Hilary Singat v Commissioner of Police and The Independent State of Papua New Guinea (2008) SC910

• Jurisdiction: Papua New Guinea
• Judge: Salika, Kandakasi and Cannings, JJ
• Judgment Date: 02 May 2008
• Court: Supreme Court
• Citation: (2008) SC910
• Docket Number: SCA 64 OF 2005
• Year: 2008
• Judgement Number: SC910

Full Title: SCA 64 OF 2005; Hilary Singat v Commissioner of Police and The Independent State of Papua New Guinea (2008) SC910

Supreme Court: Salika, Kandakasi and Cannings, JJ

Judgment Delivered: 2 May 2008

_________________________________

SC910

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 64 OF 2005

BETWEEN:

HILARY SINGAT

Appellant

AND

COMMISSIONER OF POLICE

First Respondent

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Respondent

Waigani: Salika, Kandakasi and Cannings, JJ.

2008: 26 and 29 February

2 May

PRACTICE & PROCEDURE – Application seeking to enter default judgment – At time of filing application defence already filed – No “default” within the meaning of the Rules -National Court Rules O 12 r25 .

LAWYERS – Authority of lawyers to act for a party – Filing of notice of intention to defend and defence – Ostensible authority in lawyer to act – Lawyer acting without instructions – Proper recourse – Only client has cause of action against lawyer – No right in a third party to question authority of a lawyer and succeed - Legal representation of the State – Solicitor General has the statutory and ostensible authority or instructions to act for the State – Only Attorney General can question Solicitor General’s authority without affecting third party rights unless the third party is guilty of serious illegal conduct such as fraud or bribery – Claims By and Against the State Act 1996 – Attorney Generals Act 1989 s. 13.

Cases Cited:

Papua New Guinean Cases:

The State v. Zachary Gelu and Monoburn Earthmoving Ltd (15/08/03) SC 715.

Peter Aigilo v. Sir Mekere Morauta and The Independent State of Papua New Guinea and John Wakon (No 1) (03/08/01) N2103.

Simon Mali & Others v The State (03/04/02) SC690.

The Independent State of Papua New Guinea v. Zachary Gelu, The Solicitor–General and Manorburn Earthmoving Ltd (13/12/02) N2322.

Motor Vehicles Insurance (PNG) Trust v. Kulubula Salem [1991] PNGLR 305.

Rainbow Holdings Pty Ltd v. Central Province Forest Industries Pty Ltd [1983] PNGLR 34.

Polem Enterprise Ltd v. Attorney General of Papua New Guinea (2006) N2968.

Mapmakers Pty Ltd v Broken Hill Pty Ltd [1987] PNGLR 78.

The Government of Papua New Guinea and Richard Harold Davis v. Stanley Barker [1977] PNGLR 386.

Papua New Guinea Banking Corporation v. Jeff Tole (27/09/02) SC694.

Philip Takori & Ors v. The Independent State of Papua New Guinea & Ors (29/02/08) SC905.

Overseas Cases Cited:

Pope v. Aberdeen Transport Co. Pty. Ltd [1965] N.S.W.R. 1550.

Counsel:

V. Narokobi, for the Appellants

L. Kandi, for the Respondent.

2 May, 2008

1. BY THE COURT: 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 The State v. Zachary Gelu and Manorburn Earthmoving Ltd,

xcvi (15/08/03) SC 715.

xcvi1 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 of 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 defendant 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 defendant 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.”

(Underlining ours)

8. This provision was first considered in Peter Aigilo v. Sir Mekere Morauta and The Independent State of Papua New Guinea and John Wakon (No 1),

xcvii (03/08/01) N2103.

xcvii2 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...