Toll v The State [1989] PGSC 1; SC378 (29 December 1989)

Unreported Supreme Court Decisions

SC378

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SC REVIEW 9 OF 1989
DAVID TOLL
APPLICANT
AND
THE STATE
RESPONDENT

Waigani

Bredmeyer Woods Konilio JJ
30 November 1989
29 December 1989

Counsel

J Patterson, for the applicant.

J Baker, amicus curiae.

Cur. adv. vult.

29 December 1989

BREDMEYER J: This is an application for review under s 155(2)(b) of the Constitution which provides that the Supreme Court “has an inherent power to review all judicial acts of the National Court”. The applicant is a lawyer employed by Henao, Cunningham, Priestley, and on Friday 23 June 1989 he appeared before Brunton AJ on a civil matter WS 1009 of 1988. Mr Toll appeared for the plaintiff and moved for a default judgment on his own affidavit sworn 22nd June, and stating, inter alia:

“that no notice of intention to defend had been filed within 30 days of service of the summons herein as required by Order 4, Rule 11(b)(1)”.

The judge checked through the file and found that a notice of intention to defend had indeed been filed on 14 March 1989 within 30 days of service of the writ of summons. The judge pointed out this fault to Mr Toll and ordered Mr Toll not to appear before him again. The exact words used are somewhat in dispute. According to the note made in the judge’s notebook “counsel swore to a fact without checking - an irresponsible act - I will not listen to this counsel again”. According to the Associate’s endorsement on the back of the file:

“Mr Toll was ordered out of court and further ordered not to appear before Judge Brunton. Matter adjourned until 30 June 1989.”

Mr Toll has sworn an affidavit for the purposes of this application in which he states that he apologized for the error in his affidavit and explained to the judge that he had been unable to check the court file at the time of swearing the affidavit due to the fact that the file was out of the Court Registry being in his Honour’s possession at that time, one day prior to Motions Day on 23 June 1989. Two other lawyers who were in court at the time have deposed to their recollection of what was said. Mr Uyassi said:

“His Honour went on to state to Mr Toll that he had sworn a false affidavit. Mr Toll then attempted to apologize to his Honour and to explain the circumstances of his swearing that affidavit but his Honour refused to allow him to proceed. His Honour then charged Mr Toll with swearing a false affidavit and ordered that Mr Toll was never to appear before him again”.

Mr Habuka has deposed:

“After Mr Toll made his initial submission to the Court his Honour, Mr Acting Justice Brunton, stated that Mr Toll had sworn a false affidavit. Mr Toll apologized to his Honour and then attempted to make an explanation to his Honour in relation to the alleged swearing of the false affidavit but his Honour interrupted and refused to hear the same. His Honour made a number of statements in relation to the aforesaid allegedly false affidavit of Mr Toll and then ordered that Mr Toll should never appear in his Honour’s court again.”

Five days later, on 28 June 1989, Brunton AJ wrote to the Chairperson of the Lawyers Statutory Committee, established under the Lawyers Act 1986, and referred Mr Toll’s conduct to the Committee for its attention. After describing the untrue statement in the affidavit the trial judge said:

“At best Mr Toll appears to have neglected to check the National Court file. At worst he may have attempted to deceive the Court.

Had I not had the presence of mind to check the file myself I could well have relied on Mr Toll’s affidavit and struck out the defence of the defendant in the matter.

I have told Mr Toll that he is not to appear before me until the matter is resolved by your Committee.”

The applicant said that he was ordered “never again to appear” before the judge, and the affidavits quoted, the judge’s brief note at time and the Associate’s endorsement on the file, support that view. On the other hand, the trial judge’s letter of 28th June, says that Mr Toll is not to appear before him until the matter is resolved by the Lawyers Statutory Committee. The dispute over the exact terms of the order could have been resolved by looking at the formal order but no formal order was extracted. In that event I consider that his Honour has varied his spoken order, and had power to do so, and thus the order now before us for review is one barring Mr Toll from appearing before him until such time as the Lawyers Statutory Committee has considered and decided upon the punishment (if any). The Committee did meet and considered the trial judge’s complaint and it decided to fine Mr Toll K500 and suspend him from practice for 21 days. That decision is under appeal before Hinchliffe J; it has been argued, he has reserved, and his decision will be given after ours.

THE APPLICATION FOR REVIEW

The judge’s order barring Mr Toll from appearing before him was given on 23rd June. This application for review was filed on 10th November.

The Supreme Court’s review jurisdiction under s 155(2)(b) of the Constitution was first defined in three criminal cases: Avia Aihi v The State [1981] PNGLR 81.

Avia Aihi v The State No 2 [1982] PNGLR 44, and Danny Sunu and Others v The State [1984] PNGLR 305. It has been further defined, in relation to civil cases, in The State v Colbert (Unreported Supreme Court judgment SC 352 of 5 August 1988) and New Zealand Insurance Co Ltd v Chief Collector of Taxes (Unreported Supreme Court judgment SC 376 of 14 December 1989). It is clear from those first three-named cases that this review power will be exercised “only in exceptional circumstances where some substantial injustice is manifest, or the case is of some special gravity”, or that there are “cogent and convincing reasons and exceptional circumstances”. It has further been established that in determining whether or not there are “cogent and convincing reasons” the merits of the case to be argued must form part of those cogent and convincing reasons. The background to these cases is that under ss 17 and 29 of the Supreme Court Act (Ch No 37) a notice of appeal must be filed within 40 days after the date of the conviction or order or within such further period as may be extended by the Supreme Court on application made within those 40 days. In all these cases the application for review was made because the applicant got out of time to appeal. In the criminal cases the Supreme Court has shown special solicitude for an applicant in custody and without ready access to a suitable lawyer. Thus in the first Avia Aihi case the applicant who was a convicted woman serving a life sentence was given leave to review her sentence 13 months after the appeal period had expired. Where the liberty of the subject is involved, damages against a lawyer for professional negligence are a small consolation if the prisoner is still in gaol. Danny Sunu v The State [1984] PNGLR 305 was an application for constitutional review in a criminal case, but there, Pratt and McDermott JJ said at p 308 that the situation would be different in a civil case:

“Consequently, had this Court been concerned with advice given in civil proceedings, there might well be no justification whatsoever for granting a review as another remedy is available to the party wronged”.

At p 312 Woods J said:

“The applicants failed to appeal. .... A mistake by a legal adviser is not in itself a convincing reason for a court to exercise a discretion. In civil proceedings, the applicants would have a remedy in damages against the legal adviser”.

In Colbert’s case the trial judge had awarded a large sum of damages against the State. The State wanted to appeal and endeavoured to file its appeal notice on the fortieth day but a few minutes after the Registry had closed. The State’s lawyer endeavoured to file the document again on the next day. The notice of appeal was rejected as being late and, after a series of procedural blunders, the State filed the review application about six months after the date of judgment. The Court there comprising of Kapi Dep CJ and myself in the majority, and Amet J dissenting, decided to refuse the review application. The majority decided that the State got out of time to appeal through the incompetence of its lawyers and then further delayed for a lengthy period before filing the review application. The majority said that neglect and/or incompetence of a party’s lawyer in a civil case does not amount to exceptional circumstances, or cogent and convincing reasons, why the application should be granted. In the New Zealand Insurance case, the trial judge had decided a taxation appeal against New Zealand Insurance Co. The company wished to appeal but was badly advised by its lawyer who considered that the 40-day appeal period did not run during the Court vacation. He endeavoured to file a notice of appeal shortly after the Court’s Christmas vacation had ended. The Court in that case was comprised of Amet and Barnett JJ and myself as Chairman, and it unanimously decided to grant leave for review. There the Court found that it was in the interests of justice, and there were convincing reasons or exceptional circumstances why the review should be granted and that there were clear legal grounds meriting a review. Also the application for review was made much more promptly than in Colbert’s case. The Court distinguished the facts in the New Zealand Insurance Co. case from Colbert in that there was an arguable case on the merits, whereas in Colbert, the merits were not really examined. Secondly, it was a test case; 14 “linked” insurance companies were all faced with similar taxation assessments and this case was a test case. Thirdly, the respondent was not out of pocket through granting the application to review, as the Chief Collector had presumably collected the tax - or at least had power to collect the tax - pending the resolution of the litigation. Finally, a large sum of money was involved in that case, K567,740, and large sums in the related cases.

In the present case the applicant has failed to explain why he failed to appeal within the 40-day time limit provided in the Supreme Court Act. He has not given any evidence explaining the delay. Counsel for Mr Toll argued that as his client had not been convicted of any offence he could not appeal under s 22 of the Supreme Court Act which allows a person convicted by the National Court to appeal against that conviction. Counsel argued that the applicant had no other way to come to the Supreme Court except under s 155(2)(b) of the Constitution and relied on Supreme Court Review No 5 of 1987 Re Central Banking (Foreign Exchange & Gold) Regulations (Ch No 138) [1987] PNGLR 433 as authority for the proposition that where there is no other avenue available of coming to the Supreme Court, an applicant may do so without the strict criteria in Avia Aihi and Danny Sunu being first established.

That was a criminal case where, before arraignment, counsel for the defence had raised a demurrer. The trial judge ruled on the demurrer in favour of the defendant; he ruled that the regulations under which the charge was laid were ultra vires the statute. The State wanted to challenge that ruling in the Supreme Court. It was a criminal case; the defendant had not been acquitted so s 26 of the Supreme Court Act was not available to the State. That section allows a reference of a point of law following acquittal on indictment. Section 21 allows the reservation by the trial judge to the Supreme Court of a point of law before or after a verdict. It appears that the State did not ask for this. In any event, the trial judge had refused to refer a point of law to the Supreme Court at the request of the defendant, so he may have likewise refused such a request from the State. The Supreme Court at p 437 said that s 21 was of no assistance to the State.

The facts of the present case are distinguishable from the Central Bank Regulations case. This is not a criminal case. Mr Toll has not been charged, arraigned or convicted. Mr Toll has had an order made against him which is a punishment. Section 4(1) of the Supreme Court Act confers a right of appeal. “An appeal in accordance with this Act lies to the Supreme Court from a judgment of the National Court”. The word “judgment” is defined in s 1 to include any order of the Court. Clearly Mr Toll has suffered an order against him from the National Court. He was ordered not to appear before Brunton AJ. The words “in accordance with this Act” refer to other sections of the Act. Division 2 of the Act deals with “Additional Provisions Relating to Appeals in Civil Cases” and, by s 13, the Division applies “to and in relation to proceedings other than criminal proceedings”. That is a wide definition and, as I have said, Mr Toll was not charged with criminal proceedings. An order was made against him in “proceedings other than criminal proceedings” and thus I consider that he could have appealed under Division 2, in particular under s 14. That being so he has to explain satisfactorily on the Avia Aihi and Danny Sunu principles why he did not appeal within the 40-day time limit.

The applicant has given us no reason either by a statement in an affidavit or in argument as to why he failed to appeal within the time limit provided in the Supreme Court Act. It appears to me that the applicant only decided to challenge the order four-and-a-half months after the order was made, and at that time, knowing that he was time-barred to appeal, he lodged this constitutional review application.

It is necessary to examine the merits of a case on a s 155(2)(b) application. The applicant argues that he has been punished without being formally charged and without the benefit of the principles of natural justice. The applicant says that he could have been formally charged with contempt of court or with swearing a false affidavit. If charged with contempt, then the procedure provided under Order 14 Rules 37-50 of the National Court Rules should have been followed. That procedure was approved by the Supreme Court in Robinson v The State [1986] PNGLR 307. In that case Cory J summarily charged a lawyer for contempt, for an insulting remark not made in the presence of the judge, and found him guilty. He was fined K100 and the trial judge said that he was not to appear before any court until the fine had been paid. At p 309 the Supreme Court made some critical remarks about that extra punishment:

“The continued application of the sanction whereby a lawyer is precluded from appearing until a fine is paid needs to be very cautiously considered as it appears to raise substantive issues as to the power of the court to so order, the relationship between the courts power and the provisions of the Lawyers Act, (Ch No 91) the issue of whether such a method of enforcement is legal and whether such a sanction amounts to double punishment and is harsh and oppressive.”

The applicant argued likewise that if he had been charged with swearing a false affidavit the procedure would have given him the benefit of natural justice; in particular he would have had the opportunity of making representations to the court - whereas, in this case, according to the affidavits filed by the applicant, the trial judge failed to listen to Mr Toll’s explanation and apology.

It could also be argued for the applicant that once the matter was referred to the Lawyers Statutory Committee, the trial judge should have allowed Mr Toll to appear before him lest his ban pre-empt, or interfere with, the kind, or extent, of punishment that the Committee might impose.

The contrary argument starts with the proposition that a lawyer must not knowingly mislead the court. I quote from Vol 3, Halsbury’s Laws of England (Fourth Edition), para 1137:

1137. Duties to client and to the court

A barrister has a duty to his client fearlessly to raise every issue, advance every argument and ask every question, however distasteful, which he properly may and which he thinks will help his client’s case, without regard to any unpleasant consequences to himself or any other person. In the interests of the administration of justice, however, a barrister has an overriding duty to the court, to the standards of his profession and to the public. Thus, he must not knowingly mislead the court, this duty prevails over that he owes to his client.” (footnotes omitted)

The authority cited for the proposition that a lawyer must not knowingly mislead the court is Meek v Fleming [1961] 2 QB 366, a decision of the Court of Appeal. Mr Baker, who appeared amicus curiae, cited two cases to show the court’s powers to regulate who may appear before it. The facts in these cases are not important or relevant for our purposes, because they turn on the particular legislation and practice of that time and State. But some dicta in them is relevant. In R v O”Neill (1885) 6 NSWLR 43 Marton CJ at 45 said:

“There can be no doubt that a judge of the District Court, as well as judges of this and all other courts, have necessarily entrusted to them the power to preserve order and decency in the courts where they preside. If any person appeared as an advocate before a judge, whatever his position might be, and used expressions which were insulting to the bench, or misconducted himself in any way - for instance by persisting in doing things which were contrary to the ruling of the judge, coming into court in a state of intoxication, or interfering in the any way with the administration of justice - the judge had power to exclude him, and in some cases had power to do more than exclude him”.

That statement was approved by his successor Darley CJ in R v Mathews (1887) 8 NSWLR 45 at 50. Mr Baker also referred to Winters v Cross [1976] I NSWLR 616 which I thought, because of its vastly different facts, was irrelevant.

I consider that a judge has power to bar a lawyer from appearing before him for misconduct such as an insulting remark, coming into court intoxicated, persistently refusing to obey a ruling of a judge, improper court dress and the like, and to these I would add - knowingly misleading the court. But that power should be used sparingly. When a lawyer misconducts himself in one of the ways mentioned, the barring of the counsel is but one of the options available to the judge. He may charge the lawyer with contempt in which case he must follow the correct procedures, see Robinson v The State [1986] PNGLR 307 and The State v Mark Taua, Re Awaita - Contempt Proceedings [1985] PNGLR 179. He may refer the misconduct to the Lawyers Statutory Committee established under the Lawyers Act 1986 which is what Brunton AJ did in this case. That Committee is charged with the duty of investigating complaints and imposing punishments such as a fine, a reprimand, a suspension from practice for a stated period, and it is expressly required by s 53(1) of the Lawyers Act to observe the rules of natural justice. Finally he may refer the misconduct to the prosecution authorities for possible prosecution, e.g. for swearing a false affidavit, or interfering with witnesses.

All these options afford the transgressing lawyer the benefit of the rules of natural justice and some appeal avenue. These methods of punishment are greatly to be preferred to a summary ban without the full benefit of natural justice. I consider that a ban from appearing for a day or so is all that is necessary to keep decorum and decency in the court. It marks the judge’s disapproval of the lawyer’s conduct, it visibly asserts the power of the court over its officers, and it allows time for passions to cool. It should be used only as an adjunct to the other major means of investigation and punishment. I consider that the applicant has a good case on the merits. The danger of barring the lawyer for appearing for a longer period is that it amounts to a partial suspension of practice - a suspension from appearing before a particular judge - without the benefit of natural justice, in particular without giving the applicant sufficient time and sufficient opportunity to be heard in his defence.

To summarize I consider that the applicant has given us no convincing reason, or no good excuse, why he failed to appeal within the time limit imposed by the Supreme Court Act. I also consider that the applicant has a good arguable case on the merits. The onus is on him to convince us that there are clear and cogent and convincing reasons and exceptional circumstances why we should grant leave to review. I remind myself that there is a great public interest in the finality of litigation. That pubic interest is reflected in the 40-day appeal period time limits given in the Supreme Court Act and by the fact that those limits can only be extended by an application made within that 40-day period. On the other hand, s 155(2)(b) of the Constitution, gives a right of review in addition to the right of appeal referred to in Subsection (2)(a). The policy reflected in that section is to allow a review in addition to an appeal in order to correct some injustice which might otherwise have gone uncorrected. The reconciliation of these two opposing policies, the finality of decision-making, and the need to correct injustices, is best served by saying that it is only in exceptional cases that such a review will be allowed. In this case the applicant has suffered a professional punishment, a restriction of his ability and right to appear before the National Court, but it is not an overwhelmingly crushing blow. He is a salaried worker, he has not lost pay, and has not been sacked. He is free to appear before ten or eleven other judges of the Court. He is a lawyer and thus unlike the applicant in Avia Aihi (supra) who had little knowledge of the law and who was in custody and thus knew little about the statutory time limit. Mr Toll must have known about the appeal period time limit yet he chose to let it expire and only brought this application three months and one week after its expiration. No doubt too, his suspension from appearing before Brunton AJ was taken into account by the Lawyers Statutory Committee, or will be taken into account by the judge in determining the appeal from that Committee’s decision. Weighing up all these considerations I see no special circumstances and none of the special factors which were present in the New Zealand Insurance Co. case. For example this is not a test case. I would refuse to grant leave to review, dismiss the application, and would make no order as to costs.

WOODS J: I agree generally with the judgment of Bredmeyer J and the order he proposes.

KONILIO J: I concur in the judgment of Bredmeyer J.

Application dismissed.

Lawyer for the applicant: Henao, Cunningham, Priestley.