Peter Aigilo v Sir Mekere Morauta Prime Minister and Minister for Treasury Chairman of National Executive Council, The Independent State of Papua New Guinea and John Wakon (No 1) (2001) N2103

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2001) N2103
• Date: 03 August 2001
• Year: 2001

Full Title: Peter Aigilo v Sir Mekere Morauta Prime Minister and Minister for Treasury Chairman of National Executive Council, The Independent State of Papua New Guinea and John Wakon (No 1) (2001) N2103

National Court: Kandakasi J

Judgment Delivered: 3 August 2001

1 STATE SERVICES—Attorney–General—Powers and functions of—Direction and Control of the Solicitor–General by—Constitution s156(1)—Attorney–Generals Act 1989 s7, s8 and s13.

2 WORDS AND PHRASES—"Primary"—Principle or first responsibility—Attorney–General Act 1989 s13(1).

3 WORDS AND PHRASES—"Instructions"—Ordering or directing only in respect of the Attorney–Generals powers and functions and in cases where the Solicitor–General is not able to act—Attorney–General Act 1989 s13(2).

3 WORDS AND PHRASES—"Instruct"—Brief out to other lawyers only where Solicitor–General is unable to act—Attorney–General Act 1989 s7(i).

4 SCR No 1 of 1982; Re Phillip Bouraga (1982] PNGLR 178, Inakambi Singorom v John Kalaut (1985] PNGLR 238, PLAR No 1 of 1980 (1980] PNGLR 326, Norah Mairi v Alkan Tololo (No 2) (1976] PNGLR 125, Constitutional Reference No 1 of 1978; Re Ombudsman Commission Investigations of the Public Solicitor (1978] PNGLR 345, Re Alleged Misconduct in Office by Honourable Peter Ipu Peipul: Peipul v Sheehan (2001) N2096, Public Prosecutor v Don Hale (1998) SC564 and SCR No 2 of 1984; Re New Ireland Provincial Constitution (1984] PNGLR 81 referred to

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Kandakasi J: The plaintiff is suing the Defendants for damages for breach of his contract of employment with the State. Before the matter was listed for hearing, the Solicitor–General informed the Court that, he was prepared to have the matter settled out of Court as he was of the view that, there was no basis to contest the claim. However, Paul Paraka Lawyers (Paraka) who were engaged by the Attorney–General (the AG) took a different approach. They denied the claim and indicated that, they were prepared to go to trial. This gave rise to the preliminary issue of appropriate legal representation of the State, in this action.

I invited all counsel to address me on that issue. They have ably assisted the Court with their written extracts of arguments and submissions to them on 13 June 2001. I then reserved a ruling on the issue to consider the arguments carefully, as this is the first time the issue has arisen, as far as I am aware.

The brief facts giving rise to the issue are these. On 2 August 1999, the plaintiff took out these proceedings, initially instituted for judicial review against the State following his termination as Commissioner and Secretary for the Department of Police. Following service of the proceedings on the Defendants, the case for the Defendants was handled by the Solicitor–General's office. Later, the Attorney–General briefed the matter out to Paraka on 28 November 2000 pursuant to s7(i) of the Attorney–General Act 1989. There was no brief or recommendation from the Solicitor–General for that to happen. Paraka continued representation for the State until Mr John Kawi, the incumbent Solicitor–General assumed office on 16 March 2001, upon his return from his post–graduate studies overseas. After resuming office, Mr Kawi had the brief–out reviewed and formed the opinion that rather than continuing with the brief out and incur further costs unnecessarily, the case warranted a settlement. That was consistent with earlier directions and or attempts at settlement with my brother Justice Sheehan.

Based on his opinion, Mr Kawi advised the Department of Personnel Management (DPM) to have the case settled by paying out the balance of Mr Aigilo's contract. That advice was rejected by the DPM, which wanted the matter, defended. Consistent with that stand, Paraka say they have been instructed by the DPM through the Attorney–General to defend the case and Mr Kawi was directed to withdraw from the case.

The main issues for me to determine are these,

(a) To what extent can the Attorney–General direct and control the Solicitor–General in the performance of his statutory functions and duties prescribed by s13(1) of the Attorney–General Act 1989?

(b) Does the Attorney–General have any independent or overriding power over the performance of the powers, duties and or responsibilities of the Solicitor–General?

S156(1) of the Constitution provides for the Law Officers of Papua New Guinea. They are (a) the principal legal adviser to the National Executive (Principal Legal Adviser), (b) the Public Prosecutor, and (c) the Public Solicitor. Subsection (2) then provides that an Act of Parliament shall make provision for and in respect of the Principal Legal Adviser. Previously that Act was the Principal Legal Adviser Act (Ch54). That Act was repealed and replaced by the Attorney–General Act 1989: See s3 of the Attorney–General Act 1989.

The Office of the Attorney–General is one of two offices created under the Attorney–General Act 1989. He is the Principal Legal Adviser to the National Executive Council (PLA to the NEC): See s156(1)(a) of the Constitution and s3 of the Attorney–General Act 1989. The Attorney–General can either be a politician or a civil servant. The former can be appointed under s4. If the Minister for Justice is a fully admitted lawyer under the Lawyers Act 1986, then he becomes the Attorney–General and the PLA to the NEC. If however, the Minister for Justice is not an admitted lawyer, then under s5, the Secretary for the Department of Justice becomes the Attorney–General and the PLA to the NEC. The Attorney–General is a member of the NEC and is entitled to vote at the NEC unless the Attorney–General is a civilian and he attends only to advice the NEC on legal issues: see s6 of the Attorney–General Act 1989.

S7 and s8 of the Attorney–General Act 1989 provide for the powers and functions of the Attorney–General. These provisions read 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 s8, 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 s10, to appoint a lawyer to be the Solicitor–General; and

(f) in accordance with s13, 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 s15, to grant a certificate that a barrister or solicitor practising outside the country is authorised to appear before the National and Supreme Courts; and

(h) in accordance with s16, to grant a certificate to Investment Promotion Authority 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...