Simon Ketan v Lawyers Statutory Committee and Papua New Guinea Law Society (2001) N2290

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 28 September 2001
• Court: National Court
• Citation: (2001) N2290
• Year: 2001
• Judgement Number: N2290

Full Title: Simon Ketan v Lawyers Statutory Committee and Papua New Guinea Law Society (2001) N2290

National Court: Kandakasi J

Judgment Delivered: 28 September 2001

1 ADMINISTRATIVE LAW—Application for leave for review of decision to refer alleged misconduct by lawyer and injunctive order in the interim—Judicial review not available as a remedy as no rights or interest yet affected—In appropriate to review and injunct investigations into disciplinary misconduct or even criminal conducts.

2 LAWYERS—Powers and functions of Law Society and Lawyers Statutory Committee—Law Society has power to refer any misconduct of lawyers to the Lawyers Statutory Committee for appropriate investigation and action—Such investigation cannot be injuncted nor can it be the subject of a review until it is completed and a decision has been made as to any further step to be taken—Lawyers Act 1986 s45.

3 COMMISSION OF INQUIRY—Evidence or disclosures made at Commission of Inquiry—Inadmissible in any criminal or civil proceedings but not administrative or disciplinary proceedings and does not cover any investigations to establish any criminal or professional misconduct—Commissions of Inquiry Act (Ch31) s13.

4 WORDS AND PHRASES—"Any civil or criminal proceedings"—Means proceedings before a court as opposed to a tribunal or administrative or disciplinary proceedings—Commissions of Inquiry Act (Ch31) s13.

5 Re Alleged Misconduct in Office by Honourable Peter Ipu Peipul: Peipul v Sheehan (2001) N2096, Rimbink Pato v Anthony Manjin (1999) SC622, Public Employees Association of PNG v Public Services Commission [1983] PNGLR 206 and Sir Julius Chan v Ombudsman Commission (1998) N1738 referred to

Facts:

The PNG Law Society ("the Society") upon receipt of a complaint of misconduct by the plaintiff before it from the Commission of Inquiry into the National Provident Fund in relation to a summons for production of certain of the plaintiff's files referred him to the Lawyers Statutory Committee. The Committee then wrote to the plaintiff and asked for his response. The plaintiff objected on two grounds. First, the Society lacked the power to make the referral and secondly s13 of the Commissions of Inquiry Act (Ch31) prohibited use of statements or disclosures made to a Commissioner or a Commission of Inquiry.

Held

1. Judicial review is not an available remedy where the decision sought to be reviewed concerns conduct of investigations to ascertain whether there is a case of disciplinary or criminal misconduct before proceeding with any formal charges.

2. The PNG Law Society has the power to refer any misconduct of lawyers to the Lawyers Statutory Committee for appropriate action because:

(i) of its statutory duty to ensure that the professional integrity of lawyers are maintained; and

(i) the Statutory Committee is not restricted as to whom it can receive complaints of misconduct by lawyers.

3. S13 of the Commissions of Inquiry Act (Ch31) as amended only applies:

(a) criminal and civil proceedings and not any disciplinary or administrative proceedings; and

(b) where the admissibility of any statement or disclosure made to a Commissioner or Commission of Inquiry arises.

4. For these reasons the proceedings are dismissed with costs against the plaintiff.

___________________________

N2290

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS 488 of 2001

BETWEEN:

SIMON KETAN

Plaintiff

AND

LAWYERS STATUTORY COMMITTEE

First Defendant

AND

PAPUA NEW GUINEA LAW SOCIETY

Second Defendant

WAIGANI : Kandakasi J

2001 : 23rd August

28th September

ADMINISTRATIVE LAW – Application for leave for review of decision to refer alleged misconduct by lawyer and injunctive order in the interim – Judicial review not available as a remedy as no rights or interest yet affected – In appropriate to review and injunct investigations into disciplinary misconduct or even criminal conducts.

LAWYERS – Powers and functions of Law Society and Lawyers Statutory Committee – Law Society has power to refer any misconduct of lawyers to the Lawyers Statutory Committee for appropriate investigation and action – Such investigations can not be injuncted nor can it be the subject of a review until it is completed and a decision has been made as to any further step to be taken – Lawyers Act s.45.

COMMISSION OF INQUIRY – Evidence or disclosures made at Commission of Inquiry – In admissible in any criminal or civil proceedings but not a administrative or disciplinary proceedings and does not cover any investigations to establish any criminal or professional misconduct – Commissions of Inquiry Act s.13.

WORDS & PHRASES – “Any civil or criminal proceedings” – Means proceedings before a court as opposed to a tribunal or administrative or disciplinary proceedings – Commissions of Inquiry Act s.13.

Facts

The PNG Law Society (“the Society”) upon receipt of a complaint of misconduct by the plaintiff before it from the Commission of Inquiry into the National Provident Fund in relation to a summons for production of certain of the plaintiff’s files referred him to the Lawyers Statutory Committee. The Committee then wrote to the plaintiff and asked for his response. The plaintiff objected on two grounds. First, the Society lacked the power to make the referral and secondly s. 13 of the Commissions of Inquiry Act prohibited use of statements or disclosures made to a Commissioner or a Commission of Inquiry.

Held

1. Judicial review is not an available remedy where the decision sought to be reviewed concerns conduct of investigations to ascertain whether there is a case of disciplinary or criminal misconduct before proceeding with any formal charges.

2. The PNG Law Society has the power to refer any misconduct of lawyers to the Lawyers Statutory Committee for appropriate action because:

(i) of its statutory duty to ensure that the professional integrity of lawyers are maintained; and

(i) the Statutory Committee is not restricted as to whom it can receive complaints of misconduct by lawyers.

1. Section 13 of the Commission of Inquiry Act as amended only applies:

(i) criminal and civil proceedings and not any disciplinary or administrative proceedings; and

(i) where the admissibility of any statement or disclosure made to a Commissioner or Commission of Inquiry arises.

1. For these reasons the proceedings are dismissed with costs against the plaintiff.

Cases Cited:

Peter Ipu Peipul v. Sheehan J, Mr. Ori Karapo and Iova Geita (Constitution the Leadership Tribunal) & Ors N2096.

Rimbink Pato v. Anthony Majin & others SC622.

Public Employee Association of Papua New Guinea v. Public Service Commission SC 253.

Sir Julius Chan v. Ombudsman Commission N1738.

Counsels:

Mr. Coady, for the Plaintiff

Mr. Elemi, for the Defendants

28th September 2001

JUDGEMENT

KANDAKASI J: This is an application for leave for judicial review of a referral by the second defendant to the first defendant of an alleged misconduct by the plaintiff as a lawyer. At the same time, the plaintiff applies for interim restraining orders pending review of the referral. The referral by the first defendant concerned conduct by the plaintiff as a lawyer in relation to a summons for him to produce certain files by the Commission of Inquiry into the National Provident Fund (“NPF Inquiry”). The allegation is that, the plaintiff instead of producing the files in their entirety, he replicated the files and removed documents referring to Mr....