Manu v Manu [2004] PGDC 31; DC252 (25 February 2004)

DC252

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 29 OF 2005

BETWEEN

Nancy Manu
Complainant

V

Edward Manu
Defendant

Date: 25th February 2004
Before: Mr. M. Gauli

COUNSEL
Mr. Edward Waifaf for the Complainant
Mr. Cooper for the Defendant

DECISION

The Court having dismissed the Complainant on 23rd January 2004 has adjourned the matter for submission by the parties on costs. The court now makes the decision on costs after submissions have been received from both councils.

The council for the Complainant submitted that the parties bear their own costs for the reasons that:

1. The Complainant is unemployed and she could not be able to have the financial means to meet the cost of both parties

2. There had been a lot of transition of firms during the duration of this matter. The case was also prolonged from quick disposal because of there had a lot of interlocutory applications instituted by the Defendant

3. The file was first initiated by the T.M. Rei Lawyers acting for the complainant through Mr. John Goava then file transferred to the Warner Shand Lawyer when Mr. J. Goava transferred to Warner Shand.

The Council for the Defendant submitted that the cost be ordered on a solicitor/client basis against the Complainant’s Lawyers for the reasons that:

1. The Defendant on 08th October 2002 wrote to the Complainants Lawyers Notice of if the Complainants proceeding was not withdrawn, since it has no basis the Defendant would seek costs on a solicitor/client basis in the event the proceedings were dismissed in the Defendants favour. The Complainant’s Lawyers gave no consideration of the Defendants notice ad proceeded with the matter.

2. Again on 01st April 2003 the Defendant gave the second notice to the Complainant’s Lawyers to withdraw the proceedings and further gave notice that if the proceedings continue to trial and the matter is dismissed then cost will be sought on client/solicitor basis. The Complainant’s Lawyer failed to thoroughly advice the complainant.

I must accept the submission by the Defendant’s lawyer that where the Complainant’s lawyers have been put on notice to withdraw or discontinue the matter for reasons that there is no basis, continue the proceedings and that wanting fell on deaf ears and the matter proceed to trial only to be dismissed at the end of the trial. The complainant and his/her lawyer must pay for the costs for the Defendant.

The proceeding in this matter was for the Defendant to pay any maintenance. Before this proceeding was initiated the Defendant was in fact paying K150.00 for maintenance each fortnight. The Complainant laid before the court was that the Complainant and her client were left without means of support. The Complainant did not state that they were left without means of support, meaning that the Defendant left them without support at all. The Defendant did not only leave them with K150.00 fortnightly maintenance, but he was also paying for the children’s medical expenses and he even bought a vehicle to transport the children to and from school. The Defendant was therefore providing support in fact that support was more than sufficient.

Secondly the Complainant against the Defendant was brought under section 2 of the Deserted Wives and Children Act. It is a legal requirement under that provision that the Complainant must be made on oath. This legal requirement was breached by the Complainant.

Had the Lawyers for the Complainant properly advised her of those matters that she is likely to loose the case if the matter proceed to trial therefore the notices by the Defense Lawyers to withdraw the matter be complied with the case should not have come this far. Everybody’s time and money would have been avoided. This action was filed at Port Moresby’s Family Court on 21st November 2001 and the case was dismissed by the Port Moresby District Court on 23rd January 2004, some two (2) years later.

The lawyers must always maintain proper professional legal advice to the client, they are representing or are likely to represent. Inform their clients the chances of winning or losing the case in court, instead of giving false hopes to their clients. I am satisfied that the Complainant’s lawyers were given the notice, not once but twice, to withdraw the proceedings because there was not legal basis for it. They have failed to comply with those notices instead they continued and took the proceedings to trial only to be dismissed.

On the basis I would award costs on solicitor/client basis as submitted by the Defense lawyer. However I must also consider the submissions by the Complainant’s lawyer. He submitted that the Complainant is unemployed therefore she would not have the financial means to pay costs. There is no evidence that the Complainant is unemployed. This could not be satisfied that she is unemployed.

I also take note that the file had changed from law firm o another. But I also note that this file, when it was transferred to the Warner Shand Lawyers, the file followed the lawyer who initially was representing the complainant. So the present law firm who had the carriage of the complainant’s case is well aware of the two notices from the Defendant to have the proceedings withdrawn.

Even where the file does not follow the lawyer representing the complainant, but the file was however transferred to another law firm at the wisdom of the Complainant, the next law firm having the carriage of the matter need to thorough screen through the file and properly advise the client of what had already transpired and consider whether it is appropriate to continue the proceedings of otherwise. So for the reason that the file had changed hands between two different law firms is not a satisfactory reason not to award costs on solicitor/client basis.

The lawyers professional negligence are always likely to create massive costs against their own clients who are ordinary laymen. Therefore even in a situation where a lawyer or a law firm only happens to represent the client just when the matter is proceeding to trial has already proceeded to trial and the decision is made against his client for cost that would not be a reason for the costs not be born on solicitor/ client basis.

For the foregoing reasons stated above this court must award costs for the Defendant. That the costs be based on Solicitor/client basis with the solicitor to pay 70% of the costs. The solicitor must pay the bigger portion of the costs for its failure in properly advising his client when the notice was given by the Defendant’s Lawyers to have the matter withdrawn.

Orders as above