N3730

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 539 OF 2009

BETWEEN:

DR. NAYSAN HAMADANI
Plaintiff

AND:

SEAN BLUETT
Defendant

Waigani: Paliau, AJ
2009: 19th & 26th August

CIVIL – Practice and procedure – Plaintiffs revoked Notice of Discontinuance, whether wrongly filed by Defendant, if so whether this amounted to an abuse of Court’s process and must be struck out.

CIVIL – Practice and procedure – whether deliberate abuse of Court’s process occasioned by Defendant being a lawyer is a ground for referral to the Lawyers Statutory Committee. 

Cases cited:
Papua New Guinea Cases

Paul Asakusa v David Dambali (2008) N3397.

Overseas Cases

Castanho v Brown & Root (UK) Ltd [1981] AC 557, [1981] 1 All ER 143.
Packer v Meagher [1984] 3 NSWLR 486.

Counsel:

Mr. J. Shepherd, for the Plaintiff
Mr. S. Bluett, appeared on his own behalf

RULING

26th August, 2009.

1. PALIAU, AJ: By a Notice of Motion filed on the 7th August, 2009, which came before me on the 19th August, 2009, the Plaintiff seeks the following orders:

"(1) The Plaintiffs revoked Notice of Discontinuance of these proceedings wrongfully filed herein by the Defendant on 14th July, 2009 be struck out pursuant to O.12 r.1 of the National Court Rules as an abuse of the Court’s process.

(2) Pursuant to O.10 r. 9A.7 of the Listing Rules of the National Court Rules, these proceedings be set down for a directions hearing before the Listings Judge on such date as this Honourable Court shall determine.

(3) The Defendant be referred by this Honourable Court to the Lawyers Statutory Committee of the Papua New Guinea Law Society pursuant to O.12 r.1 of the National Court Rules and/or s.52(2) of the Lawyers Act 1986 and/or the Court’s inherent jurisdiction under s.155(4) of the Constitution of the Independent State of Papua New Guinea for having filed the Plaintiffs revoked Notice of Discontinuance in circumstances:

(a) which amount to an abuse of the Court’s process; and/or

(b) where the Defendant being a lawyer, knowingly deceived or misled the Court within the meaning of Rule 15(2) of the Professional Conduct Rules 1989 made under the Lawyers Act 1986.

(4) The Defendant pay the Plaintiffs costs of and incidental to this Motion on an indemnity basis, such costs to be taxed if not agreed.

(5) Such further or other orders as this Honourable Court may deem fit, with liberty to apply.

(6) The time for entry of this Order be abridged to the time of settlement by the Deputy Registrar which shall take place forthwith."

2. The chronology of events culminating in the filing of the Notice of Motion are as briefly outlined by the Plaintiffs Chronology of Events filed on the 19th August, 2009, which I adopt as it succinctly puts the events in their logical perspective. And they are as follows:

"Chronology of events.

- 17th April 2009 – Defendant circulates his offensive e-mail the subject of these defamation proceedings to the Plaintiff, to the Plaintiffs fiancée Ms. Jyoti Nair to the Plaintiffs employer Dr. Jalal Mills and to the Defendant’s mother Mrs. Katie Bluett – Annexure "A" to Plaintiffs Affidavit.

- 28th April 2009 – letter from Blake Dawson acting for the Plaintiff to the Defendant requesting an immediate apology to be conveyed by 5 pm on 30th April 2009 – Annexure "B" to Plaintiffs Affidavit. 

- 30th April 2009 – letter from Jerewai Lawyers, the employer of the Defendant, to Blake Dawson advising that the Defendant requests an extension of time to convey his apology from 30th April 2009 to 1st May 2009 – Annexure "C" to Plaintiffs Affidavit. 

- 30th April 2009 – fax from Blake Dawson to Jerewai Lawyers granting the Defendant’s requested extension to 5pm on 1st May 2009 within which to convey the Defendant’s apology – Annexure "D" to Plaintiffs Affidavit. 

- 1st May 2009 – letter from Jerewai Lawyers to Blake Dawson advising that "due to a misunderstanding with hour client we conveyed to you wrongly that our client was going to provide an apology as you requested by the time line agreed to" – Annexure "E" to Plaintiffs Affidavit. 

- 14th May 2009 – Writ of Summons issued because Defendant had refused to convey any apology. 

- 10th June 2009 – Notice of Intention to Defend filed by Jerewai Lawyers – the Notice of Intention to Defend was signed by "Mr. Alois Jerewai by his employed lawyer SEAN DAVID BLUETT, Lawyer for the Defendant."

- 23rd June 2009 – Defence filed by Jerewai Lawyers. 

- 25th June 2009 – Parties sign Notice of Discontinuance. 

- 26th June 2009 – Defendant objects to Notice of Discontinuance because of his mother’s offer to pay the Plaintiffs legal fees. Blake Dawson gives letter of undertaking to Defendant not to file Notice of Discontinuance until the issues of fees is resolved. 

- 14th July 2009 – Photocopies of Plaintiffs revoked Notice of Discontinuance wrongfully filed by Defendant. 

- 15th July 2009 – letter of protest from Blake Dawson to Jerewai Lawyers, copied to Defendant."

ISSUES

3. The issues are:

(1) Whether the Plaintiffs revoked Notice of Discontinuance of these proceedings filed on 14th July, 2009 can be struck out pursuant to O.12 r.1 of the National Court Rules as an abuse of the Court’s process.

(2) Whether the Defendant can be referred to the Lawyers Statutory Committee for having filed the Plaintiffs revoked Notice of Discontinuance in circumstances which amount to a serious abuse of process and/or where the Defendant, being a lawyer, knowingly deceived of misled the Court within the meaning of Rule 15(2) of the Professional Conduct Rules 1989 made under the Lawyers Act 1986.

DETERMINATION OF ISSUES

4. In determining the issues I wish to point out at the outset that the outcome of issue (2) will depend on the answer to issue (1).

5. I will now deal with the issues and I will deal first with issue (1). Whether the Plaintiffs revoked Notice of Discontinuance of these proceedings filed on 14th July, 2009 can be struck out pursuant to O.12 r.1 of the National Court Rules as an abuse of the Court’s process.

6. Order 12 rule 1 of the National Court Rules (NCR) is in the following terms:

"The Court may at any stage of any proceedings, on the application of any party, direct the entry of such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process."

7. Order 8 rule 61 (1) states that a party making a claim for relief may discontinue proceedings so far as concerns the whole or any part of any claim for relief by him –

(a) where the pleadings are not closed – without leave or consent; and

(b) where judgment has not been entered – with the consent of all other parties; and

(c) at any time – with the leave of the Court. 

8. I note from the chronology of events that there was a Notice of Discontinuance in place signed by both parties which was yet to be filed by the Plaintiff. This is annexed to the affidavit of Naysan Hamadani as annexure "G". This was held back because the Plaintiff undertook not to file the Notice of Discontinuance until the issues of fees is resolved. This undertaking was contained in a letter to the Defendant dated 26 June 2009 and annexed to the affidavit of Naysan Hamadani as annexure "H". The undertaking was agreed to and given to the Defendant at about 9 am on 26 June 2009. 

9. On 10 July 2009, Blake Dawson on behalf of the Plaintiff wrote to the Defendant revoking the Notice of Discontinuance after the Defendant rejected his mother’s offer to pay the Plaintiffs legal costs in these proceedings. This letter of revocation is annexed to the affidavit of Naysan Hamadani as annexure "J". I view this letter as important because it states clearly the position in relation to the Notice of Discontinuance and I feel I must reproduce the contents in full. The letter reads:

"We refer to:

(a) our letter of undertaking dated 26 June 2009;

(b) your "without prejudice" e-mail to our client dated 26 June 2009, which we note you copied to Dr. Jalal Mills, Ms. Jyoti Nair and your mother.

As you rejected your mother’s offer to pay for our client’s legal costs in these proceedings to 25th June 2009, your mother arranged for her funds to be returned to her account. 

In view of the position with you have taken regarding the issue of payment of our client’s costs, all settlement negotiations which resulted in our client being prepared to discontinue these proceedings are of course now at an end. 

On instructions received from our client, the Notice of Discontinuance which we signed on behalf of our client on 25th June 2009 has been revoked. 

We returned herewith the original of your letter of apology to our client dated 25th June 2009. Our client considers that letter of apology and all copies of same to be as void as the Notice of Discontinuance which he previously authorized us to sign on his behalf and which has now been revoked.

This means of course that the proceedings in WS No. 539 of 2009 remain on foot.

However we request that you seriously reconsider your position regarding payment of our client’s costs. Our client is still prepared on an entirely "without prejudice" basis except as to costs to discontinue the current defamation proceedings against you on condition that you issue a fresh letter of apology to him on the same terms as were contained in your enclosed letter of apology of 25th June 2009 and that you agree to pay our client’s costs to date on an indemnity basis. Those costs are now estimated at approximately K 32, 500.

Written notification of your acceptance o these terms of settlement must be given to us by 5 pm on Friday 17th July 2009, failing which this offer of settlement will automatically lapse. In that latter event, we give notice that our client will, apart from damages, be seeking orders against you that you pay our client’s costs on an indemnity basis should you decline to settle on these terms and the matter perforce proceeds to trial."

10. On 14 July 2009, the Defendant filed the Plaintiffs revoked Notice of Discontinuance. It appears that this was filed after the defendant had received the Plaintiffs lawyer’s letter revoking the Notice of Discontinuance.

11. Mr. Shepherd of Counsel for the Plaintiff argues that the Notice of Discontinuance was filed by the Defendant after it was revoked by the Plaintiff. The Defendant therefore had no authority to file the Notice. Normally, in any proceedings it is the Plaintiff who should file the Notice of Discontinuance, as it is the party that is making a claim for relief. Second, Mr. Shepherd argues that the original Notice of Discontinuance is being held by them. A copy only was given to the Defendant. Thus the Defendant was not authorised and should not have filed a copy. Therefore, the Defendant had wrongly filed the Plaintiffs revoked Notice of Discontinuance and this should be struck out as an abuse of the Court’s process.

12. Mr. Bluett on his behalf argues that the filed Notice of Discontinuance was consented to by both parties and is deemed a consent order and therefore cannot be struck out as an abuse of Court’s process as it is duly registered at the Court’s Registry. His second argument is that if he had known that his mother was going to pay for the Plaintiffs costs of the proceedings, he would not have apologized thus culminating in the Notice of Discontinuance. He also raised the issue of estoppel, saying that the Plaintiff is estopped from departing from the legal relationship that the parties had in relation to the Notice of Discontinuance.

13. In my view it is trite law that it is the Plaintiff or an Applicant in any Court proceedings that files any Notice of Discontinuance. It is not the Defendant or the Respondent. And I agree with the submission by Mr. Shepherd. This view is fortified by O.8 r.61 of the NCR wherein it states that ‘a party making a claim for relief may discontinue proceedings’.

14. From the letter of revocation, it is very clear that the Plaintiff has revoked his Notice of Discontinuance. The letter was directed to the Defendant and he was aware of the revocation. For the Defendant to file a copy of the Plaintiffs revoked Notice of Discontinuance is wrong, as there was no consent and therefore not authorised and in my view is an abuse of the Court’s process and should be struck out and removed from the file: Castanho v Brown & Root (UK) Ltd [1981] AC 557, [1981] 1 All ER 143; Packer v Meagher [1984] 3 NSWLR 486.

15. As it is clear from the above view, the argument by Mr. Bluett that there was consent fails. The Notice of Discontinuance was revoked before it was filed. Therefore, there was no consent and no consent order in place.

16. It follows also that the estoppel argument fails. This is so because the legal relationship that existed in relation to the Notice of discontinuance no longer exists by virtue of the revocation.

17. I now discuss the second issue. As stated earlier, the answer to this issue is dependant on the answer to the first issue. As the answer to the first issue is what the Defendant did was an abuse of the Court’s process, is the Defendant liable to be referred to the Lawyers Statutory Committee for having filed the Plaintiffs revoked Notice of Discontinuance in circumstances which amount to an abuse of the Court’s process and/or where the Defendant being a lawyer, knowingly deceived or misled the Court within the meaning of Rule 15(2) of the Professional Conduct Rules 1989 made under the Lawyers Act 1986.

18. In my view what the Defendant has done is clearly an abuse of the Court’s process and for the Defendant being a lawyer to knowingly deceive and mislead the Court and the Court’s Registry is unprofessional and unethical and must be referred to the Lawyers Statutory Committee of the PNG Law Society: Paul Asakusa v David Dambali (2008) N3397.

19. I therefore grant the orders being sought in the Notice of Motion filed by the Plaintiff on 7 August 2009. I also add as part of the orders that the Defendant’s address for service for the purpose of these proceedings shall continue to be the office of Jerewai Lawyers until such time as the Defendant files a fresh address for service which shall be the address of a place within 15 kilometers of the Registry in compliance with the provision of O.6 r.7(1) of the National Court Rules.

_________________________________________

Blake Dawson Lawyers: Lawyer for the Plaintiff
Lawyer for the Defendant: Defendant in Person