Nickson Kiuk (trading as Nikiuma Lawyers) v Iduhu [2020] PGNC 301; N8504 (21 September 2020)

N8504

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 673 of 2019

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 231 OF THE DISTRICT COURT ACT CHAPTER NO. 40

IN THE MATTER OF NICKSON KIUK Trading as Nikiuma Lawyers
Applicant

AND
KEITH IDUHU In his capacity as the chairman & on behalf of members of the Lawyers Statutory Committee of the Papua New Guinea Law Society
First Defendant

AND
LAWYERS STATUTORY COMMITTEE OF PAPUA NEW GUINEA LAW SOCIETY
Second Defendant

Waigani: Miviri J
2020: 03^rd September

PRACTISE & PROCEEDURE – Judicial Review & appeals – Notice of Motion – Application for Leave extension of time appeal – Section 231 District Courts Act – Section 58 (2) Lawyers Act 1986 – Within 21 days appeal to Court – Order 16 Rule 4 NCR Delay applying for Relief – Evidence relied on – Reasons for delay – non meritous – No arguable case – Frivolous & Vexatious – Evidence of – Balance not discharged – motion denied – cost follow the event.

Cases Cited:

Aihi v The State (No 1) [1981] PNGLR 81

Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906

Wartoto v State [2013] PGNC 108; N5320

Small Business Development Corporation v Totamu [2010] PGSC 44; SC1054
Counsel:

N. Kiuk in person as the Plaintiff
No appearance for First & Second Defendants

RULING

21^st September, 2020

1. MIVIRI, J: This is the Ruling of the Court on the Originating Summons dated 17^th September 2019 filed 27^th September 2019 made pursuant to section 231 of the District Court Act by the applicant. He seeks orders for leave to extend time to appeal against the decisions of the defendants made on the 30^th June 2016 and subsequently on the 26^th September 2018. He invokes Section 231 of the District Courts Act read in conjunction with Order 18 Rule 12 (1) of the National Court Rules.
   
2. It is also necessary to understand the reliance by the applicant on section 231 of the District Courts Act chapter 40. That section reads;- dispensing with Conditions precedent, “ The National Court may–

(a) dispense with compliance with a condition precedent to the right of appeal prescribed by this Act, if, in its opinion, the appellant has done whatever is reasonably practicable to comply with the provisions of this Act; and
(b) on application made ex parte by the party appealing–extend the time for compliance with a condition precedent to the right of appeal prescribed by this Act.

3. Firstly, this is not an appeal from the District Court. So that law the section is inapplicable here. It follows from a right of appeal emanating from that Act. In other words the subject matter must have emanated from the District Court because the prescription is by that Act not the Lawyers Act 1986. Because it originates from the prescription by that Act what has been done is to give effect to that Act. That is not the case here this is a matter which originates from the Lawyers Act 1986 and therefore for all intent and purposes section 231 of the District Courts Act 1963 as amended has no application here for the applicant. The facts do not invoke its application. It does not extend his cause prayed.
   
4. What is at the heart is that the applicant’s right of appeal under section 58 of the Lawyers Act 1986 has lapsed. He no longer has rights to appeal. Hence this application by section 58 (2) for leave to institute out of time. That section is in the following terms: - “Section 58 Appeal from Decision of Committee.

(1) A lawyer may appeal against a decision of the Committee to the Court within 21 days of the date of the decision.

(2) A person, whose complaint has been the subject of an enquiry by the Committee, may appeal to the Court against the decision of the Committee on that complaint within 21 days of the date of the decision.

(3) An appeal under Subsection (1) or (2) may be 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 rehearing by the Court.

(5) On an appeal, the record of proceedings of the enquiry by the Committee may, with the consent of the person making the complaint and the lawyer, be given in evidence on the appeal and shall be admissible evidence of the opinion of the Committee in relation to any matter contained in it and of the facts upon which the opinion is based.”

5. So, 21 days from 30^th June 2016 and subsequently on the 26^th September 2018 is almost 4 years overdue. Even by the latter two years is still well overdue. What is significant and hard to comprehend is that, this is an application by a lawyer not an ordinary lay member of society, or as seen in many Supreme court cases by prisoner in person appeal against conviction and sentence: Aihi v The State (No 1) [1981] PNGLR 81 (27 March 1981). She did not know there were time limitations in the institution of an appeal on her sentence. She was not expected to know that because she was not schooled in the law. She would not know her rights profoundly as a lawyer would. That is why she was by the Constitution section 155 (4) granted leave for her appeal to be heard.
   
6. The fundamental point here is that a lay person an ordinary member of society is not as fluent in the law as a lawyer is. The applicant was a lawyer conversant and a schooled professional to the practise knowledge and application of law who has for the last 4 to 2 years at the minimum sat by as his rights in appeal went by without lifting a finger to voice. No doubt having practised law for 14 years since 2004 he would have been familiar with the Lawyers Act 1986. Because that is what governed his practise as a lawyer. It was not an excuse to say time had overtaken and lapsed in the process. He starts with an up hill climb to convince that there are cogent and convincing reasons apparent to be granted leave. Primarily because the courts must control its process from abuse and must be upheld for the integrity of the process of the court to be maintained at the highest: Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906 (28 March 2008) sets out the concept of res Judicata.
   
7. On another level the process instituted by law must be protected and respected as demonstrated in Wartoto v State [2013] PGNC 108; N5320 (15 August 2013). It was criminal process intended to be stopped by an injunction in civil law. The Supreme Court dismissed that the criminal process will run its course not to be stopped by civil law. For our purposes here what has emanated from the Lawyers Act must be respected and observed as did the Supreme Court in Wartoto (supra). There ought to be very good cogent and compelling reasons demonstrated to disturb and tamper. Here time has run for the applicant he has not lifted a finger to voice discontentment.
   
8. Even then the first hurdle is why the delay? Are there are cogent and convincing reasons why time should be extended given at the minimum it is two years since and at maximum four years since the decision was initially made.
   
9. The appeal is a rehearing and the record of the proceedings of the enquiry by the Committee can with the consent of the complainant and the lawyer, in this case the applicant be given in evidence on the appeal section 58 (5) of the Act (supra). To my mind this depicts that the proceedings against the applicant were not without record. And this is clear even by section 53 of that Act because the evidence is given on oath where witnesses maybe examined and cross examined. And they are protected from self incrimination. The proceedings are open to the public. And a lawyer is permitted appearance to assist in the enquiry. Importantly written record is kept of the enquiry by the Committee section 53 (6). Section 54 sets out the penalties that the committee can impose. Including under section 57 read with section 54 (c) where the committee can apply to court to remove the name of the lawyer from the roll of lawyers. It can advice the Law Society with this fact not to issue a practising certificate to the lawyer named. The powers of the court on appeal are set out under section 59 which includes confirming the penalty imposed by the committee or varying it to substitute for the others under section 54.
   
10. This is clear dictate and demonstration to keep records because of the seriousness of the matter. Section 53 (1) makes it clear, “The Committee shall have the powers of a Commission of Inquiry under the Commission of Inquiry Act 1951, but may otherwise determine its own procedures when enquiring into complaints of improper conduct and shall observe the rules of natural justice in carrying out an inquiry.” There are undoubtedly records kept of the proceedings because the life of a lawyer is involved and Committee is a creature of statute run by lawyers administering the Lawyers Act 1986.
    
11. The affidavit of the applicant sworn 17^th March 2020 is self serving starting with Lawyers Statutory Committee Decision annexure “A” where the committee held after enquiry on the 30^th June 2016 into complaint against the applicant that he was in breach of his duty as a lawyer by engaging in conduct which;
    
    • (i) was dishonest, unprofessional, and may otherwise bring the legal profession into disrepute contrary to Rule 3 (a) (ii) (iii) and (v) of the Professional Conduct Rules 1989;
    • (ii) was in breach of section 8 (1) and (2) of the Professional Conduct Rules 1989;
    • (iii) was in breach of section 18 (4) and (5) of the Professional Conduct Rules 1989;
      

The committee imposes the penalty upon you that;

1. You are suspended from practise until you refund K480, 000.00 in full to the Registrar of the National Court and provide a receipt to the Committee; and
2. Provide a bill of costs to the Committee and a trust account to the Client.
   

Take notice that you must respond to the Committee within 30 days

Dated this 15^th day of July 2016

Lawyers Statutory Committee

12. This is record that the lawyers Statutory Committee recorded its decision set out in the affidavit in support by the applicant. It is dated the 15^th July 2016 from that day up to the institution of this proceeding 17^th September 2019 that is 3 years altogether and up to the date of the hearing of this matter it is four years old. And it makes it even harder for the applicant when annexure “C” of his affidavit is considered. This is a letter with the address and contact details of and under hand of the Lawyers Statutory Committee dated the 19^th October 2015 addressed to Nickson Kiuk, Nikiuma Lawyers P. O. Box 7024 Boroko National Capital District informing him that the “Lawyers Statutory Committee has listed the following complaints against you. At the reviewing meeting the Committee asked or wanted to know whether your firm has taken any steps to settle the complaints.
    1. LSC 15/018- Ex Protect Security Employees
    2. LSC 13/030-Tapia Tamayo Kamayal
    3. LSC 13/032 Sicco Tonkian
    4. LSC 08/097 Benjamin Laik

At the reviewing the Committee wanted to know whether your firm has taken any steps to settle some of the complaints.

Yours faithfully

LAWYERS STATUTORY COMMITTE

Signed Gilbert Maki Secretary.

13. This shows quite clearly and distinctly that there was always communication with the applicant by the lawyers Statutory Committee. And the applicant’s response is “D” of his affidavit. The annexure “E” is the Lawyers Statutory Committee by its letter head drawing the applicant to complaint by Ex protect Security employees’ letter is dated the 13^th January 2016. The subject letter raises having written to the applicant on the 11^th August 2015 on the complaint against you for improper conduct asking for response of the applicant within 21 days. And the applicant did not respond to the committee. Here instruction is conveyed for an itemized bill of cost in a taxable form on the subject to be looked at the next Committee meeting on the17th February 2016. The consequence of failing to provide is drawn and that the applicant is given 21 days to respond. The letter is signed by the Secretary of the Lawyers Statutory Committee Gilbert Maki.
    
14. A similar letter under hand of the Lawyers Statutory Committee in its letter head with its address and contact details is written to the applicant dated the 23^rd May 2013 referenced LSC-11/026. The subject is a complaint by Sicco Tonkian informing the applicant that the Committee has received a complaint of improper conduct against him from the subject. And copies of the complaint and relevant documents are attached for his ease of reference. These are all attached to the affidavit including the minutes of the meetings of the Lawyers Statutory Committee annexure “J2” and “J3.” And the applicant is further instructed to respond to it with 21 days as required by the Professional Conduct Rules. And that he provides an affidavit or a statutory declaration in compliance of Rule 3 (d) of the Professional Conduct Rules.
    
15. Once again this is clear compliance of the rules of natural justice and law. And is even clearer by annexure “F2” where the Statutory Committee under its letter head signed by its secretary Gilbert Maki dated the 15^th July 2016 referenced LSC 11-032 informs the applicant that it has found him guilty of improper conduct as a lawyer and attaching the relevant decision.
    
16. This evidence by the applicant is self serving and defeats his cause because he has been accorded within the bounds of the law and there is nothing to the contrary to lift an iota of his argument up. His own evidence defeats his cause of action for leave. He has not demonstrated any arguable grounds upon which leave can be considered. Nor has he provided any reasonable explanation detailing the delay in the filing of the appeal as in Avia Aihi (supra). The totality is that he has not shown by substantial reason or merit to be granted leave to extend time to file his appeal: Small Business Development Corporation v Totamu [2010] PGSC 44; SC1054 (8 June 2010).
    
17. Even if the applicant was invoking Section 155 (4) of the Constitution as the inherent power of this Court from which orders in the nature of prerogative writs and such other orders as necessary to do justice can be made. The facts by his own affidavit particulars set out above, do not par that this be exercised in his favour. Rather the contrary is clear from that evidence. That is why his own evidence self destructs his own cause of action. This is a frivolous and vexatious action within the terms of Order 12 rule 40 it discloses no reasonable cause of action. It is an abuse of process of the court.
    
18. The applicant has not established and discharged on the required balance because the action at law is time locked and he has not demonstrated to unlock for leave because this is an inordinate delay which judicial review will be no part of by Order 16 Rule 4 to be granted to appeal out of time. Reliance is placed upon Telikom PNG Limited (supra) that there ought to be finality in litigation. Leave is therefore discretionary and the facts do not warrant granting.
    
19. Lawyers are officers of the court first and foremost and must assist the court to serve justice. Professionalism means high professional sense of duty and ethics at the highest. Therefore enforcement compliance of the provisions of the Lawyers Act 1986 is not a light matter. Leave to extend time to appeal is therefore refused and the motion is dismissed in its entirety pursuant to the powers of the court in law and by its rules set out above.
    
20. The final orders of the court are;
    
    • (1) Leave is refused.
    • (2) Motion is dismissed in its entirety.
    • (3) Applicant will bear his own Costs

Orders Accordingly.

__________________________________________________________________

The Plaintiff in person

No representation for the Defendant