Takai Kapi also known as "Tataki Kapi" v Gregory James Sheppard and Harvey Maladina [Maldina] Trading as Maladinas Lawyers and Aon Risk Services (PNG) Limited (2003) N2323

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 20 January 2003
• Court: National Court
• Citation: (2003) N2323
• Year: 2003
• Judgement Number: N2323

Full Title: Takai Kapi also known as "Tataki Kapi" v Gregory James Sheppard and Harvey Maladina [Maldina] Trading as Maladinas Lawyers and Aon Risk Services (PNG) Limited (2003) N2323

National Court: Kandakasi J

Judgment Delivered: 20 January 2003

1 LAWYER CLIENT—Former client suing lawyer for alleged negligence in conduct of his trial—Whether immunity for barristers available at common law also available to lawyers in Papua New Guinea?—Given the level of education and the dependence of people on lawyers for proper advise and appropriate action, it is inappropriate for the application of the immunity principle in Papua New Guinea—A lawyer is duty bound to act appropriately for his client both in advising and making representations or submissions in court—A former client is entitled to bring an action in negligence against his former lawyers.

2 PRACTICE AND PROCEDURE—Cause of action—Negligence of lawyer in conduct of client's case in court—Principles of immunity against such action at common law for barristers considered—In the circumstances of the country, the principles granting immunity for barristers over claims of negligence are inappropriate and therefore rejected—A former client may sue his former lawyer for breach of his duty of care to the client in the conduct of the client's case in court.

3 Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60, ABCO Transport Pty Ltd v Timothy Sakaip (1997) N1577, Kia Temai v MVIT (1996) N1442, Martha Limitopa v The Independent State of Papua New Guinea [1988–89] PNGLR 364, MVIL v Martha Kuma (2000) SC650, Busina Tabe v The State [1983] PNGLR 10, Bernard Juali v The State (2001) SC667, Rabaul Shipping Ltd v Ruru (2000) N2022, Mt Hagen Airport Hotel Pty Ltd v Gibbes [1976] PNGLR 216, PNG Forest Products Pty Ltd v The Independent State of Papua New Guinea [1992] PNGLR 85, Ronny Wabia v BP Exploration Operating Co Ltd, Department of Mining and Petroleum and The Independent State of Papua New Guinea (1998) N1697, Rondel v Worsley [1969] 1 AC 191, Saif Ali v Sydney Mitchell and Co [1980] AC 198 and Rees v Sinclair [1974] 1 NZLR 180 referred to

___________________________

N2323

PAPUA NEW GUINEA

[In the National Court Justice]

WS. 721 OF 2001

BETWEEN:

TAKAI KAPI also known as “TATAKI KAPI”

Plaintiff

AND:

GREGORY JAMES SHEPPARD & HARVEY MALDINA

trading as MALADINAS LAWYERS

First Defendants

AND:

AON RISK SERVICES (PNG) LIMITED

Second Defendant

WAIGANI: KANDAKASI, J.

2002: 6th December

2003: 20th January

LAWYER CLIENT – Former client suing lawyer for alleged negligence in conduct of his trial – Whether immunity for barristers available at common law also available to lawyers in Papua New Guinea? – Given the level of education and the dependence of people on lawyers for proper advise and appropriate action, it is inappropriate for the application of the immunity principle in Papua New Guinea – A lawyer is duty bound to act appropriately for his client both in advising and making representations or submissions in court – A former client is entitled to bring an action in negligence against his former lawyers.

PRACTICE & PROCEDURE – Cause of action – Negligence of lawyer in conduct of client’s case in court – Principles of immunity against such action at common law for barristers considered – In the circumstances of the country, the principles granting immunity for barristers over claims of negligence are inappropriate and therefore rejected – A former client may sue his former lawyer for breach of his duty of care to the client in the conduct of the client’s case in court.

Papua New Guinea Cases Cited:

Mt. Kare Holdings Pty Ltd vs. Akipe & Ors [1992] PNGLR 60.

ABC Co. Transport Pty Ltd vs. Timothy Sakaip N1577.

Kia Temai vs. Motor Vehicles Insurance (PNG) Trust N1442.

Martha Limitopa vs. The Independent State of Papua New Guinea and Anor [1988-89] PNGLR 364.

Motor Vehicles Insurance Ltd vs. Martha Kuma SC650.

Busina Tabe vs. The State [1983] PNGLR 10.

Benard Juali vs. The State SC667 (Unreported Judgement delivered 30/08/01).

The State vs. Rabaul Shipping Ltd & Rita Rurul (Unreported judgement delivered 08/12/00) N2022.

Mt. Hagen Airport Hotel Pty Ltd vs. Gibbs [1996] PNGLR 216.

PNG Forest Products Pty Ltd & Anor vs. The State & Anor [1992] PNGLR 85.

Runie Wabia vs. BP Exploration Operation Co. Ltd & Ors. (1998) N1697.

Overseas Cases Cited:

Rondel vs. Worsley [1969] 1 C 191.

Saif Ali vs. Sydney Mitchell and Co. [1980] AC 198.

Rees vs. Sinclair [1974] 1 NZLR 180.

Counsel:

Mr. G. Shepherd for the First Defendants/Applicants.

Mr. Kamaken for the Plaintiff/Respondent.

20th January 2003

KANDAKASI, J: The plaintiff is suing the defendants claiming negligence against the first defendants, Messrs Gregory James Sheppard and Harvey Maladina trading as Maladinas Lawyers, (“Maladinas”). This concerns Maladinas’ conduct in an election petition presented against the plaintiff by a loosing candidate in the 1997 PNG National General Elections for the Wabag Open seat. Maladinas are now applying by motion for a dismissal of these proceedings on the grounds of it being frivolous, within the meaning of O.12 r.40 of the National Court Rules (“the Rules”). That is in turn premised on the principle of special immunity of barristers against actions for negligence by their former clients, which has been recognised for at least over 200 years at common law.

Maladinas argue that under schedule 2.2 (3) of the Constitution as considered and applied in Mt. Kare Holdings Pty Ltd vs. Akipe & Ors [1992] PNGLR 60, the principles special immunity for barristers were adopted at independence and are therefore part of the common law in Papua New Guinea. They acknowledge that there is no decision of the Courts in the country specifically dealing with this issue of immunity of barristers or lawyers for that matter. At the same time, they acknowledge that a number of statements were made in relation to professional negligence against counsel but they say these were obiter dictums only. The case of ABC Co. Transport Pty Ltd vs. Timothy Sakaip N1577 is cited as an example.

In the alternative, the lawyers argue that the Supreme Court held that on the evidence in the prior proceedings, it was sufficient for the plaintiff to be disqualified. There was unequivocal evidence given by the plaintiff before the trial judge and that the application by the plaintiff to be enrolled on the common roll was late and in contravention of s.60 of the Organic Law. In any case, the evidence for the plaintiff was that he completed the application for enrolment on 16th April 1997 well after the period allowed under s.60. I therefore gather that the argument is that there is no factual basis for this action and as such I should dismiss in the exercise of the discretionary powers vested in me under O.12 r.40 of the Court Rules.

The plaintiff argues against an application of the immunity principles for a lawyer saying it is inappropriate to the circumstances of the country and, as such the application should be dismissed. As for the alternative argument by Maladinas, the plaintiff submits, the claim is based on negligence and this requires an examination of the facts including the relevant judgements of the National and Supreme Courts and as such it is not a straightforward matter. As such, the matter cannot be frivolous and therefore cannot be disposed off summarily.

Issue

This presents two main issues for determination. These are:

(1) Whether the immunity available to a barrister in other jurisdictions in relation to his representation of a client in a litigation in Court is available to lawyers in Papua New Guinea and therefore the plaintiff is precluded from bringing this action against Maladinas?

(2) Whether this is an appropriate case for a summary dismissal of the action against the defendants?

Facts

The facts giving rise to this issue goes back to the 1997 Papua New Guinea National Elections. The plaintiff contested in that election and he won the Wabag Open Seat. A petition under the Organic Law on the National and Local-level Government Elections (“the Organic Law”) was filed by his runner-up disputing his election. One of the matters raised in the petition was the right of the plaintiff to be nominated and stand for the Wabag Open Electorate. The claim was that, he was not properly qualified under the Constitution, as he was not enrolled as a voter in that electorate. At the hearing, the Court of disputed returns (“the Court”) found that the plaintiff...