N3514

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS No. 526 OF 2001

BETWEEN:

micky akai
Plaintiff/Applicant

AND:

john stanley reeve
First Defendant/Respondent

AND:

michael newell wilson
Second Defendant/Respondent

Kokopo: Paliau, AJ
2008:	17th & 23rd October

PRACTICE AND PROCEDURE – Judgment and Orders – Application to set aside, Order 12 Rule 8(3), (4) and (5) – Whether order obtained irregularly, Order 4 Rule 38.

PRACTICE AND PROCEDURE – Whether appropriate remedy is to sue for damages for professional negligence by lawyer.

Cases cited:
Joseph Kupo v. Stephen Raphael, Secretary for the Department of Defence Force (2004) SC75
Danny Sunu v. The State [1984] PNGLR 305
The State v. Colbert [1988] PNGLR 138

Counsels:
Mr. W. Donald, for the Plaintiff/Applicant
Mr. D. Lidgett, for the Defendant/Respondent

23rd October, 2008

1.	PALIAU, AJ.:	The Plaintiff (Applicant) by Notice of Motion applied to set aside an order of the Court which summarily determined this proceeding for want of prosecution. 

2.	The facts and circumstances giving rise to this application are as follows. The Applicant by this proceeding sued the First and Second Defendants (Respondents) for professional negligence. This proceeding arose out of another set of proceedings in which the Respondent’s were engaged by the applicant. 

3.	On the 27th April 2001, this proceeding was filed by Namaliu & Company Lawyers at Kokopo on behalf of the Applicant. On the 13th June 2001, the Respondents filed their Notice of Intention to Defend. The Respondent’s Defence was filed on the 16th July 2001. On the 17th July 2001, the Respondents filed Notice of Discovery which required the applicant through his lawyer Namaliu & Company Lawyers to give discovery of documents within 14 days after service of this notice. 

4.	The Court records show that no discovery of documents was given by Namaliu & Company Lawyers. On the 2nd April 2004, Namaliu & Company Lawyers ceased to act for the applicant. 

5.	On the 20th July 2006, Kunai & Co. Lawyers was engaged to act for the applicant. 

6.	On the 12th October 2007, Kunai & Co. Lawyers ceased to act for the applicant. 

7.	On the 2nd November 2007, the applicant engaged the services of Tonge’s Lawyers to contest the Summary Determination proceedings. 

8.	On the 5th November 2007, this proceeding was summarily determined for want of prosecution. Tonge’s Lawyers did not appear on behalf of the Applicant. 

9.	The Applicant now comes to the Court to set aside the Court Order that summarily determined or dismissed this proceeding for want of prosecution.

10.	In the Notice of Motion, the applicant relied on Order 12 Rule 8(3)(4) and (5) of the National Court Rules. Mr. Donald of counsel for the plaintiff/applicant further submitted that the Order of 5th November 2007 was irregularly entered. The applicant was not personally notified that the proceedings will be summarily determined on the 5th November 2007 if he does not come and explain why it should not be summarily determined. 

11.	Mr. Donald also argued that the procedure for the notice for Summary Determination in the media did not comply with the National Court Rules which requires notice and service of any motions to interested parties. He cited Order 4 Rule 38(1) of the National Court Rules.

12.	The Respondents contested by submitting that the Applicants lawyer was aware that the proceedings will be summarily determined on the 5th November 2007. The lawyer did not attend or did not make other necessary arrangements like briefing a lawyer in Kokopo to appear on their behalf or faxing or telephoning the Court registry that the matter should remain on the list. 

13.	Mr. Lidgett of Counsel for the defendant/respondent argued that if the lawyer was at fault then the Applicant’s cause of action is to sue the lawyer for damages for professional negligence and not to invoke the Court’s inherent discretion to review. He cited the Supreme Court case of Joseph Kupo v. Stephen Raphael, Secretary for the Department of Defence Force (2004) SC 751.

14.	Order 12 Rule 8(3), (4) and (5) of the National Court Rules are in these terms:

"8. 	Setting aside or varying judgment or order.

(3)		The Court may, on terms, set aside or vary an order –

(a)	where the order has been made in the absence of a party, whether or not the absent party is in default of giving a notice of intention to defend or otherwise in default, and whether or not the absent party had notice of motion for the order; or 

(b)	where notice of motion for the setting aside or variation is filed before entry of order. 

(4)		In addition to its powers under Sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief. 

(5)		This rule does not affect another power of the Court to set aside or vary a judgment or order." 

15.	Order 4 Rule 38 provides that:

"38. 	Notice necessary.

(1)		Subject to sub-rule (2), a person shall not move the Court for any orders unless before moving he has filed notice of the motion and has served the notice on each interested party who has an address for service in the proceedings. 

(2)		A person may move the Court without previously filing or serving notice of the motion - 

(a)	where the preparation of the notice, or the filing or service, as the case may be, of the notice would cause undue delay or other mischief to the applicant; or 

(b)	where each party interested, other than the applicant, consents to the order; or

(c)	where under these Rules or the practice of the Court for the time being the motion may properly be made without the prior filing or service, as the case may be, of notice of the motion; or 

(d)	where the Court dispenses with the requirements of Sub-rule (1).

--------------------------------------------"

16.	The principle in Joseph Kupo (supra) is that where there is or are allegations of negligence of a lawyer, the applicant should pursue a claim against the lawyer for professional negligence and not invoke the Court’s inherent review jurisdiction under the National Court Rules or the Constitution: Danny Sunu v. The State [1984] PNGLR 305 and The State v. Colbert [1988] PNGLR 138 adopted and followed. 

17.	A perusal of the affidavit evidence in the file, Affidavit of Jerry Tonge, Principal of Tonge’s Lawyers, sworn on the 30th November 2007, reveal that he was engaged by the Applicant on the 2nd November 2007. This was a Friday. The matter was to be heard on Monday 5th November 2007. He also became aware on the 2nd November 2007.

18.	Also on the 2nd November 2008, he advised the Mt. Hagen Court Registry to fax to Kokopo Court Registry Affidavit of Paulus Koim Kunai who previously had carriage of this matter, sworn on the 2nd November 2007, deposing to why the trial date was not obtained since 2004 and his letter also dated 2nd November 2007, requesting if the matter be raised or deleted from the summary determination list.

19.	By a letter dated 30th October 2007, the applicant wrote to the Registrar, Kokopo National Court advising that he cited the publication of his case in the Post Courier on the same date for Summary Disposal. After explaining his predicament about Lawyers not diligently prosecuting his case, he requested the Registrar to have this letter shown to the Judge so that his case will remain in the Court list. 

20.	I note from the Court records that the above documents were all faxed to the Kokopo National Court Registry on the 2nd November 2007. This was 3 days before the 5th November 2007, the date of the hearing of summary determination. 

21.	I consider that the Lawyer on record, Tonge’s Lawyers and the applicant himself did all they can, given the circumstances, to contest the summary determination proceedings. The Kokopo National Court Registry had all the necessary documents before the 5th November 2007. 

22.	Even the Assistant Registrar, Mt. Hagen National Court Registry wrote to the Assistant Registrar, Kokopo National Court Registry on the 31st October 2007 advising that the applicant is still pursuing his case. This Inter-Office Memorandum was faxed on the 31st October 2007. 

23.	I also note from the file that there is no Notice of Motion filed in relation to the Summary Determination proceedings and no Affidavit of Service deposing that the Applicant or his lawyers were served with the Notice of Motion to have the proceeding summarily determined for want of prosecution on the 5th November 2007. 

24.	In fact there is no documentation whatsoever on file in relation to any Motion for summary determination. Not even the Order summarily determining the proceeding for want of prosecution, the subject of the present application. A copy of a Notice for Summary Disposal in the Post Courier was not in the file as well. 

25.	I do not think that order 4 Rule 38(1) of the National Court Rules was complied with. There was no notice given to the applicant or his lawyers. Order 4 Rule 38(2) is not applicable as delay in the preparation or filing or service of the notice could have caused undue delay on the applicant at that time. As there was no Notice of Motion filed, it is not event as to whether leave of the Court was obtained to dispense with the requirements of filing and serving of Notice of Motion to interested parties under Sub-rule (1).

26.	For these reasons, the order to have the proceedings summarily determines in my view was irregularly obtained. 

27.	The proposition put forward by the Respondents that the Applicant’s lawyer was aware even if no notice was given, cannot be accepted. This is because when they became aware of it, they did all they could within their means to have the applicant’s case before the Court but it was not attended to by the Kokopo National Court Registry. I consider the lawyers (Tonge’s Lawyers) were not at fault and not negligent in contesting their client’s summary determination proceedings. 

28.	Because I have ruled that the Lawyers were not at fault, the Respondent’s submission that the applicant should sue his lawyers for damages for professional negligence is not an issue for consideration. It follows therefore that the principle in Joseph Kupo (supra) is not applicable to this case. 

29.	I therefore grant the orders being sought by the applicant.

30.	My formal orders are:

(1)		The purported order summarily determining this proceedings for want of prosecution is set aside;

(2)		That this proceeding registered as WS No. 526 of 2001 – Miki Akai v. Stanley JOHN REEVE is reinstated and be listed on the Kokopo National Court call-over list on the 3rd November 2008;

(3)		That the Applicant (Plaintiff) and or his Lawyers attend the Call-over on the 3rd November 2008 and obtain a trial date;

(4)		The Costs of this application be in the cause. 

Ordered accordingly.

Donald & Co Lawyers: Lawyer for the Plaintiff/Applicant 	
Warner Shand Lawyers: Lawyer for the Defendants/Respondents