Independent State of Papua New Guinea v Kunai [2020] PGSC 117; SC2029 (13 November 2020)

SC2029

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 163 OF 2018

BETWEEN
INDENPENDANT STATE OF PAPUA NEW GUINEA
First Appellant

AND
PNG FOREST AUTHORITY
Second Appellant

AND
JACOB POPONA AS PUBLIC CURATOR OF PNG
Third Appellant

AND
DAIRI VELE AS SECRETARY FOR DEPARTMENT OF TREASURY
Fourth Appellant

AND
DR. KEN NGANGAN AS SECRETARY FOR FINANCE
Fifth Appellant

AND
FRANCIS KUNAI for himself and for all 8 Jimi TRPA Holders as beneficiaries
First Respondent

AND
KOMAP MAPULGEI BUSINESS GROUP (Inc)
Second Respondent

AND
KELLY KALIT FOR HIMSELF AND FOR ALL Waripa TRPA owners and beneficiaries
Third Respondent

Waigani: Makail J
2019: 5^th & 13^th November

SUPREME COURT – Practice & Procedure – Application to join – Addition of party – Interested party – Question of sufficient interest – Joinder necessary for resolution of all matters in controversy between the parties –Supreme Court Rules – Order 11, rule 11

PRACTICE & PROCEDURE – Class action – Representative action – Authority to represent – Lack of – “Common interest” litigation – “Opt-out” principle – National Court Rules – Order 5, rule 13(1)

PROFESSIONAL CONDUCT – Duty of counsel – Duty not to mislead Court – Duty to be courteous to Court – Conduct of counsel – Attempt to avoid revealing truth – Attempt to mislead Court –Unprofessional conduct – Reminder of duty to counsel – Professional Conduct Rules – Rules 15(2) and (4)

Cases Cited:

Philip Miriori & Anor v. Lawrence Daveona & Ors (2019) SC1847
PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126
Simon Mali v. The State (2002) SC690
Tigam Malewo v. Keith Faulkner (2009) SC960
Mark Philip v. Ken Tiliyago (2019) SC1783
Peter Bire v. Dr Philip Kereme & Ors (2016) N6328

Counsel:

Ms. I. Mugugia, for Appellants
Mr. J. Abone, for Respondents
Ms. K. Nugi, for Applicants (Interested Party)

RULING

13^th November, 2020

1. MAKAIL J: This is an application to join applicants Peter Kui Kumi and Jack Aunang as fourth and fifth respondents respectively pursuant to Order 11, rule 11 of the Supreme Court Rules.
Jurisdiction to add a Party

2. Rule 11 states:

“11. The court or a Judge may order that any person be added as a party to proceedings under these rules or that the proceedings be amended and may impose such conditions as appear just, and give all consequential directions.” (Underlining is mine).

3. Parties do not contest the power conferred on a single judge of the Supreme Court to order addition of a party under Rule 11 (supra).

4. In Philip Miriori & Anor v. Lawrence Daveona & Ors (2019) SC1847 the applicants applied to be added as respondents to an appeal to a single judge of the Supreme Court. The application was refused. They appealed to the full Court by way of an application under Order 11, rule 25 of the Supreme Court Rules.The Supreme Court constituted by three justices heard and dismissed the appeal. The applicants filed another application. This time, it was brought before the Supreme Court by way of fresh application. The Supreme Court held that the application was an abuse of the Court process. Having lost their right to be added as party, they were disentitled to apply to the Supreme Court and seek the same order that was refused by a single judge, especially where they had exhausted their right of appeal under Order 11, rule 25 of the Supreme Court Rules.

5. The present case differs from that case because there is no dispute that the first application for joinder filed on 20^th September 2019 that was listed before a single judge was dismissed for absence of counsel for the applicants at the date of hearing. It was in effect dismissed for want of prosecution and that left the question of joinder unresolved.

6. This being the case, the applicants are entitled to refile the application as they did. The real question is whether they are able to establish that they have sufficient interest and it is necessary that they be added to resolve all matters in controversy between the parties: PNG Deep Sea Fishing Ltd v. Luke Critten (2010) SC1126.

Sufficient Interest

7. The facts on which the applicants asserted establish that they have sufficient interest are these: the respondents brought a class action for beneficiaries in Jimi area in Jiwaka, Ruti in Western Highlands and Waripa in Enga Province. They are beneficiaries of Timber Rights Purchase Agreements with the then Territory of Papua New Guinea. The applicants asserted that they are also direct descendants of the persons who invested what was described as timber royalties in treasury bills via the then department of treasury facilitated by the then department of forestry to mature within a period of 10 years. These investments were made in 1967 but were never paid at date of maturity in 1977. The applicants asserted that just like the others, they are also beneficiaries of these investments.

8. After a trial on 4^th September 2018 the National Court constituted by Kandakasi J (as he then was) found the appellants liable and ordered them to pay some K86,000,000.00 in damages. Although they were not plaintiffs, by consent they were given leave to appear and be heard. At trial, they made submissions which were upheld by the trial judge and a higher award of damages was awarded to the respondents. Their counsel Ms Nugi argued that these factual matters demonstrated that the applicants have sufficient interest and their joinder and participation was necessary to resolve all matters in controversy between the parties.

9. As beneficiaries, they were given leave to appear and be heard by the judge at trial and they should not be treated differently in this appeal. They will be arguing that the principal respondent Mr Francis Kunai and Mr Rubin Kim for the second respondent did not have their authority to represent their interests.

10. In a class action or what is commonly referred to as representative action pursuant to Order 5, rule 13(1) of our National Court Rules such as this case, the question of authority to act or bind a party is fundamental. One way of determining the issue is to find out if the party is listed in the Schedule to the writ. To be listed as a plaintiff in the Schedule is prima facie evidence of not only giving authority to the lead plaintiff or what is called a class representative to commence proceeding but also as evidence of being one of the plaintiffs in the action and will e bound by the judgment of the Court. In recent times each and every plaintiff must give specific instructions evidenced in writing, to their lawyers to act for them and any person who commences proceedings and claims to represent other intended plaintiffs must produce an authority to the Court to show that he was authorised by them to file proceedings as a class representative: Simon Mali v. The State (2002) SC690; Tigam Malewo v. Keith Faulkner (2009) SC960 and Mark Philip v. Ken Tiliyago (2019) SC1783.

Professional Conduct of Lawyers

11. When I asked a direct question to Mr Abone of counsel for the respondents if the applicants were listed as one of the plaintiffs in Schedule A to the writ, he was quite difficult. He did not give me a direct answer to the pertinent question and after one or two attempts by me, he still did not answer it. Counsel attempted to explain that these two gentlemen were part of and were represented by their respective clans who have been listed in Schedule A to the writ. That is in no way an answer to the question put to counsel. Such conduct is unprofessional and uncalled for. It can be described as an attempt to avoid the truth and to mislead the Court. Counsel has a duty to not only assist the Court resolve the dispute but also present the true facts to enable the Court to arrive at a decision. Additionally, counsel has a duty not to mislead the Court as to the true facts of the case.

12. Rule 15(2) of the Professional Conduct Rules, 1989 states that:

“A lawyer shall not knowingly deceive or mislead the Court.......”.

13. Rule 15(4) states:

“A lawyer shall act with due courtesy to the Court before which he is appearing.......”.

14. I have experienced a number of counsel who have not been courteous and who avoid or evade answering questions I ask. One or two just can’t stop talking when I have heard their submissions. I find this group of counsel unhelpful and disrespectful. But I have allowed them to go for good reasons, I do and did not intend to punish counsel and get distracted from resolving the primary dispute that parties have brought to me to resolve. But not this time; I have had enough of this. I am now calling on counsel not to mislead but assist me to determine the issues and be courteous in the way they present their arguments. When I ask questions, I ask them for a reason and expect counsel to pay attention and answer them. If counsel is unable to answer them, say so. If the answer will be against the client’s case, say so. But do not avoid and evade the question. It does not help anyone.

15. The call I am making is not new or trivial. In Peter Bire v. Dr Philip Kereme & Ors (2016) N6328 Gavara-Nanu J was dealing with a judicial review of a Public Service Commission decision where Ms Eunice Mel of counsel referred to a National Court decision which did not support her clients’ (the defendants) case. Her honesty and ability to be forthright was applauded by his Honour. His Honour made some pertinent observations in relation to duty of counsel. He also referred to English and Australian case authorities that reinforced the rule that it is a duty of counsel to assist the Court by providing all relevant information even when the client’s case is not supported by the facts or law. I find his Honour’s observations pertinent and respectfully adopt them hereunder to reinforce what I have said:

“17. I applaud Ms Mel for bringing the above case to the attention of the Court because although the case does not fully support her line of argument, it is of great assistance to the Court in deciding whether the PSC had power to review the matter. In this regard, I consider it important and convenient that I make some pertinent observations on the duty of counsel to assist the court fully in deciding issues before it. The significance of this duty lies in the counsel’s duty to assist the court in the administration of justice. It is a fundamental principle of law that a lawyer’s duty to the court takes precedence over his other duties, including his duty to his client. This principle is based on the position of the lawyer as an officer of the court, and as one who has control of his client’s case in court. This duty includes the duty to disclose to the court all the cases that are or may be relevant to the issues before the court, even those which may not support his client’s case. This in fact is a requirement under the Lawyers Professional Conduct Rules, 1989, viz; rr.10 (1) and 15 (5). What is of paramount importance is that the court must be fully assisted by counsel, in deciding issues and in the administration of justice to all the parties to the litigation. It is important for one to remember that administration of justice is not a mere intellectual concept or a professional routine. It is more than a step in a process. It is central to the work of every judge, because justice has to be administered ‘according to law’. A judge must therefore discharge this duty with every care and skill he can muster and how a judge administers justice in the broadest sense is of vital importance. This is why assistance by counsel to the judge is very important and indeed the judges look to counsel appearing before them for guidance and assistance. Entitlement to justice is a right to everyone and where one is denied justice, it must be for sound and valid reasons. This is important to build public confidence and trust in the impartiality and integrity of the judiciary. This is of fundamental importance to administration of justice and the rule of law generally. These observations may be obita dicta, but an occasion has arisen for the observations to be conveniently made as they relate to a basic principle of advocacy which every lawyer should be aware of, especially those who appear in court. The significance of the principle has been prominently stated in many cases, but I will highlight only a number of them.

18. In Rondel v. Worsely [1966] 3 WLR 950 at 962. Lord Denning MR stated:

“Counsel has a duty to the Court which is paramount. It is a mistake to suppose that he is the mouthpiece of his client to say what he wants, or his tool to do what he directs. He is none of these things. He owes allegiance to a higher cause. It is the cause of truth and justice”

19. In Saif Ali v. Sydney Mitchell [1980] AC 198, Lord Diplock stated:

“The special characteristic of a barrister’s work upon which the greatest stress is laid by their Lordships was that he does not owe a duty only to his client; he owes a duty also to the court. This is an overriding duty which he must observe even though to do so in a particular case may appear to be contrary to the interests of his client...,”

20. In Giannarelli v. Wraith, Shulkes v. Wraith [1988] 81 ALR 417, Mason CJ at p. 421 stated:

“...the barrister’s duty to the court epitomises the fact that the course of litigation depends on the exercise by counsel of an independent discretion or judgment in the conduct and the management of a case in which he is an eye, not only to his client’s success, but also to the speedy and efficient administration of justice”.

21. In Arthur Hall v. Simons [2002] 1 AC 615 Lord Hoffmann at pp. 686 and 692 stated:

“Lawyers conducting litigation owe a divided loyalty. They have a duty to their clients, but they may not win by whatever means. They also owe a duty to the court and the administration of justice. They may not mislead the court or allow the judge to take what they know to be a bad point in their favour. They must cite all relevant law, whether for or against their case.

....I have no doubt that the advocate’s duty to the court is extremely important in the English system of justice...The substantial orality of the English system of trial and appellate procedure means that the judges rely heavily upon the advocates appearing before them for a fair presentation of the facts and adequate instruction in the law. They trust the lawyers appearing before them; the lawyers trust each other to behave according to the rules, and that trust is seldom misplaced...

22. Then Lord Hope in the same case at pp. 715 and 726 stated:

“The advocate’s duty to the court is not just that he must not mislead the court, that he must make sure that the facts are presented fairly and that he must draw the attention of the court to the relevant authorities even if they are against him...

....The duty which the advocate undertakes to his client when he accepts the client’s instructions is one in which both the court and the public have an interest. While the advocate owes a duty to his client, he is also under a duty to assist the administration of justice...his duty to the court and the public requires that he must be free, in the conduct of his client’s case at all times, to exercise his independent judgment as to what is required to serve the interests of justice. He is not bound by the wishes of his client in that respect, and the mere fact that he has declined to do what his client wishes will not expose him to any kind of liability”.

23. In Copeland v. Smith [2000] 1 WLR 1371, the Court said:

“It is of course, the duty of an advocate under the English system of justice to draw the judge’s attention to authorities which are in point, even if they are adverse to that advocate’s case”.”

16. Let this be a reminder to counsel that while he has a duty to advance his clients’ (respondents’) case to get a favourable outcome, he also has a duty not to mislead the Court and must be courteous. As I said earlier, when a judge asks a question to counsel, it is not for no reason. Generally, it is to seek clarification on a point that may be unclear and needed elaboration or not covered by counsel and needed to be addressed. It may be a factual matter or a point of law. The input by counsel is not to be taken for granted. It will assist the judge to decide the case or as Gavara-Nanu J pointed out (supra) judges are conferred power to dispense justice and it is of vital importance that counsel appearing before them assist and guide them to administer justice ‘according to law’. I hope this reminder will help counsel improve on his ability to listen when the judge is speaking, comment when invited by the judge, be diligent, forthright and courteous when appearing in future.

17. The true facts which were eventually accepted by parties were that based on the list in Schedule A to the writ, the applicants were not named as persons or one of the plaintiffs in the proceedings in the Court below. They were part of the clan members of their respective TRP areas. As members of their respective clans, they shared what is called a “common interest”. The common interest is the monetary benefits derived from the use of their land in the TRP areas in the form of timber royalties. They were successful in securing a judgment in their favour.
18. In this respect, I note that the applicants asserted that the first respondent Francis Kunai represented 10 TRP areas in the Jimi area. The applicant Jack Aunang is a main beneficiary in one of the 10 TRP areas known as Kinit TRP area. He is the direct descendant of the main investor and agent Aunang Nanganau, who signed the TRP agreement on behalf of all the clan members/investor of Kinit. He did not authorise Francis Kunai to represent them and his family/clan members for their fathers’ investments. His investment is K2,510.00.

19. I also note that the second respondent is an incorporated land group representing the Mupulgei TRP beneficiaries. The applicant Peter Kui Kumi is the eldest son of Kumi Ko the investor and agent who signed the TRP agreement on behalf of the Mupulgei investors. He is not represented by this entity. Rubin Kin who purported to represent him and others is not a member of the clan/investors. He did not authorise him to represent him.

20. It was submitted in each case, there is no evidence of power of attorney to corroborate the first and second respondents’ authority to represent them in the appeal. Based on the above information, I am satisfied that the applicants have established that they have sufficient interest in the matter before the Supreme Court.

Joinder necessary to resolve all issues in controversy between parties

21. As to the issue whether their joinder will assist in resolving all the issues in controversy between the parties, it seems to me that their joinder and participation at the appeal proper will add value to the respondents’ case. For example, they said that one of the grounds of appeal is in relation to how interest was calculated and awarded and the defence that a claim for interest formed part of a civil debt and was time-barred.

22. This contention does not take the applicants’ case further other than demonstrative of a different approach taken by them in defending the appeal which can be adequately attended to and addressed by counsel for the respondents if they all work closely and together with the class representatives Mr Kunai and Komap Mupulgei Business Group through Rubin Kin. In that way, all of the issues that must and will be needed to be brought to the notice of the Supreme Court will be considered by the Court.

23. What the applicants are embarking on is an attempt to “opt-out” of the appeal and litigate their case separately but in the same appeal proceedings under the guise of the class representatives Mr Kunai and Mr Kin not being authorised or instructed by them to represent them. This may explain why they were not joined as plaintiffs in the National Court proceeding but allowed to appear and be heard.

24. Both counsel were unable to assist me with the law on this type of situation especially where one or two of the plaintiffs decide to “opt-out” of the proceeding and instruct his own legal representative. The cases of Simon Mali (supra); Tigam Malewo (supra) and Mark Philip (supra) do not address this issue.

25. Without the benefit of counsel’s submissions, I am not satisfied that it is appropriate and a convenient way for a party to “opt-out” and litigate in the same proceedings. Otherwise, it would be contrary to the principle of “common interest” established in a representative action under Order 5, rule 13(1) (supra) and amount to an abuse of the process of the Court. It would also prolong litigation and increase costs of the parties.

Conclusion

26. While the applicants have shown that they have sufficient interest in the appeal, I am not satisfied that they have met the second requirement for joinder and the application will be refused with costs.

Order

27. The orders are:

1. The application to join Peter Kui Kumi and Jack Aunang as fourth and fifth respondents respectively is refused.
   

2. The applicants shall pay the respondents’ costs of the application.

Ruling and orders accordingly.
________________________________________________________________
Solicitor General: Lawyers for Appellants
Parkil Lawyers: Lawyers for Respondents
PANG Legal Services: Lawyers for Applicants