Pakui v Independent State of Papua New Guinea [2006] PGNC 220; N3001 (22 February 2006)

N3001

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO 569 OF 1994

ETON PAKUI
Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Defendant

MT Hagen: Cannings J

2006: 21, 22 February

RULING ON MOTIONS

LAWYERS – change of lawyers after trial and before delivery of judgment – notice of change of lawyers – whether court can order a party not to change lawyers – right of parties to lawyer of their choice.

PRACTICE AND PROCEDURE – representative action – multiple claimants – consent and authority given by a group of claimants to bring proceedings on their behalf.

The plaintiff commenced proceedings in a representative action against the State seeking damages for negligence. A trial was conducted addressing both liability and quantum of damages. Judgment was reserved and while it was pending the plaintiff changed lawyers. The first lawyers brought a motion asking the court to prevent the plaintiff changing lawyers unless he first paid their outstanding legal fees. The second lawyers brought a motion asking the court to endorse the change of lawyers. This is a ruling on the two motions.

Held:

(1) It is a fundamental principle of the administration of justice that a person who brings proceedings in the courts is entitled to engage a legal representative, duly admitted to practise as a lawyer, of his own choice. This is a manifestation of the constitutional right to freedom based on law.

(2) Provided that a notice of change of lawyers has been filed and served in accordance with the National Court Rules and no other law is infringed the parties to proceedings should not be prevented by an order of the court from changing lawyers at any time.

(3) The first lawyers were not unreasonably aggrieved by the actions of the plaintiff and the second lawyers. However the court should be slow to intervene in the affairs of clients and their lawyers especially where no breach of any law is evident.

(4) A client's liability to their lawyers for payment of legal fees is not extinguished if the client changes lawyers.

(5) Accordingly the plaintiff in this case was at liberty to change his lawyers, even at the 'eleventh hour' when the court was about to deliver judgment in a trial prosecuted by different lawyers.

Cases cited

The following cases are cited in the judgment:

Edward Manu Trading as Manu & Associates Lawyers v Honiri Timber Resources Development Limited (2004) N2597

Simon Mali on His Own Behalf and as Representative of 30 other Members of Onepena Clan, Kagua, Southern Highlands Province and John Yasa on His Own Behalf and as Representative of 20 other Members of Ege Clan, Kagua, Southern Highlands Province and Porapae Pebaro on His Own Behalf and as Representative of 15 other Members of Yako Clan, Kagua, Southern Highlands Province v The Independent State of Papua New Guinea (2002) SC690

Abbreviations

NOTICES OF MOTION

This was a ruling on motions that sought orders to resolve disputed legal representation.

Counsel

N Kiuk for the applicant/respondent
P Kunai for the respondent/applicant

1. CANNINGS J: INTRODUCTION: This is a ruling on motions by competing law firms who claim the right to represent and receive a judgment on behalf of a plaintiff and a number of other persons in a civil action.

BACKGROUND

2. The substantive case is about a police raid of Tulipato village, Laiagam District, Enga Province, that allegedly took place in 1992. The plaintiff is a resident of that village. He and a number of other villagers claim that the police unlawfully raided the village and went on a rampage, burning down trade stores and other buildings and destroying and stealing property. It is claimed that the police acted negligently and that the State should pay a substantial amount of compensation for what happened.

3. I conducted the trial on two days in November 2004. Many witnesses were called. The State was represented by Mr B Ovia of the Office of the Solicitor-General who defended the claim vigorously. The plaintiff and the 15 other claimants were represented by Ms R Kalepo of Kunai & Co Lawyers of Mt Hagen. Judgment was reserved and while it was pending the plaintiff purported to change lawyers.

4. On 14 September 2005 Lomai & Lomai Attorneys of Boroko filed a notice of change of lawyers in these terms:

Take notice that the lawyers acting for the plaintiff are changed from Kunai Lawyers to Lomai & Lomai Attorneys, Section 209, Allotment 128, Garden Hills Drive, PO Box 1479, NCD.

5. In the week commencing 13 February 2006 my associate notified all interested parties that the judgment would be delivered in Mt Hagen on 21 February 2006. It is that notification that appears to have precipitated the two motions now before the court.

6. The first motion, filed by Lomai & Lomai Attorneys, asks the court to make orders endorsing the change of lawyers to themselves and authorising them to have the further conduct and carriage of the matter.

7. The second motion, filed by Kunai & Co Lawyers, asks the court to order that the plaintiff is not at liberty to engage any other law firm to act for him in this matter unless he first settles the legal fees he owes to Kunai & Co.

8. I convened the court on 21 February 2006 for the principal purpose of delivering judgment in the substantive case, WS No 569 of 1994, and judgments in another nine cases that had also been heard in late 2004.

9. It soon became evident that the two law firms were still at loggerheads. They both wanted to represent the plaintiff and to receive the judgment on his behalf and the other 15 claimants. I decided to hear the two motions, reserve a ruling on those motions and postpone delivery of judgment in the substantive case pending the outcome of the ruling on the motions.

10. The motions were heard together. They are opposite sides of the same coin. The issue boils down to who has the right to represent the plaintiff and to receive the judgment.

11. Both sides have presented a lot of affidavit material. A lot of correspondence has been exchanged between the law firms and the plaintiff. Claims and counter-claims of impropriety have been made.

12. It is not necessary to set out the allegations in detail. It is sufficient to say that it is agreed that over a number of years another person – other than the plaintiff and the 15 other claimants – has been helping the plaintiff get this case against the State moving. His name is Mark Ipuia. He is a community leader, a former member of Parliament and he comes from the plaintiff's village. However, Mark Ipuia and the plaintiff, Eton Pakui, have had a falling out. They evidently do not get on any more. Mark Ipuia was giving instructions and paying some of the legal fees to Kunai & Co, which is also acting for him in another bundle of legal actions against the State. Eton Pakui has formed the view that Mark Ipuia is exercising too much control over what happens with the substantive case. Perhaps he thinks that Mark Ipuia is giving too many instructions to Kunai & Co Lawyers over the carriage of the substantive case. Whatever the case, Eton Pakui has decided that he does not want Kunai & Co Lawyers acting on his behalf anymore. He has given instructions to Lomai & Lomai Attorneys.

SUBMISSIONS BY LOMAI & LOMAI

13. Mr Kiuk submitted that Lomai and Lomai had done the right thing by filing the notice of change of lawyers in September 2005 in accordance with Order 2, Rule 35 of the National Court Rules (change of solicitor), which states:

(1) Where a solicitor [ie lawyer] acts for a party in any proceedings, the party may change his solicitor.

(2) Where a party changes his solicitor, he shall file notice of the change and serve the notice on the other parties and, where practicable, his former solicitor.

14. The notice of change of lawyers was filed on the instructions and on behalf of Eton Pakui. Mr Kiuk pointed out that when the substantive proceedings were commenced in 1994 the various claimants put forward Eton Pakui as their representative and the principal plaintiff. He referred to the consent and authority form filed in 1994, which was signed or thumb-marked by the claimants. It stated:

We the following each and severally of Tulipato village in the Enga Province hereby consent to our names being used and further consent and authorise Eton Pakui of Tulipato to bring proceedings against the [Independent] State of Papua New Guinea on our behalf for damages suffered by each of us following an illegal police operation at Tulipato on 23 September 1992

SUBMISSIONS BY KUNAI & CO

15. Mr Kunai submitted that the conduct of Lomai & Lomai was unprecedented and unethical. There was no good reason for there to be a change of lawyers at the eleventh hour. His firm had done all the hard work preparing for the trial, organising witnesses, researching the relevant law, arguing the case and preparing submissions. It would set a bad precedent if the court were to sanction this sort of conduct by lawyers and clients. He claimed that his firm had not been paid by the plaintiff and if the case were now to be handled by a different law firm, his firm's interests would not be protected. The court should not entertain such an unmeritorious motion, Mr Kunai submitted.

RIGHTS OF LITIGANTS

16. There is, I consider, a fundamental principle underpinning the administration of justice in Papua New Guinea that is at stake in this matter and I think it provides the way out of the imbroglio that has developed: a person who brings proceedings in the courts is entitled to engage, at his own expense, a legal representative, duly admitted to practise as a lawyer, of his own choice. Put in plain language: a person has the right to choose his or her own lawyer. The client can hire and fire the lawyer at will.

17. This principle is given effect by Section 68 (change of lawyers) of the Lawyers Act, which states:

A client is entitled to change his lawyer notwithstanding that he has made an agreement with him under Section 66 (remuneration by agreement).

18. The rights of the client are made even more explicit by Section 19 of the Professional Conduct Rules (termination of retainer), which states:

A lawyer shall recognise that a client is entitled to change his legal adviser at any time without giving any reason for the change and shall, subject to the satisfaction of any lien the lawyer may have, take all reasonable steps to facilitate such a change should his client so request. [Emphasis added.]

19. It is also relevant to consider that one of the basic rights of a person charged with a criminal offence is to choose his or her own lawyer – if the person is paying – and to only have a lawyer who might not be their first choice if he or she is granted legal aid. Section 37(4)(e) of the Constitution states:

A person charged with an offence ... shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law.

20. In the present case the plaintiff has not been charged with a criminal offence. However, Section 37(4)(e) demonstrates how important it is that a litigant's right to choose, and lose, their lawyer be upheld.

21. While putting these issues in constitutional terms it is instructive to consider the right to freedom enshrined in Section 32 of the Constitution, which states:

(1) Freedom based on law consists in the least amount of restriction on the activities of individuals that is consistent with the maintenance and development of Papua New Guinea and of society in accordance with this Constitution and, in particular, with the National Goals and Directive Principles and the Basic Social Obligations.

(2) Every person has the right to freedom based on law, and accordingly has a legal right to do anything that—

(a) does not injure or interfere with the rights and freedoms of others; and

(b) is not prohibited by law,

and no person—

(c) is obliged to do anything that is not required by law; and

(d) may be prevented from doing anything that complies with the provisions of paragraphs (a) and (b)...

22. I think that I would be interfering with the plaintiff's right to freedom based on law if I were to order him to retain a lawyer he no longer wishes to retain and prevent him from being represented by a lawyer of his choice.

OTHER CONSIDERATIONS

23. I have considered whether there are any other principles or aspects of this case that would lead the court to uphold the motion filed on behalf of Kunai & Co.

24. I must say that it is natural to feel some deal of sympathy for a law firm in their positThey have done done the hard yards on this case. It was not an easy case to run. Now at the eleventh hour, just before the court is to deliver the judgment, thent shifts his allegiances to another firm. As Mr Kunai subm submitted, this does not seem fair. It does seem irregular. It is perhaps something that should not be encouraged.

25. However, nothing that the client does by changing law firms will extinguish the client's liability to his former law firm, in this case Kunai & Co. There is a procedure provided by Section 62 (action to recover costs) for a lawyer to deliver a bill of costs to the client and for proceedings for recovery to be commenced. (See Edward Manu Trading as Manu & Associates Lawyers v Honiri Timber Resources Development Limited (2004) N2597, National Court, Davani J.)

26. The court should be slow to intervene in the affairs of clients and their lawyers especially where no breach of any law is evident.

27. I have considered whether the affidavits that were filed in support of the motions show whether the 15 claimants who authorised Eton Pakui to act for them are agreeable to his changing lawyers. It is hard to say on the facts as there are competing documents annexed to the affidavits, giving different versions of who does and who does not want to stay with Kunai & Co. I will not inquire further into this. As Mr Kiuk pointed out there is a consent and authority form on the court's file, authorising Eton Pakui to act on behalf of the claimants. That consent and authorisation has not been revoked. So the claimants are, in effect, bound by the discretion that has been exercised by Eton Pakui. (See Simon Mali on His Own Behalf and as Representative of 30 other Members of Onepena Clan, Kagua, Southern Highlands Province and John Yasa on His Own Behalf and as Representative of 20 other Members of Ege Clan, Kagua, Southern Highlands Province and Porapae Pebaro on His Own Behalf and as Representative of 15 other Members of Yako Clan, Kagua, Southern Highlands Province v The Independent State of Papua New Guinea (2002) SC690, Supreme Court, Hinchliffe J, Sakora J, Batari J.)

28. The remaining issue is whether Kunai & Co has a lien (the right to hold another person's property until a debt on it is paid) over the file on the substantive case that is still in their possession. Mr Kunai alluded to this. It seems that he has no intention of releasing the file until he is paid. That would seem on the facts to be not an unreasonable position to adopt.

29. To sum up I cannot identify any sound reason for not upholding the plaintiff's right to have the lawyer of his choice represent him in the substantive case and to receive the judgment.

RULING

30. The court will make an order in the following terms:

1. the lawyer on the record for the plaintiff in WS No 569 of 1994, with effect from 14 September 2005, shall be Lomai & Lomai Attorneys, who are authorised to have the further conduct and carriage of the matter for the plaintiff unless and until the plaintiff instructs otherwise;
   
2. the court will proceed to deliver judgment in WS No 569 of 1994, forthwith;
   
3. there is no order for costs in regard to the hearing of these motions.
   

Ruling accordingly.
____________________________

Lomai & Lomai Attorneys: Lawyers for the applicant/respondent
Kunai & Co Lawyers: Lawyer for the respondent/applicant