In The Matter of Section 58 of The Lawyers Act 1986 (as amended); Michael Gene v Royale Thompson, Margaret Parua, Frazer Pitpit, David Manoka, Henry Henry, Nigel Agonia and FR Phillip Smith as Members of the Lawyers Statutory Committee (2007) N3254

• Jurisdiction: Papua New Guinea
• Judge: Injia DCJ
• Judgment Date: 30 July 2007
• Court: National Court
• Citation: (2007) N3254
• Docket Number: CIA NO. 458 OF 2004
• Year: 2007
• Judgement Number: N3254

Full Title: CIA NO. 458 OF 2004; In The Matter of Section 58 of The Lawyers Act 1986 (as amended); Michael Gene v Royale Thompson, Margaret Parua, Frazer Pitpit, David Manoka, Henry Henry, Nigel Agonia and FR Phillip Smith as Members of the Lawyers Statutory Committee (2007) N3254

National Court: Injia DCJ

Judgment Delivered: 30 July 2007

N3254

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 458 OF 2004

IN THE MATTER OF SECTION 58 OF

THE LAWYERS ACT 1986 (AS AMENDED)

BETWEEN

MICHAEL GENE

Appellant

AND

ROYALE THOMPSON, MARGARET PARUA,

FRAZER PITPIT, DAVID MANOKA, HENRY HENRY,

NIGEL AGONIA and FR. PHILLIP SMITH as Members

of the LAWYERS STATUTORY COMMITTEE

Respondents

Waigani : Injia DCJ

2007: 30 July 30

LAWYERS – Appeal from decision of Lawyers Statutory Committee – Ground – Lack of “quorum” of meeting – Quorum for meeting not prescribed by Lawyers Act 1986 – Majority principle applies – Majority means simple majority of more than one half of total members of Committee prescribed by statute – Seven members of committee prescribed by statute - Meeting which conducted enquiry constituted by two members only – Committee lacked quorum – Committee lacked jurisdiction to deal with matter – Appeal allowed and decision quashed and remitted to Committee for rehearing by differently constituted committee – Lawyers Act 1986, ss 48, 52, 53; Interpretation Act (Ch. 2), ss 38, 39; Commission of Inquiry Act (Ch. 31), s 14.

Cases cited in the judgment.

PNG Cases

Ketan v LSC (2001) N2290.

Chevu Jin Fq v Naniura [1990] PNGLR 506;

Overseas cases:

Green v The Queen [1891] 17 V.L.R 329;

Hascord v Somany (1863) 89 ER 380;

Muncipality of St. Leonards v Williams [1966] Tas. S.R. 166.

Counsel

R. Raka, for the Appellant

N. Asimba, for the Respondents

30 July, 2007

1. INJIA, DCJ: This is an appeal from the decision of the Lawyers Statutory Committee (LSC) brought under s 58 of the Lawyers Act 1986. The decision made on 10 June 2004 relates to three (3) counts of improper conduct in respect of statements the appellant made in 1996, when he was the Attorney-General of Papua New Guinea, regarding the administration of justice by the Courts in Papua New Guinea. The statements were contained in an affidavit filed in an action filed in the Supreme Court of Victoria, Australia. The charges stem from a complaint made by the Papua New Guinea Law Society (PNGLS) to the LSC that the statement seriously damaged the Courts and the administration of justice in Papua New Guinea.

2. The three (3) counts are:

“Count 1 : that on or about the 28th April, 1998 you made a sworn Affidavit in which you made statements intended to be used and were used before the Supreme Court of Victoria in a case between Gregory Toop (plaintiff) and Mobil Oil NG Ltd, Mobil Oil Australia Ltd and Yakaingi Business Group Inc. (defendants). It is alleged that in so doing, you engaged in conduct that was unprofessional, prejudicial to the administration of justice and may otherwise bring the legal profession into disrepute, thereby contravening Rule 3(a)(iii), (iv) & (v) of the Professional Conduct Rules 1989.

PARTICULARS OF UNPROFESSIONAL CONDUCT alleged are statements deposed to in paragraphs 7, 8, 9, 10 & 11 of the said Affidavit.

“Count 2 : It is further alleged that with respect to the statement deposed to in paragraph 9 of the said Affidavit, you reported on what took place at a Confidential meeting of Lawyers in September, 1996 at which the Attorney-General was not present and where Lawyers only spoke on the condition that absolute confidence would be maintained. It is therefore, alleged that by reporting on a meeting that you did not attend and by naming one of the participants at that meeting, you made use of confidential information that you were not entitled to use thereby contravening Rule 9(1) & (3)(a), (b), (c) of the Professional Conduct Rules 1989.

“Count 3 : You failed to respond to the letter of the Committee dated 19th March, 1999 requesting you to respond to the complaint made against you dated the 20th October, 1998 thereby contravening Rule 3(d) of the Professional Conduct Rules 1989.”

3. He was found guilty on each of the three counts and fined a total of K4,300.

4. The appeal was conducted by way of rehearing de novo. The evidence for the appellant consist of the decision of LSC dated 10 August 2004 (Exhibit “A”) and Minutes of decision of LSC dated 10 June 2004 (Exhibit “B”). The evidence for the respondents consists of the affidavit of the Secretary of LSC, Mr Malaki Unagui sworn on 11 January 2007 (Exhibit “C”). There was no oral evidence adduced by either party and no cross-examination involved.

5. There are twelve (12) grounds of appeal set out in the Amended Notice of Appeal filed on 16 March 2007. I set out those grounds in full hereunder:

Ground 1: That the Respondent/s acted ultra vires as it lacked jurisdiction for want of quorum as required under Section 48(2) of the Lawyers Act 1986.

Ground 2: The decision of the Respondents was made in breach of the rules of natural justice in that the Appellant was not provided particulars as requested to enable him to respond to the charges laid against him.

Ground 3: The Respondents breached the principles of natural justice enshrined under Section 53 of the Lawyers Act 1986 when it failed to:

(a) adduce evidence under oath in support of the complaint as stipulated by Section 53(2) of the Lawyers Act 1986

(b) allow the Appellant an opportunity to be heard before a verdict on guilt was made and before any decision on penalty was imposed; and

(c) give reasons for its decision on both guilt and penalty.”

Ground 4: That pursuant to Section 155(4) of the Constitution this Honourable Court dismiss these proceedings before the Respondents on the basis that the Respondent’s failure to serve its decision on the Appellant within the 21 days prescribed under Section 58 of the Lawyers Act 1986 (as amended) has been harsh and oppressive on the Appellant by forfeiting him of the statutory right of appeal.

Ground 5: The Respondents acted ultra vires in their jurisdiction in that the matter the subject of their investigation and decision occurred in and was lawful under the laws of the State of Victoria, Australia.

Ground 6: The Respondents’ decision given on 10th June 2004, was unreasonable and ultra vires in that they could not have reasonably formed the view that the Appellant’s actions as enumerated in “Count 1” and “Count 2” of the decision constituted a prima facie case of professional misconduct, namely that:

(a) “Count 1: that on or about 28th April 1998 you made a sworn Affidavit in which you made statements intended to be used and were used before the Supreme Court of Victoria in a case between Gregory Toop (Plaintiff) and Mobil Oil PNG Ltd, Mobil Oil Australia Ltd and Yakaingi Business Group Inc., (Defendants). It is alleged that in so doing, you engaged in conduct that was unprofessional, prejudicial to the administration of justice and may otherwise bring the legal profession into disrepute thereby contravening Rule 3(a)(iii)(iv) and (v) of the Professional Conduct Rules 1989.

PARTICULARS OF UNPROFESSIONAL CONDUCT alleged are statements deposed to in paragraph 7, 8, 9, 10 and 11 of the said Affidavit.”

(a) “Count 2: It is further alleged that with respect to the statement deposed to in paragraph 9 of the said Affidavit, you reported on what took place at a Confidential Meeting of Lawyers in September 1996 at which the Attorney General was not present and where lawyers only spoke on the condition that absolute confidence would be maintained. It is therefore, alleged that by reporting on a meeting that you did not attend and by naming one of the participants at that meeting, you made use of confidential information that you were not entitled to use thereby contravening Rule 9(1) and (3)(a)(b)(c) of the Professional Conduct Rules 1989.”

Ground 7: The Respondents’ actions and decisions are unfair and oppressive and unconstitutional under Section 41 of the Constitution and that the Respondents have conducted their investigations and made decisions whilst the Ombudsman Commission has conducted and referred to the Public Prosecutor for prosecution under the Leadership Code on the same or substantially the same facts involving the same or substantially similar allegations of misconduct.

Ground 8: The Respondents failed to act fairly and impartially in refusing to adjourn their proceedings until the completion of the process and proceedings before the Public Prosecutor who is deciding whether or not to request the appointment of a Tribunal to determine these matters.

Ground 9: The Respondents’ actions as described in the last two preceding paragraphs have given rise to a reasonable apprehension of bias against the Appellant in circumstances where the Appellant has suffered a substantial miscarriage of justice.

Ground 10: In respect of both Counts 1 and 2 of the decision of the Respondents, the Affidavit sworn by the Appellant on 20th April 1998, referred to therein deposed to factual matters in furtherance of legal proceedings then (and presently) on foot in Supreme Court of Victoria, Australia and in such circumstances, the Appellant enjoyed the protection of an absolute privilege or immunity which is extended by Courts to all communications made in the course of, or incidental to, the processing and furtherance of judicial or quasi judicial proceedings. The Respondents failed to have regard to the fact that such immunity extended to...