The Independent State of Papua New Guinea v Zachary Gelu, The Solicitor–General and Monoburn Earthmoving Ltd (2002) N2322

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 13 December 2002
• Court: National Court
• Citation: (2002) N2322
• Year: 2002
• Judgement Number: N2322

Full Title: The Independent State of Papua New Guinea v Zachary Gelu, The Solicitor–General and Monoburn Earthmoving Ltd (2002) N2322

National Court: Kandakasi J

Judgment Delivered: 13 December 2002

1 STATE SERVICES—Attorney–General—Powers and functions of—Power to sue in the name of the State—Whether the Attorney–General can sue to the exclusion of the Solicitor–General—The Solicitor–General is the principal litigation lawyer for the State—The principle of separation of powers requires the Attorney–General to exercise his power to sue in the name of the State through the Solicitor–General—Whether the Attorney–General can sue the Solicitor–General?—Both being part of the State and given that the State cannot sue itself the Attorney–General cannot sue the Solicitor–General—Attorney–General Act 1989, s7, s8 and s13 and Claims By and Against the State Act 1996, s4.

2 PARTIES—PRACTICE AND PROCEDURE—Attorney–General suing the Solicitor–General in the name of the State—Both as servants of the State and therefore part of the one and the same body—Hence the Attorney–General cannot sue the Solicitor–General—For a proper administration and functioning of the office of the Solicitor–General without fear or favour it should not be open to Court action at the instance of the Attorney–General or the executive government—The occupant of the office of the Solicitor–General can only be sued in a clear case of personal impropriety or serious misconduct in office after exhausting all administrative remedies available to the Attorney–General or the State.

3 JUDGEMENTS—National Court judgments—Departure from earlier judgments—Although a National Court judge is not bound by its own or other National Court judgments, good reason must exist to depart from it—Failure to appeal against earlier judgment by a party arguing for a departure from it in a subsequent is a factor against a departure—Whether the existence of a relevant provision not considered in earlier judgment is in itself a good reason to depart from an earlier judgment?—There can be a departure from an earlier judgment only where it has clearly misconceived, misinterpreted and or misstated the law—A party arguing for a departure from an earlier precedent has the onus to establish the need for such a departure.

4 PNG Forest Products Pty Ltd v The Independent State of Papua New Guinea [1992] PNGLR 85, Peter Aigilo v The Independent State of Papua New Guinea (2001) N2102, Paula Las Vurr v Teddy Vurr [1997] PNGLR 630, Nombri Waime Ambre v The Independent State of Papua New Guinea [1995] PNGLR 453, Jebsen Line v Peter Heenan [1986] PNGLR 61, Peter Kop Kiniwi v Vincent Auali and The Independent State of Papua New Guinea (1998) N1722, PNGBC v Jeff Tole (2002) SC694, United States of America v WR Carpenters (Properties) Ltd [1992] PNGLR 185, Nou Igo v Secretary, Department of Provincial Affairs and Local-level Government [1995] PNGLR 285, Donigi v PNGBC (2002) SC691, Akipa v Lowa [1990] PNGLR 502, SCR No 1 of 1982; Re Phillip Bouraga [1982] PNGLR 178, Acting Public Prosecutor v Konis Haha [1981] PNGLR 205, Cannon Ltd v Singer [1974] 2 All ER 577, Public Officers Superannuation Fund Board v Sailas Imanakuan (2001) SC677, MVIT v Salem [1991] PNGLR 305 Dunne v Elibank–Murray and Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 referred to

___________________________

N2322

PAPUA NEW GUINEA

[In the National Court Justice]

WS. 1343 OF 2002

BETWEEN:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Plaintiff

AND:

ZACHARY GELU, THE SOLICITOR GENERAL

First Defendant

AND:

MONOBURN EARTHMOVING LTD

Second Defendant

WAIGANI: KANDAKASI, J.

2002: 19th November

12th December

STATE SERVICES – Attorney General – Powers and functions of – Power to sue in the name of the State – Whether the Attorney General can sue to the exclusion of the Solicitor General? – The Solicitor General is the principal litigation lawyer for the State – The principle of separation of powers requires the Attorney General to exercise his power to sue in the name of the State through the Solicitor General – Whether the Attorney General can sue the Solicitor General? – Both being part of the State and given that the State cannot sue itself the Attorney General cannot sue the Solicitor General – ss.7,8 and 13 Attorney General and s. of the Claim By and Against the State Act.

PARTIES – PRACTICE & PROCEDURE – Attorney General suing the Solicitor General in the name of the State – Both as servants of the State and therefore part of the one and the same body – Hence the Attorney General cannot sue the Solicitor General – For a proper administration and functioning of the office of the Solicitor General without fear or favour it should not be open to Court action at the instance of the Attorney General or the executive government – The occupant of the office of the Solicitor General can only be sued in a clear case of personal impropriety or serious misconduct in office after exhausting all administrative remedies available to the Attorney General or the State.

JUDGEMENTS – National Court judgements - Departure from earlier judgements – Although a National Court judge is not bound by its own or other National Court judgements, good reason must exist to depart from it – Failure to appeal against earlier judgement by a party arguing for a departure from it in a subsequent is a factor against a departure – Whether the existence of a relevant provision not considered in earlier judgement is in itself a good reason to depart from an earlier judgment? – There can be a departure from an earlier judgement only where it has clearly misconceived, misinterpreted and or misstated the law – A party arguing for a departure from an earlier precedent has the onus to establish the need for such a departure.

Papua New Guinea Cases Cited:

PNG Forest Products Pty Ltd & Anor vs. The State & Anor [1995] PNGLR 85.

Peter Aigilo vs. Sir Mekere & Ors (No.1) (Unreported judgement delivered 15/06/01) N2102.

Paula Las Vurr vs. Teddy Vurr (Unreported Judgement delivered on 06/09/96) N1480.

Nombri Waime Ambre vs. The State [1995] PNGLR 453.

Kristian Jobsens Rederi vs. Steamship Trading Co. Ltd [1986] PNGLR 61.

Peter Kop Kiniwi vs. Vincent Auali & The State (Unreported Judgement delivered 09/06/98) N1722.

Banking Corporation vs. Jeff Tole (Unreported Judgement delivered on 27/09/02) SC694.

United States of American vs. W.R. Carpenters (Properties) Ltd [1992] PNGLR 185.

Nou Igo & Anors vs. The Secretary, Government Department of Local-Level Government & Anors [1995] PNGLR 285.

Papua New Guinea Banking Corporation vs. Peter Donigi & Ors (unreported judgement delivered on 02/11/01) SC691.

Akipa & Ors vs. Lowa & Ors [1990] PNGLR 502.

Hornibrook Constructions Pty Ltd vs. Kawas Express Corporations Pty Ltd [1986] PNGLR 301.

Supreme Court Reference No. 1 of 1982: re. Philip Bouraga [1982] PNGLR 178.

Acting Public Prosecutor vs. Konis Haha [1981] PNGLR 205.

Overseas Cases Cited:

Cannon Ltd vs. Singer [1974] 2 All ER. 577.

Dunne vs. Elibank-Murray.

Brinsom vs. Rocela Concrete Pipes Ltd [1982] 2 NSWLR 937.

Counsel:

Mr. M. Pokia and Mr. V. Mirupasi for the First Applicant/Second Defendant

Mr. A. Baniyamai for the Second Applicant/First Defendant

Mr. K. Kua for the Respondent/Plaintiff

13th December 2002

KANDAKASI, J: By notice of motion filed on 1st November 2002 by the second defendant (MEL), both Mr. Zachary Gelu, the Solicitor General, who is the first defendant in these proceedings (Mr. Gelu) and MEL are seeking to dismiss these proceedings. The main argument for that is a lack of capacity in the Attorney General who is bringing these proceedings against them in the name of the State. They rely on O.12 r.1 of the National Court Rules (NCRs), s.155 (4) and s.166 (1) of the Constitution and PNG Forest Products Pty Ltd & Anor vs. The State & Anor [1995] PNGLR 85. This follows my earlier upholding an argument for the Attorney General that an application for summary dismissal under O.12 r.40 (1) (c) of the NCRs is not available where fraud is involved. A reliance on O.8 r.27 (1) (c) of the NCRs by the applicants was abandoned.

Arguments

Arguing for the Attorney General, Mr. Kua maintains that there is no jurisdiction in this Court to entertain this application despite the authorities relied upon.

This application has been prompted by the fact that the proceedings are in fact by the Attorney General in the name of the State. The action concerns Mr. Gelu’s official conduct as Solicitor General...