N5398

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

WS 216 OF 2011 (COMM)

BETWEEN:

SEG DEVELOPMENT COMPANY LIMITED
First Plaintiff

AND:

KIKI RESOURCES SERVICES LIMITED
Second Plaintiff

AND:

KOBS ENGINEERING LIMITED
Third Plaintiff

AND:

GOBE BUSINESS DEVELOPMENT COMPANY LIMITED
trading as GOBE FIELD ENGINEERING
First Defendant

AND:

ESSO HIGHLANDS LIMITED
Second Defendant

AND:

SPIECAPAG NIUGINI LIMITED
Third Defendant

AND:

CURTAIN BROS PNG LIMITED and CLOUGH
NIUGINI LIMITED trading as CCJV
Fourth Defendant

Waigani: Hartshorn J.
2013: 20th September,
: 11th October

Objection to appearance of Counsel – Order 2 Rules 33, 35, 39(1) and 40 National Court Rules considered

Case cited: 

Hilary Singat v. Commissioner of Police (2008) SC910

Counsel:

Mr. J. Haiara, for the Plaintiffs
Mr. M. Nale, for the First Defendant

11th October, 2013

1. HARTSHORN J: This decision concerns the notice requirements under the National Court Rules when a party changes his lawyer.

2. Before the hearing of an application to dismiss this proceeding for want of prosecution, counsel for the plaintiffs objected to Mr. Nale of Jema Lawyers appearing for the first defendant. This was because the plaintiffs' lawyers had not been given notice by Posman Kua Aisi Lawyers that they had ceased to act for the first defendant pursuant to Order 2 Rule 39 (1) National Court Rules. Rule 39 (1) is: 

"39. Withdrawal of a solicitor.

(1) Where the solicitor acts for a party to any proceedings and afterwards ceases to act, the solicitor may, subject to Sub-rule (2), file notice of the change and serve the notice on the parties."

3. Counsel for the plaintiffs submitted that such notice is necessary pursuant to Order 2 Rule 40 National Court Rules which is:

"40. Effects of change.

A change of which notice is required or permitted to be filed under any of Rules 35, 36, 37, 38 and 39 shall not have effect as between a party or solicitor to which the change relates on the one hand and the Court or any other party on the other hand until notice of the change is filed and, as regards any other party, served on that other party."

4. It was conceded by counsel for the plaintiffs that the plaintiffs' lawyers had been served with a notice of change of lawyer that gave notice that amongst others, Jema Lawyers now acts for the first defendant in place of Posman Kua Aisi Lawyers. However, it was submitted that in addition to this notice, Posman Kua Aisi Lawyers should have served notice that they had ceased to act for the first defendant, otherwise the change of lawyer would not have effect.

5. Mr. Nale submitted that a notice of change of lawyer had been served upon the plaintiffs' lawyers as had been conceded, the plaintiffs had not raised this issue until now, over three months since the change had occurred, and that the plaintiffs had not suffered any prejudice as a result of the change.

Consideration

6. From a perusal of Order 2 Rule 40, it is the case as submitted by counsel for the plaintiffs that a notice required or permitted under Rule 39 shall not have effect, as regards any other party until it is served on the party. It is also the case however that a notice required or permitted under Rule 35 shall have effect, as regards any other party from when it is served on the party.

7. Rule 35 is:

"35. Change of solicitor.

(1)	Where a solicitor acts for a party in any proceedings, the party may change his solicitor.

(2)	Where a party changes his solicitor, he shall file notice of the change and serve a notice on the other parties and, where practicable, his former solicitor."

8. In this instance, it is conceded that a notice of change of lawyer was served upon the lawyers for the plaintiffs. Pursuant to Rule 40 National Court Rules, that notice took effect as regards the plaintiffs, when it was served upon their lawyers. That the notice under Rule 35 was able to be filed by the first defendant's new lawyers as distinct from the first defendant, is to my mind provided for under Rule 33 which is:

"33. Power to act by solicitors.

(1)	Every matter or thing which under an Act or these Rules is required or allowed to be done by a party may be done by his solicitor.

(2)	Sub-Rule (1) does not apply where the context or subject matter otherwise indicates or requires."

9. In this instance, I am satisfied that the context and the subject matter does not otherwise indicate or require.

10. Given the above I am satisfied that the plaintiffs were given notice of the change of lawyer of the first defendant as required by Order 2 Rules 35 and 40. If the first defendant's former lawyers, Posman Kua Aisi Lawyers, had ceased to act for it as distinct from the first defendant deciding to change its lawyer, then notice pursuant to Order 2 Rule 39 (1) would have been required.

11. I note in passing that if counsel for the plaintiffs had wanted clarification as to which lawyer was acting for the first defendant, after receiving the notice of change of lawyer, common sense dictates that a phone call, facsimile or e-mail enquiry of either Posman Kua Aisi Lawyers or Jema Lawyers would no doubt have provided such clarification.

12. Lastly, I refer to the Supreme Court case of Hilary Singat v. Commissioner of Police (2008) SC910 in which the Court said amongst others: 

"In our view, a lawyer who files documents in any court proceedings for and on behalf of a party or gives notice that he or she is acting for a party is deemed to have the necessary instructions if not the actual instructions, at least, his clients ostensible authority to so act."

13. For the above reasons, the objection of the plaintiffs to Mr. Nale appearing for the first defendant is refused. Costs shall follow the event and time is abridged.

______________________________________________________

Steeles Lawyers: Lawyers for the Plaintiffs 
Jema Lawyers: Lawyers for the First Defendant