Singat v Commissioner of Police [2008] PGSC 52; [2009] 1 LRC 640 (2 May 2008)

[2009] 1 LRC 640

IN THE SUPREME COURT OF PAPUA NEW GUINEA

SINGAT V COMMISSIONER OF POLICE AND ANOTHER

[2008] PGSC 10

Supreme Court
Salika, Kandakasi and Cannings JJ
26, 29 February, 2 May 2008

(1) Constitutional law - Law officers - Solicitor General - Scope of authority - Litigation - Whether Solicitor General required to act only on instructions of Attorney General - Appellant bringing proceedings against state and police officers - Solicitor General entering defence - Other solicitors subsequently filing notice of intention to defend but failing to file defence within time limit - Appellant seeking default judgment - Appellant claiming Solicitor General lacking authority to file defence - Whether Solicitor General having ostensible authority to represent state - Whether appellant having locus standi to challenge authority of Solicitor General to represent state - Attorney-General Act 1989, s 13.

(2) Practice and procedure - Default judgment - Pleadings - Defence - Appellant bringing proceedings against state and police officers - Solicitor General filing notice of intention to defend on behalf of all defendants - Other solicitors subsequently filing notice of intention to defend but failing to file defence within time limit - Appellant seeking default judgment - Whether 'default' established - Whether entitling appellant to apply for default judgment - National Court Rules, Ord 12, r 25.

The appellant, S, filed a writ claiming damages against the state and members of the police force for alleged police brutality. The Solicitor General filed a notice of intention to defend and a defence for and on behalf of all the defendants. Both the notice and the defence were filed within the relevant time limit. P Lawyers filed a notice of intention to defend for and on behalf of all of the defendants but failed to file a defence within the time limit. P Lawyers subsequently applied, unsuccessfully, for leave to file and serve a defence out of time. S brought a motion for default judgment, claiming that the defendants had failed to file a defence. S claimed that the Solicitor General did not have authority to file a defence in the matter. The judge at first instance dismissed S's motion for default judgment, finding that there was no evidence that the Solicitor General lacked authority or instructions and that there had been a defence filed within the time limit. S appealed to the Supreme Court, before which the two main issues were whether the Solicitor General had the authority and instructions to file the defence and whether there had been a default pursuant to the National Court Rules. Section 13 of the Attorney-General Act provided '(1) The primary function of the Solicitor General is to appear as an advocate for the State in matters coming before the courts ... (2) In the exercise of his function ... the Solicitor-General shall accept instructions only from the Attorney-General'. Order 12, r 25 of the National Court Rules provided that a defendant would be in default where, inter alia, '(b) ... he is required to file a defence and the time for him to file his defence has expired but he has not filed his defence'.

HELD: Appeal dismissed.

(1) At common law it was well established that a lawyer had ostensible authority to act for and bind his client when dealing with third parties. A lawyer who filed documents in any court proceedings for and on behalf of a party or gave notice that he or she was acting for a party was deemed to have the necessary instructions or, if not the actual instructions, at least, his or her client's ostensible authority to so act. The Solicitor General usually had the ostensible if not the actual instructions to represent the state in all matters before any of the courts in the country, being, by law, the primary advocate or lawyer for the state. Neither was there any legislative provision expressly prohibiting the Solicitor General from acting on his or her own for the interest of the state or requiring him or her to act only on the specific instructions of the Attorney General. Instead s 13(1) of the Attorney-General Act vested the Solicitor General with the primary duties and responsibilities as an advocate for the state and s 13(2), in providing that the Solicitor General ‘shall accept' instructions from the Attorney General, did not require the Solicitor General to seek instructions from the Attorney General. Where a party claimed any lack of authority in the Solicitor General to act for the state, it was incumbent upon that party to establish that fact with appropriate evidence. The only person who would have the locus standi to raise the issue of lack of authority or instructions was the Attorney General to the exclusion of all others, because it was strictly a matter between the Solicitor General and the Attorney General, like a lawyer and his client or a principal and his agent. In the instant matter, S did not provide any evidence to demonstrate that the Attorney General instructed P and thereby removed the Solicitor General from his usual and primary duty and role as the advocate or lawyer for the state for which he required no specific instructions. Additionally, S did not have locus standi to challenge the authority of the Solicitor General to appear in court as the primary advocate for the state (see paras [21], [24], [33], [35]-[36], below). Dicta of Woods J in MVIT v Salem [1991] PNGLR 305 and Rainbow Holdings Pty Ltd v Central Province Forest Industries Pty Ltd [1983] PNGLR 34 applied. Polem Enterprise Ltd v A-G [2006] PGNC 28 considered. State v Gelu ('Manorburn') [2003] PGSC 15 distinguished.

Per curiam. Although the issue of the correctness of the Supreme Court's decision in Manorburn must be resolved, it is not appropriate to do so in the instant matter. A five or seven-member panel of the Supreme Court should consider the soundness of Manorburn with the benefit of separate submissions from the Attorney General and the Solicitor General (see paras [15], [18]-[20], below). State v Gelu ('Manorburn') [2003] PGSC 15 considered.

(2) After many judgments on the interpretation of Ord 12, r 25 of the National Court Rules, the principles on which a default judgment could be signed were well settled. Pursuant to the National Court Rules, there could only be a default if no notice of intention to defend, defence or verified defence had been filed. Where any of those documents was filed, even outside the time limits, there could be no default. In the instant matter, there was no issue that the Solicitor General had filed his notice of intention to defend and defence on behalf of all of the defendants within the prescribed time limits. Even if the court had decided differently on the Solicitor General's authority to file those documents, that would not have entitled S to apply for default judgment. Instead, S would have been entitled to apply to strike out the defence (see paras [38], [42]-{47], below).

Per curiam. The courts have identified several requirements as being necessary in the interests of doing justice on the merits of the case before a default judgment can be entered. It is good practice to forewarn a defendant who has filed a notice of intention to defend before filing and moving for default judgment. The requirement for a forewarning is important and a proper and reasonable forewarning letter would have two parts: it would draw to the defendant's attention that the time of the defendant to file and serve his or her defence has expired without a defence being filed and served and it would give the defendant additional but limited time for him or her to file and serve his or her defence. Another requirement that has been built into the rules has been the requirement for a conduct of a search of the relevant court file to ensure that there is no defence in the court file before filing and moving for default judgment. The irregularity or invalidity attending the late defence or step taken without leave of the court can be regularised or validated on proper application and good case being made out. It should follow, in our view, therefore, that a defence or any further step taken in any proceeding without leave of the court remains irregular and or invalid until regularised or validated by appropriate court orders (see paras [39]-[45], below).

[Editors' note: Section 13 of the Attorney-General Act 1989 is set out at para [7], below.
Order 12, r 25 of the National Court Rules is set out at para [37], below]

Cases referred to in judgment

Aigilo v State (No 1) (2001) N2103, [2001] PGNC 102, PNG NC
Little v Spreadbury [1910] UKLawRpKQB 109; [1910] 2 KB 658, [1908-10] All ER Rep Ext 1179, UK DC
Mali v State [2002] PGSC 4, PNG SC
Mapmakers Pty Ltd v BHP Ltd [1987] PNGLR 78, PNG NC
MVIT v Salem [1991] PNGLR 305, PNG NC
PNG Banking Corp v Tole [2002] PGSC 8, PNG SC
Polem Enterprise Ltd v A-G [2006] PGNC 28, PNG NC; rvsd [2009] 1 LRC 627,
PNG SC
Pope v Aberdeen Transport Co Pty Ltd [1965] NSWR 1550, NSW SC
Rainbow Holdings Pty Ltd v Central Province Forest Industries Pty Ltd [1983] PNGLR 34, PNG SC
State v Barker [1977] PNGLR 386, PNG SC
State v Gelu ('Manorburn') [2003] PGSC 15, PNG SC; rvsg [2002] PGNC 42, PNG NC
Takori v State [2008] PGSC 3, PNG SC

Legislation referred to in judgment

Attorney-General Act 1989, ss 5, 7-8, 13
Claims By and Against the State Act 1996, s 4
Lawyers Act 1986
National Court Rules, Ord 7, r 6(1), Ord 12, r 25

Other sources referred to in judgment

44 Halsbury's Laws of England (4th edn), para 116
Lawyers Professional Conduct Rules
Oxford Advanced Dictionary of Current English
Oxford Advanced Learner's Dictionary of Current English (1986)
Practice Direction 1 of 1987

Appeal

The appellant, Hilary Singat, appealed to the Supreme Court against a decision of the National Court (Lay J, 18 May 2005) dismissing his application for default judgment against the respondents, the Commissioner of Police and the Independent State of Papua New Guinea. The facts are set out in the judgment of the court.

V Narokobi for the appellants.
L Kandi for the respondent.

2 May 2008. The following judgment of the court was delivered.

SALIKA, KANDAKASI and CANNINGS JJ.

[1] In this matter, Mr Hilary Singat is appealing against a decision of the National Court, which refused his application for default judgment against the respondents. Mr Singat filed and made his application despite the Solicitor General having filed a notice of intention to defend and a defence both within time. Relying on the decision of the Supreme Court in State v Gelu ('Manorburn') [2003] PGSC 15, Mr Singat argued before the National Court and now before us that, the Solicitor General filed his notice of intention to defend and defence without instructions or authority from the Attorney General and so, therefore, those documents were not properly before the court. Accordingly, he argues that default judgment should have been signed for him so the National Court erred in not doing so.

RELEVANT ISSUES

[2] As far as we can see, this appeal raises the following issues:

(a) Did the Solicitor General have the appropriate authority or instructions to file the notice of intention to defend and the state's defence to Mr Singat's claim?

(b) If the Solicitor General filed the intention to defend and defence without the instructions or authority of the Attorney General, did it render the notice of intention to defend and defence null and void?

(c) Did Mr Singat have any right or authority to question the Solicitor General's authority or instructions to file the notice of intention to defend and defence?

(d) Subject to answers to the above questions, was there default within the meaning o£ the National Court Rules to allow for default judgment?

[3] In our view, the first three questions can be dealt with together and the last question can be considered and determined on its own. A determination of the first three questions may to some extent affect a determination of the last question. We will therefore, deal with those questions first.

RELEVANT FACTS OR BACKGROUND

[4] Before we get into a consideration and a determination of the issues presented, we consider it appropriate that we should first take into account and appreciate the relevant facts or background giving rise to the issues before us. Accordingly, we turn to the relevant facts and background now.

[5] On 16 July 2004 Mr Singat filed a writ of summons claiming damages for alleged police brutality and other tortuous conduct of some members of the police force. On 5 August 2004 the Solicitor General filed a notice of intention to defend for and on behalf of all of the defendants. In the following month, on 14 September 2004, Paraka Lawyers filed a notice of intention to defend for and on behalf of all of the defendants which included the state. Paraka Lawyers did not file any defence for and on behalf of the defendants. But the Solicitor General did file a defence for and on behalf of all of the defendants on 6 October 2004. It seems Paraka Lawyers had no idea that the Solicitor General had already filed a notice of intention to defend and later a defence, both within time. They, therefore, filed and moved unsuccessfully on 20 October 2004 a motion for extension to file and serve the defendants' defence out of time. If Paraka Lawyers were aware of the documents that were filed by the Solicitor General, they would have only filed a notice of change of lawyers.

[6] Seven months later, on 10 May 2005, Mr Singat filed through his lawyers a motion for default judgment against the defendants claiming that the defendants failed to file their defence. As already noted, he argued that defence filed by the Solicitor General was without authority or the instruction so the Attorney General, which rendered the defence non-existent. His Honour, Lay J, heard that motion and dismissed it on 18 May 2005, which is now the subject of this appeal. His Honour found that there was no evidence of the Solicitor General lacking authority or instructions and that there was a defence already filed in court. Hence, His Honour effectively found that there was no default within the meaning of the rules.

SOLICITOR GENERAL'S AUTHORITY

[7] With this background in mind, we turn to a consideration of the first three issues we have outlined above. These issues revolved around the authority of the Solicitor General to represent the state in court proceedings. Section 13 of the Attorney-General Act 1989 is relevant in our view. This provision reads:

`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.

(2) In the exercise of his function under Subsection (1), the Solicitor-General shall accept instructions only from the Attorney-General.' (Our emphasis.)

[8] This provision was first considered in Aigilo v State (No 1) (2001) N2103, [2001] PGNC 102, by the National Court, per Kandakasi J. His Honour interpreted the provision in this way:

`In my view, the use of the word "primary" in subsection (1) is very important. The Oxford Advanced Dictionary of Current English, defines the word to mean 'leading in time, order or development". The word has not been considered in any judgment in Papua New Guinea from my search of the reported and numbered judgments to date. Going by the ordinary meaning of the word, I am of the view that, the legislature intended by the use of that word that all litigation, be it in defence of the State or proceeding for and on behalf of the State, before the courts should start with the Solicitor General. He is the principal lawyer for the State and the first in responsibility or is the first point of call in all litigation matters before the courts in the Country. This is why in my view, the setting out of the functions and powers of the AG [Attorney General] in sections 7 and 8 of the AG's [Attorney General] Act does not include any thing in particular to do with litigation.'

[9] The court then gave consideration to the difference between the powers and functions of the Attorney General and the Solicitor General. It then concluded that these offices are different and independent. As such, the Attorney General does not have any power or control over the Solicitor General's discharge of its duties and responsibilities. Having done that, the court returned to its interpretation of s 13 in this way:

'The fair and liberal meaning of the words in s. 7(i) and s. 13(2) of the AG's Act is very clear. The purpose and or intend of Parliament is also very clear. I have already expressed the view that, s 13 (1) by the use of the word "primary" vests all litigation functions for and on behalf of the State in the Solicitor General. This follows on from the creation of the office of the Solicitor General by s. 10 of the AG's Act. The office is a team of lawyers headed by the Solicitor General who is required to have a minimum of 5 years practice experience as a lawyer. In that context, the primary purpose of creating that office is to conduct all litigation for and on behalf of the State at the first instance. In other words, where the State becomes a party in any matter before the Courts in Papua New Guinea the person having the primary duty and or responsibility at the first place is the Solicitor General. As the State is such a big entity, it would neither be feasible nor would it be appropriate or proper for the office of the Solicitor General to be used for other purposes. In other words, it would not be proper for the office of the Solicitor General to be used for business other than the business of the State. It follows therefore logically that, the Solicitor General should be restricted as to from where or whom he should receive his instructions in terms of who he should act for. That is why in my view, s 13(2) is there to ensure that the office of the Solicitor General is not used for any purpose other than the primary function specified under subsection (1) ...'

[10] On 3 April 2002 the Supreme Court in Mali v State [2002] PGSC 4 arrived at a similar view. It seems the decision of the National Court in Aigilo was not drawn to the attention of the Supreme Court. Nevertheless, the Supreme Court consisting of Hinchliffe, Sakora and Batari JJ, without regard to the decision of the National Court, accepted a submission from the state that-

'the Attorney-General has no power (or responsibility) over the superintendence, control and direction over all the matters of litigation brought against the State. This power is vested in the Solicitor-General pursuant to s. 13 Attorney-General's Act, 1989 ... The decision whether or not a certain litigation should be settled out of court is a professional decision of an advocate involved in that litigation. It certainly is not a decision intended to be made by someone in the exercise of an executive or political power or function. The point is emphasized when the position of an Attorney-General who is both a parliamentarian and a member of the executive government is appreciated. Such an Attorney-General would not have, has not the legislative and professional, capacity to make such a decision. In this case the Office of the Solicitor-General had the carriage of the State's defence to the claim. The Attorney-General had no power to settle the claim as he did.'

[11] Toward the end of 2002, the issue arose again before the National Court in State v Gelu [2002] PGNC 42. This time, the issue arose in the context of the Attorney General taking proceedings against the then Solicitor General over an out-of-court settlement with Manorburn Earthmoving Ltd.

[12] It seems the parties did not draw to the National Court's attention to the decision of the Supreme Court in Mali. Therefore, the court had regard only to its decision in Aigilo and had its interpretation of s 13 of the Attorney-General Act and the other relevant provisions reaffirmed. At the same time, it went a step further by taking a comparative look at the position of Attorney General and the Solicitor General in settings similar to our jurisdiction, especially in New Zealand and Australia. The court then had a re-look at the provisions of s 13 and added to its earlier interpretation of sub-s (1) of that provision the following in the context of considering the meaning and effect of s 4 of the Claims By and Against the State Act:

'On further consideration, the use of the word "advocate" in that subsection further strengthens that view. According to A.S. Hornby, Oxford Advance Learner's Dictionary of Current English, Oxford University Press, 1986, the term "advocate" has two meanings. The first is the ordinary English language word to mean "a person who speaks in favour of somebody or something" while the second is in the legal sense to mean "a person who speaks in favour of somebody or something professionally in a Court of law". Given the provisions of s 13 (1) and the qualifications for appointment of the Solicitor General, there could be no argument that Parliament deliberately used the word "advocate". This was done in my view to show that, the person who is qualified to represent the State in all matters going before the Courts or likely to go before the Courts is the Solicitor General. The combined effect of the words "primary" as interpreted in the Aigilo case and "advocate" as here noted is clearly this. The Solicitor General is the first person legally and professionally qualified to represent the State in all matters affecting the State and is before or is likely to end up in any Court in the country. Proceeding then on the well accepted principle that Parliament cannot make a mistake, I am of the view that, it did not intend to create a conflict between the intent and purpose behind the AG's Act by enacting s.4 of the CBASA [Claims By and Against the State Act]. Instead it was fully aware of what it had already provided for in AG's Act and intended that s.4 would be consistent with that intent and purpose. In other words I am of the view that Parliament saw no difficulty in s.4 of the CBASA being harmonized with the intent and purpose behind the AG's Act. The intended harmony between the two in my view is also clear. Whilst, the Attorney General may appear to have a right or power of action under s.4 of the CBASA he has to exercise that power through the Solicitor General, who is the person authorised to be in Court on behalf of the State. The situation is akin to a "solicitor" and a "barrister" with the former performing only an advisory role while the latter appears in Court actions on behalf of a client in Court. The Attorney General is the chief solicitor to the State through the NEC ... while the Solicitor General is the chief barrister for the State. For a proper governance and representation of the interest of the State which includes the consideration not to involve the State in unnecessary costs, the Attorney General is not at liberty to brief out to other lawyers to the exclusion and independent of the Solicitor General's involvement. For the Solicitor General (barrister) is the only person entitled to received the necessary instructions from the Attorney General (solicitor) and where necessary and in appropriate cases to take out proceedings on behalf of the State. This makes sense when considering the fact that there is no distinction between an Attorney General who is a politician and one that is a civilian when it comes to the powers and functions of the Attorney General and the exercise of them. It is widely accepted if not by law, at least by the general perception of society that a politician cannot conduct a Court case on behalf of the State. This is particularly so when they already have a Solicitor General with his team of lawyers who are better qualified and devoted to doing that job. That is in turn, consistent with the principle of the separation of powers between the executive government and the civil service or between politics and administration, which is necessary in any good democracy such as ours.'

[13] The occasion for the Supreme Court to take a re-look at the provisions of s 13 of the Attorney-General Act and the other provision came, when the decision of the National Court in Manorburn went before it on appeal ([2003] PGSC 15). There, the Supreme Court, comprising of the former Chief Justice, Sir Arnold Amet Kapi DCI (as he then was) and Los J, said that s 13—

'indicates the nature and the scope of the functions of SG [Solicitor General]. Its main function is to "appear as an advocate for the State in matters before the courts". This is a specific and limited function. In exercising this function, SG shall accept instructions from the AG (s 13 (2)). In practice, where the State is a party in any litigation before the courts, the SG may act as an advocate if instructed to do so by the AG in accordance with s 13 (2) of AG [Attorney General] Act. Where the SG is instructed, he must act in accordance with the instructions of the AG, such as to settle or not to settle a matter. Alternatively, the AG may in the exercise of his discretion instruct any other lawyer within or outside the country to act for the State (s 7(i) of the AG Act). These provisions have to be read together with the relevant provisions of the CBAS [Claims By and Against the State Act] Act. Section 7... So far as service is concerned, two officers may receive service (a) Departmental Head responsible for justice matters and SG. With the former, if he is also AG by virtue of s 5 of the AG Act, he may give instructions to SG to act (s 13(2) of AG Act) or give instructions to another lawyer (s 7(i) AG Act). If the AG is a politician by virtue of s 4 of the AG Act, the Departmental Head will draw the matter to the attention of the AG to exercise his discretion either under s 13 (2) of the AG Act or under s 7 (i) of the AG Act. If the SG is served with process, he will seek instructions from the AG (s 13 (2) AG Act). He cannot act without the instructions of the AG.' (Our emphasis.)

[14] In support of his appeal, Mr Narokobi, counsel for Mr Singat, submits that, the decision of the Supreme Court in Manorburn is sound and/or good law. Therefore we should uphold and follow that decision. On the other hand, Mr Kandi, for the state, submits that the decision is not good law and as such we should revisit that decision and correct it. The state relies on the decision of the Supreme Court in Mali and the National Court decisions in Aigilo and Manorburn.

[15] There is some basis for the call for a revisit of the decision in Manorburn, as the Supreme Court's judgment does not seem to have addressed in detail a number of important issues covered by the earlier decisions in Mali and Aigilo and the National Court decision in Manorburn.

[16] First, the decision did not consider the legislative intention behind s 13 of the Attorney-General Act. Secondly,
s 13(2) only says the Solicitor General `shall accept' instructions from the Attorney General in the discharge of his `primary' duties and role as an 'advocate' of the state. This provision does not expressly prohibit the Solicitor General from performing his duties and responsibilities unless instructed by the Attorney General.

[17] The arguments before us confirm the fact that there are two conflicting decisions concerning the powers and function of the Attorney General, particularly in relation to appearance and representation of the state in court proceedings. The decision of the Supreme Court in Mali and the National Court decisions in Aigilo and Manorburn acknowledged and endorsed the fact that the Solicitor General is the 'primary advocate' or lawyer for the State. However, they differ in relation to the performance of the state duty and responsibility of the Solicitor General. The National Court decisions with the Supreme Court decision in Mali say that the Solicitor General does not need the specific instructions on a case-by-case basis from the Attorney General having regard to s 13(1)-(2) of the Attorney-General Act and in any case, the Solicitor General is not subject to any control or direction from the Attorney General in the exercise of his powers and functions, although he is restricted to receive instructions only from the Attorney General and none other, given the enormity of the Solicitor General's duties and responsibilities and we might add the fact that the Solicitor General is an employee of the state. On the other hand, the Supreme Court decision in Manorburn departed from that accepted position and held that the Solicitor General is obliged to seek and receive instructions from the Attorney General and that he cannot act for the state without the Attorney General's instructions.

[18] Although the issue of whether the decision of the Supreme Court in Manorburn is sound is a valid one and must be resolved, we do not consider it appropriate and necessary for us to do so for three reasons. First, whatever we decide will not resolve the conflict in the decision of the Supreme Court as noted above. Instead, it will only add to the conflict. We consider a five-or seven-member Supreme Court needs to hear the relevant arguments and come to a decision that could help resolve the apparent conflict in an appropriate case later.

[19] Secondly, the case before us can be determined without determining the issue of revisiting and if need be correcting the Supreme Court decision in Manorburn. When the present case went before the National Court, the court determined the issue of whether the Solicitor General had the Attorney General's instructions to file his notice of intention to defend and defence on the evidence and facts before it. Whether the learned trial judge was correct in arriving at his decision can be determined by reference to the facts that were before him and the relevant law on point.

[20] Thirdly, we consider it appropriate that the Attorney General and the Solicitor General should be separately represented and heard before there can be a determination of the soundness or otherwise of the decision of the Supreme Court in Manorburn.

[21] The issue before the National Court and now before us on appeal from the court below concerns the issue of a lawyer's authority to represent and bind a client. At common law it is well established that a lawyer has ostensible authority to act for and bind his client when dealing with third parties. The National Court in MVIT v Salem [1991] PNGLR 305 first stated and adopted the relevant principles in the context of compromising a court action. There Woods J noted the relevant principles in these terms:

'The law is quite clear that solicitors and counsel have a general authority to effect a compromise in all matters connected with the suit in question and not merely collateral to it. And if they act within their apparent authority and the other party has no notice of any limitation on it the client will be bound thereby. There are numerous cases which emphasise the principle, however, I will refer to the case of Little v Spreadbury [1910] UKLawRpKQB 109; [1910] 2 KB 658 which states as follows: "A client who induces his solicitor to believe that he has authority to compromise an action upon certain terms is bound by such compromise if the solicitor in making it reasonably believes that he has authority to do so although the client did not in fact intend to authorise a compromise upon those terms and did not understand the terms upon which it was proposed the compromise should be effective." I also refer to Halsbury's Laws of England, 4th ed, vol 44 "Solicitors", par 116 which notes that a solicitor whose name is on the record, is amongst other matters, authorised to bind his client by compromise of existing proceedings on terms which do not involve extraneous matters unless the client has limited his authority and has communicated that limitation to the other side and subject to the discretionary power of the court if its intervention by making an order is required to inquire into the circumstances and grant or withhold the intervention as it thinks fit and subject also to the client's disability'

[22] This is a specific application of the general principle in the law of agency or law of principals and agents. It is well-settled law that an agent as the ostensible authority to bind his principal. An agent can bind his or her principal by entering into a contract on behalf of the principal, provided the agent acts within the scope of his or her apparent or ostensible authority, even if the agent lacks actual authority and the fact of any lack in authority not being communicated to the third or other parties. The Supreme Court in Rainbow Holdings Pty Ltd v Central Province Forest Industries Pty Ltd [1983] PNGLR 34 (Pratt, Bredmeyer and McDermott JJ) adopted into jurisdiction and applied these principles.

[23] In that case, the Supreme Court was faced with a case in which liability to pay damages for breach of a contract was denied because the contract was signed on behalf of the appellant company by a person without actual, implied or ostensible authority and was not ratified by the appellant. The court examined the particular circumstances in which the contract was executed and it held that under the circumstances, it was reasonable to believe that the lawyer who signed the contract had authority to sign the contract, and, therefore, there was a binding contract. This decision has been followed and applied in many subsequent cases by both the Supreme and National Courts.

[24] In our view, a lawyer who files documents in any court proceedings for and on behalf of a party or gives notice that he or she is acting for a party is deemed to have the necessary instructions if not the actual instructions, at least, his client's ostensible authority to so act. It is no light matter for a lawyer to do that, because of the penalties that can follow a lawyer who acts without instructions under the Lawyers Act and the Lawyers Professional Conduct Rules.

[25] In nearly all of the known cases, the issue of authority or no authority has arisen when the principals have tried to opt out of contracts entered into on their behalf by their servants or agents having the actual if not the ostensible authority to do so. Except in cases where the other contracting party has been informed of the servants or agents lack of authority or a limit in the servant or agents authority to enter into a contract, all such attempts have failed. The decisions in Rainbow Holdings Pty Ltd v Central Province Forest Industries Pty Ltd [1983] PNGLR 34 and MVIT v Salem [1991] PNGLR 305 are good examples of this.

[26] Mr Singat has not drawn to our attention any case in which one of the parties to a contract or court proceedings has been allowed to plead a lack of actual or ostensible authority and succeed, as against the other party or parties in any court proceedings or a contract, outside the known and well accepted exception to the ostensible authority rule. Our own research, however, revealed the decision of Gabi J in Polem Enterprise Ltd v A-G [2006] PGNC 28. There, His Honour refused to enforce a deed of settlement entered into by the Solicitor General as he had received no instructions from the Attorney General to do so. Accordingly, His Honour found that the Solicitor General had no actual authority to enter into the deed of settlement. By reason of that, His Honour found that, the deed of settlement was an illegal contract against which there could be no estoppel by conduct.

[27] The issue of whether or not the Solicitor General had the ostensible authority to settle the case was not expressly addressed. Hence, His Honour did not consider the doctrine of ostensible authority and its exception within the context of the case before him. Consequently, His Honour had no regard to evidence before him of the Solicitor General having expressly told the plaintiff that he did have the necessary instructions to enter into settlement negotiations on the basis o£ which, the parties entered into settlement negotiations, arrived at the deed of settlement and part-performed the agreement.

[28] The law or the doctrine of ostensible authority has developed in the way it has for good reason. One good reason is that, a third party or the other contracting parties or parties to court proceedings would not be parties or privy to any contract or relationship between a lawyer and his client or an agent and his principle and communication taking place between them. It is entirely a matter between, the agent and his principal or a lawyer and his client except as the law may otherwise permit. Another good reason is that, a client in the case of a lawyer or a principal in the case of an agent acting without the appropriate and necessary instructions has recourse against his lawyer, servant or agent. The lawyer, servant and or agents can be terminated and a cause of action would accrue to the client or the principal to sue the lawyer or the servant or agent who acts without instructions. The third party, with whom the lawyer, servant and or agent may have negotiated with and entered into any agreement, would have no such recourse. A further, reason would be that, the general business efficacy including the orderly and, timely handling and dispositions of cases in court and business generally would be adversely affected by the ready undoing of contracts or steps taken on the representation of a party through his lawyer, servant or agent, and there would be no finality in sight for any litigation.

[29] In this case, Mr Singat was suing the state for damages for alleged police brutality. After service of the proceedings on the state through the office of Attorney General and the Solicitor General as per the Attorney-Genera Act and the Claims By and Against the State Act, the state initially through the Solicitor General filed its notice of intention to defend and defence, both within time. Paraka Lawyers, in ignorance of the Solicitor General filing the notice of intention to defend and defence, filed a second notice of intention to defend. Thereafter, Paraka Lawyers, again in ignorance of the documents already filed by the Solicitor General, filed and unsuccessfully moved on 20 October 2004 a motion for extension of time to file the defendant's defence.

[30] Following the dismissal of the application of the defendants through Paraka Lawyers, Mr Singat applied for default judgment in default of the defendant's defence. Before filing the necessary application, Mr Singat forewarned the defendants of his intention to move for default judgment. At that stage, Paraka Lawyers seem to have discovered the defence filed by the Solicitor General and informed Mr Singat accordingly. Despite being informed of the defendants' defence, Mr Singat filed his motion for default judgment. He did that with the conviction that, because the Solicitor General did not have the specific instructions of the Attorney General to represent the state in this matter, the defence was not validly before the court. By reason of that, he argued that there was no proper defence filed for the state and so, therefore, there was a default in the filing and serving of the defendants' defence, which, he said, entitled him to apply for default judgment.

[31] The learned trial judge ruled in these terms in so far as is relevant:

'There is no direct evidence that the solicitor general who is not instructed - an inference that he was not instructed cannot be drawn in the face of the notice of intention to defend unless direct evidence to that effect is produced which should come from the Attorney General. I therefore find that the notice of intention to defend and defence filed by the solicitor general are in order. So, I refuse the application for default judgment.'

[32] We note that Mr Singat did not adduce any evidence of communicating and confirming the Attorney General's instructions to Paraka Lawyers in the matter and removing the Solicitor General's further involvement in the proceedings. Mr Singat only assumed that the Solicitor General acted without instructions because of the documents Paraka Lawyers filed in court.

[33] As we have noted, the Solicitor General usually has the ostensible if not the actual instructions to represent the state in all matters before any of the courts in the country. After all, the Solicitor General is, by law, under s 13(1) of the Attorney-General Act, the primary advocate or lawyer for the state in all matters in any of the courts in the country. Going by the submissions of the Solicitor General before us on behalf of the state, we note that it has always been the case both before and after the decision of the Supreme Court in Manorburn that the Solicitor General immediately acts for the state in relation to any proceedings served on him without waiting for the Attorney General's instructions. Neither is there any provision in the Attorney-General Act nor the Claims By and Against the State Act or any other legislation, positively and/or expressly prohibiting the Solicitor General acting on his own for the interest of the state or require him to act only on the specific instructions of the Attorney General. Instead, s 13(1) of the Attorney-General Act vests the Solicitor General with the primary duties and responsibilities as an advocate for the state and s 13(2) says in the discharge of his duties the Solicitor General `shall accept' instructions from the Attorney General. This provision does not say that the Solicitor General shall seek instructions from the Attorney General and act only on his instructions.

[34] Only the decision of the Supreme Court in Manorburn that has imposed such a prohibition or requirement, which has been followed without further consideration by the decision in Polem Enterprise Ltd. If what is not provided for in the legislation were the case, there would be far more delays and far more defaults in matters of representation of the state in all court proceedings which involve the state as a party, given that the Attorney General is a political head with other administrative responsibilities to worry about, complicated by having no appropriately trained and experienced lawyers supporting him, as has the Solicitor General. With that complication there is already much delay in representations for the state in all courts in the country. Following the decision in Manorburn comes with the risk making that position far worse. The case before us is a classical demonstration of the kind of delays there might be and the kind of adverse consequences that could follow against the state if the Solicitor General was required to seek instructions from the Attorney General wait for his instructions and in the meantime do nothing on each every matter that requires the taking of steps in defence of the state.

[35] What all this means is that, where a party claims any lack of authority in the Solicitor General to act for the state, it is incumbent upon that party to establish that fact with appropriate evidence. In any case we note that the only person who would have the locus standi to raise the issue of lack of authority or instructions is the Attorney General to the exclusion of all others because it is strictly a matter between the Solicitor General and the Attorney General just like a lawyer and his client or a principal and his agent. The issue can only be raised as against the Solicitor General without affecting any contract or any of the steps taken by the Solicitor General that involves the rights or interests of third parties. The only exception would be in a case where a third party and the Solicitor General have deliberately and knowingly facilitated a contract or any steps the Solicitor General may have taken say through a third party's fraud, misrepresentation or bribery or such other serious illegal conducts. That would vitiate the contract or the steps taken by the Solicitor General, which could form the foundation for an action against both the Solicitor General and the third party. Care should be exercised to ensure that the Attorney General is not raising the issue of lack of authority to cover for the negligence of his own or those of the Solicitor General or any other state lawyer.

[36] In the present case, we have already noted that Mr Singat did not provide any evidence before the National Court and again before us showing that the Attorney General instructed Paraka Lawyers and thereby removed the Solicitor General from his usual and primary duty and role as the advocate or lawyer for the state for which he needs no specific instructions. Additionally, we find that Mr Singat has no locus standi to challenge the authority of the So,,ritor General to appear in court as the primary advocate for the state in this matter. In any case, we find that the learned trial judge correctly found on the evidence before him that, there was no factual basis to question the authority of the Solicitor General to file and serve his notice of intention to defend and defence on behalf of the state and the other defendants. In the circumstances, we find that the learned trial judge was correct in noting and accepting that, at the time of Mr Singat filing, serving and later arguing his application for default judgment, there was already a defence on the file.

[37] This takes us to the last and remaining issue of whether there was default within the meaning of the Ord 12, r 25 of the National Court Rules.

The rule in question reads:

'25. Default. (17/2)

A defendant shall be in default for the purposes of this Division-

(a) where the originating process bears a note under Order 4 Rule 9, and the time for him to comply has expired but he has not given the notice; or

(b) where he is required to file a defence and the time for him to file his defence has expired but he has not filed his defence; or

(c) where he is required under Order 8 Rule 24 to verify his defence and the time for him to verify his defence in accordance with that Rule has expired but he has not so verified his defence.'

[38] There are many judgments on this provision of the rules. We need not go to all of the judgments, suffice only to say on the basis of the many judgments that the principles on which default judgment can be signed are now well settled. Most of these principles are self evident in r 25. Additionally, however, the Supreme and National Courts have built into this rule a few more requirements before any default judgment can be entered, all of these are necessary in the interest of doing justice on the merits of a case rather than a strict application of the rules.

[39] First of the additional requirements is as per the decision in Mapmakers Pty Ltd v BHP Ltd [1987] PNGLR 78. There, the court held that it is a good practice to forewarn a defendant who has filed a notice of intention to defend before filing and moving for default judgment. The Supreme Court in State v Barker [1977] PNGLR 386 per Kearney J noted this good practice by agreeing with similar views expressed in Pope v Aberdeen Transport Co Pty Ltd [1965] NSWR 1550 at 1551 per Wallace J. The decision in Mapmakers formed the foundation for Practice Direction 1 of 1987, which reads:

`Default judgment - obligation to notify person or lawyer filing Notice of Intention to Defend.

In N8588 - Mapmakers Pty Ltd v Broken Hill, Proprietary Company Limited, the Chief justice has laid down the following principle to be followed when entering default judgments, namely that there must be a practice of forewarning lawyers of the opposite side (or the defendant if in person) before entering judgment where there is a Notice of Intention to Defence filed. In the event that this does not occur, then this failure may be a ground for setting aside the judgment.'

[40] The requirement for a forewarning before filing and applying for default judgment is an important one. A proper and reasonable forewarning letter would have two parts. In the first part it would draw to the defendant's attention that the time of the defendant to file and serve his or her defence has expired without a defence being filed and served. Then in the second part, it would give the defendant additional but limited time for him or her to file and serve his or her defence. The aim of the forewarning letter is thus, to give a defendant who might have inadvertently overlooked the need for filing and serving its defence within the prescribed time limits the opportunity to do so. This ties in well with the courts usual desire to do justice on the substantive merits of a case as opposed to a judgment based purely on technicalities and deficiencies or defaults in compliance with the rules of the court, which are only a means to an end and not an end in them (PNG Banking Corp v Tole [2002) PGSC 8). At the same time, the requirement also ensures that, a defendant is not taken by surprise by a default judgment and thereby avoids the possibility of an application to set aside a default judgment, with the associated costs and the court's time issues.

[41] Another requirement that has been built into the rules has been the requirement for a conduct of a search of the relevant court file to ensure that there is no defence in the court file before filing and moving for default judgment. The search in question is usually and should be conducted at the time of filing the motion and not anytime before that to ensure that at the time of filing the motion for default judgment there is in fact no defence on the court file. In all of the cases of default judgment that have thus far gone before the courts, the courts have invariably ensured a meeting of this requirement before granting a default judgment. In the unfortunate event of a default judgment being signed without meeting this additional requirement, they have been readily set aside.

[42] There is a good reason behind this. In some cases, a defendant might file his or her defence but may have inadvertently overlooked the need to have the defence served on a plaintiff or that the defence may have been sent to the wrong address or person. Only a search of the relevant court file would reveal whether a defence has been filed or not. All good and reasonable lawyers choose not to proceed with an application for default judgment if their search of the relevant court file reveals the filling of a defence that but not have been served on them. This accords well with the notion of 'default' within the meaning of Ord 12, r 25. For there can only be a default if no notice of intention to defend (r 25(a)), or a defence (r 25(b)) or a verified defence (r 25(c) (as the case might be) has not been filed. Where any of these documents is filed, strictly speaking, there can be no default in respect of any of them, even if they are filed outside the time limits imposed by the rules. The default has to be in terms of filing the documents in question and not the time limits for filing it.

[43] There is provision already under the rules for the filing of a notice of intention to defend even outside the time limits. The relevant rule here is Ord 7, r 6(1) which allows a defendant to file and serve his or her notice of intention to defend outside the prescribed time limits without leave of the court. However, a defendant who so files a notice of intention to defend is at no liberty to file and serve his or defence out of time or take any other step in the proceedings without leave of the court. Any defence filed outside the time limit would be irregular and invalid for that purpose. Nevertheless, that does not mean that, there is no defence and hence a default within the meaning of the rules under consideration. Rather, it renders the defence or step taken without leave, irregular and invalid but remain valid until declared as such.

[44] The irregularity or invalidity attending the late defence or step taken without leave of the court can be regularised or validated on proper application and good case being made out. Until they are regularised or validated, no further step can validly be taken by reason of the irregularity or invalidity. Recently, the Supreme Court decision in Takori v State [2008] PGSC 3 confirmed that position. There the state filed and served its notice of intention to defend and defence out of time without leave of the court. Then proceeding on the basis of its defence, the state successfully applied for summary judgment which the National Court granted. Being aggrieved by the decision, Mr Philip Takori and the others appealed to the Supreme Court. The court, comprising of Kirriwom, Gavara-Nanu and Kandakasi JJ, upheld the appeal and held that the state was at no liberty to make the application by reason of filing its notice of intention to defend out of time and its defence also out of time without leave of the court. The court was of the view that, the state could not file and then successfully apply for summary judgment without first obtaining the leave of the court to do so.

[45] It should follow, in our view, therefore, that a defence or any further step taken in any proceeding without leave of the court remains irregular and or invalid until regularised or validated by appropriate court orders. Hence, unless the irregular steps taken and documents filed are regularized or validated, they entitle the opposing parties to apply for a strike. If such an application is successful, it would then pave the way for an application to be made for default judgment. By this time, there would be no impediment to signing default judgment against the defendant or the defaulting party.

[46] In the present case, there is no issue that the Solicitor General filed his notice of intention to defend and defence on behalf of all of the defendants, now respondents, within the prescribed time limits. However, matters were quite unnecessarily complicated by Paraka Lawyers filing and serving an application for leave to file and serve a defence out of time despite the defence that had been already filed by the Solicitor General. That unnecessary complication gave support to the appellant's argument revolving around the authority of the Solicitor General to file and serve those documents. We have already considered that issue and have determined that against the appellant for the reasons we earlier gave. If, however, we had come to a different conclusion, that would not have automatically, entitled Mr Singat to apply for default judgment. Instead, he would have been entitled to apply for a strike out of the state's defence and subject to succeeding on that application, apply for default judgment. Without that happening, there was a serious impediment to him getting to the relief he was applying for.

[47] Taking into account all that we have said and what we have found in the foregoing, we are of the view that the learned trial judge was correct in holding that the defendants filed their notice of intention to defend and defence within time. The state and the other respondents did not therefore default in filing and serving their notices of intention to defend and thereafter their defence. The filing and serving of those documents were regular and within the ostensible and statutory authority vested in the Solicitor General, over which Mr Singat has no locus standi to question. In the circumstances, we find that, the whole of this appeal is without any merit. Accordingly, we order its dismissal with costs to the respondents which shall be agreed, if not taxed.

Solicitors:
Narokobi Lawyers for the appellant.
Solicitor General for the respondent.