Patterson v Lawyers Statutory Committee [2005] PGSC 3; SC822 (2 December 2005)

SC822

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA. NO. 16 OF 2004

BETWEEN:

JACK LIVINAI PATTERSON
-Appellant-

AND:

LAWYERS STATUTORY COMMITTEE
-First Respondent-

AND:

PAPUA NEW GUINEA LAW SOCIETY
-Second Respondent-

WAIGANI : Sawong, Kirriwom & Lenalia, JJ
2005: 1^st September & ....December

PRACTICE AND PROCEDURE – Appeal to Supreme Court – Appeal against Interlocutory Ruling by National Court – Dismissal of Appeal pending before National Court for Non-Compliance with Orders for Discovery – Whether Judge exercised his discretion fairly and properly – Onus on the appellant to demonstrate error on the part of the court.

PRACTICE AND PROCEDURE – Appeal to Supreme Court – Incompetent – Appeal without Notice of Appeal – Notice of Application for leave to Appeal treated as Notice of Appeal – No proper grounds for appeal – Appeal incompetent.

PRACTICE AND PROCEDURE – Appeal to Supreme Court - Failure to appeal an order – Duty to Obey Court order - No right to challenge an order not appealed on another appeal

CONTEMPT – Court order – Duty to obey court order unless set aside – Deliberate failure to obey court order or direction may amount to contempt.

BRIEF FACTS

This is an appeal to the Supreme Court by the appellant whose appeal to the National Court from a decision of the Lawyers Statutory Committee was dismissed by the National Court for failing to obey court directions issued for facilitation of the hearing of his appeal.

As the decision appealed is from an interlocutory ruling of the court, this appeal comes with leave granted by Salika, J and stay orders given by Hinchliffe, J, both sitting as single Supreme Court judges.

The issue in this appeal is whether the motion judge erred in dismissing the appeal?

HELD: (1) The appellant has not demonstrated where the motion judge had erred in exercising his discretion to dismiss the appeal.

(2) The appellant’s failure to comply with the court directions is capable of amounting to deliberate disregard and authority of the court which is punishable by contempt.

(3) The appeal is dismissed as being incompetent in that it is not properly registered before the Supreme Court.

CASES AND AUTHORITIES CITED AND REFERRED TO:
Henzy Yakham and the National Newspaper v Stuart and Carol Merriam [1997] Unreported Supreme Court decision SC53
Gary McHardy –v- Prosec Security and Communication Limited trading as Protect Security [2000] SC646
Hadkinson v Hadkinson [1952] 2 All E.R. 567
Yap –v- Tan, B&T Engineering P/L & Ors [1987] PNGLR 227
David Toll v Kibi Kara & Ors (No.2) [1990] PNGLR 201.

Texts:
JRS Forbes, Disciplinary Tribunals, Second Edition, The Federation Press 1996

COUNSEL:
Z. Gelu, for the Appellant
C. Makail, for the Respondents

2^nd December, 2005

BY THE COURT: This is an appeal by Jack Livinai Patterson (‘the appellant’), a lawyer, against an interlocutory judgment and decision of the National Court dated 11^th February, 2004. On that date the National Court dismissed the appellant’s appeal which was pending before it from a decision and findings of the Lawyers Statutory Committee (LSC), a disciplinary body created under s. 48 of the Lawyers Act 1986 (the Act) that receives and hears complaints against lawyers and deals with them under the provisions of that Act and its Regulations. The appellant was dealt with by this Committee following a complaint of improper conduct against him by a former client pursuant to s. 52 of the Act and amongst other orders made by the Committee, suspended him from practicing as a lawyer on 28 January, 2003 pending an application to the Court for his dismissal. His suspension order and the application for dismissal are both subject of a stay order pending the hearing of his appeal.

Background

It is appropriate to understand the background to the case clearly in order to appreciate the various stages in which this matter was dealt with and how it came to be where it is now.

The appellant pursues this appeal following extension of time of 14 days granted to him on 29 July 2003 to lodge his appeal against the decision of the Committee as he was already well and truly out of time in the proceeding entitled O.S. 357 of 2003. At the same time he obtained a stay order against the enforcement of the LSC decision of 28 January, 2003 pending hearing of the appeal. See page 173 of the Appeal Book. It is not clear who granted these orders.

The appellant is a lawyer practicing on his own account under the firm name of Patterson Lawyers. As an unrestricted lawyer for the purpose of the Act, he was able to collect, receive and hold clients monies in trust for and on behalf of clients who paid those monies and to apply those monies for the purpose of that trust or as instructed or directed by the client.

On 22 July 1999 one Paul Aisa deposited K497,500.00 into Patterson Lawyers trust account for various work to be undertaken by the appellant’s law firm. There is no dispute about this transaction. In his reply to the Notice of Inquiry forwarded to him by the Committee, the appellant submitted that the bulk of the money received was paid into shelf companies as Mr Aisa was avoiding garnishee proceedings against him and also the National Gaming Board was after him for those monies.

It was alleged that over a time the appellant applied substantial portion of the client’s money for his own benefit and without clear and precise authority from Mr. Aisa, thereby resulting in the termination of client-solicitor relationship.

On 4^th June, 2001, Paul Aisa wrote to the Lawyers Statutory Committee alleging misappropriation of his money in the appellant’s trust account by the appellant without his authority and failure to refund the balance of his funds held by the appellant. In a 14-page letter of complaint (Appeal Book pages 7-20) addressed to the Chairman, Lawyers Statutory Committee, the complainant sets out the history of the case culminating in the severance of client-solicitor relationship and the engagement of a another law firm to commence proceedings against the appellant.

On 18 January, 2003 the Committee met and deliberated on the complaint and found as follows:

• Count 1 – That between 1^st July 1999, and 30^th June 2001, you accepted a cheques in the sum of K497,5000 made payable to your client one Paul Aisa for safe keeping in your Trust Account and in so doing, your conduct was and is improper;
  

Particulars

1. In August 1999 when instructed to withdraw K415,500.00 to pay K265,000 to Park Lane Real Estate for the purchase of a house in town, to pay K1000.00 West Central Holdings, to deposit K50,000 to Paul and Millie’s account and K32,000 to remain in the Trust Account to cover legal fees, your complied with only instructions and failed to comply with the other instructions;
2. In December 1999 when requested to withdraw the balance of the funds, you advised your client that you had transferred to funds to one of your self account and that at no time did your client give you any written authority to transfer such monies out of your Trust Account;
3. In February 2000, you were instructed to release the Trust Funds and you made empty assurances to your client to have them picked up from your office but this never eventuated and thereby, you wilfully lied to your client;
4. You gave an under taking to make regular fortnightly payments which never materialized;
5. In October 2000 you provided an invoice of K95,000 being your Bill of Costs which you knew or ought to have known was unjustifiably excessive and unreasonable;
6. To date your Trust Account is still withholding K107,500 that rightfully belong to your said client;
   

Thereby contravening Rule 3(a) (iii)(iv) and (v) of the Professional Conduct Rules 1989.

• Count 2 – Between 1^st July 1999 and 30 July 2001, you failed to treat your client fairly and in good faith, giving due regard to the dependence by your said client upon your special training and experience and the high degree of trust which your client placed in you thereby contravening Rule 8(a) and (b) of the Professional Conduct Rules 1989.
  
• Count 3 – Between 1^st October 2000 and 31^st October 2000 you rendered a bill of Cost to the amount of K95,000 which you knew or ought to have known was unreasonable and unjustifiable by way of costs for your services having regard to the complexity of the matter, the time and skill involved thereby contravening Rule 18(5) of the Professional Conduct Rules 1989.
  
• Count 4 – Between 1^st December 1999 and 31^st December 1999, you transferred moneys from your clients Trust Account to one of your Self Company’s account without the consent, permission or written authority of your client thereby, breaching Section 4(1)(a) – (i) of the Lawyers (Trust Account) Regulation 1990.
  

The Reasons for Decision by LSC showed that the appellant was found Guilty of Counts 1, 3 and 4 and Not Guilty of Count 2.

The Committee imposed the following penalties:

• To refund Paul Aisa in the sum of K101,700.00 at 8% interest per annum effective from 27^th July 1999 within 30 days to the date of final payment.
• The Committee will make an application in the National Court for the removal of the appellant’s name from the Roll pursuant to s.54(c) of the Lawyers Act from further practicing as a lawyer.
• Pending application for removal the appellant was suspended forthwith from practicing as a lawyer pursuant to s.54 (d) of the Lawyers Act.
• Fine of K1,000.00 to be paid within 30 days.
  

Appeal to National Court

The Appellant’s right to appeal against the Committee’s decision is provided under s. 58 of the Act. For reasons known only to him he failed to exercise his right to appeal within 21 days of the Committee’s decision and he lost his right. He waited until six months later and following grant of an extension of time to appeal, he filed his appeal to the National Court against the whole of the Committee’s decision and findings on 12 August, 2003. That appeal is numbered CIA No. 181 of 2003 and is filed pursuant to s.58(1) of the Act.

After filing his appeal, the appellant did not prosecute his appeal diligently. As a result the respondents filed an application to dismiss his appeal for want of prosecution or in the alternative an order for delivery of draft index together with an order for discovery of a number of documents that were relevant for or at the hearing of the appeal. The particulars of the documents are set out later in the judgment.

There is dispute over satisfaction of or compliance with the terms of this Order of 19^th November, 2003 by the Appellant. He argues that there was substantial compliance except for only three documents for which he has given explanation for. But the Respondents contend that the appellant had not complied with the court order for discovery of documents by not producing three most critical documents quite pertinent to the appeal. The appellant’s former lawyer in an affidavit deposed that the appellant never maintained any trust account ledgers although there was no explanation from him or from the appellant in respect of the other two documents, namely, the trust account authority and bank statement. These are discussed fully in the judgment. Despite this the appellant was persistent that he had complied with the order of 19^th November, 2003 while the Respondents’ lawyers argued otherwise.

Motion seeking dismissal of Appeal for Want of Prosecution

Pending the hearing of the substantive appeal, the respondents filed a notice of motion to (a) dismiss the appeal under Order 4 Rule 36(1) of the National Court Rules; and in the alternative (b) the draft index to the appeal book be forwarded to the Respondent within seven (7) days and (c) appellant to provide full discovery within fourteen (14) days of the following:

(i) Trust account records, including ledger cards;
(ii) Plaintiff’s Trust account bank statements;
(iii) General Account bank statements;
(iv) Letter from Paul Aisa to Lawyers Statutory Committee dated 2 August 2001;
(v) Affidavit of Elen Ita Trajano Patterson sworn 21 November 2001 and filed on 22 November 2001;
(vi) Affidavit of Mossie Mowana sworn and filed on 28 November 2002.
(vii) Letter from Patterson Lawyers to Paul Aisa dated 2 August 2001;
(viii) Letter from Paul Aisa to PNG Law Society dated 18 August 2003;
(ix) Patterson Lawyers Trust Ledger Cards for the files relevant to Paul Aisa and any of his companies that instructed Patterson Layers; and
(x) All the files for Mr Aisa or any authorities that Mr Aisa has given for the trust funds or monies to be used.

This application was heard on 19^th November, 2003 by Mogish, J and the court refused to dismiss the appeal but gave the appellant another opportunity by granting the alternative orders sought in paragraphs (b) and (c). The orders made on 19^th November 2003 were entered 25^th November 2003. The orders were made in these terms:

(1) Appellant to provide the draft index of the appeal book to the Respondent within seven (7) days;

(2) Appellant to provide full discovery within fourteen (14) days of the following:

• (i) Trust account records, including ledger cards;
• (ii) Plaintiff’s Trust account bank statements;
• (iii) General Account bank statements;
• (iv) Letter from Paul Aisa to Lawyers Statutory Committee dated 2 August 2001;
• (v) Affidavit of Elen Ita Trajano Patterson sworn 21 November 2001 and filed on 22 November 2001;
• (vi) Affidavit of Mossie Mowana sworn and filed on 28 November 2002.
• (vii) Letter from Patterson Lawyers to Paul Aisa dated 2 August 2001;
• (viii) Letter from Paul Aisa to PNG Law Society dated 18 August 2003;
• (ix) Patterson Lawyers Trust Ledger Cards for the files relevant to Paul Aisa and any of his companies that instructed Patterson Layers; and
• (x) All the files for Mr Aisa or any authorities that Mr Aisa has given for the trust funds or monies to be used.
  

The appellant complied with order (1) and (2)(iv)-(x) but failed to comply with orders (2) (i), (ii) and (iii) which the Respondents argue are the most critical ones consequently prompting a further application for dismissal of the appeal for non-compliance. The appellant did not fully comply with orders of 19 November, 2003. Accordingly, the respondents filed another motion to dismiss the appeal on the basis of non compliance.

Motion to Dismiss for Non Compliance

On 4^th November 2003, the respondents filed a motion to dismiss the appeal for non compliance with the orders of 19^th November, 2003. Having this motion heard as promptly as it ought to have been did not come without its setbacks. It went before the Court on two occasions but had to be adjourned on both occasions because the appellant had not secured the services of another lawyer after losing Mr. Habuka who, it seems, took over the case from Amet Lawyers. The motion finally went before Kandakasi, J on 11^th February, 2004. No affidavit was filed by the Appellant in defending this motion although reliance was made on earlier affidavits sworn and filed in earlier interlocutory proceedings preceding this motion. The transcript of the proceeding on that day show clearly the manner in which the appellant through his counsel, Mr Z. Gelu defended his appeal on this critical occasion. The trial judge could find no way of saving the appeal given the importance and criticalness of the documents not discovered while the appellant seemed content to press on with the appeal without them and in the end dismissed the appeal. His Honour’s predicament is evident in the transcript as he turned to the Respondents’ counsel for assistance following the end of the appellant’s counsel’s submission. See Appeal Book page 287.

After hearing counsel for the parties, Kandakasi, J. dismissed the appeal. The order was entered 12 February 2004. The orders read:

1. This appeal is dismissed.
2. The decision of the Lawyers Statutory Committee dated 28 January, 2003 is hereby reinstated.
3. Costs of this proceeding are awarded to the Respondent.
   

The Appeal before us is against the dismissal orders made on 11 February, 2004.

Appeal to Supreme Court

Application for Leave to Appeal

The appellant then filed an application for leave to appeal against the decision of 11^th February, 2004 and simultaneously sought a stay of the decision of LSC. There was also an objection to competency of the application for leave to appeal filed by the Respondents.

On 27^th February, 2004 Hinchliffe, J adjourned the application for leave to appeal and the objection to competency application. It seems he did not appraise himself fully of the reasons under-pinning Kandakasi, J’s decision of 11^th February, 2004, granted the appellant an order for stay of enforcement of the National Court’s order of 11^th February, 2004.

The application for leave and objection to competency of the appeal was heard on 8^th April 2004, by Salika, J. sitting as a single judge Supreme Court. Salika, J granted leave to the appellant and further stayed the decision of the Lawyers Statutory Committee dated 28^th January, 2003 and dismissed the objection to competency but ordered the appellant to pay security for costs to the Registrar in the sum of K10,000.00 before he takes any further steps with the appeal.

The Appeal Book consisting over 340 pages compiled for the purpose of this appeal, contains no Notice of Appeal and already raises a serious question as to the competency of this appeal and more so, how, if not why, it was allowed to come thus far without this defect being remedied or the appeal dismissed earlier. Appearing third in the sequence of documents compiled for comprising this Appeal Book is an Application for Leave to Appeal dated 13^th February, 2004. But there is no Notice of Appeal. All there is in the Appeal Book is the Notice of Application for Leave to Appeal.

We can only deduce from this that since leave to appeal was granted on 8^th April, 2004, no Notice of Appeal was filed. The appellant is taken to have treated the Application for Leave to Appeal as the Notice of Appeal and the proposed grounds therein stipulated as the grounds of appeal in the appeal itself by the rule of necessity or default. This inference is open because the Respondents’ Counsel’s in his written submissions at page 2 referred to the Leave Application document as the Notice of Appeal when addressing his mind to the Grounds of Appeal. This lack of Notice of Appeal would offend the Supreme Court Act Ch.37, section 17 and Supreme Court Rules, Order 7 and Order 8 which set out the process and prescribe time lines for doing of things in an appeal to the Supreme Court. It would also offend the Supreme Court decision in Henzy Yakham and the National Newspaper v Stuart and Carol Merriam [1997] Unreported Supreme Court decision SC533. That decision was arrived at by the Court composed of three of its most senior members. In that case their Honours went through meticulously drawing the distinctions and differentiating between an Application for Leave to Appeal and a Notice of Appeal and demonstrating that one is not the same as the other. The Court could not have been any more precise and articulate than the judgment of Chief Justice Amet who said at:

“Section 17 prescribes two distinct processes. Firstly, the notice of appeal and secondly, the notice of application for leave to appeal. The manner in which these two processes are to be invoked are prescribed in the rules by Order 7 Division 1 Rules 1, 2 and 3, Division 2 Rules 4 and 5 and Division 3 Rules 6 to 9. The rules prescribe the manner and the form in which the two different processes are to be invoked.

Both the notice of appeal and the notice of application for leave to appeal, are to be given within 40 days after the date of the judgment in question, or within such further period as is allowed by a Judge on application made to him within that period of 40 days.

There is no uncertainty at all that an application for leave to appeal is intended to be a different process in content and form, which is to be in accordance with form 7, whereas the notice of appeal is similarly different in content and form and which is to be in accordance with form 8.”

His Honour then goes on to explain the need to file Notice of Appeal independently of the Application for Leave to Appeal where leave is required and sought and was granted and said:

“Order 7 Rule 5 provides that “when leave to appeal has been granted, the Supreme Court may treat the Notice of Application for Leave as notice of appeal, but otherwise, a notice of appeal shall be filed within 21 days immediately after the date on which leave is granted or within such time as the Court or Judge may allow”. This provision, to my mind, is clearly intended to safeguard the interests of a successful applicant for leave to appeal pursuant to Section 17. It envisages and allows for the notice of application for leave to appeal being made within 40 days after the date of the judgment in question, but the hearing of which and the grant of leave not being given until after the 40 days had expired. This rule therefore permits the Court, either to treat the notice of application for leave as notice of appeal, if it sufficiently incorporates the grounds of appeal for the purposes of Orders 7 Rule 8, or otherwise to allow the successful applicant for leave, to file a Notice of Appeal within 21 days immediately after the date on which leave is granted or such other time as the Court may allow. .... From this construction it is not appropriate for an applicant for leave to appeal to file a prospective notice of appeal for which leave is required, simultaneously with the notice of application for leave to appeal within 40 days of the date of the judgment in question. In an appeal which raises questions of fact only and for which leave of the court is necessary, only an application for leave need be filed within the 40 days from the date of the judgment, until that application has been heard and determined, following which if leave be granted then Order 7 Rule 5 will be invoked. ..... In the foregoing scenario it is my opinion that the application for leave to appeal should first be heard separately and determined, as envisaged by Order 7, Rules 1, 3 and 5 prior to the hearing of the substantive appeal. It also makes sense in that if such an application for leave to appeal is successful, then Rule 5 would apply to incorporate those additional grounds of appeal into the notice of appeal.”

The absence of a Notice of Appeal which is mandatory under the Supreme Court Act and Regulations according to Yakham and Merriam (supra) seriously undermines the competency of this appeal. We also noted that when leave to appeal was granted, no order was sought nor granted to treat the grounds in the Leave application as grounds in the Notice of Appeal. There can be no appeal before this court without a proper Notice in the Appeal. We note a preliminary objection argued by the Respondents in this appeal but that objection to competency of the appeal is based on substantive ground of this appeal which is fully addressed in the judgment and not what we have pointed out above. We are amazed that parties have certified the Appeal Book, the Deputy Registrar (Supreme Court) was satisfied with it and even the Supreme Court Motion Judge allowed it but we don’t agree with it. If appeals can be dismissed for non compliance with proper forms or format or for not properly pleading the grounds by lay persons, it would be a biggest hypocrisy to allow this appeal to stand in this form just because the appellant is a lawyer and represented by a very senior lawyer who held top legal positions in the Government immediately before his employment in the appellant’s firm. We would dismiss this appeal on the ground of incompetence.

Grounds of Appeal

Whilst the appellant’s appeal is against the decision of 11^th February, 2004 of Kandakasi, J, he is not only challenging that decision but is also questioning or taking issue with the orders of 19^th November, 2003. We note at the outset that the appellant did not appeal against the orders of 19^th November, 2003.

We further note at the outset that the leave application was focused squarely on the interlocutory nature of the order of 11^th February, 2004 and at no time addressed nor was the court invited to address the issue of leave to appeal out of time against the orders of 19^th November, 2003. What is apparent on record is that the appellant used the document headed “Application for Leave to Appeal” for appealing against the 11^th February, 2004 orders to attack the earlier decision of 19^th November, 2003. This is quite obvious from the appellant’s intention as expressed in page 3 of his Application for Leave to Appeal under a paragraph numbered 2 with the heading ‘ Reasons why Leave should be given’ and under sub-paragraph (a) states: “ The appeal lies from the interlocutory judgment of Justice Kandakasi dated 11^th February, 2004 and as such leave is required.”

Trying as best as we can to make sense out of this document filed by the appellant and his lawyers, and being as fair as we can, the appellant’s grounds of appeal can be reproduced or rephrased from combination of various paragraphs in pages 2-4 of the Appeal Book as follows:

1. The trial judge erred in both law and fact in holding that the Plaintiff failed to comply with an order of the National Court dated 19^th November, 2003.
   
2. The trial judge erred in law in exercising his discretion to dismiss the appeal filed by the Appellant against the Lawyer’s Statutory Committee’s decision dated 28^th January, 2003 in suspending him from practice as a lawyer.
   
3. The order made by the National Court on 19 November, 2003 for purposes of discovery of documents by the Respondents is improper as this is an appeal proceeding and only those documents available at Lawyers Statutory Committee’s hearing should be used in the appeal proceedings and not any other documents not previously used in the Lawyers Statutory Committee’s Hearing.
   
4. The respondents already have the copies of the documents, pursuant to order of the National Court (sic) 19^th November, 2003 and that the Appellant failing to comply with the order of the National Court dated 19^th November, 2003, is improper for the Court to dismiss the appeal proceedings pursuant (sic) order of the court dated 19^th November, 2003.
   

Both paragraphs 3 and 4 are repeating and regurgitating the appellant’s misgivings of the order of 19^th November, 2003 which he failed to give due regard to earlier in the proceedings soon after they were made until the dismissal of the appeal on 11^th February, 2004 and the full impact of his failure finally dawned on him.

Ground One

The appellant contends that the trial judge erred both in law and fact in holding that he failed to comply with the order of the National Court dated 19^th November, 2003. It was submitted that an appeal under s. 58 of the Act is by way of rehearing which necessitates the appellant being given an opportunity to be heard and decision made on his appeal. The appellant has couched his argument in such a way that effectively is saying that s. 58 of the Act did not contemplate an appeal commenced under this section being derailed or dismissed through an interlocutory application. The ultimate effect of this argument is that, competent or not, the appeal must be heard and the appellant be given the right to present his argument, even if he failed to comply with court directions. That is the essence of his argument.

Section 58 of the Act states:

“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.”

Relying on subsection (4) the appellant argued that ‘in dismissing the appellant’s appeal CIA 181 of 2003 in an interlocutory application has failed to accord the appellant the right to be heard on the findings of the Lawyers Statutory Committee and the penalty imposed by the Committee’.

This argument appears to be misconceived and it follows from the appellant’s earlier argument in his written submission at page 3 where he says:

‘The appellant submits (sic) that he has not been given an opportunity to be heard on the findings of the Committee and the penalty imposed on an appeal before the National Court. Thereby breach of Natural Justice Principles under section 59 of the Constitution. The appellant submits (sic) that the Lawyers Statutory Committee has failed to accord to him the opportunity to be heard on the issue before the extreme punishment of removing his name from the Roll was ordered. Failure to do so by the Lawyers Statutory Committee is (sic) tantamount to serious breach of natural justice.’

This submission is misconceived. This is the same misconceived argument put by the appellant of the whole proceeding before the court since the dismissal of the appellant’s appeal that obscured the real issue before two single Supreme Court judges who sat at different times to deal with the application for stay of the decision of the Lawyers Statutory Committee and for the Application for Leave to Appeal against that dismissal.

Ground Two

The same misconception is carried through and pursued under this ground where the appellant is contending that the trial judge erred in the exercise of his discretion when he dismissed the appellant’s appeal on the basis of failing to comply with the order of 19^th November, 2003. The appellant is still contending that regardless of the non-compliance of its orders, the court was obliged to disregard that by virtue of section 58(5) and hear the appellant’s appeal. He argued that all that the court wanted from him had been presented to the Lawyers Statutory Committee and the trial judge failed to consider those materials as well as those that were furnished following the order of 19^th November, 2003. Salika, J agreed with him and granted him leave to appeal. At no time did His Honour address his mind to the fact that the appellant had not complied with the orders of 19^th November, 2003 which is a serious matter. His Honour formed the view that the motions judge dismissed the appeal without even examining the facts before dismissing the appeal and paid no regard to the Respondents’ argument that the orders of 19 November, 2003 were not fully complied with especially in relation to the three most crucial documents pertaining to the appellant’s Trust Account. We wonder what facts His Honour was referring to here?

The appellant goes further to question the correctness of the orders of 19^th November, 2003 because he said consent of the parties was vital. Once again whatever was meant to explain by this submission it failed to convey that message for want of clarity.

We cannot understand this argument that let the appeal go through regardless of the appellant’s failure to maintain trust account ledgers and failure to fully account for his clients monies’. There was never a time where Mr Gelu for the appellant came out forthright with direct answers to direct questions by the trial judge as to whether his client had complied with the order for discovery of documents. Counsel repeatedly led the judge on merry-go-round by referring him to Mr. Habuka’s affidavit or the appellant’s own affidavit or that of the office manageress Leni Patterson and towards the latter part of his submission half-heartedly conceding that his client had not fully complied with the orders for discovery of documents. And those were the critical documents that mattered most as they are referred to as essential records in the Lawyers (Trust Account) Regulations. It would have helped the appellant’s case a whole lot if they were honest and forthright in putting before the court what was already discovered and what was not and thereby not unnecessarily prolonging this matter that awaited speedy resolution.

The issue in this appeal, is whether the trial judge had erred in dismissing the appellant’s appeal before the National Court for failing to comply with the Court’s orders for discovery of documents? The appellant’s responsibility in this appeal was to demonstrate to the Supreme Court where the trial judge had gone wrong in dismissing his appeal? Why does the appellant say that the trial judge should not have dismissed his appeal although he may not have complied with the court orders for discovery of documents?

The appellant did not address this issue but instead he challenged the orders of 19^th November, 2003 under the shadow of the orders of 11^th February, 2004. He had already foregone his right of appeal against this judgment by not challenging it earlier and he was already three months out of time. Either by deliberate choice or misunderstanding the appellant wants this court to believe or accept that he had done everything right since lodging his appeal against the decision of the Lawyers Statutory Committee but Justice Kandakasi dismissed his appeal without giving him an opportunity to be heard. He has not once faced the reasons for the dismissal of his appeal squarely, and honestly inform either the National Court or this Court as to why he failed to comply with the order for discovery of documents when the best he presented was that he had provided those documents to the Committee and those were sufficient for the Court to rely on in the hearing of his appeal.

We agree with the Respondents in this appeal. They are focused on the real issues in this appeal and not distracted from the root cause of the appellant’s failure that led him to this court and the disciplinary process initiated by the PNG Law Society remains to be exhausted. Therefore the Respondents are quite correct in premising their case in this appeal on these threshold issues:

1. Whether or not the appellant is estopped from taking issue with the National Court Order of 19 November, 2003 ordering discovery of documents against the Appellant when he has not appealed against that decision?
   
2. Whether or not a rehearing before the National Court under section 58 of the Lawyers Act 1986 is a hearing de novo?
   
3. If yes, were the Respondents entitled to request additional documents that were originally not before the First Respondent’s hearing for purposes of the appeal hearing in the National Court?
   
4. If yes, did the Appellant comply with the Order of 19 November, 2003 by giving discovery of documents to the Respondents?
   
5. If no, was the Court entitled to dismiss the appeal in the National Court for want of discovery of documents?
   

19 November, 2003 Orders

We note from the transcript at page 221of the Appeal Book that these orders were the alternative relief that the Respondents were seeking besides dismissal of the appeal for want of prosecution. Mogish, J was reluctant to dismiss the appeal but granted the alternative relief instead as the Appellant was then unrepresented by counsel. However, no application was made immediately thereafter to have that order set aside nor was it appealed. But the law is clear that unless set aside by a court of competent jurisdiction, the order remained. That is the common law position which we have observed in this jurisdiction according to the Court of Appeal decision in Hadkinson v Hadkinson [1952] 2 All E.R. 567 which states (per Lomer, LJ) at p.569:

‘It is the plain and unqualified obligation of every person against, or in respect of, whom an order is made by a court of competent jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. Lord Cottenham LC, said in Chuck v Cremer [1846] EngR 924; (1846) 1 Coop T Cott 205; 47 ER 820: “A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it ... It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid — whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question. That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed.’

This principle was adopted and applied in Yap –v- Tan, B&T Engineering P/L & Ors [1987] PNGLR 227 and many other decisions of both the National and Supreme Courts. It is a good law that maintains and upholds the integrity of the courts so that court orders are obeyed without question. In Yap’s case, it was an application for punishment of the contemnor for not complying with court orders. The Appellant in this case had not been proceeded with in this manner although that option was open, but instead the Respondents sought to have his appeal dismissed.

We are of the opinion that the Appellant is already way out of time to challenge this decision. He slept on his right and it is now a lapse of almost two years and he cannot resurrect that case in this haphazard manner. The Appellant is a very senior and experienced lawyer and member of the legal profession and at all material time when this order was made he was represented by a very senior and experienced lawyer of his law firm who is his counsel in this appeal. If he has chosen by his deliberate decision to let his right slip away while he nor his lawyer did anything to act within the time allowed by law or to preserve his right, he cannot come now through the back door to argue the appropriateness or otherwise of the orders of 19 November, 2003. He must confine his argument on his appeal against the order of 11 February, 2004. In our view therefore the Appellant’s challenge of the decision of 19 November, 2003 is misconceived. We reject the submissions made by the Appellant in relation to the orders of 19 November 2003.

Appeal by way of rehearing

We note from the materials in the Appeal Book, that it took the Appellant such a long time for an application for extension of time before lodging his appeal. We take note of this delay to emphasise the less than diligent manner which the appellant applied himself to in dealing with this serious case affecting him from the time it all started.

Both subsections (1) and (2) of s. 58 of the Act give 21 days from the date of the Committee’s decision to the lawyer or any other person who lodged the complaint to appeal against the decision of the Committee. The appellant in this case had not done so and he had to apply for extension some six months after the decision of the Committee.

Subsection (3) states the appeal can be against the findings of the Committee or penalty imposed or both. Subsection (4) states that the appeal under subsections (1) and (2) shall be by way of rehearing. And subsection (5) provides that the consent of both the complainant and the lawyer concerned are necessary for the record of proceedings of the enquiry by the Committee can be given in evidence on the appeal and shall be treated as admissible evidence of the opinion of the Committee in relation to any matter contained in it and of the facts upon which the Committee’s opinion is based.

What is a ‘rehearing?’

There is no dispute that the appeal from the decision of the Lawyers Statutory Committee is by way of ‘rehearing’. Both the appellant and the respondents agree to this. However somewhere along the line there is some misconception of what is meant by “rehearing”. And this seems to be the core of disagreement between the parties.

The relevant authority directly on this point that discusses s.58(5) of the Act is David Toll v Kibi Kara & Ors (No.2) [1990] PNGLR 201. The Court presided by Kapi, DCJ (as he then was) held in that case that within the context of the Lawyers Act 1986, s 58, the term “rehearing” in s 58(4) means a hearing de novo. This is what His Honour said at pp.202:

“At the hearing of the appeal, both counsel have raised a preliminary issue which needs to be decided before proceeding to deal with the merits of the appeal. It has been submitted by counsel for the appellant that an appeal under s 58 of the Lawyers Act is a rehearing de novo, and therefore the parties should lead fresh evidence for the purposes of the determination of the appeal. Counsel for the respondents has submitted that the appeal under s 58 of the Lawyers Act is confined to evidence which was put before the Statutory Committee is ...

After setting out s. 58 of the Act, His Honour continued at 203:

“Subsection (4) provides that an appeal under this provision shall be by way of rehearing by the Court. Both counsel are agreed that the term “rehearing” is capable of having different meanings. In Powell and Wife v Streatham Manor Nursing Home [1935] AC 243 at 249, Viscount Sankey LC said:

“There are different meanings to be attached to the word ‘rehearing’. For example, the rehearing at Quarter Sessions is a perfect rehearing because, although it may be the defendant who is appealing, the complainant starts again and has to make out his case and call his witnesses.”

In the case of R v Syme, Reynolds and Williams; Ex parte Page [1970] WAR 153 at 155, Jackson CJ said:

“In my opinion the word ‘rehearing’ is susceptible of different connotations according to its context, and in each case it is a matter of construction to decide what meaning it bears in the context of a particular statute.”

The question is what meaning is to be given to the term “rehearing” in the context of s 58 of the Lawyers Act? In determining this question, the passage from the judgment of Mason J (as he then was) in Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 at 621 is helpful:

“Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect. Despite some suggestion in argument to the contrary, I do not read Ex parte Australian Sporting Club Ltd; re Dash [1947] NSWStRp 11; (1947) 47 SR (NSW) 283 as enunciating such an absolute rule. There are, of course, sound reasons for thinking that in many cases an appeal to a court from an administrative authority will necessarily entail a hearing de novo and I exclude for present purposes the case of an appeal to a federal court exercising the judicial power of the Commonwealth under Ch III of the Constitution (Cth). The nature of the proceeding before the administrative authority may be of such character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo.

On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance.”

In my view, these are the relevant considerations in determining whether a rehearing takes on one form or the other. Mason J then goes on, and in my view, this is the determinant factor in considering this issue:

“But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing.”

Where the legislation simply uses the word “rehearing”, the matters set out in the judgment of Mason J would be the relevant considerations in determining the issue. However, as he pointed out, these matters in themselves are not definite indicators and the important thing is to elucidate the real intention of the Parliament. It would appear that in considering the matters discussed by Mason J, there is a strong argument supporting the position that a rehearing in the National Court should be based on the materials that were available before the Committee hearing. However, I need to interpret s 58(5), which would give the real intention of the Parliament regarding the nature of the rehearing before the National Court.

Where the Parliament intends that an appeal is by way of rehearing on the evidence given in the lower tribunal from which the appeal is lodged, the record of the hearing and the decision by the lower tribunal is provided to the appellate court for the purposes of hearing. The need to do that is inherent in the nature of the appeal. How this record is prepared and is brought to the appellate court, are set out in the rules of practice and procedure. For example, in the case of an appeal from the local court to the National Court, O 18, r 6 and r 7 of the National Court Rules deal with the manner in which the record, the decision, and other relevant documents are to be forwarded to the Registrar for the purposes of the hearing. Likewise, when there is an appeal from a review tribunal under the Income Tax Act the records of the review tribunal are forwarded to the Registrar for the purposes of the hearing under O 18, r 21 of the National Court Rules. Similarly, where there is an appeal from the National Court to the Supreme Court and the appeal is by way of rehearing under s 6 of the Supreme Court Act (Ch No 37), the Supreme Court Rules deal with questions of the record, the decision, and other relevant documents for hearing by the Supreme Court in an Appeal Book under O 7, Divs 11, 12, 13, 14 and 15 of the Supreme Court Rules. If the intention of the legislation under s 58 of the Lawyers Act is that the nature of the rehearing is based on the evidence that was given at the Committee hearing, the question of how the record of the Committee is placed before the National Court is a matter to be covered by regulations to be made under s 109 of the Lawyers Act. As far as I am aware, such regulations have not yet been made. The question of the record of a lower tribunal becoming part of the record which the appellate court considers in a case where the rehearing is on the basis of what was placed before the lower tribunal, becoming admissible before the appellate court is not dependent on the consent of the appellant or the other party. It is therefore important to construe from s 58(5), the real nature of the rehearing under the Act. In my view, if the rehearing was by way of considering the appeal on the basis of the record before the Committee hearing, then there would be no need for subs (5). The parties would be concerned about the accuracy of the record and agree about the relevant documents but its admissibility is essential and not dependent on consent of parties. Subsection (5) in my view makes sense in a rehearing where the rehearing is not based on the record before the lower tribunal, but where the hearing is in the nature of hearing de novo. Under subs (5), parties may shorten the need to call all the evidence again before the National Court, if they consent that everything they wish to call before the appellate court is contained in the evidence and the opinion of the Committee in the lower tribunal. If they do not consent, which they are entitled to do, then, of course, the parties will need to bring all the relevant information before the court by leading new evidence before it. Having come to this view of s 58(5), I infer then that it was the intention of the Parliament that the rehearing before the National Court is a hearing de novo, where the hearing is an original hearing and the parties may by consent admit the relevant evidence of the hearing before the lower tribunal and any other matters which parties may wish to call for the purposes of the hearing before the National Court.”

We have extracted the above passages from His Honour’s decision into our judgment by way of emphasis to what His Honour was saying therein, because in our respectful opinion, the entire essence of this appeal centres on how the parties read and understood that judgment and its reasoning on this very pertinent issue before us. Having done that, we state with respect, that the approach taken by the Respondents in addressing the issue before this Court is correct and the passages quoted by their counsel in paragraphs 6.6, 6.7 and 6.8 of their submission are directly focused as they are relevant to reaching the desired and legally sustainable outcome in this appeal. His Honour meticulously addressed this very pertinent point in an orderly and methodical manner of demonstrating his reasons for arriving at the conclusion he reached. And these steps have been articulately extrapolated and quoted in their submissions on this appeal by counsel for the Respondents that we have alluded to earlier. Without taking away the credit due to them, we set out the entire text of their submissions in paragraphs 6.6 to 6.8:

‘6.6 In coming to this conclusion, His Honour took into account the legislative intent of the Lawyers Act 1986; that is what did Parliament intend a rehearing was under section 58 of the Lawyers Act 1986 should be. This is what His Honour stated at page 204 of the judgment:

“Where the legislation simply uses the word “rehearing”, the matters set out in the judgment of Mason J would be the relevant considerations in determining the issue. However, as he pointed out, these matters in themselves are not definite indicators and the important thing is to elucidate the real intention of the Parliament. It would appear that in considering the matters discussed by Mason J, there is a strong argument supporting the position that a rehearing in the National Court should be based on the materials that were available before the Committee hearing. However, I need to interpret s 58(5), which would give the real intention of the Parliament regarding the nature of the rehearing before the National Court.”

1.7 His Honour continued and stated, on page 205 of the judgment, in relation to section 58(5) of the Lawyers Act 1986:

“Subsection (5) in my view makes sense in a rehearing where the rehearing is not based on the record before the lower tribunal, but where the hearing is in the nature of hearing de novo.”

1.8 His Honour concluded on page 205 of the judgment that:

“Having come to this view of s 58(5), I infer then that it was the intention of the Parliament that the rehearing before the National Court is a hearing de novo, where the hearing is an original hearing and the parties may by consent admit the relevant evidence of the hearing before the lower tribunal and any other matters which parties may wish to call for the purposes of the hearing before the National Court.”’

In acknowledging that an appeal under s.58 of the Act is by way of rehearing, the Appellant advanced the following argument which we quote from his written submission at p.4:

“The Appellant submits (sic) that section 58 (40 of the Lawyers Act 1986 is very clear in that an appeal to the National Court shall be by way of rehearing de novo. The question of an appeal by way of rehearing de novo under section 58 (40 had been decided in the case of Toll v Kibi Kara, Greg Lay, Pomat Paliau and Salamo Injia No. 2 [1990] PNGLR 201. though the decision was that of the National Court by His Honour Kapi, Deputy Chief Justice (as he then was), we submit that the Supreme Court must adopt as a guide to assist the Court in this appeal.

The appellant submits (sic) that the trial judge erred in law by failing to conduct rehearing of the appeal by the appellant in the first instance as required by section 58 (4) of the Lawyers Act 1986 but went ahead and dismissed (sic) the appellant’s appeal through an interlocutory proceeding.”

The verbatim of the appellant’s submission as quoted above and more that we shall come to shortly is an illustration of how little understanding or comprehension the appellant had of what was the issue before the court that needed addressing. Either it was plain misconception or naivety the appellant did not direct his mind to addressing the failure on his part to comply with the order of 19 November, 2003 and criticizes the court for not hearing his appeal de novo but proceeded to dismiss it ‘through an interlocutory proceeding.’ The appellant ignores the fact that, that interlocutory proceeding is a proceeding of the court that made an order that was meant to be obeyed and not ignored as he was doing right through until the dismissal of his appeal. And as far as the law is concerned, as long as that order remained unimplemented, the appellant was in contempt. But fortunately he was not prosecuted for contempt: see Yap v Tan (supra).

The appellant’s misconception is further illustrated in pages 4 and 5 of his written submission where he addresses his mind to section 58(5) of the Act in its relevance or application to the Order of 19 November, 2003. He criticizes Justice Kandakasi for improperly exercising his discretion when dismissing his appeal for not complying with the Order of 19 November, 2003 in that he failed to consider the intention of s. 58(5) as discussed in Toll’s case.

Adopting the interpretation of section 58(5) by Kapi, DCJ to be correct, the appellant submitted that, the order made by the National Court on 19 November, 2003 for purposes of discovery of documents by the Respondents was improper because the consent of the parties is (sic) vital in relation to the record, materials documents and evidence before the Lawyers Statutory Committee.

And in the same breadth the appellant also submitted that copies of all those documents wanted by the Respondents were made available to the Respondents pursuant to the order of 19 November 2003 and the judge did not consider the evidence at all when determining the application on 19 November, 2003. Finally, in an all embracing argument, he submitted that Kandakasi, J. erroneously exercised his discretion when he failed to consider all the evidence before the court when he dismissed his appeal and in doing so he acted contrary to section 58 (3), (4) and (5) of the Act.

It is necessary to point out the appellant’s misconception from our point of view of the law as set out in Toll’s case and as set out under 58(5) of the Act as far as the issue of consent of the parties is concerned. It is already clearly explained by Kapi, DCJ but we reiterate the point again for the sake of clarity. We perceive, as did the Chief Justice in David Toll’s case, that the basis upon which he reached the conclusion that the hearing on appeal under s.58 is a rehearing de novo is because of the fact that all those records of proceedings in the Lawyers Statutory Committee and relied upon by the Committee to arrive at its decision do not automatically get admitted as evidence in the appeal hearing unless the parties consent to them becoming part of the materials that the appellate tribunal can have before it in its deliberation on the appeal. This meant that as long as no consent was given, the appeal hearing before the National Court was a fresh hearing and the parties were entitled to adduce fresh evidence.

The appellant misunderstood the law when he argued that the order of the court of 19 November, 2003 for purposes of discovery of documents by the respondents as those documents were evidence before the Lawyers Statutory Committee was improper as consent of the parties was vital. We have difficulty in understanding the intended purport and substance of this argument. It is our respectful opinion and we agree with the Respondents on this that correctly understood, the essence of the order of 19 November, 2003 was purely and primarily to facilitate this very requirement of s.58(5). That was the issue culminating in that court order for purpose of proper compliance with section 58(5) when the appellant failed to provide the documents. While we now note in his submissions the appellant is contending that he did comply with the court order of 19 November, 2003 but Kandakasi, J failed to consider the evidence before it, we find this submission spurious in that on one hand according to the transcripts of that particular hearing on 11 February, 2004, the appellant had great difficulty in satisfying His Honour that he had actually complied with the order, we find no evidence of those documents that the Respondents sought discovery, namely: Trust Accounts Authority, Trust Account Ledger Cards, Bank Statements were ever delivered to the Respondents.

If we have overlooked them due to the bulky volume of documents in the Appeal Book, it behoved the appellant to draw our attention to them as it was his appeal and he had the onus of convincing the appellate court but he did not.

And as we understand from reading the Appeal Book, these very material documents were not available before the Lawyers Statutory Committee leading to the decision that the Committee arrived at.

If the records of the Appeal Book are correct and the application to dismiss the appellant has not yet been moved and is a subject of a stay order, we fail to comprehend the appellant’s argument on denial of right to be heard on his dismissal as advanced by his counsel in this appeal.

There is no clear logical pattern of argument in the appellant’s submission, where he is on the one hand not directly addressing the issue of non-compliance of the order of 19 November, 2003 and criticizing Kandakasi, J of improperly exercising his discretion in dismissing his appeal and on the other, he is contending that he had complied with the order of 19 November, 2003 except that Kandakasi, J failed to give due regard to that evidence and still dismissed his appeal for non-compliance.

We are unable to follow the appellant’s argument just as we disagree with him entirely. We believe he has got it all wrong in his understanding of what ‘rehearing’ under s. 58(5) of the Act means and even the interpretation by Kapi, DCJ (as he then was) which could not have been clearer in its application to the peculiar circumstances of his case. That is the correct interpretation based on very persuasive authorities from similar jurisdictions like ours.

To add to what the Chief Justice relied upon in terms of precedents from overseas authorities, we also quote from helpful discussions by JRS Forbes in his textbook on Disciplinary Tribunals, Second Edition, The Federation Press 1996 as quoted to us by the Respondents’ counsel which state the following:

“The precise nature of the appeal depends on the legislation but it is usually less restrictive than judicial review. Generally, the expression rehearing is literally interpreted so as to provide a rehearing de novo. Section 22 of the Pharmacy Act 1917 (Qld) allowed an appeal in the nature of a rehearing against a disciplinary decision. It was held that this provision authorized the Supreme Court to inquire de novo into the questions involved and arrived at his own decision thereupon the evidence before him...to stand in the place of the Board, so that it becomes his satisfaction, not the Board’s, that is required. The appellant was free to call evidence not placed before the Board, although in this case agreed to conduct the appeal on record of proceedings below, which include a transcript of addresses as well as evidence. The Act contemplated that Rules of Court would govern details of procedure. In fact, no such rules have been made and the appeal was instituted by notice of motion returnable before a single Judge. In Mercer v Pharmacy Board of Victoria [1968] VicRp 9; [1968] VR 72, the respondent relied upon the record of the Board while the appellant led viva voce evidence from several witnesses. In MacMillan v Pharmaceutical Board of Western Australia [1983] WAR 166 Kennedy, J. made his own decision upon written and oral evidence. The right to a rehearing de novo is clear when legislation directs the higher authority to deal with the matter afresh.

Similar legislation existed in Basser v Medical Board of Victoria [1981] VicRp 88; [1981] VR 953. The appellant objected to the tender of a transcript of the evidence in the tribunal and asked for a rehearing de novo, all evidence to be taken viva voce. O’Bryan, j noted that in most cases of this kind in Victoria, a transcript had been used on appeal, usually by consent. His Honour held that if the appellant so wished, the court should allow ...a rehearing in the fullest sense, material need not satisfy the fresh evidence test which governs appeals from a trial court, O’Bryan J also held that he should disregard the Board’s reasons for its decision.”

There is therefore no question that an appeal from a decision of LSC is by way of rehearing as stipulated in s.58(4) of the Act is a hearing de novo where viva voce evidence may be taken in lieu of or in addition to evidence already before the disciplinary tribunal based on which the decision appealed was made.

Was the order of 19 November, 2003 necessary to facilitate a rehearing and was it complied with?

Given what we discussed above, the documents sought to be discovered by the order of 19 November, 2003, were necessary and critical for the hearing of the appeal. This was quite rightly conceded to by Mr Gelu for the appellant. So the question is, were they all discovered? The Respondents argue that they were not, especially in relation to three most critical documents which we have alluded to earlier. While the appellant wants the court to accept that he had substantially complied with the order but concedes that three documents which includes the ledger cards were not discovered, Mr Gelu then goes on to explain the reasons and this can be deduced from the exchanges that took place between Kandakasi J and Mr Gelu on 11 February, 2004 which can be found in the Appeal Book pages 283, 284-285 and 286-287.

We note from these exchanges that the only issue that was initially before the motions judge that day was whether the appellant had complied with the order of 19 November, 2003. And when he found that the appellant had not complied with the order, the next issue was whether His Honour had any other option besides dismissal of the appellant’s appeal? In fact that is what we are concerned with in this appeal. Was His Honour’s discretion properly exercised in dismissing the appellant’s appeal? That is what the appellant argues but so far he has not demonstrated where the trial judge had erred in the exercise of his discretion.

In our opinion this is the way and the only correct way to have dealt with the case before him. This is bearing in mind that there was an order of the court and there was a serious question raised about that order not being complied with. The seriousness of that non-compliance did not feature gravely against the appellant because it was not treated as matter for contempt of court by the Respondents as it happens in most cases where there is disobedience of court orders. The Respondents however decided to adopt less draconian way to deal with the appellant’s default which we consider was sensible and appropriate to do in the circumstances of this case.

As the exchanges between the motions judge and Mr Kawi shows at page 287 of the Appeal Book, the dismissal of the appeal was the only option open to the judge. There were no alternatives proposed by the appellant’s counsel and neither could Mr. Kawi think of an alternative that could save the appellant’s appeal given the fact that very critical documents needed by the Respondents and no doubt eventually by the court, were not discovered and the chances of them being produced at the hearing were already looking very unlikely.

It must not be forgotten that the appellant never maintained ledger cards in respect of this client’s trust funds and this is admitted by Mr Gelu for the Appellant and also by his former lawyer Richter Habuka in paragraph 13 of his affidavit sworn 18^th December, 2003 where he deposed:

“Except for the Ledger Cards for our client’s Trust Account which our client does not keep in any event, we maintain we have complied with the orders for discovery....”

In fact Mr Habuka’s affidavit (see Appeal Book pp.222-237 with annexures) explains in paragraphs 5 and 6 that none of the documents that the Respondents were seeking discovery of were before the LSC at its hearing and yet the Respondents were requesting for their inclusion in the Appeal Book and were persistent through the discovery process.

The motions judge was placed in a position to examine the critical material worth or value of those documents in the light of the findings of LSC and how they impacted on the pending appeal. How did this place the appellant’s success prospects on his appeal if he cannot produce those documents especially the ledger cards? The excuse he gave of the computerization of his accounts that have obviated the need for keeping ledgers did not make any impact with the judge as His Honour quite rightly remarked which we note in p. 286 of the Appeal Book. We are similarly not persuaded by this proposition because in our respectful opinion the advent of computers and new accounting soft wares in the modern business world have certainly not done away with the fundamental requirement of individual ledgers being maintained for clients and their different transactions, if one client has more than one set of instructions undertaken on his behalf by the same lawyer. Otherwise there would have been wholesale changes and amendments to the law with relaxation of the requirements stipulated in the Lawyers (Trust Account) Regulations 1990, especially sections 4, 6 and 10 in so far as they relate to trust ledger accounts.

In making this observation, we bear in mind that the appellant was tried and found guilty by a committee of his own peers who constitute the disciplinary body of the profession in which he practices as a senior member and who are also covered by the same Code of Professional Conduct Rules as himself. They have found that he had faulted by not maintaining proper trust account records in violation of the Lawyer (Trust Account) Regulations which make it mandatory for a lawyer in private practice to maintain. If the appellant was not complying with the requirements of this law in his practice while his colleagues thought and practiced otherwise and considered the requirement of maintaining ledgers as a mandatory one and have so found against him, how does he expect to make any impact in court without the production of these very relevant documents? This is a fundamental point in this case and a hurdle that the trial judge simply could not brush aside and dismissed his appeal.

Was the order of 19 November, 2003 complied with?

In our respectful opinion, the appellant had not complied with the order of 19 November, 2003 and the motion judge had not erred in the exercise of his discretion by dismissing his appeal as that was the relief sought in the Respondents’ motion. The appellant was given very wide latitude and easy ride all the way from the time he was found guilty of improper conduct to the time of this appeal to have pursued his appeal with vigour. But he did not aggressively pursue his case. It was also contributed to by earlier interlocutory proceedings in this appeal that failed to grasp the real issue before the court that was to be addressed.

Was the court entitled to dismiss the Appellant’s appeal for default of compliance?

His Honour was given no other option but to dismiss the appeal.

Where has Kandakasi, J gone wrong in his order of 11 February, 2004?

We find no error on the part of the trial judge. In fact this is not the last hearing of this case. And this has been the misunderstanding all along. The process of disciplinary proceedings against the appellant has not reached its finality as yet.

We therefore dismiss the Appellant’s appeal and discharge the stay order of Hinchilffe, J made 27^th February, 2004. The Appellant’s appeal CIA No. 181 of 2003 stands dismissed as ordered by Kandakasi, J on 11^th February, 2004.

Appellant shall pay the Respondents costs of this appeal and the entire proceedings.

Lawyer for the Appellant: Patterson Lawyers
Lawyer for the Respondents: O’Brien Lawyers