Re a Lawyer [1992] PGNC 30; N1081 (24 July 1992)

Unreported National Court Decisions

N1081

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO 79 OF 1991
RE A LAWYER

Mount Hagen

Woods J
26 June 1992
24 July 1992

LAWYER - discipline - misconduct involving trust monies - Appeal from suspension by Lawyers Statutory Committee - principles to be applied - Appeal dismissed.

Cases Cited:

McCoan v General Medical Council [1964] 3 A.E.R. 143

Re A Solicitor [1960] 2 A.E.R. 621

Re A Solicitor [1969] 3 A.E.R. 610

Toll v Kara & Os 1990 Unrep N851

Counsel:

D. Poka for the Appellant

P. Payne for the members of the Statutory Committee

24 July 1992

WOODS J: The appellant iealing agai against the decision of the Lawyers Statutory Committee pursuant to the Lawyers Act Ch. No 986 whereby the Committee found the appellant guilty of ier conduct as a lawyer in the application of a cheque drawndrawn by the Motor Vehicles Insurance (PNG) Trust for K10,033 payable to Kiage Moriafa being for the settlement of a personal injuries claim. The misconduct was that the appellant deposited the said cheque in his Trust account when he had no instructions from the payee to do so and further that he then paid out the monies from that cheque to persons other than the payee and when he had no authority or instructions from the payee Kiage Moriafa to do so.

The Statutory Committee made a finding of improper conduct and ordered that the appellant be suspended from practice as a lawyer for a period of 5 months, and compensate the said Kiage Moriafa an amount calculated as one third of the balance of the original settlement cheque.

The appellant appeals the finding of improper conduct is wrong and the penalties of suspension and compensation is excessive and disproportionate in the circumstances.

The history of this matter is that sometime in August 1990 the appellant received the subject cheque from two other lawyers who asked him to assist them in completing the claim for which the cheque was the settlement as they did not operate a Trust Account. The appellant agreed because he knew one of the lawyers quite well as a fellow practitioner from a neighbouring province. The appellant had made no attempt to conceal the fact that he received the cheque and placed it in his trust account on behalf of the payee and according to the instructions he received from the payee’s lawyer.

The appellant was later asked by one of the other lawyers to draw 2 cheques against the settlement cheque, one for the other lawyer for supposed costs and other cheque in favour of Kiage Moriafa. The appellant did that and handed them to the other lawyer. Neither at that time nor at any time later did the appellant have any instructions from Kiage Moriafa for the disposition of the monies due to him. Shortly after the lawyer returned with the larger cheque for Kiage Moriafa and asked the appellant to make it a cash cheque which the appellant then did.

Mr Kiage Moriafa never received any of the monies from the settlement cheque.

I can find no error in the Committees’ finding of misconduct as a lawyer. The acceptance and negotiation of that cheque in the appellant’s trust account was a clear breach of trust principles and the Lawyers (Trust Account) Regulation. Kiage Moriafa had no knowledge of the appellant and had given no instructions to the appellant in connection with his personal injuries claim nor for the application and negotiation of that cheque. As the Committee correctly found the appellant as a lawyer had no right to deal with the cheque in any way unless authorised by Kiage.

On the penalty imposed by the Committee the lawyer for the appellant submits that the penalty was excessive because of the 3 lawyers involved in this matter the appellant was an innocent party merely helping out a fellow practitioner and taking no benefit himself out of the monies concerned. It is submitted that the appellant was misled by the other lawyers whether deliberately or accidentally. It is submitted that perhaps the appellant should have taken more care but the appellant should not be punished merely for a lack of care. However the Committee found that the actions of all 3 lawyers demonstrated a disregard for the ethical standards expected of a lawyer, it was more than a lack of care or prudence. The Committee felt that all 3 lawyers were equally to blame and it was necessary to restore to the client the full amount that the client had lost. And the appellant by being the person who actually operated the Trust account and negotiating the cheque had to take just as much responsibility and blame.

What is the role of the National Court in an appeal like this from the Statutory Committee. In the case Toll v Kibi Kara & Os 1990 Unreported N851 His Honour Kapi D.C.J. dealt with the meaning of the word rehearing in S.58 of the Lawyers Act. And he found that the term “rehearing” within the context of that section is hearing de novo. So is it open to this court to hear all the evidence again and take a fresh approach as if I was the original tribunal. Whilst that may be so I must remember that I am dealing with a matter of discipline and conduct within a professional body which has been given the power and responsibility to police or control itself.

In the case McCoan v General Medical Council [1964] 3 A.E.R. 143 the Privy Council in talking about the professional misconduct of a doctor made the point that “It is for this reason that the Medical Acts have always entrusted the supervision of the medical advisers conduct to a committee of the profession, for they know and appreciate better than anyone else the standards which responsible medical opinion demands of its own profession” They said further that “in principle where a professional body is entrusted with a discretion as to the imposition of the sentence of erasure their lordships should be very slow to interfere with the exercise of that discretion”. Courts have applied the same principles with respect to the legal profession.

In the case Re a Solicitor [1969] 3 A.E.R. 610 the Court of Appeal in the Queens Bench Division said “in cases where the disciplinary committee of the Law Society had imposed a particular penalty for misconduct the court would only interfere in an extreme case since the committee were to be regarded as the proper judges of what such a penalty should be”.

The same view had been iterated in Re a Solicitor [1960] 2 A.E.R. 621 where the Court of Appeal emphasised that the court will never interfere in the penalty in a case of professional misconduct, but it can interfere as it did in that case where the conduct was not in regard to his professional capacity.

I feel that the above principles are just as applicable here in Papua New Guinea and I should be reluctant to impose my opinion as to the appropriate penalty in a case of professional misconduct when the appellant has already been adjudged by his own professional association. Therefore whilst the appeal is by way of a rehearing this court should pay great attention to not only the findings of the Statutory Committee but also as to the manner in which it has exercised its discretion so that although this court has the discretion to make such order as it thinks fit and may reduce the penalty, the appellant has a heavy burden to discharge.

I am not satisfied that there has been such an error that I should interfere and impose my discretion in place of the Statutory Committee’s discretion. I therefore dismiss the appeal.

Lawyer for the Appellant: Kopunye Lawyers

Lawyer for the Respondents: Gadens