National Capital District Commission v Internal Revenue Commission [2021] PGNC 277; N9142 (20 September 2021)

N9142

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (COMM) NO. 11 OF 2021 (NO. 2)

BETWEEN:
NATIONAL CAPITAL DISTRICT COMMISSION
Plaintiff

V

INTERNAL REVENUE COMMISSION
First Defendant

AND:
SAM KOIM in his capacity as the COMMISSIONER GENERAL OF INTERNAL REVENUE COMMISSION and in his capacity as Trustee of National Capital District Inland GST
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
CENTRAL PROVINCIAL GOVERNMENT
Fourth Defendant

AND:
MOTU KOITA ASSEMBLY
Fifth Defendant

AND:
GULF PROVINCIAL GOVERMENT
Sixth Defendant

AND:
EDITH LAUFA in her capacity as Trustee of National Capital District Inland GST Trust Account
Seventh Defendant

Waigani: Anis J
2021: 12^th July, 20^th September

NOTICE OF MOTION – Order 12 Rule 1 – National Court Rules – Section 155(4) – Constitution - seeking to remove lead counsel for the plaintiff from appearing and general restraining order against counsel from practicing as a lawyer or working in Papua New Guinea – Section 7(g) and 15(1) – Attorney General Act 1989 – alleged want of compliance with Employment of Non-Citizens Act 2007 acquiring a General Work Permit – considerations – whether counsel may continue to act in the matter and whether a General Work Permit is required in this instance – whether issue of work permit properly before this Court for consideration – exercise of discretion

Cases Cited:

OS 293 of 2008 - Downer Construction (PNG) Ltd v. Hon Dr Allan Marat Attorney General of the Independent State of Papua New Guinea (10 & 22 July)
Andita Keko v Barrick (Niugini) Ltd (2019) SC1870
Paul Paraka v Public Officers Superannuation Fund Board (2014) SC1363
Rex Paki v Motor Vehicles Insurance Limited (2010) SC1015

Counsel:

M Varitimos QC with counsel assisting D Wood, A Edo and L Evore, for the Plaintiff
S Sinen with counsel assisting G Wau, for the First and Second Defendants
T Tanuvasa, for the Third Defendant
G Wayne, for the Fourth Defendant
N Vada, for the Fifth Defendant
M Nale with counsel assisting A Serowa, for the Sixth Defendant
M Mukwesipu, for the Seventh Defendant

RULING

20^th September, 2021

1. ANIS J: I heard the 4^th defendant’s notice of motion filed on 28 June 2021 (NoM), on 13 July 2021. It was contested and after hearing, I reserved my decision to a date to be advised.

2. This is my ruling.

BACKGROUND

3. I have set out the background of the matter in my earlier decision in National Capital District Commission v. Internal Revenue Commission and Ors (2021) N8809 under paragraphs 3 and 4, and I restate them herein:

3. The plaintiff seeks various declaratory relief in its originating summons. The relief sought essentially relate to or concern the application or interpretation of provisions under 2 legislations, namely, the National Capital District Commission Act 2001 (NCDC Act) and the Inter-Governmental Relations (Functions and Funding) Act 2009 (IGR Act). The provisions include sections 37 to 45 of the IGR Act, and section 33(2) of the NCDC Act.

4. What triggered the plaintiff to filing this proceeding and seeking interim restraining orders is this. On 22 April of 2021, the 2^nd defendant made a formal announcement in the media. He informed the public and relevant stake holders, and I will paraphrase, that he has made a decision whereby instead of a current practice where GST funds for the 4^th, 5^th and 6^th defendants (the 3 named defendants) are paid by 1^st Defendant (the Commission) to them through the plaintiff, that the Commission will commence paying these GST portions or percentages of funds directly to the 3 named defendants. The 2^nd defendant gave effect to his decision by effecting payments of the GST funds that were required for the month of April 2021 directly to the 3 named defendants.

NOTICE OF MOTION

4. The NoM seeks 2 main relief. I set them out as follows:

1. Pursuant to Order 12 Rule 1 of the National Court Rules, Section 15(2) of the Attorney General Act 1989, and Section 155(4) of the Constitution, Mr Mal Varitimos QC, being overseas counsel or barrister who normally resides and practices law outside of Papua New Guinea, and a non-citizen of Papua New Guinea, be restrained from appearing before the National and Supreme Courts in this proceeding in any application, interlocutory or final, for the Plaintiff or any party, for want of authorization by the Attorney General, pursuant to Sections 7(g) and 15(1) of the Attorney General Act 1989, to appear in the National and Supreme Courts in this proceeding, until and unless he obtains, and procures to the Court, the said certificate from the Attorney General.

2. Pursuant to Order 12 Rule 1 of the National Court Rules, Section 6 of the Employment of Non-Citizens Act 2007, and Section 155(4) of the Constitution, Mr Mal Varitimos, QC, being overseas counsel or barrister and a non-citizen of Papua New Guinea, be restrained from appearing before the National and Supreme Courts in this proceeding in any application, interlocutory or final, for the Plaintiff or any party, and generally from working or being employed in Papua New Guinea, for want of valid General Work Permit issued and held and not deemed invalid pursuant to the Employment of Non-Citizens Act 2007, to work in Papua New Guinea, until and unless he obtains, and procures to the Court, the said valid General Work Permit.

ISSUES

5. The main issues, in my view, are, (i), whether Mr Varitimos QC requires a certificate or permission of the Attorney General (AG), pursuant under ss. 7(g) and 15(1) of the Attorney General Act 1989 (AG Act), to appear before any National or Supreme Courts of Papua New Guinea including this case and via video link, (ii), regardless, whether counsel shall also require a General Work permit and whether counsel has breached s. 6, under the Employment of Non-Citizens Act 2007 (ENC Act), to work in Papua New Guinea.

AG’s CERTIFICATE

6. The relevant provisions of the AG Act are ss. 7(g) and 15(1). I set them out herein:

7. Duties, functions and responsibilities of the Attorney-General.

The duties, functions and responsibilities of the Attorney-General are—

......

(g) in accordance with Section 15, to grant a certificate that a barrister or solicitor practising outside the country is authorized to appear before the National and Supreme Courts; and

......

15. Employment of Barristers, etc., practising outside the country.

(1) The Attorney-General may, in his discretion, issue to a barrister or solicitor who—

(a) is a non-citizen; and

(b) ordinarily practises as a barrister or solicitor outside the country; and

(c) is not ordinarily resident in the country,

a certificate in the prescribed form authorizing that barrister or solicitor to appear in a case before the National or Supreme Court.

(2) A barrister or solicitor who—

(a) is a non-citizen; and

(b) ordinarily practises as a barrister or solicitor outside the country; and

(c) is not ordinarily resident in the country,

is not entitled to appear before the National or Supreme Court in any case without a certificate under Subsection (1).

(3) An application for a certificate under Subsection (1) shall be made by the lawyer proposing to instruct the barrister or solicitor in respect of whom the application is made and shall be accompanied by—

(a) evidence that the barrister or solicitor has obtained a work permit under the Employment of Non-citizens Act (Chapter 374); and

(b) evidence of the qualifications and experience of the barrister or solicitor; and

(c) a certificate to the effect that there is no lawyer who—

(i) is a citizen; or

(ii) is normally resident in the country,

available and competent to appear in the case; and

(d) such other information as the Attorney-General may require.

(4) In determining whether or not to grant a certificate under Subsection (1), the Attorney-General shall have regard to—

(a) the academic and practise qualifications of the barrister or solicitor; and

(b) the degree of difficulty of any legal issues which might reasonably be expected to arise in the matter in which it is proposed to instruct the barrister or solicitor to appear; and

(c) whether the matter is one in which, in the opinion of the Attorney-General, a competent lawyer practising within the country could be expected to appear; and

(d) any other relevant matter.

(5) A certificate under Subsection (1) authorizes the barrister or solicitor named in the certificate to appear in all applications, interlocutory or final, in the case specified in the certificate.

(6) The provisions of this section are in addition to, and not in derogation

of, the requirements of the Lawyers Act 1986.

7. The practice which has been over the years is that a non-citizen barrister who obtains an Unrestricted Practicing Certificate to practice in the country, is permitted to appear both in the National and Supreme Courts without the need to first obtain a certificate to appear every time from the Attorney General. This is evident from a number of cases in this jurisdiction. The relevant case authority on point is the unreported judgment of Sevua J delivered on 22 July 2008 in proceeding OS 293 of 2008 - Downer Construction (PNG) Ltd v. Hon Dr Allan Marat Attorney General of the Independent State of Papua New Guinea (10 & 22 July). Before I discuss this case, I note that the third and fourth defendants in particular, have urged the Court in their submissions, not to follow the said decision which is a National Court decision. They urge the Court to reconsider and interpret the provisions of the AG Act and the related statutes. The real question it seems is whether I should depart from the decision of the Court in Downer Construction on the issue at hand.

8. In Downer Construction, Justice Sevua was asked to consider various provisions and statutes which included ss. 7(g) and 15 of the AG Act. The plaintiff filed for judicial review after its briefed-out counsel John Griffin QC was refused certification under s. 15 of the AG Act by the Attorney General, to appear in relation to the plaintiff’s other pending National and Supreme Court proceedings. Various grounds were raised including error of law on the face of the record, unreasonableness under the Wednesbury principle and breach of natural justice.

9. The findings by His Honour included the following:

It is a requirement of law that a lawyer who is not ordinarily resident in PNG and does not practice in the Courts of Papua New Guinea must be admitted to practice in Papua New Guinea if he or she wishes to practice in this jurisdiction. Section 25 of the Lawyers Act regulates the admission of lawyers in the practice of law in the courts of this country. Sub-section (3) (b) relates to applicants who are admitted to practice in a country other than PNG, and by virtue of Rule 2 of the Lawyers Admission Rules, those countries are Australia, New Zealand, United Kingdom and Northern Ireland.

......

A person is admitted to practice law in PNG pursuant to s. 28 Lawyers Act. The National Court is the admitting authority and can admit an application to practice upon being satisfied that the requirements of s. 25 of the Lawyers Act have been satisfied. Pursuant to s. 33, once a person has been admitted to practice under s. 28 and has signed the Roll, he has the right to practice in this jurisdiction in accordance with the provisions of the Lawyers Act.

It must be emphasized and reiterated that the right to practice law in Papua New Guinea is in accordance with the Lawyers Act, not any other legislation. There is no provision in the Lawyers Act which stipulates that the Lawyers Act is subject to any other legislation.

.......

As I said above, the basis of admission to practice is by virtue of s. 25 Lawyers Act. Section 25(3)(d) requires the Attorney General to certify that an applicant is a fit and proper person to be admitted to practice law in Papua New Guinea. In the case of a non resident lawyer, he is required to be certified by the Attorney General as a fit and proper person as well. Once the applicant has been certified by the Attorney General and has been admitted by order of the National Court, he has the right to practice in the National and the Supreme Court of Papua New Guinea. Does he need a further certification by the Attorney General?

......

I consider that s. 15 of the Attorney General Act applies to a situation where an overseas lawyer, for instance from Brisbane or Sydney, is briefed to appear in a case here and he has not been admitted to practice in Papua New Guinea and he does not possess a current practising certificate. In that case, he needs to apply for certification by the Attorney General pursuant to s. 15 of the Attorney General Act. The Lawyers Act was passed in 1986 whereas the Attorney General Act was passed in 1989. I do not think that the former envisage that an overseas lawyer who has already been admitted to practice can apply for, and be granted, another certificate by the Attorney General to appear in a case.

As I said earlier, when a person is admitted to practice, he has the right to practice in the Courts of Papua New Guinea. His right to practice is in accordance with the provisions of the Lawyers Act, not the Attorney General Act. The Lawyers Act does not even envisage or stipulate that a lawyer from Australia, New Zealand, United Kingdom or Northern Ireland who has already been admitted to practice in Papua New Guinea can apply for, and obtain, another certificate by the Attorney General to appear in a case. After all, he has already been admitted to practice therefore he has the right to appear in the National and Supreme Courts of Papua New Guinea. That right is not curtailed by a further application for another certification by the Attorney General.

......

If it was the intention of the Parliament that an overseas lawyer who is already admitted to practice in PNG must further apply for, and obtain, a further certification from the Attorney General to appear in a specific case, why didn’t the legislators provide so in the Lawyers Act? After all the Lawyers Act is the legislation that regulates the practice of law including admission of lawyers in this country.

......

It is my view that the granting of another certificate by the Attorney General under s. 15 of the Attorney General Act is inconsistent with the Lawyers Act because the right to practice is given by the Lawyers Act. Once an overseas lawyer is admitted, he has the right to appear upon a brief or instructions from a local law firm. He does not need further certification from the Attorney General to appear in a case because he has already been granted the right to appear by virtue of his admission to practice. That is the error of law.

......

As I have already alluded to, the admission of overseas lawyers to practice is governed by the Lawyers Act just as that Act applies to the admission of national lawyers. As such, the Lawyers Act is primarily and principally the law that regulates the admission of lawyers both national and overseas lawyers. The defendant, in refusing to issue a certificate to Mr. Griffin, had misdirected himself on the law because the admission of lawyers is by virtue of the Lawyers Act, not the Attorney General Act.

......

It is therefore my opinion that the Attorney General Act 1989 is inconsistent with the Lawyers Act 1986. I say that because the latter regulates the admission and practice of lawyers in Papua New Guinea so that once a lawyer, including an overseas lawyer, has already been admitted to practice in Papua New Guinea, he has the right to appear in any case in the National or Supreme Court of this country as long as he has been briefed or instructed.

In my view, it is not necessary for the Attorney General to issue another certificate under s. 15 (1) for the overseas lawyer to appear in a case. On that consideration, the Attorney General Act is inconsistent with the Lawyers Act. And because the defendant in the present case has misdirected himself on s. 15, judicial review is available to quash his decision.

......

......I find no provision in the Lawyers Act that the overseas lawyer must apply the second time and be issued with a certificate to appear in a case. As I have alluded to, the Lawyers Act is the only legislation which regulates the admission of, and the practice by lawyers.

10. I have considered the parties’ submissions on the issue, that is, in particular regard to ss. 7(g) and 15 of the AG Act.

11. I prefer to begin by considering the wordings of the provisions, that is, what they mean or infer in plain or ordinary language. With that, I begin with s. 7(g). A function of the AG, by virtue of s. 7(g) is, and I quote, “to grant a certificate that a barrister or solicitor practising outside the country is authorized to appear before the National and Supreme Courts” [Underlining mine]. And I note that s. 15 has 6 sub-sections. Except for sub-section 6, sub-sections 2 to 5 make references to sub-section 1. Section 15(1) is express. It gives the AG a discretion in regard to his/her function under s. 7(g), that is, to determine whether or not to issue a certificate to, and I quote, “a barrister or solicitor practising outside the country” to appear on a matter before the National and Supreme Courts. And s. 15’s heading reads, Employment of Barristers, etc., practising outside the country. The emphasis there I note from the 2 provisions is the phrase barristers practicing outside the country.

12. The AG Act does not define the term barrister, solicitor, or lawyer. Let me consider the other Acts or statutes. Section 1 of the Interpretations Act Chapter No. 2 (Interpretations Act) defines a lawyer as follows, "lawyer" means a person who has been admitted to practice as a lawyer under the Lawyers Act 1986;. The next Act I refer to is the Lawyers Act 1986 (Lawyers Act). Section 1 defines a lawyer as follows; "lawyer" means a person who has been admitted to practice as a lawyer under this Act. So, I have this question. “Was Mr Varitimos QC admitted to practice as lawyer under the provisions of the Lawyers Act?” Section 25 sets the procedures for application to be admitted as a lawyer. I set them out herein:

25. Qualifications for admission.

(1) An applicant for admission to practise shall satisfy the Court that he possesses the required academic and practice qualifications and that he is a fit and proper person to be admitted as a lawyer.

(2 The required academic qualifications referred to in Subsection (1) are—

(a) possession of the degree of Bachelor of Laws from the University of Papua New Guinea; or

(b) such other academic or educational qualifications as are prescribed by the Rules made by the Admission Council under Section 25A(2).

(3) The required practice qualifications referred to in Subsection (1) are—

(a) a certificate in the form prescribed by the Rules made by the Admission Council under Section 25A(2) signed by the Director of the Papua New Guinea Graduate Legal Training Institute certifying that the applicant has successfully completed the course of training conducted by that Institute; or

(b) a certificate from the appropriate overseas authority certifying that the applicant was admitted to practise in a country prescribed by the Rules made by the Admission Council under Section 25A(2) together with evidence that the applicant has practised as a lawyer in a country prescribed by the Rules made by the Admission Council under Section 25A(2) for a period of not less than three years following the date of his admission to practise in that country; and

(c) such other practice qualifications as are prescribed by the Rules made by the Admission Council under Section 25A(2); and

(d) a certificate signed by the Attorney-General that the applicant is a fit and proper person to be admitted to practice in Papua New Guinea.

(4) In determining whether or not to grant a certificate under Subsection (3)(d), the Attorney-General may require the applicant—

(a) to attend before him for a personal interview; and

(b) to produce to him such evidence of his fitness and academic and practice qualifications as the Attorney-General thinks fit.

(5) Where the Attorney-General is of the opinion that an applicant has not provided adequate evidence of his academic and practice qualifications, he may require the applicant to sit examinations and for this purpose may set such examinations.

26. Application for admission to practise.

(1) An application for admission to practise shall be made to the Court.

(2) An application under Subsection (1) shall be—

(a) made in the manner prescribed by the Rules of Court; and

(b) accompanied by—

(i) evidence of qualifications for admission as required under Section 25; and

(ii) the fee prescribed by the Rules of Court.

27. Publication and service of application.

An applicant for admission to practise as a lawyer shall—

(a) not less than 14 days prior to the date of his application under Section 26, publish in a newspaper circulating throughout Papua New Guinea, notice of his intention to apply for admission to practise as a lawyer; and

(b) as soon as possible after making his application under Section 26 serve on the Secretary a copy of the application and of the evidence lodged therewith.

28. Court may admit applicant to practise.
    

(1) The Court may, at any sitting, on motion, admit an applicant to practise as a lawyer if that applicant shows to the satisfaction of the Court that he possesses the required qualifications.

(2) In considering an application for admission to practise as a lawyer, the Court may waive all or any of the requirements of Section 25.

29. Society may make submissions.

The Society may, on an application for admission under Section 26, appear and make such submission as it thinks fit in support of or in opposition to the application.

30. Roll of Lawyers.

(1) The Registrar shall keep a Roll of Lawyers.

(2) The Roll of Lawyers under Subsection (1) shall be—

(a) in such form; and

(b) kept in such place and manner,

as is prescribed by the Rules of Court.

31. Lawyer to sign Roll on admission.

A person admitted to practise as a lawyer under Section 28 shall sign the Roll.

32. Registrar to issue certificate of admission.

The Registrar shall issue to each person who has—

(a) been admitted to practise as a lawyer under Section 28; and

(b) has signed the Roll,

a certificate of admission in the form prescribed by the Rules of Court.

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.

13. In the present matter, I refer to Lubia Evore’s affidavit filed on 5 July 2021. I note that the facts deposed to therein are not in contention. Mr Varitimos QC was admitted as a lawyer of the National and Supreme Courts on 1 April 1997. He holds a current Unrestricted Practising Certificate which was issued by the Papua New Guinea Law Society to appear in the National and Supreme Courts of Papua New Guinea. He was issued with and has held his said Unrestricted Practising Certificate since 1 April 1997. So, the answer to my question is this, “yes, Mr Varitimos QC is admitted to practice as a lawyer under the provisions of the Lawyers Act. He was admitted on 1 April 1997 and has practiced law in Papua New Guinea for 24 years.”

14. Coming back to ss. 7(g) and 15(1) of the AG Act, I give my views as follows. The sections refer to a counsel or barrister that is practicing overseas only that may apply to the AG for a grant of a certificate to appear on a matter in the National or Supreme Court of Papua New Guinea. In regard to Mr Varitimos QC, he may be regarded as practicing both within and overseas. Regardless or since counsel is a lawyer who has been duly admitted to and practices within the jurisdiction, he does not, in my view, qualify or may be subjected to ss. 7(g) and 15(1) of the AG Act. To put it simply, Mr Varitimos QC is a practicing lawyer within this jurisdiction pursuant to his current Unrestricted Practising Certificate. He, like other lawyers within this jurisdiction, is bound by the Lawyers Act and the Professional Conduct Rules. He has met all the criteria that is required of a person who may wish to practice as a lawyer in this jurisdiction, that is, having been duly admitted to practise as a lawyer by the National Court on 1 April 1997, and having had his name registered in the Roll (or Lawyers’ Roll) as required by the Lawyers Act. He has met all the requirements that are set out under ss. 25 to 33 of the Act.

15. I think s. 33 is worth re-mentioning because it expressly states that upon being duly admitted as a lawyer and upon signing the Lawyers’ Roll, a person is permitted to practise as a lawyer in accordance with the provisions of this Act.

16. I also concur with Sevua J’s view that ss. 7(g) and 15(1) apply in a situation where an overseas barrister or solicitor who is not a lawyer duly admitted under the Lawyers Act but has been engaged and wishes to appear on a matter in the National or Supreme Court of Papua New Guinea. Such persons would have to meet the requirements set out under the AG Act including ss. 7(g) and 15(1) and other relevant legislations.

17. I therefore find in favour of the plaintiff in regard to the first issue. I find that Mr Varitimos QC does not require a certificate from the AG pursuant to ss. 7(g) and 15(1) of the Attorney General Act 1989 to appear in this matter. Counsel is a duly admitted lawyer in this jurisdiction and holds a valid Unrestricted Practising Certificate for 2021, to practice and appear in both the National and Supreme Courts of Papua New Guinea. I also do not see a need to depart from the decision in Downer Construction which I adopt herein.

GENERAL WORK PERMIT

18. Let me address the second issue. The 4^th defendant argues that Mr Varitimos QC should be restrained from appearing before the National and Supreme Courts because he does not possess a valid General Work Permit thus, he is in breach of s. 6 of the Employment of Non-Citizens Act 2007 (ENC Act) or that if he has one, that he should produce that in Court.

19. Section 6 of the ENC Act states:

6. Prohibition of employment without valid work permit.

(1) A person who employs a non-citizen in an occupation is guilty of an offence, unless a work permit has been granted to that employer in respect of that non-citizen and that occupation, and the work permit is still valid in respect of that non-citizen and that occupation.

Penalty: A fine not exceeding K20,000.00.

(2) A non-citizen who is employed by a person in an occupation is guilty of an offence, unless a work permit has been granted to that employer in respect of that non-citizen and that occupation, and the work permit is still valid in respect of that non-citizen and that occupation.

Penalty: A fine not exceeding K10,000.00.

(3)A self employed non-citizen who is employed in an occupation is guilty of an offence, unless a work permit has been granted to that non-citizen in respect of that occupation, and the work permit is still valid in respect of that non-citizen and that occupation.

Penalty: A fine not exceeding K10,000.00.

20. The first obvious observation I make without getting to the merit of the issue is that s. 6 is a provision which contains penalties for offences that may be committed under it by employers of a non-citizen, non-citizen employees and self-employed non-citizens. The obvious questions that arise then are as follows, “Who is responsible for its regulation or enforcement? Is there a body that is responsible for this? And is that something which the 4^th defendant may raise in this manner, or whether the 4^th defendant may be regarded as a busybody that is raising matters that are unrelated or not directly relevant to matters that are the subject of the substantive proceeding?”

21. I will answer these queries as follows. Firstly, I note that there are bodies that regulate granting or refusal of work permits under the ENC Act, the Department of Labour and Industries, and the Department of Migration under the provisions of the Migration Act Chapter No. 16 (M Act). For example, the Secretary for Labour or his or her authorized officers appointed under Part XI of the ENC Act may carry out these functions. The functions of the authorized officers are expressly provided under s. 48. For example, one of the functions of the authorized offers under s. 48(c) is to require any person to give any information or to answer any question relating to the employment of the non-citizen to whom this Act applies;.

22. So, there are separate processes for matters such as that which is sought by the 4^th defendant under relief 2 of its NoM. In my view, that should be the process to follow if the 4^th defendant believes that Mr Varitimos QC would require a work permit or visa to work or be employed as alleged. The allegations raised have penalty provisions, and I do not think that that is a matter that is appropriately raised by the 4^th defendant before this Court in this manner in an interlocutory process. The allegation or accusation clearly appears substantive in nature and can be regarded as a separate matter or completely devoid from the substantive proceeding herein. There are administrative processes which have to be exhausted. Counsel for the 4^th defendant Mr Wayne would or ought to have known of these processes which begs the question, that is, why bring that up in such a manner as this? I say this with utmost respect to all counsel that are appearing before me in this matter. As for Mr Varitimos QC, what this may portray or imply to him by this relief is that counsel has breached s. 6 or the provisions of the ENC Act, which would obviously amount to an improper assertion, that is, without following the due processes with the relevant authorities including those that are prescribed under the ENC Act. To merely cite serious penalty provisions under s. 6 of the Act and to assert their breaches, may be regarded as disingenuous and it may also have the potential of bring or causing harm to one’s reputation or character without proper basis. Those may be the risks that a person may face when making such claim or accusations. But let me be clear. I am not making a determination when I say it may also bring or cause harm to one’s reputation or character without proper basis. I make that as a remark.

23 I also do not think the 4^th defendant is or would be the legitimate person or authority to raise such allegation or accusation, that is, of non-compliance of s. 6 of the ENC Act against Mr Varitimos QC. There are authorized persons whether it be under the Migration Act or the ENC Act who are bestowed with such authority or function. An appropriate option may be for the 4^th defendant to lodge a complaint or enquire with the relevant authorities therein to provide an answer or investigate, and to permit the due process or processes to follow. But in this case, it appears from the wordings of relief 2 in the NoM, and from submissions from counsel for the 4^th defendant, that Mr Varitimos QC has breached s. 6 of the ENC Act and that it was a matter for him to disprove or prove otherwise. Part of term 2 of the relief in the NoM states that Mr Varitimos QC must be restrained, and I quote, for want of valid General Work Permit issued and held and not deemed invalid pursuant to the Employment of Non-Citizens Act 2007. Such accusation appears to have been made boldly or should I say carelessly, against counsel for the plaintiff in this manner in this interlocutory process.

24. As such, it is my view that relief 2 must be struck out. I find there is no underlying basis for this relief to be sought by the 4^th defendant in the first place. There are processes and bodies that regulate employment of non—citizens in the country. If that was or is still something that the 4^th defendant intends to seek clarity on, it should have lodged its complaint against the relevant authorities to investigate. Following that process, and if the matter lands in Court, then it may be at that time that a Court of Competent jurisdiction may hear the matter on its merit, whether it be judicial review or otherwise. Raising the issue at this juncture and in this manner appears to me as disingenuous and may even be termed as harassment that is aimed at counsel for the plaintiff Mr Varitimos QC by the 4^th defendant. The 4^th defendant could also be regarded as a busybody given that there are processes that have not been ventilated or exhausted. I find therefore that relief 2 is baseless and must be dismissed on these preliminary findings.

25. I note that Mr Varitimos QC has undisputed evidence of practicing as a lawyer in the country with an Unrestricted Practising Certificate for more than 24 years. Counsel has also been appointed or bestowed by Her Majesty the Queen of England as one of ‘Her Majesty’s Counsel learned in the law’ or as a Queen’s Counsel. Counsel is obviously a senior lawyer with vast experience in law in this jurisdiction amongst others. I note that the 4^th defendant has not adduced a scintilla of evidence to show whether Mr Varitimos QC currently or has in the past had issues with the Departments of Labour and Industrial Relations or Migration that involved issuance of work permit. The claim by the 4^th defendant, at best, appears to be mere accusation or inquiry which is also evident in its written submission. As such, it is not properly before this Court and as I have stated above, it must be dismissed.

26. Therefore, and based on my findings on the first and second issues, I will proceed on the premise or basis that Mr Varitimos QC, as a lawyer of the National and Supreme Courts of Papua New Guinea, has been duly briefed or engaged to appear for the plaintiff in the manner as has been done herein, and that counsel may appear via video link or otherwise in person.

SUMMARY

27. In summary, the 4^th defendant’s NoM is dismissed.

COST

28. An award of cost herein is discretionary.

29. The plaintiff submits costs should be awarded on an indemnity basis. I have considered the submissions of the parties and the case authorities including Andita Keko v Barrick (Niugini) Ltd (2019) SC1870, Paul Paraka v Public Officers Superannuation Fund Board (2014) SC1363 and Rex Paki v Motor Vehicles Insurance Limited (2010) SC1015. There is evidence of warning given by the plaintiff to the 4^th defendant of its intention to seek costs in that manner. When I take into account my findings in dismissing the NoM, I am persuaded that cost of the NoM should be awarded against the 4^th defendant in favour of the plaintiff on an indemnity basis which may be taxed if not agreed.

ORDERS OF THE COURT

30. I make the following orders:

1. The 4^th Defendant’s Notice of Motion filed on 28 June 2021 is dismissed.
   
2. The 4^th Defendant shall pay the Plaintiff’s cost for opposing the application on an indemnity basis which may be taxed if not agreed.
   
3. Time for entry of these orders is abridged to the date and time of settlement by the Registrar which shall take place forthwith.
   

The Court orders accordingly.
________________________________________________________________
Ashurst: Lawyers for the Plaintiff
In-house counsel: Lawyer for the First and Second Defendants
Solicitor-General: Lawyer for the Third Defendant
Kessadale: Lawyers for the Fourth Defendant
In-house counsel: Lawyer or the Fifth Defendant
Jema: Lawyers for the Sixth Defendant
Mukwesipu Lawyers for the Seventh Defendant