Dire v Motor Vehicles Insurance Ltd [2011] PGNC 235; N4287 (8 April 2011)

N4287

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No.935 OF 2007

BETWEEN:

KAIPEL DIRE
Plaintiff

AND:

MOTOR VEHICLES INSURANCE LIMITED
Defendant

Mt. Hagen & Minj: David, J
2011: 24 March & 8 April

PRACTICE & PROCEDURE – withdrawal of lawyer on the record – lawyer must give not less than seven days notice to former client of intention to cease to act - notice of ceasing to act to be filed thereafter with affidavit showing service of notice of intention to cease to act – affidavit showing service of notice of ceasing to act on all parties should also be filed as good and prudent practice – service of notices can be effected by posting same to former client's last known residential or business address - leave required if for some reason requirements cannot be met - National Court Rules, Order 2 rule 39 – effect of change - National Court Rules, Order 2 rule 40.

Case cited:

Papua New Guinea case
Nil

Overseas cases

Turpin v Semper (1898) 15 WN 117

Treatise cited:

Ritchie's Supreme Court Procedure, New South Wales, Volume 1

Counsel:

Mr. Roy K. Mulina, for the Defendant

RULING ON PRELIMINARY MATTER
8 April, 2011

1. DAVID, J: A preliminary matter was raised by Mr. Mulina of counsel for the defendant concerning the validity of the notice of ceasing to act for the plaintiff (notice of ceasing to act) filed by Kunai & Co. Lawyers on 5 October 2010 before moving his client's motion brought by way of the notice of motion filed on 10 February 2011 supported by the affidavit of Joseph Poponawa sworn on 7 February 2011 and filed on 10 February 2011 for the dismissal of the whole proceedings for want of prosecution pursuant to Order 10 rule 5 of the National Court Rules (the Rules). I only heard brief submissions from Mr. Mulina. No affidavit specifically addressing the preliminary matter was relied on. Mr. Kunai, principal of Kunai & Co. Lawyers was in attendance, but apart from confirming that his firm had ceased to act for the plaintiff by the filing of the notice of ceasing to act, he did not make any submission in response. I reserved my ruling which I now deliver.
   

2. By way of brief background, the plaintiff, by his writ of summons endorsed with a statement of claim filed on 28 August 2007, claims against the defendant damages for injuries allegedly sustained in a motor vehicle accident involving two motor vehicles along the Banz road between Banz and Kudjip in the Western Highlands Province on 31 October 2003 on one of which he was a passenger. In its defence filed on 9 October 2007, the defendant basically denies liability, but pleads in the alternative contributory negligence on the part of the plaintiff. The plaintiff filed his reply on 2 November 2007 adopting the admissions and joining issue with the denials contained in the defendant's defence.

3. Mr. Mulina basically submitted that his firm was not aware of Kunai & Co. Lawyers ceasing to act for the plaintiff as they were not served with the notice of ceasing to act. Therefore, they had all along been communicating with them in respect of these proceedings including service of their notice of motion and the supporting affidavit he said. He submitted that for the notice of ceasing to act to be valid and effective, the requirements under Order 2 rule 39 of the Rules should have been complied with. In this case it appeared that Kunai & Co. Lawyers had not complied with that rule therefore they remained as lawyers for the plaintiff on the record counsel said.

4. The only issue for my consideration and determination is whether the notice of ceasing to act filed by Kunai & Co. Lawyers on 5 October 2010 is valid and effective.

5. Order 2 rule 39 of the Rules states:

"39. Withdrawal of solicitor. (66/7)

(1) Where a solicitor acts for a party to any proceedings and afterwards ceases to act, the solicitor may, subject to Sub-rule (2), file notice of the change and serve the notice on the parties.

(2) A solicitor shall not file or serve notice of a change under Sub-rule (1) without leave of the Court unless he has, not less than seven days before doing so, served on his former client notice of his intention to file and serve the notice of change.

(3) A solicitor filing a notice of change under Sub-rule (1) shall, except where the notice is filed with the leave of the Court, file and serve with the notice an affidavit showing service in compliance with Sub-rule (2).

(4) A solicitor may serve a notice under this Rule on his former client by posting it to the former client at the residential or business address of the former client last known to the solicitor."

6. The word "solicitor" is defined in Order 1 rule 6 of the Rules. It means "a person admitted to practice as a lawyer under the Lawyers Act".

7. Order 2 rule 39 of the Rules is identical to Part 66 rule 7 of the New South Wales Supreme Court Rules. The rule regulates how a lawyer should withdraw from continuing to act for a party and nothing more. Ritchie's Supreme Court Procedure, New South Wales, Volume 1 at page 3428 has the following commentary as regards the purpose of the rule.

"The present rule is concerned only with the fact of the solicitor's ceasing to act, and not with the validity of solicitor's conduct as against the client: Plenty v Galdwin [1986] HCA 55; (1996) 60 ALJR 665 and Re Folgat Constructions Pty Ltd [1996] HCA 16; (1996) 137 ALR 37."

8. As to how a valid and effective withdrawal should be done, the following steps need to be taken:

1. Notice of intention to file and serve notice of change: Not less than seven days before filing and serving the notice of change which is the notice of ceasing to act in the present case, the lawyer must serve on his former client a notice of his intention to do so: Order 2 rule 39 (2).
   
2. Notice of change: The lawyer should then file and serve the notice of the change on the parties following the expiry of the period for giving notice of intention to do so: Order 2 rule 39 (1) and (2). An affidavit showing service of the notice of change on all parties should be filed as a matter of good and prudent practice.
   
3. Affidavit showing service of notice of intention to file and serve the notice of change: Except where leave has been granted to file the notice of change, the lawyer must also file and serve with the notice of the change an affidavit showing service on his former client of the notice of his intention to file and serve the notice of change: Order 2 rule 39 (3).
   

9. Leave will be required where the requirements under Order 2 rule 39 cannot, for some reason, be met: Order 2 rule 39 (2).

10. According to Order 2 rule 39 (4) service of notices under Order 2 rule 39 upon the lawyer's former client can be effected by posting same to the former client at his last known residential or business address.

11. Order 2 rule 40 of the Rules is also relevant. It states that the notice of change will only take effect when it is filed and served on the lawyer's client and other parties. The rule reads:

"40. Effects of change. (66/8)

A change of which notice is required or permitted to be filed under any of Rules 35, 36, 37, 38 and 39 shall not have effect as between a party or solicitor to which the change relates on the one hand and the Court or any other party on the other hand until notice of the change is filed and, as regards any other party, served on that other party."

12. Where the notice of change is filed contrary to Order 2 rule 39, but the lawyer states that he no longer acts for the party concerned, service of documents on the lawyer will be permitted as he effectively is still the lawyer for that party on the record: see Turpin v Semper (1898) 15 WN 117.

13. My perusal of the court file reveals that no affidavit was filed by Kunai & Co. Lawyers either in accordance with Order 2 rule 39 (3) or to show that they had served the notice of ceasing to act on all the parties consistent with Order 2 rule 39 (1). Other documents filed after the filing of the notice of ceasing to act and prior to the matter coming before me are the defendant's notice of motion and the supporting affidavit of Joseph Poponawa both filed on 10 February 2011. In the circumstances, I am unable to make a firm determination as to the validity and efficacy of the notice of ceasing to act for lack of affidavit material. I can only state at this juncture that if Kunai & Co. Lawyers have complied with the notice requirements under Order 2 rule 39, they need to file an affidavit to show that they had complied with Order 2 rule 39 (2) and that they had served the notice of ceasing to act upon the parties thereafter. However, if they have not, the filing of the notice of ceasing to act was done without leave hence it will be deemed invalid and ineffective. The consequence of an invalid and ineffective notice of ceasing to act will be that until the notice requirements under Order 2 rule 39 are met, Kunai & Co. Lawyers will remain as lawyers for the plaintiff on the record and service of documents on them in relation to these proceedings will be permitted.

14. In order to assist me to make a firm determination of the issue before me, it will be necessary for parties to file affidavits touching the issue for my consideration. I will therefore issue the following directions:

1. Kunai & Co. Lawyers shall file and serve on Mirupasi Lawyers an affidavit detailing the circumstances surrounding the filing of the notice of ceasing to act and as to whether or not the notice was served on the parties by 15 April 2011.
   
2. Mirupasi Lawyers shall file and serve on Kunai & Co. Lawyers an affidavit in response by 22 April 2011.
   
3. The defendant's notice of motion filed on 10 February 2011 shall return before me for mention and or hearing on Friday, 6 May 2011 at 9:30 am at Mt. Hagen.
   
4. Unless the Court otherwise directs, the lawyer from Kunai & Co. Lawyers who had the carriage of the matter on behalf of the plaintiff before the filing of the notice of ceasing to act or if not available a lawyer from that firm who is familiar with the matter must appear before me on the date and time aforesaid to participate in the proceedings

__________________________________________________

Mirupasi Lawyers: Lawyers for the Defendant