SCR No 9 of 1989; David Toll v The State

• Jurisdiction: Papua New Guinea
• Judge: Konilio J:
• Judgment Date: 29 December 1989
• Court: Supreme Court
• Judgement Number: SC378

Supreme Court: Bredmeyer J, Woods J, Konilio J

Judgment Delivered: 29 December 1989

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SC REVIEW 9 OF 1989

DAVID TOLL

APPLICANT

AND

THE STATE

RESPONDENT

Waigani

Bredmeyer Woods Konilio JJ

30 November 1989

29 December 1989

Counsel

J Patterson, for the applicant.

J Baker, amicus curiae.

Cur. adv. vult.

29 December 1989

BREDMEYER J: This is an application for review under s 155 (2) (b) of the Constitution which provides that the Supreme Court "has an inherent power to review all judicial acts of the National Court". The applicant is a lawyer employed by Henao, Cunningham, Priestley, and on Friday 23 June 1989 he appeared before Brunton AJ on a civil matter WS 1009 of 1988. Mr Toll appeared for the plaintiff and moved for a default judgment on his own affidavit sworn 22nd June, and stating, inter alia:

"that no notice of intention to defend had been filed within 30 days of service of the summons herein as required by Order 4, Rule 11 (b) (1) ".

The judge checked through the file and found that a notice of intention to defend had indeed been filed on 14 March 1989 within 30 days of service of the writ of summons. The judge pointed out this fault to Mr Toll and ordered Mr Toll not to appear before him again. The exact words used are somewhat in dispute. According to the note made in the judge's notebook "counsel swore to a fact without checking — an irresponsible act — I will not listen to this counsel again". According to the Associate's endorsement on the back of the file:

"Mr Toll was ordered out of court and further ordered not to appear before Judge Brunton. Matter adjourned until 30 June 1989."

Mr Toll has sworn an affidavit for the purposes of this application in which he states that he apologized for the error in his affidavit and explained to the judge that he had been unable to check the court file at the time of swearing the affidavit due to the fact that the file was out of the Court Registry being in his Honour's possession at that time, one day prior to Motions Day on 23 June 1989. Two other lawyers who were in court at the time have deposed to their recollection of what was said. Mr Uyassi said:

"His Honour went on to state to Mr Toll that he had sworn a false affidavit. Mr Toll then attempted to apologize to his Honour and to explain the circumstances of his swearing that affidavit but his Honour refused to allow him to proceed. His Honour then charged Mr Toll with swearing a false affidavit and ordered that Mr Toll was never to appear before him again".

Mr Habuka has deposed:

"After Mr Toll made his initial submission to the Court his Honour, Mr Acting Justice Brunton, stated that Mr Toll had sworn a false affidavit. Mr Toll apologized to his Honour and then attempted to make an explanation to his Honour in relation to the alleged swearing of the false affidavit but his Honour interrupted and refused to hear the same. His Honour made a number of statements in relation to the aforesaid allegedly false affidavit of Mr Toll and then ordered that Mr Toll should never appear in his Honour's court again."

Five days later, on 28 June 1989, Brunton AJ wrote to the Chairperson of the Lawyers Statutory Committee, established under the Lawyers Act 1986, and referred Mr Toll's conduct to the Committee for its attention. After describing the untrue statement in the affidavit the trial judge said:

"At best Mr Toll appears to have neglected to check the National Court file. At worst he may have attempted to deceive the Court.

Had I not had the presence of mind to check the file myself I could well have relied on Mr Toll's affidavit and struck out the defence of the defendant in the matter.

I have told Mr Toll that he is not to appear before me until the matter is resolved by your Committee."

The applicant said that he was ordered "never again to appear" before the judge, and the affidavits quoted, the judge's brief note at time and the Associate's endorsement on the file, support that view. On the other hand, the trial judge's letter of 28th June, says that Mr Toll is not to appear before him until the matter is resolved by the Lawyers Statutory Committee. The dispute over the exact terms of the order could have been resolved by looking at the formal order but no formal order was extracted. In that event I consider that his Honour has varied his spoken order, and had power to do so, and thus the order now before us for review is one barring Mr Toll from appearing before him until such time as the Lawyers Statutory Committee has considered and decided upon the punishment (if any). The Committee did meet and considered the trial judge's complaint and it decided to fine Mr Toll K500 and suspend him from practice for 21 days. That decision is under appeal before Hinchliffe J; it has been argued, he hs reserved, and his decision will be given after ours.

THE APPLICATION FOR REVIEW

The judge's order barring Mr Toll from appearing before him was given on 23rd June. This application for review was filed on 10th November.

The Supreme Court's review jurisdiction under s 155 (2) (b) of the Constitution was first defined in three criminal cases: Avia Aihi v The State [1981] PNGLR 81.

Avia Aihi v The State No 2 [1982] PNGLR 44, and Danny Sunu and Others v The State [1984] PNGLR 305. It has been further defined, in relation to civil cases, in The State v Colbert (Unreported Supreme Court judgment SC 352 of 5 August 1988) and New Zealand Insurance Co Ltd v Chief Collector of Taxes (Unreported Supreme Court judgment SC 376 of 14 December 1989). It is clear from those first three-named cases that this review power will be exercised "only in exceptional circumstances where some substantial injustice is manifest, or the case is of some special gravity", or that there are "cogent and convincing reasons and exceptional circumstances". It has further been established that in determining whether or not there are "cogent and convincing reasons" the merits of the case to be argued must form part of those cogent and convincing reasons. The background to these cases is that under ss 17 and 29 of the Supreme Court Act (Ch No 37) a notice of appeal must be filed within 40 days after the date of the convicion or order or within such further period as may be extended by the Supreme Court on application made within those 40 days. In all these cases the application for review was made because the applicant got out of time to appeal. In the criminal cases the Supreme Court has shown special solicitude for an applicant in custody and without ready access to a suitable lawyer. Thus in the first Avia Aihi case the applicant who was a convicted woman serving a life sentence was given leave to review her sentence 13 months after the appeal period had expired. Where the liberty of the subject is involved, damages against a lawyer for professional negligence are a small consolation if the prisoner is still in gaol. Danny Sunu v The State [1984] PNGLR 305 was an application for constitutional review in a criminal case, but there, Pratt and McDermott JJ said at p 308 that the situation would be different in a civil case:

"Consequently, had this Court been concerned with advice given in civil proceedings, there might well be no justification whatsoever for granting a review as another remedy is available to the party wronged".

At p 312 Woods J said:

"The applicants failed to appeal. .... A mistake by a legal adviser is not in itself a convincing reason for a court to exercise a discretion. In civil proceedings, the applicants would have a remedy in damages against the legal adviser".

In Colbert's case the trial judge had awarded a large sum of damages against the State. The State wanted to appeal and endeavoured to file its appeal notice on the fortieth day but a few minutes after the...