Jack Livinai Patterson v Lawyers Statutory Committee and Papua New Guinea Law Society (2005) SC822

• Jurisdiction: Papua New Guinea
• Judge: Sawong J, Kirriwom J, Lenalia J
• Judgment Date: 02 December 2005
• Court: Supreme Court
• Citation: (2005) SC822
• Docket Number: SCA No 16 of 2004
• Year: 2005
• Judgement Number: SC822

Full Title: SCA No 16 of 2004; Jack Livinai Patterson v Lawyers Statutory Committee and Papua New Guinea Law Society (2005) SC822

Supreme Court: Sawong J, Kirriwom J, Lenalia J

Judgment Delivered: 2 December 2005

SC822

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA. NO. 16 OF 2004

BETWEEN:

JACK LIVINAI PATTERSON

-Appellant-

AND:

LAWYERS STATUTORY COMMITTEE

-First Respondent-

AND:

PAPUA NEW GUINEA LAW SOCIETY

-Second Respondent-

WAIGANI : Sawong, Kirriwom & Lenalia, JJ

2005: 1st September & ….December

PRACTICE AND PROCEDURE – Appeal to Supreme Court – Appeal against Interlocutory Ruling by National Court – Dismissal of Appeal pending before National Court for Non-Compliance with Orders for Discovery – Whether Judge exercised his discretion fairly and properly – Onus on the appellant to demonstrate error on the part of the court.

PRACTICE AND PROCEDURE – Appeal to Supreme Court – Incompetent – Appeal without Notice of Appeal – Notice of Application for leave to Appeal treated as Notice of Appeal – No proper grounds for appeal – Appeal incompetent.

PRACTICE AND PROCEDURE – Appeal to Supreme Court - Failure to appeal an order – Duty to Obey Court order - No right to challenge an order not appealed on another appeal

CONTEMPT – Court order – Duty to obey court order unless set aside – Deliberate failure to obey court order or direction may amount to contempt.

BRIEF FACTS

This is an appeal to the Supreme Court by the appellant whose appeal to the National Court from a decision of the Lawyers Statutory Committee was dismissed by the National Court for failing to obey court directions issued for facilitation of the hearing of his appeal.

As the decision appealed is from an interlocutory ruling of the court, this appeal comes with leave granted by Salika, J and stay orders given by Hinchliffe, J, both sitting as single Supreme Court judges.

The issue in this appeal is whether the motion judge erred in dismissing the appeal?

HELD: (1) The appellant has not demonstrated where the motion judge had erred in exercising his discretion to dismiss the appeal.

(2) The appellant’s failure to comply with the court directions is capable of amounting to deliberate disregard and authority of the court which is punishable by contempt.

(3) The appeal is dismissed as being incompetent in that it is not properly registered before the Supreme Court.

CASES AND AUTHORITIES CITED AND REFERRED TO:

1. Henzy Yakham and the National Newspaper v Stuart and Carol Merriam [1997] Unreported Supreme Court decision SC53

2. Gary McHardy –v- Prosec Security and Communication Limited trading as Protect Security [2000] SC646

3. Hadkinson v Hadkinson [1952] 2 All E. R. 567

4. Yap –v- Tan, B&T Engineering P/L & Ors [1987] PNGLR 227

5. David Toll v Kibi Kara & Ors (No.2) [1990] PNGLR 201.

Texts

6. JRS Forbes, Disciplinary Tribunals, Second Edition, The Federation Press 1996

COUNSEL:

Z. Gelu, for the Appellant

C. Makail, for the Respondents

2nd December, 2005

BY THE COURT: This is an appeal by Jack Livinai Patterson (‘the appellant’), a lawyer, against an interlocutory judgment and decision of the National Court dated 11th February, 2004. On that date the National Court dismissed the appellant’s appeal which was pending before it from a decision and findings of the Lawyers Statutory Committee (LSC), a disciplinary body created under s. 48 of the Lawyers Act 1986 (the Act) that receives and hears complaints against lawyers and deals with them under the provisions of that Act and its Regulations. The appellant was dealt with by this Committee following a complaint of improper conduct against him by a former client pursuant to s. 52 of the Act and amongst other orders made by the Committee, suspended him from practicing as a lawyer on 28 January, 2003 pending an application to the Court for his dismissal. His suspension order and the application for dismissal are both subject of a stay order pending the hearing of his appeal.

Background

It is appropriate to understand the background to the case clearly in order to appreciate the various stages in which this matter was dealt with and how it came to be where it is now.

The appellant pursues this appeal following extension of time of 14 days granted to him on 29 July 2003 to lodge his appeal against the decision of the Committee as he was already well and truly out of time in the proceeding entitled O.S. 357 of 2003. At the same time he obtained a stay order against the enforcement of the LSC decision of 28 January, 2003 pending hearing of the appeal. See page 173 of the Appeal Book. It is not clear who granted these orders.

The appellant is a lawyer practicing on his own account under the firm name of Patterson Lawyers. As an unrestricted lawyer for the purpose of the Act, he was able to collect, receive and hold clients monies in trust for and on behalf of clients who paid those monies and to apply those monies for the purpose of that trust or as instructed or directed by the client.

On 22 July 1999 one Paul Aisa deposited K497,500.00 into Patterson Lawyers trust account for various work to be undertaken by the appellant’s law firm. There is no dispute about this transaction. In his reply to the Notice of Inquiry forwarded to him by the Committee, the appellant submitted that the bulk of the money received was paid into shelf companies as Mr Aisa was avoiding garnishee proceedings against him and also the National Gaming Board was after him for those monies.

It was alleged that over a time the appellant applied substantial portion of the client’s money for his own benefit and without clear and precise authority from Mr. Aisa, thereby resulting in the termination of client-solicitor relationship.

On 4th June, 2001, Paul Aisa wrote to the Lawyers Statutory Committee alleging misappropriation of his money in the appellant’s trust account by the appellant without his authority and failure to refund the balance of his funds held by the appellant. In a 14-page letter of complaint (Appeal Book pages 7-20) addressed to the Chairman, Lawyers Statutory Committee, the complainant sets out the history of the case culminating in the severance of client-solicitor relationship and the engagement of a another law firm to commence proceedings against the appellant.

On 18 January, 2003 the Committee met and deliberated on the complaint and found as follows:

· Count 1 – That between 1st July 1999, and 30th June 2001, you accepted a cheques in the sum of K497,5000 made payable to your client one Paul Aisa for safe keeping in your Trust Account and in so doing, your conduct was and is improper;

Particulars

i. In August 1999 when instructed to withdraw K415,500.00 to pay K265,000 to Park Lane Real Estate for the purchase of a house in town, to pay K1000.00 West Central Holdings, to deposit K50,000 to Paul and Millie’s account and K32,000 to remain in the Trust Account to cover legal fees, your complied with only instructions and failed to comply with the other instructions;

ii. In December 1999 when requested to withdraw the balance of the funds, you advised your client that you had transferred to funds to one of your self account and that at no time did your client give you any written authority to transfer such monies out of your Trust Account;

iii. In February 2000, you were instructed to release the Trust Funds and you made empty assurances to your client to have them picked up from your office but this never eventuated and thereby, you willfully lied to your client;

iv. You gave an under taking to make regular fortnightly payments which never materialized;

v. In October 2000 you provided an invoice of K95,000 being your Bill of Costs which you knew or ought to have known was unjustifiably excessive and unreasonable;

vi. To date your Trust Account is still withholding K107,500 that rightfully belong to your said client;

Thereby contravening Rule 3(a) (iii)(iv) and (v) of the Professional Conduct Rules 1989.

· Count 2 – Between 1st July 1999 and 30 July 2001, you failed to treat your client fairly and in good faith, giving due regard to the dependence by your said client upon your special training and experience and the high degree of trust which your client placed in you thereby contravening Rule 8(a) and (b) of the Professional Conduct Rules 1989.

· Count 3 – Between 1st October 2000 and 31st October 2000 you rendered a bill of Cost to the amount of K95,000 which you knew or ought to have known was unreasonable and unjustifiable by way of costs for your services having regard to the complexity of the matter, the time and skill involved thereby contravening Rule 18(5) of the Professional Conduct Rules 1989.

· Count 4 – Between 1st December 1999 and 31st December 1999, you transferred moneys from your clients Trust Account to one of your Self Company’s account without the consent, permission or written authority of your client thereby, breaching Section 4(1)(a) – (i) of the Lawyers (Trust Account) Regulation 1990.

The Reasons for Decision by LSC showed that the appellant was found Guilty of Counts 1, 3 and 4 and Not Guilty of Count 2.

The Committee imposed the following penalties:

· To refund Paul Aisa in the sum of K101,700.00 at 8% interest per annum effective from 27th July 1999 within 30 days to the date of final payment.

· The Committee will make an application in the...