N3095

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 987 OF 2005

BETWEEN:

IN THE APPLICATION UNDER SECTION 54 (c) OF THE LAWYERS ACT 1986

AND:

PAPUA NEW GUINEA LAW SOCIETY
Plaintiff

AND:

ROBERT SAGA
Defendant

Waigani: Davani, .J
2006: 6, 11 September

LAWYERS – Removal of name from roll – application made after finding of misconduct – Lawyers Act (Ch. No. 91) S. 54 (c)

LAWYERS – Removal of name from roll – appeal procedures not exhausted – appeal by way of rehearing – Application upheld – Lawyers Act (Ch. No. 91) S. 58 (1) (2) (3) (4) (5)

Counsel:
C. Makail, for the Plaintiff
Defendant in person

DECISION

11 September, 2006

1. DAVANI .J: The plaintiff, the Papua New Guinea Law Society (‘PNGLS’) applies by way of Originating Summons, for the following orders;

"1. An order that the name of the defendant, (Robert Saga) be removed from the Lawyers Roll pursuant to Section 54 (c) of the Lawyers Act 1986.

2. The defendant pay the costs of this action to be taxed if not agreed.

3. Time for entry of these orders be abridged to the date of settlement by the Registrar which shall take place forthwith.

4. Any further orders this Court deems appropriate."

2. The application is opposed by the defendant.

Background

3. On 16 December, 1987, the defendant was admitted as a lawyer of the Supreme and National Courts of Papua New Guinea.

4. By Notice of Enquiry, (‘Notice’) dated 2 May, 2002, the Lawyers Statutory Committee (‘LSC’) charged the defendant, that he, between 1 July, 1998 and 31 December, 1998, whilst on suspension as a lawyer;

1. practised as a lawyer whilst not a holder of a Restricted Practising Certificate (‘RPC’), thereby breaching s. 35 (i) (b) of the Lawyers Act;

2. charged bills of costs for legal work done, whilst not being the holder of an Unregistered Practicing Certificate (‘UPC’).

5. By the LSC’s meeting conducted on 16 May, 2002, the LSC found the defendant guilty on both counts and recommended that he be immediately removed from the Roll of lawyers.

6. By decision on sentence dated 24 May, 2002, the committee imposed the following penalties, upon the defendant;

1. A finding of improper conduct upon the defendant; and

2. An order under s. 54 (c) of the Lawyers Act 1986, (the ‘Act’) that the defendants name be removed from the roll and that it would come into effect upon application being made to the National Court.

7. And this is the application.

Analysis of evidence and the law

8. Section 54 (c) of the Act states;

"54. POWER OF COMMITTEE TO IMPOSE PENALTIES

Where, after an enquiry, the Committee is of the opinion that a lawyer has been guilty of improper conduct as a lawyer, it may impose any one or more of the following penalties:-

…
(c) apply to the Court to remove the lawyer’s name from the Roll;

…"

9. The PNGLS relies on the following affidavits;

1. Robert Mellor, sworn on 15 November, 2005, and filed on 16 November, 2005. Mr Mellor is the plaintiff’s secretary;

2. Vela Noka sworn on 2 November, 2005 and filed on 16 November, 2005. Mr Noka was the Secretary to the LSC at that time. He is presently unemployed;

3. Colin Makail, lawyer, sworn on 10 July, 2006.

10. The defendant relies on his affidavit sworn on 29 November and filed on 13 December, 2005 and that of Emmanuel Menap sworn on 16 June, 2006 and filed on 21 June, 2006.

11. By a Statement of Agreed and Disputed facts and Legal Issues signed by both the plaintiff’s lawyers and the defendant and filed on 21 July, 2006 (‘statement’), the parties agreed to certain facts for consideration by the court. The agreed facts amongst others, are as set out earlier, that whilst on suspension, the defendant was practicing as a lawyer, and was receiving payment whilst not the holder of an Unrestricted and or Restricted Practising Certificate.

12. The charges arose whilst the defendant was employed as a Legal Officer with the Department of Western Province.

13. But the defendant disputes ever having received the charges (Notice of Enquiry) although the letter was sent to the defendant’s former employer, the Fly River Provincial Government at P.O. Box 51, Daru, Western Province. This Notice of Enquiry dated 2 May, 2002 advised of an inquiry which was to take place on 16 May, 2002. The defendant claims he did not respond to the charges because he did not receive the Notice of Inquiry.

14. After the LSC’s finding on 22 May, 2002, which was a finding of guilt, the LSC caused to be posted to the same address, the LSCs decision under cover of letter of 24 May, 2002. The defendant disputes ever receiving that letter.

15. Which then takes me to the agreed factual and legal issues for determination as set out on the Statement. These are;

1. Whether the posting of the Notice of Inquiry ("Charges") and the decision of the committee to the defendant’s postal address is deemed sufficient service of the charges on the defendant?

2. What considerations should the Court take into account in an application to remove a lawyer’s name from the Roll of Lawyers under section 54 (c) of the Lawyers Act 1986?

3. Depending on the considerations, has the plaintiff satisfied the requirements stated? 

4. Can the defendant raise in the defence of the application, issues on the merits to challenge the decision of the Committee of 22 May 2002? 

5. If yes, what is the consequence of this application?

16. I consider all the above, together.

17. In his evidence, the defendant submits that he was not personally served with the Notice of Inquiry, which was why he could not respond to the charges. He claims his rights to natural justice and the right to a fair hearing have been breached. But is this the arena in which such complaints can be brought?

18. It appears the defendant is questioning the manner in which the LSC’s decision was reached. And because these proceedings were commenced by Originating Summons, that the defendant’s grievances cannot be properly brought out in court unless of course proceedings were commenced by Writ of Summons. Because he has raised them in this court, will there or are these grounds on which to refuse the application to remove his name from the Roll. Obviously the defendant is presenting a challenge to the manner in which the LSC reached the decision to suspend him from practice. Section 58 of the Act states that a lawyer may appeal the decision of the Committee within 21 days of the LSC’s decision.

19. It is necessary that I set out the whole provision. It reads;

"58. APPEAL FROM DECISION OF COMMITTEE

(1) A lawyer may appeal against a decision of the Committee to the Court within 21 days of the date of the decision.

(2) A person, whose complaint has been the subject of an enquiry by the Committee, may appeal to the Court against the decision the Committee on that complaint within 21 days of the date of the decision.

(3) An appeal under subsection (1) or (2) may be against the findings of the Committee, or against a penalty imposed, or both.

(4) An appeal under subsection (1) or (2) shall be by way of rehearing by the Court.

(5) On an appeal, the record of proceedings of the enquiry by the committee may, with the consent of the person making the complain and the lawyer, be given in evidence on the appeal and shall be admissible evidence of the opinion of the Committee in relation to any matter contained in it and of the facts upon which the opinion is based."

20. Robert Mellor, deposes at paragraph 3 of his affidavit that the appeal period would have expired on or about June 2002. He deposes further that after a search of the PNGLS and LSC’s records, that he can find no record of any appeal documents served on the Law Society by the defendant.

21. The defendant obviously has the appeal process which he has not utilized, yet. On questioning by the bench as to why he did not do that, he submitted that he could not file an appeal because he has to defend these proceedings. That is all very well but being a lawyer; he should be aware of the appeal process and should have utilized it. There is no excuse.

22. Also on the court file is a cross-claim filed by the defendant on 22 December, 2005 where he names the PNGLS and 7 others as cross-defendants. But the cross-claim was not raised before the Listings Judge nor is it raised in the statement. The defendant also did not mention it at the trial focusing only on the plaintiffs claim and the fact that he was not given the opportunity to defend the complaint before the PNGLS because he was never served. So I can conclude that the cross-claim may have been abandoned.

23. Can this court remove the defendant from the Roll? Section 59 of the Act states this;

"59. POWERS OF COURT TO IMPOSE PENALTIES.
Where, after an appeal under section 58, the Court is of the opinion that a lawyer has been guilty of improper conduct as a lawyer, it may confirm the penalty imposed by the Committee or may vary it by imposing anyone or more of the penalties specified in section 54."

24. Should the defendant proceed with the appeal before the Court? The court is defined under the Act to mean the National Court. Section 54 (c) is clear, that if the committee is of the opinion that a lawyer is guilty of improper conduct, that it may apply to the court to have his name removed from the Roll. Under s. 57 (i) of the Act, where the court grants an application under s. 54 (c) to remove the lawyers name from the Roll, the committee shall advise the society and the Law Society shall revoke any practicing certificate issued to the lawyer.

25. The significance of the Roll of lawyers is stressed in the Act. The "Roll" is defined under s. 30 of the Act to be;

"30. ROLL OF LAWYERS

(1) The Registrar shall keep a Roll of Lawyers

(2) The Roll of Lawyers under subsection (1) shall be –

(a) in such form; and 

(b) kept in such place and manner, 

as is prescribed by the Rules of Court."

26. A lawyer is required to sign the Roll on admission (s. 31 of Act). And the Registrar shall issue a Certificate of Admission to a person who has been admitted to practice as a lawyer and who has signed the Roll (S. 32 of the Act). And the only person who can practice as a lawyer is a person who has been admitted to practice as a lawyer and who has signed the Roll (s. 33 of Act). And an RPC will be issued to a lawyer who has signed the Roll and who is a citizen or resident of Papua New Guinea (s. 40 of Act). 

27. So the significance of the Roll is immense. If a finding of improper conduct has been made against a lawyer and that finding remains undisturbed, that is the basis on which the National Court can order that the lawyers name be removed, if that is what the LSC has found. In this case the LSC has found as a penalty that the defendants name be removed from the Roll and that this penalty will take effect upon application to the National Court. And this is that application.

28. And the lawyer should appeal against the findings of the Committee or against a penalty or both (s. 58 (3) of Act). That is prescribed procedure.

Conclusion

29. I find the findings of the LSC have not been disturbed or set aside by an appeal. The defendant has raised reasons which are valid but which must be addressed through an appeal. And the appeal will be by way of a rehearing which means the defendant can raise the issues of non-service before the court.

30. If this was a situation where the defendant had appealed and was refused, and an application was then made to have his name removed from the Roll, the court could still proceed to do that. In either scenario, the court has the power to have the lawyer’s name removed from the Roll because a finding of improper conduct has already been made. An applicant cannot challenge the findings on the hearing into the removal from the Roll, unless he has first challenged the findings of improper conduct on appeal. He could proceed to obtain a stay of the finding of improper conduct pending the hearing of the appeal in relation to that finding, but this application is not before me. Or in a situation where an order has been made to have his name removed from the Roll, he could apply for a stay of an order under s. 57 (1) of the Act, pending appeal, subject of course to the nature of the grounds he has. The prescribed procedures are clear, which the defendant must comply with.

31. As I stated above, this is not the arena at which to raise the claim that service was not properly effected. The defendant can challenge the LSC’s findings by way of an appeal. He can also challenge this decision on penalty by way of an appeal.

32. The LSC’s proceedings must be brought to finality, in the interests of the administration of justice. The plaintiff must ensure that high standards are maintained in the legal profession. And bringing disciplinary proceedings to an end, against lawyers who have breached rules of legal practice and etiquette, is one way of ensuring that this standard is maintained.

33. I will make the orders sought;

1. That the name of the defendant – Robert Saga, be removed from the Lawyers Roll;

2. That the defendant pays the plaintiffs costs of these proceedings to be taxed if not agreed;

3. That the time for entry of the orders be abridged to time of settlement to take place forthwith.

________________________

O’Briens Lawyers: Lawyer for the Plaintiff
Defendant in person