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Yayabu v Lawyers Statutory Committee [2005] PGNC 51; N2906 (4 August 2005)

N2906

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 449 OF 2002

Between:

PAULA IVARAMI YAYABU
-Plaintiff-

And:

LAWYERS STATUTORY COMMITTEE
- Respondent-

Waigani : Injia, DCJ
2005 : 2 & 4 August

Civil – Practice and procedure – Place of trial – Transfer – Cannot be done administratively - Can only be done by Order of Court – Urgent and Extra-ordinary reasons warranting a transfer must be shown by applicant – National Court Rules, Order 10 rule 2 and rule 11; Practice Direction No. 1 of 1992 and Practice Direction No. 7 of 2001.

Cases cited:
No cases cited in the judgment.

Plaintiff in person
R. Raurela for Respondents

4th August 2005

INJIA, DCJ: The Plaintiff is a lawyer based in Lae. The Respondent is based in Port Moresby. These proceedings for judicial review of the Respondent’s decision was filed at Waigani National Court, by her Port Moresby-based lawyers, Henao Lawyers, on 14 August 2002. On 3 March 2005, Henao Lawyer filed Notice of Ceasing to act. She now has carriage of the matter herself.

Leave to apply for judicial review was granted on 23 August 2002. On 3 November 2004, Henao Lawyers filed Notice of Motion under O.16 r.5(1) of the National Court Rules, seeking substantive relief. On 4 February 2005, the Respondent filed Motion to set aside order granting leave on 23 August 2002. On 22 June 2005, the Respondent filed Notice of Motion seeking to dismissal of the proceedings for want of prosecution. All three Motions are pending hearing.

By Motion filed on 21 July 2005, the Plaintiff applies for an order transferring the proceedings to Lae National Court where she is based. She says it is costly for her to travel to Port Moresby for the matter. She has travelled down for the case on a number of occasions and because she is a sole practitioner in Lae, it is affecting her practice. She also says now that she has carriage of the matter herself, she wants the proceedings to be transferred to Lae.

Mr Raurela for the Respondent submits the Plaintiff instructed counsel in Port Moresby and through her lawyer, she chose to file the proceedings in Waigani. Therefore, the proceedings must continue to conclusion in Waigani National Court. It would be costly for the Respondent to travel to Lae.

The transfer of proceedings from one National Court location to another National Court location in the country where there is a resident judge is not covered by the National Court Rules which were made in 1983, because at that time there were no National Court judges resident in the Provinces and there were no provincial National Court registries. This changed in about 1986 when the National Court began decentralizing to the provinces. Today, there are resident judges and Provincial National Court registries in Lae, Mt. Hagen, Kokopo, Goroka, Madang, Wabag and Kimbe.

The present application may be treated, in effect, as an application to transfer the place of trial of the substantive matter from Waigani to Lae. This is covered by Order 10 rule 2 (place and mode of trial) and Order 10 rule 11 (Time and place of trial). These rules provide that upon application by a party or the Court of its own motion, may "appoint other places within Papua New Guinea for the trial of any proceedings" or "the Court may make such order as if this fit for fixing the time and place of trial."

The transfer of proceedings to a different provincial location is now governed by Practice Direction No. 1 of 1992 issued on 21 January 1992. This is the latest Practice Direction on the subject. This Practice Direction modifies Practice Direction Gen. No. 7 of 1991. These Practice Directions are now published in the Book entitled Practice Direction & Notes (issued by the Registrar between 1983 – 2004) NJSS Publication, 31 December 2004: see p.24 – 27, 40 – 41. Copies of this Book have been distributed to Lawyers and the public through e-mail or on the Judiciary Website. Hard copies are available from the National Court Library, for a fee.

What Practice Direction No. 1 of 1992 says is that no matter will be transferred to another National Court location except upon Court Order. Application is made by Notice of Motion supported by affidavit showing "urgent and extraordinary reasons warranting a transfer". For the information of lawyers, the practice of an administrative transfer of a Court file by Registry or Judges staff from one National Court location or Registry to another ceased in 1991 as from the date of issue of Practice Direction No. 7 of 1991. It is only done upon Court Order.

Both parties in the present matter appear to be unaware of the rules I have quoted from the National Court Rules and the Practice Directions because they had difficulty citing them to me during submissions. I urge lawyers appearing before the Court to familiarize themselves with the relevant Rules and Practice Directions before they come to Court and refer to them in their submissions.

Under the Rules and Practice Directions referred to, the transfer of proceedings is discretionary. The onus is on the applicant to satisfy the test set out in Practice Direction No. 1 of 1992. In the present case, on the evidence before me, I am satisfied that the Plaintiff has satisfied that test. As a resident of Lae, the Plaintiff was entitled to and could have filed the proceedings in the Lae National Court. However, she exercised her right to instruct lawyers in Port Moresby who filed proceedings in Waigani. Now that her lawyer has ceased to act for her, she is facing great difficulty in terms of availability of time, travel arrangements, costs and the efficient running of her sole legal practice, in attending to the proceedings in Waigani. In my view it is fair that the substantive proceedings be transferred to Lae. In relation to the Respondent’s two interlocutory motions which are pending, they were filed at Waigani before the Plaintiff’s motion. One of the Respondent’s Motion was filed before the plaintiff’s lawyer ceased to act for her. The prosecution of these two motions as well as defending the substantive application could prove costly for the Respondent, too. And so in fairness to the Respondent, I consider that those two motions should be heard and determined at Waigani.

For these reasons, I make the following orders:

1. Subject to the outcome of the Respondent’s two motions being heard and determined at Waigani, the substantive proceedings shall be transferred to Lae National Court.
   
2. The parties agree on a date and time for the Respondent’s motions to be heard and determined at Waigani, and advise my Associate.
   
3. East party shall bear their own costs of the proceedings.
   
4. The entry of these orders be abridged to the time of settlement by the Registrar which shall take place forthwith.
   

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Applicant in person
Lawyer for the Respondent: