David Toll v Kibi Kara (No 1)

• Jurisdiction: Papua New Guinea
• Citation: [1990] PNGLR 71
• Date: 12 February 1990
• Court: National Court
• Year: 1990

Full Title David Toll v Kibi Kara, Greg Lay (No 1) [1990] PNGLR 71

National Court: Hinchliffe J

Judgment Delivered: 12 February 1990

1 Lawyers—ethics—improper conduct—dishonest, unprofessional conduct—dishonesty not a necessary element of improper conduct

2 Proof of improper conduct—standard of proof—opportunity to address on penalty

3 LAWYERS—Misconduct and discipline—"Improper conduct" as a lawyer—What constitutes—Dishonesty not necessary—Lawyers Act 1986.

4 LAWYERS—Misconduct and discipline—Disciplinary proceedings—Improper conduct as lawyer—Standard of proof—Right to be heard on penalty—Lawyers Act 1986, s53(1).

Under the Lawyers Act 1986, s58, the Lawyers Statutory Committee may discipline a lawyer for improper conduct. Having made two findings of improper conduct against a lawyer, the Lawyers Statutory Committee proceeded to impose fines and suspension from practice without giving the lawyer an opportunity to address it on the question of penalty. On appeal,

Held:

(1) "Improper conduct" by a lawyer in pursuit of his profession is what would be reasonably regarded as disgraceful or dishonourable by his fellow lawyers of good repute and competency, and dishonesty is not a necessary element.

In re A Solicitor; Ex parte The Law Society [1912] 1 KB 302 at 311, 312, followed.

(2) The standard of proof of improper conduct by a lawyer is a high standard but slightly short of the criminal standard of proof.

Bhandari v Advocates Committee [1956] 3 All ER 742, followed.

(3) The principles of natural justice apply to disciplinary proceedings by the Lawyers Statutory Committee where penalty is not automatic and the Committee has a discretion in fixing the appropriate penalty. The affected lawyer is entitled to be heard on the question of penalty.

Allinson v General Council of Medical Education and Registration [1894] 1 QB 750, Bhandari v Advocates Committee [1956] 1 WLR 1442; [1956] 3 All ER 742 and In re A Solicitor, Ex parte the Law Society [1912] 1 KB 302 referred to

Appeal

This was an appeal against two decisions of the Lawyers Statutory Committee pursuant to s58 of the Lawyers Act 1986 disputing findings of "improper conduct" as a lawyer and the penalties imposed.

For further proceedings see Toll v Kibi Kara (No 2) [1990] PNGLR 201.

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Hinchliffe J: This is an appeal from two decisions of the Lawyers Statutory Committee pursuant to s58 of the Lawyers Act 1986.

The first decision went as follows:

"1 . . . you, David Toll, have been guilty of improper conduct as a lawyer in that:

you engaged in conduct which was unprofessional and prejudicial to the administration of justice in that you did, on or about 22 June 1989 swear in an Affidavit in National Court proceedings WS1009 of 1989 'That no notice of intention to defend has been filed within 30 days of service of the summons herein as required by O4 r11(b)1' when in fact such notice of intention to defend has been filed.

2. The Committee imposes the following penalties upon...