Polume-Kiele v Attorney General & Minister for Justice [2009] PGNC 228; N4070 (16 March 2009)

N4070

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 103 OF 2009(JR)
OS 104 OF 2009(JR)

HITELAI POLUME-KIELE, ACTING SECRETARY FOR DEPARTMENT OF JUSTICE & ATTORNEY GENERAL
Plaintiff

AND:

ATTORNEY GENERAL & MINISTER FOR JUSTICE, DR. ALLAN MARAT
First Defendant

AND:

NEVILLE DEVETE (OS 103 OF 2009(JR))
Second Defendant

AND:

LAIAS KANDI (OS 104 OF 2009(JR))
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Hartshorn J.
2009: 13th & 16th March

Application for Leave for Judicial Review – Appointments by Attorney-General pursuant to Attorney-General Act – Consideration of sections 4, 10, 11, 12 & 13 Attorney-General Act and sections 28, 33 & 35 Lawyers Act

Facts:

This is an application for leave to apply to judicially review the decisions of the Attorney General and Justice Minister to appoint the second defendants Neville Devete and Laias Kandi, as Acting Solicitor-General and Acting Deputy Solicitor General respectively. The application is based on the grounds of excess of jurisdiction and errors of law, and that the decisions were ultra vires and unreasonable.

Held:

1. A consideration of all of the grounds upon which the plaintiff relies does not disclose what might on further consideration turn out to be an arguable case in favour of the plaintiff.

2. The relief sought in both amended originating summons and notices of motion is refused.

Cases cited:

Papua New Guinea Cases:

Ila Geno & Ors v. The Independent State of Papua New Guinea [1993] PNGLR 22
Application by Andrew Posai [1995] PNGLR 350
Pora v. Leadership Tribunal [1997] PNGLR 1
Air Niugini Ltd v. Beverley Doiwa [2000] PNGLR 347

Overseas cases:

Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 AC 374
Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617
R. v. Hillingdon London BC [1986] UKHL 1; [1986] AC 484

Counsel:

Mr. P. Kuman, for the Plaintiff
Mr. A.W. Jerewai, for the Defendants

16th March, 2009

1. HARTSHORN J. The Acting Secretary for the Department of Justice and Attorney General, Mrs. Hitelai Polume-Kiele, (Acting Secretary), seeks leave to apply to judicially review the 2 decisions of the Attorney General and Minister for Justice, Dr. Allan Marat (Attorney General), to reappoint Mr. Neville Devette as Acting Solicitor General and Mr. Laias Kandi as Acting Deputy Solicitor General. The decisions were made on or about 10th February and were published in the National Gazette on 11th February 2009.

2. Separate proceedings were issued in respect of each decision. Both applications were heard together and it is convenient that they be considered together.

3. An application for leave for judicial review involves the exercise of discretion. The discretion must be exercised judicially. The court should be satisfied that the applicant has sufficient interest, that the application is brought without delay, that any other statutory or administrative remedies that the applicant may have are exhausted and that the applicant has an arguable case.

4. In the Supreme Court case of Pora v. Leadership Tribunal [1997] PNGLR 1, Kapi DCJ (as he then was) stated that the true nature of an application for leave was as set out by Lord Diplock in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617 at 644;

"If, on a quick perusal of the material available, the Court (that is the Judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting the applicant the relief claimed, it ought in the exercise of a judicial discretion to give him leave to apply for the relief. The discretion that the court is exercising at this stage is not the same as which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application".

This passage was adopted in Ila Geno & Ors v. The Independent State of Papua New Guinea [1993] PNGLR 22. I will consider whether the Acting Secretary has an arguable case first.

Arguable case

5. The grounds relied upon by the Acting Secretary in support of her submission that she has an arguable case are:

a) excess of jurisdiction

b) errors of law

c) ultra vires

d) unreasonableness

Excess of jurisdiction

6. The Acting Secretary submits that the Attorney General does not come within the meaning of the phrase "is a lawyer fully admitted to practice under the Lawyers Act 1986" in s.4 Attorney-General Act, is therefore not the Attorney-General of Papua New Guinea and could not perform or discharge powers as such under the Attorney-General Act. Section 4 Attorney-General Act is:

Where the Minister responsible for the National Justice Administration is a lawyer fully admitted to practice under the Lawyers Act 1986 he is the Attorney-General and principal legal adviser to the National Executive.

7. The Acting Secretary submits that to come within the meaning of the phrase "is a lawyer fully admitted to practice under the Lawyers Act 1986", one must amongst others, be the holder of a practising certificate at all material times, and the Attorney General at all material times, was not the holder of a practising certificate.

8. The Acting Secretary relies upon sections 33 and 35(1) Lawyers Act which are:

33. Practise.

A person-

(a) who has been admitted to practise as a lawyer under section 28; and

(b) has signed the Roll,

may practise as a lawyer in accordance with the provisions of this Act.

35. Requirement to hold a practising certificate.

(1) A person shall not practice as a lawyer unless-

(a) he has signed the Roll; and

(b) he is the holder of a current restricted or unrestricted practising certificate.

9. When reading these sections, the plain and ordinary meaning is that a person who has been admitted to practice as a lawyer and signed the Roll, may practice as a lawyer, in accordance with the provisions of the Act. To actually practice as a lawyer, a person must sign the Roll and be the holder of a practicing certificate. There is clearly a distinction between admission and practice. One can be admitted but not practice, but one cannot practice without being admitted.

10. As to being "fully admitted to practice", there is no specific provision for this under the Lawyers Act 1986. Pursuant to s. 28 Lawyers Act 1986, a person is admitted. So once a person is admitted there is no further level of admission to aspire to - a person admitted is fully admitted. For a lawyer to come within the phrase "is a lawyer fully admitted to practice under the Lawyers Act 1986", in my view does not require a practicing certificate. If that lawyer admitted to practice wanted to practice, he would then require a practicing certificate.

11. Given the above, I am not satisfied that this ground discloses what might on further consideration turn out to be an arguable case in favour of the Acting Secretary.

Errors of law - Mr. Devete

12. The Acting Secretary submits that the decision to reappoint Mr. Devete is contrary to sections 12 and 13(1) Attorney-General Act as at the time, Mr. Devete was not eligible to be appointed as he did not hold a practicing certificate. These sections are:

12. Qualifications for appointment as Solicitor-General.

No person is eligible to be appointed as Solicitor-General unless he is a lawyer fully admitted to practise in accordance with the Lawyers Act 1986, who has practised as a lawyer within the country for a period of at least five years prior to his appointment as Solicitor-General.

13. Function of Solicitor-General.

(1) The primary function of the Solicitor-General is to appear as an advocate for the State in matters coming before the courts in Papua New Guinea.

13. The phrase "is a lawyer fully admitted to practice in accordance with the Lawyers Act 1986" is very similar to that used in s. 4 Attorney-General Act. The only difference being the words "in accordance with" instead of "under". To my mind, there is in essence no difference in the meaning.

14. The Acting Secretary submits that as the primary function of the Solicitor-General is to appear as an advocate, he must have a practicing certificate. I agree that before the Solicitor General appears in court he must have a practicing certificate, but that does not prevent a lawyer admitted to practice in accordance with the Lawyers Act 1986 being appointed Solicitor-General and subsequently obtaining a practicing certificate so that he is able to appear as an advocate for the State in matters coming before the courts.

15. Accordingly, I adopt my reasoning as to the ground concerning excess of jurisdiction. I am not satisfied that this ground discloses what might on further consideration, turn out to be an arguable case in favour of the Acting Secretary.

Errors of law – Mr. Kandi

16. The Acting Secretary submits that the Attorney General did not have the power to appoint Mr. Kandi as Acting Deputy Solicitor-General under s. 11 Attorney-General Act and in essence did not have any power to appoint Mr. Kandi to the position that he did. It is submitted that the position of Deputy Solicitor-General is a position within the normal staffing structure of the Department of Justice and the Department Head has the power to appoint and deal with a position in compliance with the Public Service (Management) Act and the General Orders. (I note that no material was placed before me in this regard). The power of the Attorney-General is limited to appointing the Solicitor-General, it is submitted.

17. Section 10 Attorney-General Act is:

10. Establishment of Office of Solicitor-General.

(1) The Office of Solicitor-General of Papua New Guinea is hereby established as an office within the National Public Service.

(2) The Office of Solicitor-General shall consist of the Solicitor-General and such number of Assistant Solicitors-General as the Attorney-General considers necessary, together with other staff who shall be officers of the National Public Service.

18. It is clear that the Attorney-General appoints the Solicitor-General under s.11 Attorney-General Act and under s.10, determines the number of Assistant Solicitors-General. These Assistant Solicitors-General, by virtue of their description, assist the Solicitor-General perform his functions. The word "Assistant" to my mind, can be read generically and includes all persons appointed to assist the Solicitor-General, whether they be Deputy, Acting Deputy or Vice or Acting Vice Solicitors-General.

19. As to whether the Attorney-General can appoint Assistant Solicitors-General, as he appoints the Solicitor-General and determines the number of his Assistants, it would seem incongruous for the Attorney-General not to have the power to appoint those Assistants. I am satisfied that it can be inferred that the Attorney-General has the power pursuant to s. 10(2) to appoint Assistant Solicitors-General by virtue of him determining their number.

20. As to the submission of the Acting Secretary that the Attorney General could not appoint Mr. Kandi as he was no longer in the Public Service, on a plain reading of s. 10(2) Attorney-General Act, it can be argued that it is only the 'other staff' who shall be officers of the National Public Service. In any event, there is not sufficient material for me to quickly peruse that enables me to consider the argument that a person who is not a member of the National Public Service cannot be appointed as Mr. Kandi purportedly has been.

21. Following a quick perusal of the material that was made available to me, I am not satisfied that it discloses what might on further consideration, turn out to be an arguable case in favour of the Acting Secretary that the Attorney-General did not have the power to appoint Mr. Kandi as the Acting Deputy Solicitor-General.

Ultra Vires

22. This ground that the Attorney General acted beyond his authority and power because at law he was not the Attorney-General, has been dealt with in my consideration of the ground concerning excess of jurisdiction and I adopt my reasoning accordingly.

Unreasonableness

23. The Acting Secretary submits that the decision of the Attorney General was unreasonable as no reasonable person vested with such power or authority would have done what he did, as at the time of his decision there was a challenge to the legality of the termination of the employment of Messrs Devette and Kandi before this Court.

24. This ground is apparently based upon the principle of irrationality or "Wednesbury Unreasonableness". In Air Niugini Ltd v. Beverley Doiwa [2000] PNGLR 347, Amet CJ (as he then was), cited the English case of Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 AC 374 in which Lord Diplock gave a description of what this means as:

"a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."

25. In the case of Application by Andrew Posai [1995] PNGLR 350, Sheehan J (as he then was), cited R. v. Hillingdon London BC [1986] UKHL 1; [1986] AC 484, which described "Wednesbury Unreasonableness" as "unreasonableness verging on absurdity".

26. In my quick perusal of the material that was put before me, I am not satisfied that the fact that Messrs Devette and Kandi where challenging in court their termination from the positions to which they were subsequently reappointed, in the absence of other evidence, enables me to form the view that this discloses what might on further consideration turn out to be an arguable case in favour of the Acting Secretary that the decisions of the Attorney General were ones that were so outrageous or were bordering on being absurd.

27. After considering all of the grounds relied upon by the Acting Secretary in support of her submission that she has an arguable case, I am unable to find in her favour. Consequently, it is not necessary to consider the other arguments of counsel.

Orders

28. The relief sought in both amended originating summons and notices of motion is refused. The costs of and incidental to the applications are to be paid by the Plaintiff to the State.

_______________________________________
Kuman Lawyers: Lawyers for the Plaintiff
Jerewai lawyers: Lawyers for the Defendants