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Nalepe v Nandape [2021] PGSC 42; SC2116 (12 April 2021)

SC2116

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 6 OF 2021 (IECMS)

BETWEEN:
RUBEN NALEPE
on behalf of certain Clan members,
First to Eleventh Applicants

AND:
JUDY NANDAPE
First to Third Respondents

Waigani: Hartshorn J.
2021: 8^th, 12^th April

SUPREME COURT – practice and procedure - Application for leave to appeal

Cases Cited:
British American Tobacco (PNG) Ltd v. TST 4 Mile Ltd (2011) N4589
Independent State of PNG v. Independent Timbers and Stevedoring Ltd (2016) N6331
Oberia v. Charlie (2005) SC801

Counsel:
Mr. R. Manrai, for the Applicants
Ms. J. Nandape, for the First and Second Respondents
Mr. P. Harry, for the Third Respondent

Oral decision delivered on
12^th April 2021:

1. HARTSHORN J: This is a decision on a contested application for leave to appeal an interlocutory decision of the National Court (decision appealed). The decision appealed was a refusal of an application to disqualify the lawyer, Ms. Judy Nandape and her firm Nandape and Associates Lawyers, from representing the defendant, the Porgera Local Level Government Special Purposes Authority (Authority) in National Court proceeding OS (HR) 2 of 2020 at Waigani.

Background

2. The applicants commenced a proceeding in the National Court against the Authority seeking amongst others, declarations and orders concerning the payment of royalties to which they are entitled.

Leave to appeal

3. The requirement to seek leave is a procedure that ensures that the Supreme Court is not clogged with appeals from every interlocutory ruling of a judge made before the final judgment.

4. In Oberia v. Charlie (2005) SC801, Lay J., after a comprehensive review of the authorities, listed the following tests that are to be applied to the facts of each application for leave to appeal:

a) is there an arguable or prima facie case or has it been demonstrated that the trial judge was wrong?

b) does the appellant have other recourse in the court below?

c) was the ruling within the discretion of the court? Has it been shown that its exercise was manifestly unreasonable, exercised on a wrong principle or a mistake of fact?

d) does the decision have any bearing on the final determination of the issues between the parties? Will it affect the primary rights of the parties or prevent the determination of the issues?

e) will substantial injustice be caused by allowing the decision to stand?

f) has cause been shown that the trial process should be interrupted by an appeal?

Application for leave

5. The applicants, supported by the third respondent, submit that leave to appeal should be granted as in essence:

a) the primary judge fell into error as it is clear that the Authority was without a proper board or controlling board to issue instructions to Ms. Judy Nandape and her law firm to represent the Authority in the subject proceeding. This was because the term of office of all trustees or office bearers had expired on 28^th April 2020 and there was no proper board in place to issue instructions to Nandape and Associates Lawyers by the time that Nandape and Associates Lawyers filed a notice of intention to defend or at any material time. Further, it was conceded by Nandape and Associates Lawyers that the term of office of those who had instructed them, had expired;

b) the primary judge fell into error by relying upon a National Gazette publication by the Minister for Inter-Government Relations which purported to name certain representatives of the Board of the Authority.

6. The first and second respondents, Ms. Nandape and the entity named as trading as Nandape and Associates Lawyers, submit that leave to appeal should not be granted as amongst others:

a) they were not named as parties in the National Court proceeding and the Authority is not named as a party to this application for leave to appeal;

b) it is a matter for the Authority as to who represents it. The applicants have not claimed that Nandape and Associates Lawyers hold confidential information concerning the applicants and this is the ground upon which a successful disqualification application must be grounded;

c) the decision of the primary judge does not affect the substantive rights of the applicants in the National Court proceeding.

Consideration

7. There is no evidence before the court for the court to consider whether the primary judge erred in his purported reliance upon the subject Gazettal publication. The court notes that the submission that it was conceded by Nandape and Associates that the term of the office of those who had instructed the firm had expired, was not denied. The applicants have an argument as to this issue. They may also have an argument concerning the Gazettal publication issue.

8. To my mind however, this is not sufficient to show that the applicants have an arguable or prima facie case that the decision appealed was incorrect and that the primary judge was wrong in refusing to order disqualification. I refer in this regard to the cases of British American Tobacco (PNG) Ltd v. TST 4 Mile Ltd (2011) N4589 and Independent State of PNG v. Independent Timbers and Stevedoring Ltd (2016) N6331 concerning the requirements for a successful application for a lawyer’s disqualification.

9. In any event, even if the primary judge did fall into error, the decision appealed is only concerned with the representation of the Authority. It is not determinative of any of the substantive rights of any of the parties in the National Court proceeding. The applicants are able to continue with their claims in the National Court. I am not satisfied that any injustice has been caused to the applicants by the decision appealed. Further, cause has not been shown in my view why the trial process should be interrupted by an appeal of the decision appealed.

10. The application for leave to appeal should be refused. Given this it is not necessary to consider the other submissions of counsel.

Orders

11. It is ordered that:

a) This application for leave to appeal filed 29^th December 2020 is dismissed;

b) The applicants shall pay the first and second respondents’ costs of and incidental to the said application.
__________________________________________________________________
Manrai and Associates: Lawyers for the Applicants
Nandape and Associates: Lawyers for the First and Second Respondents
Stevens Lawyers: Lawyers for the Third Respondent