N11093

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 252 OF 2023 (IECMS) - CC4

BETWEEN:
PATRICK THOMAS
Plaintiff

AND:
HELEN THOMAS
Defendant

Waigani: Coates, J
2024: 13th June
2024: 02nd & 3rd July
 
PROFESSIONAL PRACTICE - application to restrain lawyer - lawyer formally represented the defendant - lawyer seeks to represent a party to be joined - consideration of conflict of interest - consideration of professional duties. 

Cases Cited:
Papua New Guinean Cases

Toll v Kara [1990] PNGLR 71
Independent State of Papua New Guinea v Independent Timbers & Stevedoring    Ltd [2016] N6331
Independent Public Business Corporation of Papua New Guinea v Motor    Vehicles Insurance Limited (2015) N5982

Overseas Cases

Federal Court of Australia in National Mutual Holdings Pty Ltd v Century Corporation [1989] FCA 203 at 60
Rakusen v Ellis Munday & Clark [1912] UKLawRpCh47; (1912) 1 CH 831

Legislation

Professional Conduct Rules 1989. 

Counsel:  

Mr Larsen Tangua, for the Plaintiff 
Mr Joe Sunungu, for the First Defendant
Mr John Kumura, for Joinder-Applicant

DECISION

03rd July 2024

1.	COATES, J: In an estate matter an application has come before the court to restrain a lawyer, who is not yet representing a party, from acting. 
 
2.	Both the plaintiff and the defendant seek orders to restrain the lawyer who seeks to represent an applicant in a joinder application, and then to represent him if joined, for a possible third party, Mr Franco Thomas, from acting. 
 
3. The application is unusual because lawyers discharge their duty to both their client and the court and orders to progress a case are made for and against parties, and not usually against others or practitioners. 
 
4.   However, while not common, orders can be made against legal practitioners during the hearing of a case for a number of reasons. 
 
5.   Further, because there is a joinder application, such application would usually be heard first, but the lawyer, Mr John Kumura, has previously represented the defendant, and so I decided that should he be barred, the safer course would be to determine the applications against him first. 
 
BACKGROUND 
 
6.	The deceased Mr Thomas Kopal died intestate on 13 April 2022. 
 
7.	He left a substantial estate, being three tourist lodges, a business name for a school and about 800,000 Kina – the exact values to be determined at a later stage. 
 
8.	The evidence suggests that he had five wives three of which may have been alive at the time of death and fourteen children. 
 
9.	The evidence suggests that the defendant Helen Thomas being one of the deceased's wives, obtained letters of administration for the estate without informing other relatives and potential beneficiaries. 
 
10.	The defendant has two children to the deceased whom she married in 2016. 
 
11.	There is an allegation that she obtained the Letters of Administration (on 29 May 2023) without consent of other family members and without informing them. 
 
12.	There is also an allegation that she has used money from the estate. 
 
13.	On the plaintiff’s application, orders were made by the court on 3 July 2023 staying the Letters of Administration, restraining any dealing the defendant has with the estate, and freezing the deceased’s bank accounts.  
 
14.	The plaintiff is allegedly a son of the deceased and is seeking substantive orders which would set aside the Letters of Administration and that he be granted those administration responsibilities.  
 
APPLICATIONS TO RESTRAIN 
 
15.	The lawyer who both parties want to restrain from acting is Mr John Kumura. 

16.	Although the defendant was represented by another lawyer when she filed her defence in August 2023, Mr Kumura came into the matter as her lawyer later that month. 

17.	In doing so, he acquired all the responsibilities of undertaking and conducting her case, and all of the responsibilities for the defence work which had been completed and filed. 

18.	It is an onerous duty and he undertook actual representation in court for appearances in relation to late filing of material. 

19.	On 5 March 2024, Mr Kumura filed a notice of ceasing to act. 

20.	The reasons for the parting of the defendant and Mr Kumura is irrelevant to these proceedings, both giving their version of events.  
 
APPLICATIONS 
 
21.	On 8 April 2024, Mr Franco Thomas filed an application by way of notice of motion to be joined as a party. 

22.	He claims he is a son of the deceased and so has an interest in the estate. 

23.	He is being represented by Mr John Kumura 

24.	Mr Franco Thomas seeks to have the public curator appointed as an interim administrator although in submissions Mr Kumura stated he is not otherwise seeking to upset the administrative powers held by miss Helen Thomas. 

25.	On 22 May 2024 the defendant Helen Thomas filed a notice of motion seeking orders to disqualify Mr Kumura from acting and on 23 May 2024 the applicant made similar application. 
 
THE LAW 
26.	Both applications rely on order 12 rule one of the National Court Rules and section 155 (4) of the Constitution as the legal basis to disqualify a practitioner.  

27.	Both of those sections give the court ample power two restrain a lawyer from acting, Order 12 allowing any order to be made as the nature of the case requires and Section 155 merely or states the inherent powers a court has to control its proceedings.  

28.	There is not a real challenge to the use of those powers can be put to by Mr Kumura. 

29.	The plaintiff further relies on section 10(4), (7) and (8) of the legal profession’s Professional Conduct Rules 1989. 

30.	I will set the relevant subsections of section 10.  

10. CONFLICT OF INTEREST 
(4) A lawyer a firm of lawyers shall not represent or continue to represent conflicting interests in litigation. 
 
(7) Where a lawyer has accepted instructions from 2 clients in a matter and a conflict develops between the interests of those clients, the lawyer shall immediately inform each of the clients that he has forthwith ceased to act for them and that they each must instruct other lawyers. 
(8) Where – 
(a) a lawyer has represented a client; or 
(b) because of a lawyers association with a law firm he has had access to a client's confidences, that lawyer shall not thereafter use such information against that client’s interests or for the benefits of any other person. 
 
35.	The applicants here also referred to cases, two of which go to important considerations in this case and both of which come from a long line of cases. 
 
36.	In Independent Public Business Corporation of Papua New Guinea v Motor Vehicles Insurance Limited (2015) N5982 at 27, it was said: The test to be applied in this inherent jurisdiction is whether a fair minded, reasonably informed member of the public would conclude that the proper administration of justice requires that legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.” 
 
37.	That test follows the same approach as taken by courts in other countries exercising a similar jurisdiction to the courts of Papua New Guinea, as cited in the judgement of Hartshorn J in Independent State of Papua New Guinea v Independent Timbers & Stevedoring Ltd [2016 N6331],  which quoted Gummow J then of the Federal Court of Australia in National Mutual Holdings Pty Ltd v Century Corporation [1989] FCA 203 at 60: “Reliance has been placed in Australia upon the decision of the English Court of Appeal in Rakusen v Ellis Munday & Clark [1912] UKLawRpCh47; (1912) 1 CH 831, that a solicitor is precluded and will be restrained from acting for an opponent of a former client where the solicitor, as the result of having previously acted for the client, obtain confidential information and it reasonably can be anticipated that in the course of acting for the opponent of the former client, the solicitor may consciously or inadvertently make use of that information in breach of his duty to the former client: Vatousios, “Solicitors Acting Against Former Clients”, (1983) Victoria Law Institute Journal 976”. 
 
38.	Counsel for the plaintiff accepted that there was no apparent conflict of interest between his client and Mr Kumura. 
 
39.	However, he submitted that Mr Kumura’s position was untenable because he owed a duty to the court higher than the duty to his client, and his duty was not to come to court with conflicts of interest or potential conflicts of interest. 
 
40.	He submitted it was a conflict of interest to have represented the defendant and supported her position with affidavits from four people, who now gave affidavits against her position in support of Mr Franco Thomas, the joinder application which is yet to be heard. 
 
41.	Interpreting the submission and after considering questions between the bench and the bar it is clear that counsel for the plaintiff is stating that the fair minded, properly informed member of the public would conclude that the proper administration of justice had gone awry in this matter. 
 
42.	Counsel for the plaintiff agreed with the submissions made by counsel for the defendant. 
 
43.	Counsel for the defendant was very clear in his submission that having previously represented his client (the defendant), Mr Kumura must have gained knowledge of his client’s affairs and is now representing a possible litigant whom his client opposes. 
 
44.	Mr Kumura submitted that the plaintiff really has no standing to bring the application because there is simply no conflict of interest between his client Mr Franco Thomas and the plaintiff. 
 
45.	He said he does not know the plaintiff personally and has not spoken to the plaintiff and so he could not have gained any personal knowledge which could be used prejudicially or have knowledge which he would not otherwise know other than from representing his new client. 
 
46.	As to the defendant whom he represented previously he said she had made deliberate misleading statements with a lot of factual errors in her affidavit supporting this particular application. 
 
47.	I will say this, in this particular hearing the court is in no position to determine facts, but since the submission was put, there is a dispute between the defendant and the possible party Mr Franco Thomas, and Mr Kumura has prepared legal materials for both in this matter 
 
48.	Mr Kumura also said that since the defendant is claiming a conflict of interest she would be required to write to him providing details of what she claims amount to a conflict of interest and to provide evidence of such (see paragraph 13 of his written submissions). 
 
49.	He also said there can be no conflict of interest and no use of private information because all of the people know each other. 
 
50.	Such a submission was not helpful. Firstly, I do not know that they all know each other so intimately that they each would have deep knowledge of relationship issues which are likely to arise in this matter. 
 
51.	The submission was not helpful either because four witnesses who were supporting the defendant’s case, whose affidavits were prepared by Mr Kumura, are now supporting Mr Franko Thomas’s case and Mr Kumura prepared their affidavits. 
 
52.	Mr Thomas is seeking orders to have the Public Curator appointed as an interim administrator, a case the defendant opposes, and so that creates an immediate conflict between their interests and her interests. 
 
53.	The defendant relies on the test called a conflict of interest and there could be no clearer example of a conflict of interest where affidavits are prepared at one time in support of one litigant and new affidavits of the same people prepared at another time which not only criticise the litigant formally supported, but make statements totally opposing the case of that litigant. 
 
54.	A conflict of interest can arise in any number of situations, and it is not limited too a usual circumstance where one party may have a direct benefit because of the conflict. 
 
55.	In litigation plaintiffs and defendants most usually have conflicts of interest but that is not the same as a lawyer having a conflict between parties he has represented. 
 
56.	He or she cannot effectively represent one and then the other, taking into account confidentially, prudence, legal advice and professional advocacy. 
 
57.	A conflict of interest for a lawyer is placing themselves in a position where, taking those duties into account, displaces the paramount duty to the court.  
 
58.	It can arise from prior contact, either privately or as in this case, professionally. 
 
59.	The submission by Mr Kumura that any conflict of interest or prejudicial knowledge should be particularised is totally at odds with the test given in Independent Public Business Corporation quoted above, which is what the fair minded, reasonably informed member of the public perceives, who could or would conclude that the administration of justice was going wrong. 
 
60.	 The justice system does not disregard its reputation for being seen to be doing justice, nor can it, because there may always be the public thought that something underhanded was occurring. 
 
61.	 While the general public may not understand that a lawyer may remain aloof from the allegations their clients may make, the very same general public can easily understand that the special skills of a lawyer do not allow for representing a litigant on one occasion and then opposing the litigant on another occasion, either within the same proceedings or not. 
 
62.	That is where the professional rules become important, and direct a lawyer not to place themselves in the position where conflicts may arise. 
 
63.	The conclusion I have reached on the evidence is that Mr Kumura is in a position of having a conflict of interest with the defendant, his former client, and would be in a position where any knowledge or information gained, although not yet stated in affidavit material, may be useful and used at a later stage prejudicially against the former client. 
 
64.	The informed member of the public would question the administration of justice when one lawyer represents different litigants in a matter. 
 
65.	Such can happen even inadvertently. 
 
66.	Further, on his own submissions Mr Kumura was aware that he could put himself into a position where he would have a conflict of interest. 
 
67.	He refers to such a paragraph 15(4) of his written submissions. 
 
68.	He said this “I was concerned that I could be in a conflict of interest situation but Franco Thomas said he had no issue; hence I took the case”. 
 
69.	With all due respect Mr Kumura asked the wrong person, because any knowledge he had would be in Mr Franco Thomas is favour and it was the defendant Mrs Helen Thomas who was always in the position to object to Mr Kumara’s representation, and he knew or ought to have known of the position he had placed himself in. 
 
70.	On that basis pursuant to both Order 12 Rule 1 and section 155,  subsection 4 of the Constitution, I will make an order restraining Mr Kumura from acting in this matter. 
 
71.	Finally, counsel for the plaintiff referred to court to Toll v Kara [1990] PNGLR 71 where the court interpreted improper conduct, being “ ‘Improper conduct’ by a lawyer in pursuit of his profession is what would be reasonably regarded as disgraceful or dishonourable by his fellow lawyers of good repute and competency, and dishonesty is not a necessary element”.  
 
72.	That there was no evidence saves Mr Kumura from being subject to indemnity costs, although I will make a solicitor and own client costs order, for both parties against him, on the basis that he is an experienced practitioner and should never have undertaken this exercise once he and the defendant parted company. 
 
73.	Having said that, while there was no evidence that Mr Kumura had progressed to that state whereby the label of improper conduct could be applied (see Toll v Kara [1990] PNGLR 71, it is a lesson for all lawyers. 

ORDER 

1.	That pursuant to Order 12 Rule 1 of the National Court Rules and section 155 (4) of the Constitution and the inherent powers of the court, Mr. John Kumura of Kumura lawyers is hereby restrained from Acting any further in this matter. 

2.	That Mr. John Kumura pay both the applicant and the defendant costs on a solicitor's own client cost basis. 
 
Judgment accordingly.
________________________________________________________
Tangua Lawyers: Lawyers for the Plaintiff
Fortis Legal Services: Lawyers for First Defendant
Kumura Lawyers: Lawyers for Joinder-Applicant