Yei v Pryke and Bray Lawyers [2004] PGDC 71; DC482 (21 December 2004)

DC482

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 95 OF 2003

Wadau Yei
Complainant

V

Pryke & Bray Lawyers
Defendant

Mt. Hagen: M.M. Pupaka
2004: 9th December

Counsel
The Complainant in person
Ms. R Kalepo for the Defendants

21st December 2004

M.M. PUPAKA: The complainant was granted leave to tender into evidence his various affidavits for consideration ex parte after the defendants failed to appear in court on 9th December 2004. However Ms. Kalepo of council for the defendants enquired later that day though, after the complainant had left, and consequently she was given permission to file submissions if she wished for the Court’s consideration.

The background facts

The facts based on the complainant’s evidence appears to be that the complainant was a beneficiary of invested money, which was invested through the National Court Registrar, with the Finance Department. It would have been the usual infant settlement investments. The total money invested for this complainant must have been K400.00.

In April 2000 the complainant must have reached majority age, as the Finance Department seems to have raised a cheque for most of the invested money (K369.13). A Bank of Papua New Guinea cheque – cheque No. 615072 – was raised on 6th April 2000. Other similar cheques also seem to have been received by the Registrar from the Finance Department. The total number of cheques for beneficiaries represented by Messrs Pryke & Co. Lawyers, then available with the National Court Registrar, was 13. Consequently the 13 cheques were sent, under cover of a letter dated 17th April 2000, to Messrs Pryke & Co. Lawyers of P. O. Box 77, Goroka, EHP. At the time when the 13 cheques were sent to Messrs Pryke & Co. Lawyers there was no doubt in the mind of the Registrar that Messrs Pryke & Co. Lawyers were the lawyers for all 13 beneficiaries, as it is evident from the Mr. Raka’s cover letter dated 17th April 2000. The letter clearly indicates that the cheques were being sent in an agreed way. The way and manner had been, before hand, discussed and confirmed between Registrar Raka on the one hand, and two persons identified as Gideon and Ila of Messrs Pryke & Co. Lawyers on the other. Names of the beneficiaries of the 13 cheques and details of the various amounts seem to have been confirmed between the Registrar and Pryke & Co. Lawyers on 14th April 2000 at 11.00AM via a telephone conversation.

There is no doubt that Registrar Raka’s letter dated 17th April 2000, apparently containing the 13 cheques, was sent to Pryke & Co. Lawyers. There is no definitive evidence from the defendants as to whether Pryke & Co. Lawyers did or did not received Registrar Raka’s letter and the cheques. If the letter was received, unless evidence is presented to show the contrary, it can only mean all 13 cheques were received as well.

The Complainant’s Case

On the bases of the accepted facts the complainant sued the defendant whom, I presume, the former reckoned was the successor entity to Pryke & Co. Lawyers.

First of all I cannot help but mention at the outset that the complainant has made the obvious error of not suing the former partners in their individual capacity as having formally traded as Pryke & Co. Lawyers. The obvious name change from Pryke & Co. Lawyers to Pryke & Bray should have worried the complainant to say the least. Secondly the complainant has not taken up on the advise to either amend the name and identity of the defendant or file affidavit evidence disclosed by any due search, especially confirming the legal status of the defendant to be sued in the way it has been. Mr. Wek Noki was thoroughly advised on the possibility of and the need to either amend proceedings or substitute defendant entities on 10th June 2004 by this very Court. In fact one motion upon notice for summary dismissal of the complaint by the defendant has since been dismissed, inter alia, upon the bases and with direction that the complainant amend the proceedings. The complainant has failed to take appropriate action. Therefore the complainant and Wek Noki cannot blame anyone other than themselves if their failure affects the outcome of these proceedings.

There is one other aspect I should make reference to, a quite obvious fact, which seems to have been taken for granted by all concerned. Wadau Yei, the named complainant herein, had attained majority before this case was instituted. The reason why the invested money would have been released in the first place is as a result of attainment of majority age by the beneficiary anyway. He no longer is an infant. Therefore this proceeding was irregularly issued in the current manner, i.e. as an infant by his next friend. Since the inception of the case Mr. Wek Noki identified himself variously as next friend or the complainant. The real beneficiary neither appeared in court nor filed any affidavit. Whether Wadau Yei still exists must, for the time being, remain a mystery. Further there is no instrument of Consent to Act on file so it is not possible to determine Mr. Noki’s legitimate interests herein. No issue has been raised in relation to this but given the other circumstances I would be extremely reluctant to sanction the active role played by Mr. Wek Noki and permit the matter to precede forth in the current manner.

Defence stance

There is a copy letter dated 8th June 2001, under hand of Pryke & Bray Lawyers, quite curiously addressed to them, especially to the attention of Mr. Tony Pryke, which is annexed to the affidavit of Mr. John Bray sworn on 5th October 2004. This indicates to me that there had been queries raised over this particular cheque later, not by Pryke & Co. Lawyers but by Pryke & Bray Lawyers. The complainant was not, according to Pryke & Bray Lawyers, their client and they have no records of receiving the cheque. However they produce no evidence as to why two known employees of Pryke & Co Lawyers convinced the National Court Registrar, Mr. Raka, to send the complainant’s cheque to them, and why Pryke & Co. Lawyers did not raise queries in 2000.

The defendants’ formal defence of course is their assertion that the defendant – Pryke & Bray Lawyers – is not liable for debts and liabilities of the previously disbanded entity, Pryke & Co. Lawyers. The current firm, it is said, has different partners who are not in any way obligated to assume the liabilities of the previous firm. Quite conspicuous in their non-admission is the matter of who were the partners of Pryke & Co. Lawyers and whether any of them are a part of the current firm.

Findings on the evidence

First of all, on the issue of whether Pryke & Co. Lawyers did received the complainant’s cheque I finding the following to be the case.

That curious letter (dated 8th June 2001) from the defendant to itself – and its contents notwithstanding – the information on whether the Registrar’s letter and all 13 cheques were received or not is peculiarly within the knowledge of the defendants (Pryke & Bray Lawyers), especially in the knowledge of apparent partner Tony Pryke. Their silence on this aspect is only mystifying. There is no evidence from the defendants as to whether Pryke & Co. Lawyers did or did not receive any of the other 12 cheques. If they received only some of them, at least Tony Pryke who now seems to be part of the defendants should say so. Did Pryke & Co. ever tried to find out or query with the National Court Registrar why they did not receive the complainant’s cheque, i.e. indeed if ever that was so? Meanwhile it is clear the complainant never got his cheque from Pryke & Co. Lawyers though the cheque seems to have been sent there.

Therefore, in the absence of evidence to the contrary, the Court should accept that Pryke & Co. Lawyers received Registrar Raka’s letter, and by implication, all 13 enclosed cheques, including the complainant’s cheque. It is immediately not clear what the defendants are saying now. Are they saying Pryke & Co. Lawyers did not receive the complainant’s cheque because it was never sent? I think it is sufficiently within the knowledge of the defendants to clarify this issue too. I also think they are well positioned to confirm if their current practice or their predecessor entity was the complainant’s lawyer or not. Was the Registrar mistaken about the apparent arrangements he seems to have made with two apparent employees of Pryke & Co. Lawyers and erroneously send the 13 cheques to the latter? Again their silence on these vital matters has not helped anyone, least of all themselves.

The defendants raised the defence that they are a different practice now. Their defence is that the current defendant is a different legal entity and cannot be sued, and even then they as a firm did not exist in April 2000. They further say they never assumed the previous entity’s liabilities. In light of this legal barrier raised by the defendants, especially when they seem to be the successor entity of the former Pryke & Co. Lawyers, the Court directed them to file details of succession or take-over or sale or the purchase of Pryke & Co. Lawyers. That was on 30th September 2004. Though they are not obliged to, the defendants have not been more forthcoming with information considering the evidence of complicity by Pryke & Co. Lawyers.

Given the peculiar circumstances of this case, I consider it extremely unfortunate the complainant is not represented by council. Had he been, and especially had the directions for amendment been complied with, there would have been a more favourable outcome for the complainant. This defendant is on safe legal turf and it knows it, such that it has conceded nothing. The money is only small and the defendant must have incurred much more than that and whilst I cannot say it was not its fault, I somehow find it had to lay it out on the complainant either.

In the end this has only been an ex parte consideration of the complainant’s case as it was up to that stage in time. The defendant’s submission is simply submission only as a result of a gesture of fairness by the Court, though I have considered affidavit evidence filed by them without their formal tender, in the interests of fairness. Consequently I shall, with a foremost view to do justice, grant orders by way of directives to the complainant to amend the proceedings in order to rectify all the defects identified herein. Ergo I make the following orders:

1. The complainant is granted leave, at the discretion of the Court, to amend the proceeding firstly to reflect the mature status of the complainant, including if need be, appropriate instruments of Consent to Act; and

2. Secondly amend the proceedings to both name and identify the persons or entity liable to be sued.

3. Costs are, for the time being, costs in the cause.

4. The complainant shall have until close of business on the last working day of January 2005 to comply with the preceding directions, failing which this entire proceeding – Complaint No. 95 of 2003 – shall stand dismissed.

Mr. Wek Noki: Complainant
Kunai & Co. Lawyers: Defendant