N2881

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT LAE]

WS 142 of 2004

BETWEEN:

WENDEL NOKOPA & 204 OTHERS
Plaintiff

AND:

INSPECTOR AUGUSTINE WAMBE, PAUL NAKA & OTHERS
First Defendants

AND:

SAM INGUBA
the Police Commissioner of Papua New Guinea
Second Defendant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Lae: Davani, .J
2005: 22nd & 28th July

Lawyers – Two (2) law firms simultaneously acting for same party in same matter – lawyer has duty to advise other party - professional misconduct - clause 20 (4) Professional Conduct Rules

Lawyers – Solicitor-General, brief-out to private law firm – Attorney - General’ did not brief out – brief out to be proven by letter of instructions from Attorney-General attached to principals affidavit – s. 7 (i) of Attorney - General’s Act.

Practice and Procedure – Two (2) law firms simultaneously acting for same party – court documents filed by both law firms – one law firm not properly instructed – application to strike out court documents filed – court to exercise discretion and inherent power – s. 155 (4) of Constitution.

Practice and Procedure – plaintiffs capacity to sue – suing in a representative capacity – writ and statement of claim must reflect that – defect can be cured by amendment – O. 4 R. 20 (1) (a) of National Court Rules.

Cases cited:
Rus Mongogl v MVIL [1985] PNGL 300

D. Gonol for the plaintiff/applicant
H. P. Kiele for all defendants

RULING

28th July 2005

Davani .J:	This is a claim by 204 plaintiffs claiming damages for properties destroyed by police or their agents in a raid conducted at West Taraka in Lae between 3rd to 7th February, 2003. 

Prior to the hearing of motion filed by the plaintiffs’ lawyers, both counsel informed me that there was an existing issue as to legal representation for the defendants because Paraka Lawyers had filed court documentation, showing that they act for the defendants. The Office of the Solicitor-General also asserts that. On 10th June, 2005, this issue was raised before Gabi .AJ as he then was, which matter was then adjourned to the July motions for the hearing and determination of this issue. Paulus M. Dowa, lawyers for the plaintiffs, then filed Amended Notice of Motion on 15th June, 2005, seeking the following orders;

"1.	The defence and other documents filed by Paul Paraka Lawyers on the 22nd July 2004, be dismissed on the grounds; that;

(a)	They had no instructions or proper instructions to file the defence as they did;
(b)	If they had instructions, they failed to seek leave of the Court before, filing an amended defence;
(c)	For titling the defence as a Defence, when it should have been an Amended Defence to the Amended Statement of Claim.

2.	The defence filed by the Solicitor-General on the 8th July, 2004, be dismissed for generality under Order 8 Rule 29 of the National Court Rules.

3.	Default judgment or in the alternative summary judgment be entered for the plaintiffs for damages to be assessed.

4.	The plaintiffs cost of this application be paid by Paul Paraka Lawyers on a Solicitor/client bases.

5.	Any other or further orders, this Honourable Court deems fit."

Prior to the hearing of the Amended Notice of Motion, the court heard both counsel in relation to the issue of representation. Also at court was Mr Gene from the Paraka Lawyers. Mrs Kiele presented to the court correspondence from the Attorney-General to the Solicitor-General advising on brief-outs to Paraka Lawyers. The cases listed therein did not include this matter. Mrs Kiele also informed the court that as at January 2005, the Attorney-General’s office ceased briefing out to private law firms. There was no evidence to the contrary. On that basis, I decided that it was the Office of the Solicitor-General who had carriage of the matter, not Paraka Lawyers. Having resolved that issue, the court then heard counsel on the Amended Notice of Motion.

Application to strike out documents

Mr Gonol’s Amended Notice of Motion does not set out the jurisdictional basis of his application. Practice Direction 6 of 2004 is very clear, that a motion should not be accepted for filing if it does not state the jurisdictional basis on which the applicant seeks the orders it seeks. Although Mrs Kiele submitted that the court should strike out the Amended Notice of Motion, as a preliminary matter, that I decided to hear Mr Gonol’s submissions, particularly in relation to the other orders sought pursuant to O. 8 R. 29 of the National Court Rules. I also decided not to strike out the plaintiffs application on the preliminary issue because the issue raised by Mr Gonol in relation to representation is one that often frequents our courts, especially in relation to brief-outs to private law firms by the Attorney-General where the Office of the Solicitor-General is already acting for the defendants. I considered this to be an exceptional circumstance that will require that I not exercise my powers to strike out the Amended Notice of Motion, but to hear out the parties and to then make final orders.

Mr Gonol’s submissions basically are that because Paraka Lawyers did not have instructions from the Attorney-General, that all court documentation they filed including the Defence, should be struck out, the result being that only the documentation filed by the Office of the solicitor-General will remain on file. Mr Gonol submits that the court should then exercise its powers to enter either default judgment or award summary judgment for the plaintiff and for damages to be assessed. He submits this because of the position taken by him that the Defence filed by the Office of the Solicitor-General on 8th July, 2004, is too general or is a general denial. But I should state at the outset that Mr Gonol could not produce any authorities or submissions on the law to support his contention that all documentation filed by Paraka Lawyers should be struck out because it did not have instructions from the defendants to act for them.

I have considered all issues together and set out my reasons below.

It is necessary that I set out a chronology of the relevant documentation that were filed and by which firm. These are;

1.	11th February, 2004 – Writ of Summons and Statement of Claim filed by Paulus Dowa Lawyers.

2.	4th May, 2004 – Paulus M. Dowa Lawyers filed Amended Writ of Summons and Statement of Claim.

3.	18th June, 2004 – Paraka Lawyers filed Notice to Intention to Defend.

4.	29th June, 2004 – The Acting Solicitor-General filed Notice of Lawyers Ceasing to Act for the defendants as at 18th June, 2004.

5.	8th July, 2004 – The Solicitor-General filed Notice of Intention to Defend. The lawyer for the defendant was addressed as;

"Francis Kuvi
Solicitor-General
Department of Attorney-General
PO Box 591
Waigani
National Capital District"

The file reference of the Solicitor-General’s office is noted on the document as 1-1-4/WN.

6.	8th July, 2004 – Mr Kuvi, Solicitor-General, filed Defence for the defendants.

7.	22nd July, 2004 – Paraka Lawyers filed Defence in response to the Amended Statement of Claim.

8.	30th July, 2004 – Paulus Dowa Lawyers filed Motions for orders that proceedings be dismissed for generality and for entry of summary judgment.

9.	16th August, 2004 – Paulus M. Dowa Lawyers filed Reply to Defence (of Amended Statement of Claim).

10.	6th October, 2004 – Paraka Lawyers filed Notice to Produce.

11.	31st May, 2005 – Paraka Lawyers filed Notice of Motion seeking orders that the 206 plaintiffs be removed as parties to these proceedings for want of representative capacity pursuant to O. 5 R. 9 of the National Court Rules.

12.	15th June, 2005 – Paulus Dowa Lawyers filed Amended Notice of Motion, now before me.

Having found that it is the Solicitor-General’s office who now act for the defendants, should the court strike out all court documentation filed by Paraka Lawyers? 

Mr Gonol’s submissions are based only on the factual materials before me. He does not support his submissions with any authorities or legal principles.

The chronology of pleadings show that Paraka Lawyers filed Notice of Intention to Defend on 18th June, 2004, before the Solicitor-General’s Office filed theirs on 8th July, 2004. But what is perplexing and curious is that Mr Kuvi, as Acting Solicitor-General signed, then faxed the Notice of Ceasing to Act to Lae stating that the solicitor-General used to act for the defendants as at 18th June, 2004, the day Paraka Lawyers filed Notice of Intention to Defend for the Defendants. Notice of Ceasing to Act was filed on 29th June, 2004. Again, although Mr Kuvi had signed a Notice of Ceasing to Act, his office filed Notice of Intention to Defend (the defendants) on 8th July, 2004. O. 7 Rule 2 of the National Court Rules is clear that no person shall take any step in the proceedings unless Notice of Intention to Defend has been filed. In this case, both Paraka Lawyers and the Solicitor-General’s Office filed Notice of Intention to Defend. So the issue now is whether the brief-out to Paraka Lawyers by Mr Kuvi was proper with the meaning of s 7 (i) of the Attorney-General’s Act. This section reads;

"7.	Duties, functions and responsibilities of the Attorney-General. 
…
(i)	to instruct lawyers within or outside the country to appear for the State in any matter; and
…"

I have seen that the letters handed up to the court by Mrs Kiele, show that the Attorney-General had not briefed Paraka Lawyers on this matter. The issue of brief-outs from the State is now settled since the Supreme Court decision of the Independent State of Papua New Guinea v Zachary Gelu, Solicitor-General and Manuburn Earthmoving Limited SC 716.

Again, the evidence is clear, that Mr Kuvi, the acting Solicitor-General, signed Notice of Lawyers Ceasing to Act and filed the same without speaking to the lawyer in his office who had carriage of the matter. The Professional Conduct Rules stipulates at clause 20 (4), the provision on professional courtesy, that;

"4.	A lawyer who, on receiving instructions, finds that acceptance of the instructions would amount to his replacing another lawyer who has previously been instructed in the same matter, shall inform that other lawyer that the instructions have been given to him."

There is no evidence before me that Paraka Lawyers informed either the lawyer with carriage of the matter in the Solicitor-General’s office or Paulus Dowa Lawyers that they were acting for the defendants. According to court documentation on file, Mr Kuvi, the Acting Solicitor-General, did not advise lawyers in his office or the plaintiffs lawyers that he had briefed this matter out to Paraka Lawyers. The only correspondence before me where this issue was raised is from Paulus Dowa Lawyers dated 27th July, 2004, letter addressed to Mr Paul Paraka Lawyers of Lae, to the attention of lawyer Mr Theodore Gene. This letter reads;

"We acknowledge receiving a copy of Defence yourselves filed on 22nd July, 2004, on 26th July, 2004, for these proceedings.

We request yourselves to produce and fax to us your letter of instruction to act for the defendants from the Solicitor-General prior to our filing the reply to the Defence yourselves filed for the defendants."

The letter is signed by Maike Zimike, lawyer.

Paraka Lawyers filed Defence to the Amended Statement of Claim within the prescribed time period. The Office of the Solicitor-General on the other hand, did not file an Amended Defence because by then they were aware Paraka Lawyers was acting for the defendants. Because there is an Amended Defence on file together with other documentation filed by Paraka Lawyers, the court now has to decide on Mr. Gond’s application, whether to accept those documents to have been filed by the Office of the Solicitor-General or to strike them out including the Defence, for being too general and to give leave to the Solicitor-General to file Amended Defence.

I do not know if Paraka Lawyers responded to Dowa Lawyers’ letter of 27th July, 2004, because there is no evidence before me to that effect. Dowa Lawyers’ letter did not inform Paraka Lawyers that the Solicitor-General also acts for the defendants. However, I can only assume that Paraka Lawyers, Lae, would have searched the court file or would have, somewhere along the line, received communication or verbal advice from Mr Kuvi, the A/Solicitor-General, that the Solicitor-General was acting for the defendants. But Paulus Dowa Lawyers did not follow up on this until a year later on 10th June, 2005, when all plaintiffs appeared before Gabi .AJ.

Mr Gonol for the plaintiffs submit that Paraka Lawyers should have applied for leave to file amended Defence. But I consider this submission to be flawed because even though the document filed by Paraka Lawyers is not titled "Amended Defence" that it did refer in the body of the amended Defence to the plaintiffs amended Statement of Claim. So I find that Paraka Lawyers did not have to seek leave to file the Defence. Because of the fact that there is no evidence before me of Paraka Lawyers and Paulus Dowa Lawyers having conducted investigations into representation in this matter, and because Paraka Lawyers were instructed by the Solicitor-General and not the Attorney-General as required under s. 7 (i) of the Attorney-General Act, that it is in the defendants interests that the documents filed by Paraka Lawyers remain on file, more specifically the Defence to the Amended Statement of Claim. I will, in the exercise of my discretion and in ensuring that justice is seen to be done, exercise the inherent powers available to me under s. 155 (4) of the Constitution and order that the documents filed by Paraka Lawyers are taken to have been filed by the Office of the Solicitor-General.

Again, the Acting Solicitor-General saw fit to brief out to a private law firm, when firstly, he did to have the authority to do so and secondly, he briefed out when lawyers in his office had already opened a file in this matter and filed several court documents. What is most distressing is that he did not advise them that he was briefing out. Which tells the court that it must always properly screen the issue of representation of the State by private law firms by asking firstly for a letter of brief out or letter of instructions from the Attorney-General before it proceeds to hear counsel. It must be mandatory that this letter is attached to an affidavit sworn by the principal of the firm and filed together with either the originating process or the Notice of Intention to defend, whichever is applicable.

As to the ethical issue of representation by both Paraka Lawyers and the Solicitor-General’s office and the fact that Paraka Lawyers continued to act for the defendants possibly knowing that the Solicitor-General’s office was acting for the defendants, that I find is a matter the plaintiff may wish to pursue in another arena.

However, I wish to state here that Mr Gene of Paraka Lawyers has been very discourteous in his practice as a lawyer, by not advising either the lawyer with carriage of the matter in the Solicitor-General’s office or Paulus Dowa Lawyers, that he had also received instructions from the acting Solicitor-General. His conduct is very unbecoming of a lawyer and speaks highly of deceit and cunning. He has clearly breached the professional conduct rules and must formally apologise to Mrs Kiele and Mr Dowa. And the same can be said of Mr Kuvi, the acting Solicitor-General.

Representational capacity

As to the defendants application to dismiss the proceedings, Mrs Kiele submits that the plaintiffs lack of representational capacity breaches O. 4 R. 20 (1) (a) (b) of the National Court Rules in that the representative capacity of all 204 plaintiffs is not clearly stated. This provision reads;

"20.	Indorsement as to capacity

(1)	Before a writ of summons is issued it must be indorsed –

(a)	where the plaintiff sues in a representative capacity, with a statement of the capacity in which he sues;

(b)	where a defendant is sued in a representative capacity, with a statement of the capacity in which he is sued."

In this case, Mrs Kiele submits that although the plaintiffs may have authorized the named plaintiffs to act for them, that the writ does not show that. O. 4 R. 20 (1) (a) is clear, that if a plaintiff sues in a representative capacity, the writ of summons must be endorsed with a statement of the capacity in which he sues. In this case, the amended writ reads "Wendell Nokopa and Pa Wai and 204 others, plaintiffs". It does not state if Wendel Nokopa sues for and on behalf of the 206 others. Mr Gonol submits that in the event the court finds that the writ is not properly endorsed, that the proceedings should not be struck out but that the court exercise its powers to amend. 

Having said that, the issue now is whether the writ is properly endorsed to show that the named plaintiffs are suing in a representative capacity and for themselves. To answer that issue, I must refer to the amended statement of claim where the plaintiffs plea on representational capacity is set out. This is at paragraphs 1 and it reads;

"The plaintiffs Wendel Nokopa and Pa Wai and 204 others whose names appear at paragraphs 13 and 14 of the statement of claim herein originally, come from the Western Highlands, Southern Highlands and Enga Provinces in Papua New Guinea. The plaintiffs collectively bring this action for themselves claiming damages against the defendants as a result of the unlawful raids carried out at West Taraka between the periods from 3rd to 7th February, 2003, in Lae Morobe Province."

Mr Gonol submits that the description of the plaintiffs on the title of the writ and paragraph 1 of the statement of claim is sufficient to show that the plaintiffs are suing for themselves and that the 204 others sue for themselves, individually, in a class action. He submits that each claimant has given notice under s. 5 of the Claims By and Against the State Act which means that they could all sue individually if they wish to.

I find that Mr Gonol’s submissions are misconceived to an extent in that he cannot say the 2 named plaintiffs and the 204 others are suing individually. If they wish to sue individually, then they should file separate writs. But as evidenced by the signed Authorities before me, the 204 plaintiffs have authorized the 2 named plaintiffs to sue on their behalf. So the Writ of Summons and Statement of Claim should reflect that. Under these circumstances, the plaintiff should file an amended writ to read "the two named plaintiffs sue for themselves and on behalf of the 204 others whose names appear at paragraphs 13 and 14 of the amended statement of claim and whose authorities authorizing Wendel Nokopa and Pa Wai to act for them, are attached to the amended writ of summons and statement of claim as annexure ‘A’." Paragraph 1 of the amended statement of claim should also reflect that. 

I accept Mr Gonol’s submissions on the curing of the defect by amendment and will so order (see Rus Mongogl v MVIL [1985] PNGL 300).

These are the court’s formal orders.

1.	That the documents filed by Parka Lawyers including the Defence are taken to have been filed by the Solicitor-General for and on behalf of the defendants;

2.	That the plaintiffs application for summary judgment or alternatively default judgment is refused;

3.	That the plaintiffs have leave to file an amended writ of summons and statement of claim within 30 days to show their capacity and representative capacity to sue.

4.	That the defendants shall thereafter, file their amended Defence within 21 days;

5.	Time is abridged to time of settlement to take place forthwith;

6.	Costs of the application is reserved to the hearing of the substantive application.

____________________________________________________________

Lawyer for the plaintiff		:	Paulus Dowa Lawyers
Lawyer for all defendants		:	Solicitor-General