N1675

PAPUA NEW GUINEA
[In the National Court of Justice]

WS 364 of 1995

Between:

PNG NATIONAL STEVEDORES PTY LTD
Plaintiff

And:

THE HONOURABLE ANDREW BAING
First Defendant

And:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Kirriwom, J
10 February 1998

RULING

Adjournment – Application by plaintiff for adjournment – Plaintiff's lawyer contemplating settlement out of court in discussions with Defendant's lawyer on record – Defendant changes lawyers on the eve of the hearing and wants trial – Plaintiff's unable to proceed with the trial in view of discussions with former lawyers of possible settlement and committed himself to appear in another case outside town – Inconvenience caused – Unfairness

Practice and Practice – Undesirability of Defendant switching counsel on the day of hearing – Plaintiff unduly prejudiced in the conduct of its case in the light of discussions between its lawyers and the Defendant's former lawyers – Injustice to plaintiff – Adjournment allowed – Costs awarded against Defendant

Counsel:
Mr G Sheppard for 1st Plaintiff
Mr William Neil for 2nd Plaintiff
Mr Robert O'Regan QC & Mr Brian White for the 1st, 2nd & 3rd Defendants 

10 February 1998

Kirriwom, J. This trial was set down for hearing this morning. At the preliminary stage of the trial when counsel announced their appearance, it was found that there was some confusion or uncertainty as to who exactly was acting for the Second Defendant, the Papua New Guinea Harbours Board. Mr Robert O'Regan QC announced that he was appearing for the Second Defendant, as well as the First and the Third Defendants with Mr Brian White of Brian White and Associate Lawyers. Similar announcement was also made by David Lightfoot of Carter Newell lawyers as lawyer on record, appearing for the Second Defendant, and he produced a letter dated 7th February, 1998 from the PNG Harbours Board signed by the acting General Manager, instructing his firm to act for the Second Defendant. Until this letter of 7th February 1998 referred to herein and the subsequent filing the Notice of Change of Lawyers by Carter Newell lawyers on the 9th February, 1998, Brian White and Associates were the lawyers on record for the Second Defendant. As it was obvious that the parties were aware of this confused state of affairs before the trial, it was simply inexcusable for it to have not been resolved before the day fixed for the trial, particularly by the Second Defendant by making a firm decision on which lawyer it wished to retain for trial.

It was a gross wastage of time for the Court with its busy program to be bogged down with trivialities of this nature on the first day of the hearing when the matter is already set to proceed.

A short adjournment was thus granted on the request of both Mr O'Regan and Mr Lightfoot to try and resolve the uncertainty as to who should be the lawyer for the Second Defendant. The problem seemed rectified when Mr. Erastius Kamburi, appearing with Mr O'Regan in place of Mr Brian White, explained that as the Acting Corporate Lawyer of PNG Harbour's Board, he had the power to countermand or over-ride the decision of Mr Gregory Emilio, Acting General Manager of PNG Harbours who authorised Carter Newell lawyers to act for the 2nd defendant. To confirm this position, a letter from the PNG Harbours dated 10th February, 1998 addressed to Carter Newell Lawyers signed by Mr Erastus Kamburi as the acting Corporate Lawyer was produced to me. The letter, it seemed, was copied to the acting General Manager, Mr. Gregory Emilio and to Mr Galewa Kwarara, Chairman of PNG Harbours Board. Both letters are reproduced hereunder in their chronological sequence of events as transpired;

Our Re: L12/S12-GM –89-98

07 February, 1998

Carter Newell Lawyers
PO Box 904
Port Moresby 121
National Capital District

Dear Sir

RE: CLAIM BY PNG NATIONAL STEVEDORES PTY LTD ATS PNG HARBOURS BOARD

This is to confirm our advice to you that we have terminated the instructions of Brian White & Associates in this matter and that you are instructed to act for us in his stead.

Please file a Notice of Change of Lawyers immediately, collect the files from Mr White of Brian White & Associates, and negotiate an adjournment of the trial of this matter with Maladina Lawyers, the lawyers for the Plaintiffs.

We have formed the view that a favourable out of court settlement can be negotiated with Maladinas.

Please peruse (or pursue?) these negotiations as soon as possible.

We look forward to your advise in due course.

Yours faithfully

Signed
Gregory Emilio
Acting General Manager
Cc: Mr Gregory Emilio – Acting General Manager
Mr Galeva Kwarara - Chairman 

With this problem settled and the matter was to proceed, Mr Sheppaard for the Plaintiff applied for an adjournment. He relied on an affidavit sworn and filed this morning, ie. 10 February, 1998 basically arguing that it was contemplated for this matter to be adjourned this morning at the request of Carter Newell Lawyers, lawyers for the Second Defendant and which the Plaintiff was consenting to as the adjournment was beneficial to both parties. Notice of Change of lawyers for the Second Defendant was filed on the 9 February, 1998. It appeared that there were discussions afoot for possible settlement out of court that required Cater Newell lawyers adequate time seek and obtain instructions. On the strength of these discussions, Mr Sheppard say, he arranged to appear in another case in Mt Hagen following adjournment of this matter today. But what was envisaged by the Plaintiff happening this morning was not to be so. By Notice of Change of Lawyers filed this morning by Brian White & Associates, Brian White is once again instructed to act for the Second Defendant. I also note that a Notice of Change of Lawyers filed by Brian White & Associates of 9 February shows the firm acting only for the First and the Third Defendants.

Mr Sheppard argues that his preparation for the Plaintiff has been prejudice by the succession of changes in lawyers by the Second Defendant within a short span of time. He is therefore not in a position to proceed because witnesses were stopped from coming from Australia as the result of the discussion between himself and Carter Newell Lawyers.

I don't hold it against Mr Sheppard or his client for the position he finds himself in. I think it be ridiculous, if not quiet unfair, to expect the Plaintiff to press on with the trial when Counsel had made other commitment in the light of discussions he had with one group of lawyers on record. But surprisingly, he now finds that the lawyers with whom the Plaintiff was discussing settlement of the matter are dropped and the Second Defendant switches back to its former lawyers. It is most discourteous of a party to change a lawyer at the eleventh hour and opt for a particular course in the matter when the same party was humming a different tune with another lawyer a short while ago. The second defendant's position as from the point of view of the lawyers now retained for the trial had been obvious from the start. The issue of liability is strongly contested. And I agree with Mr O'Regan that it can be resolved very quickly by submission on law rather dwelling into the facts by volume of evidence.

But the Plaintiff has the right to present its case in a well prepared manner. The situation it finds itself in now is not of its own making. As mentioned openly in Court during Counsel's addresses. I am puzzled as to who exactly in PNG Harbour Board is responsible for determining retainer of lawyers for the Corporation, is it the Corporate Lawyer, the General Manager or the Board of PNG Harbours Board? Although Mr Kamburi says from the Bar table that he has the authority to over –ride the decision off Mr Emilio, the acting General Manager who made the ultimate decision to terminate the Board's retainer of Brian White & Associates and instructed Carter Newell Lawyers instead, I am still not convinced that Mr Kamburi's letter of 10th February 1998 to Carter Newell restores the status quo apart from simply stating that "PNG Harbours Board retains the services of Mr O'Regan QC to represent PNG Harbours Board in all its court presentations before the national Court when this matter comes before the Court this morning." He further goes on to advise that being the Corporate lawyer for the PNG Harbours Board, he is appearing as a junior counsel to Mr O'Regan QC. It is plain to see that the issue of retainer is far from over and PNG Harbours Board needs to get its act together and resolve this confusion permanently.

I therefore find that the Second Defendant, PNG Harbours Board, is largely at fault and responsible for the problem now faced in court this morning that not only places the Plaintiff in an awkward position but also caused unnecessary inconvenience to lawyers. This is not the kind of scenario that must ordinarily take place in Court, particularly when Senior Counsel has been brought in from overseas. It is not just the question of costs alone that matters but the time taken to travel and the general inconvenience caused to overseas counsel is also of concern.

Mr O'Regan strongly objected to any adjournment and submitted that it would be an injustice to the Second defendant whose case is fairly simple on the question of liability for that issue to be not resolved now. Whilst I am sympathetic to this argument, I am strongly of the view that to not grant the adjournment will be an injustice to the Plaintiff. I do not see the Second Defendant suffering any injustice at if the trial does not proceed today.

I therefore grant the adjournment sought by the Plaintiff but order the costs of this adjournment against the Second Defendant for the reasons given. Parties will now have a go back to the Registrar to get a new hearing date.

Following my ruling on the application, Mr O'Regan handed up to me a faxed copy of a letter from the Chairman of PNG Harbours Board, Mr Galewa Kwarara, dated 10 February, 1998 addressed to Brian White & Associates instructing the firm to "proceed to arguing this matter in the Court of Law for and on behalf of the PNG Harbours Board." For the purposes of completeness of the whole scenario. I have that letter reproduced hereunder as an addendum to my ruling given:

"Our ref: L12/S12-GM-91-98
10th February, 1998

Brian White & Associates
PO Box 698
Port Moresby

ATTENTION: MR BRIAN WHITE

SUBJECT: PNG NATIONAL STEVEDORES PTY LTD –V- PNG HARBOURS BOARD AND OTHERS

I refer to the above matter and confirm having received directions from the Minister for Transport & Civil Aviation on the same.

As per the directions I advise by this letter that your offices proceed to arguing this matter in the Court of law for and on behalf of the PNG Harbours Board.

The Minister has strongly directed that this matter should be settled through the Courts of Law and not out of Court

Yours faithfully

PNG HARBOUR BOARD

Galeva Kwarara
CHAIRMAN

cc. Acting General Manager

I mentioned that this letter simply confirmed that Brian White & Associates are now the lawyers for the Second defendant. I t has no bearing whatever on my ruling at all. Therefore the orders of the Court as to the relief sought and on costs remain unaffected.

Lawyer for the 1st Plaintiff – Maladina Lawyers
Lawyer for the 2nd Plaintiff – Blake Dawson & Waldron
Lawyer for the 1st and 2nd & 3rd Defendants – Brian White & Associates