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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT JUSTICE]
OS. 643 OF 2002
BETWEEN:
MICHAEL OLE
Applicant/Applicant
AND:
PAPUA NEW GUINEA LAWYERS STATUTORY COMMITTEE
First Respondent
AND:
PAPUA NEW GUINEA LAW SOCIETY COUNCIL
Second Respondent
WAIGANI: KANDAKASI, J.
2001: 6th & 15th November
LAWYERS – Application by a lawyer for review of decision by the Lawyers Statutory Committee – Application filed outside time limited stipulated by s.58 of the Lawyers Act 1986 – Complaint and charge leading to the decision and the decision itself allegedly not served on the applicant – No evidence question basis for the decision sought to be review – Whether reasonable explanation provided for delay in challenging the decision promptly upon becoming aware of it – Claiming ignorance of the right of appeal and time limits under the Lawyers Act – Not reasonable explanation – Failure to provide reasonable explanation for delay in coming within time or take steps promptly fatal to application – Application dismissed.
ADMINISTRATIVE LAW – Application for leave for judicial review – Application filed after expiring of statutory time limit for lodging appeal against decision sought to be reviewed – Applicant not making clear whether application being made after having lost his right of appeal or his exercising his right of appeal – Onus on applicant to clearly indicate the nature of his application and establish the basis for a grant of the relief sought.
LEGISLATION – Lawyers Act 1986 – Claim by a lawyer of not being aware of relevant provisions of the Act concerning remedy for a lawyer affected by a decision of the Lawyers Statutory Committee – All lawyers deemed to know the provisions of the Lawyers Act governing them – Ignorance of the relevant provisions of the Act no excuse – Lawyers Act s. 58
WORDS & PHRASES –"Appeal" – means a re-hearing on the merits of the case but on the records appealed from and if successful the Court could make orders that could have been made by the tribunal from which the appeal has come about – Appeal distinct from judicial review – Judicial review is only concerned with the procedural aspects of the decision maker arriving at its decision with the Court having no authority to make a decision on the merits and make orders or decisions that it considers appropriate in the circumstances which could have been made by the tribunal from whom the review arises – Section 58 Lawyers Act 1986 as consolidated.
Cases Cited:
David Toll v. The State (Unreported Supreme Court Judgement delivered on 30/11/89) SC 378.
Avia Aihi v. The State [1981] PNGLR 81.
New Zealand Insurance Co. Ltd v. Chief Collector of Taxes [1988-89] PNGLR 522.
Yooken Pakilin & Alvis Kandai v. The State (Unreported judgement delivered on 22/10/01) N2212.
Bank of Hawaii (PNG) Ltd v. PNGBC (unreported judgement delivered on 08/06/01) N2095.
Investment Promotion Authority v. Niugini Scrap Corporation Pty Ltd (Unreported judgement delivered 03/08/01) N2104.
The State v. James Gurave Guba (Unreported judgement delivered on 19/12/00) N2020.
Gabriel Dusava v. Honorable Madam Justice Theresa Doherty (as she then was), Steven Oli & John Numapo (Unreported Judgement delivered
01/10/99) SC 629.
NTN Pty Ltd v. Post & Telecommunication [1987] PNGLR 70.
NCDIC v. Crusoe Pty Ltd [1993] PNGLR 139.
Counsel:
Mr. J. Kil Applicant/Applicant
Ex parte the Respondents
15th November 2002
KANDAKASI, J: This is an application for leave for judicial review by the applicant who was a lawyer admitted to practice in Papua New Guinea until he was found guilty of improper conduct by the Papua New Guinea Lawyers Statutory Committee ("the Committee") on 21st February 2002 and the Committee resolved to make an application to the National Court to remove the applicant’s name from the lawyers roll. The improper conduct was an alleged bribery of a District Court magistrate resulting in a dismissal of a criminal charge against the applicant’s then Governor, Mr. Makmop based on two letters written by the applicant.
Although the proceedings have been served on the respondents, they have not appeared and presented any arguments or material in Court against the application. This is understandable because of the requirements and the practice that all applications for leave for judicial review proceed ex parte, except for any assistance the Court could get only on a point of law. Therefore, I will not draw any adverse inference against the lack of any appearance and participation in his proceedings up to this stage by the respondents.
The applicant claims that he was not served with the complaint and the charges that eventually lead to the decision against him. He also claims that the decision of the Committee was not served on him. He only discovered the existence of the decision when he was refused a restricted practicing certificate when he applied for one in April 2002. Hence, he claims that, he was denied his natural justice in that, he was not given an opportunity to be heard on the complaint and charge against him as well as on the question of penalty before the Committee arrived at its decision. He therefore wrote to the Committee on 12th April 2002, appealing against the decision.
In the course of the hearing, I raised with counsel for the applicant as to whether I have any power or authority to consider the application, which has been filed well outside the 21 day period, in terms of s.58 of the Lawyers Act 1986 as amended. Mr. Kil of counsel for the applicant argues that, I have the discretion to hear his client’s application notwithstanding the fact that he is coming outside that period.
Issues
As far as I could see, this gives rise to three issues to be determined. These are:
In order to consider and determine these issues, it is necessary to consider the relevant facts from which these issues arise.
Facts
The relevant facts are set out in the affidavit of the applicant sworn and filed on 23rd October 2002. From this affidavit, it is clear that the applicant was admitted to practice law after graduating from the Legal Training Institute in 1996. That followed his completion of a Bachelor of Laws Degree in 1995 from the University of Papua New Guinea. From 1996 to 1998, Soi & Associates, Dirua and Patterson Lawyers respectively employed him as a lawyer. He was then employed as the Provincial Government lawyer for the Western Provincial Government from 1999 to 2000. It was under a 3 year contract between himself and that Provincial Government. That contract was purportedly terminated by the then Administer, Mr. Ruma Tau and an application for a review of that decision is pending before the National Court.
Subsequently, in January 2002 he was reinstated. Following that, on 15th February 2002, he applied for a restricted practicing certificate. In a response to his application and to his surprise, he was informed in April 2002 by The Law Society that, he would not be issued with a practicing certificate as the Committee had found him guilty of improper conduct as a lawyer and had recommended that his name be removed from the roll by application to the National Court.
The applicant claims not being versed with the appeal procedures and out of ignorance he immediately wrote to the Committee essentially asking it to reconsider and or dismiss the findings against him. He stated that the Committee acted on false information written by people who were jealous of him as he would not have written the letters himself knowing that it would be totally unprofessional and unethical to write such letters or even seek to bribe a magistrate. He does not however disclose who would have written such letters forged his signature, and how that could have happened.
The applicant’s letter of appeal was written on 12th April 2002. Soon thereafter he says there was further infighting in the provincial administration between a David Ipassi and a Peter Kazipan leaving him out in the cold with no job and money and was stranded in Daru. He then says, he was attacked by malaria and was taken into the care of one Anthon Narua for about 5 months.
He goes on to say that in early October 2002, Mr. Narua gave him a MBA airline ticket and he travelled to Port Moresby. Upon his arrival, he asked several lawyers to assist him in filing for a review but no one was willing to help until Mr. Kil agreed to help him without any fees initially.
No medical report or any evidence of his being attacked by malaria is attached to his affidavit. Similarly, there is no evidence of any follow up on his letter of 12th April 2002. Also, he has not given any specific dates as to when he fell sick and when he recovered. Finally, these proceedings were filed on the 23rd of October 2002.
I now proceed to deal with the issues raised in these proceedings. I will deal with the first two issues together as it would be convenient to do so.
Entitlement to judicial review and requirements before grant of leave
Section 58 of the Lawyers Act creates a right of appeal against the decision of the Committee to the National Court within 21 days from the date of a decision. That provision in the relevant part reads:
"(1) A lawyer may appeal against the decision of the committee to the Court within 21 days of the date of the decision.
...
(3) An appeal under subsection (1) or (2) maybe against the findings of the committee or against a penalty imposed, or both.
(4) An appeal under subsection (1) or (2) shall be by way of re-hearing by the Court."
Section 1 of the Lawyers Act defines the word "Court" to mean the National Court. Hence, the reference to the Court in the Act and therefore s.58 is referring to the National Court.
Counsel for the applicant was not able to address the issue under consideration in his submissions. I therefore, raised with counsel for the applicant whether there was any provision in the Lawyers Act that deal with one’s right of appeal or review of a decision of the Committee. In response to that question, Mr. Kil said there was the right of appeal within 21 days under s.58 of the Act. Obviously, his client was not within time. Therefore, I asked whether there was any discretion in the Court to entertain a challenge to a decision of the Committee after the expiry of the 21 days stipulated in the Act. Without reference to any authority, Mr. Kil submitted that the Court has a discretion to allow a challenge to a decision of the Committee outside the 21 days limit.
It was not made clear at the time of the hearing as to whether this was an appeal pursuant to s.58 of the Lawyers Act or an application for leave to review the decision of the Committee after having lost the right of appeal under s.58. In my view, the applicant was obliged to indicate clearly the true and correct nature of his application but he did not, I consider this critical as an appeal and a review are not one and the same thing.
A right of appeal is granted by statute in most of the cases and a right of review in Papua New Guinea is governed by s.155 (2) (b) in the a case of a review by the Supreme Court and s.155 (3) of the Constitution in the case of a review by the National Court after one has lost his or her right to appeal.
The principles governing the exercise of the right of appeal and the jurisdiction of the Court are different to those under a review. In the case of an appeal, the hearing is a re-hearing but on the records leading to the decision appealed against. In a review, it is mainly concerned with procedural errors and omissions except in cases where one has lost his right of appeal and is invoking the powers of the Court under s.155 (2) or (3) as the case maybe. In a case of a review, after having lost the right of an appeal a hearing may still be on the merits but needs to meet the additional requirement of providing a satisfactory explanation as to why the right of appeal was not utilised and show that there exists exceptional circumstances, warranting a review after the lost of a right of appeal. See: David Toll v. The State (Unreported Supreme Court Judgement delivered on 30/11/89) SC378, per Bredmeyer, J which discusses all of the cases on point before it, namely Avia Aihi v. The State [1981] PNGLR 81 and the other cases that followed it such as the case of New Zealand Insurance Co. Ltd v. Chief Collector of Taxes [1988-89] PNGLR 522.
Since this decision, I am aware that a case went before the Supreme Court on the question of the requirements that must be met for a review under s.155 (2) (b) of the Constitution. But to date, no decision has been published that might depart from what already exists. I will therefore proceed on the law as it is now.
Interestingly, the case of David Toll v. The State (supra) was a case which involved a lawyer, Mr. Toll. Mr. Toll was barred from appearing before Mr. Acting Justice Brunton for deposing to an affidavit without searching the Court file which meant that the lawyer had deposed to material that was misleading and had it not been for the Court perusing the Court file itself, it could have been misled. The Court also referred the lawyer to the Committee for investigation into his conduct and appropriate penalties if found guilty.
The lawyer did not appeal against the decision of Mr. Acting Justice Brunton within the time period stipulated under the Supreme Court Act (Chp. 37) He therefore applied for a review of a decision under s.155 (2) (b) of the Constitution. The Supreme Court found that the lawyer did not provide any reasonable explanation for not exercising his right of appeal and failed to provide the Court with any cogent and convincing reason to allow a review of the decision sought to be reviewed. The Supreme Court was of the view that Mr. Toll being a lawyer, was deemed to have been aware of the requirements and the time limit for lodging an appeal against a decision of the National Court. Since he was a lawyer he was not in the same position as the applicant in the Avia Aihi v. The State (supra) and the other cases.
Having regard to the above principles, I find that the application before me is in effect an application for review under s.155 (3) of the Constitution, despite counsel failing to assist me to arrive at a finding to that effect. It cannot be an appeal under s.58 of the Lawyers Act as he is well and truly out of time. I find there is no discretion vested in the National Court either expressly or by implication to extend the time under s.58 for a person affected by a decision of the Committee to appeal. This would leave a person caught out of time to pursue an application for leave for review under s.155 (3) of the Constitution. Hence, I answer the first issue in the affirmative.
Has the applicant met the requirements for grant of leave?
That being the case, I now need to consider whether or not the applicant has provided a reasonable explanation for failing to exercise his right of appeal under s.58 of the Lawyers Act. If I am satisfied on that score, then the next question for me to consider is whether on the material before me, the applicant advances a cogent and convincing reason or exceptional circumstance warranting a review of the decision sought to be reviewed.
I first deal with the question of whether the applicant has provided reasonable explanations for the failure to exercise his right of appeal. As earlier noted, the applicant says he was not served with the complaint against him and he was not notified of the hearing of the same by the Committee and subsequently of the Committee’s decision on that complaint and penalty. He only become aware of the Committee's decision by way of a response to his application for restricted practicing certificate on 15th February 2002. He made that discovery in April 2002 when he was informed of the Committee’s decision. In his letter to the Committee dated 12th April 2002, he simply stated that he was not informed nor was he given the opportunity to be heard by the Committee before arriving at the decision against him. There is no evidence of having made any enquires as to whether or not the respondents served the complaint on him and if so, where and how. Likewise, he does not say whether he had enquired as to the mode and or manner of service of that process against him. I consider this necessary in the light of the composition of the committee.
Section 48 of the Lawyers Act establishes the Committee. The Committee comprises of the Attorney General (s.48 (2)) who is ex-officio, one member of the Council of the Papua New Guinea Law Society, nominated by the Council, and who is the Chairman (s.48 (2) (b)), three practicing lawyers recommended by the Council with not less than 5 years unrestricted practice in the country or not less than 3 years unrestricted practice as a lawyer in a country prescribed in the rules together with not less than 2 years unrestricted practice as a lawyer in Papua New Guinea.
What this reveals is that the Committee is made up of a good number of experienced lawyers. It follows therefrom that, the Committee is presumed to know the requirements of the principles of natural justice. Indeed, s.53 (1) of the Lawyers Act requires the Committee to observe the rules of natural justice in carrying out an inquiry. This in my view gives rise to a presumption that the Committee does observe principles of natural justice before proceeding in a complaint against a lawyer. If however, an affected person claims that has not happened, than in my view, the onus is on such a person to show that the Committee has in fact not complied with the requirements of natural justice which includes being notified of the complaint or charge against him or her and or giving him or her the right to be heard on the charge and if found guilty on the penalty before arriving at an appropriate penalty.
In my view, a simple claim of one’s natural justice being denied without any evidence supporting it is not good enough, given that presumption. This also accords well with the principle that he who alleges must prove it: Yooken Pakilin & Alvis Kandai v. The State (Unreported judgement delivered on 22/10/01) N2212 per Jalina, J; Bank of Hawaii (PNG) Ltd v. PNGBC (unreported judgement delivered on 08/06/01) N2095.
In this case, if indeed, the applicant was not served with the complaint against him and the right to be heard, in relation to that before a decision on it, and subsequently the penalty, the onus was on him to show that by appropriate evidence. In my view, that was not a difficult thing to do. He could have required of the respondents’ proof of service on him of the initial complaint and subsequently the decision on the complaint and thereafter the penalty against him. There is no evidence of him having done that.
I consider this critically important because where the decision sought to be review is from a decision making body, such as the Committee, a Court or any other authority that is constituted by persons having sufficient knowledge and experience in law, it would be reasonable to expect them to observe the requirements of natural justice. Hence, the presumption that they have done so in all cases going before them. Therefore, before leave can be granted for a review of a decision by such a body or authority, it is necessary for a person claiming that his natural justice has been denied to discharge the onus of demonstrating that, that in fact has occurred. This is necessary given that judicial review is not available as a matter of right but only with leave of the Court. Before leave can be granted, the Court must be satisfied that there is basis for a grant of leave. This is to ensure that unmeritorious cases do not waste the Court’s time especially after having lost one’s right of appeal.
In this case the applicant, as noted, does not say what enquires if any he has undertaken or carried out to establish whether or not the respondents have in fact observe the principles of natural justice. Instead, he merely claims that the Committee did not observe the principles of natural justice before finding him guilty of misconduct and handing down the penalty against him.
Proceeding on from his claim of not being served with a copy of the complaint and not being given the opportunity to participate at the hearing before the decision against him, the applicant claims that he was not aware of the decision of the Committee until April 2002. He then goes on to say that he was not aware of the requirements of the Lawyers Act in relation to the rights of appeal against the decision of the Committee. He therefore wrote to the Committee on 12th April 2002 which was in fact his appeal against the decision. He says he received no formal response from the respondents to his letter of appeal. He than claims to have been attacked by malaria without specifying when that happened and also without any medical evidence or other evidence confirming those claims. He also claims his employment was in limbo due to an in fighting in the provincial administration of the Western Province. Again there is no evidence supporting any of these.
In a nutshell therefore, the applicant is claiming ignorance of the law relative to challenging a decision of the Committee and that he did not have the means, nor was he in a good physical condition to follow-up on his letter of appeal to the respondents. It is settled law that ignorance of the law is no excuse: Investment Promotion Authority v. Niugini Scrap Corporation Pty Ltd (Unreported judgement delivered 03/08/01) N2104; and The State v. James Gurave Guba (Unreported judgement delivered on 19/12/00) N2020.
This principle applies to all persons whether or not they are lawyers. It follows therefore that, if a lawyer claims ignorance of the law, he will be running contrary to that established principle and certainly it cannot amount to any reasonable explanation for a failure to comply with the requirements of the law. In the case of The State v. James Gurave Guba (supra) in the context of s.15 (5) of the Professional Conduct Rules at pp.5-6 that, I said this principle, requires in my view, a lawyer to make it his business and or duty to keep abreast of the developments in the law and be always prepared to assist the Court.
Ignorance of the law did operate in favour of a member of Parliament who was found guilty of misconduct in office for matters happening prior to becoming a member of Parliament but a leader, to which the Leadership Code applied. That was in the case of Gabriel Dusava v. Honourable Madam Justice Theresa Doherty (as she then was), Steven Oli & John Numapo (Unreported Judgement delivered 01/10/99) SC629.
Bearing this line of authorities, in mind I asked counsel for the applicant at the hearing, whether the claim of ignorance of the requirements or the procedure prescribed by s.58 of the Lawyers Act was a reasonable explanation. Counsel for the applicant answered correctly in the negative. What this means in effect is that the applicant employed a procedure that was not available to him. In the process, he caused unnecessary delay in promptly coming to this Court with his application.
The effect of the foregoing findings is that the applicant has failed to provide any reasonable explanation for not exercising his right of appeal under s.58 of the Lawyers Act. Also, he has failed to provide any reasonable explanation for allowing further time to pass and hence the delay in bringing this application. The National Court Rules particularly O.16 stipulates a 4 months limit for applications seeking an order of certiorari and in other cases "undue delay."
A survey of the cases revealed that, the test as to whether the delay is undue or not, appears to be based upon the concept of reasonableness. Each case is decided on its own facts on the evidence before the Court. Hence, if on the evidence available, the delay in bringing the application is unreasonable, then the Courts are likely to come to a finding of undue delay and therefore refuse to grant the application: see NTN Pty Ltd v. Post & Telecommunication [1987] PNGLR 70 and NCDIC v. Crusoe Pty Ltd [1993] PNGLR 139.
In the present case, I can not find any reasonable explanation for failing to come promptly to this Court with this application after the applicant had lost his right of appeal. That being the case there is no basis for this Court to grant the application. I would therefore dismiss his application on this basis.
There is however a further reason not to grant the applicant’s application. After having lost his right of appeal, the onus was on the applicant to demonstrate an arguable case on the merits. In his affidavit he only claims not being served with the complaint against him and the eventual decision on it. He also denies the allegations on which the Committee has acted upon without providing the evidence to support that contention. Without any such evidence, I cannot see how I could be satisfied that there is an arguable case on the merits. As I said before, the presumption favours the Committee having observed the principles of natural justices as required under s.48 (1) of the Lawyers Act. The onus was upon the applicant who claims that was not observed to demonstrate by appropriate evidence that claim. He has not done that.
For the above reasons, I am not convinced that leave for judicial review should be granted. I therefore dismiss the application for
leave for judicial review.
___________________________________________________________________________
Lawyers for the Applicant/Applicant: John Kil
Lawyers for the Respondents:
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