Water PNG v Maiti [2020] PGSC 110; SC2017 (19 October 2020)

SC2017

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

SC REV NO. 4 OF 2019

REVIEW PURSUANT TO CONTITUTION SECTION 155(2) (b)

APPLICATION BY

WATER PNG
Applicant

AND:
MICHAEL MAITI
Respondent

Waigani: Batari J
2019: 13^th November
2020: 19^th October

JUDICIAL REVIEW – Leave – application for leave – competence of – application to dismiss cause for lack of authority to act on behalf of the Water PNG – application refused

Cases Cited:
Papua New Guinea Cases

Avia Aihi v The State (No.2) [1982] PNGLR 44
Ila Geno & Ors. v The State [1993] PNGLR 22

Overseas Cases

Inland Revenue Commissioner v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617.

Counsel:

Ms M. Worinu, for the Applicant/Respondent
Mr T.M. Kamuta, for Respondent/Applicant

19^th October, 2020

1. BATARI J: In this application, the applicant objects to competency of the entire proceedings for want of representative authority and want of form. The objection was opposed. This is the ruling.

2. By way of background, Michael Maiti was employed by Water PNG (applicant). On 12 November, 2015 the applicant terminated Michael Maiti’s services and he sought a judicial review of his termination at the National Court in, OS(JR) No. 159 of 2016 – Michael Maiti v. Billy Ivan & Water PNG. The primary Court dismissed the application for leave and hence, the entire judicial review proceedings on 17 June, 2016. The respondent (applicant then) appealed the decision of the National Court but discontinued the appeal on 30 May, 2018.

3. In the meantime and following the dismissal of the judicial review proceedings, the respondent filed another judicial review application on 20 October, 2016 in OS(JR) 710 of 2016 – Michael Maiti v Water PNG seeking an order for mandamus to compel Water PNG to perform its statutory duty where it had sat on the applicant’s appeal despite repeated enquires. On 10 September, 2018 the primary Court ruled in the respondent’s favour as follows:

1. The Defendant’s Board of Directors shall hear and determine the appeal lodged on 8 November, 2015 at the next schedule meeting of the Board or within 3 months from today or whichever date is earlier.
   
2. The Defendant shall pay the Plaintiff’s cost of this proceeding on a party/party basis to be taxed if not agreed.
   

4. The application before this Court was filed on 30 January, 2019 seeking leave to apply for judicial review of the primary Court’s decision. On 28 February, 2019 the applicant served its application on the respondent. On 17 May, 2019 the respondent filed this objection. The incompetency of the application for leave is premised on the contention that Kamutas Legal Services lacked the legislative authority to commence and maintain proceedings in the Court below and before this Court for and on behalf of PNG Water.

5. The respondent’s principal contention is that Water PNG is a statutory body or an authority of the State to which s. 10 of Public Money Management Regularisation Act 2017 and s. 7 of the Attorney General Act 1989 apply.

6. Section 10 in a mandatory term, prohibits a public or statutory body from engaging legal representation, commencing any action or other proceedings in Court or tribunal without the authority of the Attorney-General under the Attorney-General Act.

7. Section 7(1) of the Attorney-General Act gives the Attorney-General the power to instruct lawyers to appear for the State in any matter. In this case, the respondent’s case is that Kamutas Legal Services has been engaged and retained by Water PNG, a statutory body or authority without the prior approval of the Attorney-General, contrary to the Public Money Management Regularisation Act 2017 and the Attorney-General Act.

8. I accept the contention by Mr Kamuta of counsel for Water PNG, that the competency objection is flawed for a number of reasons. The first and most important, is that the question of representation in a Solicitor (Lawyer)/Client relationship is a private matter based on a contractual arrangement between the two parties. It has no bearing on the cause before the Court. The challenge against a lawyer acting without authority or contrary to instructions or a brief has appropriate redress elsewhere. Such complaint may result in the lawyer being cautioned, or referred to the Lawyers’ Statutory Committee or the lawyer being slammed with contempt of court charges or even barred from appearing before the same Judge or in further proceedings. The cause of action on the other hand would be saved and may be continued by the party in-person or through alternative legal representation.

9. The respondent’s application fails for the second reason that the appropriate party to raise the issue of representation under the Public Money Management Regularisation Act 2017 and the Attorney-General Act is the Attorney-General. Ms Worinu of Kopunye Lawyers and counsel for the respondent has not shown whether her client has instructions from the Attorney-General to object to the representative capacity of the applicant. They are challenging the representative capacity of the lawyers acting for Water PNG on mere speculation that the Attorney-General has not approved the engagement of Kamutas Legal Services to represent Water PNG. It may be that the Attorney-General has briefed out on private representation for Water PNG. Or as the applicant argued, Water PNG is an incorporated company capable of suing or being sued in its separate corporate entity. In that case, Water PNG would have its own internal arrangements to engage its own lawyers to look after its legal affairs.
10. The third reason the respondent’s application fails is that the application is filed contrary to O.7 r.15 of the Supreme Court Rules. I accept Mr Kamuta’s contention that the objection to competency is itself incompetent. It was filed after the 14 days limit in O.7 r.15 of the Supreme Court Rules had lapsed and there has been no explanation for the failure to comply with rules. The respondent also failed to seek dispensation of the rules.

11. The fourth reason why the respondent’s application will fail is, that the issue of representation was not raised, in the Court below. The respondent had all along been aware of the representation of Water PNG by Kamutas Legal Services. He did not object to that in any of the proceedings in the Court below. He has also failed to seek leave and give reasonable explanation why he should be given leave to raise the issue of competency in this application. This is an hindsight application bordering on a fishing expedition and a delay tactic. In any event, the issue of legal representation does not go to the issue of competence of proceedings.

12. On the second ground on want of form, I accept the application’s contention that the ground is misconceived. Under O.16 r.11 of the National Court Rules, an aggrieved person has the right to appeal to set aside or discharge any order of the Court granting or refusing an application for leave or an application for judicial review. The appeal under O.16 r.11 is by way of Notice of Motion. Where leave is required to apply for judicial review because the applicant has lost its right of appeal, the applicant may proceed under O.7 rr.3, 4, 5, 6 of the Supreme Court Rules pursuant to the directives in O.5 r.1 of the Supreme Court Rules in respect of the procedure to be followed in applying for leave.

13. In this case, Water PNG had lost its right to appeal. I am satisfied the applicant has adopted the appropriate form to seek leave to apply for judicial review under s. 155(2)(b) of the Constitution. At the leave stage, the applicant must show cogent and convincing reasons why it allowed the appeal period to lapse without filing the appeal and it must demonstrate, there is an arguable case for granting the relief upon a quick perusal of the papers before the Court relied on by both parties: Avia Aihi v The State (No.2) [1982] PNGLR 44.See also, Ila Geno & Ors. v The Independent State of Papua New Guinea [1993] PNGLR 22 where the Supreme Court approved the common law principles on leave to apply for judicial review enunciated in Inland Revenue Commissioner v National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1982] AC 617.

14. Those are issues are for another time and occasion to determine. For now, the application is misconceived. It is dismissed.

Orders

1. The objection to competency of the application to seek leave to apply for judicial review is dismissed.
   
2. The respondent shall meet the costs of this application on a party/party basis to be taxed if not agreed.

________________________________________________________________
Kamutas Legal Services: Lawyers for the Applicant
Kopunye Lawyers: Lawyers for the Respondent