Ole v Papua New Guinea Lawyers Statutory Committee [2006] PGNC 158; N3138 (11 August 2006)

N3138

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 643 OF 2002

BETWEEN:

MICHAEL OLE
Plaintiff

AND:

PAPUA NEW GUINEA LAWYERS STATUTORY COMMITTEE
First Defendant

AND:

PAPUA NEW GUINEA LAW SOCIETY COUNCIL INC.
Second Defendant

Waigani: Sakora J
2006: 19 July & 11 August

LAWYERS – Lawyers Act 1986 – Lawyers Statutory Committee – Disciplinary powers under the Lawyers Act and the Professional Conduct Rules - Guilty finding of improper conduct as a lawyer – Bribery of a District Court Magistrate.

LAWYERS – Lawyers Act 1986 – Lawyers Statutory Committee – Appeal from decision of Committee – Not availed of – Application for judicial review of decision of Committee – Constitution, ss 155 (2) (b), 155 (3) (a) & 155 (4) – Lawyers Act 1986, s.54 (a) & (c), s.58 – Professional Conduct Rules, r 3 (a) (i) to (iv) inclusive – National Court Rules, O 16 r 3 (2) (a).

Case Cited:

Avia Aihi v The State [1981] PNG LR 81

Counsels:

S Soi, for the Plaintiff/Applicant.
C Makail, for the Defendants/Respondents.

11 August, 2006

1. SAKORA J: This is an application for judicial review of the decision of the Lawyers Statutory Committee (LSC) of the Papua New Guinea Law Society (PNGLS) dated 21 February 2002. Leave to make this application pursuant to Order 16 of the National Court Rules (NCR) having been granted by the Supreme Court on 3 March 2006 pursuant to a successful appeal by the applicant against a refusal of leave by the National Court, the case was remitted for substantive hearing. The previous National Court’s refusal of leave was dated 15 November 2002.

2. Mr Soi of counsel for the applicant moved the court on the notice of motion filed 16 March 2006. From this notice it would appear that the applicant relies on two grounds for review of the decision. First, that the LSC denied him natural justice in its deliberations and determination of guilt in respect of the allegations of improper conduct from a complaint of bribery of a judicial officer, a District Court magistrate. And secondly, the grievance that natural justice was denied also in the consideration and determination of an appropriate penalty for this disciplinary offence.

3. In both grounds, the grievances that he was not accorded the right to be heard, as expressed in the Latin maxim audi alteram partem are alleged in the application as, first, giving him no "Notice of allegation, date, time and place of the allegation" (sic), and, secondly, did not "Disclose the information as well as materials it was relying on against the plaintiff". Finally, the applicant alleges that the first defendant did not "Invite the plaintiff to mitigate on penalty before imposing any form of penalty on the plaintiff."

4. It is on these grounds that the applicant purports to invoke this court’s inherent power under s 155 (4) of the Constitution, seeking the following reliefs: First, that the plaintiff be allowed to practice law and be issued a Practising Certificate in accordance with the Lawyers Act 1986. Secondly, it is sought that the second defendant pays the costs of the plaintiff’s Restricted Practising Certificate (RPC) for the 2006 calendar year. And, finally, the plaintiff seeks his costs of this proceedings to be borne by the defendants, inclusive of the costs of the Supreme Court Appeal No. 24 of 2006.

5. This proceedings have their genesis in a complaint received by the PNGLS alleging bribery of a District Court magistrate to dismiss pending criminal proceedings against the former Governor of the Western Province, Mr Norbert Makmop. By a letter dated 10 September 1999 to the secretary to the LSC, the secretary to the PNGLS wrote enclosing a confidential letter that had been received from the Director-General of the National Intelligence Organization (NIO), in respect of the complaint and allegation of bribery. The basis of this allegation would appear to be the contents of two letters under the letterhead of the office of the governor, and in the hand of the applicant, dated 22 January and 1 March 1999 respectively.

6. It would appear also that the letter from the PNGLS secretary enclosed further documents for the attention and action of LSC, and these were the following: Copy letter of the Director-General to the Chief Magistrate dated 2 September 1999, regarding the alleged bribery of one of his magistrates by the applicant in similar terms to the letter sent to the PNGLS enclosing the two letters by the applicant (supra). And secondly, copy letter dated 15 September 1999 under the hand of the then Secretary for Justice and Attorney-General to the secretary to the PNGLS, in respect of the same complaint and allegation of bribery against the applicant.

7. It should be noted that the foregoing documents are annexed to the very detailed depositions of the secretary to the LSC, Mr Malaki Unagui, contained in his affidavit sworn and filed 21 April 2006 in support of the case for the defendants. These depositions will be discussed in detail in due course. For now, it only suffices to note that the background circumstances exhaustively outlined in the affidavit have not been taken issue with by the applicant.

The Plaintiff’s Case

8. In support of the application counsel for the applicant referred the court to and relied on the depositions in two affidavits sworn and filed by the applicant on 16 March and 28 April 2006, and an earlier affidavit sworn and filed on 23 October 2002 in support of his application for leave to apply for judicial review.

9. The applicant was admitted to practice as a lawyer before the National and Supreme Courts of Justice in November 1996, having graduated from the University of Papua New Guinea (UPNG) Law School the year before, and after having successfully completed a course of practical training at the Legal Training Institute (LTI).

10. Following admission the applicant was in the employ of three law firms between 1996 and 1998, before proceeding to work for the Fly River Provincial Government (FRPG), of which Mr Makmop was the then head of government, commencing in January 1999 on a contract of employment. After an apparent falling out with the then Provincial Administrator, the applicant’s contract of employment would appear to have been terminated (according to his affidavit) in September 2000. He asserts that it was not until January 2002 that his contract was restored by the new administrator, and he reinstated to his legal officer position. Whilst in the employ of the FRPG he says he was always issued with a RPC as he had been in the previous employ of three law firms.

11. In February 2002, he says he duly applied to the second defendant, the PNGLS, for renewal of his RPC for the year. There is no information on the status of the RPC during the period September 2000 to January 2002, the status of the RPC during the period September 2000 to January 2002, when he says he had not been in the employ of the provincial government, although in his later oral evidence he said that he was employed but off the payroll, whatever that may mean. And there is also the assertion that his contract had been terminated by a different provincial administrator.

12. In any case, he asserts that when he did not hear from the second defendant about his application for RPC, the applicant travelled to Port Moresby from Daru on 10 April 2002 to check on this. The very next day, upon his personal enquiry at the offices of the PNGLS, the applicant was handed a letter by the receptionist which had been dated 21 February 2002 and addressed to him, care of the FRPG, P O Box 41, Daru, Western Province. That letter advised him that the inquiry meeting of the first defendant on 14 February 2002 had found him guilty of improper conduct. Enclosed with that letter was the Notice of Decision of the LSC.

13. It is the applicant’s case that upon perusal of the 21 February 2002 letter, he was "shocked, dismayed and dumbfounded" because, he contends, he was not accorded natural justice in the manner particularized above.

The Case for the Defendants

14. The decision of the LSC, first, outlined the instances of improper conduct (five in number), which, in the opinion of the committee, constituted breach of Rule 3 (a) (i) to (v) inclusive of the Professional Conduct Rules (PCR) 1989. These were particularized as the contents of the two letters under the hand of the applicant (supra), wherein the bribing of a district court magistrate, Mr David Rea, with a sum of K15,000 in cash for the magistrate to dismiss a firearms charge against the then governor was referred to and detailed (by the LSC).

15. It was the conclusion of the committee that the complaint and allegation of bribery had been proven, and that this constituted improper conduct as a lawyer, thereby breaching his duty as a lawyer as envisaged by the provisions of Rule 3 (a) (i) to (v) inclusive of the PCR (supra). The decision then necessitated the consideration of an appropriate sanction or penalty pursuant to s 54 of the Lawyers Act. The committee then settled on the sanction provided for under sub-s (c), entitling the PNGLS to apply formally to the National Court to remove the applicant’s name from the Roll.

16. Mr Makail of counsel for the defendants referred the court to and relied on the affidavit of the secretary to the first defendant, Mr Malaki Unagui, sworn on 21 April 2006 and filed of even date. In a very detailed deposition, Mr Unagui sets out the background circumstances giving rise to the LSC exercising its statutory disciplinary jurisdiction over the applicant, and in the process outlining the procedures that were undertaken, in chronological order. Thus, all material pertinent to and for the exercise of jurisdiction that the defendants assert were properly brought to the notice, information and attention of the applicant are annexed to the secretary’s affidavit. It is the defendants’ case that proper notices were given to the applicant, furnishing him with all pertinent material and thereby according him proper and adequate opportunities to respond and protect and defend his rights and interests.

17. Counsel for the defendants takes the court through the secretary’s depositions in respect of the various correspondence sent to the applicant, starting with the 23 September 1999 letter. This letter was addressed to the applicant care of Patterson Lawyers, in whose employ he was at the time, and it is reproduced hereunder as follows:

23rd September 1999
OUR REF: LSC 0-6/MU:yu

Mr Michael Ole

Patterson Lawyers

P O Box 4787

BOROKO

National Capital District

Dear Mr Ole

RE : COMPLAINT BY PNG LAW SOCIETY

The Lawyers Statutory Committee has received a complaint of improper conduct from the above named.

The complainant alleges that between January and March 1999 you arranged and executed payment of a sum of money as a bribe to a senior Magistrate of the Boroko District Court, Mr. David Rea, resulting in the said magistrate striking out a firearm case which was pending in the said Court against your client, Hon. Robert Makmop M.P., Governor of the Fly River Provincial Government.

In so conducting yourself it is alleged that you acted in breach of your duty as a lawyer in that you were engaged in conduct which is illegal, dishonest, unprofessional, prejudicial to the administration of justice and likely to bring the legal profession in to disrepute.

Please provide the Committee with your response to the complaint within the next 21 days as required by the Professional Conduct Rules.

Yours faithfully

MALAKI UNAGUI

Secretary

18. The contents speak for themselves. The applicant received the letter and duly responded two weeks later on 7 October 1999, citing the same postal address of his employers. That reply is reproduced hereunder as follows:

Michael K. Ole

c/ P O Box 4787

BOROKO

National Capital District

7th October, 1999

The Law Society

P O Box 1994

BOROKO

National Capital District

Dear Sir,

RE: COMPLAINT TO LAW SOCIETY

I acknowledge receipt of your letter dated 23rd September, 1999 referring to the above matter.

The allegation is false and baseless. Its been framed by a person who has personal grudges, jealousy, ill feelings against me to defame my name and profession and I am seriously taking into consideration to take and tarnish legal action against the Complainant.

It is unprofessional and illegal for me to bribe the Magistrate. Further, the Magistrate would not be blind to accept the same.

The Magistrate struck out the case on its own merits as there was no evidence to find the Hon. R. Makmop, Governor guilty of the charged offence. It was Mr. Paul Paraka who was representing the Governor’s case and not me as alleged.

Therefore, I strongly deny the allegation strongly and request that the Complainant be brought before the Committee to be Cross-examine in relation to this unfolded character tarnishing allegation.

Yours faithfully,

MICHAEL OLE

19. The receipt of the applicant’s letter was duly acknowledged by Mr Unagui in his letter of 13 October 1999, wherein the applicant was advised that the LSC would proceed to consider the complaint and allegation and would "decide whether there is a case for you to answer. You will be advised of the committee’s decision in due course."

20. The materials before the LSC for its consideration were the following. First, copy of the letter from the Director-General of the NIO dated 10 September 1999 to the second defendant. Secondly, copy of letter from the Director-General of the NIO to the Chief Magistrate dated 2 September 1999. Thirdly, letter from the applicant to the then Governor of the Western Province dated 22 January 1999. Fourthly, letter from the applicant to the then Governor, Fly River Provincial Government, dated 1 March 1999. Fiftly, letter from the Secretary and Attorney-General to the secretary PNGLS dated 15 September 1999. And, finally, the applicant’s letter of response dated 7 October 1999.

21. Following the consideration of the material before it, and forming the opinion that the applicant had a case to answer, the secretary to the LSC wrote to the applicant on 30 May 2000 advising that a formal inquiry into the complaint and allegation would be held. He was advised also that details of the inquiry would be furnished in due course. The letter was addressed to his last known place of employment, that is, Patterson Lawyers.

22. This letter was returned to the LSC by Patterson Lawyers with the advice (by their letter of 14 June 2000) that the applicant was no longer in their employ, having ceased employment at the end of March 2000. His new address was given as being with the governor of the Western province. The secretary to the LSC then caused a letter (dated 26 July 2000) to be sent to the applicant care of FRPG at Kiunga in the same terms as the letter of 30 May 2000. This letter was followed up with a more detailed one of 13 February 2001, once again to the Kiunga address, advising of the decision to hold a formal inquiry, and enclosing for his information the material that would feature at that inquiry for consideration and determination.

23. Enclosed also was the formal notice of inquiry under the Lawyers Act 1986, setting out the complaint and allegation of improper conduct pursuant to Rule 3 (a) (i) to (iv) inclusive of the PCR 1989. And more importantly, particulars of the improper conduct that were relied on: and these were the contents of the two letters that were alleged to have been written by the applicant to the governor.

24. The 13 February 2001 letter also advised the applicant that he need not appear before the LSC for the inquiry but he could submit written submissions for consideration. He was then given notice in that letter until 22 March 2001 to submit his written submissions. And, finally, he was advised further as follows: "You may if you wish appear in person by leave with or without representation and give oral evidence on oath and other than what you have provided in your written submissions. Leave will however be granted only in exceptional circumstances".

25. The applicant’s failure to submit his written submissions as invited by the LSC was brought to his attention by the secretary’s letter of 14 November 2001, once again, addressed to the same Kiunga postal address. He had been advised by an earlier letter of 26 February 2001 that the LSC had to reschedule the formal inquiry because new members of the Committee had yet to be appointed; the term of the former members having expired and no fresh appointments having been made at that point in time. The new inquiry date was given then as Thursday 3 March 2001 at 2.00 pm. Once again, further notice of deferral to Thursday 14 June 2001 at 2.00 pm was given by the letter dated 30 May 2001.

26. The LSC held its inquiry eventually on Thursday 14 February 2002, that is in the following year after those deferrals. Copies of the brief for notice of inquiry, meeting No. 2001, and copy of inquiry meeting dated 14 February 2002, were all annexures to Mr Unagui’s affidavit (supra).

27. Following this, the applicant was advised of the LSC decision by letter dated 21 February 2002, which was addressed to a Daru post office box number of the FRPG. This is the letter that the applicant says he was given upon his enquiries at the offices of the PNGLS about his application for the issuance of a RPC on 11 April 2002.

28. Pursuant to a notice to cross-examine served on the applicant, the applicant gave evidence before me which I summarise the more pertinent aspects as follows. In response to Mr Makail's questions in cross-examination the applicant admitted receiving the LSC letter of 23 September 1999, advising him of the PNGLS complaint of bribery against him and advising him to respond within 21 days which he did. Then he talked of being put off the payroll and living in Daru without employment.

29. Most of the responses to questions both in cross-examination and re-examination I found to be unhelpful and generally evasive. Some examples here will illustrate and emphasise this point. When asked when was it that he commenced work with the FRPG, the applicant said: "In 1999 after I left Patterson Lawyers". When asked for specific month, he answered: "Towards the middle of the year". And, asked when he ceased working for the FRPG, his response was: "Did not cease employment but put off the payroll because of infighting in the administration". These were simply direct questions that required only direct answers.

30. There is more of the same from the applicant. When asked where he had been residing in 2002, the response was: "I was in Daru but already unemployed because of infighting within the administration". Now, was the applicant unemployed because of termination of his employment with the FRPG? What did he mean by being put off the payroll?

31. Mr Mikail of counsel for the defendants next asked this: "Agree that the letter of 23 September 1999 was about the complaint of bribery?", the applicant answered: " I do not agree with the contents of that letter". The question was not about his agreement or otherwise with the contents of that letter. And here is a lawyer who ought to be familiar with examination of witnesses, although I am unaware of his actual advocacy experience.

32. The defendants’ counsel asked this next: "When you left Daru and returned to Port Moresby, did you inform the PNGLS and the LSC that you had relocated and changed your address?", the response was, "No, in Daru I was already unemployed and on the streets".

33. In re-examination by his own counsel, he was asked to clarify to the court when he commenced employment with the FRPG, he answered: "Joined the office of the governor in 1999 briefly for two weeks and I was out. I was on contract in 2000 for three years". There is no explanation of nor elaboration on this. Just left vague! Asked whether he was still in the employ of the FRPG, the applicant said: "I was off payroll". A further example of the applicant’s evasiveness is demonstrated, in my view, by this exchange: Q: "In April 2002 you still employed?" A: "Could not practice law, no RPC".

Conclusion

34. The first thing to note in respect of the applicant’s case is that there is a pronounced absence of documentary support for his statements, assertions, in respect of his employment with the FRPG, that is, except the two letters that the defendants relied on for initiating the disciplinary action under the Lawyers Act and the RPC.

35. I agree with counsel for the defendants that the grievance of the applicant is not that he did not receive notice of the charge or complaint and the pertinent material in respect of it, but rather that he was not given the opportunity to be heard. This is clear from his statement in support filed on 23 October 2002 (par 5), setting out the reliefs he was seeking, pursuant to O 16 r 3 (2) (a) NCR. It is noted, however, that in his notice of motion moved before me it is asserted (par 2) that there was a failure to give notice of the allegation, date, time and place of hearing of the allegation and to disclose the information as well as material that the LSC was relying on. The paragraph then concludes with the assertion of denial of the right to be heard on the penalty, and repetition of the grievance: "Hearing of the disciplinary charge and imposition of the penalty on the plaintiff proceeded in his absence."

36. I have no difficulty in concluding that proper and adequate notices were given of the complaint and all relevant material pertinent to the complaint were duly furnished to him. Otherwise, the applicant would not have availed of the opportunity to respond as he did on 7 October 1999. I am satisfied, therefore, that all procedural safeguards recognized and provided under the Lawyers Act and the PCR were duly accorded to the applicant.

37. After being advised that the applicant was no longer in the employ of Patterson Lawyers, subsequent correspondence to him from the PNGLS and the LSC were directed, first, to the FRPG’s postal address in Kiunga, and, secondly, to its Daru postal address. In the absence of any information from the applicant himself, the defendants were quite entitled to rely on the two postal addresses as his address for contact between 1999 and 2002. He did not return to Port Moresby until April of 2002. I say that it was incumbent upon the applicant to advise the PNGLS and the LSC of his proper addresses, and any changes to these.

38. Even if correspondence went to Kiunga instead of to, say, Daru, and vice versa, he should have received the correspondence. In a sparsely populated but a very large province in area, with Kiunga and Daru being the only government centres of any size, it would not, in my opinion, be difficult to know all administrative and political personnel in the province, as indeed any business people.

39. If one is employed by the FRPG and is stationed either in Kiunga or Daru, one must be known in a small bureaucracy in a small town, especially if one is the legal officer. One ought to be known. Be that as it may, it was incumbent upon the applicant to notify or advise the PNGLS and the LSC (when his case for disciplinary action was pending before that committee) of any changes to his address or location in the event that notices or information had to be sent to him. As a member of the PNGLS he had to keep an address for service of all notices and information affecting lawyers and their practices.

40. And, more particularly, when he had a very serious matter of discipline pending before the committee, of which he had initially been given adequate notice of in Port Moresby, it was so important that he be kept updated by the LSC.

41. It is incumbent upon lawyers to ensure they are fully conversant with the provisions of the law, more particularly the Lawyers Act and the PCR. There is no excuse at all for not knowing these. Whilst ignorance of the law would not be an excuse, the mere fact of raising, and thereby acknowledging such deficiency, would be (or should be) an embarrassment, in my respectful opinion, for any self-respecting lawyer.

42. Serious charges of bribery were involved here, and a lawyer, a provincial governor, and a judicial officer are all implicated in these serious allegations, although it is only the lawyer who is being investigated by his professional disciplinary body. So it should have been vitally important to a lawyer who depends on the Law Society for a practicing certificate to practise his profession to be alert to and vigilant about what was happening. An aspect of this alertness and vigilance would be to ensure he was reachable, contactable, by furnishing both the PNGLS and LSC his forwarding address. And in this particular instance, to ensure correspondence pertaining to the charges and the enquiry in respect of these would reach him in sufficient time so that he could avail of any opportunity that was accorded to protect his rights and interests.

43. It would appear to me from the material before me that after his letter of 7 October 1999, responding to the LSC secretary’s letter and denying the charges, he went away to the Western Province and took no further steps until in Port Moresby in April of 2002 when he says he learnt of the LSC decision. Now, an immediate question is provoked here: what did he think would happen about the allegations of bribery and the disciplinary charges? Did he think that if he disappeared leaving no forwarding address that the PNGLS and the LSC would not proceed against him and the complaint would die from lack of interest and activity? For one thing, I am satisfied from all this that there was here a demonstrated lack of interest about these very serious allegations of bribery and the charges of unprofessional conduct.

44. Between 1999 and April 2002, there would appear to have been no interest shown in relation to the charges pending before the LSC. After all that lapse of time, it would appear to me also that the applicant was only concerned with his RPC application, and this was only in April 2002. The applicant says that it was then that he became aware of the proceedings undertaken by the LSC and its determination of his guilt and the consequent imposition of the penalty when he was "amazed and astounded".

45. In relation to the correspondence, I have dealt with the use of the postal addresses of the FRPG in Kiunga and Daru. If they went to Kiunga when the applicant was in Daru, or vice versa, he should have eventually received them. From the detailed depositions of the secretary to the LSC, all pertinent correspondences, all pertinent material, all pertinent notices, were given to the applicant through the post. There is evidence that some of the notices were forwarded to him repeatedly. For instance, the notices that initially went to him at Patterson Lawyers were forwarded again or redirected to him in Kiunga. And when the invitation from the LSC to make written submissions before the committee could consider and determine was not forthcoming, there was a reminder noting that he had not availed of the opportunity offered.

46. Mr Soi of counsel questioned the service of the notices and supporting materials, basically contending that there was no service as such, and that, therefore, there was a denial of his right to be heard. There is, of course, no specific provision for personal service on lawyers under the Lawyers Act and the Rules. With respect, postal service for correspondence and notices would appear to be the more convenient and preferable mode. And that is, in my opinion, for a very good reason.

47. When the LSC is writing to lawyers, there can be only one reason for this, and that is something to do with disciplinary matters. It cannot be (should not be) about attending cocktail parties or barbeques or such social events. Such invitations for social occasions would normally come from the PNGLS rather than the LSC. Thus, service of documents and notices in the usual legal proceedings would not be wise even for personal service where persons other than, for instance, the secretary to the LSC would have to effect the service. It would be equally unwise to serve documents or give notice(s) by substituted service whereupon these would appear in the public notices advertisements in newspapers read country-wide.

48. The usual mode of service that Mr Soi insists upon would not be wise and appropriate simply because the subject-matter of the documentation and notices concern confidential disciplinary matters. And if the LSC were to effect service in the way insisted here, then any self-respecting lawyer or group of lawyers, I suggest, would be up in arms against it. The confidentiality aspect of disciplinary matters, at least in the initial investigatory stages would be breached to the prejudice of lawyers concerned. Disciplinary allegations and charges against lawyers are serious and confidential matters. Postal service would be, in my opinion, the best and convenient mode of communicating with lawyers involved in or alleged to be involved in professional misconduct situations. The public interest in such matters would only arise, I would suggest, upon finding of guilt and imposition of sanctions by the LSC.

49. Thus, in this case the postal address of Patterson Lawyers was availed of in 1999 by the LSC, eliciting response from the applicant under the same address. Then the applicant relocated to either Daru or Kiunga upon changing employment, leaving no forwarding address. The LSC was redirected to the FRPG, so correspondence in relation to the consideration and determination of the bribery allegations went initially to Kiunga, and later to Daru, eliciting no response(s) from the applicant.

50. There are, therefore, very good reasons why every professional and self-respecting lawyer should appreciate that personal service and substituted service (through newspaper advertisements) should never be availed of. And that is why the need to inform the PNGLS (through whom the LSC would become informed) of their postal addresses, and any changes to these. When they apply for practicing certificates, these must be placed on record. That is the only means by which the PNGLS, and, eventually if it should become necessary, the LSC, can contact and deal with lawyers.

51. As noted already, the applicant is an honours graduate of the UPNG Law School, and, after successfully completing the practical programme offered by the LTI, practised for three years in Port Moresby before relocating in the Western province. A lay person could understandably be forgiven for being unaware of and not conversant with the intricacies of the law and the law’s processes, more particularly the directly pertinent Lawyers Act and the rules under the PCR, and the requirements of these.

52. Now, here I wish to make very brief observations in relation to the appeal that went to the Supreme Court that resulted in the granting of leave to apply for judicial review. I note that, except for the orders that were before me in this application, I was and am not aware of any written reasons for the court’s upholding of the appeal that could assist me. It will be noted that the appeal was against refusal to grant leave under Order 16 Rule 3 of the NCR.

53. From the judgment of Kandakasi J, I understand that leave was refused on the basis, first, that there was a problem with delay in making the application to challenge the decision in question, and, secondly, that there was no arguable case for review to be conducted on. Needless to say, these are two of the four recognized prerequisites to be satisfied before leave can be granted (O16, rr 3 and 4 NCR).

54. Section 58 of the Lawyers Act gives lawyers the right of appeal to the National Court if aggrieved by the decision of the LSC. And a time limit of 21 days is imposed (ibid) within which to avail of this right. Of course, if this right cannot be availed of in time, s 155 (3) (a) Constitution provides the avenue of judicial review by the National Court. Even then, as the Supreme Court declared in the seminal case of Avia Aihi v The State, in respect of its power of review under s 155 (2) (b) Constitution the applicant must demonstrate to the satisfaction of the court exceptional circumstances under which the right of appeal was allowed to lapse.

55. Thus, judicial review in the Avia Aihi type of situation, pursuant to the provision of the Constitution after losing the statutory right (of appeal) under ordinary legislation (such as s 40 of the Supreme Court Act) rather than under Order 16 NCR, will be permitted under very good and exceptional circumstances. His Honour in the National Court did direct his mind to these considerations. Did the Supreme Court, contrary to the finding of Justice Kandakasi, find or conclude that there had been no delay in applying for leave or that, in its opinion, the granting of the relief would not "be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration"?: (O 16 r 4 (1) and (2) NCR). If there had been an explanation (for the delay), what was the explanation that the Supreme Court accepted? In any case, the question must be asked: did the Supreme Court find an arguable case? And, if so, how was this important prerequisite demonstrated to the satisfaction of the Supreme Court?

56. It is appreciated that the Supreme Court is a higher court than the one whose powers I am exercising here. Be that as it may, I have got, with respect, no assistance from a written decision from which I can appreciate the reasons for allowing the appeal. Did the court direct its mind to the issue of delay? Did it direct its mind to the crucial issue of an arguable case, or, what indeed did the appellate court direct its mind to?

57. I am of the opinion that procedural safeguards aspects of which I have adverted to briefly already were duly accorded to the plaintiff/applicant. But he chose not to avail of these in order to protect his rights and interests. And I respectfully adopt the Biblical advisory: God helps those who help themselves, to say that only when an aggrieved party avails of the rights and safeguards accorded by law that he can properly come to a court of law and justice to seek relief.

58. In the Avia Aihii case (supra), the appellant was unable to, for reasons beyond her control, avail of her right of appeal so the Supreme Court found these to constitute exceptional circumstances to grant her review under s 155 (2) (b) Constitution. Here the applicant had a similar statutory right of appeal that he neglected to avail of. And even before that he failed or neglected also to avail of the opportunities extended to him by the LSC to submit to the procedural safeguards to be heard in his defence of the charge of unprofessional conduct.

59. Avia Aihi was an uninformed and illiterate (through no fault of hers) elderly village woman not conversant with the intricacies of the law and its processes and procedures. The applicant here is a young well-educated legal professional.

60. In his submissions, learned counsel for the applicant emphasized the powers of the courts under s 155 (4) Constitution which provides that both the Supreme and National Courts have an inherent power to make in such circumstances as seem to them proper orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case. A pertinent question to ask in response to this submission is: what are the particular circumstances here? The particular circumstances are that serious allegations are made against the lawyer, implicating also the involvement of a judicial officer and a former national parliamentarian/governor.

61. Allied with those are the further circumstances that the required procedural safeguards had been duly accorded to the applicant as amply demonstrated in the depositions of Mr Unagi in his affidavit (supra). The sum total of all these circumstances is, as concluded repeatedly already, that he failed or neglected to avail of these procedural safeguards together with the statutory right of appeal. Perhaps it was due to his being unemployed and stranded in remote Daru without access to facilities. But evidence on such a plight unfortunately is scanty, if not absent. There seem to be complete silence about these, at least between October 1999 and April 2002.

62. In the result, I am well satisfied that proper notices, information, dates, charges, pertinent documentation that the LSC relied on to exercise jurisdiction were duly furnished to the applicant. There are no evidence forthcoming from the applicant sufficient for the court to disregard the depositions in the supporting affidavit of the defendants.

63. In my respectful opinion, there is here a situation of assertions of failure on the part of the LSC to give notices (or sufficient notices) that were without substance, without foundation. And these groundless assertions apply similarly to the applicant’s assertion of denial of the right to be heard. In the result, therefore, I find there was no error on the part of the LSC in entertaining, considering and determining the serious allegations of bribery vis-à-vis professional conduct under the PCR. I am satisfied that all the material that were necessary and pertinent to the charge were before the committee for its consideration and determination, which material were also available to the applicant himself.

64. In relation to the applicant’s grievance about the penalty that was imposed on him, it is the judgment of this court that the penalty was within the discretion of the LSC. It was not as if it were plucked from somewhere else; it is located number three on a very long and exhaustive list under s 54 of the Lawyers Act. It was, therefore, one that was within the statutory power of the committee to impose in its discretion in an appropriate case. And as counsel would be aware, in a criminal court or a quasi-judicial tribunal exercising powers of penal sanctions, it will be for very good reasons that an appellate court or tribunal will disturb and overturn the exercise of discretion. Needless to say, those reasons have to do with any demonstrable errors in the exercise of the discretion. Thus, this court would be reluctant to interfere with the LSC’s exercise of discretion in arriving at the penalty it imposed. No error on the part of the LSC has been demonstrated here.

65. As a result, I find that the imposition of the penalty was within the jurisdiction of the LSC in the exercise of its discretion, taking into account the entire circumstances surrounding the bribery allegations.

66. It is the judgment of this court that in the consideration and determination of the five instances of improper conduct alleged to have breached Rule 3 (a) (i) to (v) of the PCR, there was no denial of natural justice to the applicant. The LSC was properly seized of jurisdiction under the Lawyers Act and the PCRs. Procedures were properly and faithfully availed of, according to the applicant his every right and opportunity. So I find no errors that can be attributed to the LSC in the discharge of its statutory duties and functions.

67. I, therefore, refuse to grant the orders that are sought . I am, therefore, not satisfied that the circumstances here are proper, or ripe, for the exercise of the inherent powers of this court as envisaged by s 155 (4) Constitution. The application for judicial review is dismissed with costs.

68. Finally, and in passing, I note that the decision of the LSC to apply to the National Court to remove the applicant’s name from the roll of practitioners would have to go, first, to the PNGLS, which would have to be the applying body. Counsel were not able to say whether or not such an application has been made yet. In any case, if the PNGLS were to make such an application, then it would be heard and determined with the applicant having been accorded the opportunity to be heard as to why his name should not be removed. So, if anything, there is still one more opportunity for the applicant to be heard if the PNGLS proceeds under s 54 (c) of the Lawyers Act.
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Soi & Associates Lawyers: Lawyer for the Applicant
O’Briens Lawyers: Lawyers for the Defendants