|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA NO. 91 OF 2011
PAUL PARAKA TRADING AS PAUL PARAKA LAWYERS
Appellant
AND
PUBLIC OFFICER'S SUPERANNUATION FUND BOARD
First Respondent
AND
NAMBAWAN SUPER LIMITED
Second Respondent
Waigani: Sakora J; Gabi & Sawong JJ
2014: 29th August 2012, 30th May
Counsel:
M. Kombri, for the Appellant
E. Anderson & J. Holingu, for the Respondents
Cases Cited:
Papua New Guinea Cases
Comrade Trustee Services Ltd v Arnold Douglas (2011) SC 1105
Deylyn David v The State (2006) SC 881,
Ombudsman Commission v Peter Yama (2004) SC 747
Peter Yama & Agatha Yama v PNGBC Ltd (2008) SC922.
Rataba v Gari Baki (2010) SC1014,
Sir Arnold Amet v Peter Charles Yama (2010) SC 1064
Toulik v Andy Kuek (2006) SC 976,
Rex Paki vs. MVIL (2010) SC1015
Overseas Cases
Prince Jefri Bolkiah v KPMG (A Firm) [1998] UKHL 52; [1999] 2 AC 222
"It is incumbent on a plaintiff who seeks to restrain his former solicitor from acting in a matter for another client to establish (i) that the solicitor is in possession of information which is confidential to him and to the disclosure of which he has not consented and (ii) that the information is or may be relevant to the new matter in which the interest of the other client is or may be adverse to his own."
10. SAWONG, J.: The appellant appeals from the whole of the judgment of the National Court (Salika DCJ) given on 7th July 2011 in proceeding WS No.1165 of 2001.
11. The appeal lies without leave as it involves questions of law or questions of both mixed fact and law pursuant to s.14(1)(a)(b) of the Supreme Court Act 1975.
Background
12. It is necessary to set out in summary a background of the original National Court proceedings. This matter started about eleven years ago. It has a long history of litigation in both the National and Supreme Courts and the matter is yet to reach finality. This is the third time the appellant has appealed to the Supreme Court. The previous appeals were in SCA 123 of 2003 and SCA 16 of 2005. Both appeals were dismissed by the Supreme Courts.
13. In essence the National Court proceedings were commenced by the respondents to recover money totalling over K2.2 million that the appellant received on behalf of the respondents when acting as it's lawyer and converted to his own use without disclosing to the respondent either the collection of the money or his conversion. When the appellant was acting as lawyer for the respondent his engagement was through a written agreement. The appellant cross-claimed in a National Court proceeding asserting an entitlement for outstanding fees and self calculated "termination fee" under the written agreement.
14. On 12 December 2012 the National Court entered summary judgment in favour of the respondent and ordered the appellant to pay over K2.2 million to the respondent with interest and costs.
15. In relation to the cross-claim by appellant, the National Court made two additional orders to the effect that the appellant's bills and files be taxed and audited. The appellant appealed in SCA123 of 2003 against the decision of the National Court and the Supreme Court dismissed the appeal on 8th April 2005.
16. On 14th April 2004 the appellant paid the first respondent the full amount of the judgment debts of K2,248,620.00 together with interest of K745, 265.32 and cost of K70,000.00 making a total of K3,063,886.32.
17. On 28th April 2004, the appellant filed a Notice of Motion in the National Court seeking:
18. To restrain the Statutory Committee of the Law Society from hearing the complaint against the appellant pending the determination of the cross- claim in this proceedings.
19. That orders made by Kandakasi, J on 19th December 2002 that the defendants bill of costs be taxed and audited be set aside.
20. That all the orders of Kandakasi, J on 19th December 2002 [ie both the judgment in favour of the POSF and the orders that the defendants bill of cost be taxed and audited] by stayed pending the determination of the cross claim.
21. That the orders of Kandakasi, J of 19th December 2002 requiring the defendants bill of cost be taxed and audited, be stayed pending the determination of the cross claim.
General directions as to the future conduct of the action.
22. This motion was heard by Her Honour Davani, J who delivered a written decision on 8th February 2005 dismissing the notice of motion, filed by the appellant and also finding that the cross claim had been dismissed by Kandakasi J. In finding that the cross claim had been dismissed by Kandakasi J, Her Honour ordered that the files be delivered to the taxing officer and that the files be audited and taxed as per the orders of Kandakasi, J.
23. On 24th March 2005 (after hearing submissions from both parties as to the manner and form of compliance with orders of Kandakasi J, and herself) Her Honour gave various directions as to the manner and form of auditing and taxation as envisaged by the various orders.
24. The appellant appealed against the ruling of Justice Davani in SCA 16 of 2005. There was no appeal lodged against the consequential directions given on the 24th of March 2005. On 5th May 2005 the appellant obtained leave to appeal the orders of 8th February 2005 and also obtained another stay order preventing further taxing and auditing of his file, pending hearing and determination of the appeal. On 18th September 2007 the Supreme Court dismissed the appeal. It made the following orders:
25. The appeal is dismissed with costs.
26. Orders 2 & 3 of 19th December, 2002 in the matter between POSF and Paul Paraka trading as Paul Paraka lawyers in WS 1165 of 2001 shall take effect immediately and the appellant is hereby directed to comply with those orders within seven days from the date of this order.
27. All injunctive orders against the second respondent made on 5th May 2005 are hereby dissolved and set aside.
28. The second respondent is hereby directed to proceed with it's hearing against the appellant within fourteen days from the date of this order.
29. Solicitor Client cost is awarded in favour of the first and second respondents in respect of all proceedings in connection with this matter before the National Court and the Supreme Court to be paid by the appellant, if not agreed then to be taxed.
30. Cost of overseas Counsel for the first respondent is certified.
31. When the Supreme Court dismissed the appeal in SCA No. 16 of 2005, the Court made specific orders that the auditing and taxation of the POSF files take place within seven days. Despite these orders the taxing and auditing of the files did not progress within the time frame ordered. This then led to the filing of the three motions before the National Court which are now the subject of this appeal. Even though the National Court on two occasions and once by the Supreme Court made orders for the auditing and taxation of the appellant's files in relation to the first respondent, the appellant again sought to stop the auditing and taxation.
32. This now leads me to the present appeal. The present appeal's genesis arises from two Notices of Motion by the Appellant. These were filed on 16th May 2008 and 03rd October 2009. The respondent filed a cross motion on 19th September 2008.
33. In the motion of 16th May 2008 the appellant sought the following reliefs:
34. In response to the issues raised by the appellant, in particular, the orders sought in paragraphs 2 and 4, the first respondent filed a cross motion on the 19th of September 2008. The motion was filed to tidy up the questions of the naming of the plaintiff/first defendant plus costs. In its motion the first respondent sought the following reliefs:-
35. On 3rd of October 2008, the Appellant filed a further Notice of Motion in which he sought the following reliefs:
36. The motion of the 3rd of October 2008 was simply to ask the Court to make decisions about the orders sought in two existing motions and to stay everything else until the issue of disqualification raised in paragraph 3 of the appellant's Notice of Motion of the 16th of May 2008 was dealt with.
37. In summary the reliefs sought in the Notices of Motion of the Appellant were for;
a) Disqualification of Mr Erik Anderson personally and/or his firm Gadens from acting as lawyers for the respondent. (see paragraphs 3 of Notice of Motion of 16th May 2008, and paragraph 1 of the Appellants Notice of Motion of 3rd October 2008).
b) Standing of POSFB (see paragraph 2 of Appellants Notice of Motion of 16th May 2008 and paragraphs 1 and 2 of Respondents Notice of Motion of 19th September 2008).
c) Stay of certain National Court Orders (see paragraph 4 of Appellants Notice of Motion of 16th May 2008 and paragraph 2,3 and 4 of Appellants Notice of Motion of 3rd October 2008).
d) National Court being functus officious (see paragraph 1 of Appellants Notice of Motion of 16th May 2008).
38. On 22nd April 2010 the appellant's motion of 16th May 2008 and 3rd October 2008 and the first respondent's notice of motion of 19th September 2008 came before the learned trial Judge. On that date there were submissions and arguments raised and discussions took place between the learned trial Judge and the counsels representing each of the parties as to which motion should be heard first. Eventually, the trial Judge ruled that all three motions be heard together and directed that the appellant's motion of 16th of May 2008 be heard together with the other motions. Counsels for both parties made detailed written and oral submissions to the learned trial Judge.
39. The trial Judge took time to consider the arguments. Eventually on 7 July 2011, the trial Judge ruled in favour of the respondents in relation to their motion for change of name of parties and dismissed the appellant's motions. The final Orders of the Court were in the following terms:
"1. The name of the plaintiff, Public Officers Superannuation Fund Board ("POSF"), be deemed or taken to have changed to POSF Limited on 18th December 2002 to 20 May 2007 and be deemed or taken to have changed from POSF limited to Nambawan Super Limited from 21st May 2007 to present.
2. All things done in these proceedings and other related proceedings, including orders of the National and Supreme Courts have effect, in relation to POSF Limited and Nambawan Super Limited as they have effect on POSFB.
40. The present notice of appeal relates to those rulings and orders.
Grounds of Appeal
41. The notice of appeal sets out three grounds of appeal. These are:-
42. At this juncture, I deal with ground three of the notice of appeal. This ground was abandoned at the hearing and so it is dismissed.
43. I consider that there are three issues to resolve. These are:
1. Whether the trial Judges erred in not considering the issues and submissions put before him arising out of the three different notices of motions.
2. Whether the trial Judge erred in not giving any reasons for his decisions.
44. The appellant's submissions attack the trial Judge's decision on two basis. First, it is submitted that the trial Judge committed errors of law in not giving reasons for the decisions and orders he made.
45. Secondly, it is submitted that the trial Judge acted unfairly in the procedure he adopted in the hearing of the three motions.
46. I propose to deal with the issue of procedural unfairness first.
Procedural Unfairness
47. The Appellant submits that it was wrong for the trial Judge to hear the three motions together at the same time in that the appellants principal relief sought was for the disqualification of the respondent's lawyers being a preliminary jurisdictional issue. It is submitted before us that the trial Judge ought to have heard and determined this preliminary application first. It is further submitted that after the trial Judge had indicated to the appellant's counsel that he would deal with the issue of disqualification first, and after hearing submissions on that issue, the trial Judge was wrong in then directing the appellants counsel to argue the other issues raised in the appellants Notices of Motions. This, it was submitted was unfair.
48. Here the appellant submits that the learned trial Judge erred in procedural unfairness when all three notices of motions were heard together.
49. As to this issue, the respondent submits that the trial Judge did not err in law in the way he dealt with the motions together.
50. It is submitted that as the appellant had formally abandoned the reliefs sought out paragraphs 1, 2 and 5 of the Notice of Motion of 16th May 2008, meant that the major substantive relief sought in that motion of 16th May 2008 was concluded at that point.
51. Further, it was submitted that the abandonment of the orders sought in paragraph 2 (order that POSFB didn't exist) meant that the consequential relief sought in paragraph 4 of the Motion of 16th May (that a stay of execution should be given because POSFB didn't exist) must necessarily fall away.
52. During his submissions, counsel for the appellant informed the Court that the reliefs sought in paragraphs 1, 2 & 5 of the Notice of Motion of 16th May 2008 were abandoned and that he would only proceed with paragraph 3 of that notice of motion. As to paragraph 4 of that motion, he said that, that could be dealt with later.
53. The transcript of the proceedings commencing at pages 583-590 Appeal Book shows very clearly how the parties wanted the motions to be dealt with. The parties agreed and the learned trial Judge accepted that the Court would deal with the motion of appellant filed on 16th May 2008 and 08th October 2008 first, followed by motion by the respondents. Following that, the appellant's counsel commenced his submissions relating to the reliefs sought in the two notices of motions (see p587 & 588 of the Appeal Book). The Court then ruled that the Court would hear the motion of 16th May 2008 first (see p288 of the Appeal Book). Counsel for the appellant then proceeded to deal with that motion (see p.588 of the Appeal Book).
54. The transcript shows that at the hearing of notices of motion, the appellant's counsel abandoned the reliefs sought in paragraphs 1, 2 and 5 of the appellant's Notice of Motion of 16th May 2008. As the Appellant abandoned these grounds, it rendered the relief sought in paragraph 4 of the said Notice of Motion nugatory and meaningless.
55. As can be seen from the above, the submissions that the trial Judge erred, in hearing the three motions together is without any merit whatsoever. The parties agreed and the Court accepted that the motion by the appellant of 16th May 2008 and 08th October 2008 were to be heard first, followed by the motion by the respondents.
56. In my view, the procedure adopted, albeit after a somewhat lengthy discussion and submissions, was not unfair by any stretch of
imagination. This was a discretionary matter for the trial Judge, and in my view the appellant has not demonstrated how the trial
Judge had exercised that discretion wrongly.
57. In the circumstances, I would dismiss this issue as being frivolous and without any merit what so ever.
58. I now turn to issue of the learned trial Judge's failure to give reasons for his decision.
Failure to Give Reasons
59. Grounds 1 and 2 of the grounds of Appeal relate to the issue of the learned trial Judge failing to give reasons for dismissing the appellants two Notices of Motions and the reliefs claimed in those motions.
60. It is noted that at the trial, both counsels made substantial and detailed written and oral submission on these issues.
61. The appellant submits that the trial Judge committed very grave errors of law when he gave very little or no reasons for arriving at the decision to dismiss the Appellants motions. It is submitted that it is trite law that a judge should give reasons based on law and the submissions put before him. The Appellant relies on this Courts decisions in Deylyn David v The State (2006) SC 881, Sir Arnold Amet v Peter Charles Yama (2010) SC 1064 and other decisions of both the Supreme Court and the National Court.
62. It is further submitted that the requirement for a trial Judge or for that matter a Court to give reasons is a very fundamental one and if none or inadequate reasons are given, then this would amount to a grave error of law. Here it is submitted that despite the detailed written and oral submissions made to the learned trial Judge, the learned trial Judge gave inadequate or no reasons on the issue of disqualification and the status of POSFB, such that this Court should allow the appeal.
63. The Respondent supports the appellants contention that the trial Judge failed to rule or give any reasons on the number of issue raised at the hearing of the motions.
64. In my view, the submissions maybe summarised in the following way. First the trial Judge failed to give reasons relating to the abandoned items, namely items 1, 2, 4 and 5 of the Notice of Motion of 16th May 2008.
65. Secondly he failed to give reasons on the application for costs by the respondents on the abandoned reliefs of the Notice of Motion of 16th May 2008.
66. Finally he failed to give reasons on issues of disqualification of Mr Anderson or his firm.
67. The Supreme Court has on number of occasions stated that a Court or a Judge must give reasons for the decisions or orders made or given. Failure to give reasons is fatal to the decision, in that such a decision maybe set aside or quashed. I can do no better than to adopt the principles set out in Deylyn David v The State (2006) SC 881, where the Court said:
"Failure to give reasons
126. The reasons given by the trial judge for drawing the conclusion that the appellant was guilty of wilful murder were, with respect, very scanty. Of the seven-page judgment on verdict only a little over one page was devoted to assessment of the evidence and the limited findings of fact made. Giving reasons for believing one version of events rather than another is an important part of the judicial decision making process. By giving reasons a Judge makes himself or herself accountable. If no reasons are given or they are expressed in a vague or scanty way, it is reasonably to be inferred that there are no good reasons to give. This is a principle that has been applied increasingly in judicial review of administrative action. We believe the same principle must apply when a higher court is hearing a review or appeal of a lower court's decision.
127. It is one thing for a trial judge to say that he or she has considered all the evidence. It is another thing to actually do it; and another still to disclose through a reasoned judgment (whether oral or written or both) that it has actually been done. In the present case, we consider, with respect, that this Honour has failed to disclose through a clearly expressed process of reasoning why he drew the conclusions he did. The judgment was infected by error in that regard as his Honour did not say why he considered that the circumstantial evidence led only to one reasonable conclusion – guilt."
68. In Sir Arnold Amet v Peter Charles Yama, the Supreme Court made similar remarks and the importance of a trial Judge giving proper and adequate reasons for the decision arrived at. The Court said:
"8. In a comprehensive and lengthy oral judgment, the trial judge gave several reasons for upholding the petition by Mr. Yama. His Honour also indicted on various aspects of the judgment, his full reasons would follow in writing. At the time of hearing, a written judgment had not been made available. It is also not part of the Review Book. Nor was it an issue at the hearing.
It goes without saying; the appellant or applicant in a judicial review application is entitled to the trial Judge's reasons for decision. And the trial Judge has a duty to provide reasons for decision. The duty to give reasons is a necessary part of the duty of a public official to accord natural justice to persons affected by the decisions of those public officials. That duty is essential to the observance of the rules of natural justice as held in, Ombudsman Commission v Peter Yama (2004) SC 747 (Injia DCJ (as he then was), Sakora & Sawong JJ)."
69. I would adopt and apply the principles set out in the above cases to the facts and circumstances of this case.
70. It is clear from the written judgment of the trial Judge that His Honour did not at anywhere in his decision give any reasons as to why he dismissed the appellants submissions on the issues that were raised before him. He does not even, discuss those issues. Parties had spent considerable time and made detailed submissions on various issues, yet His Honour did not give any reasons whatsoever on these aspects.
71. He also does not give any reasons or make any ruling on the application for costs by the respondent in respect of the appellant abandoning paragraphs 1, 2 and 5 of the motion of 16th May 2008.
72. I find that the trial Judge did not given any reasons for dismissing the various issues raised by the appellant in his notice of motions. It is clear that he committed errors of law in not giving any reasons for the decision he made. I would therefore allow the appeal on grounds 1 and 2 of the Notice of Appeal.
73. Having allowed the Appeal what are the appropriate orders this Court should make, in the circumstances of this case?
74. The appellant in his Notice of Appeal sought the following Orders:
2. That the merits of the appellants motion filed in the National Court dated 16th May 2008 and 3rd October 2008 respectively be heard and determined by a different trial Judge together with the respondents motion filed on 19th September 2008.
75. The appellant is in effect seeking orders to quash the decision of the trial Judge of 7th July 2011 and having the motions remitted back to the National Court for a rehearing by a different Judge.
76. The respondents submit that the orders sought by the appellant will not do justice in all the circumstance of this case. It is submitted that to remit the matter back to the National Court would further delay and obfuscate the auditing and taxation process and will prolong the litigation in this matter.
77. Consequently, the respondents submit in relation to the term 4 of the appellants Notice of Motion of 16th May 2008, this Court should not quash that.
78. As to term 3 of the Notice of Motion of 16th May 2008, it is submitted this Court should exercise its power pursuant to S155(2) and 155(4) of the Constitution, Sections 6 and Section 16 of the Supreme Act. It is submitted as the trial Judge did not give any reasons on this aspect, this Court should exercise its inherent powers to review all the evidence and submissions made by the parties and give a judgement on that application.
79. The respondent also submits that this Court should also make a ruling on the issue of costs in relation to the application by the respondent on the appellant's abandonment of terms 1, 2 and 5 of the motion filed on 16th May 2008.
80. The respondent submits that those are several options open to the Court pursuant to the Sections 155 (2) and 155 (4) of the Constitution and sections 6 and 16 of the Supreme Court Act.
81. It is submitted pursuant to those provisions, and given the circumstances of this case, the Court has three options available to it;
82. The respondent urges the Court not to order a new trial nor should the Court remit the matter for further hearing by the National Court.
83. The respondent submits that the trial failed to rule on costs in relation to the appellant's abandonment of terms 1, 2 & 5 of the motion of 16th May 2008. Further the trial Judge did not make any ruling or give reasons in respect of term 3 of the said motion.
84. Accordingly it is submitted that these are mistakes that can be easily corrected by this Court as the applications before the trial Judge were not complex. Further, it is submitted that the evidence and the submissions before this Court are not so complex and this Court should consider those and make the appropriate orders. The Court was also urged to do so, as this would avoid multiplicity of proceedings and bring finality to this proceeding which has been going on for over ten years or more.
85. The respondent relies on the following authorities; CL Toulik v Andy Kuek (2006) SC 976, Rataba v Gari Baki (2010) SC1014, Comrade Trustee Services Ltd v Arnold Douglas (2011) SC 1105.
Powers of the Court
86. The powers of this Court stem from the relevant provisions of the Constitution and the Supreme Court Act.
87. The primary powers of this Court are set out in Sections 6 & 16 of the Supreme Court Act. Section 6 reads:
"1) An appeal to the Supreme Court shall be by way of rehearing on the evidence given in the Court the decision of which is appealed against, subject to the right of the Supreme Court-
a) to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it; and
b) to draw inferences of fact
2. For the purposes of hearing and determining an appeal, the Supreme Court has all the powers, authority and jurisdiction of a Judge exercising the jurisdiction of the National Court."
88. Section 16 of the Supreme Court Act states:
"(On the hearing of an appeal, the Supreme Court shall inquire into the matter and may-
a) adjourn the hearing from time to time; or
b) affirm, reverse or modify the judgment; or
c) give such judgment as to have been given in the first instance; or
d) remit the case in whole or in part for further hearing or
e) order a new trial.
89. I accept the submission of the respondent, for a number of reasons. First, pursuant to the provisions of Section 6 (1) of the Supreme Court Act, an appeal to the Supreme Court is by way of "rehearing on the evidence given in the Court the decision of which is appealed against"........To my mind this provision expressly authorises this Court to rehear the matter on the evidence that was given in the Court below.
90. This power is strengthened by s.6 (2) of the Act.
91. In addition, in my view s.16 of the Act clarifies and provides the necessary powers of this Court. Those powers are wide in nature so as to enable a Supreme Court to consider and determine what is or should be an appropriate order to make in the circumstances of a particular case.
92. Furthermore to remit the matter to the National Court would further delay the finalisation of these proceedings. It would also frustrate the decisions of the previous Supreme Court decisions from being acted upon. Moreover, such an order would create further multiplicity of proceedings.
93. In the present case, the evidence and the submissions before the trial Court are now before this Court. In my view, this Court can consider and make appropriate orders pursuant to its powers under Section 16 (c) of the Supreme Court Act.
94. Further, parties have made detailed submissions on the evidence and the law on the issue that were before the Court below are now before us.
95. Accordingly, I propose to deal with the issues pursuant to my powers under s.16(c) of the Supreme Court Act.
96. As to giving of reasons in respect of paragraphs 1, 2 & 5 of the Notice of Motion of 16th May 2008, in my view, the trial Judge was not obliged to give any reasons in relation to the grounds or reliefs that were abandoned by the appellant. As the appellant abandoned the grounds set out in paragraphs 1, 2 & 5 of the Notice of Motion of 16th May 2008, it was unnecessary to give any reasons relating to those paragraphs. As to paragraph 4 of the said Notice of Motion, again that relief was a consequential relief based on paragraph 2 of that said Motion (which had been abandoned), the relief claimed in it (paragraph 4) was rendered nugatory and meaningless. It follows that it was unnecessary for the trial judge to make a ruling and to give any reasons in respect of these items, (ie paragraphs 1, 2, 4 and 5 of the Notice of Motion of 16th May 2008).
97. As to issue of costs relating to the appellants abandonment of terms 1, 2 & 5 of the Notice of Motion of 16th May 2008, it is clear to me that the appellant must pay for the respondents costs on an indemnity basis. This is so because, the respondent was put to considerable time, effort and expenses in preparing a Notice of Motion to counter the reliefs that were sought in the abandoned terms. Considerable time and expenses were incurred in preparing submissions, only to find that on the date of the hearing, the appellant abandoned those terms.
98. As to the issue of disqualification, the appellant submits before this Court that Mr Anderson and his firm were placed in a conflict of interest situation, such that they should not represent the respondents. It was submitted in the Court below and maintained before us that there is a conflict of interest because:
c) Mr Anderson was the principal lawyer and his lawyers were in the proceedings in the Court below.
99. The appellant relies on s.10 of Professional Conduct Rules. The appellant has not relied on any authorities. Section 10 of the Professional Conduct Rules reads:
"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."
100. This rule was considered by the Supreme Court in Peter Yama & Agatha Yama v PNGBC Ltd (2008) SC922. The brief facts is that by a Writ of Summons, PNGBC instituted proceedings against the appellants (Guarantors) seeking relief, amongst other things, for failure to comply with notices of demand that had been served upon them in their capacities as guarantors of companies associated with Mr Peter Yama. Justice Davani had entered default judgement against the guarantors with damages to be assessed. The damages were later assessed. The Guarantors appealed against the decision for default judgment but not against the assessment of damages. The respondent applied to the Supreme Court to dismiss the appeal for want of prosecution. The Guarantors also cross applied to have the application by PNGBC to be dismissed pursuant to s.8 (e) of the Supreme Court. The Guarantors also applied to the Supreme Court to disqualify or restrain Mr Anderson or Garden's Lawyers from representing or acting for PNGBC.
101. After setting out some evidentiary matters and s.10 of the Professional Conduct Rules, the Court said at p5:
"It is apparent that the scheme of Rule 10 is to regulate the relationship between a lawyer and his client. Section 1 Professional Conduct Rules inter alia, defines a client as "any person from whom a person accepts instruction". There is no evidence that Gadens have ever accepted instructions from the Guarantors. In this instance the client of Gadens is PNGBC, not the Guarantors. Gadens and its lawyers only have a duty to their client PNGBC, subject to the lawyers' duty to the court, to give "undivided fidelity' to their client's interests. They do not owe a similar duty to the Guarantors. Rule 10 is inter alia, for the protection of a client. The Guarantors are not clients of Andersen/Gadens and they are therefore unable to avail themselves of the provisions of Rule 10 as they contend".
102. I would adopt and apply the above principles as my own in this case. In the present case, there is no evidence that the appellant was a client of Mr Andersen or his law firm Gadens. There is no evidence of Mr Andersen or Gadens ever receiving instructions from the appellant. What is clear is that the client of Gadens or Mr Andersen were the respondents, not Paul Paraka. Mr Andersen and Gadens only have a duty to their client Nambawan Super Limited, subject to the lawyers duty to the Court to give "undivided" fidelity to their client's interest. They do not owe a similar duty to Paul Paraka or Paul Paraka Lawyers. Rule 10 is, inter alia, for the protection of a client. Neither Paul Paraka nor Paul Paraka Lawyers are clients of Andersen/Gadens and they are therefore unable to avail themselves of the provisions of Rule 10 as they contend.
103. For these reasons, I would allow the appeal in part and make appropriate orders pursuant to section 16 (c) of the Supreme Court Act.
104. Costs on an indemnity basis is a discretionary matter. Accordingly it must be decided on proper basis and on proper principles. In this case, the overall circumstances coming from the National Court to this Court has been somewhat of a tortuous path. In the National Court, the Appellant abandoned several reliefs it claimed in its Notice of Motion of 16th May 2008. Since these were abandoned there were no need to appeal against those aspects. The Notice of Appeal was so general that it covered those aspects, when these aspects were unnecessary.
105. As to the issue of disqualification, again this was an unnecessary and unmeritorious ground to pursue both at the National Court and before us. Given the reasons I have given in the main part of my judgment, the Appellant has succeeded in parts of its appeal. However at the end of it all, it is quite clear to me that the appellant pursued an unmeritorious claim.
106. Accordingly, in my view the appeal should be dismissed and the appellant shall pay the respondents costs in the National Court and in this Appeal on an indemnity basis.
__________________________________________________________
Paul Paraka Lawyers: Lawyers for the Appellant
Gadens Lawyers: Lawyers for the Respondent
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGSC/2014/35.html