Marape v O'Neill [2016] PGSC 4; SC1487 (24 February 2016)

SC1487

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 87 of 2014

BETWEEN:

HON. JAMES MARAPE in his capacity as Minister for Finance
Appellant

AND:

HON. PETER O'NEILL in his capacity as Prime Minister
First Respondent

AND:

HON. ANO PALA, Attorney General & Minister for Justice
Second Respondent

AND:

PAUL PARAKA trading as Paul Paraka Lawyers
Third Respondent

AND:

ROYAL CONSTABULARY OF PNG
Fourth Respondent

AND:

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Fifth Respondent

AND:

MATTHEW DAMARU, as the Director of National
Fraud & Anti-Corruption Directorate
Sixth Respondent

AND:

TIMOTHY GITUA, as the Deputy Director National
Fraud & Anti-Corruption Directorate
Seventh Respondent

Waigani: Hartshorn, Makail and Sawong JJ
2015: 17th November,
2016: 24th February

Review of decision of single Supreme Court Judge as to whether approval of Attorney General required by sixth and seventh respondents concerning their legal representation

Cases cited:

Jackson & Co. v Napper, Re Schmidt's Trade Marks [1886] UKLawRpCh 237; (1886) 35 Ch D 162 State v. David Wari Kofowei [1987] PNGLR 5
State v. Zachary Gelu and Manorburn Earthmoving Ltd (2003) SC716
James Marape v. Peter O'Neill (2015) SC1458
Counsel:

Mr. R. Leo, for the Appellant
Mr. M.M. Varitimos QC and Mr. D. Kipa, for the First Respondent
Mr. J. Umbu, for the Second and Fifth Respondents
Mr. R. Kasito, for the Third Respondent
Mr. I.R. Molloy and Mr. N. Tame, for the Fourth Respondent
Mr. G. M. Egan and Mr. M. Nale, for the Sixth and Seventh Respondents

24th February, 2016

1. BY THE COURT: This is a decision on an application by the fourth respondent to review the decision of Kirriwom J sitting as a single judge of the Supreme Court. The part of the decision of Kirriwom J that this decision is concerned with is in respect of the question of the engagement of lawyers by the sixth and seventh respondents, independently of the Attorney General.
   
2. Another decision will consider a review of the referral by Kirriwom J of two lawyers to the Lawyers Statutory Committee.
   
3. The appellant, first respondent, second respondent and fifth respondent support this application, the third respondent takes no position and the sixth and seventh respondents oppose this application.

Background

4. Kirriwom J heard an application by the fourth respondent for the following orders:

(i) An interim injunction restraining the sixth and seventh respondents from engaging and or instructing Jema Lawyers and or Greg Egan and any other law firm from having the carriage of this proceeding for or on behalf of them until further order.
(ii)An interim injunction that the sixth and seventh respondents may only commence, join or defend any civil proceedings relating to their duties in their official capacities as employees of the fourth defendant, with the express written consent of the Police Commissioner or until further order.

5. Kirriwom J refused these injunctive orders and in addition, referred two lawyers, Sam Bonner and Tiffany Twivey to the Lawyers Statutory Committee for disciplinary action.
6. The fourth respondent filed a notice of motion pursuant to Order 11 Rule 25 and 26 Supreme Court Rules 2012, to challenge each of the rulings of Kirriwom J. Subsequently, this Court by a majority decision, determined that there was no error in a separate ruling of Higgins J permitting the joinder of the sixth and seventh respondents as parties to this proceeding. Consequently, the fourth respondent does not pursue a review of the above second order that was refused by Kirriwom J.
7. Further, the sixth and seventh respondents filed an objection to competency of this application but they did not proceed with it.

This application

8. This application is made pursuant to Order 11 Rules 25 and 26 Supreme Court Rules 2012. We refer to our decision of James Marape v. Peter O'Neill (2015) SC1458 and its consideration of applications made pursuant to these Rules. In accordance with the observations made in that decision, we are satisfied that the notice of motion and the application contained therein meet the requirements of those Rules.

Engagement of lawyers

9. The fourth respondent contends that the sixth and seventh respondents are not able to engage or instruct lawyers to act on their behalf in this proceeding independently of the Attorney General as amongst others:
   
   1. the sixth and seventh respondents are joined to this proceeding as respectively the Director and Deputy Director of the National Fraud and Anti-Corruption Directorate;
   2. their joinder relates to their duties and employment as members of the Police Force and as servants or agents of the State, as interpreted by this Court in State v. Zachary Gelu and Manorburn Earthmoving Ltd (2003) SC716;
   100. s. 7 (i) and s. 8 (4) Attorney-General Act require that any lawyer acting for the State, including a servant or agent of the State, must have instructions from, or the authorisation to do so, from the Attorney General.
10. . The sixth and seventh respondents contend that they are entitled to engage or instruct lawyers of their choice independently of the Attorney General as amongst others:
    
    1. they are not State parties, but members of the Police Force who are joined to the proceeding also as citizens;
    2. s. 7 (i) and s. 8 (4) Attorney-General Act are irrelevant to the facts of this case and the State v. Manorburn (supra) is not on point and is distinguishable;
    100. the Police Commissioner's ability to direct or control a member of the Police Force does not extend to the sixth and seventh respondents engagement and choice of lawyers;
    4. there has been an abuse of the Court's process;
    5. it is necessary that there is real opposition taken to the stance of the appellant and the other parties to this proceeding;
    6. they would be unfairly prejudiced in the presentation of their arguments if they were denied legal representation.

Law

11. . Reliance is placed by the fourth respondent upon certain provisions of the Attorney-General Act. Sections 7 and 8 (1) – (4) are as follows:
    

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

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

(a) in accordance with Section 8, to carry out the duties of the principal legal adviser to the National Executive Council and related duties; and

(b) to exercise the duties, functions and responsibilities conferred upon the Attorney-General or upon the principal legal adviser by the Constitutional Laws and Acts; and

(c) to exercise the functions vested in the Office of Attorney-General by virtue of the underlying law including the bringing of proceedings known as relator proceedings; and

(d) to exercise powers delegated to him by the National Executive Council or a Committee of the National Executive Council; and

(e) in accordance with Section 10, to appoint a lawyer to be the Solicitor-General; and

(ea) in accordance with Section 13D, to appoint a lawyer to be the State Solicitor; and

(f) in accordance with Section 13, to review any decision of the Public Solicitor to refuse legal aid and assistance to a person and to grant such aid and assistance in his absolute discretion following a review; and

(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

(h) in accordance with Section 16, to grant a certificate to IPA that—

(i) a lawyer who is a non-citizen may commence practice as a lawyer in the country; and

(ii) a firm of lawyers registered as a foreign enterprise under the Investment Promotion Act 1992 may continue to practise as lawyers in the country; and

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

(j) to recommend to the Minister responsible for finance matters the payment by the State of an ex gratia sum of money in cases where the State is not under a legal liability but where it appears nevertheless that the State should compensate a person as an act of grace.

8. Legal advice and opinion.

(1) The Attorney-General, as the principal legal adviser, shall tender legal advice and opinion to the National Executive following a request to do so and shall of his own initiative give such advice where it appears to him necessary or appropriate for legal advice to be given on a matter.

(2) The Attorney-General may tender or offer legal advice or opinion to the National Executive Council on a matter coming before the Council.

(3) The Attorney-General may tender or offer legal advice or opinion to a Minister on a matter relating to the portfolio of that Minister.

(4) Where legal issues arise or might arise, legal advice must be provided by the Attorney-General to Ministers and the National Executive Council, either in his capacity as principal legal adviser to the National Executive Council or under Subsection (2) or (3) to the exclusion of all other lawyers unless the Attorney-General, in his absolute discretion, authorizes the giving of legal advice by any other person.

12. . Reliance is also placed upon this Court's decision in State v. Manorburn (supra). This case concerned a dispute over the powers and functions of the Solicitor General and the Attorney General. The Court stated that:

"The AG is given the exclusive power to tender legal advice and opinion on "any matter affecting the conduct of the business of the State" unless the AG in his absolute discretion authorises any other person to give legal advice (s. 8(4))"

13. . Since then, s. 8 (4) Attorney-General Act has been amended. The words, "On matters affecting the conduct of the business of the State" have been deleted and the remainder of the wording of s. 8 (4) now only refers to legal advice to Ministers and the National Executive Council.
14. . Section 7 (i) however has not been amended.
15. . In State v. Manorburn (supra) the Court further stated that:

"What is involved in the present case relate to legal representation of the Executive arm of the National Government, namely, National Executive Council and other agents, servants and instrumentalities of the State."

16. . The sixth and seventh respondents rely upon s. 155 (6) Constitution which is as follows:

"(6) Subject to any right of appeal or power of review of a decision, it is the duty of all persons (including the Law Officers of Papua New Guinea and other public officers in their respective official capacities), and of all bodies and institutions, to comply with and, so far as is within their respective lawful powers, to put into effect all decisions of the National Judicial System."
17. The sixth and seventh respondents submit that they have a dual role as parties to the proceeding as although they are commissioned officers in the Police Force, "...their participation as parties to the proceeding is also as citizens acting in compliance with their constitutional duties, and not only in their capacity as policeman carrying out police duties." Consequently, they do not require the approval of the Police Commissioner or Attorney General to engage lawyers to act for them in this proceeding, they submit.

18. Further, reference is made to s. 197 (2) Constitution which is as follows:

"Subject to Subsection (4), (which is not relevant here), insofar as it is a function of the Police Force to lay, prosecute or withdraw charges in respect of offences, the members of the Police Force are not subject to direction or control by any person outside the Force."

17. . If we understand correctly, it is submitted that s. 197 (2) should be read to mean that the Police Commissioner and also the Attorney General cannot direct and control members of the Police Force and this includes in regard to the engagement of lawyers to act for them in this proceeding.
18. . The sixth and seventh respondents also submit that "In Halsbury 4th Ed Volume 1 Para 76 it was said that if a party is entitled to appear in person, then prima facie that party has a right to be legally represented. Further, in the Court of Appeal case of C.A. Pett v Greyhound Racing Association Ltd (1968) 2 All ER 540 549, where the appellant was appealing an order refusing his request to be legally represented, Lord Denning MR said:

"The Plaintiff is here facing a serious challenge.... On such an inquiry, I think that he is entitled not only to appear by himself but also to appoint an agent to act for him. Even a prisoner can have his friend. The general principle was stated by Stirling J in Jackson & Co. v Napper, Re Schmidt's Trade Marks [1886] UKLawRpCh 237; (1886) 35 Ch D 162 at 172:

... that, subject to certain well-known exceptions, every person who is sui juris has a right to appoint an agent for any purpose whatever, and that he can do so when he is exercising a statutory right no less than when he is exercising any other right. ..... Once it is seen that a man has a right to appear by an agent, then I see no reason why the agent should not be a lawyer.

Consideration

19. . It is submitted by the sixth and seventh respondents that in their joinder as parties to the proceeding they have a dual role - ".... their participation as parties is also as citizens....... and not only in their capacity as policeman carrying out police duties." That their joinder is in their personal capacities was rejected by Kirriwom J. It is the case that the sixth and seventh respondents have been joined to the proceeding as the Director and Deputy Director of the National Fraud and Anti-Corruption Directorate and so their joinder is as members of the Police Force. Their joinder as police officers arises out of their service, duties and employment as police officers and employment by the State.
20. . It is not disputed that the sixth and seventh respondents are employees of State. As members of the Police Force they are officers and servants of the State: State v. David Wari Kofowei [1987] PNGLR 5; s. 188 (1) (b) Constitution. The Police Force of which the sixth and seventh respondents are members and on behalf of which they are joined to this proceeding, is a State Service: s. 188 (1) (b) Constitution.
21. . The sixth and seventh respondents are joined to the proceeding as officers and servants of the State and as such it can be said that they are appearing on behalf of the State. As a consequence of their joinder in this appeal, in the National Court proceeding from which this appeal emanates, a civil proceeding, the sixth and seventh respondents would be defendants and the Claims By and Against the State Act would apply. We are satisfied that the statement in State v. Manorburn (supra) as to legal representation of the Executive arm of the National Government, namely the National Executive Council and other agents, servants and instrumentalities of the State, with necessary modification, applies in this instance.
22. . Section 7 (i) Attorney-General Act gives the Attorney General the duty, function and responsibility to instruct lawyers to appear for the State in any matter. We are of the view that this section applies in this instance for the reasons mentioned. Further, we are of the respectful view that Kirriwom J erred when he stated that s. 7 (i) Attorney-General Act has no direct relevance to this case.
23. . As to the contention of the sixth and seventh respondents that they are not State parties but are members of the Police Force who were also joined to the proceeding as citizens; as referred to they were joined as police officers and not as citizens.
24. . As to the contention that s. 7 (i) Attorney-General Act is irrelevant and State v. Manorburn (supra) is not on point and is distinguishable, for the above reasons we reject this contention. Section 7 (i) is relevant and the principles in State v Manorburn (supra) are applicable in this instance.
25. . As to the Police Commissioner's ability to direct and control policeman, here the question is whether the Attorney General's approval is necessary pursuant to s. 7 (i) Attorney General Act. As to s. 197 (2) Constitution, in our view that section is to be interpreted to mean that members of the Police Force are not subject to direction or control by any person outside the Force in respect of the laying, prosecution or withdrawal of charges in respect of offences. It is not open to the interpretation that the Attorney General is not able to be required to approve the engagement of a lawyer on behalf of a policeman who is a party to a civil proceeding in respect of a matter that is not of a purely personal nature to the policeman.
26. . As to there being an abuse of the Court's process, even if that were the case, and we make no comment in that regard, unless a particular statute provides otherwise, this does not provide a court with the power to depart from or to disregard the provisions of a statute.
27. . As to it being necessary that there is real opposition taken to the stance of the appellant and the other parties to this proceeding, if the Court was of the view that it was necessary for it to hear other arguments on the appeal, it could consider the appointment of an amicus curae. Even if the court was of that view, it is not a reason for this court to depart from or to disregard the provisions of a statute.
28. . As to the sixth and seventh respondents being unfairly prejudiced in the presentation of their arguments if they were denied legal representation and their reliance upon common law principles in that regard, the fourth respondent is not seeking to deny the sixth and seventh respondents legal representation. It is seeking that they obtain the Attorney General's approval to their engagement of legal representation pursuant to the Attorney- General Act. We mention also that in regard to the general principle cited in Jackson v. Napper (supra), it concerns a person who is sui juris - of legal age and capable of managing his own affairs. Whilst the sixth and seventh respondents are sui juris, their capacity as such is restricted as they are joined to this proceeding not as ordinary citizens but as policeman and officers and servants of the State.
29. . After having considered the submissions and evidence relied upon we are of the view that as the sixth and seventh respondents are joined to the proceeding as Police Officers and officers and servants of the State concerning matters arising out of their service and duties as Police Officers in the course of their employment by the State, they are required to obtain the approval of the Attorney General to their engagement of lawyers to act on their behalf in this proceeding. To the extent that Kirriwom J came to a different conclusion we are of the respectful view that His Honour erred in so doing.
30. . Consequently we are of the view that the injunctive relief sought should be granted and in addition, the sixth and seventh respondents should be given the opportunity to obtain the requisite approval of the Attorney General.

Orders

31. . It is ordered that:

a) An interim injunction is granted restraining the sixth and seventh respondents from engaging and or instructing Jema Lawyers and or Greg Egan and any other law firm from having the carriage of this proceeding for or on behalf of them until further order;

b) The sixth and seventh respondents shall make application for the approval of the Attorney General to their engagement and instruction of Jema Lawyers and or Greg Egan or any other lawyers to have carriage of this proceeding for and on behalf of them, within fourteen days from today;

c) The Attorney General shall reply in writing to any application made pursuant to Order (b) above within fourteen days of being served with any such application;

d) The Attorney General shall exercise his duties, functions and responsibilities pursuant to s. 7 (i) Attorney-General Act in regard to the legal representation of the sixth and seventh respondents in this proceeding, if he decides to do so, within fourteen days of being served with an application referred to in Order (b) above;

e) The costs of the appellant, first respondent, second respondent, fourth respondent and fifth respondent of and incidental to this application shall be paid by the sixth and seventh respondents.

____________________________________________________________
Leo Lawyers: Lawyers for the Appellant
Twivey Lawyers: Lawyers for the First Respondent
Saulep Lawyers: Lawyers for the Second and Fifth Respondents
Paraka Lawyers: Lawyers for the Third Respondent
Tame Lawyers: Lawyers for the Fourth Respondent
Jema Lawyers: Lawyers for the Sixth and Seventh Respondents