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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS 488 of 2001
SIMON KETAN
Plaintiff
LAWYERS STATUTORY COMMITTEE
First Defendant
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:
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 SC253.
Sir Julius Chan v. Ombudsman Commission N1738.
Counsel:
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. 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 section 13 of the Commissions of Inquiry Act (Chp. 31) 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 section 13 of the Commission of Inquiry Act 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 s. 13 of Commission of Inquiry Act.
A number of issues are presented for determination in this case. These are as follows:
Relevant Facts
The relevant facts are quite straightforward and are not in dispute. The plaintiff was summonsed to appear as a witness before the NPF Inquiry and produce:
(i) all and any of his files, records and documents relating to the sale to Trinco No. 6 Limited between 1st June 1999 and the date of the summons being the 8th of May 2000 of any part of the issued capital of Waigani City Propriety Limited (formerly Waim No. 92 Pty Limited);
(ii) copies of all his trust and office accounts receipts, trust and office account bank deposit records, trust and office account cheque butts and trust and office accounts ledger records and any other records regarding any monies received by him or monies by him in respect of the transaction referred to one above.
Mr. Ketan purported to produce the original of the files he was required to produce by providing a replica of the files but excluding the documents referring to Mr. Jimmy Maladina. The NPF Inquiry considered that unprofessional conduct and wrote to the second defendant on the 19th of March 2001, for appropriate action under the Lawyers Act 1986 and the Professional Conduct Rules. On the 20th of March 2001, the council of the Society considered the complaint from the NPF Inquiry and decided to refer that to the Committee as a complaint and that was done on the 20th of April 2001.
On the 23rd of May 2001, the Committee wrote to Mr. Ketan putting the nature of the complaint to him and asked him to respond within 21 days.
On the 21st of June 2001, the committee received a letter from Mr. Ketan essentially requesting an extension of time to respond. By letter dated 2nd July 2001, the committee wrote to Mr. Ketan granting him his request.
By letter date 6th July 2001, Mr. Ketan responded to the complaint against him by requesting advise as to the mode of response required of him having regard to provision of s.3 (d) of the Professional Conduct Rules and questioned the validity of the manner in which the complaint against him was brought to the Committee. Further he relied on s.13 of the Commission of Inquiry Act and indicated that, he will take appropriate proceedings to test the legality of the complaint and the meaning and effect of s.13 of the Commission of Inquiry Act.
In line with the position he took in his response to the letter from the Committee, the plaintiff issued these proceedings on the 9th of August 2001 and I heard his application on the 23rd of August 2001and reserved a ruling on that. Here is my ruling.
Whether judicial review appropriate remedy
It is well accepted that judicial review is about the scrutiny of administrative decisions particularly, the process of arriving at a decision and procedural fairness. Given that, the true nature of an application for leave for judicial review is as I said in Peter Ipu Peipul v. Sheehan J, Mr. Ori Karapo and Iova Geita (Constitution the Leadership Tribunal) & Ors (unreported judgement 25/5/01) N2096 at page 8:
"The objective, as can be seen from the authorities such as those mentioned above, for the requirement for leave, is to provide the courts with the opportunity to screen and allow cases that merit judicial review. That is to safeguard against the courts being flooded with unmeritorious cases. This process ensures that, busy bodies with misguided or trivial complaints of administrative error do not waste the courts time. It also helps to remove uncertainties in the public offices and authorities has to, whether they could safely proceed with an administrative action while judicial review of a decision is pending, even though misconceived.
Broadly, the matter relevant for consideration in the exercise of the courts discretion in determining an application for leave for judicial review, fall under a number of legal principles. These are locus standi, the decision sought to be reviewed has been made by a public body or authority, an arguable case on the merits, exhaustion of other remedies and making the application promptly.
I now venture to add that a court considering whether or not to grant leave for judicial review should consider whether the case or the subject is one in which the courts can enter into to grant leave and then review the alleged decision. That in my view falls within the context of the well accepted principle of an applicant for leave for judicial review needs to prove or demonstrate an arguable case for judicial review".
In Rimbink Pato v. Anthony Majin & Ors (unreported judgement 30/04/99) SC622 the Supreme Court was faced with a case in which Mr. Pato obtained an interim junction against the Police Force from carrying out their constitutional duties of conducting investigations into alleged criminal conducts. That was with a view to laying charges if the investigations disclosed sufficient evidence to sustain them. That injunction was subsequently lifted on the application of the respondents and Mr. Pato appealed against the lifting of the injunction. The Supreme Court at page 5 said these:
"Nevertheless, the most important consideration of all, in our view is whether a civil court should restrain a criminal investigation by police exercising their Constitutional functions to investigate, charge and prosecute a person suspected to have committed a crime or criminal offence. That to us, is the most fundamental issue here.
...
We hold the view that the balance of convenience did not favour the applicant therefore the granting of the interlocutory injunction should not be sustained and extended. Our view is fortified by two considerations. Firstly, the applicant has protection under the Constitution. His rights, whatsoever they may be, in respect of a criminal prosecution are protected by the Constitution. If he claims such rights are violated, he has recourse pursuant to s.57 of the Constitution. We can not see how he can suppress and prevent, by injunction, a criminal investigation by police, which is a constitutional function.
Secondly, if the applicant claims that his reputation has a lawyer and a politician have been injured and is character defamed by what he asserted to be a conspiracy by the two Engan member of Parliament with three police officers, he has the right to sue and issue proceedings for defamation under the Defamation Act."
Similarly, the National Court in Sir Julius Chan v. The Ombudsman Commission (unreported judgement 15/07/98) N1738 declined to grant leave for judicial review of investigations by the Ombudsman into possible misconduct in office by leaders involved in the Cairns Conservatory deal.
In the present case, Mr. Ketan has taken out these proceedings purposely to restrain or prevent the Committee from conducting investigations into an allegation of misconduct as a lawyer stemming out of his response to a summons from the NPF Inquiry.
Mr. Malaki Unagui who is the Secretary of the Committee says in his affidavit sworn on the 16th of August 2001, that the Committee has the following procedure:
In this case, a complaint was received by the Committee through the Society. The Society received a referral from the NPF Inquiry. The Committee then wrote to Mr. Ketan asking him to respond to the complaint it had received. Mr. Ketan initially applied for an extension of time and was granted. He subsequently responded to the complaint saying he should not be the subject of such a complaint for two reasons. Firstly, s.13 of the Commission of Inquiry Act prohibits the use of any evidence given at a commission of inquiry and secondly because referral to the committee was by the Society and not the Commission of Inquiry. He then indicated that he will apply to the court to settle those legal issues first before attending to the substance of the complaint. This is the proceeding he said he would take out and by these proceedings has noted earlier, he is seeking to prevent the committee from investigating into the alleged misconduct. This brings Mr. Ketan’s case almost on all fours with Rimbink Pato v. Anthony Majin (supra). The only difference between that case and the present is that, Mr. Pato’s case concerned criminal investigations while Mr. Ketan’s case concerns professional misconduct, which is insignificant, in so far as the principles are concerned.
In my view, as the Supreme Court said Rimbink Pato v. Anthony Majin (supra) case, neither the Police Force nor any other public institution charged with a statutory duty to investigate into alleged professional or other misconducts, should be restrained from carrying out their constitutional or statutory obligations. The reason is simple. Persons concerned with such investigations have the right to defend themselves once a formal charge has been laid. If there is say an allegation of defamation of one’s character, separate proceedings could be issued for defamation. But it is no reason to prevent such lawful authorities from carrying out their lawful investigations. If the courts were to readily come into the sphere of investigations and make orders effectively preventing such authorities from carrying out their investigations, it would interfere in the process of proper investigations and bringing those responsible for any criminal or other misconduct, to the appropriate authorities to be dealt with according to law. In my view, nothing drastic happens at the investigations stage against persons covered by such investigations and none of their rights get suppressed even to the point of being charged and being brought before a court of law. The Constitution provides safeguards for persons charged with criminal offences so as to ensure that they are fairly and properly dealt with according to law. Similarly disciplinary process and procedures are in place to deal with people who are charged with administrative or disciplinary processes. In my view therefore, judicial review is not a remedy available at the investigation stage and is therefore an inappropriate case for grant of leave for judicial review of a decision to investigate into the conduct of a person.
The Society’s power to refer
Mr. Ketan however, argues that the decision to refer him to the Committee by the Society was contrary to the powers of the Society. He also argues that s.13 of the Commission of Inquiry Act prohibits the Committee from relying on or using evidence given at the NPF Inquiry for the purposes of the complaint against him.
I first deal with the question of the Society’s power to refer Mr. Ketan to the Committee in the way it did. Section 3 of the Lawyers Act 1986 establishes the Society as a corporate body with perpetual succession. It has a seal and may acquire, dispose of property and may sue and be sued in its corporate name. Section 7 of the Lawyers Act 1986 then sets out the functions of the Society. Amongst others, the Society has the duty to suppress illegal, dishonourable, improper and unprofessional practices and conduct by lawyers to preserve and maintain the integrity and status of lawyers (b)(c). Section 8 of the Act then provides that the Society amongst others, also has the power to institute proceedings against a lawyer or any other person for breach of any Act, law or rule relating to the practice of law (d). From this, it is clear that, it is the Society’s business or duty, power and function to ensure that all lawyers act in a manner that is proper, legal and one which accords well with the integrity of lawyers. It has the power to prosecute any lawyer falling short of those ideals.
Section 52 (2) of the Lawyers Act 1986 provides that any person may request the Committee to enquire into an allegation that a lawyer has been guilty of improper conduct as a lawyer. Clearly therefore, the Committee is not restricted from whom it may receive complaints of misconduct of lawyers. It can receive complaints from anywhere and whomsoever it can receive complaints against lawyers. Certainly, the Society is not excluded in the exercise of it powers and functions and or duties to referred to the Committee any improper conduct of a lawyer coming to its attention however that may be. It follows therefore that, the argument by Mr. Ketan that the Committee did not properly receive the complaint from the Society is contrary to those provisions and in any event, illogical and would run contrary to the clear statutory objectives of having the Society which is to safeguard against the integrity of lawyers and maintain an high level of proper professional conduct. It is therefore, within the Society’s duty and obligation to referred to the Committee any allegation of misconduct for appropriate investigations and if there is sufficient material or basis to proceed further to the laying of formal charges and dealing with a lawyer in accordance with the provisions of the Act. In short, the Society is not precluded from referring any misconduct by a lawyer to the Committee.
Prohibition under s.13 of the Commission of Inquiry Act
In relation to the argument under s.13, of the Commission of Inquiry Act, one need only examine closely the provisions of that section. That section reads:
"A statement or disclosure made by a witness in answer to a question put to him by a commission or by a commissioner is not (except in proceedings for an offence against this (Act) admissible in evidence against him in any civil or criminal proceedings."
The operative words in this section are "admissible" and "in any civil or criminal proceedings". In my view, the use of the word "admissible" signifies that the section comes into operation only when there is a question of the admissibility of a statement or disclosure made by a witness in answer to a question put to him by the commission or a commissioner at a commission of inquiry conducted under the Act. That presupposes that formal proceedings had been issued and that a trial has commenced and the admissibility of evidence arises. That is the stage in my view, where the issue of whether or not a statement or disclosure made at a commission of inquiry should be admitted arises. It would amount to re-writing the clear legislative intend if the court were to go ahead and interpret that provision and apply it in the way Mr. Ketan is arguing for. This section has nothing to do with investigations. In the course of the hearing, I raised with counsel for Mr. Ketan that the situation is some what similar to a policeman acting on indirect and totally inadmissible evidence to investigate into the commission of a possible criminal offence and it does not in itself render the investigations invalid or otherwise prevents police from carrying out investigations to determine whether there is basis for the complaint concerned and for further steps to be taken.
Also, in the course of the hearing, I raised with counsel for Mr. Ketan as to what could be the meaning of the phrase "criminal or civil proceedings". Mr. Coady of counsel for Mr. Ketan submits that, the phrase includes even disciplinary proceedings such as those that could be proceeded with under the Lawyers Act., 1986. He was however, not able to draw the Court’s attention to any relevant authority on point to support that proposition. The respondent on the other hand argues that proceedings here are of administrative or disciplinary in nature and are not covered by the use of the words in that phrase.
It is common knowledge that, there are two groups or categories of proceedings. The first are those commonly known as "judicial proceedings" and the second are those known as "administrative proceedings". Under the first, we have criminal and civil proceedings. These are proceedings before the courts. On the other hand, administrative proceedings are mainly in the nature of disciplinary proceedings and are not necessarily court proceedings. That distinction is clear under our Constitution in view of sections 155, 158, 159 & 172.
Under section 155(1) of the Constitution, the National Judicial System is created consisting of the Supreme and National Courts and such other courts as are established under s.172. Section 172 provides for an Act of Parliament to establish such other courts within the National Judicial System in addition to the Supreme and National Courts and may define or provide for the definition of their respective powers, functions, jurisdictions and the relationships with other components of the National Judicial System. In accordance with that provision, the District Courts and the other lower courts have been created by specific legislative enactments. Section 158(1) of the Constitution then vests in the National Judicial System the people’s judicial authority. Thereafter, s.159 provides for the establishment of other tribunals outside the National Judicial System. Such tribunals do not have any power to deal with a matter already vested in the National Judicial system, although they may for some limited and specifically define cases, impose disciplinary punishment. This may include an imposition of any disciplinary detention or any disciplinary punishment.
The Supreme Court in Public Employees Association of Papua New Guinea v. Public Service Commission (unreported1983) SC 253 per Bredmeyer J at page 12 said:
"Section 159(3) says that the only courts that can punish for a criminal offence are the official courts of the National Judicial System - but excluding certain disciplinary punishment which can be imposed under certain laws... I do not consider that the disciplinary offences of the Public Service Act are criminal offences but, even if they are one they are expressly saved by section 159(3) of the Constitution".
Earlier on section 155(4) provides that:
"Both the Supreme and the National Court have an inherent power to make, in such circumstance as seem to them proper, orders in the nature of prerogative writs and such other order as are necessary to do justice in the circumstances of a particular case."
This is the section that empowers the Supreme and the National Courts to scrutinise all administrative decisions (disciplinary or otherwise) which may infringe upon the rights of other persons.
It follows from the above that, if Parliament intended that the protection or prohibition under s.13 of the Commission of Inquiry Act was to apply to both judicial and administrative proceedings, then Parliament could have used those words. However Parliament only choose to use the words "in any civil or criminal proceedings" to limit that protection only to court proceedings. Hence, in my view, the protection or prohibition under s.13 of the Commission of Inquiry Act does not extend to administrative or disciplinary proceedings that may be instituted under specific legislation such as the Lawyers Act 1986.
As noted earlier in this case, no proceedings have yet been initiated or instituted. Only a process of investigation has been set in motion. If such investigations reveal that Mr. Ketan misconducted as alleged, he could then be charged appropriately under the Lawyers Act 1986. Once charged, he will have all the opportunity to answer to the charge and appear and to produce and or call such evidence as he may consider appropriate in his defence.
As far as I can, see the process of investigation is a process provided for and allowed by law. That process in no way extinguishes whatever rights Mr. Ketan may have and he will in any case, be given every opportunity to defend himself if in fact the Committee decides to charge him. What the Committee has done which is in accordance with its set procedure, is to ask Mr. Ketan to respond to the complaint for its considerations so that if it considers there is no merit in the complaint the Committee could then decide not to proceed with any disciplinary proceedings by charging Mr. Ketan and thereby save the costs and the expenses that may be incurred in laying a charge that may not be sustained after all.
For these reasons, s.13 of the Commission of Inquiry Act cannot be invoked in aid of the plaintiff and his application. I find the proceedings are misconceived. I therefore order a dismissal
of the proceedings. In view of this, it is not necessary for me to proceed to consider in any respect the application for interim
injunction pending a determination of the substantive proceedings as the decision to dismiss the proceedings leaves on foundation
for that application to stand. For clarity, I also order a dismissal of that application. The plaintiff shall pay the defendants’
costs.
________________________________________________________________________
Lawyer for the Plaintiff : Henao Lawyers
Lawyer for the Defendants : Regeau Elemi & Kikira Lawyers
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