N11194

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS NO. 175 OF 2024 (IECMS) (CC4)

EAST NEW BRITAIN PALM OIL LIMITED
Plaintiff

V
ELIAS KAMARA- CHIEF EXECUTIVE OFFICER, KAIRAK LIMITED
Defendant

WAIGANI: COATES J
20 March 2025

PROFESSIONAL PRACTICE - application to restrain lawyer - lawyer has acted previously for applicant - lawyer now representing defendant – consideration of such restraint - consideration of professional duties

Cases cited

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

Counsel
  
Mr I. Dalu for plaintiff 
Mr E. Wamp for defendant

DECISION
1.	COATES J: I heard submissions on this matter this morning and am in a position to deliver judgment now.

2.	During the course of a matter in which the plaintiff seeks injunctions and declarations preventing the defendant from interfering with its palm oil operations, a fundamental question with regard to legal representation has arisen.

3.	By way of Notice of Motion filed 16 December 2024, the plaintiff seeks to prevent the lawyer for the defendant Mr Edward Wamp, from acting for the defendant, as he has represented the plaintiff and the plaintiff’s associated companies previously.

4.	The subject matter of the substantive action does not bear in any way upon what is said to be a conflict of interest for Mr Wamp.

5.	An executive of the plaintiff company, Mr Lew Kiat Keong, in an affidavit filed 16 December 2024, states at paragraphs 19, 20, 21and 22, that: 

“20. Additionally, we would like to object to Mr Edward Wamp of Edward Wamp lawyers dealing with this matter or acting on behalf of the defendant. Edward Wamp has full knowledge of the working relations that we had with the defendant as he used to act on behalf of the company for about ten (10) years.

21. It would want lawyers was under a retainer for the Tzen Group of Companies consisting of Tzen Plantation Limited, Tzen Niugini Limited and East New Britain Palm Oil Limited (Tzen Group). Under the retainer agreement, Edward wamp lawyers is prohibited from acting for or representing a person against the Tzen Group five (5) years after the retainer ceases.

Annexed as an Annexure B is a true copy of the retainer with the Conflict Clause

22. On 2 October 2024, our lawyer advised Edward Wamp Lawyers not to represent the defendant because of conflict as he had previously dealt with company matters. He responded that he was not conflicted as it was a different piece of land. We disagree with this position.”

6.	In his opposition to this application Mr Wamp admits that he has acted for the plaintiff and its associated entities previously but has not acted in this particular matter and so has no knowledge of the plaintiff in regard to this particular matter.

7.	He agreed that he had acted for the plaintiff and associated entities by way of a retainer agreement since 2014, however all contact between himself, and the plaintiff ceased in 2023.

8.	Mr Wamp genuinely believes he does not have a conflict of interest and has sworn to that effect.

9.	Mr Wamp referred me to the legal profession’s Professional Conduct Rules 1989 and in particular section 10.

10.	The relevant provisions state as follows:

“10. CONFLICT OF INTEREST 
(4) A lawyer or a firm of lawyers shall not represent or continue to represent conflicting interests in litigation. 
 
(7) Where a lawyer has accepted instructions from two 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 lawyer’s 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.” 
 
11.	A conflict of interest may occur in many ways and in a legal context would involve owing a duty, or the perception of owing a duty, to separate parties. Rule 10 is simply stating a form of a breach of confidence which is one of the grounds said to occur in this case.

12.	As well, this type of application seeks to protect the judicial process. 

13.	The cases explain the position.

14.	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 the 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.” 
 
15.	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 highlighted in the judgment 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, obtained 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”. 

16.	Those cases lay down a very wide test to be applied – and although lawyers may form the view that it is too wide, that could only be formed because of, naturally, self-interest.

17.	That is not a criticism by any means, and I should state that Mr Wamp has presented himself genuinely believing that he does not have a conflict of interest.

18.	However, conflict of interest, as the cases show, extend to that situation where unconsciously, information confidential to the applicant, could be disclosed.

19.	The Rakusen v Ellis Munday & Clark case refers to anticipatory disclosure, the word anticipatory meaning here that the court needs to take preventative, defensive or pre-emptive  measures so as to protect the legal process, as well as litigants.

20.	Thus the test is wide, to give litigants and the public confidence in that very institution established to protect their rights.

21.	While I accept that Mr Wamp does not have direct knowledge of the plaintiff in relation to the particular matter before the court, the test is such that he should be excluded from acting because he has a broad general knowledge of the plaintiff’s business operations, and these could be used unconsciously against the plaintiff in the proceedings.

22.	On that basis, I will make a restraining order against him.

23.	I will make a costs order against the defendant in favour of the plaintiff, to be agreed or as assessed.

24.	The defendant has a Notice of Motion to dismiss the matter – I will have to adjourn that until the defendant arranges its legal representation.

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. Edward Wamp of Edward Wamp Lawyers is hereby restrained from acting any further in this matter. 

2.	The defendants pay the applicant’s costs as agreed or as assessed. 

3.	The Notice of Motion filed by the defendant on 4 November 2024 is adjourned.

4.	The matter is adjourned 10 April 2025 at 9.30am.

Judgement Accordingly
________________________________________________________________
Lawyers for the plaintiff: Ainui Legal Services
Lawyers for the fourth defendant: Edward Wamp Lawyers