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

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2001) N2290
• Year: 2001
• Date: 28 September 2001

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] PNGLR 6, Public Employees Association of PNG v Public Services Commission [1983] PNGLR 206 and Sir Julius Chan v Ombudsman Commission [1998] PNGLR 171 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.

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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 Jimmy Maladina, one of the person seriously implicated in the inquiry.

The plaintiff argues that, the second defendant did not have any power to refer his conduct to the first defendant and in any event, the referral came within the prohibition in s13 of the Commissions of Inquiry Act (Ch31) as amended. The defendants on the other hand, argue that the second defendant has a body has been specifically set up to uphold good conduct on the part of lawyers and was entitled to refer the plaintiff's conduct to the first defendant following receipt of a complaint over the plaintiff's conduct from the NPF Inquiry. They also argue that, the protection under s13 of the Commissions of Inquiry Act (Ch31) only relates to admissibility of evidence given at a commission of inquiry and in any case, the prohibition or the admissibility is only in respect of civil and criminal proceedings and does not cover disciplinary proceedings such as the ones that could be conducted by the first defendant. Further, the defendants argued that, only investigations into an alleged misconduct has commenced and no proceedings has yet been initiated to bring this case within the meaning of s13 of Commissions of Inquiry Act (Ch31).

A number of issues are presented for determination in this case. These are as follows:

1. Whether judicial review is available as a remedy when a lawful authority initiates investigations into the conduct of a person or persons which may constitute a possible disciplinary or criminal misconduct?

2. Is the Papua New Guinea Law Society ("the Society") precluded from referring the conduct of a lawyer to the Lawyers Statutory...