A company is a legal person but not a natural one. It cannot stand up in court, and the law decides who may speak for it. In Papua New Guinea the answer is a lawyer, and a notice of appeal signed by a director on the company’s behalf is a common ground of objection to competency.
The rule
(1) Subject to Sub-rule (2), to Rule 6(1) and to Order 5 Rule 20(2) (disability), any person may proceed in the Court by a solicitor or in person. (2) Except as provided by or under any Act, a corporation may not commence or carry on any proceedings otherwise than by a solicitor.
Order 2 Rule 1(d) of the Supreme Court Rules applies the National Court Rules on lawyers to the Supreme Court, and Rule 1(h) applies any other National Court provision where the Supreme Court Rules are silent. Order 7 Rule 9 of the Supreme Court Rules and Order 10 Rule 3 require the notice of appeal or motion to be signed “by the appellant or his lawyer”; for a company the appellant cannot sign, so the lawyer must. Order 11 Rule 4 requires an address for service that, where a party is represented, is the lawyer’s office.
Why the rule exists
A lawyer is an officer of the Court, bound by the Lawyers Act and the Professional Conduct Rules, liable for costs under Order 12 Rule 11, and answerable to the Lawyers Statutory Committee. A director is none of those things, and a company with limited liability could otherwise litigate through a nominee with nothing at stake. The Lawyers Act also makes it an offence for an unqualified person to practise as a lawyer, which includes appearing for another person for reward, and a director who appears for a company owned by others risks that provision.
Who may appear for whom
| Party | May appear through |
|---|---|
| Natural person | A lawyer, or in person |
| Company under the Companies Act 1997 | A lawyer only, unless the Court grants leave for a named director or officer to appear |
| Incorporated association, incorporated land group, business group | Treated as a corporation: a lawyer, unless leave is granted; the Court is somewhat readier to grant leave to a community body with no funds |
| The State, a statutory authority, a provincial government | The Solicitor-General, the Public Prosecutor, or in-house or engaged lawyers; O 12 r 3 allows their costs to be taxed as if private |
| Partnership or firm | A lawyer, or a partner in person for the partners |
| Company in liquidation | The liquidator, through a lawyer; proceedings by or against the company need the liquidator’s or the Court’s sanction under the Companies Act |
| Prisoner appealing a conviction | The Public Solicitor, a private lawyer, or in person; s 9 of the Act requires the appellant’s presence unless the appellant consents otherwise |
Leave for a director to appear
The words “except as provided by or under any Act” and the Court’s control of its own procedure under section 185 of the Constitution and Order 11 Rule 9 allow the Court to permit a director or officer to appear for a company in a particular case. The application is in Form 4 with an affidavit showing that the company cannot afford a lawyer, that the proposed representative is a director or the principal shareholder with authority under a board resolution, and that the appeal has merit. Leave is discretionary, is granted for the specific step or hearing rather than generally, and may be refused where the company has assets or where the representative’s conduct has been unsatisfactory. Leave to appear does not permit the director to sign the notice of appeal after the event; a notice that was incompetent when filed stays incompetent.
Companies in liquidation
In Ace Guard Dog Security Services Ltd v Lailai (2004) SC757 the Supreme Court considered the effect of liquidation on proceedings, holding that section 298 of the Companies Act applies both to proceedings against the company and to proceedings the company itself brings, so that an appeal by a company in liquidation requires the liquidator’s authority and the Court’s leave. Directors lose their powers on liquidation and cannot instruct lawyers for the company.
The objection to competency
A respondent served with a notice of appeal signed by a company’s managing director files a Form 9 objection to competency within 14 days under Order 7 Rule 15. The Court has treated the defect as going to competency, because the Rules prescribe who may sign and the 40 days will have expired. The company’s answer is to have a lawyer file an amended notice within the 40 days if any remain, or to apply for leave to review. See objections to competency, how documents are served and what an appeal costs.
Sources
- National Court Rules 1983 — O 4 r 5
- Supreme Court Rules 2012 — O 2 r 1; O 7 rr 9, 15; O 10 r 3; O 11 rr 4, 9; O 12 rr 3, 11; Forms 4, 9
- Supreme Court Act (Chapter 37) — s 9
- Companies Act 1997 — s 298
- Ace Guard Dog Security Services Ltd v Lailai (2004) SC757
- Constitution — s 185
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.