Michael Ole v Papua New Guinea Lawyers Statutory Committee and Papua New Guinea Law Society Council (2002) N2308

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 15 November 2001
• Court: National Court
• Citation: (2002) N2308
• Year: 2002
• Judgement Number: N2308

Full Title: Michael Ole v Papua New Guinea Lawyers Statutory Committee and Papua New Guinea Law Society Council (2002) N2308

National Court: Kandakasi J

Judgment Delivered: 15 November 2001

1 LAWYERS—Application by a lawyer for review of decision by the Lawyers Statutory Committee—Application filed outside time limited stipulated by s58 of the Lawyers Act 1986—Complaint and charge leading to the decision and the decision itself allegedly not served on the applicant—No evidence question basis for the decision sought to be review—Whether reasonable explanation provided for delay in challenging the decision promptly upon becoming aware of it—Claiming ignorance of the right of appeal and time limits under the Lawyers Act 1986—Not reasonable explanation—Failure to provide reasonable explanation for delay in coming within time or take steps promptly fatal to application—Application dismissed.

2 ADMINISTRATIVE LAW—Application for leave for judicial review—Application filed after expiring of statutory time limit for lodging appeal against decision sought to be reviewed—Applicant not making clear whether application being made after having lost his right of appeal or his exercising his right of appeal—Onus on applicant to clearly indicate the nature of his application and establish the basis for a grant of the relief sought.

3 LEGISLATION—Lawyers Act 1986—Claim by a lawyer of not being aware of relevant provisions of the Act concerning remedy for a lawyer affected by a decision of the Lawyers Statutory Committee—All lawyers deemed to know the provisions of the Lawyers Act 1986 governing them—Ignorance of the relevant provisions of the Act no excuse—Lawyers Act 1986 s58

4 WORDS AND PHRASES—"Appeal"—means a re–hearing on the merits of the case but on the records appealed from and if successful the Court could make orders that could have been made by the tribunal from which the appeal has come about—Appeal distinct from judicial review—Judicial review is only concerned with the procedural aspects of the decision maker arriving at its decision with the Court having no authority to make a decision on the merits and make orders or decisions that it considers appropriate in the circumstances which could have been made by the tribunal from whom the review arises—s58 Lawyers Act 1986 as consolidated.

5 David Toll v The State (1989) SC378, Avia Aihi v The State (No 1) [1981] PNGLR 81, New Zealand Insurance Co Ltd v Chief Collector of Taxes [1988–89] PNGLR 522, Yooken Pakilin and Alvis Kandai v The Independent State of Papua New Guinea (2001) N2212, Bank of Hawaii (PNG) Ltd v PNGBC (2001) N2095, Investment Promotion Authority v Niugini Scrap Corporation Pty Ltd (2001) N2104, The State v James Gurave Guba (2000) N2020, Gabriel Dusava v The Honourable Madam Justice Teresa Doherty (as she then was) Steven Oli and John Numapo (1999) SC629, NTN Pty Ltd v The Board of the PTC, PTC and Media Niugini [1987] PNGLR 70 and NCDIC v Crusoe Pty Ltd [1993] PNGLR 139 referred to

___________________________

N2308

PAPUA NEW GUINEA

[In the National Court Justice]

OS. 643 OF 2002

BETWEEN:

MICHAEL OLE

Applicant/Applicant

AND:

PAPUA NEW GUINEA LAWYERS

STATUTORY COMMITTEE

First Respondent

AND:

PAPUA NEW GUINEA LAW

SOCIETY COUNCIL

Second Respondent

WAIGANI: KANDAKASI, J.

2001: 6th & 15th November

LAWYERS – Application by a lawyer for review of decision by the Lawyers Statutory Committee – Application filed outside time limited stipulated by s.58 of the Lawyers Act 1986 – Complaint and charge leading to the decision and the decision itself allegedly not served on the applicant – No evidence question basis for the decision sought to be review – Whether reasonable explanation provided for delay in challenging the decision promptly upon becoming aware of it – Claiming ignorance of the right of appeal and time limits under the Lawyers Act – Not reasonable explanation – Failure to provide reasonable explanation for delay in coming within time or take steps promptly fatal to application – Application dismissed.

ADMINISTRATIVE LAW – Application for leave for judicial review – Application filed after expiring of statutory time limit for lodging appeal against decision sought to be reviewed – Applicant not making clear whether application being made after having lost his right of appeal or his exercising his right of appeal – Onus on applicant to clearly indicate the nature of his application and establish the basis for a grant of the relief sought.

LEGISLATION – Lawyers Act 1986 – Claim by a lawyer of not being aware of relevant provisions of the Act concerning remedy for a lawyer affected by a decision of the Lawyers Statutory Committee – All lawyers deemed to know the provisions of the Lawyers Act governing them – Ignorance of the relevant provisions of the Act no excuse – Lawyers Act s. 58

WORDS & PHRASES –“Appeal” – means a re-hearing on the merits of the case but on the records appealed from and if successful the Court could make orders that could have been made by the tribunal from which the appeal has come about – Appeal distinct from judicial review – Judicial review is only concerned with the procedural aspects of the decision maker arriving at its decision with the Court having no authority to make a decision on the merits and make orders or decisions that it considers appropriate in the circumstances which could have been made by the tribunal from whom the review arises – Section 58 Lawyers Act 1986 as consolidated.

Cases Cited:

David Toll v. The State (Unreported Supreme Court Judgement delivered on 30/11/89) SC 378.

Avia Aihi v. The State [1981] PNGLR 81.

New Zealand Insurance Co. Ltd v. Chief Collector of Taxes [1988-89] PNGLR 522.

Yooken Pakilin & Alvis Kandai v. The State (Unreported judgement delivered on 22/10/01) N2212.

Bank of Hawaii (PNG) Ltd v. PNGBC (unreported judgement delivered on 08/06/01) N2095.

Investment Promotion Authority v. Niugini Scrap Corporation Pty Ltd (Unreported judgement delivered 03/08/01) N2104.

The State v. James Gurave Guba (Unreported judgement delivered on 19/12/00) N2020.

Gabriel Dusava v. Honorable Madam Justice Theresa Doherty (as she then was), Steven Oli & John Numapo (Unreported Judgement delivered 01/10/99) SC 629.

NTN Pty Ltd v. Post & Telecommunication [1987] PNGLR 70.

NCDIC v. Crusoe Pty Ltd [1993] PNGLR 139.

Counsel:

Mr. J. Kil Applicant/Applicant

Ex parte the Respondents

15th November 2002

KANDAKASI, J: This is an application for leave for judicial review by the applicant who was a lawyer admitted to practice in Papua New Guinea until he was found guilty of improper conduct by the Papua New Guinea Lawyers Statutory Committee (“the Committee”) on 21st February 2002 and the Committee resolved to make an application to the National Court to remove the applicant’s name from the lawyers roll. The improper conduct was an alleged bribery of a District Court magistrate resulting in a dismissal of a criminal charge against the applicant’s then Governor, Mr. Makmop based on two letters written by the applicant.

Although the proceedings have been served on the respondents, they have not appeared and presented any arguments or material in Court against the application. This is understandable because of the requirements and the practice that all applications for leave for judicial review proceed ex parte, except for any assistance the Court could get only on a point of law. Therefore, I will not draw any adverse inference against the lack of any appearance and participation in his proceedings up to this stage by the respondents.

The applicant claims that he was not served with the complaint and the charges that eventually lead to the decision against him. He also claims that the decision of the Committee was not served on him. He only discovered the existence of the decision when he was refused a restricted practicing certificate when he applied for one in April 2002. Hence, he claims that, he was denied his natural justice in that, he was not given an opportunity to be heard on the complaint and charge against him as well as on the question of penalty before the Committee arrived at its decision. He therefore wrote to the Committee on 12th April 2002, appealing against the decision.

In the course of the hearing, I raised with counsel for the applicant as to whether I have any power or authority to consider the application, which has been filed well outside the 21 day period, in terms of s.58 of the Lawyers Act 1986 as amended. Mr....