Griffin v Westpac Bank [1993] PNGLR 352 (30 April 1993)

APPLICATION FOR LEAVE TO REVIEW PURSUANT TO CONSTITUTION S 155(2)(B) FRANK A. GRIFFIN

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JUDGMENTS AND ORDERS - By consent - Application to set aside - Considerations for review.

ADMINISTRATIVE LAW - Judicial review - Section 155(2)(b) Constitution - Setting aside consent order - Applicant does not have to satisfy the Court as to why he did not appeal when there is no right of appeal against a consent order.

The respondent mortgagee claimed possession of the mortgaged property and took out a summons for a possession order. The lawyers for the mortgagor consented to the order. The mortgagor sought judicial review of the order under s 155(2)(b) of the Constitution on the ground that the lawyers acted on his behalf without instructions.

1. In an application to set aside a consent order, the applicant does not have to satisfy the court as to why he did not appeal, when there is no right of appeal against the consent order.

2. It is not just to allow a consent order to stand where the lawyer purporting to act on behalf of a litigant had no instructions to act in the matter.

KAPI DCJ LOS KONILIO JJ: In an originating summons, the respondent claimed an order for possession of the premises known as allotment 16, section 144, Matirogo, National Capital District. This possession was claimed pursuant to a memorandum of mortgage, number 66505 dated 23 June 1988, made between the respondent and the applicant. This mortgage was executed for certain monies that were advanced to the applicant. The summons was originally set down for 25 September 1992. According to the chronology of events submitted, Mr Jack Patterson of Henaos, Lawyers and Attorneys, sought an adjournment on the basis that he required to seek instructions from the applicant. The matter was adjourned to 5 October 1992 on this basis. It is not disputed that Mr Yasbi of Henaos then appeared for the applicant and consented to the orders made at the hearing on 5 October 1992. It is not clear from the evidence whether Mr Yasbi obtained the instructions that were required to be obtained by Mr Patterson at the hearing on 25 September 1992. I will return to this matter later as this is the basis of the judicial review. The court ordered that the applicant give possession of the said premises to the respondent.

The respondent took out a further summons dated 16 December 1992 for a writ of possession. An order for a writ of possession was made on 18 December 1992.

The applicant has appealed against the court order dated 18 December 1992 (SCA 29 of 1993). This matter is pending in the Supreme Court.

The applicant sought a judicial review of the order made on 5 October 1992 under s 155(2)(b) of the Constitution. It is this matter which has come before us for determination. The ground relied upon is that at no stage did the applicant give any instructions to Henaos, Lawyers and Attorneys to represent him in this matter.

The principles governing a s 155(2)(b) review have been settled by the Supreme Court. This jurisdiction was developed in the case of Avia Aihi v The State [1981] PNGLR 81 and Avia Aihi v The State (No 2) [1982] PNGLR 44. See also Sunu v The State [1984] PNGLR 305; State v Colbert [1988] PNGLR 138. It is not necessary to set out these principles again here. One of the relevant considerations is that, if the applicant has a right of appeal and he has not exercised this right and has allowed the time in which to appeal to expire, he is required to satisfy the Supreme Court why time to appeal was allowed to expire. It has also been held by the Supreme Court that where there is no right of appeal, the applicant does not have to satisfy this criteria. SCR No 5 of 1987; Re Central Bank Regs [1987] PNGLR 433; SCR No 5 of 1988; Kasap and Yama [1988-89] PNGLR 197.

In the present case, the decision appealed from is a consent order, and under s 14(2) of the Supreme Court Act, there is no right of appeal. In accordance with the cases set out above, the applicant does not have to satisfy why he did not appeal within time.

Are there cogent or convincing reasons or exceptional circumstances or any matter in the interest of justice that the order made should be reviewed? The point raised by the applicant is a simple one. The lawyer that appeared and consented to the order had no instructions at all from the applicant. This is a very serious allegation. A lawyer on record can bind his client unless his authority is limited and the client communicated this limit to him. Where a client acts in such a way that leads his lawyer to believe he has this authority, the lawyer can bind the client, see Waugh v H.B.Clifford & Sons Ltd [1982] 1 All ER 1095. In such a case, an opposing litigant is not required to prove that the lawyer has authority from his client. But the authority to bind the client is limited to the terms which do not involve extraneous matters. See Halsbury's Laws of England 4th ed vol 44 para 116. Some of the clear examples of non-extraneous matters are interlocutory proceedings to facilitate speedy resolution of the substantive issues and, hence, finality may be reached. The facts in the proceedings before the National Court show that the plaintiff wanted possession of certain property, which was the end result intended by the proceedings, and a lawyer could not consent to parting with the possession unless he had a clear authority from the client.

The necessity to obtain instructions was first indicated by Mr Patterson of Henaos, Lawyers and Attorneys on 25 September. When the matter resumed again on 5 October, Mr Yasbi of Henaos appeared on record. The applicant has strongly denied that he gave any instructions at all to Henaos. The applicant has not been cross-examined and no evidence has been called to rebut this suggestion. In absence of any evidence to the contrary, the conclusion is inevitable that the applicant gave no instructions to Henaos to act in this matter.

It is clear law that any lawyer admitted to practice law cannot act in a matter unless he has instructions to act in the matter. We need not refer to any authority to support this proposition. It is simply not just to allow a consent order to stand in these circumstances. If this is not corrected, lawyers could do things on behalf of people who did not give any instructions. To leave the matter in the circumstances of this case would be unjust to the applicant.

We have considered the question of whether it is relevant to consider whether the applicant has any defence to the summons for possession of land. When this was raised by counsel for the applicant in the course of his submissions, counsel for the respondent objected that the applicant could not raise any issues of merit. Counsel for the applicant was only able to indicate that the matter would be defended. We are not in a position to assess the merits as the matter was a consent order.

We quash the consent order and send the matter back to the civil judge to fix a date for the hearing of the originating summons as soon as possible.

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Papua New Guinea Law Reports

Griffin v Westpac Bank [1993] PNGLR 352 (30 April 1993)

PNG Law Reports 1993