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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WS 1369 OF 2013 (CC1)
BETWEEN:
TABUBIL ENGINEERING LIMITED
Applicant/Plaintiff
AND:
ARMA HOLDINGS LIMITED
Respondent/First Defendant
AND:
BENJAMIN SAMSON in his capacity as REGISTRAR OF TITLES
Second Defendant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
WAIGANI: BRE J
12, 18 NOVEMBER 2025
INTERLOCUTORY APPLICATION – application to disqualify law firm – plaintiff's lawyer now employed with first defendant’s lawyers – lawyer client privilege – whether there is confidential information and potential for breach of confidentiality – evidence required to disprove claim - application granted.
Cases cited
Belan v Casey [2002] NSWSC 58
British American Tobacco (PNG) Ltd v TST 4 Mile Ltd [2011] N4589
Mancini v Mancini [1999] NSWSC 800
Prince Jefri Bolkiah v KPMG (A Firm) [1998] UKHL 52; [1999] 2 AC 222
Counsel
Mr G. Geroro for the applicant / plaintiff
Mr S. Thoke for the first defendant/respondent
Ms Z. Waiin for the second and third defendants
RULING
1. BRE J: On 12 November 2025, two motions were listed for hearing before me; one for summary dismissal by the first defendant and the other by the plaintiff’s lawyers for disqualification of the law firm representing the first defendant.
I heard the plaintiff’s application for disqualification first, as it affects Mr Thoke’s ability to move the summary dismissal application.
2. Mr Geroro moved the application for disqualification, which is supported by his affidavit[1]. The application seeks orders that the law firm Namani & Associates, be disqualified from representing the first defendant because the lawyer who had carriage of the plaintiff’s case, Mr Chou-Lee, while employed with Mr Geroro’s firm; is now employed with Namani & Associates who represent the first defendant. He submits this compromises and prejudices the plaintiff’s case because Mr Chou-Lee had carriage of the plaintiff’s case and had unfettered access to confidential discussions about the litigation strategy for the plaintiff.
3. Mr Thoke opposed the application by challenging the evidence to point out that no precise statement of the type of confidential information that is at risk of compromising the plaintiff’s case was disclosed by Mr Geroro’s evidence. That the proper party to raise concerns for breach of confidence is the client, Tabubil Engineering, and not the law firm.
Further, that the timing of the application did not demonstrate that there was any real risk to the plaintiff’s case because seven months had passed since Mr Chou-Lee had left the employment of Geroro Lawyers. Mr Thoke did not rely on any evidence.
4. Ms Waiin for the State, supported Mr Thoke’s submissions also disputing the credibility of the evidence.
5. The jurisdictional basis to make the application is not disputed so I will not dwell on this. The applicable law as agreed by all counsel is that of the requirements in Prince Jefri Bolkiah v KPMG (A Firm) [1998] UKHL 52; [1999] 2 AC 222 which was adopted and applied by His Honour Hartshorn J in British American Tobacco (PNG) Ltd v TST 4 Mile Ltd [2011] N4589, which requires the Court to consider two requirements:
6. I accept Mr Geroro's submission that there is a third alternate requirement for the Court to consider which is to apply its inherent jurisdiction and the application of the test of a fair-minded reasonably informed observer. See Prince Jefri Bolkiah v KPMG
7. The following issues arise for my consideration:
8. This case raises issues affecting a lawyer’s duty to his/her client and the risk of disclosure or breach of that duty when the lawyer is then employed by the rival firm.
9. Here, the uncontested evidence is that Mr Chou-Lee represented the plaintiff while employed with Geroro Lawyers. He was employed with Geroro Lawyers from 22 March 2021 to 28 Match 2025.
10. Mr Geroro deposes[2] that the following matters indicate confidential information within the knowledge of Mr Chou-Lee:
“While employed by GL, Mr Chou-Lee appeared on the record for TEL under my direct supervision. He participated in confidential strategic discussions, provided legal advice, attended contested hearings, and had full access to privileged client communications and documents. His involvement was substantial and integral to the conduct of this proceeding.”
11. I accept Mr Geroro’s evidence, in the absence of opposing evidence, that he discussed the litigation strategy for the plaintiff with Mr Chou- Lee and he had access to confidential client information.
12. Neither Namani & Associates nor Mr Chou-Lee filed any affidavits to clarify their positions. Mr Thoke submitted that they saw no need to file an affidavit and made submissions on points of law to counter the application.
13. Mr Thoke submitted that the comments by the NSW Supreme Court in Belan v Casey [2002] NSWSC 58 at [17] and [23] demonstrate that the type of confidential information must be specified, the Court explained at [17]:
"Prince Jefri decided two basic points: (a) the basis of the claim is the fiduciary duty to maintain information as confidential; and (b) that it is sufficient if the plaintiff demonstrates that there is a real and not fanciful risk of disclosure of confidential information, though it is not necessary to show that the risk is substantial."
And at [23] that:-
" In Mancini v Mancini [1999] NSWSC 800, Bryson J said that where a claim is made on the basis of possible misuse of confidential information, it is necessary to state precisely what information is being protected. That case was not one dealing with solicitors, but the proposition must be generally applicable. "
[Emphasis added)
14. However, in Mancini v Mancini it was clarified[3] that the plaintiff did not give evidence about the confidential nature of the information.
15. The facts in Belan v Casey are different to this case and do not concern lawyer/client obligations and the Court found no confidential information in the evidence. Both these cases can be distinguished on their facts, to this case.
16. The comparable case in our jurisdiction is British American Tobacco (PNG) Ltd v TST 4 Mile Ltd. In that case, the Court found there was no disclosure of confidential information because the lawyer who was alleged to be in conflict gave evidence disputing the allegation which supported him. Mr Chou-Lee has not provided any evidence.
17. The substantive proceeding is a contested proceeding and has been on foot since 2013. The proceeding concerns interest in prime land situated in downtown Port Moresby. Both parties substantial interests are at stake. Mr Chou-Lee had appeared before me and on several occasions for the plaintiff, when he was employed with Geroro Lawyer and some of those occasions were against Mr Thoke who is acting for the first defendant.
18. Mr Geroro is concerned with the risk of the litigation strategy for the plaintiff which Mr Chou-Lee was privy to from being disclosed to the lawyers in Namani & Associates.
19. It is not evident that strategy has been disclosed, however, the risk of disclosure is flagged for the Court to treat as serious and to disqualify the Namani & Associates from representing the first defendant.
20. A lawyer owes a professional duty to maintain the confidence of his/her client while (s)he is on a retainer. There is also an expectation that (s)he will protect that information after (s)he leaves the employment of a firm, where the information (s)he had access to is relevant to the former client in an ongoing litigation. See Prince Jefri.
21. A lawyer also has a duty to protect information from disclosure by his association with a law firm after he leaves. PCR rule 10(8) (b).
22. Mr Thoke has not relied on any evidence to dispute the nature of the information deposed to by Geroro.
I do not accept his submission that Mr Geroro’s evidence is hearsay because he provides direct evidence of discussions held with Mr Chou-Lee about the plaintiff’s case. He is not required to disclose the confidential aspect of the case either, for obvious reasons.
23. Once Mr Geroro provided evidence of his concerns, the burden of proof shifted to Namani & Associates to disprove the claim.
A proper way to disprove the allegation is by evidence from the lawyer concerned or by the firm that there are internal processes in place to protect confidence or what is known as an 'ethical wall’ within the firm.
24. The issue of the timing of the application raised by Mr Thoke is explained by Mr Gerroro's evidence that he had forewarned Namani & Associates on 5 May 2025 which demonstrates he expressed is concerns early on.
25. There is no evidence from Namani & Associates about the size of the the firm nor its internal measures to protect client confidentiality to avoid conflicts of interests, I accept Mr Geroro’s submission that there is a risk of disclosure and prejudice to the plaintiff because of Mr Chou-Lee's active carriage of the plaintiff’s case while in his employment.
26. Disclosure of confidential information can occur unwittingly or accidentally through informal conversations with other lawyers or collegues within the firm. The concerns of Mr Geroro are genuine.
27. A fair minded reasonably informed observer can draw a conclusion of a real risk of disclosure and prejudice to the plaintiff’s case when the plaintiff’s then lawyer has joined the law firm representing the other party, the first defendant.
28. While the lawyer’s duty was primarily to the client, and not the law firm, that employed him, the lawyers Professional Conduct Rules Rule 10 (8) (b) also extends the duty to protect confidence of the clients that a lawyer has come to know by association with
the law firm. That association can be by employment or as an agent or contractor of the firm.
This rule in my view justifies the application brought by the principle of the law firm, Mr Geroro.
29. Risks are potential threats that may occur and are mitigated by measures to avoid or minimise the possibility of the threat occurring. When the risk occurs it is too late to fix it.
30. I find that the likelihood of prejudice to the plaintiff’s litigation is a risk that Mr Geroro has persuaded this Court is likely to occur.
31. I therefore consider it is proper in the administration of justice, to exercise my discretion to intervene to minimise the risk of prejudice, by granting orders sought to disqualify Namani & Associate Lawyers from representing the first defendant.
32. Costs are in the cause.
33. Time for entry of these orders is abridged to the date of settlement by the Registrar of the National Court which shall take place, forthwith.
Orders and Ruling accordingly
Lawyers for the plaintiff: Geroro Lawyers
Lawyers for the first defendant: Namani & Associates Lawyers
Lawyer for the second and third defendants: Solicitor General
[1] Court file document No 131.
[2] At paragraph 5, Court File document no 131.
[3] At paragrapgh 5 of the decision.
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URL: http://www.paclii.org/pg/cases/PGNC/2025/453.html