In The Matter of an Appeal under the Lawyers Act 1986, from the Decision of the Chairman and his Members of the Lawyers Statutory Committee and In The Matter Following an Inquiry by the Lawyers Statutory Committee Under Part V of the Lawyers Act 1986, Into a Complaint by Warren Bartlett & Fidelis Kaogo (Sogeri Enterprises) Kevin Stevens Latu v Kerenga Kua as the Chairman of the Lawyers Statutory Committee and Melchior Togolo as a Member and David Manoka as a Member (2007) N3151

• Jurisdiction: Papua New Guinea
• Judge: Lay J
• Judgment Date: 23 February 2007
• Court: National Court
• Citation: (2007) N3151
• Docket Number: Appeal No 356 of 2002
• Year: 2007
• Judgement Number: N3151

Full Title: Appeal No 356 of 2002; In The Matter of an Appeal under the Lawyers Act 1986, from the Decision of the Chairman and his Members of the Lawyers Statutory Committee and In The Matter Following an Inquiry by the Lawyers Statutory Committee Under Part V of the Lawyers Act 1986, Into a Complaint by Warren Bartlett & Fidelis Kaogo (Sogeri Enterprises) Kevin Stevens Latu v Kerenga Kua as the Chairman of the Lawyers Statutory Committee and Melchior Togolo as a Member and David Manoka as a Member (2007) N3151

National Court: Lay J

Judgment Delivered: 23 February 2007

N3151

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

APPEAL NO. 356 OF 2002

IN THE MATTER OF AN APPEAL UNDER THE LAWYERS ACT 1986, FROM THE DECISION OF THE CHAIRMAN AND HIS MEMBERS OF THE LAWYERS STATUTORY COMMITTEE

AND

IN THE MATTER FOLLOWING AN INQUIRY BY THE LAWYERS STATUTORY COMMITTEE UNDER PART V OF THE LAWYERS ACT 1986, INTO A COMPLAINT BY WARREN BARTLETT & FIDELIS KAOGO (SOGERI ENTERPRISES)

BETWEEN

KEVIN STEVENS LATU

Appellant

AND

KERENGA KUA

as the Chairman of the Lawyers Statutory Committee and Melchior Togolo as a Member and David Manoka as a Member

Respondents

Kokopo: Lay J

2007: 16 and 23 February

LAWYERS ACT – s.58 - Lawyers Statutory Committee - Appeal from -Application to amend notice of appeal - Application to add new ground to notice of appeal.

Facts

The appellant filed an appeal in September 2002 from a decision of the Lawyers Statutory Committee and obtained a stay of the orders made with a direction that the appeal be prosecuted in the November 2002 sittings. Between September 2002 and June 2006 the appellant made four applications to the respondent for a copy of the record of proceedings. He obtained the record of proceedings in June 2006. By motion filed on December 2006 he sought to amend or add new grounds to the notice of appeal, namely that (1) the proceedings were not based on sworn evidence as required by s.56(1) of the Lawyers Act and (2) that the respondent had not observed natural justice by giving reasons for its decision in breach of s.32(1) (sic-s.53(1) probably intended) of the Lawyers Act.

Held

The rule promulgated by Injia DCJ in Emily Dirua v Lawyers Statutory Committee N2905 would be followed to the effect that the procedure in the District Courts Act for appeals shall be applied to appeals under the Lawyers Act from decisions of the Statutory Committee, amended to note the appeal period is 21 days. Amendment in terms of (1) above would be allowed pursuant to s.232 of the District Courts Act as it amplified the facts recited in ground “a” of the appeal. Amendment in terms of (2) above would not be allowed because it was a new ground. Extension of time under District Courts Act s.231 for the addition of that ground would not be allowed because the explanation for the delay in bringing the application was unsatisfactory and the appellant had not been diligent. Directions given to expedite hearing of the appeal.

Cases Cited

Emily Dirua v Lawyers Statutory Committee (2005) N2905

Samson Dacany v Noah Taia N2316

Seravo Jack v Jack Bahafo (2001) N2078.

Counsel

D. Lidgett, for the appellant

M. Kivu, for the respondent

23 February, 2007

1. LAY J.: It was alleged by the respondent that the appellant was engaged to act in a conveyancing matter on behalf of a purchaser who caused the purchase price to be paid into the appellant's trust account. Before the transaction was complete and before the vendor was entitled to the purchase price, the appellant drew part of the money from the trust account held on behalf of the purchaser to pay an outstanding account due to him from the vendor. On the complaint of his client purchaser the appellant was charged by the respondent which subsequently made a finding of improper conduct as a lawyer and by way of penalty ordered that the appellant be suspended from practice for four years, pay compensation to his client in the sum of K 18,477.37, pay a fine of K1000 and costs of K300.

2. The appellant filed a notice of appeal on 19 September 2002 against the finding of the respondent pursuant to the provisions of the Lawyers Act Section 58. He obtained a stay of the respondent’s orders. The Court ordered that the appeal be heard in the November 2002 sittings. The grounds of the appeal are:

"(a) The finding of improper conduct was not supported by the statement of facts submitted in a Affidavit to the Committee Chairman and his Members.

(b) The penalty in 2(ii) which was imposed following the inquiry is harsh and excessive in the circumstances.

(C.) Such further or other grounds as the Appellant may identify in the course of pursuing this Appeal and upon receipt of the file depositions from the Lawyers Statutory Committee comprising of the Respondents."

3. By a notice of motion filed 12 December 2006 the appellant now seeks to amend, or alternatively, add, grounds of appeal, namely:

"(I) The Respondents have breached Section 53 (2) of the Lawyers Act 1986 by not relying on sworn evidence to find the Appellant guilty of improper conduct.

(II) The Respondents have breached section 32 (1)(sic-s53(1) probably intended) of the Lawyers Act 1986 and section 59 of the Constitution by failing to observe the principles of natural justice when they did not give their reasons for their decision on both guilt and penalty and communicate the same to the Appellant.

4. In support of the notice of motion the appellant says that:

1. the Respondent's decision reached him on 22 September 2002

2. on an unknown date in 2002 the appellant spoke to the then Secretary for the Lawyers Statutory committee and requested the depositions;

3. in December 2002 the appellant wrote to the Secretary of the PNG Law Society requested certified copies of the transcripts;

4. the appellant spoke to the then Secretary of the Lawyers Statutory committee on 28 June 2003 when the Secretary told him that he would rectify the unreadable documents forwarded by facsimile;

5. in March 2006 the appellant asked the Assistant Registrar to list the appeal in the April call over. The matter was not listed in April.

6. In June 2006 the appellant personally went to Port Moresby and requested the documents from the then Secretary of the respondent and the appellant's agent was then able to uplift the depositions which were filed with the appellant's other affidavits sworn 12 December 2006.

Submissions

5. The appellant argues that he has explained the delay, the delay was caused by the respondent and the amendments which he wishes to make are an amplification of existing grounds of the appeal, or alternatively, if they are new grounds then those grounds were not apparent until the depositions were received and the delay in receiving the depositions was caused by the respondents. The appellant seeks additional time to file those additional grounds. The respondent argued that the District Courts Act is of no relevance, Martha Kokiva-Age v Lawyers Statutory Committee N2835 should be distinguished because in that case the facts were contested, whereas in this case there was no contest on the facts. The appellant admitted the facts therefore there was no requirement for evidence.

The Law

6. The Lawyers Act Section 58 provides a right of appeal and neither the Act nor any regulations make any provision for the form of the notice of appeal or any other procedural matter with respect to the conduct of the appeal, apart from the fact that the appeal must be instituted within 21 days of the decision. That lack of procedural provision was noted by Injia DCJ in the case of Emily Dirua v Lawyers Statutory Committee (2005) N2905 and to cure that vacuum His Honour said:

" 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 Court 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."

7. I endorse and adopt the rule promulgated by his Honour; with the exception of the reference to 28 days which, with respect, I say should be 21 days.

8. Council for the appellant has drawn to my attention the decision of Kandakasi J. in the case of Samson Dacany v Noah Taia N2316 where his Honour analyses s.231 and s.232 and other sections of the District Courts Act.

District Court Act s.232 is in the following terms:

“232. Amendment of Notice of Appeal

1. Subject to subsection (2), an appeal shall not be defeated merely by reason of a defect, whether of substance or form, in a notice or statement of the grounds of appeal, but if on the hearing the National Court is of opinion that an objection raised to the notice or statement is valid the National Court may cause the notice or statement to be amended.

2. If a notice or statement of grounds of appeal appears to have –

(a) been misleading or

(b) occasioned expense; or

(c) prejudiced the respondent;

an amendment shall be allowed only on such terms as to costs or postponement, or both, as the National Court thinks just.”

9. His...