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Kasiger Trading Ltd v Acting Provincial Administrator [2021] PGNC 132; N8865 (3 June 2021)

N8865

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 512 OF 2020

BETWEEN:
KASIGER TRADING LIMITED
Plaintiff

AND:
ACTING PROVINCIAL ADMINISTRATOR
First Defendant

AND:
MADANG PROVINCIAL GOVERNMENT
Second Defendant

Madang: Narokobi J
2021 : 3 June

COMMENCEMENT AND CARRYING ON PROCEEDINGS BY A NON-LAWYER – non-lawyer applying to represent a company – whether the National Court Rules allow – relevant considerations – whether leave should be granted.

The Plaintiff is a company and it seeks leave of the court for a non-lawyer to represent it to collect debts owed to it by virtue of a written agreement for the non-lawyer to provide “legal representation.”

Held:

(1) Order 4 r 5 (2) of the National Court Rules does not allow a non-lawyer to commence and or carry on proceedings except by a solicitor, which is defined as a person admitted to practice law under the Lawyers Act 1986.

Cases Cited:

Mathew Salung Ronny (trading as Boma Fishing Service) v Bonomane (2020) N8550)

Papua New Guinea Law Society -v- Stegman (1997) N1571

Statutes cited:
Constitution
Companies Act 1997
Lawyers Act 1986

Counsel

F Sarry, with leave, for the Plaintiff
T M Ilaisa, for the Defendants

RULING

3^rd June, 2021

1. NAROKOBI J: The plaintiff has filed a Notice of Motion on 11 December 2020 seeking leave of the court for Mr. Francis Sarry to represent it in the current proceedings. I allowed Mr Sarry to move the application. If he succeeds I will continue to allow him to represent the plaintiff.
   
2. In support of the application, the applicant relies on the affidavit of Atis Deme also filed on 11 December 2020 and the affidavit of Francis Sonny filed on 30 October 2020. In essence the affidavit say that the plaintiff has engaged the service of Mr. Sarry as its debt recovery officer and that it cannot afford a lawyer. Furthermore, is says that Mr. Sarry has sufficient experience to carry out this task.
   
3. On the basis of these affidavits, Mr. Sarry submits that he should be granted leave pursuant to ss 57 and 155(4) of the Constitution to represent the plaintiff.
   
4. Mr. Ilaisa objects to the application, submitting that it is contrary to the Companies Act 1997 sand the Lawyers Act 1986. He says that s 60 Lawyers Act prevents Mr. Sarry from representing the plaintiff as he is not admitted to practice as a lawyer. In relation to an agreement entered into between the plaintiff and Mr. Sarry, he says that Mr. Sarry is not an employee of the plaintiff and the agreement entered into between the plaintiff and Mr. Sarry is for a fee for legal work, and this not allowed by the Lawyers Act for a non-lawyer.
   
5. From the outset, let me say that this is not a Human Rights Application which does provide for a non-lawyer to represent any person claiming violation of their rights (see Mathew Salung Ronny (trading as Boma Fishing Service) v Bonomane (2020) N8550)).
   
6. In this particular case, it is not a claim for breach of human rights. It is a writ of summons claiming non-payment of bills for service rendered – a purely civil claim. I will therefore have to consider applying the provisions of the National Court Rules, and not s 57 of the Constitution or the Human Rights Rules.
   
7. Order 4 r 5 (2) of the National Court Rules states that, except as provided by or under an Act, a corporation may not commence or carry on any proceedings otherwise than by a solicitor.
   
8. Under Order 1 Rule 6 of the National Court Rules, a solicitor is defined as a lawyer under the Lawyers Act. Since Mr. Sarry is not a lawyer, this therefore precludes him from representing the plaintiff on a plain reading of the relevant provisions of the National Court Rules.
   
9. Should I nevertheless exercise my discretion under s 155(4) of the Constitution and Order 1 Rule 7 of the National Court Rules to allow Mr. Sarry leave? After considering the particular facts of this case, I consider that to grant Mr. Sarry leave, would circumvent the requirement of the Lawyers Act, and allow a non-lawyer to hold himself out as a lawyer and charge a fee for it. This therefore is not an appropriate case for me to exercise my discretion under s155(4) of the Constitution.
   
10. In Papua New Guinea Law Society -v- Stegman (1997) N1571 the National Court found Mr Stegman guilty of breaching s 60 of the Lawyers Act for holding himself out as a lawyer and collecting debts from his employer company.
    
11. I note from Atis Deme’s affidavit that he refers to Mr. Sarry as their “legal representative.” This is a potential breach of s 60 of the Lawyers Act where a non-lawyer is holding himself out as a lawyer.
    
12. In such circumstances, I do not feel inclined to exercise my powers under s 155(4) of the Constitution to grant the orders sought and dispense with the requirements of Order 4 r 5(2) of the National Court Rules.
    
13. The application is therefore refused and each party will bear its own costs.
    

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Thomas More Ilaisa Lawyers: Lawyers for the First and Second Defendants