Kiuk (trading as Nikiuma Lawyers) v Iduhu [2021] PGSC 56; SC2128 (5 July 2021)

SC2128

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO 129 OF 2020

NICKSON KIUK, TRADING AS NIKIUMA LAWYERS
Appellant

V

KEITH IDUHU, CHAIRMAN, AND ON BEHALF OF MEMBERS, LAWYERS STATUTORY COMMITTEE
First Respondent

LAWYERS STATUTORY COMMITTEE
Second Respondent

On The Papers: Cannings J, Collier J, Logan J
2021: 27^th May, 5^th July

PRACTICE AND PROCEDURE – application for extension of time to appeal against decision of Lawyers Statutory Committee – Lawyers Act 1986, s 58 – application of s 231 District Courts Act – Order 18 Rule 12, National Court Rules – whether the National Court has power to consider and determine an application for extension of time to appeal against decision of Lawyers Statutory Committee.

This was an appeal against the refusal by the National Court of an application by a lawyer to extend the time for appealing under s 58 of the Lawyers Act 1986 against a decision of the Lawyers Statutory Committee that, amongst other things, suspended him from practising as a lawyer. The appellant argued that the National Court has discretion to grant an extension of time but in this case had erred in the exercise of that discretion by not considering his explanation for the apparently inordinate delay and taking into account irrelevant considerations.

Held:

Per Cannings J & Collier J:

(1) The National Court has power to hear an application for extension of time to appeal under s 58 of the Lawyers Act, provided that an application has been filed by originating summons in accordance with Order 18 Rule 12 of the National Court Rules.

(2) The appellant followed the prescribed procedure and his application for an extension of time was properly before the National Court.

(3) In exercising the discretion whether to grant an extension of time, the primary Judge erred by: (a) finding, contrary to the evidence, that there was always communication with the appellant by the Lawyers Statutory Committee; (b) ignoring the detailed evidence of the appellant as to the apparently lengthy delay after the date of the decision of the Lawyers Statutory Committee to the date on which he applied for an extension of time to appeal; (c) emphasised the need for finality in litigation, which was an irrelevant consideration; (d) emphasised that the appellant was a lawyer, which was another irrelevant consideration. The appeal should be allowed due to those errors in the exercise of discretion.

Per Logan J:

(4) It appears that the decision of the National Court in Dirua v Lawyers Statutory Committee (2005) N2905, which has been taken as the basis for concluding that the National Court has power (despite no power being conferred by the Lawyers Act) to hear and determine applications for extensions of time to appeal against decisions of the Lawyers Statutory Committee, has been misinterpreted; the better view might be that such a power does not exist and that the appropriate remedy may be by way of a proceeding under s 155(4) of the Constitution for the judicial review of the decision concerned.

(5) However, as the parties have proceeded in this case on a particular view of the law, and where there is an authority (Latu v Kua (2007) N3151) which supports so doing, it would not be appropriate for the Supreme Court to consider in this case the correctness of the understanding of the effect of Dirua.

(6) Assuming that there is a discretionary power to extend time, it appears that the primary Judge failed to take account of a relevant consideration, viz the appellant’s detailed explanation for the apparently inordinate delay. That was an error of principle that meant that the exercise of discretion miscarried. Further, it was demonstration of a denial of natural justice for the purposes of s 59 of the Constitution.

By the Court:

(7) The appeal was allowed and an extension of time of 21 days, to appeal against the decision of the Lawyers Statutory Committee, was granted.

Cases Cited

The following cases are cited in the judgment:

Papua New Guinea Cases

Barrick (Niugini) Ltd v Nekitel (2020) SC1996
Dirua v Lawyers Statutory Committee (2005) N2905
Duma v Puk (2019) SC1754
Kalinoe v Kereme (2017) SC1631
Kariko v Korua (2020) SC1939
Kiiark v Luio (2020) SC1964
Kiuk v Iduhu (2020) N8504
Kuso Maila Anda Ltd v United Pacific Corporation Ltd (2019) SC1894
Latu v Kua (2007) N3151
Resena v The State [1991] PNGLR 174
Sharp v Andrew (2016) SC1797
Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906

Overseas Cases

Associated Provincial Picture House Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986)162 CLR 24

APPEAL

This was an appeal against the refusal by the National Court of an application by a lawyer to extend the time for appealing under s 58 of the Lawyers Act 1986 against a decision of the Lawyers Statutory Committee.

Counsel

N Kiuk, the Appellant, in person
I R Shepherd, for the Respondents

5^th July, 2021

1. CANNINGS J & COLLIER J: Before the Court is an appeal from a judgment of the National Court delivered on 21 September 2020 in National Court proceeding OS (JR) No 673 of 2019 (Kiuk v Iduhu (2020) N8504). Before the primary Judge the appellant, Mr Kiuk, sought orders for leave to extend time to appeal against decisions of the respondents made on 30 June 2016 and 26 September 2018. His Honour refused leave, and ordered that Mr Kiuk bear his own costs.

2. This appeal came before the Court for determination on the papers.

3. Before turning to the appeal, it is useful to outline relevant background facts.

BACKGROUND

4. At material times:

• the appellant was a lawyer practising in Papua New Guinea, and the principal of the firm Nikiuma Lawyers;
  
• the first respondent, Mr Keith Iduhu, was the Chairman of the Lawyers Statutory Committee of the Papua New Guinea Law Society; and
  
• the second respondent was the Lawyers Statutory Committee of the Papua New Guinea Law Society.
  

5. By letter under the hand of the first respondent dated 19 October 2015, addressed to the appellant, the second respondent wrote as follows:

The Lawyers Statutory Committee has listed the following complaints against you.

1. LSC 15/018 Ex-Protect Security Employees
2. LSC 13/030 Tapia Tamayo Kamayal
3. LSC 13/032 Sicco Tonkian
4. LSC 08/097 Benjamin Laik

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

Yours faithfully

LAWYERS STATUTORY COMMITTEE

GILBERT MAKI

Secretary

6. In his affidavit sworn 17 March 2020 the appellant deposed that on 22 January 2016 while attending at the PNG Law Society Office he was given a copy of the letter dated 19 October 2015.

7. By letter dated 12 February 2016 the appellant wrote a detailed response to the Secretary of the Lawyers Statutory Committee in respect of the complaints against him.

8. On 30 June 2016 the second respondent found, after inquiry into the complaints against the appellant, that the appellant was in breach of his duty as a lawyer by engaging in conduct which:

(i) was dishonest, unprofessional, and may otherwise bring the legal profession into disrepute contrary to Rule 3(a), (ii), (iii) and (v) of the Professional Conduct Rules 1989;

(ii) was in breach of section 8(1) and (2) of the Professional Conduct Rules 1989;

(ii) was in breach of section 18(4) and (5) of the Professional Conduct Rules 1989.

9. The second respondent imposed the following penalty on the appellant:

1. You are suspended from practise until you refund K480,000.00 in full to the Registrar of the National Court and provide a receipt to the Committee; and

2. Provide a bill of costs to the Committee and a trust account to the Client.
   

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

Dated this 15th day of July 2016

Lawyers Statutory Committee

10. It appears that this decision was set out in a letter from the second respondent to the appellant dated 15 July 2016. It is unclear however whether the letter was ever posted to the appellant.

11. The appellant deposed in his 17 March 2020 affidavit that he was not aware of the decision of the Lawyers Statutory Committee

... until 19th January 2017 when I fronted at the PNG Law Society office to enquire on application for renewal of my UPC. I also queried on my pending complaints with the Committee. I was then advised to see the Secretary to the Lawyers Statutory Committee. I was attended to by a Mr Jason Sirue, a lawyer employed by the said Committee. I was provided the copies of the following documents by Mr Jason Sirue;

(a) Letter dated 23rd May 2013,
(b) Letter dated 15th July 2016
(c) Notice of decision of 30th June 2016

I noted the decision reached by the Lawyers Statutory Committee was based on a malicious complaint. That very complaint was withdrawn by the Complainant some four (4) years back. I saw it upon myself to bring to the attention of the Committee this malice. Thus by letter dated 26th January 2017, I wrote to the Second Defendant to revisit its decision. I alternatively requested an extension of time of to [sic] respond to the Committee's decision.

12. Materially the appellant's letter of 26 January 2017 to the second respondent was as follows:

On or about 19th January 2017, whilst fronting at the PNG Law Society office to collect my UPC form to fill and query on the outcome of Complaints previously responded to namely:

1. LSC 15/018 EX-PROTECT SECURITY EMPLOYEES
2. LSC 13/030 TAPIA TAMAYO KAMAYAL
3. LSC 13/032 SICCO TONKIAN
4. LSC 08/097 BENJAMIN LAIK

In my letter dated 12th February 2016, I provided a respond [sic] to each of the above complaints.

Attachment "A" is a true copy of the letter dated 12th February 2016.

In relation to the first complaint (LSC 15/0189 - EX-PROTECT SECURITY EMPLOYEES), I [illegible] receive a copy of the decision of the Lawyers Statutory Committee whereby I was [illegible] any misconduct as alleged by the Complainants.

Apart from the outcome received in relation to the first complaint, I did not receive any responses from the Lawyers statutory Committee in relation to the other 3 pending complaints.

l only came to note the decision made against me in relation to complaint number 3 (LSC 13/032 - SICCO TONKIAN) in the second week of January 2017. I noted with surprise that a decision was made in relation to the above complaint where findings of misconduct were made against me. I further enquired with Mr Mellor (Secretary PNG Law Society) who then referred me to Mr Jason from the Lawyers Statutory Committee. I requested Mr Jason to furnish me the copy of the Lawyers Statutory Committee decision. On 17th January 2017, I was provided with a copy of a letter dated 15th July 2016 and attached was a copy of the Lawyers Statutory Committee decision also dated 15th July 2016.

Attachments "Bl" and "B2" are true copies of the letter dated 15th July 2016 and the Lawyers Statutory Committee decision.

THE DECISION

I noted the Lawyers Statutory Committee found me guilty of improper conduct by breaching Sections 3(a)(ii),(iii) and (v), 18(1) and 20 and 18(4) and (5) of the Professional Conduct Rules 1989.

The penalty imposed by the Committee reads:

"1. You are suspended from practice until you refund K480,000.00 in full to the Registrar of the National Court and provide a receipt to the Committee; and

2. Provide a bill of costs to the Committee and a trust account to the client.
TAKE NOTICE that you must respond to the Committee within 30 days."

I had to spend a week to look for the court file and go through my files to locate documents in relation to the court proceedings under WS No 1200 of 2002. The case was completed in 2011. It was after almost 6 years that I had to do this. I did enquire with the National Court Registry to locate the Court's file but was told the file was achieved [sic] and that it was not readily available.

Whilst from the documents that I have or retrieved I note them to be very informative in relation to the whole complaint only at this stage. These are documents I had kept in my possession over this time which took me some time to locate. Thus the decision of the Lawyers Statutory Committee has propelled me to furnish this information at this stage.

SEEKING EXTENSION OF TIME TO RESPOND TO THE FINDINGS

According to the decision by the Lawyers Statutory Committee, the following was reached:

[decision of 30 June 2016]

Obviously, I am out of the 30 days' time limit per term ... of the decision. I feel that my entire legal career of almost 12 years (2004 to 2016) of unblemished record has suddenly come to an end. I was shocked to know about my fate. If I had become aware of this decision then I would respond to same as determined by the Committee within the time frame required. I feel that I should be accorded natural justice in the circumstances to reply to the decision made.

Alternatively, the Committee to review its decision. The grounds warranting such a recourse are stated here below.

PROPOSED GROUNDS FOR REVIEW

1. ERROR IN THE DECISION REACHED

The Complaint by Sicco Tonkin – LSC 13/032 – relates to allegation of misappropriation of moneys in the sum of Kl, 478,353.67 for landowners of Kiunga, Western Province. This complaint was lodged on 10th October 2011.

The other complaint was by Ex Protect Security Employees – LSC 15/018 – the complaint relates to overcharging legal fees of K480,000.00. Upon request of the Committee by its letter dated 13th January 2016, I did provide a copy of the Itemized Bill of Cost in a Taxable Form.

Attachments "Cl" and "C2" are true copies of the Itemized Bill of Cost and the letter dated 13th January 2016.

The Committee then deliberated on this matter and found I was not guilty of the alleged misconduct as such I was discharged

Considering the above, it is my respectful submission that the penalty reached does not correlate to the complaint filed by Sicco Tonkian. The matter of K480,000.00 relates to a complaint of which I was discharged by the Committee.

Therefore, it's my respectful view that the decision by the Committee of 15th July 2016 was erroneously reached.

2. NO SPECIFICS FOR RESPONSE REQUIRED OF ME

I feel that the decision was made without me being given an opportunity to provide specifics of what was required of me. For instance, in the first complaint (LSC 15/018 - EX-PROTECT SECURITY EMPLOYEES) I was specifically directed by the Lawyers Statutory Committee to provide an itemised bill of cost which I did. In this case I was not requested nor directed/ advised to provide an itemised bill of cost.

An itemised bill was provided to my clients. It was for a prolonged litigious court proceeding which took me four (4) solid years (2008-2011) to prosecute in the National Court. There are multiple Court proceedings arising from the main case under WS No 1200 of 2002. There are or were voluminous documents constituting the matter file and court files. The final decision was reached in favour of my clients after a substantive trial before Her Honour Davani (as she then was). The judgment was for a sum of K226,550 000.00 with costs on an indemnity basis against the Defendants.

Attachments "D1" and "D2" are true copies of the Itemize Bill of Cost and the Court Order under proceedings WS No. 1200 of 2002.

The principal judgment amount and costs were supposedly done by Edward Waifaf lawyers upon the release of the balance of the funds in our trust account.

3. THE COMPLAINT TO THE COMMITTEE WAS WITHDRAWN

The complaint to the Lawyers Statutory Committee was withdrawn by the Complainant and all the named Plaintiffs including the principal Plaintiff (Noah Tonkian). The withdrawal is by letter dated 24th August 2011. This letter was in fact directed to the National Fraud Squad where the same complaint was lodged. This letter was copied to the PNG Law Society. Attachment "E" is a true copy of the letter dated 24th August 2011.

I was able to confirm this after I retrieved this letter from my archived files only recently.

The Complainant [sic] was initially lodged after disputes in relation to distribution of the funds allocated to the clans and further distribution of a sum of K300,000.00 in my (Nikiuma Lawyers) trust account. This dispute was triggered as the principal plaintiff (Noah Tonkian) and the plaintiffs themselves had obtained financial and other assistances from a lot of third parties from all over PNG (so-called creditors).

Nonetheless, this dispute was amicably settled by all the plaintiffs (including the Complainant) after the sum of K300,000.00 was transferred to lawyer Eddy Waifaf's Lawyers Trust account upon the Plaintiffs' (including the Complainant) instructions.

Subsequently the complaint lodged with the Lawyers Statutory Committee was withdrawn. The Complainant (Sicco Tonkian) was a signatory.

4. SOLICITOR-CLIENT BILL OF COSTS

At the conclusion of the Court proceedings under WS 1200 Of 2002, I did furnish to my clients a Solicitor-Client Bill of Costs (in taxable form) to the Plaintiffs.

Refer to (2), Attachment "D1" above.

CONCLUSION

In conclusion I seek your indulgence with great respect to give due consideration to my case. I am desirous as always the case to continue in representing the rights of my clients in this noble profession. This truly has been a reminder for me as to the nobility and privileges and benefits that come with this profession.

It is my humble plea to the Committee to consider the following in light of the matters aforementioned:

1. Give me a further opportunity to respond to the complaint.
2. Consider this as my response to the request by the Committee.
3. Review the decision by the Committee of 15th July 2016.

I look forward to your deliberation and anticipate a prompt response. God bless you all.

13. The appellant deposed that the Lawyers Statutory Committee did not respond to his letter of 26 January 2017 notwithstanding personal and telephone representations, and subsequent letters from him dated 23 September 2017, 11 May 2018, 2 July 2018 and 25 July 2018.

14. By letter dated 26 September 2018 the respondents wrote to the appellant as follows:

Dear Sir,

At a recent meeting of the Lawyers Statutory Committee, your letters of 11 May 2018, 2 July 2018 and 25 July 2018 were among the documents considered.

From the headings on the 3 letters from you, which referred to "Finding of Misconduct Against Nickson Kiuk - Sicco Tonkian - LSC 11 /032", and the mention of the suspension of your license in one of those letters, it appeared to the Committee that your query related to the Statutory Committee's decision imposed by the Committee in the complaint by Sicco Tonkian.

Since the Statutory Committee made its decision in LSC 11/032 on 30 June 2016, about which you were informed in a letter dated 15.07.16 addressed to you at PO Box 7024, Boroko, the Statcom is functus officio and cannot change its decision of 30 June 2016.

Yours faithfully,

Keith Iduhu

Chairman

15. The appellant deposed that he personally received that letter at the PNG Law Society office when he attended the office on 4 October 2018.

16. The appellant deposed that the decision of 26 September 2018 prompted him to file the proceeding in the National Court seeking judicial review. He further deposed, in summary:

• By letter dated 5 October 2018 he acknowledged receipt of the second respondent's response, and requested production of documents relating to the complaint against him.
  
• He did not receive a response from the second respondent for 1 year and 2 months when some of the documents he requested were produced.
  

PROCEEDINGS IN THE NATIONAL COURT

17. By originating summons and notice of motion filed in the National Court on 27 September 2019 the appellant sought the following order:

Time be extended for the Applicant to appeal against the related decisions of the Defendants made on 30th June 2016 and subsequently on 26th September 2018 pursuant to Section 231 of the District Courts Act Chapter 40 and in conjunction with Order 18 Rule 12(1) of the National Court Rules.

18. At the hearing before the primary Judge the appellant appeared in person. As the hearing was ex parte, there was no appearance for the respondents.

19. The primary Judge observed that the matter was not an appeal from the District Court, with the result that s 231 of the District Courts Act was not applicable. Rather, his Honour observed that the appellant's right of appeal under s 58 of the Lawyers Act 1986 had lapsed, and his application for leave to appeal out of time was pursuant to s 58(2) of that Act. His Honour continued:

5. So, 21 days from 30th June 2016 and subsequently on the 26th September 2018 is almost 4 years overdue. Even by the latter two years is still well overdue. What is significant and hard to comprehend is that, this is an application by a lawyer not an ordinary lay member of society, or as seen in many Supreme Court cases by prisoner in person appeal against conviction and sentence, Aihi v The State (No 1) [1981] PNGLR 81 (27 March 1981). She did not know there were time limitations in the institution of an appeal on her sentence. She was not expected to know that because she was not schooled in the law. She would not know her rights profoundly as a lawyer would. That is why it was by the Constitution section 155(4) she was granted leave for her appeal to be heard.
   
6. The fundamental point here is that a lay person an ordinary member of society is not as fluent in the law as a lawyer is. The applicant was a lawyer conversant and a schooled professional to the practise knowledge and application of law who has for the last 4 to 2 years at the minimum sat by as his rights in appeal went by without lifting a finger to voice. No doubt having practised law for 14 years since 2004 he would have been familiar with the Lawyers Act 1986. Because that is what governed his practise as a lawyer. It was not an excuse to say time had overtaken and lapsed in the process. He starts with an uphill climb to convince that there are cogent and convincing reasons apparent to be granted leave. Primarily because the courts must control its process from abuse and must be upheld for the integrity of the process of the court to be maintained at the highest: Telikom PNG Limited v Independent Consumer and competition commission & Digicel (PNG) Limited [2008] PGSC 5; SC 906 (28 March 2008) sets out the concept of res Judicata.
   
7. On another level the process instituted by law must be protected and respected as demonstrated in Wartoto v State [2013] PGNC 108; N5320 (15 August 2013).
   

20. His Honour observed at [8] that the "first hurdle is why the delay? Are there cogent and convincing reasons why time should be extended given at the minimum it is two years since at maximum four years since the decision initially made."

21. His Honour said at [9]:

9. The appeal is a rehearing and the record of the proceedings of the enquiry by the Committee can with the consent of the complainant and the lawyer, in this case the applicant be given in evidence on the appeal section 58 (5) of the Act (supra). To my mind this depicts that the proceedings against the applicant were not without record. And this is clear even by section 53 of that Act because the evidence is given on oath where witnesses maybe examined and cross examined. And they are protected from self-incrimination. The proceedings are open to the public. And a lawyer is permitted appearance to assist in the enquiry. Importantly written record is kept of the enquiry by the Committee section 53(6). Section 54 sets out the penalties that the committee can impose. Including under section 57 read with section 54(c) where the committee can apply to court to remove the name of the lawyer from the roll of lawyers. It can advise the Law Society with this fact not to issue a practising certificate to the lawyer named. The powers of the court on appeal are set out under section 59 which includes confirming the penalty imposed by the committee or varying it to substitute for the others under section 54.
   
10. This is clear dictate and demonstration to keep records because of the seriousness of the matter. Section 53(1) makes it clear... There are undoubtedly records kept of the proceedings because the life of a lawyer is involved and Committee is a creature of statute run by lawyers administering the Lawyers Act 1986.
    

22. His Honour referred to the letter from the second respondent dated 15 July 2016 setting out its decision of 30 June 2016, and observed:

12. This is record that the Lawyers Statutory Committee recorded its decision set out in the affidavit in support by the applicant. It is dated the 15th July 2016 from that day up to the institution of this proceeding 17th September 2019 that is 3 years altogether and up to the date of the hearing of this matter it is four years old. And it makes it even harder for the applicant when annexure "C" of his affidavit is considered. This is a letter with the address and contact details of and under hand of the Lawyers Statutory Committee dated the 19th October 2015 addressed to Nickson Kiuk Nikiuma Lawyers.
    
13. This shows quite clearly and distinctly that there was always communication with the applicant by the Lawyers Statutory Committee. And the applicant's response is "D" of his affidavit. The annexure "E" is the Lawyers Statutory Committee by its letter head drawing the applicant to complaint by Ex Protect Security employees letter is dated the 13th January 2016.
    

23. His Honour referred to an earlier letter written by the second respondent to the applicant dated 23 May 2013 relating to a complaint by Sicco Tonkian, and continued:

14. ... And the applicant is further instructed to respond to it with 21 days as required by the Professional Conduct Rules. And that he provides an affidavit or a statutory declaration in compliance of Rule 3(d) of the Professional Conduct Rules.
    
15. Once again this is clear compliance of the rules of natural justice and law. And is even clearer by annexure "F2" where the Statutory Committee under its letter head signed by its secretary Gilbert Maki dated the 15th July 2016 referenced LSC 11-032 informs the applicant that it has found him guilty of improper conduct as a lawyer and attaching the relevant decision.
    

24. His Honour concluded:

16. This evidence by the applicant is self-serving and defeats his cause because he has been accorded within the bounds of the law and there is nothing to the contrary to lift an iota of his argument up. His own evidence defeats his cause of action for leave. He has not demonstrated any arguable grounds upon which leave can be considered. Nor has he provided any reasonable explanation detailing the delay in the filing of the appeal as in Avia Aihi (supra). The totality is that he has not shown by substantial reason or merit to be granted leave to extend time to file his appeal, Small Business Development Corporation v Totamu [2010] PGSC 44; SC1054 (8 June 2010).
    
17. Even if the applicant was invoking Section 155(4) of the Constitution as the inherent power of this Court from which orders in the nature of prerogative writs and such other orders as necessary to do Justice can be made as here. The facts by his own affidavit particulars set out above, do not par that this be exercised in his favour. Rather the contrary is clear from that evidence. That is why his own evidence self-destructs his own cause of action. This is a frivolous and vexatious action within the terms of Order 12 Rule 40 it discloses no reasonable cause of action. It is an abuse of process of the court.
    
18. The applicant has not established and discharged on the required balance because the action at law is time locked and he has not demonstrated to unlock for leave because this is an inordinate delay which judicial review will be no part of by Order 16 Rule 4 to be granted to appeal out of time. Reliance is placed upon Telikom PNG Limited (supra) that there ought to be finality in litigation. Leave is therefore discretionary and the facts do not warrant granting.
    
19. Lawyers are officers of the court first and foremost and must assist the court to serve justice. Professionalism means high professional sense of duty and ethics at the highest. Therefore enforcement compliance of the provisions of the Lawyers Act 1986 is not a light matter. Leave to extend time to appeal is therefore refused and the motion is dismissed in its entirety pursuant to the powers of the court in law and by its rules set out above.
    

NOTICE OF APPEAL FILED ON 27 OCTOBER 2020

25. The notice of appeal filed on 27 October 2020 sets out the following grounds of appeal:

3.1 The learned judge after having correctly found that Appellant/ Applicant had made an application pursuant to Section 231 of the District Courts Act Chapter 40 and in conjunction with Order 18 Rule 12 (1) of the National Court Rules, His Honour misapprehended the law and facts and fell into error when:

(a) He ruled at paragraph 3 of the written judgment that:

"Firstly this is not an appeal from the District Court. So that Jaw the section is inapplicable here. It follows from a right of appeal emanating from the Act. In other words the subject matter must have emanated from the District Court because the prescription is by that Act not the Lawyers Act 1986. Because it originates from the prescription by that Act what has been done is to give effect to that Act. That is not the case here this is a matter which originates from the Lawyers Act 1986 and therefore for all intend and purposes. Section 231 of the District Courts Act 1963 as amended has no application here for the applicant. The facts do not invoke its application. It does not extend his cause prayed ...",

When:

(i) the Lawyers Act 1986 does not prescribe an appeal process or procedure to appeal decision by the Lawyers Statutory Committee to the National Court,

(ii) the Courts in this jurisdiction such as in the seminal case of Emily Dirua -vs- Lawyers Statutory Committee N2905, have sanctioned the process under Section 231 of the District Courts Act Chapter 40 to be invoked in an application for extension of time to appeal decision by Lawyers Statutory Committee or such tribunals or authorities.

(b) His Honour failed to consider the Appellant/Applicant's oral and written submissions at all in relation to the jurisdictional basis of an application for extension of time in the context of Section 231 of the District Court Act Chapter 40 and the appropriate case laws promulgated by the Courts in this jurisdiction such as the leading case of Emily Dirua -vs- Lawyers Statutory Committee N2905.

3.2 His Honour erred in his ruling from the beginning by mis-apprehending the law in its interpretation and application to the facts by ruling at paragraph 4 (page 2) of the written judgment that:

"What is at the heart is that the applicant's right of appeal under section 58 of the Lawyers Act 1986 has lapsed. He no longer has rights to appeal. Hence this application by Section 58(2) for leave to institute out of time ..."

When:

(a) Section 58(2) of the Lawyers Act 1986 does not prescribe an application for an extension of time to appeal upon the lapse of the 21 days' time prescribed by Section 58(1) of the Lawyers Act 1986.

(b) The application for extension of time to appeal commenced under OS No. 673 of 2019 was not made pursuant to Section 58(2) of the Lawyers Act as its jurisdictional basis.

3.3 The learned Judge erred in law and fact which has resulted in a miscarriage of justice when:

(a) His Honour failed to consider at all or give due weight or consideration on the submissions (both oral and written) which provided an analysis of the Appellant/Applicant's case in terms of the facts and the relevant law in an effort to provide an explanation for the delay in not filing an appeal within 21 days under Section 58 (l)and (2) of the Lawyers Act 1986;

(b) His Honour failed to consider at all or give due weight or consideration to evidentiary materials deposed to in the affidavits relied on by the Appellants/Applicant namely:

(i) Affidavit in Support of Nickson Kiuk sworn on 17th March 2020 and filed on 13th May 2020;

(ii) Affidavit of Edward M Waifaf sworn and filed on 10th June 2020;

(iii) Affidavit in Support of Nickson Kiuk sworn and filed on 17th June 2020;

Which provided an explanation for the delay in not filing an appeal within 21 days under Section 58(1) of the Lawyers Act 1986 and the proposed grounds of appeal.

(c) The Court below was unreasonably swayed by the fact that the Appellant/ Applicant was a lawyer as opposed to a lay person, which was an irrelevant consideration as the application itself concerned the legal practice under the Lawyers Act. His Honour then was led or proceeded to consider the cases of Aihi vs The State (No 1) [1981] PNGLR 81, Telikom PNG Limited vs Independent Consumer & Competition Commission & Digicel PNG Ltd SC906, Wartoto vs State [2013] ... N5320 and Small Business Development Corporation vs Totamu [2010]... SC1054 which were irrelevant to the present case.

(d) The learned Judge, in the context of the case of Wartoto vs State [2013]...N5320, concluded at paragraph 7 of the written judgment that: "It was criminal process intended to be stopped by an injunction in civil law. The Supreme Court dismissed that the criminal process will run its course not to be stopped by civil law. For our purposes here what has emanated from the Lawyers Act must be respected and observed as did the Supreme Court in Wartoto (supra). There ought to be very good cogent and compelling reasons demonstrated to disturb and tamper. Here time has run for the applicant he has not lifted a finger to voice discontentment....", when the proceeding under OS (JR) No 673 of 2019 was properly commenced and premised on procedure approved, adopted and applied by Courts in this jurisdiction in cases such as Emily Dirua -vs- Lawyers Statutory Committee N2905, Chris Sengi -vs-Andrew Hawina (2019) N7991 and Kevin Stevens Latu-vs- Fedelis Kaogo (2007) N3151.

(e) The learned Judge, failed to consider the explanation provided by the Appellant/ Applicant by evidence and covered extensively in his submissions, Instead at paragraph 8 of the written judgment, His honour only makes reference to "delay' in the context of two (2) and four (4) years for which there is no justification.

(f) The learned Judge, at paragraphs 9 and 10 of the written judgment, took into consideration Sections 53, 54, 57, 58 and 59 of the lawyers Act 1986 which were irrelevant to the application for extension of time in the Court below.

(g) The Learned Judge whilst considering Annexure "C" of the Affidavit of Nickson Kiuk sworn 17th March and filed 13th May 2020, said at paragraphs 12 and 13 of the written judgment: "And it makes it even harder for the applicant when annexure "C" of his affidavit is considered. This is a letter with the address and contact details of and under hand of the Lawyers Statutory Committee dated the 19th October 2015 addressed to Nickson Kiuk Nikiuma Lawyers ... This shows quite clearly and distinctly that there was always communication with the applicant by the lawyers Statutory Committee. And the applicant's response is "D" of his affidavit ..." When the notice of the complaint was only received by the Appellant/Applicant on 22nd January 2026 as stated in his letter dated 12th February 2020 (Annexure "D" - affidavit in Support of Nickson Kiuk sworn 17th March 2020).

(h) The primary issue before the court below was whether the Appellant/Applicant met the test for the Court to waive or extend time to appeal in accordance with Section 231 of the District Court Act Chapter 40, which the Court below failed to consider and make a ruling on.

(i) His Honour failed to consider the appeal process promulgated pursuant to Section 185 of the Constitution in Emily Dirua -vs- Lawyers Statutory Committee (supra), in such case, which was followed by other National Court Judges which was a good law.

3.4 The learned Judge misapprehended the law and fact and fell into error when He treated the Appellant/Applicant's ex parte application for extension of time under Section 231 of the District Courts Act Chapter 40 as an application for leave to judicial review under Order 16 of the National Court Rules and thereby failed to apply the relevant principles applicable and followed in an application for extension of time in cases such as Seravo v Bahafo [2001] N2078; Rawson Construction Ltd-vs-Department of Works & State [2005] SC777; Pato -vs-Motor Vehicles Insurance Ltd [2008] N3403, for instance, when His Honour ruled (particularly at paragraph 18 of the written judgment) that:

"18. The applicant has not established and discharged on the required balance because the action at law is time locked and he has not demonstrated to unlock for leave because this is an inordinate delay which judicial review will be no part of by Order 16 Rule 4 to be granted to appeal out of time. Reliance is placed upon Telikom PNG Limited (supra) that there ought to be finality in litigation. Leave is therefore discretionary and the facts do not warrant granting."

3.5 The learned Judge erred in law and fact thereby resulting in a mis-carriage of justice when he failed to consider, adopt or apply the relevant case laws which expound on the principles and considerations relating to an application for extension of time made in the context of Section 231 of the District Courts Act Chapter 40, which principles or considerations as cited and applied in the case of John Kauga -vs- Kulaga Wombnga (2015) N6134 which are:

(i) Whether there is a reasonable explanation for the failure to file and serve an appeal within the one month period and for the delay subsequent to it?

(ii) Whether there is an arguable case?

(iii) Whether the respondent to the proposed appeal would be prejudiced by the grant of extension of time? And

(iv) Having regard to (a), (b) and (c), whether the justice of the case favour the grant of the application: Seravo v Jack Bahafo (21 March 2001) N2078: In The Matter of an Application by Linah Edward (11 February 2005) N2804 ...";

For the Court to dismiss the application on the basis of irrelevant consideration of law and facts is tantamount to denial of the right to be heard or natural justice by Court administrating justice.

3.6 The learned Judge's ruling is erroneous in law and fact as a ruling on "undue delay" per se does not justify a refusal of an application for extension of time in bring the application per Section 58 of the Lawyers Act 1986, as the Court is further obliged to consider further the other important considerations such as those cited in John Kauga -vs- Kulaga Wombnga (2015) N6184.

3.7 The learned Judge fell into error when He failed to consider and make judicial determination on the Appellant/Applicant's evidence, the relevant applicable laws in an application for extension of time as per the Appellant/Applicant's submissions (both oral and written) resulted in a breach of natural justice under Section 59 of the Constitution.

3.8 The learned Judge erred in law and fact which has resulted in a miscarriage of justice and tantamount to a breach of natural justice per Section 59 of the Constitution when the Court conducted a hearing de novo rather than hearing the application per se for extension of time as is evident from the written judgment of 21st September 2020 from

(i) paragraph 6 (page 3),

(ii) Paragraph 9 (page 4),

(iii) Paragraph 10 (page 4),

(iv) Paragraph 11 (page 4),

(v) Paragraph 12 (page 5),

(vi) Paragraph 13 (page 5),

(vii) Paragraph 14 (page 6),

(viii) Paragraph 15 (page 6),

(ix) Paragraph 16 (page 6) and

(x) Paragraph 17 (page 6);

Where the court had substantially considered and relied on the records of the proceedings of the Lawyers Statutory Committee which resulted in the decision subject of the application for extension of time to appeal in the court below whilst failing to consider the relevant law, evidence and submissions made on the application for extension of time to appeal that decision.

3.9 The learned Judge's failure to consider or make any judicial determination on the evidence and submissions in relation to:

(a) The explanation for non-compliance with statutory time limit for appeal under Section 58(1) and (2) of the Lawyers Act 1986 in the context of the Section 231 of the District Courts Act Chapter 40;

(b) The proposed grounds of the appeal in respect of the decision of the Lawyers Statutory Committee;

(c) The subsequent decision by the Lawyers Statutory Committee made on 1st August 2018, resulted in a miscarriage of justice and a breach in the sense of the Wednesbury principle of reasonableness.

26. The appellant sought orders including that the appeal be allowed, the decision of the primary Judge be quashed, time be extended for his appeal against the decisions of the respondents, and costs.

CONSIDERATION

27. In their written submissions the respondents complain that the submissions of the appellant are unduly lengthy at 48 pages, and that they contain repetitious statements and unnecessarily lengthy quotations from case law and relevant statutes. The respondents also complain that a number of grounds of appeal are almost unintelligible and poorly drafted.

28. There is justification to these complaints. Nonetheless, there are fundamental questions raised by this appeal, namely whether the primary Judge erred in dismissing the appellant's application for an extension of time to appeal the decisions of the second respondent, because of misconstruction of the law or failure to have regard to arguments and material on which the appellant relied.

Grounds 3.1, 3.2 and 3.4

29. It is convenient to begin consideration of the notice of appeal with grounds 3.1, 3.2 and 3.4. These grounds may conveniently be considered together, because they raise the question whether the primary Judge erred in identifying the jurisdictional basis of the appellant's statutory appeal before the National Court. In particular, at [3] his Honour observed:

Firstly this is not an appeal from the District Court. So that law [s 231 of the District Courts Act] is inapplicable here.

30. The Lawyers Statutory Committee is a disciplinary body created under s 48 of the Lawyers Act 1986, which receives and hears complaints against lawyers, and deals with them under the provisions of that legislation and its regulations. Appeals from decisions of the Lawyers Statutory Committee can be instituted pursuant to s 58 of the Lawyers Act 1986, which provides:

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.

31. "Court" is defined by s 1 of the Lawyers Act as the National Court.

32. Order 18 of the National Court Rules Division 1A deals with appeals from the District Court and other statutory tribunals. The purpose of the rules in Order 18 is set out in the preamble, including the following:

The National Court's appellate jurisdiction is conferred by various statutes, the main one being the District Courts Act (Ch No 240). The procedure for appeals in relation to appeals from the District Court is prescribed by this Act. Other statutes which provide for appeals from other statutory tribunals either prescribe their own procedure or adopt the procedure under the District Courts Act, eg s 49 of the Workers Compensation Act (Ch No 172). Other statutes are silent, eg s 58 of the Lawyers Act 1986, in which case the procedure under the District Courts Act is usually adopted. These Rules are to be read subject to those provisions.

33. Order 18 Rule 12(1) further provides:

(1) Originating Summons

Applications for extension of time to appeal or dispensation or waiver of any condition precedent to the right of appeal prescribed by statute must be instituted by Originating Summons and made ex parte.

34. Plainly, Order 18 contemplates appeals from the Lawyers Statutory Committee to the National Court in the terms it notes in the preamble.

35. The procedure for the institution of appeals by lawyers against decisions of the Lawyers Statutory Committee was explained by Injia DCJ (as his Honour then was) in Dirua v Lawyers Statutory Committee (2005) N2905 in the following terms:

In my view, there is a gap in the Lawyers Act as to the procedure to be followed in instituting and prosecuting an appeal in the National Court. I know that in previous cases and the present appeal is one such example, the District Court forms for Notice of Appeal, Recognizance on Appeal and Entry of Appeal have been adopted. I do not see any real legal and practical difficulty with this prevailing practice and I would sanction such practice in this particular case and recommend the same procedure to be followed in future appeals under the Lawyers Act. I would promulgate an ad hoc rule under s 185 of the Constitution, to say that until such time as the Parliament introduces legislation prescribing the appeal procedure under the Lawyers Act, the practice for the time being should be that it should closely follow the procedure prescribed in the District Courts Act (Part XI Appeals from Decision of District Courts, ss 219 - 236).

In relation to time limits, the Notice of Appeal is required to be filed in 28 days. As for other formal requirements of the Notice of Appeal, filing the Recognizance on Appeal and Entry of Appeal, requirements for service of the Notice of Appeal and issue of Notice of Hearing of Appeal, these should closely follow the form and requirements in the District Courts Act.

36. His Honour's observations were adopted by Lay J in Latu v Kua (2007) N3151, where relevantly a lawyer seeking to appeal a decision of the Lawyers Statutory Committee subsequently applied to add new grounds to the notice of appeal. The lawyer in that case required an extension of time to do so. In deciding whether to extend time, Lay J said:

15. Turning then to s 231 [of the District Courts Act], I approach the question of whether or not the appellant has met the tests mentioned above, first by reference to the issue of delay...
    
16. I agree that there has been delay on the part of the respondent. Its procedures leave something to be desired. Given the current state of the law one would expect that on receipt of a notice of appeal the respondent would immediately send a copy of the record to the appellant so that the respondent cannot be accused of delay. However, four approaches to the respondent over a period of close to four years cannot be described as diligent prosecution of an appeal in anyone's language. The delay has been explained, but the explanation is far from being satisfactory and cannot all be laid at the feet of the respondents. The appellant has been in breach of a court order directing that the appeal be prosecuted in the November 2002 circuit for a considerable time but did not approach the court for an order for production of the record or to amend the order. It displays complacency after obtaining a stay, which is unacceptable and not to be encouraged by the Court.
    
17. Further, after obtaining the record in June 2006 the appellant took until December 2006 to produce it to the court. There is no explanation for that delay.
    
18. I will not consider whether the ground sought to be added is arguable or if the respondent will be prejudiced because I consider the delay in pursuing the production of the record so extensive and the appellant's lack of diligence in this regard so grave as to not warrant the exercise of the Court's discretion in favour of the appellant. The application to amend or add ground "II" is refused.
    

37. We note that both Dirua and Latu concerned appeals against decisions of the Lawyers Statutory Committee to the National Court, commenced by lawyers prior to the amendment to the National Court Rules introducing Order 18 rule 12 in its present form. It appears that the rule in its present form reflects the views expressed by Injia DCJ and Lay J in those cases, incorporating by reference the procedure under the District Courts Act.

38. Turning to the Districts Court Act, s 231 provides:

231. DISPENSING WITH CONDITIONS PRECEDENT.

The National Court may -

(a) dispense with compliance with a condition precedent to the right of appeal prescribed by this Act, if, in its opinion, the appellant has done whatever is reasonably practicable to comply with the provisions of this Act; and

(b) on application made ex parte by the party appealing-extend the time for compliance with a condition precedent to the right of appeal prescribed by this Act.

39. While the primary Judge was correct to note that the appeal before him was not an appeal from the District Court, nonetheless the comments of his Honour at [3] appear to conflict with principles applied in Dirua and Latu. Certainly the respondents did not contend that Dirua or Latu were incorrect. Rather the respondents appeared to concede error on the part of the primary Judge in his Honour’s rejection of the relevance of s 231 of the District Courts Act. On the basis of Dirua and Latu, the procedure the appellant was required to follow in seeking an extension of time in which to appeal a decision of the Lawyers Statutory Committee, and the associated powers of the Court, are those set out in Order 18 Rule 12 of the National Court Rules as it incorporates s 231 of the District Courts Act.

40. We have concerns in respect of the proper approach to statutory appeals from the Lawyers Statutory Committee as founded in such authorities as Dirua and Latu. However on the basis of the arguments advanced by the parties we do not consider that this is the case for reconsideration of those principles. In any event, error on the part of the primary Judge in his analysis of the jurisdictional basis of the appeal before the National Court does not mean that the appellant is entitled to the relief he has sought, in terms of grounds 3.1, 3.2 and 3.4. As the respondents submitted:

4. Clearly his Honour treated the application as an application under Order 18 Rule 12 and did not query the procedure adopted by the Appellant in the National Court despite the fact that the procedure appeared to be completely erroneous. For example, he filed an Originating Summons and a Notice of Motion despite the fact that the Rules specifically require an Originating Summons only and the description of the proceedings on the Court Documents is confusing.
   
5. That is, despite the defects in form his Honour still considered the application as an application pursuant to Order 18 Rule 12 for an extension of time...
   
6. In summary, in answer to this ground of appeal the respondents say that even if the trial Judge's comments with respect to the application of the District Courts Act were incorrect, the application was not refused on procedural grounds. It was refused after a consideration of the law with respect to application for an extension of time which in fact the appellant had himself cited in his National Court submissions from page 266 of the Appeal Book.
   

41. In our view this is an accurate summation of his Honour's decision. His Honour's comments in respect of s 231 did not ultimately affect the outcome of the case in the National Court. Rather, his Honour proceeded on the basis that the application before the Court for extension of time was procedurally sound.

42. We do not consider that the appeal ought to be allowed on the basis of grounds 3.1, 3.2 and 3.4. Ultimately the focus of the primary Judge was on the key question whether the appellant was entitled to an extension of time to appeal the decisions of the Lawyers Statutory Committee. The question raised by the remaining grounds of appeal is whether the primary Judge correctly approached his consideration of that task.

Grounds 3.3, 3.5 and 3.6

43. Grounds 3.3, 3.5 and 3.6 can conveniently be considered together. In these grounds the appellant complained that the primary Judge failed to have regard to relevant considerations, including his explanations for his delays in appealing (as set out both in his evidence and his submissions), and further that the primary Judge had regard to irrelevant considerations including that the appellant was a lawyer as opposed to a lay person.

44. The respondents submitted that whether the primary Judge gave due consideration to the appellant's affidavits referred to in this ground was a question of fact in respect of which the appellant did not seek the leave of this Court; and in any event the claim of the appellant that he had not become aware of the 30 June 2016 decision until 19 February 2017 was contradicted by the evidence that a letter was sent to him at his registered postal address on 15 July 2016.

45. The discretionary power vested by s 231 of the District Court Act (as adopted by Order 18 Rule 12 of the National Court Rules) to grant an extension of time was recently examined by the Supreme Court in Kiiark v Luio (2020) SC1964. In that case an appellant claimed that reasons given by the respondent for his failure to serve appeal documents on the appellant and his failure to file his entry of the appeal in time did not allow or justify the exercise of the primary Judge's discretion in favour of the respondent (who was the statutory appellant before the primary Judge). The Supreme Court upheld the decision of the primary Judge, and in so doing observed as follows:

66. The judicial discretion which s 231 expressly confers on the National Court in its appellate jurisdiction was considered by Kandakasi J in Seravo v Bahafo (2001) N2078. In that case the plaintiff, a member of parliament, applied by originating summons to the National Court for an extension of time pursuant to s 231 of the Act to lodge an appeal 6 months late against a decision of the Goroka District Court where the time limit of one month to do so prescribed by s 220(2) had already expired. The defendant, being the complainant in the District Court proceedings, countered by filing an application to dismiss the OS proceedings for want of prosecution. His Honour, when dismissing the proceedings, had this to say:
    

"The plaintiff's claim is for an extension of time under s. 231 of the DCA to file and serve an appeal out of time. That as of necessity meant that his application for extension of time had to be pursued as a matter of urgency and with due diligence. The records however, do not show that the plaintiff has been diligent in the prosecution of this claim. Since the issue of the proceedings on the 27th September 2000, a period of almost six months has passed. ...

There is no doubt that the plaintiff has not shown any interest in having this matter dealt with expeditiously. It seems he was more worried about his parliamentary responsibilities even at a time when Parliament was and is not in active sittings. Further, I fail to see how the plaintiff could ignore such a substantial liability against him and seek to come under the protection of a supposed busy parliamentary schedule. There was nothing much or substantial required of the plaintiff in respect of his application. All that he had to do was to provide an affidavit explaining why he could not lodge his appeal within time and show that he has a good chance of success on the appeal and that the delay has not caused any prejudice to the defendant. ...

I am satisfied that there has been intentional, if not inordinate delay in prosecuting the plaintiff's application for extension of time. This is critically important given that the application was for an extension of time to lodge an appeal by the plaintiff after the time period for him to do so had expired."

67. In Latu v Kaogo (2007) N3151 Lay J, when referring to those principles enunciated by Kandakasi J in the Seravo case which are applicable to the exercise of discretion by the National Court under s. 231 of the Act to waive compliance with conditions precedent to the right of appeal from a decision of the District Court to the National Court, observed as follows:
    

"Again Kandakasi J has considered what should be shown in making an application under this section and held that (1) there must be reasonable explanation for the delay, (2) the ground must be arguable, and (3) no prejudice has or will be suffered by the respondent, because the appellant failed to come within the time prescribed. ... I will adopt those tests and will seek to apply them in this case."

46. The Supreme Court then turned to the case before the Court, and continued:

69. Reverting to the present case, the primary judge in his ex tempore ruling on 7 November 2017 addressed the issue of the respondent's delay, which he found to be two months at the time when the appellant filed its application to dismiss for want of prosecution. The primary judge also addressed the respondent's reasons for that delay...
    
71. We find no fault with the primary judge's exercise of his judicial discretion to refuse the appellant's application to dismiss. The respondent had provided acceptable reasons for his two-month delay at the time the appellant filed his application to dismiss, the delay was not inordinate. The respondent's reasons were reasonable. The respondent was initially acting for himself. If, as the appellant contended, a lawyer had assisted the respondent to draft the notice of appeal, that was unproven. The notice of appeal could just as readily have been drafted for the respondent by a member of the staff of the District Court Office or the National Court Registry or by some other person altogether who may have had limited legal training. The respondent needed time to locate an experienced lawyer whose legal fees he could afford and who was prepared to take over from him the prosecution of the appeal. That is not an unreasonable explanation, given that only two months inactivity was the period complained of when the appellant filed his application to dismiss. The primary judge took all of these factors into account. Moreover, no evidence of prejudice to the appellant because of the respondent's two-month delay was proffered by the appellant. We in turn are satisfied that when the primary judge dismissed the appellant's application, he did so in the proper exercise of his judicial discretion under s 231 of the Act. We are further satisfied that the dismissal of the appellant's application was arrived at by the primary judge in the overall interests of the justice of the case. The primary judge then properly directed that the appeal should return before the National Court the following Monday for directions to progress the appeal to substantive hearing. The appellant's Grounds 3.1, 3.2, 3.3 and 3.4 in the appeal before this Court are dismissed.
    

47. As a general proposition, the discretion of a Judge hearing an application for extension of time in which to appeal is unfettered (Barrick (Niugini) Ltd v Nekitel (2020) SC1996, Duma v Puk (2019) SC1754 and Kalinoe v Kereme (2017) SC1631). However, as was made plain by Kiiark v Luio and the authorities to which the Court referred in that case, considerations including the length of delay in seeking to appeal, the explanation for delay, and the prejudice to the other party because of that delay, are relevant in determining applications for extensions of time to appeal under s 231 of the District Courts Act.

48. Turning now to the decision of the primary Judge in this case, we note the following points.

49. First, under s 58 of the Lawyers Act 1986 a lawyer may appeal against a decision of the Lawyers Statutory Committee within 21 days of the date of a decision. The respondents submitted that the evidence before the Court was that a letter was sent by the second respondent to the appellant on 15 July 2016. Not only is this date 16 days into the 21 day appeal period prescribed by s 58 of the Lawyers Act (which would, in turn, have circumscribed the ability of the appellant to comply with the provisions of the section), insofar as we can identify from the material before the Court there is no evidence that the letter was ever posted, or received in the post, by the appellant. His Honour's statement at [12] that that letter was a record of the decision of the Lawyers Statutory Committee may well be accurate. Notwithstanding the legislative framework described by his Honour at [9] and [10], there is no evidence rebutting the evidence of the appellant that he knew nothing about the decision of 30 June 2016 until he physically attended the premises of the Law Society on 19 January 2017 to enquire on application for renewal of his practising certificate, and no indication in the primary judgment that his Honour took his evidence to this effect into account. The statement by his Honour at [13] that there was "always communication" with the appellant by the Lawyers Statutory Committee appears to be without foundation.

50. Second, his Honour noted the length of the delay of the appellant in seeking to appeal, and concluded that that delay was inordinate. However there was extensive material before his Honour on which the appellant relied, including detailed evidence of his unreciprocated communications with the Lawyers Statutory Committee following the 30 June 2016 decision, and his evidence to the Committee that a complainant to the Law Society about the appellant's conduct had in fact withdrawn that complaint. As the appellant submitted, that material informed his explanation for the period of delay between that decision and the ultimate date he filed his application to extend time in which to appeal. Insofar as we can ascertain from his Honour's reasons, none of the appellant's material relating to his explanation for his delay was considered by the primary Judge. Indeed his Honour did not refer to evidence of the appellant other than the limited correspondence from the Lawyers Statutory Committee annexed to his affidavit material.

51. Third, the observation of the primary Judge at [18] that there ought to be finality in litigation, relying on Telikom PNG Ltd v Independent Consumer and Competition Commission (2008) SC906 (a case in which the Supreme Court addressed principles of abuse of process and res judicata) appears misconceived in the present case. The appellant was entitled to seek an extension of time in which to appeal. Principles of finality of litigation are not relevant in this context.

52. Fourth, the fact that the appellant was, at material times, a lawyer, does not of itself constitute a basis for the Court to find that the appellant should be refused an extension of time to appeal a decision of the Lawyers' Statutory Committee, in respect of his conduct as a lawyer. His Honour's observation at [19] of the primary judgment was not merely a conclusory statement – rather it appeared to be a factor his Honour took into account, but which in the circumstances of those proceedings was irrelevant.

53. In our view grounds 3.3, 3.5 and 3.6 are substantiated.

Grounds 3.7 and 3.8

54. In grounds of appeal 3.7 and 3.8 the appellant claimed breach of principles of natural justice under s 59 of the Constitution, because:

• the primary Judge failed to have regard to the appellant's evidence, and
  
• the primary Judge conducted the hearing de novo rather than hearing the application for an extension of time.
  

55. Section 59 of the Constitution provides:

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

56. Breaches of s 59 of the Constitution arise where, for example, there is a denial of a right to be heard (Sharp v Andrew (2016) SC1797, Kuso Maila Anda Ltd v United Pacific Corporation Ltd (2019) SC1894), or there is a failure on the part of the Court to give the parties an opportunity to call evidence (Resena v The State [1991] PNGLR 174). No such circumstances existed in this case. While we consider that his Honour erred in failing to have regard to certain evidence of the appellant, on the state of the material before the Court we are not satisfied that this error constituted a denial of natural justice within the meaning of s 59 of the Constitution.

57. Further, we are not satisfied that the primary Judge conducted the hearing de novo as the appellant claimed in ground 3.8. His Honour clearly recognised that the proceedings before him were an application for an extension of time. Further, as the respondent submitted, as the hearing was ex parte, it is difficult to contemplate how it could be a hearing de novo.

58. Grounds 3.7 and 3.8 are not substantiated.

Ground 3.9

59. The principle of Wednesbury unreasonableness referable to the authority of Associated Provincial Picture House Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 was recently explained by the Supreme Court in Kariko v Korua (2020) SC1939, as follows:

39. The 'Wednesbury principle' the appellants rely on is laid down in the oft-cited case of Associated Provincial Picture House Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. Under this principle, the superior court may set aside an administrative or judicial decision if it can be objectively determined to be unreasonable. The test as stated in Henry Kwan v Collin Bining (2014) N5836 (Cannings J) following a host of past precedents is whether, the decision is so unreasonable or absurd, having regard to all the circumstances, no reasonable decision-maker could have made the decision.
    
40. In, Hari John Akipe v Rendle Rimua (2018) N7381 Higgins J said: “The test comes down to whether the decision is or is not one to which any reasonable authority could rationally come. In essence, a decision maker is not empowered to make arbitrary or whimsical decisions.”
    
41. In Air Niugini Ltd v Beverley Doiwa [2000] PNGLR 347 Amet CJ referred to the English case of Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 in which Lord Diplock described the Wednesbury "unreasonableness" principle as: "a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
    

60. In the circumstances of this case we are not persuaded that the decision of his Honour to refuse leave was so unreasonable that no reasonable decision-maker could have made it. His Honour properly approached the proceedings as an application for extension of time, and concluded that, where the delay between the decision and the application was four years, that application should be refused. We consider that his Honour erred in exercising his discretion, however not such as to contravene the Wednesbury principle.

61. Ground 3.9 is not substantiated.

CONCLUSION

62. Since preparing these reasons for judgment we have had the advantage of reading in draft the separate judgment to be delivered by Logan J. For the reasons given by his Honour, we also have reservations as to whether there is power to extend the times expressly prescribed by s 58 of the Lawyers Act. However this appeal was argued on the premise that there is such power, for which there is support in National Court authority. As we have already observed, the present case is not an appropriate vehicle for consideration of the correctness of that authority.

63. In our view the appeal should be allowed.

64. The proceedings in the National Court concerned an ex parte application for extension of time in which to appeal from the decisions of the Lawyers Statutory Committee, and it was in respect of that application that his Honour made the decision the subject of this appeal. The orthodox consequence of an order allowing the appeal is that the appellant's application to the National Court for extension of time be remitted to that Court for hearing, rather than an order be made that time be extended. However we note the seriousness of the matter, that notwithstanding the delay in filing his notice of appeal the appellant provided detailed explanations for that delay, that his Honour erred in his consideration of the application before the National Court by failing to have regard to those explanations, the prejudice to the appellant from having the proceedings prolonged, and the apparent absence of prejudice to the respondents if an extension of time is granted. In our view it is appropriate that the application for extension of time be granted and the appellant's statutory appeal against the decisions of the respondents made on 30 June 2016 and 26 September 2018 be remitted to the National Court for hearing.

65. Finally, the appellant seeks the costs of the appeal, to be in the appeal in the National Court. We also consider an order in these terms to be appropriate. We would order:

(1) The appeal be allowed.

(2) The decision of the National Court of 21 September 2020 in OS (JR) No 673 of 2019 be quashed.

(3) Time be extended for the appellant to appeal against the related decisions of the respondents made on 30th June 2016 and 26th September 2018, pursuant to Section 231 of the District Courts Act Chapter 40 and in conjunction with Order 18 Rule 12 (1) of the National Court Rules.

(4) The appellant file a notice of appeal within 21 days.

(5) Time for the entry of these orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

(6) Costs of this appeal be in the appeal in the National Court, to be taxed if not otherwise agreed.

LOGAN J:

66. I have had the advantage of reading in draft the reasons for judgment of Cannings and Collier JJ (joint judgment).

67. I agree that this appeal must be allowed but would prefer to state my own reasons for reaching that conclusion.

68. In the joint judgment, their Honours have summarised in detail the background facts, the reasons for judgment of the learned primary judge, the grounds of appeal and the submissions of the parties. I gratefully adopt that summary.

69. This appeal was argued on the footing that the judgment of Injia DCJ (as his Honour then was) in Dirua v Lawyers Statutory Committee (2005) N2905 (Dirua) stood for the proposition that the adoption of District Court practice and procedure to fill the gap identified by his Honour extended to the conferral on the National Court, in an appeal under s 58 of the Lawyers Act 1986, to exercise the power conferred by s 231 of the District Court Act 1963 to grant an extension of time. The time limit prescribed in s 58 of the Lawyers Act is, in all cases for which it provides, within 21 days of the date of the decision. No power to extend that time is conferred by that Act. In terms of express statutory provision or incorporation by reference, there undoubtedly was, and still is, a gap in appellate practice and procedure in respect of an appeal under s 58 of the Lawyers Act. But I very much doubt whether, in Dirua, that distinguished and learned Judge was intending to establish the proposition upon which the parties have conducted this appeal by his reference to the adoption of the practice found in ss 219 to 236 of the District Courts Act to fill that procedural gap. Establishing that proposition was certainly not necessary to resolve the practice and procedure issue before his Honour, which was concerned just with the consequence of a failure to prepare, file and serve an appeal book. So my strong inclination is that the practice and procedure so justly and pragmatically, with respect, adopted, cannot conflict with the express terms of the Lawyers Act. One might have thought that, given this express statutory provision and if it were productive of injustice, it was for Parliament to remedy by amendment that injustice by providing for an extension of time power. Thus, I have considerable sympathy with the learned primary judge, who highlighted, early in his reasons for judgment, that he was dealing with a proceeding under the Lawyers Act, not the District Courts Act.

70. Where there has been a failure to adhere to a time limit found in s 58 of the Lawyers Act, the appropriate remedy may be by way of a proceeding under s 155(4) of the Constitution for the judicial review of the decision concerned. In such a proceeding, the adequacy of the explanation for non-observance of the statutory time limit would always be a relevant consideration.

71. Nonetheless, it must be acknowledged that, in Latu v Kua (2007) N3151, which was an appeal under the Lawyers Act, Lay J proceeded on the basis that the effect of Dirua was that there existed a discretion to extend time. The contrary appears not to have been argued.

72. In circumstances where the parties have proceeded in this case on a particular view of the law, and where there is an authority which supports so doing, it would not be appropriate, in my view, for this Court to consider the correctness of the understanding of the effect of Dirua. I would, however, expressly reserve my position in respect of the correctness of that understanding.

73. Assuming, however, that there is a discretionary power to extend time, it would not be enough to interfere with the exercise of a judicial discretion that I might, perhaps, have come to a different view on the merits of whether to grant an extension. It is well established that an error of principle must be demonstrated.

74. The delay here was gross, a fact which did not escape the attention of the learned primary judge. However, the appellant, Mr Kiuk, did offer by affidavit a detailed explanation in respect of the whole of the period of the delay. I am unable, with all respect to the learned primary judge, to see that that detailed explanation has been addressed by the learned primary judge. The explanation (if any) offered for a delay and its adequacy are always relevant considerations in respect of any application for the exercise of a discretionary power to extend time.

75. That being so, there is, as is concluded in the joint judgment, an error of principle established – a failure to take into account a relevant consideration. That failure might also, in my view, be characterised as a denial of procedural fairness, contrary to the prescription in s 59 of the Constitution. That is on the basis that the case as advanced by Mr Kiuk was not, with respect, addressed.

76. I am unable to agree that the failure to take into account a relevant consideration did not also have the consequence that the adverse exercise of the discretion was unreasonable. A failure to take into account a relevant consideration can establish unreasonableness in the jurisdictional error sense: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986)162 CLR 24, at 41 per Mason J.

77. Subject to these reservations and qualifications, I agree with the joint judgment and with the orders proposed therein.

BY THE COURT:

78. The order of the Court is:

(1) The appeal is allowed.

(2) The decision of the National Court of 21 September 2020 in OS (JR) No 673 of 2019 is quashed.

(3) Time is extended for the appellant to appeal against the related decisions of the respondents made on 30th June 2016 and 26th September 2018, pursuant to Section 231 of the District Courts Act Chapter 40 and in conjunction with Order 18 Rule 12(1) of the National Court Rules.

(4) The appellant shall file a notice of appeal within 21 days.

(5) Time for the entry of these Orders is abridged to the time of settlement by the Registrar which shall take place forthwith.

(6) Costs of this appeal are in the appeal in the National Court, on a party-party basis, to be taxed if not otherwise agreed.
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Ashurst PNG Lawyers: Lawyers for the Respondents