Bradley Wak (Trading as Bradley Wak Lawyers) v Kwa [2022] PGNC 375; N9871 (9 September 2022)

N9871

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 56 OF 2022

BETWEEN:
BRADLEY WAK TRADING as BRADLEY WAK LAWYERS
Plaintiff

AND:
DR. ERIC KWA as SECRETARY FOR JUSTICE AND ATTORNEY GENERAL OF PAPUA NEW GUNIEA
First Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant

Madang: Narokobi J
2022: 11^th August, 9^th September

ADMINISTRATIVE LAW - Judicial review - Application for leave - Need to establish an arguable case.

Facts

The Plaintiff seeks judicial review of the Attorney-General’s decision to withdraw instructions from his firm.

Held

The Attorney-General has the prerogative to issue and withdraw instructions to the Plaintiff and is not required to provide reasons for withdrawing the instructions. There is therefore no arguable case, and leave should be refused.
Counsel

Mr. B Wak, for the Plaintiffs
Mr. M Manihambu, for the Defendants

RULING

9^th September, 2022

1. NAROKOBI J: The Plaintiff conducts business as a law firm that was engaged by the State pursuant to the provisions of the Attorney-General Act 1989 to represent the Department of Works in Madang. He was acting for the Department of Works in Madang for some time when the instructions were withdrawn on 23 June 2021.
   
2. The background to this was as a result of the difference between the then Minister for Justice at the time, Honourable Bryan Kramer and the Plaintiff. It was after they were on opposing sides in a litigation matter, that resulted in the instructions to act for the State being withdrawn. This is what I infer from reading the affidavit materials filed.
   
3. But officially, there was no reasons provided before instructions were withdrawn. All that was provided was a later dated 23 June 2021 from Dr Eric Kwa that simply stated that instructions to act for the State were withdrawn.
   
4. There is no issue that the Plaintiff has standing, that the matter was brought within four months and there is no other avenue to appeal the decision. The only issue is whether the Plaintiff has an arguable case for leave to be granted. The main argument revolves around the right to natural justice which the Plaintiff claims he is entitled to under s 59 of the Constitution. He says that he should have been provided reasons why the instructions were withdrawn because the first defendant was exercising a public power. I agree that the first defendant was exercising a public power and that as a matter of courtesy the first defendant ought to have provided reasons for his decision. But as a matter of law, is the first defendant required to provide reasons?
   
5. This is an unusual case. I have attempted to locate any relevant case authorities on point in relation to this matter but have not been successful. There can be many reasons for the paucity of case authorities, but I believe that the main reason is that in a lawyer/client relationship, much like an employer/employee relationship, unless there is a specific legal requirement to provide reason, either provided by law or from the letter of engagement, the client has the unquestionable discretion to either engage a lawyer or to disengage them. The fact that this is in a public space, does not change the position.
   
6. What I gather from reading the Attorney-General Act is that the primary legal advisor for the State is the Attorney-General. Any interpretation of the law in so far as it concerns the State, and her agencies will come from the Attorney-General. Whilst the facts in this case show that the Plaintiff was engaged by the Department of Works, and the Attorney-General was required to give his blessings to that arrangement, the scheme under the Attorney-General Act is such that the actual lawyer client relationship lies between the Attorney-General and the Department of Works. The Attorney-General is assisted by the office of the Solicitor-General for litigation matters involving the State and he is assisted by the State Solicitors office for general legal advice. The Plaintiff would therefore be delegated the function of the Solicitor-General in this particular matter, as the Solicitor-General would ordinarily represent the State in those matters that the Plaintiff was briefed out on.
   
7. Under s 13 of the Attorney-General Act, the Solicitor-General shall only receive instructions from the Attorney-General. This would mean that whilst in practice the Department of Works will be providing instructions to the Solicitor-General, but as a point of law, any legal position on any issue that cannot be resolved will rest with the Attorney-General to give the final instructions to the Solicitor-General. Consequently, the Attorney-General has the prerogative to issue and withdraw instructions to the Plaintiff and is not required to provide reasons for withdrawing the instructions. As a result of this discussion, my conclusion is that there is no arguable case, and the application for leave for judicial review must fail.
   
8. As a side issue, since there is a new Minister, I do not see any impediment to the Plaintiff to renewing his interest to represent the State in this matter. But as to whether the decision of the then Attorney-General can be the subject of judicial review, I see no arguable case, and the leave application is refused.
   
9. The State seeks costs, but I do not order costs as although the Attorney-General has the right to disengage the Plaintiff, as a matter of courtesy he could have advised him of the reasons for withdrawing the instructions, and therefore each party will bear their own costs.
   

Bradley Wak Lawyers: Lawyers for the Plaintiff
Solicitor-General: Lawyers for First and Second Defendants