David Toll v Kibi Kara (No 1)

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J
• Judgment Date: 12 February 1990
• Citation: [1990] PNGLR 71
• Court: National Court
• Year: 1990
• Judgement Number: N804

Full Title David Toll v Kibi Kara, Greg Lay (No 1) [1990] PNGLR 71

National Court: Hinchliffe J

Judgment Delivered: 12 February 1990

N804

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

TOLL

V

KIBI KARA AND OTHERS

Waigani

Hinchliffe J

21-22 December 1989

12 February 1990

LAWYERS — Misconduct and discipline — "Improper conduct" as a lawyer — What constitutes — Dishonesty not necessary — Lawyers Act 1986.

LAWYERS — Misconduct and discipline — Disciplinary proceedings — Improper conduct as lawyer — Standard of proof — Right to be heard on penalty — Lawyers Act 1986, s 53 (1).

Under the Lawyers Act 1986, s 58, the Lawyers Statutory Committee may discipline a lawyer for improper conduct. Having made two findings of improper conduct against a lawyer, the Lawyers Statutory Committee proceeded to impose fines and suspension from practice without giving the lawyer an opportunity to address it on the question of penalty. On appeal,

Held

(1) "Improper conduct" by a lawyer in pursuit of his profession is what would be reasonably regarded as disgraceful or dishonourable by his fellow lawyers of good repute and competency, and dishonesty is not a necessary element.

In re A Solicitor; Ex parte The Law Society [1912] 1 KB 302 at 311, 312, followed.

(2) The standard of proof of improper conduct by a lawyer is a high standard but slightly short of the criminal standard of proof.

Bhandari v Advocates Committee [1956] 3 All ER 742, followed.

(3) The principles of natural justice apply to disciplinary proceedings by the Lawyers Statutory Committee where penalty is not automatic and the Committee has a discretion in fixing the appropriate penalty. The affected lawyer is entitled to be heard on the question of penalty.

Cases Cited

Allinson v General Council of Medical Education and Registration (1894) 1 QB 750.

Bhandari v Advocates Committee [1956] 1 WLR 1442; [1956] 3 All ER 742.

In re A Solicitor, Ex parte the Law Society [1912] 1 KB 302.

Appeal

This was an appeal against two decisions of the Lawyers Statutory Committee pursuant to s 58 of the Lawyers Act 1986 disputing findings of "improper conduct" as a lawyer and the penalties imposed.

Editorial Note

For further proceedings see Toll v Kibi Kara (No 2) at 201.

Counsel

J Patterson, for the appellant and the appellant in person.

J Sleight, for the respondents.

Cur adv vult

12 February 1990

HINCHLIFFE J: This is an appeal from two decisions of the Lawyers Statutory Committee pursuant to s 58 of the Lawyers Act 1986.

The first decision went as follows:

"1. ... you, David Toll, have been guilty of improper conduct as a lawyer in that:

you engaged in conduct which was unprofessional and prejudicial to the administration of justice in that you did, on or about the 22nd June 1989 swear in an Affidavit in National Court proceedings WS1009 of 1989 'That no notice of intention to defend has been filed within 30 days of service of the summons herein as required by Order 4r.11 (b) 1' when in fact such notice of intention to defend has been filed.

2. The Committee imposes the following penalties upon you:

(1) a finding of improper conduct as a lawyer; and

(2) a monetary penalty of K500; and

(3) suspension from practice for a period of 21 days commencing from the date of service upon you of this Decision."

The second decision reads:

"1. ... you, David Toll have been guilty of improper conduct as a lawyer in that:

you engaged in conduct which was dishonest, unprofessional, prejudicial to the administration of justice and brought the legal profession into disrepute in that you did on or about 17 April 1989 obtain an order in the District Court, Port Moresby in the matter of Fairdeal Housing and Appliances Pty Ltd and Gary William Alcock and Yvonne Alcock restraining the respondents from leaving Papua New Guinea when you knew that the claim against the respondents was improperly made since an identical claim had been made in the National Court against Techtronics Pty Ltd for the debt claimed to be due from the respondent.

2. The Committee imposes the following penalties upon you:

(1) a finding of improper conduct as a lawyer; and

(2) a monetary penalty of K500; and

(3) suspension from practice for a period commencing from the termination of the period of suspension from practice imposed under Decision No 1 of 26 October 1989 and terminating after 21 days."

The appellant claims that his actions did not amount to improper conduct as a lawyer and that the Lawyers Statutory Committee (hereinafter referred to as the Committee) erred. Mr Toll and Mr Sleight both addressed me in relation to what is "improper conduct". There are no Papua New Guinean cases on the point and they therefore referred me to a number of cases from Australia and England.

I say from the outset that it seems to me that most of the Australian States and Territories differ from one another as to what improper conduct as a lawyer actually entails. On the other hand, the situation in England is clearer. If it is shown that a solicitor, in pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the tribunal to say that he has been guilty of professional misconduct: see In re A Solicitor; Ex parte The Law Society [1912] 1 KB 302 at 311, 312. Interestingly enough, the court in that case followed Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 in its definition of professional misconduct as it applies to a medical practitioner.

I am of the view that we should follow the English definition. It is clear and it is suited to the situation here. To follow the Australian authorities could create a state of utter confusion. I cannot accept Mr Toll's submission that "dishonesty" must be an element of improper conduct as a lawyer. There are numerous situations where it could be said that a lawyer is guilty of improper conduct but not necessarily involving dishonesty.

The short facts leading to the first decision are that Mr Toll swore an affidavit to the effect that a notice of intention to defend had not been filed and sought before Brunton AJ (as he then was) to have the defendant's defence struck out and obtain judgment. His Honour, after perusing the file, discovered that a notice of intention to defend in fact had been filed and there is no doubt that he was not happy with Mr Toll. Brunton AJ reported the incident to the Committee. Mr Toll did not deny that the affidavit was incorrect...