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Wahune v Barton [2016] PGNC 394; N6655 (18 April 2016)

N6655

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 489 OF 2015

NELSON WAHUNE
First Plaintiff

KAREANA ESTATES PTY LTD
Second Plaintiff

V

FAITH BARTON in her capacity as the Solicitor-General of Papua New Guinea
First Defendant

DR. KEN NANGAN in his capacity as the Secretary for Finance
Second Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Kariko, J
2016: 21^st March &18^th April

STATUTORY DUTY– breach of – instructions by Attorney-General to Solicitor-General – instructions not complied with – nature of instructions–enforcement of instructions – section 13(2), Attorney-General Act – whether cause of action disclosed

Cases cited:
The State v Zachary Gelu and Anor (2003) SC716

Legislation:
Attorney-General Act 1989

Counsel:

Mr D Kop, for the Plaintiffs
Mr H Monei, for the Defendants

JUDGEMENT

18^th April, 2016

1. KARIKO J: In these proceedings, the plaintiffs seek a number of declaratory orders, but in essence they claim that the defendants have unlawfully failed to comply with the instructions of the Attorney-General, to arrange for a replacement cheque of K2million to be issued to the plaintiffs for an outstanding payment arising from a previous court proceedings apparently settled out of court.
   

Background

2. Nelson Wahune owned Kareana Estates Pty Ltd that managed cocoa and coconut plantations and traded as a general merchant in Buka, North Solomons Province. The plaintiffs filed a claim against the State in the form of WS No. 713 of 2003 on 2^nd June 2003 seeking K5, 441, 369.00 in damages for the destruction of their businesses during the “Bougainville Crisis”.
   
3. By letter dated 3^rd July 2003, the then Attorney-General Francis Damem wrote an advice to the then Secretary for Finance Thaadeus Kambanei recommending that the plaintiffs’ claim be settled for K4million, as full and final settlement.
   
4. The recommendation was apparently accepted and acted upon by Mr Kambanei and on 24^th of May 2004, the first payment of K2million was made to the plaintiffs by Department of Finance & Treasury Cheque No. 779268. The second installment of K2 million was paid by Department of Finance & Treasury Cheque No. 767668dated 26^th August 2004(the Disputed Cheque), which was deposited into Mr Wahune’s bank account No. 43116167 maintained at Maybank (PNG) Ltd, Waigani.
   
5. However a“stop-payment” was issued against the Disputed Cheque following the issuing of a Direction by the Ombudsman Commission on 30^th August 2004 (the Direction) made pursuant to section 27(4) of the Constitution. The Disputed Cheque was obtained by the Commission as a consequence of the Direction, which had been issued in relation to investigations into the conduct of the Mr Damem and Kambanei as “leaders”.
   
6. Mr Wahune himself was later charged with criminal offences in relation to the payments, but discharged on the presentation of a nolleprosequiat his trial.
   
7. By letter dated 15^th June 2010, to the plaintiff’s legal consultant, the Ombudsman Commission confirmed that it had lifted the Direction and that the Disputed Cheque had been returned to the Secretary for Finance.
   
8. Since 2010, the plaintiffs have approached both the Department of the Attorney General and the Department of Finance to have the Disputed Cheque paid to them or a replacement cheque issued, but without success.
   
9. On 12^th of April 2012, a letter was written on behalf of the plaintiffs by Thomas BK Mane Legal Consultants to the then Minister for Justice and the Attorney General, Hon. Allan Marat, for the Attorney General to approve the re-issue of a cheque by the Department of Finance to settle the outstanding K2million payable to the plaintiffs. On 18^th May 2010, the Attorney General noted on the letter “SolGen, Facilitate re-issue of Cheque for K2million.”
   
10. Despite Dr Marat’s instruction, the cheque of K2million has not been re-issued to the plaintiffs.
    

Evidence

11. The Plaintiffs tendered two affidavits in support of their case:
    
    • (1) Affidavit of Nelson Wahune sworn on 3^rd and filed on 6^th of August 2015; and
    • (2) Affidavit of Jimmy Yani sworn on 28^th and filed on 30^th October 2015.
      
12. In his affidavit Mr Wahune confirms the facts highlighted earlier as background facts.
    
13. Mr Yani’s affidavit mainly refers to a letter dated 10^th July 2010 written by the then Secretary for Justice, Dr Lawrence Kalinoe, to the plaintiffs’ legal consultant advising that the State considered the claims and the payments (including the endorsements of Messrs Damem and Kambanei) to be fraudulent. The affidavit also confirms that the process of payment of the plaintiffs’ claim was subject of the Commission of Inquiry into the Department of Finance in 2009 (although Mr Wahune states that he was never required to appear before that Commission).
    
14. While Dr Kalinoe indicated in the letter that the State had commenced recovery action against the plaintiffs for monies already paid out, Mr Yani deposes that a search he conducted at the National Court Registry on 22^nd October 2015 disclosed otherwise.
    
15. The plaintiffs’ evidence was not challenged and indeed the State did not file any affidavit evidence as directed by the Court.
    

The claim

16. The Originating Summons claims a number of relief, that in effect seek to have the Court order the State to issue a fresh cheque to replace the Disputed Cheque on the basis of former Attorney-General Dr Marat’s handwritten note of 18^th May 2012 addressed to the Solicitor-General.
    

Cause of action

17. In deciding whether or not to grant the relief sought, I first ask the question: What is the cause of action? Is it a breach of contract or agreement or is it a breach of a statutory duty?

Breach of contract

18. The plaintiffs have not claimed a breach of contract or agreement.
    
19. While they suggest that there was an agreement whereby the K4million was to be paid as full and final settlement of their claim in proceedings WS No. 713 of 2003, there is no documentary evidence confirming the agreement, not even copies of any correspondence between the Attorney-General and the plaintiffs in relation to the offer and acceptance of the terms of settlement. There is no evidence either that any Deed of Release, that usually follows an agreement to compromise a court action, was ever executed. Neither is there any evidence of a Court order that settled the plaintiffs’ claims.
    

Breach of statutory duty

20. I gather from the relief pleaded, the evidence and the plaintiffs’ submissions that they are alleging that the Solicitor-General has breached a statutory duty. The thrust of the plaintiffs’ argument is that the Solicitor-General’s failure to facilitate or arrange for a replacement cheque to be processed by the Department of Finance is unreasonable and unlawful, and that is because Attorney-General Dr Marat instructed the Solicitor-General to facilitate a replacement cheque, and by virtue of Section 13 of the Attorney-General Act 1989 and in particular Section 13(2), the Solicitor-General is obliged to act on those instructions.
    
21. Section 13 states:
    
    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 shallaccept instructions only from the Attorney-General.
          
22. In the case of The State v Zachary Gelu and Anor (2003) SC716, the Supreme Court settled the law regarding the roles and functions of the Solicitor General and the Attorney, whereby the Court observed:
    

“This provision indicates the nature and the scope of the functions of SG. Its main function is to “appear as an advocate for the State in matters before the courts.”This is a specific and limited function. In exercising this function, SG shall accept instructions from the AG (s 13 (2)).

In practice, where the State is a party in any litigation before the courts, the SG (Solicitor General) may act as an advocate if instructed to do so by the AG (Attorney General) in accordance with s.13(2) of the Attorney-General Act. Where the SG is instructed, he must act in accordance with the instructions of the AG, such as to settle or not to settle a matter.” (My underlining)

23. The Solicitor-General’s function is “specific and limited” and that is to act as the advocate for the State in court proceedings. The obligation to act on the Attorney-General’s instructions pursuant to Section 13(2) is not a duty owed by the Solicitor-General to the plaintiffs or other claimants against the State, but rather a duty to act for the State through the Attorney-General in court proceedings.
    
24. The present dispute however does not immediately arise from any current court action. The Solicitor-General was not instructed by Dr Marat to make payment in relation to a pending litigation. The question in the present case is whether or not a replacement cheque should be issued for a purported compromised court action that was finalized some 12-13 years ago.It is also appropriate to note that Dr Marat’s appointment as the Attorney-General ended in 2012.
    
25. If the Solicitor-General acts contrary to the Attorney-General’s instructions, then the actions of the Solicitor-General may be struck down as invalid as was the case in The State v Zachary Gelu and Anor (supra), where the Solicitor-General settled a case without the prior approval of the Attorney-General. Otherwise, I view that where the Solicitor-General does not comply with the Attorney-General’s instructions for purposes other than litigation, then on-compliance would simply be an internal administrative matter for the Attorney-General to determine.
    
26. That being the case, it is my opinion that this Court cannot apply section 13(2) of the Attorney-General Act 1989 to order the Solicitor-General to cause the Secretary for Finance to re-issue a cheque to replace the Disputed Cheque, which is the principal relief sought by the plaintiffs in these proceedings.
    

Conclusion

27. I find that no reasonable cause of action is disclosed by these proceedings and that the plaintiffs’ claim is frivolous as untenable. Accordingly, I order that:
    
    • (1) These proceedings are dismissed.
      
    • (2) The plaintiffs shall pay the defendants’ costs, to be taxed if not agreed.
      

________________________________________________________________
Daniel Kop Lawyers : Lawyer for the Plaintiffs
Solicitor-General : Lawyer for the Defendants