Karingu v Henao [1994] PGSC 2; SC458 (28 April 1994)

Unreported Supreme Court Decisions

SC458

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SCA 5 OF 1993
CANISIUS KARINGU
V
LOANI HENAO & OTHERS (BEING MEMBERS OF THE STATUTORY COMMITTEE OF THE LAW SOCIETY)

Waigani

Woods Konilio Salika JJ
28 April 1994
June 1994

LAWYER - discipline - improper conduct - Appeal from suspension by Lawyers Statutory Committee - principles to be applied - Appeal dismissed.

Cases Cited

Re a Solicitor [1969] 3 AER 610

Re a Lawyer [1992 ]Unreported N1081

Nerau v Solomon Taiyo Ltd [1993] Unreported SC451

Counsel:

The Appellant in Person

Mr Payne for the Respondent

June 1994

WOODS KONILIO SALIKA JJ: The appellant is appealing from the judgment of the National Court given on the 17th day of December 1992 in proceedings Appeal No. 115 of 1992. The matter before the National Court was an appeal from the findings and penalties imposed upon the appellant by the Statutory Committee of the Law Society following an enquiry into allegations of improper conduct. The appellant is a lawyer who holds an unrestricted practising certificate under the Lawyers Act 1986 and the respondents are members of the Lawyers Statutory Committee whose function under the act is to enquire into complaints against a lawyer of improper conduct as a lawyer.

Following the enquiry the committee found the appellant had been guilty of improper conduct, firstly by commencing a proceeding in the National Court in the name of a Dr G Gibson when the appellant had no proper retainer from Dr G Gibson to do so, and the Committee imposed a penalty of suspension from practice as a lawyer for 2 months. Secondly that the Appellant witnessed an Affidavit in the above proceedings without the Deponent being present before him and thereby knowingly deceived or misled the National Court, and the Committee imposed a penalty of 6 months suspension from practice. Following the hearing of the appeal in the National Court the judge dismissed the appeal with costs.

The appellant has listed 14 grounds of appeal alleging that the judge erred in law and fact. However whilst he had stated the grounds of appeal on the basis of erring in law and fact it was quite clear from the way submissions were presented to this court that the appellant was challenging certains findings of fact by the judge. In so far as these clear findings of fact alone were being challenged in the oral argument we find that the appellant has not approached the court in the correct manner in accordance with the rules of the Supreme Court namely detailed that he is appealing against findings of fact and giving appropriate reasons why the court should review these findings of fact. We note that the Appellant has not complied strictly with Order 7 Rule 2 (a) and used Form 7 in his application to the Court. The Respondent has filed a Notice of Objection to competency and we note this objection and this may assist at the end of the hearing in the matter of costs. We refer to the statement of the principles when seeking leave as set out in Nerau v Solomon Taiyo Ltd [1993] Unreported SC 451. Be that as it may we will now proceed to cover the grounds of appeal in the form that they are stated in the notice of appeal.

The first ground of appeal is that the judge held that the appellant was not denied the right to give and call evidence to defend himself against the allegations when there was insufficient evidence to support his finding. The appellant gives a version of how matters proceeded before the Statutory Committee and he submits that the committee failed to observe the rules of natural justice in carrying out the enquiry. He suggested that they gave him no chance to prepare his defence to the allegations made and complaint made to the Statutory Committee by Dr Gibson. He submits there was certain evidence that he was unable to present to the Statutory Committee because of the refusal to grant an adjournment to prepare his defence. However it is noted from the transcript that the evidence from Dr Gibson which was the basis of the complaint was presented to the statutory committee in March 1991 although the appellant was not present at that time however there was further hearings or dates set at which the lawyer was present. Then in October 1991 when the appellant was present and the complainants evidence was restated to the Committee the appellant was able to cross examine the complainant at that time. At that hearing in October the appellant then obtained an adjournment to attempt to bring other witnesses or evidence before the Committee and such an adjournment was granted until November however in November that hearing was then further adjourned to a later date. In due course in February 1992 the inquiry was resumed and the appellant again applied for an adjournment which was refused by the Committee. At that time in February the appellant then elected not to give evidence or make submissions. It is therefore quite clear that the appellant had during the whole of 1991 and in particular from October 1991 to February 1992 to obtain the necessary evidence to present to the Statutory Committee so we find there is no basis for his submissions that he was not given adequate time to prepare his story or version before the Statutory Committee. We note that in fact the Appellant knew of the complaint and enquiry from November 1990 so in reality had had over 15 months to prepare his case.

The trial judge in the National Court quite clearly stated that the appellant had ample time from October 1991 to February 1992 to prepare his evidence and he himself was present and could quite easily have given evidence. We find no problems with that ruling as we would agree with that ruling. We therefore find that there is no evidence to support this ground of appeal.

The second ground of appeal refers to evidence of a letter apparently written to the appellant by the defendant in the action which was in the name of Dr Gibson. We find no merit in this ground of appeal as it is quite clear that there was ample opportunity for the appellant to subpoena Mr Merchant. Again we note that the appellant being a lawyer knew the practice of law quite well and knew it was well within his power and time to take the appropriate steps by way of subpoena to ensure that any evidence that might be relevant could be presented properly.

Grounds of appeal 3, 4, 5, 6 & 7 are all in fact challenges to findings of fact made by the Judge in the National Court. These were findings made by the National Court having perused the evidence by Dr Gibson plus the evidence from the appellant himself and following some further cross examination by the Appellant of Dr Gibson at the court's request. Whilst the appellant has not filed his notice of appeal correctly with appropriate reasons for leave to appeal against findings of fact we find that there is no basis for these findings of fact to be challenged before this court. These findings were well within the power of the Judge on the evidence before him. It should be noted at this stage that the appellant had all the opportunity that anyone could have to bring any evidence before the National Court as the hearing before the National Court was by way of a rehearing at which he was allowed to bring any further evidence he required which may not have been brought before the Statutory Committee. So therefore the judge not only had the benefit of the evidence that appeared before the Statutory Committee but he also had the benefit of further evidence given by the appellant himself on which to base his decision. Quite aside from the submissions presented to this court by the appellant it is quite clear that in all the evidence presented to the Statutory Committee and the Court there was no normal type of file records of the appellant which showed the normal type of instructions given when persuing a civil claim in the court. Thus there was no minute referring to the instructions given by Doctor Gibson to persue this claim and there were no minutes of appropriate follow up contact between Doctor Gibson and the appellant. Therefore when it came to the trial judge having to decide which evidence to believe when he had the evidence of Doctor Gibson which was consistent and accorded well with the overall picture of the way the proceedings had been conducted and then compare that with the lack of material or evidence or copy of file which any normal lawyer would have had it is quite obvious that the trial judge could only come to one conclusion namely that Dr Gibson's evidence was the evidence to be believed as there was no other evidence to support the appellant's version of how matters were conducted.

Grounds of appeal 8, 9 & 10 also involve questions of fact raising the question of the Judge assessing the credibility of the witnesses and making findings of facts and the same arguments raised above apply here.

Ground 11 says that the trial judge had erred in fact in upholding the six months suspension on the basis that six months was ultra vires the Lawyers Act. In his submission the appellant has submitted that whilst s. 54 (e) gives the Statutory Committee power to suspend a lawyer from practice for such period as it thinks proper this provision is regulated by s. 54 (g) which provides that where the lawyer is the holder of an unrestricted practising certificate the Committee may order that he be issued with a restricted certificate for such period as it thinks fit. This submission however misconcieves the whole way that s. 54 of the Lawyers Act is worded. S. 54 clearly provides a variety of punishments that the Statutory Committee can impose and one punishment is to suspend the lawyer from practice but a lighter punishment suggests that an alternative may be that if he is a holder of an unrestricted practicing certificate then that may be reduced to a restricted certificate for such period as the Committee thinks fit. The appellant submits that the Committee does not have jurisdiction to directly suspend the holder of unrestricted certificate. That submission is clearly a misunderstanding of the legislation and is thereby clearly wrong. We are satisfied that the Committee may impose any of the penalties specified in s. 54.

Grounds of appeal 12 & 13 suggest that in so far as a penalty under s. 54 can affect a lawyers practising certificate and therefore his right to practice as a lawyer it is thereby unconstitutional under s. 32 and 48 of the Constitution. It is noted that the appellant raised these matters in his appeal to the National Court and as noted by the trial judge whilst he filed constitutional grounds against the penalty he did not persue them. For that reason the appellant having the opportunity to raise this before the lower court, he cannot now raise them now as he had the opportunity to argue those grounds but decided not to. However we might add further in passing that the Lawyers Act does not violate a persons right to freedom of business or trade or rights of employment but merely regulates the right to practice.

In so far as the appellant may be asking this court to take a fresh approach to the complaint and the penalties imposed by the Statutory Committee it must be pointed out that whilst the court has the power to take a fresh approach this court must always remember that this is a a matter of conduct within a professional body which has been given the power and responsibility to punish and control itself. And there have been ample cases where courts have said that in principle where a professional body is entrusted with a discretion as to the imposition of the sentence the courts should be very slow to interfere with the excercise of that discretion. This has been quite clear when facing matters of the professional misconduct of a doctor and also of lawyers and as the court of appeal said in the case Re a Solicitor 1969 3 AER 610 “in cases where a disciplinary committee had imposed a particular penalty for misconduct the court would only interfere in an extreme case since the committee were to be regarded the proper judges of what a penalty should be”. These principles were adopted by the National Court in the case Re a Lawyer [1992] Unreported N1081.

This court finds no merit in the appellant’s submissions before the court on the grounds of appeal and we order that the appeal be dismissed.

As most of the matters presented to this court were challenges to findings of fact for which the appellant had not filed the appropriate application for leave in accordance with the order 7 and the respondents had thereby filed a Notice of Objection to competency we find that this case is an appropriate case for the court to order that the appellant is to pay the respondent’s costs in this appeal.

Lawyer for the Respondent: Blake Dawson Waldron