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Woodroffe v Samoa Law Society [2012] WSCA 15 (23 November 2012)

COURT OF APPEAL OF SAMOA

Woodroffe v The Samoa Law Society [2012] WSCA 15


Case name: Woodroffe v The Samoa Law Society

Citation: [2012] WSCA 15

Decision date: 23 November 2012

Parties:
OLINDA WOODROFFE of Apia, Solicitor (Appellant) v THE SAMOA LAW SOCIETY a body corporate duly established under the Law Practitioners Act 1976. (Respondent)

Hearing date(s): 22 November 2012

File number(s): CA 6/12

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s):
Fisher J
Hammond J
Salmon J

On appeal from: Supreme Court

Order:

Representation:
Susan Hughes QC for the Appellant
Precious Chang for the Respondent

Catchwords:

Words and phrases:
(“the nemo judex rule”).

Legislation cited:
Law Practitioners Act 1976

Cases cited:
Ponifasio v Samoa Law Society [2012] WSCA 4.
Z v Dental Complaints Assessment Committee (DCAC) [2008] NZSC 56

Summary of decision:


IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU


FILE NO CA 6/12


BETWEEN

OLINDA WOODROFFE of Apia, Solicitor

Appellant


AND

THE SAMOA LAW SOCIETY a body corporate duly established under the Law Practitioners Act 1976

Respondent


Court:

Honourable Justice Fisher

Honourable Justice Hammond

Honourable Justice Salmon

Hearing: 22 November 2012

Counsel:

Susan Hughes QC for the Appellant

Precious Chang for the Respondent

Judgment: 23 November 2012


JUDGMENT OF THE COURT

Introduction

[1] On 23 February 2011 a five-member Tribunal of the Samoa Law Society Council found the appellant guilty on two charges of conduct unbecoming a barrister or solicitor and/or professional misconduct. On 26 March 2012 the Supreme Court dismissed an appeal against that decision. The appellant appeals against that judgment.

Factual Background

[2] It is not contested that on 25 September 2008 the appellant attended the Court registry office to file a document; that in the registry office she became involved in an argument over a staff member’s refusal to accept the document in its existing form; that charges were subsequently laid by the police alleging the use of insulting language in the course of that argument; and that on 16 October 2008 she wrote to the Minister of Justice and Chief Justice, with copies to the Prime Minister and Consul General of Samoa, asking that the charges be withdrawn .

[3] On 7 October 2008 the Chief Executive Officer of the Ministry of Justice sent a letter of complaint regarding that conduct to the Council of the Samoa Law Society. The Prime Minister also sent the Council a complaint in a letter of 10 October 2008. A member of the Council, and its secretary, was Rosella Papalii.

[4] The Council resolved to send the complaints to its Disciplinary Committee for their consideration. In her capacity as the Council’s secretary, Ms Papalii sent both complaints to the Council’s Disciplinary Committee for preliminary assessment under ss 35 and 36 of the Law Practitioners Act 1976.

[5] On 4 June 2009 the Disciplinary Committee recommended to the Council that two charges of conduct unbecoming a barrister or solicitor and/or professional misconduct be laid against the appellant, one in relation to the events of 25 September 2008 and the other in relation to her letter of October 2008. The Council adopted the recommendation and instructed practitioners who were not members of the Council to conduct the prosecution. The Disciplinary Committee drafted the charges. In her capacity as secretary Ms Papalii arranged to have the charges served on the appellant. Later on 14 August 2009 she sent copies of the evidence for the prosecution, stating among other things “We enclose the following statements that we will be relying on for the hearing of the charges against you ...”

[6] The Council appointed five of its own number, including Ms Papalii, as a Tribunal to hear the charges. When the appellant heard of this she did not object to the inclusion of members of the Council on the Tribunal in general. She did object to the inclusion of Ms Papalii given her prior involvement. The objection was overruled.

[7] The substantive hearing took place on 15 and 16 November 2010. In a written decision of 23 February 2011 the Tribunal unanimously held that both charges were proved.

[8] After further submissions the Tribunal imposed its penalty on 7 April 2011. It ordered the appellant to pay a fine of $1,000 and costs of $3,000. It also required Ms Woodroffe to apologise in writing to various members of the Ministry of Courts and Justice Administration, the Minister of Justice and the Chief Justice.

Supreme Court proceedings

[9] Ms Woodroffe appealed to the Supreme Court against the Tribunal’s decision. The grounds she advanced were that:

(a) Of the members hearing the charges against the Appellant, Rosella Viane Papalii had a conflict of interest and should have recused herself but refused to do so.

(b) The Tribunal applied the wrong evidential burden to their consideration of the charges and therefore misdirected themselves as to the law.

(c) The finding of the Respondent was contrary to the evidence to which end an error of law occurred.

(d) The penalties imposed by the Respondent were excessive relative to the charge and included matters by way of penalty in excess of the powers permitted by Section 37 of the Law Practitioners Act 1976.

[10] In his judgment of 26 March 2012 Slicer J noted that it would be preferable for the Council Secretary to not sit as a member of the Tribunal but dismissed the first ground of appeal (conflict of interest). He determined that Ms Papalii’s conduct would not have caused an objective observer who had knowledge of the whole of the proceedings to perceive bias; and that even if the Secretary had been compromised, the unanimity of the vote meant her individual vote was “of little or no consequence” (at [26]).

[11] His Honour dismissed the second ground of appeal (evidentiary burden) as having no merit, saying the Tribunal had applied the appropriate test.

[12] The arguments for the third ground of appeal (finding contrary to evidence) were twofold. The first was that the appellant’s words and conduct on 25 September 2008 were against policy and the system, not against a member of staff. The second was that the Society had not sufficiently proven the occurrence of those words and that conduct.

[13] Slicer J dismissed the first argument on the basis that the appellant had by her own actions confirmed that her anger was with the staff member, Mrs Eti, by seeking remedies against Mrs Eti from the Minister of Justice, the Chief Justice, the Prime Minister and the Consul General after the events of 25 September 2008. He dismissed the second argument, pointing out that it was open to the Tribunal to prefer the evidence of five witnesses to the appellant’s version of events. For both those reasons the third ground of appeal was dismissed.

[14] The final ground of appeal was in two parts. The appellant argued that the penalty imposed was both excessive and in excess of the Tribunal’s powers. Slicer J dismissed the first argument, holding that it was open to the Tribunal to impose a more severe sanction than it did. However, he set aside the orders for written apology given that s 37 of the Act does not authorise such a penalty.

The Appeal

[15] In this Court Ms Hughes advanced the following grounds in support of the appeal:

(a) That the learned Judge erred in fact and law in finding that there was no conflict of interest in the position of Rosella Papalii.

(b) That the learned Judge had erred in finding that the Respondent had correctly applied the relevant evidential burden.

(c) That the learned Judge had erred in fact and law in finding that there was evidence sufficient to support a finding against the Appellant in relation to the first charge without identifying the evidence to be so relied upon nor resolving the conflicts between the various witnesses.

(d) The learned Judge erred in fact and law in that he failed to consider whether the subject matter of the second charge crossed the threshold of amounting to conduct unbecoming.

[16] We address these in turn.

(a) Conflict of interest in position of Ms Papalii

[17] After discussing the various steps taken by or on behalf of the Council before the hearing, Ms Hughes submitted that “Mrs Papalii has been integral in that process as is evidenced by the matters listed above. It is submitted that she should have had no part in the hearing because of that apparent or presumed bias.”

[18] Ms Hughes went on to invoke various Privy Council and New Zealand authorities in support of the proposition that “an objective bystander could not but be troubled by the apparent bias of having the secretary sit as a member of the Council, particularly given the language used by Ms Papalii in her letter of 14 August 2009” (the letter in which Ms Papalii had said “We enclose the following statements that we will be relying on for the hearing of the charges against you ...”) (emphasis added).

[19] The way in which independence and impartiality requirements are to be applied to the disciplinary duties of the Samoa Law Society was traversed in a decision of this Court earlier this year in Ponifasio v Samoa Law Society [2012] WSCA 4. It is unnecessary to go beyond the principles laid down in that case to determine the present one.

[20] The effect of the decision in Ponifasio was that when the Council of the Law Society prosecutes a practitioner in a disciplinary proceeding, no member of the Council can sit on the judicial body which hears and decides whether or not its own prosecution should be sustained. The principal ground for that conclusion was not reasonable apprehension of bias but the principle that no-one should be a judge in his or her own cause (“the nemo judex rule”).

[21] Even though the Council delegates various tasks along the way, it is the Council that is ultimately responsible for initiating and prosecuting disciplinary proceedings. Sections 35 and 36 of the Law Practitioners Act 1976 impose that statutory duty on the Council.

[22] Section 18(3) gives the Council a general power to appoint committees of members of the Law Society. It may delegate to those committees any of the powers of the Council. Under that provision it may appoint a distinct committee of non-Council members of the Law Society to make preliminary inquiries, make recommendations and draft charges under s 36(1) as was done in this case. It may appoint one or more non-Council members to present the case against the practitioner under s 36(3). The fact remains, however, that throughout that process it is ultimately the Council that controls the prosecution.

[23] Nor does the Council’s prosecutorial role end when a member is appointed to present the case for the prosecution in the disciplinary hearing itself. The Council retains that continuing power which any client would have to give instructions to the prosecuting member wherever the Council, or the prosecuting member, thinks that appropriate. That relationship continues throughout the hearing.

[24] The procedural solution lies in the Council’s power of delegation under s 18(3). Under that provision it is competent, and indeed essential, for the Council to appoint a committee of non-Council members to hear and determine disciplinary charges. In that way the processes of prosecuting and judging are separated between distinct individuals.

[25] That was the principal rationale of the Ponifasio decision. It was supported by a series of English decisions cited in the judgment. In this Court Ms Chang cited a number of other decisions and arguments which might have supported a different analysis. We acknowledge that had we been approaching the matter afresh the question might well have been open to debate. However this Court will not depart from a principle established in an earlier decision unless it is clearly shown that there was an unequivocal error in the earlier decision, demonstrable change in circumstances since the decision was given or other special reason for the departure.

[26] No special reason of that kind could be suggested in the present case. In particular, the change in the personnel on the Council referred to by Ms Chang could not affect the point that the Council was and remained the prosecuting entity throughout the disciplinary process from its inception to the final decision. Ponifasio clearly applies.

[27] There could be no possible criticism of the members of the Council at a personal level. The events in question preceded the decision in Ponifasio. Where s 36(4) provides that the “Council” may proceed to hear and determine the charge it would be less than obvious to anyone on a first reading that for procedural fairness reasons this necessarily means a committee of non-Council members. Although the appellant was represented by a Queen’s Counsel she did not advance any objection based on the principle in Ponifasio to the Tribunal, to the Supreme Court or to this Court. The only objection made was to the individual involvement of Ms Papalii. The members of the Council can scarcely be criticised for overlooking the same point.

[28] Given the impact of the nemo judex principle upon the role of all members of the Council in this case, we find it unnecessary to traverse the role of Ms Papalii in particular. The nemo judex principle means that the Council’s decision must be set aside.

[29] Although that conclusion would be sufficient to dispose of the appeal, it seems desirable that we comment on the remaining points of legal principle raised by the grounds of appeal. Those comments can then be taken into account by the freshly constituted committee which is likely to rehear the disciplinary proceedings. It is ultimately a decision for the Council but in principle when a disciplinary decision is set aside for purely procedural reasons in a case such as Ponifasio or this one, it might be expected that the statutory duties imposed on the Council by ss 35 and 36 would normally result in a rehearing.

(b) The evidential standard

[30] The standard of proof required in a professional disciplinary hearing is proof on the balance of probabilities bearing in mind the gravity of the allegation: Z v Dental Complaints Assessment Committee (DCAC) [2008] NZSC 56. Most people behave innocently most of the time. We do not lightly conclude that someone has behaved badly. Consequently the more serious the allegation, the more persuasion we will need before concluding that the allegation is established. That involves no change to the balance of probabilities standard. It is simply an application of that standard to the likelihood of guilt in the circumstances of the particular case.

[31] Ms Hughes did not directly challenge those propositions but submitted that in this case “the standard to be applied approached that of beyond reasonable doubt”. She criticised the Tribunal for declining to express the matter in that way.

[32] We do not think that Ms Hughes’ formulation is a helpful way of expressing the point. The standard remains the balance of probabilities. It is simply that the more serious the allegation, the more cogent the evidence required to persuade the Tribunal that guilt was more probable than not.

[33] We agree with Slicer J. There was no merit in this ground of appeal. The way in which the Tribunal expressed the matter on this occasion (paras 6, 7 and 60 of its decision) was beyond criticism.

(c) No evidence to support the first charge

[34] The first charge alleged verbal abuse of a member of the court staff followed by a series of alternatives as to the actual words used followed by a series of evaluative descriptions (“showed no self restraint”), (“created an embarrassing scene”) and (“brought the Law Society into disrepute”).

[35] In the charge one of the alternatives offered as to the words used was “you bloody shit”. It is not contested that a witness before the Tribunal alleged that the appellant spoke those words.

[36] Before us Ms Hughes sought to challenge the reliability of that witness on the ground that there were prior inconsistent statements and other evidence to the contrary. As a matter of principle, challenges of that kind cannot support a contention that there is no evidence to support a charge.

(d) Threshold for conduct unbecoming

[37] Ms Hughes complained that Slicer J “failed to consider whether the subject matter of the second charge crossed the threshold of amounting to conduct unbecoming”. This is scarcely surprising given that it was not included among the grounds of appeal advanced before the Judge as recited in his judgment at [19].

[38] In any event we have reviewed that question afresh in this Court. Given that the case is likely to come back before a freshly constituted Tribunal we think it appropriate to say only that the question whether the appellant’s conduct amounted to conduct unbecoming or professional misconduct will be an evaluative decision for that Tribunal. On that subject there is no obstacle of a technical nature.

Result

[39] The appeal is allowed and the decisions given by the Council of the Law Society on 23 February 2011 and 7 April 2011 are set aside without prejudice to a rehearing of the charges by a freshly constituted committee of non-Council members appointed by the Council.

[40] The ground on which the appeal has succeeded was not advanced by the appellant before the Supreme Court or in this Court. The appellant has failed on the three supplementary grounds advanced in this Court. There will be no order for costs in either Court.


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Honourable Justice Fisher


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Honourable Justice Hammond


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Honourable Justice Salmon



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