N8036
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 661 of 2018

BETWEEN
WATER PNG LIMITED
Plaintiff

AND
RAMU AGRI INDUSTRIES LIMITED
Defendant

Lae & Waigani: Makail, J
2019: 25th September & 4th October

PRACTICE & PROCEDURE – Application to strike out legal proceedings – Failure to obtain approval of the Attorney-General to engage legal representation – Commence legal proceedings – Attorney-General Act, 1989 – Section 7(i) – Public Money Management Regularisation Act, 2017 – Section 10(2) 
WORDS & PHRASES – Definition of “public body” and “statutory authority” – Proof of – Onus of proof – Applicant bears onus to prove plaintiff is a public body or statutory authority – Public Money Management Regularisation Act, 2017 – Section 10(4)

Cases cited:
Donald Valu v. Dr. Ken Ngagan, Secretary of Finance & The State (2018) SC1723

Counsel:
Mr. C. Kup-Ogut, for Plaintiff
Mr. W. Mininga, for Defendant  
 
	RULING
4th October, 2019

1.	MAKAIL J:  The in-house counsel of the Legal & Compliance Service Division of the plaintiff prepared and filed a writ of summons to initiate these legal proceedings against the defendant on 6th June 2018.  According to the writ, the plaintiff claims unpaid annual water licence fees charged under the National Water Supply and Sanitation Act, 2016 (“Water Act”).  The total sum claimed as outstanding for the period 2012 to 2017 is K59,430.46.

2.	About eight months later, Kup & Co Lawyers were engaged by the plaintiff to prosecute the claim against the defendant.  This is confirmed by a Notice of Change of Lawyers and a Notice of Appearance, both documents filed, on the 11th of February 2019.

3.	Pursuant to a Notice of Motion filed 20th September 2019, the defendant sought to strike out the legal proceedings on the ground that the plaintiff failed to obtain approval from the Attorney-General to engage Kup & Co Lawyers to act for it in these legal proceedings pursuant to Section 7(i) of the Attorney-General Act (“A-G Act”).

4.	The reason for that is this, the plaintiff is a statutory body within the meaning of section 10(4) of the Public Money Management Regularisation Act 2017 (“Public Money Act”) and by virtue of this, is obliged to comply with section 10(1) of that Act by obtaining approval of the Attorney-General to “engage legal representation, commence any action or other proceeding in any court or tribunal...........”.

5.	The first issue is whether the plaintiff is a statutory authority and if so, secondly, whether the legal proceedings it has instituted through its in-house legal counsel is competent.

6.	The definition of a “statutory authority” in Section 10(4) is quite broad.  It states that, “a 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 are not public bodies”. (Underlining is mine).

7.	I consider that where an application is made to strike out proceedings for failing to obtain approval of the Attorney-General under Section 7(j) of the A-G Act and Section 10(1) of the Public Money Act, the onus of proof is on the applicant to establish that the plaintiff is either a “public body” or “statutory authority” under Section 10(4) of the Public Money Act. To succeed, it must be shown that the public body or statutory authority is established under a statute for governmental or official purposes.  Evidence must be adduced to demonstrate that the plaintiff is a public body or statutory authority and the type of function it performs to constitute “governmental” or “official” purposes.  And it is not sufficient to merely assert that the plaintiff is a “public body” or “statutory authority”.

8.	Take for example the case of Donald Valu v. Dr. Ken Ngagan, Secretary of Finance & The State (2018) SC1723.  That was a case where the Konebada Petroleum Park Authority Act, 2008 was quite specific in relation to the question whether or not Konebada Petroleum Park Authority was a statutory authority.  Section 5 of that Act established that Konebada Petroleum Park Authority is an Authority and fell within the meaning of a statutory authority under Section 10(4) of the Public Money Act.

9.	In this case, the defendant has failed to establish that the plaintiff is a public body or a statutory authority or pointed to a provision in the Water Act that makes the plaintiff a statutory authority.  Thus, it is quite difficult to work out whether the plaintiff is a statutory authority pursuant to Section 10(4) of the Public Money Act.  Secondly, the defendant had failed to adduce evidence to demonstrate the type of function the plaintiff performs to bring it within the ambit of “governmental” or “official” purposes. 

10.	A lack of clear description of the plaintiff reinforces counsel for the plaintiff’s submission that, the plaintiff is not a statutory authority but a company incorporated under the Companies Act and is run by a Board of Directors, totally divorced from the State such that the Public Money Act does not apply to it.  It follows that it has not been shown that the plaintiff is a statutory authority and that Section 10(1) of the Public Money Act applies to it.  This being the case, it will not be necessary to consider the issue of authority to institute these legal proceedings.

11.	The application has not been made out and will be dismissed with cost, to be taxed, if not agreed.

Ruling and orders accordingly.
____________________________________________________
Kup & Co Lawyers:  Lawyers for Plaintiff
Bradshaw Lawyers	:  Lawyers for Defendant