SCA 87 of 2014; Hon. James Marape in his capacity as Minister for Finance v Hon. Peter O’Neill in his capacity as Prime Minister and Hon. Ano Pala, Attorney General & Minister for Justice and Paul Paraka trading as Paul Paraka Lawyers and Royal Constabulary of PNG and the Independent State of Papua New Guinea and Matthew Damaru, as the Director of National Fraud & Anti-Corruption Directorate and Timothy Gitua, as the Deputy Director National Fraud & Anti-Corruption Directorate (2016) SC1487

• Jurisdiction: Papua New Guinea
• Judge: Hartshorn, Makail and Sawong JJ
• Judgment Date: 24 February 2016
• Court: Supreme Court
• Citation: (2016) SC1487
• Year: 2016
• Judgement Number: SC1487

Full Title: SCA 87 of 2014; Hon. James Marape in his capacity as Minister for Finance v Hon. Peter O’Neill in his capacity as Prime Minister and Hon. Ano Pala, Attorney General & Minister for Justice and Paul Paraka trading as Paul Paraka Lawyers and Royal Constabulary of PNG and the Independent State of Papua New Guinea and Matthew Damaru, as the Director of National Fraud & Anti-Corruption Directorate and Timothy Gitua, as the Deputy Director National Fraud & Anti-Corruption Directorate (2016) SC1487

Supreme Court: Hartshorn, Makail and Sawong JJ

Judgment Delivered: 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) 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:

a) 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;

b) 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;

c) 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:

a) they are not State parties, but members of the Police Force who are joined to the proceeding also as citizens;

b) 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;

c) 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;

d) there has been an abuse of the Court’s process;

e) it is necessary that there is real opposition taken to the stance of the appellant and the other parties to this proceeding;

f) 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...