Kokiva-Age v Lawyers Statutory Committee [2005] PGNC 121; N2835 (24 February 2005)

N2835

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE

CIA 251 OF 2003

BETWEEN:

MARTHA KOKIVA-AGE
-Appellant-

AND:

THE LAWYERS STATUTORY COMMITTEE comprising
KERENGA KUA (Chairman)
ROYALE THOMPSON (Member)
MARGARET PARUA (Member)
-Respondent-

Waigani : Injia, DCJ
2004 : October 15th
2005 : February 24th

JUDICIAL REVIEW – Decision of Lawyers Statutory Committee - Finding of improper conduct – Breach of principles of natural justice – No reason for decision given to Lawyer - Only decision on finding of improper conduct and punishment communicated to Lawyer – No reasons for decision recorded on Minutes of Hearing –Duty of Committee to give reasons for decision and good reasons for decision - Finding of improper conduct and punishment quashed.

Cases cited in the judgment:
Application of Moge Wena [1995] PNGLR 31;
Gegeyo v Minister for Lands [1987] PNGLR 331.
Kelly Yawip v Police Commissioner [1985] PNGLR 93;
Margaret Misso & two (2) Others v Minister for Lands [1987] PNGLR 331;
Mathew May v Loani Henao & Others [1996] PNGLR 234 at 338.
Michael Kapa Wena v Police Commissioner (1999) N1570;
Niggints v Tokam [1993] PNGLR 70;
Ombudsman Commission v Peter Yama (2004) SC747;

Counsel:
Plaintiff in person
R. Elemi for the Respondent

24th February, 2005

INJIA, DCJ: The Appellant appeals against the decision of the Respondent ("the Committee") made on 29 July 2003, which made findings of improper conduct and imposed a fine in the total sum of K1,000 plus costs of K400 for two (2) disciplinary offences. She challenges the findings of improper conduct but not penalty. The appeal is brought under S.58 of the Lawyers Act 1986 ("the Act").

There are eight (8) grounds of appeal covering various aspects of the disciplinary proceedings which were argued before me. They may be divided into four main parts. The first is that the Committee exceeded its jurisdiction given by ss. 53, 54 and 55 of the Act, in that the Committee lacked jurisdiction to re-hear the matter after it "dismissed" the same complaint. The second ground is that the Committee breached S. 53(2) of the Act by not relying on "sworn evidence" to find her guilty. The third ground is that the Committee breached S.53(1) of the Act and S. 59 of the Constitution, in that it failed to observe the principles of natural justice, by allowing her to present her case orally and it failed to give reasons for decision. The fourth ground relates to the findings of improper on the evidence before the Committee.

At the hearing, I enquired of the availability of the full certified records maintained under S.65(3) of the Act to be furnished to the Court. I also enquired of the reasons for decision as per the record. The hearing was adjourned for the Respondents to attend to these two things.

I have been furnished with full set of record of proceedings by the Secretary of the Respondent Mr Vele Noka, which is annexed to his affidavit sworn on 5 October 2004. The facts deposed to by Mr Noka in the body of his affidavit are not contested by the Appellant.

Mr Noka deposes to the following facts. On 15 March 2000. the Committee received a written complaint from one Rex Kapi that the Appellant improperly retained K10,692.33 of his money which were the proceeds of the sale of his property. The Committee notified the Appellant of the complaint and requested her for her response on three (3) occasions, between 3 May 2000, 31 August 2000 and 14 September 2000. On 30 October 2000, she provided her written response. On 5 December 2000 and 9 April 2003, the Committee advised her of the Committee’s decision to hold "a formal inquiry into the complaint." On 14 April 2003, the Appellant requested notice of specific charges. On 1 May 2000, the Committee met and decided to "recharge" the Appellant and gave her formal notice of the charges. The Minutes of the Committee meeting on 1 May 2003 states: "The Committee decided to recharge her and then formally given notices of the said charges".

On 18 June 2003, fresh notice of inquiry was posted to the Appellant. On 10 July 2003, the Committee received three (3) affidavits from the Appellant plus her written submissions. The sworn affidavits were from herself (two (2) affidavits) and affidavit of Moale Vagi. On 29 July 2003, the Committee met and considered "the evidence and made finding of improper conduct o the first two (2) counts and no improper conduct on the third count." Mr Noka could not "to the best of his recollection, remember the Committee giving any reasons for its decision." No reasons for decision are recorded in the Minutes.

The decision of the Committee on the finding of improper conduct as per the Minutes of the Meeting held on 29 July 2003 is as follows:

"4.22 Rex Kapi –v- Martha Kokiva-Age

The lawyer was charged with the following counts:-

Count 1: that her representation of the parties in a conveyance matter amounted to a professional misconduct as there was no written consent from both the vendor and the purchaser for her to appear on their behalf contrary to Rule 10(5)(c) of the Professional Conduct Rules 1989; and

Count 2: (i) & (ii): the vendor also argued, for which the lawyer was charged that she did not account for a sum of K10,692.33 which she held on his behalf in her Trust Account, and four other particulars of professional misconduct contrary to Rule 3(a)(iii) of the Professional conduct Rules; and

(iii): failed to render a bill of costs when requested by the client; and

(iv): failed to release documents when requested by the client; and

Count 3: she did not respond to the Committee’s letter of request for her to respond on the 3rd May 2000 thereby breaching Rule 3(d) of the Professional Conduct Rules.

Decision of the Committee:

Count 1: guilty and was ordered to

(a) pay a fine of K300.00
(b) pay costs of K100.00

Count 2: (i) & (ii) guilty and was ordered to

(a) pay a fine of K700.00
(b) pay costs of K200.00

(iii) & (iv) not guilty

Count 3: Found not guilty

The Committee ordered that the fines and costs are to be paid within 30 days of a letter of notice of decision of the Committee, failing which she will be suspended from practice as a lawyer until such time as the fines and costs are paid in full.

The first observation I make, and it is an important one, is that the Respondent did not give any reasons for its decision. Mr Noka confirms this in para. 17 of his affidavit. No reasons for decision are recorded in the Minutes. I also do not know what, if any, reasons were communicated to the Appellant by the Committee, for finding her guilty of improper conduct on the two charges. The full certified record of proceedings of the Committee on the matter is before me and I cannot find any formal notification of the Committees decision and reasons if any given to the appellant. The Appellant had provided substantive response to the charges in three (3) affidavits denying the charges and submitted a detailed submission and she was entitled to be given reasons why the Committee found against her.

It is difficult for this Court and for both counsel, to know what the reasons for decision are. All of the four main grounds of appeal require reasons for decision given by the Committee.

During argument, both counsel agreed that the requirement to give reasons for decision by the Committee is a new area of the law which needs to be developed and appreciated the Court’s indulgence in this area. There is a good body of law developed by the Courts in recent times, as part of the principles of natural justice, on the duty on a statutory tribunal or authority which is determining the civil rights of a person, to give reasons, and good reasons, for its decision on both guilt and penalty: Ombudsman Commission v Peter Yama (2004) SC747; Niggints v Tokam [1993] PNGLR 70; Margaret Misso & two (2) Others v Minister for Lands [1987] PNGLR 331; Kelly Yamip v Police Commissioner [1985] PNGLR 93; Michael Kapa Wena v Police Commissioner (1999) N1570; Application of Moge Wena [1995] PNGLR 31; Gegeyo v Minister for Lands [1987] PNGLR 331. The person affected by the decision must be informed of the reasons for decision. A decision made without reasons is not good decision. It is liable to be quashed on appeal. I see no reason why those principles should not apply to the Committee. Indeed, Section S. 53(1) of the Act requires the Committee "to observe the rules of natural justice in carrying out its inquiry": Also see Mathew May v Loani Henao & Others [1996] PNGLR 234 at 338.

I am satisfied that the Committee erred in law in not observing the principle of natural justice as required by S. 53(1) of the Act. It failed to give to the Appellant its reasons for its decision on both guilt and penalty, and communicate the same to the Appellant.

I also find that the proceedings of the 29 July 2003 were conducted in breach of S.53(2) of the Lawyers Act which provides:

"Evidence given before the Committee shall be given on oath and witnesses may be examined or cross-examined."

This provision applies to a formal inquiry/hearing. I accept the Appellant’s submission that there was no proper evidence of the complainant’s case placed before the Committee at the hearing, to counter the sworn affidavit evidenced provided by the Appellant. The Complainant Rex Kapi’s un-sworn written statement dated 15 March 2000 was the only "evidence" from the Complainant. It is not "sworn" evidence and it is not "evidence" before the Committee for purposes of determining improper conduct in a contested matter.

On these two (2) grounds alone, I allow the appeal and quash the decision of the Respondent. As to whether there should be a rehearing of the matter by the Committee, a substantive determination was made as to her guilt and it is not fair to put her through the same process again.

Having reached this conclusion on the two main grounds of appeal it is not necessary to consider the other grounds of appeal.

For these reasons, I allow the appeal and quash the said decision of the Committee.

The Respondent shall pay the Appellant’s costs of the appeal.
______________________________________________________________

Appellant in person.
Lawyer for the Respondent : Rageau Elemi & Kikira Lawyers