.” [sic]

On the second page the document commences as follows:

“This tribunal was established by the then Minister for Labour and Industry, Mr. Jacob Talia Lemeki on the 14th September, 1978, and under the power conferred by Ss. 13, 23 and 25 of the Industrial Relations Act 1962 (as amended) to hear and decide on industrial dispute. Mr. B. Gaigo, agent representing Mrs. Henao Batari and Mrs. Dai Bais of the one part and the Employers’ Federation of Papua New Guinea of the other part, and further specified the undersigned to constitute the tribunal.

This industrial dispute concerns matters relating to the dismissal or termination of two employees, H. Batari and D. Bais of W. R. Carpenters (P.N.G.) Ltd.

The terms of reference to this tribunal are:

‘1.      Reinstatement of the said employees.

2.       Payment of wages retrospective to 29th May, 1978’.” [sic]

On p. 8 of the document the award is set out as follows:

“AWARD

The tribunal determines that the applicants claims for reinstatement of the said employees and payments of wages to be paid retrospective to the 29th May, 1978, be dismissed.”

From a perusal of the whole of this document it is perfectly clear that the industrial dispute with which the tribunal was dealing was not one to which Mr. Gaigo was in reality a party or in which he had any legal interest or right and that the award made was not one which concerned or affected him in any legal way. Mr. Gaigo appeared as advocate for Mrs. Henao Batari and Mrs. Dai Bais, but that was all. Mr. Gaigo conceded as much in answer to questions by me, and stated that he had appeared at the arbitration only because the two ladies were members of his clan, and that for the same reason he wished to appear for them in this court. It does not appear and it is not suggested that the ladies were or are under any legal disability or incapacity.

This being the situation it seems to me that Mr. Gaigo is not in substance or in reality a party to these proceedings before me and that the title of the initiating document is thus in need, if matters were to proceed further, of amendment; also that in the circumstances Mr. Gaigo is prohibited by the provisions of s. 42 of the Legal Practitioners Act 1954 from appearing before me as he wishes to do, and that I am unable to hear him. The said section provides as follows:

“42.    Prohibition against unqualified persons

Except as provided for in an Ordinance, a person shall not act as a barrister, as a solicitor or as a barrister and solicitor, or conduct a proceeding in the name of another person in a court of civil or criminal jurisdiction in Papua New Guinea, unless he has been admitted or provisionally admitted, and is entitled to practise as a barrister and solicitor at the time of so acting or of conducting any proceedings referred to, as the case may be.

Penalty: Two hundred dollars.”

Mr. Gaigo has not been admitted or provisionally admitted within the meaning of that section and does not fall within any exception thereto.

I should add that it does not seem to me that Mr. Gaigo derives any assistance from the provisions of s. 57 of the Constitution of the Independent State of Papua New Guinea, sub-ss. (1) and (2) of which provide as follows:

“57.    ENFORCEMENT OF GUARANTEED RIGHTS AND FREEDOMS

(1)      A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

(2)      For the purposes of this section:

(a)      the Law Officers of Papua New Guinea; and

(b)      any other persons prescribed for the purpose by an Act of the Parliament; and

(c)      any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,

have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.” (The emphasis is mine.)

I am of the opinion just expressed because, firstly, I do not see arising out of, involved in, or disclosed by the arbitration proceedings or these proceedings before me any right or freedom referred to in the division of the Constitution in which s. 57 appears, namely Divn 3 (Basic Rights), in need of protection or enforcement and, secondly, it does not appear to me that either of the ladies concerned is unable fully and freely to exercise any rights she may have under the section, either by herself or with the aid of available qualified legal representation. Furthermore, in my opinion Mr. Gaigo would not, in all the circumstances, qualify as a person who has an interest, within the meaning of sub-s. (1) of s. 57, in the protection or enforcement of any right or freedom arising out of or related to the arbitration, or otherwise relevant.

I now turn to Mr. Wood’s submission that no appeal lies from the award in question to this court. Mr. Wood submits that there exists no statutory right of appeal from an award of the tribunal in question to this court, nor have I been able to find one. Mr. Wood submits that in the circumstances the orders sought in the initiating document before me should be denied and the proceedings dismissed. He does concede, however, that the tribunal would, in a proper case, be amenable to correction by this court by way of writ of certiorari, but says that I have no application for the issue of a writ of certiorari before me.

It would appear that in a situation such as this, where no appeal lies and where alternative relief has not been claimed, it would nevertheless, in an appropriate case, be open to the court to treat the proceedings before it as an application for an order nisi for a writ of certiorari. See The Justices Acts (Queensland), by Kennedy Allen, 3rd ed., at p. 485, third paragraph and the cases cited therein. However I do not think such a course should be followed in this case, even assuming there were a “prima facie” case, which I make no decision on. Mrs. Henao Batari and Mrs. Dai Bais are not present in court being, so Mr. Gaigo informs me, in Lae so I cannot ascertain their wishes in the matter. They almost certainly have not had any competent legal advice as to the merits of their respective cases, the matter of the security provisions of O. 81 r. 10 of the Orders and Rules of this court, or the possibility of costs being awarded against them. I have not before me, in fact, any material which would satisfy me that these proceedings now before me were instituted and carried forward to this point with their authority. Furthermore, the time limitation of six months imposed in O. 81 r. 7 upon the making of an order nisi for a writ of certiorari has some months yet to run, and so the two ladies concerned have quite sufficient time to obtain qualified legal advice and to take such action consequent thereon as they may be advised and desire.

In the circumstances Mr. Gaigo will not be heard further, I see no good reason to adjourn proceedings on my own initiative, the orders sought in the initiating document before me are refused and the proceedings struck out. By the generosity of Mr. Wood’s clients there is no application from Mr. Wood for costs and in consequence no order for costs.

They would, I think, have been entitled to costs against Mr. Gaigo had they sought costs.

I think I should add, for the information of Mr. Gaigo and in reference to his remark that Mr. Wood’s clients were acting very unfairly, that Mr. Wood as an officer of this court, had a professional obligation to draw attention of the court, if need be, to the fact that Mr. Gaigo had no right of audience and that no statutory right of appeal from the tribunal existed. As it happened these things were apparent to the court anyway, though the court is grateful for Mr. Wood’s assistance, and the same consequences as have ensued would have ensued without Mr. Wood’s intervention such consequences necessarily following because of the state of the relevant law.

Proceedings struck out.

No order for costs.

Solicitors for the respondents: McCubbery, Train Love & Thomas.

[lxxxvi]Infra p. 96.

[lxxxvii]Section 57 of the Constitution provides:

(1)        A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

(2)        For the purposes of this section —

(a)        the Law Officers of Papua New Guinea; and

(b)        any other persons prescribed for the purpose by an Act of the Parliament; and

(c)        any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,

have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.

[lxxxviii]Infra p. 96.

[lxxxix]Section 57 of the Constitution provides:

(1)        A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority.

(2)        For the purposes of this section —

(a)        the Law Officers of Papua New Guinea; and

(b)        any other persons prescribed for the purpose by an Act of the Parliament; and

(c)        any other persons with an interest (whether personal or not) in the maintenance of the principles commonly known as the Rule of Law such that, in the opinion of the court concerned, they ought to be allowed to appear and be heard on the matter in question,

have an interest in the protection and enforcement of the rights and freedoms referred to in this Division, but this subsection does not limit the persons or classes of persons who have such an interest.