Eton Pakui v The Independent State of Papua New Guinea (2006) N3001

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 22 February 2006
• Court: National Court
• Citation: (2006) N3001
• Docket Number: WS NO 569 OF 1994
• Year: 2006
• Judgement Number: N3001

Full Title: WS NO 569 OF 1994; Eton Pakui v The Independent State of Papua New Guinea (2006) N3001

National Court: Cannings J

Judgment Delivered: 22 February 2006

N3001

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

WS NO 569 OF 1994

ETON PAKUI

Plaintiff

V

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Defendant

MT Hagen : Cannings J

2006: 21, 22 February

RULING ON MOTIONS

LAWYERS – change of lawyers after trial and before delivery of judgment – notice of change of lawyers – whether court can order a party not to change lawyers – right of parties to lawyer of their choice.

PRACTICE AND PROCEDURE – representative action – multiple claimants – consent and authority given by a group of claimants to bring proceedings on their behalf.

The plaintiff commenced proceedings in a representative action against the State seeking damages for negligence. A trial was conducted addressing both liability and quantum of damages. Judgment was reserved and while it was pending the plaintiff changed lawyers. The first lawyers brought a motion asking the court to prevent the plaintiff changing lawyers unless he first paid their outstanding legal fees. The second lawyers brought a motion asking the court to endorse the change of lawyers. This is a ruling on the two motions.

Held:

(1) It is a fundamental principle of the administration of justice that a person who brings proceedings in the courts is entitled to engage a legal representative, duly admitted to practise as a lawyer, of his own choice. This is a manifestation of the constitutional right to freedom based on law.

(2) Provided that a notice of change of lawyers has been filed and served in accordance with the National Court Rules and no other law is infringed the parties to proceedings should not be prevented by an order of the court from changing lawyers at any time.

(3) The first lawyers were not unreasonably aggrieved by the actions of the plaintiff and the second lawyers. However the court should be slow to intervene in the affairs of clients and their lawyers especially where no breach of any law is evident.

(4) A client’s liability to their lawyers for payment of legal fees is not extinguished if the client changes lawyers.

(5) Accordingly the plaintiff in this case was at liberty to change his lawyers, even at the ‘eleventh hour’ when the court was about to deliver judgment in a trial prosecuted by different lawyers.

Cases cited

The following cases are cited in the judgment:

Edward Manu Trading as Manu & Associates Lawyers v Honiri Timber Resources Development Limited (2004) N2597

Simon Mali on His Own Behalf and as Representative of 30 other Members of Onepena Clan, Kagua, Southern Highlands Province and John Yasa on His Own Behalf and as Representative of 20 other Members of Ege Clan, Kagua, Southern Highlands Province and Porapae Pebaro on His Own Behalf and as Representative of 15 other Members of Yako Clan, Kagua, Southern Highlands Province v The Independent State of Papua New Guinea (2002) SC690

Abbreviations

NOTICES OF MOTION

This was a ruling on motions that sought orders to resolve disputed legal representation.

Counsel

N Kiuk for the applicant/respondent

P Kunai for the respondent/applicant

1. CANNINGS J: INTRODUCTION: This is a ruling on motions by competing law firms who claim the right to represent and receive a judgment on behalf of a plaintiff and a number of other persons in a civil action.

BACKGROUND

2. The substantive case is about a police raid of Tulipato village, Laiagam District, Enga Province, that allegedly took place in 1992. The plaintiff is a resident of that village. He and a number of other villagers claim that the police unlawfully raided the village and went on a rampage, burning down trade stores and other buildings and destroying and stealing property. It is claimed that the police acted negligently and that the State should pay a substantial amount of compensation for what happened.

3. I conducted the trial on two days in November 2004. Many witnesses were called. The State was represented by Mr B Ovia of the Office of the Solicitor-General who defended the claim vigorously. The plaintiff and the 15 other claimants were represented by Ms R Kalepo of Kunai & Co Lawyers of Mt Hagen. Judgment was reserved and while it was pending the plaintiff purported to change lawyers.

4. On 14 September 2005 Lomai & Lomai Attorneys of Boroko filed a notice of change of lawyers in these terms:

Take notice that the lawyers acting for the plaintiff are changed from Kunai Lawyers to Lomai & Lomai Attorneys, Section 209, Allotment 128, Garden Hills Drive, PO Box 1479, NCD.

5. In the week commencing 13 February 2006 my associate notified all interested parties that the judgment would be delivered in Mt Hagen on 21 February 2006. It is that notification that appears to have precipitated the two motions now before the court.

6. The first motion, filed by Lomai & Lomai Attorneys, asks the court to make orders endorsing the change of lawyers to themselves and authorising them to have the further conduct and carriage of the matter.

7. The second motion, filed by Kunai & Co Lawyers, asks the court to order that the plaintiff is not at liberty to engage any other law firm to act for him in this matter unless he first settles the legal fees he owes to Kunai & Co.

8. I convened the court on 21 February 2006 for the principal purpose of delivering judgment in the substantive case, WS No 569 of 1994, and judgments in another nine cases that had also been heard in late 2004.

9. It soon became evident that the two law firms were still at loggerheads. They both wanted to represent the plaintiff and to receive the judgment on his behalf and the other 15 claimants. I decided to hear the two motions, reserve a ruling on those motions and postpone delivery of judgment in the substantive case pending the outcome of the ruling on the motions.

10. The motions were heard together. They are opposite sides of the same coin. The issue boils down to who has the right to represent the plaintiff and to receive the judgment.

11. Both sides have presented a lot of affidavit material. A lot of correspondence has been exchanged between the law firms and the plaintiff. Claims and counter-claims of impropriety have been made.

12. It is not necessary to set out the allegations in detail. It is sufficient to say that it is agreed that over a number of years another person – other than the plaintiff and the 15 other claimants – has been helping the plaintiff get this case against the State moving. His name is Mark Ipuia. He is a community leader, a former member of Parliament and he comes from the plaintiff’s village. However, Mark Ipuia and the plaintiff, Eton Pakui, have had a falling out. They evidently do not get on any more. Mark Ipuia was giving instructions and paying some of the legal fees to Kunai & Co, which is also acting for him in another bundle of legal actions against the State. Eton Pakui has formed the view that Mark Ipuia is exercising too much control over what happens with the substantive case. Perhaps he thinks that Mark Ipuia is giving too many instructions to Kunai & Co Lawyers over the carriage of the substantive case. Whatever the case, Eton Pakui has decided that he does not want Kunai & Co Lawyers acting on his behalf anymore. He has given instructions to Lomai & Lomai Attorneys.

SUBMISSIONS BY LOMAI & LOMAI

13. Mr Kiuk submitted that Lomai and Lomai had done the right thing by filing the notice of change of lawyers in September 2005 in accordance with Order 2, Rule 35 of the National Court Rules (change of solicitor), which states:

(1) Where a solicitor [ie lawyer] acts for a party in any proceedings, the party may change his solicitor.

(2) Where a party changes his solicitor, he shall file notice of the change and serve the notice on the other parties and, where practicable, his former solicitor.

14. The notice of change of lawyers was filed on the instructions and on behalf of Eton Pakui. Mr Kiuk pointed out that when the substantive proceedings were commenced in 1994 the various claimants put forward Eton Pakui as their representative and the principal plaintiff. He referred to the consent and authority form filed in 1994, which was signed or thumb-marked by the claimants. It stated:

We the following each and severally of Tulipato village in the Enga Province hereby consent to our names being used and further consent and authorise Eton Pakui of Tulipato to bring proceedings against the [Independent] State of Papua New Guinea on our behalf for damages suffered by each of us following an illegal police operation at Tulipato on 23 September 1992

SUBMISSIONS BY KUNAI & CO

15. Mr Kunai submitted that the conduct of Lomai & Lomai was unprecedented and unethical. There was no good reason for there to be a change of lawyers at the eleventh hour. His firm had done all the hard work preparing for the trial, organising witnesses, researching the relevant law, arguing the case and preparing submissions. It would set a bad precedent if the court were to sanction this sort of conduct by lawyers and clients. He claimed that his firm had not been paid by the plaintiff and if the case were now to be handled by a different law firm, his firm’s interests would not be protected. The court should not entertain such an unmeritorious motion, Mr Kunai submitted.

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