Kai v Regione (Jnr) [2024] PGNC 131; N10791 (26 April 2024)

N10791

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 767 OF 2015

BETWEEN:
WERA KAI
Plaintiff

AND:
JOSEPH MICHAEL REGIONE (JNR)
Defendant

Waigani: David, J
2023: 15^th December
2024: 26^th April

PRACTICE & PROCEDURE – application by plaintiff to strike out defence and enter judgment for default in giving discovery – court’s power discretionary – relief sought refused – alternative relief to give discovery granted - National Court Rules, Order 9 Rule 15(1)(b).

LEGAL REPRESENTATION – application to order counsel to cease acting for client for alleged conflict of interest in court proceedings – threshold for removal high one – litigant’s right to be represented by a lawyer of own choice – lawyer’s right to choose client whom he will work for or represent in litigation – lawyer cannot be both a witness and counsel at trial – litigants right to choose lawyer of own choice not absolute – court has inherent power and authority to refuse to permit a lawyer from appearing for a litigant in a particular case to protect interests of litigant and to protect public confidence in the administration of justice - Professional Conduct Rules 1989, ss.10 and 15 (14), (15) and (16).

Cases Cited:

Papua New Guinean Cases
Mapmakers Pty Ltd v Broken Hill Proprietary Company Ltd [1987] PNGLR 78
Credit Corporation (PNG) Ltd v Gerald Jee [1988-89] PNGLR 11
Emas Estate Development Pty Ltd v John Mea & Ors [1993] PNGLR 215
Titus Keran v Jerry Warun & Country Motors Pty Ltd [1994] PNGLR 130
Curtain Bros (PNG) Ltd v UPNG (2005) SC788
Rural Development Bank v Laka (2007) SC897
PNG Water Board v Gabriel M. Kama (2005) SC821
Island Helicopter Services Ltd v Wilson Sagati (2008) N3340
Hillary Singat v Commissioner of Police (2008) SC910
Anopari v Motor Vehicles Insurance Ltd (2009) N3697

Overseas Cases
R v Secretary of State for India [1941] 2 KB 169
Everingham v Ontario (1992) 88 DLR (4th) 755
Black v Taylor [1993] 3 NZLR 403
Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446
Geveran Trading Co. Ltd v Skjevesland [2002] EWCA Civ 1567; [2003] 1 WLR 912
Accent Management Ltd v Commission of Inland Revenue [2013] NZCA 155

Counsel:
Jimmy Dia Lyipita, for the Plaintiff
Moses Murray, for the Defendant

JUDGMENT

26^th April 2024

1. DAVID J: INTRODUCTION: This is a ruling on two motions moved by each of the opposing parties both of which were contested.
   

BRIEF BACKGROUND

2. The dispute between the parties concerns all those pieces or parcels of land described as Allotments 4, 5 and 6 Section 140 Matirogo (Badili) in the National Capital District. The plaintiff claims to have an interest in those pieces or parcels of land which he avers were previously freehold land and converted to leasehold land under the provisions of the Land Act 1996 as; he has been living on Allotment 4 in particular since 1978; he has done substantial maintenance and developed it; the defendant’s father namely, Joseph Michael Pedro Regione did not own the property; the will in favour of the defendant purportedly made by the defendant’s father and giving the property to the defendant is fraudulent and invalid; the Letters of Administration granted to the defendant on 11 September 2009 is invalid; the order taken out by the defendant against him in the Port Moresby District Court on 18 May 2015 to evict him from Allotment 4 has no legal basis; and he has applied to the Department of Lands and Physical Planning for a grant of the title over Allotment 4 to him.
   
3. By Writ of Summons endorsed with a Statement of Claim filed on 11 June 2015 and subsequently amended by Amended Writ of Summons endorsed with an Amended Statement of Claim filed on 19 June 2015, the plaintiff claims, among others, the following orders:
   
   1. The Letters of Administration with will annexed in relation to the estate of the late Joseph Michael Regione granted on 11 September 2009 be revoked;
   2. The will purportedly made by the late Joseph Regione does not include Allotments 4, 5 and 6 Section 140 Matirogo (Badili), National Capital District;
   3. The Certificate Title held by late Michael Joseph Regione is invalid;
   4. The consent order granted by the National Court for the grant of State Lease over Allotment 4 Section 140 Matirogo (Badili), National Capital District be affirmed forthwith;
   5. The grant of the Letters of Administration be deposited in the Registry;
   6. The Eviction Order made by the Port Moresby District Court on 18 May 2015 be stayed pending the determination of these proceedings;
   7. The defendant, his family members and agents be restrained from entering Allotments 4, 5 and 6 Section 140 Matirogo, Badili, National Capital District and threatening and harassing the plaintiff and his tenants; and
   8. The defendant, his agents and any other person or third parties acting upon instructions be restrained from evicting, threatening, harassing and intimidating the plaintiff and his family members and other immediate family members from the property pending the determination of these proceedings.
      
4. On 16 July 2015, the defendant filed his Defence denying liability.
   
5. On 5 August 2015, the plaintiff filed his Reply and averred that save for the admissions the defendant expressly made, he joined issue with the rest of the Defence.
   
6. On 19 July 2023, the plaintiff filed a Notice for Discovery and subsequently served it on the defendant.
   

MOTIONS BEFORE THE COURT

7. In the defendant’s notice of motion dated 19 August 2023 and filed on 22 August 2023, he seeks orders for the dismissal of the plaintiff’s notice of motion filed on 29 June 2023 in its entirety as:

1. Pursuant to Order 8 Rule 27(1)(b) of the National Court Rules, the orders sought in Items 2, 3 and 4 of that motion have a tendency to cause prejudice, embarrassment or delay in the proceedings currently being litigated in the Port Moresby District Court pursuant to s.5 of the Summary Ejectment Act.
2. Pursuant to Order 8 Rule 27(1)(c) of the National Court Rules, the orders sought in Items 2, 3 and 4 of that motion amount to an abuse of the process of the Court as these proceedings have no connection and or relevance to/with the subject matter of eviction currently being litigated in the Port Moresby District Court pursuant to s.5 of the Summary Ejectment Act.
3. Pursuant to Order 12 Rule 40(1)(c) of the National Court Rules, the orders sought in Items 2, 3 and 4 of that motion amount to an abuse of process of the Court as these proceedings have no connection and or relevance to/with the subject matter of eviction currently being litigated in the Port Moresby District Court pursuant to s.5 of the Summary Ejectment Act.
4. Pursuant to Order 12 Rule 40(1)(b) of the National Court Rules, the orders sought in Items 2, 3 and 4 of that motion are frivolous and vexatious as these proceedings have no connection and or relevance to/with the subject matter of eviction currently being litigated in the Port Moresby District Court pursuant to s.5 of the Summary Ejectment Act.
5. Pursuant to Order 12 Rule 40(1)(c) of the National Court Rules, the orders sought in Items 2, 3 and 4 of that motion amount to an abuse of process of the Court as these proceedings have no connection and or relevance to/with the subject matter of eviction currently being litigated in the Port Moresby District Court pursuant to s.5 of the Summary Ejectment Act.
6. Pursuant to Order 12 Rule 40(1)(d) of the National Court Rules, the orders sought in Items 2, 3 and 4 of that motion amount to an abuse of the process of the Court as these proceedings have no connection and or relevance to/with the subject matter of eviction currently being litigated in the Port Moresby District Court pursuant to s.5 of the Summary Ejectment Act and the principle of res judicata applies.
   

8. In the plaintiff’s cross-motion dated and filed on 13 September 2023, he seeks the following main relief:

1. Pursuant to the Court order of 7 July 2023, the defendant’s notice of motion filed on 22 August 2022 be dismissed for being an abuse of the process of the Court.
2. Pursuant to Order 9 Rule 15(1)(b) of the National Court Rules, the defendant’s defence filed on 16 July 2015 be struck out and that judgment be entered for failing to give discovery.
3. In the event that the second relief sought is not granted, an order that the defendant’s counsel cease acting for the defendant on the basis of conflict of interest pursuant to Order 12 Rule 1 of the National Court Rules and s.155(4) of the Constitution.
   4. In the event that the second relief sought is not granted, an order that the defendant give discovery of documents requested in the Notice for Discovery within seven days of the grant of the order.
      

EVIDENCE

9. In support of the defendant’s notice of motion and in opposing the plaintiff’s notice of motion, the defendant reads and relies on:
   
   1. His own affidavit sworn and filed on 19 June 2015; and
2. His own affidavit sworn on 19 August 2023 and filed on 22 August 2023.
   
10. In support of the plaintiff’s cross-motion and in opposing the defendant’s notice of motion, the plaintiff reads and relies on his own affidavit sworn on 28 June 2023 and filed on 29 June 2023.
    

CONSIDERATION OF DEFENDANT’S MOTION

11. The plaintiff’s notice of motion that the defendant seeks to dismiss was struck out by the Court for want of prosecution on 7 July 2023. Given that, the defendant’s notice of motion is untenable and is dismissed for being an abuse of the process of the Court.
    

CONSIDERATION OF PLAINTIFF’S CROSS-MOTION

12. I have already determined the first relief sought in the plaintiff’s cross- motion so I will only consider and determine whether I should grant the second relief sought or either or both of the two alternative relief sought.
    

Submissions

13. The plaintiff submits that the Court grant the second relief sought or the two alternative relief sought as:
    
    1. The defendant has defaulted in giving discovery pursuant to the Notice of Discovery filed and served on him; and
    2. Mr. Murray, counsel for the plaintiff has a conflict of interest as he is aware of or has personal knowledge of facts surrounding the dispute between the parties.
       

14. The defendant submits that the Court should refuse the second relief sought and the two alternative relief sought as:

1. The matters raised in the Notice of Discovery concerning the will have already been dealt with by different courts in favour of the defendant and therefore are res judicata;
2. The titles over Allotments 4, 5 and 6 Section 140 Matirogo (Badili) National Capital District have already been issued in favour of the defendant;
3. His counsel, Mr. Murray will not be both a witness and counsel at trial;
4. He is the administrator of the estate of his late father, Joseph Michael Pedro Regione and therefore is entitled to deal with the estate;
5. The plaintiff has not appealed against the eviction order granted by the District Court in favour of the defendant; and
6. The plaintiff is a busy body.

Issues

15. The issues that arise from the cross-motion for my consideration and determination are:

1. Whether the defendant’s Defence should be struck out and that judgment be entered for defaulting in giving discovery?
2. Alternatively, whether Mr. Murray should be ordered to cease to act for the defendant?
3. In the further alternative, whether the defendant should be ordered to give discovery within seven days of the grant of the ruling?
   

Default in giving discovery

16. The Notice for Discovery required the defendant to give discovery with verification within 14 days after service of the Notice of Discovery on him the; original copy of the will of the late Michael Joseph Regione dated 13 April 1994; original Certificates of Title over Allotments 4, 5 and 6 Section 140 Matirogo (Badili), National Capital District and Allotments 1 and 2 Section 145 Matirogo (Badili), National Capital District; and material evidence of events that caused delay in executing the will dated 13 April 1994. No issue has been raised by the defendant regarding service of the Notice of Discovery or any irregularity as to form.

17. It is trite law that if a party ignores Court process, he does so at his own peril: see Credit Corporation (PNG) Ltd v Gerald Jee [1988-89] PNGLR 11; Titus Keran v Jerry Warun & Country Motors Pty Ltd [1994] PNGLR 130; and Curtain Bros (PNG) Ltd v UPNG (2005) SC788.

18. Order 9 Rule 15(1) of the National Court Rules states:

“15. Default. (23/15)

(1) Where a party makes default in filing or serving a list of documents or affidavit or other document, or in producing any document as required by or under this Division, the Court may make such order as it thinks fit, including

(a) if the party in default is a plaintiff an order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceedings; or

(b) if the proceedings were commenced by writ of summons and the party in default is a defendant an order that his defence be struck out and that judgement be entered accordingly...”
19. The Court’s power to enforce discovery is extremely broad and the power vested in it by Order 9 Rule 15(1) is discretionary in nature. The discretion must be exercised on proper principles and judicially. Where a party gives a notice for discovery, the party that is required to give discovery must do so within the period specified in the notice. The requirement is mandatory: see Order 9 Rules 1 & 2 of the National Court Rules. I consider therefore that where a plaintiff has served a notice for discovery pursuant to Order 9 Rule 1 of the National Court Rules and the defendant has defaulted, his or her defence may be struck out and judgment entered against him or her where he or she has failed to offer any reasonable explanation for his or her default: Titus Keran v Jerry Warun & Country Motors Pty Ltd [1994] PNGLR 130. Given that each case must be considered on its own merits and peculiar circumstances, I have also taken into account additional factors that I consider below in addressing the issues identified. Moreover, the default provisions under Order 9 Rule 15(1) of the National Court Rules should only be enforced in the last resort and where it is clear that the party in default really intends not to comply with the notice for discovery: Rural Development Bank v Laka (2007) SC897.

20. In deciding how to exercise my discretion, I must have regard to all the circumstances of the case including the following factors:

1. Forewarning in writing;
2. The length of default;
3. Reasonable explanation given for the delay;
4. Conduct of the parties and their lawyers;
5. Prejudice; and
6. Interests of justice.
   

21. These factors are by no means exhaustive and that all the relevant circumstances are required to be taken into account, including the Court’s straining, consistently with the interests of justice, to avoid taking the step of denying the defendant his day in Court.

22. In considering these factors, I make the following findings.

23. Forewarning in writing – Since the case of Mapmakers Pty Ltd v Broken Hill Proprietary Company Ltd (1987) PNGLR 78 which formulated the principle of forewarning lawyers on the record for the opposing side where a notice of intention to defend has been filed before applying for default judgment, the Courts have expressed the view that the practice of forewarning is a good one and should apply to other aspects of civil litigation and is a relevant factor to be considered when the exercise of the Court’s discretion is required: PNG Water Board v Gabriel M. Kama (2005) SC821, Island Helicopter Services Ltd v Wilson Sagati (2008) N3340, Hillary Singat v Commissioner of Police (2008) SC910, Anopari v Motor Vehicles Insurance Ltd (2009) N3697. There is no evidence of any forewarning in writing having been given by the plaintiff to the defendant that he intended to file an application under Order 9 Rule 15(1)(b) should the defendant fail to comply with the Notice of Discovery by a stated hour of a stated date. This is something that militates against the exercise of discretion.
    
24. The length of default - The defendant has not taken any issue about the service of the Notice of Discovery, but it is not clear as to when exactly the plaintiff served the Notice of Discovery on the defendant. No affidavit of service of the Notice of Discovery has been brought to my attention. The submissions of the parties do not assist either. In the circumstances and with no assistance from both parties, I will compute the length of default to commence from 3 August 2023 being 14 days after the date of filing of the Notice of Discovery on 19 July 2023 to the date of filing of the Cross-Motion on 13 September 2023. About six weeks have elapsed. A sufficient period of time has elapsed for the defendant to have complied with the Notice for Discovery. This favours the exercise of discretion in favour of the plaintiff.
    
25. Reasonable explanation given for the delay – The defendant has not provided any explanation, reasonable or otherwise for defaulting for about 6 weeks. This favours the exercise of discretion in favour of the plaintiff.
    
26. Conduct of the parties and their lawyers – Pleadings closed in August 2015. The Notice of Discovery has been filed and served about nine years after the close of pleadings. This is like a fishing expedition seeking discovery of documents relevant to the claim after so many years since the proceedings were commenced and various Court proceedings litigated in the District Court, National Court and the Supreme Court as the evidence before the Court shows. The plaintiff has not prosecuted the proceedings with due diligence. There is no evidence to show that the defendant’s conduct is contumacious. In addition, discovery involves the disclosure by a party of what relevant documents he has or has had in his possession custody or power, and he must disclose the existence of such documents by the filing and service of a List of Documents in Form 31 pursuant to Order 9 Rule 6 of the National Court Rules even those that the opposing party is not entitled to inspect. This is something that militates against the exercise of discretion.
    
27. Prejudice – The events that gave rise to these proceedings occurred in 2015 when ejectment proceedings were commenced by the defendant in the District Court and the grant of an eviction order by the District Court in 2015 (see pleadings). There is no evidence to show that the eviction order has been set aside on appeal or otherwise. There is clear public interest in the final determination of this litigation. This is something that militates against the exercise of discretion.
    
28. Interests of justice – It is in the interests justice that the substantive issues that emerge from the pleadings be tried given the background of this matter. This is something that militates against the exercise of discretion.
    
29. Taking into account all the relevant circumstances here, this is not an appropriate case to strike out the defendant’s Defence and enter judgment. I will refuse the relief sought.
    

Legal representation

30. The first alternative relief sought is that Mr. Murray should be ordered to cease acting for or from further representing the defendant as he has a conflict of interest. A litigant has a right to be represented in litigation by a lawyer of his or her choice. The right however, in my view, is not absolute as the Court has an inherent power and authority to refuse to permit a particular lawyer from appearing on behalf of a particular individual in a particular case. The objective is not just to protect the interests of the individual litigant, but even more importantly, to protect public confidence in the administration of justice. When the issue arises, in my view, the Court needs to balance three competing interests apart from a lawyer’s duty to the Court; first, the litigant’s right to legal representation of his or her own choice; second, the opposing party’s complaint about the lawyer; and third, the public interest in upholding and maintaining the highest standards of administration of justice.
    
31. The plaintiff has failed to point out to the Court any provision of the Lawyers Act 1986 as amended and or the Professional Conduct Rules 1989 that may have been breached by Mr. Murray or any case authority supporting his contention. A litigant should not be deprived of his or her choice of legal representation without good cause.
    
32. I have considered Section 10 of the Professional Conduct Rules which states:
    

“CONFLICT OF INTEREST

(1) Subject to the duty of a lawyer to the court, a lawyer shall give undivided fidelity to his client’s interests, unaffected by–

(a) any interest of the lawyer; or

(b) any interest of any other person; or

(c) the lawyer’s perception of the public interest.

(2) If a lawyer has any interest in a matter which–

(a) may conflict with; or

(b) is adverse to,

the interests of his client, he shall decline to represent or shall withdraw from representing that client.

(3) If a lawyer has or acquires any interest in a matter and he–

(a) wishes to accept; or

(b) has accepted,

instructions from a client, touching on that matter, he shall–

(a) decline to represent; or

(b) withdraw from representing,

that client, unless the client is fully informed in writing of the lawyer’s interest in the matter and the client voluntarily assents in writing to the lawyer acting or continuing to act on his behalf.

(4) A lawyer or a firm of lawyers shall not represent or continue to represent conflicting interests in litigation.

(5) A lawyer or a firm of lawyers shall only represent or continue to represent two or more parties in any matters, other than litigation if–

(a) to do so is not likely to prejudice the interests of the client; and

(b) the client is fully informed of the nature and implications of the conflict; and

(c) the client voluntarily assents in writing to the lawyer or firm of lawyers acting or continuing to act; and

(d) in the case of any town in which there are two or more firms of lawyers practising, the client has declined to place his instructions with another firm.

(6) A lawyer shall not give advice, other than the advice to secure the services of another lawyer, to a person who is not his client, where he knows the interests of that person are in conflict with or likely to be in conflict with the interests represented by him of his client.

(7) Where a lawyer has accepted instructions from two clients in a matter and a conflict develops between the interests of those clients, the lawyer shall immediately inform each of the clients that he has forthwith ceased to act for them and that they each must instruct other lawyers.

(8) Where–

(a) a lawyer has represented a client; or

(b) because of a lawyer’s association with a law firm he has had access to a client’s confidences,

that lawyer shall not thereafter use such information against that client’s interest or for the benefits of any other person.

(9) If Counsel forms the view that there is a conflict of interest between his client and his instructing lawyer, he shall advise that it would be in the client’s interest to instruct another lawyer and such advice shall be given either in writing to the lawyer or at a conference at which both the lawyer and the client are present.”

33. I do not see any conduct of Mr. Murray complained of by the plaintiff that falls within the scope of s.10.
    
34. I reiterate that a litigant has a right to be represented in litigation by a lawyer of his own choice. Similalrly, a lawyer has a right to choose the client whom he will work for or represent in a litigation.
    
35. Where a lawyer has reason to believe that he is or is likely to be a witness at trial, then he will have to decide whether to be counsel or witness as he cannot be both. That was clearly expressed by Brown J in Emas Estate Development Pty Ltd v John Mea & Ors (1993) PNGLR 215 at 224 where Mr. Karigu, lawyer for the First Respondent, John Mea, gave evidence by way of an affidavit for the First Respondent at trial of the judicial review proceedings. In following R v Secretary of State for India [1941] 2 KB 169, His Honour said:

“The appropriate role of counsel as advocate does not include that of witness. Mr Karingu's affidavit relates to issues which go to the very crux of the judicial review. From the extract above he has purported to prove subsequent or subsisting interests in the subject land. He does not mention the fact that a new lease had been issued affecting the land. As well, he pleads some alleged grievance by an unsuccessful tenderer, Mr Leo Minjan, in support of the alleged fact that his client, Mr Mea's, lease had been injustly forfeited.

In this case, Mr Karingu has given evidence of material facts. The judicial reviewing authority, Los J, is faced with hearsay, and it cannot be tested by cross examination. It is not a mere matter of ethics. There should be a rule that counsel may not give evidence. A lawyer may be counsel in a case but cannot be both counsel and witness (see R v Secretary of State for India [1941] 2 KB 169). Judges should not decide on hearsay statements of counsel. The Emas company had not at any time prior to 31 July 1992, been informed of or served with documents pertaining to the proceedings brought by John Mea to set aside the decision to forfeit his interest in the said property, a decision made by the Lands Department.”

36. Section 15 (Court Proceedings) sub-sections (14), (15) and (16) of the Professional Conduct Rules are also relevant and they state:

“(14) A lawyer shall not accept instructions in a case in which he has reason to believe that he is or is likely to be a witness.

(15) A lawyer shall withdraw from representing a client if–

(a) it becomes apparent to him that he is or is likely to be a witness on a material question of fact; and

(b) he can withdraw without jeopardizing his client’s interests.

(16) Where a lawyer–

(a) does not accept instructions under Subsection (14); or

(b) withdraws from representing a client under Subsection (15),

another lawyer in the same firm as that lawyer may accept the instructions of the client provided that the conduct of the firm or a lawyer in the firm is not likely to become a material issue in the case.”

37. What underpins ss.10 and 15(14), (15) and (16) in my view is the avoidance of conflict of interest in order to ensure that public confidence in the administration of justice is maintained.
    
38. I have also considered the following cases which in my view are persuasive and applicable to the circumstances of this case.
    
39. In a decision of the Full Court of the Ontario Divisional Court in Everingham v Ontario (1992) 88 DLR (4th) 755 at 761-762, the Court said:
    

"“It is within the inherent jurisdiction of a superior court to deny the right of audience to counsel when the interests of justice so require by reason of conflict or otherwise. This power does not depend on the rules of professional conduct made by the legal profession and is not limited to cases where the rules are breached.

The issue is here is not whether or not the rule was breached, or whether the solicitor worked for the government. Nor is it solely whether the patient lost confidence in the process. The issue is whether the fair minded reasonably informed member of the public would conclude that the proper administration required the removal of the solicitor.... The public interest in the administration of justice requires an unqualified perception of its fairness in the eyes of the general public... The goal is not just to protect the interests of the individual litigant but even more importantly to protect public confidence in the administration of justice...”

40. In Black v Taylor [1993] 3 NZLR 403, a decision of the Court of Appeal of New Zealand at 412, Richardson J concluded:
    

“I respectfully with the approach of the Ontario Court. Disqualification will ordinarily be the appropriate remedy where the integrity of the judicial process would be impaired by counsel’s adversarial representation of one party against the other. The decision to disqualify is not dependent on any finding of culpable conduct on the lawyer’s part. Disqualification is not imposed as a punishment for misconduct. Rather it is a protection for the parties and for the wider interests of justice. The legitimacy of judicial decisions depends in large part on the observance of the standards of procedural justice. Where the integrity of the judicial process is perceived to be at risk from the proposed or continuing representation by counsel on behalf of one party, disqualification is the obvious and in some cases the only effective remedy although considerations of delay, inconvenience and expense arising from a change in representation may be important in determining in particular cases whether the interests of justice truly demand disqualification.”

41. In Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446, the Supreme Court of Victoria per Mandie J adopted the statements of principle discussed in Black v Taylor [1993] 3 NZLR 403 including the approach of the Ontario Court in Everingham v Ontario (1992) 88 DLR (4th) 755 and went on to state:
    

“In my view it cannot be doubted that this court likewise has an inherent jurisdiction to ensure the due administration of justice and to protect the integrity of the judicial process and as part of that jurisdiction, in an appropriate case, to prevent a member of counsel appearing for a particular party in order that justice should not only be done but manifestly and undoubtedly be seen to be done. The objective test to be applied in the context of this case is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required that counsel be so prevented from acting, at all times giving due weight to the public interest that a litigant should not be deprived of his or her choice of counsel without good cause.“

42. In Accent Management Ltd v Commission of Inland Revenue [2013] NZCA 155 at [32], the New Zealand Court of Appeal said:
    

“The threshold for removal is a high one, requiring something extraordinary. The Court should guard against allowing removal applications to be used as a tactical weapon to disadvantage the opposing party.”

43. In Geveran Trading Co. Ltd v Skjevesland [2002] EWCA Civ 1567; [2003] 1 WLR 912, the Court said:
    

“A judge should not too readily accede to an application by a party to remove the advocate for the other party. It is obvious that such an objection can be used for purely tactical reasons and will inevitably cause inconvenience and delay in the proceedings.”

44. I would respectfully adopt the above-mentioned statements of principle. In considering and applying these statements of principle, I find that the plaintiff has failed to persuade the Court to exercise its inherent power in his favour. The relief sought has no merit; it is baseless and is refused.
    

Order for discovery

45. As to the second alternative relief, taking into account all the circumstances of this case, I am minded to grant the relief sought. The defendant shall give discovery in accordance with Order 9 Division 1 of the National Court Rules within 14 days from the date of this ruling.
    

Other submissions

46. Given the above, it is not necessary to consider the other submissions of counsel.
    

ORDER

47. I make the following orders:
    
    1. The defendant’s notice of motion dated 19 August 2023 and filed on 22 August 2023 is dismissed.
    2. The plaintiff’s application to strike out the defendant’s defence filed on 16 July 2015 and enter judgment in favour of the plaintiff is refused.
    3. The plaintiff’s application for the Court to order the defendant’s counsel to cease acting for the defendant for alleged conflict of interest is refused.
    4. The defendant shall give discovery in accordance with Order 9 Division 1 of the National Court Rules within 14 days from the date of this ruling.
    5. Each party shall bear their own costs of and incidental to the defendant’s notice of motion dated 19 August 2023 and filed on 22 August 2023 and the plaintiff’s cross-motion dated and filed on 13 September 2023.
    6. Time is abridged.
       

Ruling and orders accordingly.

_____________________________________________________________
Asia Pacific Lawyers: Lawyers for the Plaintiff
Murray & Associates: Lawyers for the Defendant