Nominees Niugini Limited v Independent Public Business Corporation and Motor Vehicles Insurance Limited and National Superannuation Fund Limited (2017) SC1646

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J, David J & Toliken J
• Judgment Date: 06 December 2017
• Court: Supreme Court
• Citation: (2017) SC1646
• Docket Number: SCA No.85 of 2015
• Year: 2017
• Judgement Number: SC1646

Full Title: SCA No.85 of 2015; Nominees Niugini Limited v Independent Public Business Corporation and Motor Vehicles Insurance Limited and National Superannuation Fund Limited (2017) SC1646

Supreme Court: Kirriwom J, David J & Toliken J

Judgment Delivered: 6 December 2017

SC1646

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA No.85 of 2015

BETWEEN:

NOMINEES NIUGINI LIMITED

Appellant

AND:

INDEPENDENT PUBLIC BUSINESS CORPORATION

First Respondent

AND:

MOTOR VEHICLES INSURANCE LIMITED

Second Respondent

AND:

NATIONAL SUPERANNUATION FUND LIMITED

Third Respondent

Waigani : Kirriwom J, David J & Toliken J

2016: 25 February

2017: 6 December

PRACTICE AND PROCEDURE - civil appeal to Supreme Court from National Court – appeal from interlocutory judgment – notice of appeal filed – appellant asserting that appeal lay without leave because it raised questions of law and mixed fact and law – consequently no application for leave to appeal filed and served - objection to competency of appeal –compliance with Order 7 Rule 15 Supreme Court Rules 2012 mandatory – notice of objection to competency filed out of time – inherent power of Court exercised - objection to competency upheld – appellant to pay second respondent’s costs of objection to competency and costs of appeal to be taxed if not agreed - Supreme Court Act, Section 14(1)(a) and (b), (3)(b), Supreme Court Rules, Order 7 Rule 15.

Cases cited:

Arthur Gilbert Smedley v The State (1980) PNGLR 379

Waghi Savings and Loans Society Limited v Bank South Pacific Limited (1980) SC185

The State of Papua New Guinea v Kubor Earthmoving (PNG) Pty Ltd (1985) PNGLR 448

Lowa v Akipe (1991) PNGLR 265

Gregory Puli Manda v Yatala Limited (2005) SC795

Sir Arnold Amet v Peter Charles Yama (2010) SC 1064

Mountain Catering Ltd v Frederick Punangi & Ors (2013) SC1225

Mek Kuli v Peter O’Neill (2014) SC1331

Counsel:

Erik Andersen with Miriam Tusais, for the Applicant/Second Respondent

Gibson Geroro, for the Respondent/Appellant

JUDGMENT

6th December, 2017

1. BY THE COURT: On 26 May 2015, in the National Court proceedings commenced by WS No.1252 of 2010, the Respondent/Appellant, Nominees Niugini Limited (the Appellant) filed a notice of motion seeking, inter alia, an order for Gadens Lawyers (Gadens) to cease to act for the Applicant/Second Respondent, Motor Vehicles Insurance Limited (the Second Respondent) on the basis of having a conflict of interest and breach of Gadens’ professional obligations. The application was heard on 29 May 2015. On 11 June 2015, the primary judge gave his decision refusing the application. Aggrieved by the judgment, the Appellant instituted this appeal by a Notice of Appeal filed on 20 July 2015 appealing against the whole of the judgment of the primary judge. In the Notice of Appeal, the Appellant pleaded that the appeal lies without leave pursuant to Section 14(1)(a) and (b) of the Supreme Court Act because it raises both questions of law and of mixed fact and law.

2. The grounds of appeal are set out at paragraph 3 of the Notice of Appeal and these are:

“3.1 The primary judge incorrectly applied the law [at paragraph 12] in his finding [paragraph 15] that “…NNL and its lawyers are unable to avail themselves of the provisions of Rule 10 Professional Conduct Rules in this instance”.

3.2. The primary judge erred in finding [lines 26 – 28 at paragraph 15 of the judgement] that the appellant and its lawyers were unable to avail themselves of the provisions of Rules 10 of the Professional Conduct Rules 1989 (PCR) when the primary judge should have found that the appellant’s lawyers had standing to raise such issues as officers of the Court.

3.3 The primary judge erred in finding that [at paragraph 21] “as to Rule 10 (4) the PCR, its drafting is sufficiently broad to allow lawyers or a firm of lawyers to represent more than one interest in litigation so long as those interests are not conflicting” in that the words “conflicting interest” in Rule 10(4) of the PCR should be read to mean “different parties” in litigation.

3.4 The primary judge erred in finding [at paragraph 22] that there was no conflicting interests for the purpose of Rule 10(4) of the PCR when Gadens has initially acted for the plaintiff and then subsequently acted for the first defendant in the same proceedings, namely WS 1252.

3.5 The primary judge erred in finding [at paragraph 22] that Gadens has not acted for MVIL when MVIL was in conflict with IPBC in WS 1252 when, on the pleadings and evidence, Gadens has previously acted for MVIL when MVIL was in conflict with IPBC in WS 1252.

3.6. The primary judge erred in finding [at paragraph 22] that Gadens has not acted for different positions in WS 1252 when, on the pleadings and evidence, Gadens had acted for different positions in WS 1252.

3.7 The primary judge erred in finding [at paragraph 22] that Gadens had not acted for different parties in WS 1252 when, on the pleadings and evidence, Gadens had acted for the different parties in WS 1252.

3.8 The primary judge erred in finding that Rule 10(5) of the PCR did not apply to the circumstances of this case [paragraph 23] when on the plain and ordinary reading the provision was applicable to this case.

3.9 The primary judge erred in finding [at paragraph 32] that only a former client of a lawyer for party to litigation can avail itself of the sanctions contemplated by Rules 10(4) and 10 (5) of the PCR.

3.10 The primary judge incorrectly applied the law [at paragraph 32] when on the pleadings and evidence, a fair-minded reasonable informed member of the public would conclude that the proper administration of justice required that Gadens Lawyers, should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice.”

3. The orders sought are set out at paragraph 4 of the Notice of Appeal and they are:

“4.1 The appeal is upheld.

4.2 The judgment by the primary judge given on 11 June 2015, refusing the relief sought in paragraph 2 of the Notice of Motion filed by the Appellant on 26 May 2015 is reversed and set aside.

4.3 Pursuant to Section 16 (c) of the Supreme Court Act, this Honourable Court give such judgment as ought to have been given in the first instance that Gadens Lawyers to cease to act for Motor Vehicles Insurance Limited forthwith in WS No.1252 of 2010 [Comm] on the basis of having a conflict of interest in the proceedings, breach of Gadens Lawyers professional obligations and in the interests of the protection of the integrity of the judicial process and the due administration of justice.

4.4 Costs of and incidental to the appeal be paid by the Second Respondent.”

4. On 21 July 2015, the Appellant’s lawyers, Leahy, Lewin, Lowing Sullivan (LLLS) served a copy of the Notice of Appeal on Gadens. No application seeking leave to appeal was filed or served on the Second Respondent.

5. On 4 September 2015, the Second Respondent filed a Notice of Objection to Competency (the Objection to Competency) of the appeal contending that the Notice of Appeal challenging the orders of the primary judge contravenes Section 14(3)(b) of the Supreme Court Act as the orders were from an interlocutory judgment and not final in nature and therefore leave was required.

6. The Objection to Competency was supported by the Affidavit of Jeanale Nigs sworn on 3 September 2015 and filed on 4 September 2015.

7. In opposing the Objection to Competency, the Applicant relied on and read the Affidavit of William Yep sworn and filed on 6 September 2015.

8. On 9 September 2015, Gadens wrote to LLLS giving notice that the Objection to Competency was filed and requested them to provide them with any evidence in response whilst an Objection to Competency Book was being compiled.

9. On 22 September 2015, Gadens wrote to LLLS enclosing a copy of the draft index to the Objection to Competency Book and also requested them to review and to revert to them by close of business on Friday, 22 September 2015 as to the correctness of the content.

10. On 23 September 2015, LLLS wrote to Gadens inviting the Second Respondent to withdraw the Objection to Competency within 14 days from the date of that letter , i.e., by 7 October 2015, on the basis that it itself was incompetent having been filed contrary to Order 7 Rule 15 of the Supreme Court Rules 2012 and relying on the decision of Gregory Puli Manda v Yatala Limited (2005) SC795 and failing which costs would be sought against Gadens on an indemnity basis should the Objection to Competency be unsuccessfully prosecuted. The Second Respondent did not withdraw or discontinue the Objection to Competency by 7 October 2015 or at all.

11. Mr. Andersen for the Second Respondent conceded that the Objection to Competency was filed outside the fourteen days period prescribed by Order 7 Rule 15 of the Supreme Court Rules. However, he contended that despite being non-compliant, the Supreme Court still has discretion to hear an objection that is raised after the expiration of 14 days and relied on the decisions of...