Application by Hon Belden Namah [2022] PGSC 15; SC2198 (2 February 2022)

SC2198

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCC(OS) 3 of 2021 (IECMS)

APPLICATION PURSUANT TO CONSTITUTION
SECTION 18(1)

APPLICATION BY
THE HONOURABLE BELDEN NAMAH, MP

Waigani: Hartshorn J,
2022: 24^th January & 2^nd February

SUPREME COURT - Application for counsel and law firm to be restrained or to cease acting for the Applicant

Cases Cited:
Papua New Guinea Cases

Peter Yama and Ors v. PNGBC Ltd (2008) SC922
British American Tobacco Ltd v. TST 4 Mile Ltd (2011) N4589
Evan Paki v. Don Polye (2011) SC1095
Paul Paraka Lawyers v. Public Officers Superannuation Fund Board (2014) SC1363
Kawari Fortune Resources Ltd v. Louis Limbo Apurel (2015) SC1614
Independent Public Business Corporation of Papua New Guinea v. Motor Vehicles Insurance Limited (2015) N5982
The State v. Independent Timbers and Stevedoring Ltd (2016) N6331
Behrouz Boochani v State (2017) SC1566

Overseas Cases

Kallinicos and Anor v. Hunt and Anor [2005] NSWSC 1181

Counsel:

Mr. G. Sheppard and Ms. L. Painap, for the Applicant
Mr. M. Ninkama, for the Third Intervener
Ms. I. Guba, for the Fourth Intervener
Mr. N. Kopunye, for the Seventh Intervener

2^nd February, 2022

1. HARTSHORN J: This is a decision on a contested application for Mr. Gregory James Sheppard and the firm of Young and Williams, lawyers to be restrained or to cease acting for the substantive Applicant, Hon. Belden Namah, in this proceeding.

Background

2. The substantive proceeding is an Application made pursuant to s. 18(1) Constitution. In the Application, amongst others, declarations are sought that s. 197 Constitution, which concerns the functions of the Police Force, has been breached in regard to certain alleged payments made.

Application

3. The application to restrain Mr. Sheppard and Young Williams is brought by the seventh intervenor, Mr. David Manning in his capacity as the Police Commissioner. Mr. Manning seeks to restrain Mr. Sheppard and Young Williams on grounds which in essence are that:

a) this proceeding challenges the constitutionality of certain police investigations;

b) Mr. Sheppard is the subject of the certain police investigations and has been charged with nine offences;

c) Mr. Sheppard is likely to be a witness to a fundamental and material aspect of this proceeding.

Preliminary

4. Mr. Namah submits that this application is misconceived and should be dismissed. This is because in paragraph 1(1) of the application, s. 185 Constitution and Order 11 Rule 9 Supreme Court Rules are relied upon for directions to be made for the application to be deemed as appropriate for the purpose of seeking the orders sought in the application. The relevant procedure submits Mr. Namah, is prescribed in Order 3 Supreme Court Rules.

5. Even if the application is misconceived as submitted, paragraph 1(2) of the application is “Further to or in the alternative to ‘Term’ 1” (which I interpret to mean ‘paragraph’1). Paragraph 1(2) refers to Order 3 Rule 2(a) and/or (b) Supreme Court Rules. Mr. Namah states that Order 3 Supreme Court Rules is the relevant procedure. Consequently, as Order 3 is sought to be relied upon alternatively, the application is not dismissed. This submission is rejected.

6. Mr. Namah also submits that this application should either be referred to the Full Court for hearing or be dismissed as an abuse of process as it is one of a multiplicity of proceedings. Another similar application for disqualification has been referred to the Full Court but has not yet been pursued. Mr. Namah is concerned that if this application fails, he is likely to face further applications for disqualification which conceivably may be brought by all of the other interveners.

7. The reason that the other application for disqualification has been referred to the Full Court is that an objection to competency has been filed against the application. Pursuant to the Supreme Court Rules, only the Full Court has the jurisdiction to deal with an objection to competency. Presumably, if the objection to competency fails, that application for disqualification will be heard by a Judge. If that occurs, no doubt the Judge will be informed of the decision on this application.

8. As to date an application for disqualification has not yet been heard and I have jurisdiction to hear this application, I am satisfied that this application is not an abuse of process. This submission is rejected.

Consideration

9. As referred to, application is made for the relief sought by reliance upon Order 3 Rule 2 and Order 13 Rule 8(d) Supreme Court Rules. Reliance is also placed upon s.155(4) Constitution and the inherent powers of the Court. I am satisfied that I have the requisite jurisdiction under Order 3 Rule 2 to grant the relief sought as the substantive proceeding relates to a matter or question within the original jurisdiction of the Supreme Court and I am sitting as a Judge. Specifically, the relief sought should be considered under Order 3 Rule 2(b) as Order 3 Rule 2(a), and Order 13 Rule 8(d) provide for directions to be made. Mr. Manning is seeking an order, not a direction. Order 3 Rule 2(b) provides for an order to be made.

10. Order 3 Rule 2(b) provides that an interim order to prevent prejudice to the claims of the parties, may be made. This wording is similar to s. 5(1)(b) Supreme Court Act which applies to an appeal. To my mind, an application under Order 3 Rule 2(b) requires the Court to consider the questions which it considers for an application under s. 5(1)(b) Supreme Court Act. These questions are articulated by the Supreme Court in Kawari Fortune Resources Ltd v. Louis Limbo Apurel (2015) SC1614 at [25]:

“25. As is apparent from the text of s 5(1)(b) of the Supreme Court Act, the purpose of an interim order is "to prevent prejudice to the claims of the parties", pending the hearing and determination of an appeal to the Supreme Court. Necessarily, that requires attention to be focussed (sic) on these questions when deciding whether or not to make an interim order: what are the claims of the parties, what is the alleged prejudice and what is necessary, pending the hearing and determination of the appeal to prevent that prejudice? There is nothing in the text of the provision which requires an applicant for such an order to demonstrate special or exceptional circumstances. It would be an impermissible gloss on that text to introduce any such requirement.”

11. In this instance the substantive claims of the seventh intervenor Mr. Manning, being presumably, the bases upon which the relief sought by Mr. Namah is contested, have not been addressed by his counsel. Further, in affidavits relied upon there is no evidence of any alleged prejudice that will be caused to the claims of Mr. Manning if the interim relief sought is not granted. Consequently, Order 3 Rule 2(b) has not been enlivened. The relief sought under this rule is refused.

12. In regard to the reliance upon s. 155(4) Constitution it is settled law that this section may only be relied upon to protect primary rights in the absence of other relevant law. I refer to Evan Paki v. Don Polye (2011) SC1095 and Behrouz Boochani v State (2017) SC1566 - two judgments amongst many, which are on point.

13. In the instance, Order 3 Rule 2(b) Supreme Court Rules provides the jurisdiction to grant interim orders such as an injunction or a restraining order.

14. So in this instance, there is not an absence of other relevant law. Consequently s.155(4) Constitution may not be relied upon.

15. Mr. Manning also relies upon the inherent powers of the Court for the relief sought. Mr. Namah did not raise objection to such reliance and has made submissions on the relief sought under the inherent jurisdiction of the Court by Mr. Manning. Consequently, I consider whether the relief sought should be granted, under this purported jurisdictional basis.

16. Mr. Manning and Mr. Namah both rely upon the test which is referred to in Kallinicos and Anor v. Hunt and Anor [2005] NSWSC 1181 at [76]. I reproduced this paragraph in Independent Public Business Corporation of Papua New Guinea v. Motor Vehicles Insurance Limited (2015) N5982 at [27]; The State v. Independent Timbers and Stevedoring Ltd (2016) N6331 at [12] and British American Tobacco Ltd v. TST 4 Mile Ltd (2011) N4589 at [16]. Relevantly it is:

““However, the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice (Everingham v. Ontario; Black v. Taylor; Grimwade v. Meagher; Newman v. Phillips Fox; Mitchell v. Pattern Holdings; Spincode; Holborow; Williamson v. Nilant; Bowen v. Stott; Law Society v. Holt). Prince Jefri does not address this jurisdiction at all. Belan v. Casey and British American Tobacco Australia are not to be read as supposing that Prince Jefri excludes it. Asia Pacific Telecommunications appears to acknowledge its continued existence.

The test to be applied in this inherent jurisdiction is whether a fair minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice ( Everingham v. Ontario; Black v. Taylor; Grimwade v. Meagher; Holborow; Bowen v. Stott; Asia Pacific Telecommunications).

The jurisdiction is to be regarded as exceptional and is to be exercised with caution (Black v. Taylor; Grimwade v. Meagher; Bowen v. Stott).

Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause (Black v. Taylor; Grimwade v. Meagher; Williamson v. Nilant; Bowen v. Stott).

The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief (Black v. Taylor; Bowen v. Stott).””

17. Grounds one and two of Mr. Manning’s application are that the involvement of Mr. Sheppard and the firm of Young and Williams as lawyers in this proceeding would interfere with the due administration of justice and would imperil Mr. Sheppard’s professional duties as a lawyer to the Court. This is because this proceeding purportedly challenges the constitutionality of police investigations. Those investigations concern Mr. Sheppard and his firm Young and Williams and have led to Mr. Sheppard being charged with numerous offences.

18. Rules 10(1) (a) and (2) Professional Conduct Rules, although not cited in the application, are relied upon for these grounds in submissions which allege amongst others, a conflict of interest by Mr. Sheppard and Young and Williams and that Mr. Sheppard’s duty to the Court will be adversely affected because of the subject matter of this proceeding.

19. Rules 10(1) (a) and (2) Professional Conduct Rules are as follows:

“10. 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, and affected by-

(a) any interest of the lawyer; or .....

(2) if a lawyer has any interest in the 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 the client.”

20. In Peter Yama and Ors v. PNGBC Ltd (2008) SC922, the Court, of which I was a member, as to Rule 10 Professional Conduct Rules, said the following at [5]:

“5. 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.”

21. This passage was expressly adopted by Sawong J with whom Sakora J concurred in Paul Paraka Lawyers v. Public Officers Superannuation Fund Board (2014) SC1363. At [102] Sawong J stated that:

“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.”

22. In both of the Supreme Court judgments referred to, the alleged conflict was at the complaint of a party who was not represented by the alleged conflicted lawyer. Similarly, in this instance, the complaint of conflict and alleged effect on Mr. Sheppard’s duty to the Court, is not by Mr. Namah, Mr. Sheppard’s client, but is by a party, an intervenor, to whom Mr. Sheppard and Young and Williams do not owe a duty. Consequently, on the authority of the two Supreme Court judgments to which reference has been made, to the extent that he purports to do, I am not satisfied that Mr. Manning is able to successfully rely upon Rule 10 Professional Conduct Rules in support of his submission that the proper administration of justice requires the relief sought.

23. Ground three of Mr. Manning’s application is that Mr. Sheppard is or is likely to be a witness to a fundamental and material aspect of this proceeding within the context of Rule 15(15) Professional Conduct Rules. Rule 15(14) and (16) are also relied upon in submissions. Rule 15(14) – (16) Professional Conduct Rules are as follows:

“(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.”

24. Mr. Manning submits that Mr. Sheppard has already filed an affidavit in this proceeding and has admitted that he has an interest in this proceeding. It is submitted that Mr. Sheppard is therefore likely to give evidence on substantial factual matters that have led to the filing of this proceeding.

25. Mr. Namah submits that it is very unlikely that Mr. Sheppard will be a material witness in this proceeding; the proceeding seeks an advisory opinion and so it is unlikely that there will be witnesses and a Judge at this stage of the proceeding is not in a position to rule in advance as to what witnesses, if any, will be called, what evidence should be led and what questions will be asked in cross examination.

26. In the affidavit of Mr. Sheppard which has been filed in this proceeding and upon which Mr. Manning relies, Mr. Sheppard deposes that he is the applicant herein, which I assume is a mistake, that he wrote to Mr. Namah informing him of Mr. Sheppard’s interest in the proceeding and that Mr. Namah stated his assent and that he has been fully informed of Mr. Sheppard’s interest in the proceeding. This affidavit and the other affidavits relied upon by Mr. Manning are not evidence to the effect that it should have become apparent to Mr. Sheppard that he is likely to be a witness on a material question of fact such that he should withdraw from representing Mr. Namah in this proceeding. That Mr. Sheppard has an interest in the proceeding without more, does not lead to the conclusion that he is likely to be or will be a witness on a material question of fact in the proceeding.

27. Further, I concur with the submission that a Judge at this stage of the proceeding is not in a position to rule in advance which persons, if any, will be called as witnesses and the nature of any evidence likely to be given. To that extent, this application is premature as this Court is not in a position to determine whether Mr. Sheppard is likely to be or will be a witness on a material question of fact. If it transpires later in the conduct of the proceeding that Mr. Sheppard is likely to be a witness in the proceeding and he does not withdraw from representing Mr. Namah, an appropriate application may be made at that juncture, if thought necessary.

28. I am not satisfied that Mr. Manning is able to successfully rely upon Rules 15(14), (15) and (16) Professional Conduct Rules in support of his submission that the proper administration of justice requires the relief sought.

29. As to the submission that Mr. Sheppard in having an interest in the subject matter of this proceeding leads to the conclusion that his overriding duty to the Court will be affected, there is no evidence that this has or will occur. Again, if it transpires that Mr. Sheppard’s duty to the Court is or is likely to be adversely affected, an appropriate application may be made at that juncture.

30. As referred to previously, there is no evidence before this Court to the effect that any prejudice will be caused to Mr. Manning or the other parties if the relief sought is not granted and it has not been submitted as such. Further, it has not been established that the proper administration of justice requires that the relief sought should be granted.

31. Consequently, all of the relief sought in the application should be refused and the seventh intervenor’s application dismissed.

Orders

32. It is ordered that:

a) The application of the seventh intervenor filed 20^th September 2021 is dismissed.

b) The seventh intervenor shall pay the costs of the Applicant of and incidental to the said application filed 20^th September 2021.
__________________________________________________________________
Young &Williams Lawyers: Lawyers for the Applicant
Office of the Solicitor General: Lawyers for the First Intervener
Jema Lawyers: Lawyers for the Third Intervener
Allens Lawyers: Lawyers for the Fourth Intervener
Corrs Chambers Westgarth: Lawyers for the Fifth Intervener
Tamutai Lawyers: Lawyers for the Sixth Intervener
Kopunye Lawyers: Lawyers for the Seventh Intervener