Kasimili v Muller [2004] TOSC 2; C APP 0016 2002 (14 January 2004)

IN THE SUPREME COURT OF TONGA
CIVIL APPEAL JURISDICTION
NUKU’ALOFA REGISTRY

C.App.No.16/02

BETWEEN:

VAKAOLAFEHI KASIMILI
Appellant

AND:

PAUL MULLER
Respondent

Appellant in person.
Respondent in person.

Hearing: 18 September 2003.
Further submissions requested: 19 November, 2003.
Judgment: 14 January 2004.

JUDGMENT

This is an appeal from a decision of the Disciplinary Committee of the Tonga Law Society delivered on 24 September 2002.

The appellant had been the plaintiff in an action against his former employer by whom he had been summarily dismissed. He claimed damages as compensation for his dismissal and for lost commission on earnings.

He was successful in his claim but received damages in a sum very much lower than that claimed. He was dismissed in early 1998 and the claim was filed in early 2000. At the hearing before Ford J, the appellant represented himself but, in the early stages, had instructed the respondent, an enrolled law practitioner. A trial date was fixed for 5 and 6 February 2001 with a pre-trial conference on 31 January 2001. The respondent did not appear for the pre-trial conference or for the hearing and the case was struck out.

That order was subsequently set aside and the trial proceeded. In his judgment, Ford J in the first of two references to the conduct of the respondent, stated:

"Mr Kasimili has not been well served by the lawyer he initially instructed, Mr Paul Muller. Mr Muller issued the proceedings. A trial date was set for 5 and 6 February 2001 and a pre-trial conference was set for 31 January 2001. Mr Muller did not appear on the pre-trial conference nor did he appear on 5 February when the case was called for trial. The claim was, therefore, struck out."

The original claim was for a total of $2,727.25 commission and $10,000.00 for the dismissal. He was given judgment in the total sum of $457.92 and, as he had not been represented by counsel, no order for costs. Ford J continued:

"I would add this. Even if the plaintiff had been represented by counsel, I would have been reluctant to make an order as to costs having regard to the modest amount recovered in relation to the sum claimed. This is another area where the plaintiff does not appear to have been well served by his former solicitor, Mr Muller. Mr Muller should have made it clear to the plaintiff at the outset that, even if he was successful in establishing his claim of wrongful dismissal, his entitlement to damages at common law is severely limited and the most that he could have expected to recover, putting to one side the question of commission, would have been his loss of wages for the two week notice period. The claim of $10,000.00 is quite preposterous and such a figure would have done nothing to encourage a sensible settlement of the case at an early stage of the litigation."

That judgment was delivered by Ford J on 10 July 2002. By that time, the appellant had lodged his complaint to the Tonga Law Society and the hearing by the Disciplinary Committee had taken place although the decision was not to be delivered until some months later.

The complaint to the Law Society was in the form of letter and related to the respondent’s failure to attend court on 5 February 2001. He stated:

"I have already paid [Muller] an amount of money which he needed to get the case on. Everything was ready and dated to be held on February the 5^th, 2001. We met one week before the dated day and he told me everything is ready, and we need to meet before the court case started. I went to his office at Mailetaha but he was already gone to New Zealand. I couldn’t go to court alone without my lawyer so I stayed."

At the hearing by the Disciplinary Committee, the appellant gave evidence and was examined at length by the members of the Committee. The respondent failed to attend but the Committee considered a number of documents including a detailed answer by the respondent to the allegations by the appellant. The major part of their decision was devoted to resolving the various factual discrepancies between the claims of the appellant and the respondent. Having found that some of the critical assertions of the appellant, in particular his claim that he and the respondent had met on 1 February 2001, were not credible and having considered the standard of proof in such cases as described by Ford J in the case of ‘Etika v Tonga Law Society, they concluded:

"We have already found that the evidence of the complaint about meeting with the respondent on 1 February 2001 is not convincing, and he had failed to satisfy the Committee to the high standard of proof set by Ford J.

As to professional misconduct his Honour in page 6 of his Decision stated: ‘the cases indicate that professional misconduct should only be found where the conduct could reasonably be regarded as disgraceful or dishonourable or inexcusable negligence... which is such as to be regarded as deplorable by his fellows in the profession.

Applying the standard of proof set out by Ford J in this Decision and the meaning of professional misconduct we dismiss the complaint by the complainant."

The appellant’s grounds of appeal take the form of a letter, dated 18 November 2002 and addressed to the ‘Chief Judge’. I do not set it out. He challenges various findings of fact by the Committee and the conclusions they have based on those findings. As in all appeals, the appellate court will rarely interfere with findings of fact made by the tribunal which heard the evidence. They had the advantage, not shared by this court, of seeing the appellant and hearing his oral evidence. In such a case, if there is evidence upon which that lower tribunal could have reached the conclusion it did, the appellate court will not interfere on those grounds alone.

However, one matter gave me cause for concern and resulted in my seeking further evidence. The only live evidence the Committee heard was from the appellant. As has been stated, the respondent was advised of the hearing and did not attend yet the Committee considered a letter written by him to the Law Society on 12 July 2001 referred to by the Committee as document ‘C’ (incorrectly described in the decision as from the complainant).

It is not clear what status the Committee gave to that document. It was not in the form of an affidavit and therefore not on oath in contrast to the evidence given by the appellant. I would question the probative value of the facts stated in it and the Committee gave no indication of how they regarded its contents or their relative weight against the sworn evidence of the appellant.

However, the decision on fact that the Committee found to be critical to its final decision related to the allegation of the appellant that he and the respondent had met on 1 February 2001. The Committee’s decision on that was, I consider, reached by a consideration only of the evidence of the appellant. They simply did not believe his evidence having considered the documents the appellant produced to substantiate his claim. Had that been the only issue, I would not have interfered; but it was not.

The essence of the appellant’s complaint was that the respondent had failed to appear on his behalf. His case was struck out because of the failure to appear at the pre-trial conference on 31 January 2001 and on the date fixed for the hearing, 5 February 2001.

The appellant could not give direct evidence of the events in chambers on 31 January 2001 because he was not there. However, the respondent in his letter of 12 July 2001 made the following assertion:

"7. No further instructions received over the last quarter of 2000 from Mr Kasimili. In January 2001 I awaited further instructions from Mr Kasimili regarding the hearing set for February. Without a contact address I was unable to reach Mr Kasimili. On the 31^st of January 2001 pre-trial conference leave was granted by the court to withdraw from the matter on the grounds that no further instructions had been received."

Later in the same letter in reference to a letter to the Law Society by Kasimili he also stated:

"8.4 My records do not indicate any further instructions from Mr Kasimili before the pre-trial conference on the 31^st of January 2001. Subsequently, the court granted leave to counsel to withdraw on the grounds that no further instructions had been received from Mr Kasimili."

Although it was not given on oath, that point appears to have been accepted by the Committee as a finding of fact. It was stated in the decision at page 4:

"In his oral evidence the Complainant states that he forgot to meet the [Respondent] in his office to go to the pre-trial conference. In document ‘C’ the Respondent states in paragraph 7, among others, that without a contact address he was unable to reach the complainant and on the 31 January 2001 pre-trial conference leave was granted by the court for the Respondent to withdraw from the matter on the grounds that no further instructions had been received."

Later, at p 7 it continued:

"In respect of the complaint by the complainant the Committee finds that the complainant’s case was struck out by the Court because of the complainant’s failure to meet with the respondent on 31 January 2001 to confirm instructions before they attend the pre-trial conference. Having received no instructions or heard from the Complainant for more than 8 months the Respondent in the Committee’s view was entitled to advise the court that he has not received any further instructions and the appropriate thing for him to do was to seek leave to withdraw."

At the hearing of the appeal Mr Muller appeared in person. He did not give evidence on oath but his submissions to the Court included many assertions of fact. He explained how he had many meetings with the appellant and how he often came simply to discuss the case as opposed to giving further instructions. My note of the relevant parts of the submission continues:

"[Our] agreement was he would come to my office for further instructions and preparation for the meeting. To go through documents and prepare him for witness box.

He gave me no contact details at any stage. He had no fixed abode and I was unsure of where he lived. We agreed a time to come.

At final meeting in May [2001], pre-trial conference was 31 January and I suggested he come a few weeks before, in early January so we could discuss case. I explained nature of pre-trial conference and that it would be the last chance to confirm we were ready to proceed.

That was how we communicated. At that time I had no ‘phone in the office – he had my home ‘phone and fax number. There was no other arrangement. Not set times. I suggested the time he should come to my office.

During January, I confirmed with Court that I had no contact with him prior to 31 January and I was present on that date before Ford J.

On 31 January it was called and I came early and checked both courts. Looked around and could not locate him. At pre-trial conference I asked for leave to withdraw on grounds I had had no contact. I received leave. ...

I was in Tonga prior to the hearing on 5 February and had no further contact"

Later he added;

"I have read Finding of [Disciplinary ] Committee. I have no disputes or matters to add. ... I felt the correct path was to seek to withdraw. I am aware of obligation to client and to Court. Whist I went out of my way to assist him, I also have an obligation to the Court to present as well as possible. On 31 January, I felt I could not."

After the appeal hearing, when I was considering the case, I felt the first of the passages from Ford J’s judgment quoted above suggested that particular conclusion of the Committee and the assertions of the respondent might not have been correct. This was not raised by the parties at the hearing of the appeal but, as the appellant was not represented and on the accepted facts was not present on 31 January and so could not have commented on the events in chambers, I considered it was a matter the Court should properly explore and so I sought further evidence on the point.

In consequence, I wrote a note to Ford J on 17 November 2003 (wrongly dated 3 February 2003) and he replied on 18 November 2003 as follows:

"The entry in my Chambers Bench Book for 31 January 2001 reads as follows:

‘C.99/00 Kasimili v Vava’u Press (Foliaki)

No appearance

Case struck out

Costs to defendant to be taxed.’

It is quite clear, in other words, that there was no appearance before me on that day by Mr Muller or anyone else on behalf of the plaintiff, Mr Kasimili."

I consider this revealed a serious situation and so, on 19 November 2003, the date fixed for delivery of the judgment, I explained the position and gave both parties 21 days to file any further written submissions and/or affidavit evidence. I had advised Mr Muller at the hearing that he need not appear for the judgment and on that day he was represented by counsel. Both the appellant and counsel for the respondent were given copies of my note to Ford J and of his reply and a copy of my Order was also faxed to Mr Muller in Auckland.

Understandably, as he was not, and had never claimed to be, present on 31 January 2001, the appellant filed no further submissions. Surprisingly, Mr Muller also has filed nothing.

As I have stated this reveals a serious situation. The respondent has made a statement which he must have known was untrue on two occasions to the Law Society in the knowledge that it would be used in the disciplinary proceedings against him. That statement was made to avoid the consequences of his failure to represent his client’s interests and resulted in the complaint being rejected at that time. It is clear that the Disciplinary Committee were deceived by this falsehood and, indeed, it was the major basis of its finding that the respondent had not acted unprofessionally.

During the appeal, the respondent repeated and embellished the untrue account, again with the clear purpose of misleading the Court.

The failure to appear and represent his client was unprofessional conduct. His attempt to avoid this by untrue statements is a serious aggravation. The fact that, on one occasion the statement was made to mislead the Court is particularly disgraceful misconduct.

In the circumstances, the appeal is allowed and the matter is remitted to the Disciplinary Committee of the Law Society to determine the appropriate recommendation for the following instances of professional misconduct:

1. the practitioner’s failure to attend at the chambers hearing on 31 January 2001 and represent his client;
   
2. the practitioner’s deliberate misstatement of fact in his letter to the Law Society of 12 July 2001 ( document C); and
   
3. the practitioner’s deliberate misstatement of fact to the Court during the appeal hearing on 18 September 2003
   

The Disciplinary Committee shall report to me within 28 days.

Nuku’alofa: 14 January, 2004.

Chief Justice