Nale v Duma [2025] PGNC 27; N11148 (7 February 2025)

N11148

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (JR) NO. 72 OF 2024

BETWEEN:
MCRONALD NALE
Plaintiff

AND:
HON WILLIAM DUMA, MP in his capacity as the MINISTER OF STATE ENTERPRISE
First Defendant

AND:
NATIONAL EXECUTIVE COUNCIL
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

WAIGANI: PURDON-SULLY J
11 NOVEMBER 2024; 7 FEBRUARY 2025

PRACTICE & PROCEDURE - JUDICIAL REVIEW – application to restrain law firm from acting and relying on filed documents by reasons of a failure to obtain approval of Attorney-General prior to filing Notice of Motion seeking to set aside a stay order and reinstatement of the Plaintiff following the granting of an application for leave to apply for judicial review – Attorney-General Act 1989, Sections 5(b) & 7(2)(i); retrospective effect of authorisation– whether execution of brief out letter by Solicitor-General inconsistent with the law – whether Attorney-General unable to fulfil the duties of his Office and sign brief letter by reason of conflict of interest – application dismissed– matter listed with priority for hearing of application for judicial review due to public interest considerations

Cases cited
Foundation Limited [2018] PGSC 95
Mineral Resources CMCA Holdings Limited v Ok Tedi Fly River Development [2018] PGSC 95; SC1752

Counsel
Mr Akia for the plaintiff
Mr Mana for the first defendant
Ms Narokobi, for the second and third defendants

1. PURDON-SULLY J: The genesis of this dispute is the decision of the First Defendant of 14 August 2024 to revoke the Plaintiff’s appointment as Director and Chairman of PNG Power Limited (the decision), the Plaintiff seeking judicial review of that decision on the basis that:
   
   1. There was an error of law committed in the process of deciding to revoke the Plaintiff’s appointment as there was no consultation in breach of s 12 and Schedule 4 of the Kumul Consolidated Holdings Act 2002 (as amended);
      
   2. The Plaintiff’s right to natural justice was not accorded as he was not given an opportunity to be heard, and
      
   100. The decision is unreasonable in the Wednesbury sense and a breach of s 42 of the Constitution (harsh and oppressive acts).
        
2. The First Defendant’s response to the grounds of review are that:
   
   1. There is no relevant mandated consultation process on the facts, the National Executive Council consulting with the Minister before the relevant decision is made; and
      
   2. There is no legislated provision requiring right to be heard in a situation such as this, the shareholder/employer with the prerogative to make a decision in the public interest.
      
3. This is my ruling on the Plaintiff’s Notice of Motion filed 12 September 2024 seeking orders inter alia that the First Defendant’s lawyer Allan Mana is not authorised through a proper brief from the Attorney-General to act for the First Defendant; that documents filed by him in these proceedings be struck out and that he be restrained from acting for the First Defendant unless formally briefed by the Attorney-General, alternatively the Notice of Motion filed by the First Defendant on 9 September 2024 as amended be dismissed as an abuse of process.
   

CONTEXTUAL BACKGROUND

4. On 21 March 2022 the Second Defendant appointed the Plaintiff as a non-executive Director to the Board of PNG Power Limited (the Board) for a period of three (3) years (the appointment).
   
5. On 19 April 2023 the Second Defendant appointed the Plaintiff as Chairman of the Board.
   
6. On 14 August 2024 the Second Defendant revoked the Plaintiff’s appointment.
   
7. The Plaintiff asserts he only became aware of the revocation of his appointment on 16 August 2024 through a newspaper report.
   
8. By Originating Summons filed on 29 August 2024 the Plaintiff sought leave to apply for judicial review of the decision.
   
9. On the 5 September 2024 the court granted the Plaintiff leave to apply for judicial review. The application was heard ex parte. The State, who was the only Defendant with a right to appear on the leave application, announced an appearance on behalf of all Defendants. The State’s instructions were to take no position on the leave application or the stay application if leave was granted (see Affidavit of Maria Narokobi filed 25 October 2024 at [7] and [8]).
   
10. In light of those instructions and following the granting of the Plaintiff’s application for leave the court proceeded to hear the Plaintiff’s further application and made orders for stay and reinstatement of the Plaintiff to his former position in the following terms as amended on 24 September 2024:
    
    1. Pursuant to Order 16 Rule 3(1) and (2) of the National Court Rules 1983 the Plaintiff is granted leave to apply for judicial review of the decision of the Second Defendant made on or about 14 August 2024, where the Second Defendant revoked the appointment of the Plaintiff as director and the Chairman of the Board of Directors of the PNG Power Limited.
       
    2. Pursuant to Order 16 Rule 3 (8)(a) of the National Court Rules the grant of leave shall operate as a stay of the Second Defendant’s decision of 14 August 2024 the subject of these proceedings which revoked the appointment of the Plaintiff as Chairman of the Board of Directors of PNG Power Limited pending final determination of this matter.
    100. Pending the final determination of this matter the Plaintiff be reinstated to the office he held at the date of the Second Defendant’s decision of 14 August 2024.
         
    4. The Plaintiff file and serve a Notice of Motion for Judicial Review within 3 weeks of today’s date.
       
    5. The matter be adjourned to 4 November 2024 at 10.30am for Directions Hearing.
       
11. On 9 September 2024 the First Defendant wrote to the Attorney General requesting that Allan Mana Lawyers (the firm) act for him in the matter. By brief out letter dated 11 September 2024 the firm was instructed by the Attorney General to act for the First Defendant in the proceedings (Annexure A to the Affidavit of Mr Mana filed 1 October 2024).
    
12. Notwithstanding not then being in possession of the brief out letter and thus the authority of the Attorney General pursuant to s 7 of the Attorney General Act 1989 to act on behalf of the First Defendant, on 9 September 2024 the firm filed:
    
    1. a Notice of Motion seeking to set aside the order of 5 September 2024 for stay and the Plaintiff’s reinstatement; and
       
    2. a Notice of Intention to Defend.
       
13. By letter dated 11 September 2024 a brief out letter was sent to Mr Mana on behalf of the Attorney General, the letter signed by Dr Eric Kwa, the Secretary of the Department of Justice and Attorney General by reason of a conflict of interest on the part of the Attorney General given his familial relationship with the Plaintiff (see Affidavit of Dr Kwa filed 21 October 2024).
    
14. On 12 September 2024 the Plaintiff filed his Notice of Motion.
    
15. Having filed his Notice of Motion on 9 September 2024 seeking to set aside the stay and reinstatement order the First Defendant filed a series of motions on 12 and 13 September 2024 and then on 1 and 30 October 2024 purportedly to cure defects in the First Defendant’s Notice of Motion that arose by reason of inadvertence. The amendments sought to be made involved references to the court’s jurisdiction to grant the orders sought to set aside the stay and reinstatement order (Affidavit of Mr Mana filed 30 October 2024 at [4] and [5]). In short between 9 September and 30 October 2024 the First Defendant filed five (5) Notices of Motion essentially seeking to set aside the stay and reinstatement order.
    
16. At the hearing the First Defendant was granted leave to withdraw his Further Amended Notice of Motion filed 30 October 2024.
    

ISSUES

17. There are three issues that arise on the evidence and/or submissions that require consideration:
    
    1. Should Mr Mana and his firm be restrained from acting in the matter for failure to have a proper brief out letter at the time he came on record as acting for the First Defendant and should any documents relied upon as a consequence be struck out;
       
    2. How should this matter be case managed given the significant public interest issues that arise on the evidence of the parties; and
       
    100. What order for costs should be made as both parties seek a costs order in their favour.
         

SUBMISSIONS

18. It is the Plaintiff’s case that it is essential that a brief out instructions from the Attorney General is given before a lawyer act for the State pursuant to s 7(2)(i) of the Attorney-General Act 1989 (as amended) (the Act). The failure to do so affects the jurisdiction of the Court to deal with the matter. In this case Mr Mana did not have brief out instructions from the Attorney General and on that basis alone the Court should strike out all the court documents filed by Mr Mana on behalf of the First Defendant which would include the Notice of Motion filed 9 September 2024 as amended as the Court does not have jurisdiction to deal with that motion as all the documents are incompetent. Further the Court ought injunct Mr Mana and any other private law firm from acting for the defendants unless they are properly briefed by the Attorney General.
    
19. Further, the brief out letter by the Secretary of Justice Dr Kwa to the firm to act for the First Defendant pursuant to s 5(b) of the Act was misconceived, improperly used and inconsistent with the law, the First Defendant failing to clearly prove that the Attorney General was unable to fulfil his responsibilities where he was at all times a lawyer admitted to practice under the Lawyers Act 1986 and as such able to issue the brief out instructions.
    
20. It is submitted on behalf of the First Defendant that while the absence of necessary instructions is a matter going to jurisdiction of the court in this case it was sufficient and within the discretion of the Attorney General to provide those instructions retrospectively based on authority, the effect of retrospective instructions enlivening the jurisdiction of the court to the date of the filing of the First Defendant’s Notice of Motion and Notice of Intention to Defend on 9 September 2024. Further it was appropriate for the brief out letter to be signed by Dr Kwa, the Attorney General, by reason of conflict of interest, unable to fulfil the duties of his office on the subject matter which involved the Plaintiff who was his nephew.
21. The submissions on behalf of the First Defendant and the Plaintiff’s submissions in response do not need to be outlined as the First Defendant was granted leave to withdraw his application for stay and reinstatement during the course of the hearing.
    
22. The Second and Third Defendants supported the submissions made on behalf of the First Defendant.
    

LEGISLATION

23. With respect to the first issue, the Act is described as an Act
    
    • (a) to implement Section 156(2) of the Constitution in relation to the Office of principal legal adviser to the National Executive by establishing the Office of Attorney-General to be the principal legal adviser and providing for the duties, functions and responsibilities of that Office; and
      
    • (b) to establish the Office of Solicitor-General and provide for the duties, functions and responsibilities of that Office; and
      
    • (c) to repeal the Legal Aid Act (Chapter 53) and the Principal Legal Adviser Act (Chapter 54); and
      
    • (d) for related purposes.
      
24. The following appear to be the relevant provisions of the Act:
    
    4. MINISTER AS ATTORNEY-GENERAL.
       

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.

5. DEPARTMENTAL HEAD AS ATTORNEY-GENERAL.
   

Where the Minister responsible for the National Justice Administration–

(a) is a person to whom Section 4 applies, but is out of the country or is out of speedy and effective communication or is otherwise unable to fulfil the duties of the Office of Attorney-General; or

(b) is not a lawyer fully admitted to practise under the Lawyers Act 1986,

the Departmental Head of the Department responsible for National Justice Administration is the Attorney-General and principal legal adviser to the National Executive.

7. DUTIES, FUNCTIONS AND RESPONSIBILITIES OF THE ATTORNEY-GENERAL

...

(2) The duties, functions and responsibilities of the Attorney-General are –

...

(i) to instruct lawyers within or outside the country to appear for the State in any matter.

7A. ATTORNEY-GENERAL'S ADVISORY COMMITTEE.

(1) The Attorney-General's Advisory Committee is hereby established.

(2) The functions of the Attorney-General's Advisory Committee include providing advice to the Attorney-General on the following:

(a) brief-out matters under Section 7B; and

(b) vetting of lawyers bills under Section 7C; and

(c) out-of-court settlement under Section 7D.

(3) The Attorney-General's Advisory Committee shall consist of –

(a) the Secretary for Justice as the Chairperson (if the Secretary is not the Attorney-General); and

(b) the Solicitor-General; and

(c) the State Solicitor; and

(d) two senior officers of the department at the Deputy Secretary level.

(4) The proceedings of the Attorney-General's Advisory Committee shall be as prescribed.

(5) Any form of communication between the Attorney-General and the Attorney-General's Advisory Committee is privileged and non-justiciable.

7B. BRIEF-OUT MATTERS.

(1) A brief-out by the Attorney-General under Section 7(2)(i) shall be made on the recommendation of the Attorney-General's Advisory Committee.

(2) A lawyer or a firm of lawyers appearing for the State in any matter without a brief-out shall be deemed to be acting without the instructions of the Attorney-General.

Penalty: A fine not less than K500,000.00.

13. FUNCTIONS OF SOLICITOR GENERAL
    

(1) The primary function of the Solicitor-General is to –

1. appear as an advocate for the State in matters before the courts in Papua New Guinea, unless otherwise instructed by the Attorney-General; and
2. provide legal representation as advocate in all court annexed alternate dispute resolution matters for an on behalf of the State; and

100. perform any other functions consistent with his advocacy functions.
     

CONSIDERATION

25. I am satisfied that the brief out to the firm was undertaken in a manner consistent with the relevant provisions and scheme of the Act, namely, to control and regulate State brief-outs. I am satisfied that the brief out letter coming from Dr Kwa was not misconceived or improperly issued, the Attorney General unable to fulfil the duties of office in this regard by reason of perceived conflict of interest in circumstances where the beneficiary of the brief out was a close relative. There was no challenge to the deposition of Dr Kwa that it is “common knowledge that the plaintiff is the Minister for Justice and Attorney-General’s nephew” (at [4] of the affidavit of Dr Kwa). In the circumstances it was entirely proper, in my respectful view, and within the discretion of the Attorney General, as the principal legal advisor to the National Executive Council, the Second Defendant in these proceedings, to determine that it was not appropriate for him to sign the brief out letter to the firm on behalf of his nephew, and for Dr Kwa, the Secretary of the Department of Justice and Attorney and the Chair of the Attorney-General's Advisory Committee, to do so and where pursuant to s7B of the Act which deals with brief out matters provides under subsection (1) that a brief-out by the Attorney General under Section 7(2)(i) of the Act shall be made on the recommendation of the Attorney General's Advisory Committee. What occurred here is a common-sense response to a situation that arose but one within the scheme of the Act relating to brief outs which seeks to ensure proper control and one within the discretion of the Attorney General in the circumstances as presented.
    
26. Further, a lack of express instructions to the firm at the date of the filing of the First Defendant’s Notice of Intention to Defend on 9 September 2024 did not impact the jurisdiction of the court to hear the matter. This is not a situation where Mr Mana had no instructions at all under the Act. There is nothing in the Act that prohibits the giving of retrospective instructions to a firm to act, the retrospective operation of instructions having the effect of enlivening the jurisdiction of the court from 9 September 2024 (Mineral Resources CMCA Holdings Limited v Ok Tedi Fly River Development Foundation Limited [2018] PGSC 95; SC 1752 (Cannings J, Makail J & Polume-Kiele J at [46]).
    
27. In consequence there is no basis for an order restraining Mr Mana from appearing for the First Defendant in the matter. Nor is there a proper basis to strike out any documents relied upon by the First Defendant as a consequence.
28. It is not necessary to consider if the Notice of Motion to set aside the order of 5 September 2024 is an abuse as it was in its amended form withdrawn and costs awarded to the Plaintiff,
    
29. With respect to the second issue, I have concluded that the public interest requires a priority listing of the substantive hearing for judicial review. Whilst perspectives differ on the evidence, what is clear is that the Plaintiff has lost the confidence of the Minister and a number of board members responsible for the delivery of an essential public service, the current impasse unlikely to serve the public interest should it continue. Neither the Plaintiff nor the First Defendant lead evidence as to the likelihood of the relationship being repaired in the near future in the public interest.
    
30. The issue of public interest is a significant consideration in this case, one to which the parties should give careful consideration. Even if, following a substantive hearing, the court was to conclude that the Plaintiff had made out grounds for judicial review, the court is required to consider whether in the further exercise of its discretion it should grant the relief sought by the Plaintiff.
    
31. Subject to taking further instructions on the proposed date and directions to be made I propose to list this matter for a priority trial.
    
32. The Plaintiff should pay the costs of the Defendants defending the application.
    

ORDERS

33. I make the following orders:
    1. The Plaintiff’s Notice of Motion filed 12 September 2024 be dismissed.
       
    2. The Plaintiff’s Notice of Motion for judicial review filed 26 September 2024 be listed for substantive hearing with priority on 11 April 2025 at 9.30am.
       
    100. The Plaintiff file and serve affidavits intended to be replied upon by 4.00pm on 7 March 2025.
         
    4. The Defendant’s to file and serve response affidavits by 4.00pm on 21 March 2025.
       
    5. The parties compile and the Plaintiff file a Review Book by 4.00pm on 4 April 2025.
       
    6. The matter be listed for a status conference at 9,30am on 7 April 2025.
       
    7. Written submissions intended to be replied upon by the parties be filed and served by 4.00pm on 10 April 2025.
       
    8. The Plaintiff pay the Defendants costs of its Notice of Motion filed 12 September 2024 on a party and party basis to be agreed or taxed.
       
    9. Time to abridge.
       

Lawyers for the plaintiff (Jema Lawyers on 7 February 2025): Akia & Associates Lawyers
Lawyers for the first defendant: Allan Mana Lawyers
Lawyer for the second & third defendants: Office of the Solicitor General