Latu v Kua [2007] PGNC 39; N3151 (23 February 2007)

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IN THE MATTER OF AN APPEAL UNDER THE LAWYERS ACT 1986, FROM THE DECISION OF THE CHAIRMAN AND HIS MEMBERS OF THE LAWYERS STATUTORY COMMITTEE

IN THE MATTER FOLLOWING AN INQUIRY BY THE LAWYERS STATUTORY COMMITTEE UNDER PART V OF THE LAWYERS ACT 1986, INTO A COMPLAINT BY WARREN BARTLETT & FIDELIS KAOGO (SOGERI ENTERPRISES)

KERENGA KUA
as the Chairman of the Lawyers Statutory Committee and Melchior Togolo as a Member and David Manoka as a Member
Respondents

LAWYERS ACT – s.58 - Lawyers Statutory Committee - Appeal from -Application to amend notice of appeal - Application to add new ground to notice of appeal.

The appellant filed an appeal in September 2002 from a decision of the Lawyers Statutory Committee and obtained a stay of the orders made with a direction that the appeal be prosecuted in the November 2002 sittings. Between September 2002 and June 2006 the appellant made four applications to the respondent for a copy of the record of proceedings. He obtained the record of proceedings in June 2006. By motion filed on December 2006 he sought to amend or add new grounds to the notice of appeal, namely that (1) the proceedings were not based on sworn evidence as required by s.56(1) of the Lawyers Act and (2) that the respondent had not observed natural justice by giving reasons for its decision in breach of s.32(1) (sic-s.53(1) probably intended) of the Lawyers Act.

The rule promulgated by Injia DCJ in Emily Dirua v Lawyers Statutory Committee N2905 would be followed to the effect that the procedure in the District Courts Act for appeals shall be applied to appeals under the Lawyers Act from decisions of the Statutory Committee, amended to note the appeal period is 21 days. Amendment in terms of (1) above would be allowed pursuant to s.232 of the District Courts Act as it amplified the facts recited in ground "a" of the appeal. Amendment in terms of (2) above would not be allowed because it was a new ground. Extension of time under District Courts Act s.231 for the addition of that ground would not be allowed because the explanation for the delay in bringing the application was unsatisfactory and the appellant had not been diligent. Directions given to expedite hearing of the appeal.

Emily Dirua v Lawyers Statutory Committee (2005) N2905
Samson Dacany v Noah Taia N2316
Seravo Jack v Jack Bahafo (2001) N2078.

1. LAY J.: It was alleged by the respondent that the appellant was engaged to act in a conveyancing matter on behalf of a purchaser who caused the purchase price to be paid into the appellant's trust account. Before the transaction was complete and before the vendor was entitled to the purchase price, the appellant drew part of the money from the trust account held on behalf of the purchaser to pay an outstanding account due to him from the vendor. On the complaint of his client purchaser the appellant was charged by the respondent which subsequently made a finding of improper conduct as a lawyer and by way of penalty ordered that the appellant be suspended from practice for four years, pay compensation to his client in the sum of K 18,477.37, pay a fine of K1000 and costs of K300.

2. The appellant filed a notice of appeal on 19 September 2002 against the finding of the respondent pursuant to the provisions of the Lawyers Act Section 58. He obtained a stay of the respondent’s orders. The Court ordered that the appeal be heard in the November 2002 sittings. The grounds of the appeal are:

"(a) The finding of improper conduct was not supported by the statement of facts submitted in a Affidavit to the Committee Chairman and his Members.

(b) The penalty in 2(ii) which was imposed following the inquiry is harsh and excessive in the circumstances.

(c.) Such further or other grounds as the Appellant may identify in the course of pursuing this Appeal and upon receipt of the file depositions from the Lawyers Statutory Committee comprising of the Respondents."

3. By a notice of motion filed 12 December 2006 the appellant now seeks to amend, or alternatively, add, grounds of appeal, namely:

"(I) The Respondents have breached Section 53 (2) of the Lawyers Act 1986 by not relying on sworn evidence to find the Appellant guilty of improper conduct.

(II) The Respondents have breached section 32 (1)(sic-s53(1) probably intended) of the Lawyers Act 1986 and section 59 of the Constitution by failing to observe the principles of natural justice when they did not give their reasons for their decision on both guilt and penalty and communicate the same to the Appellant.

5. The appellant argues that he has explained the delay, the delay was caused by the respondent and the amendments which he wishes to make are an amplification of existing grounds of the appeal, or alternatively, if they are new grounds then those grounds were not apparent until the depositions were received and the delay in receiving the depositions was caused by the respondents. The appellant seeks additional time to file those additional grounds. The respondent argued that the District Courts Act is of no relevance, Martha Kokiva-Age v Lawyers Statutory Committee N2835 should be distinguished because in that case the facts were contested, whereas in this case there was no contest on the facts. The appellant admitted the facts therefore there was no requirement for evidence.

6. The Lawyers Act Section 58 provides a right of appeal and neither the Act nor any regulations make any provision for the form of the notice of appeal or any other procedural matter with respect to the conduct of the appeal, apart from the fact that the appeal must be instituted within 21 days of the decision. That lack of procedural provision was noted by Injia DCJ in the case of Emily Dirua v Lawyers Statutory Committee (2005) N2905 and to cure that vacuum His Honour said:

" I would promulgate an ad hoc rule under s.185 of the Constitution, to say that until such time as the Parliament introduces legislation prescribing the appeal procedure under the Lawyers Act, the practice for the time being should be that it should closely follow the procedure prescribed in the District Court Act (Part XI Appeals from Decision of District Courts, ss.219 – 236). In relation to time limits, the Notice of Appeal is required to be filed in 28 days. As for other formal requirements of the Notice of Appeal, filing the Recognizance on Appeal and Entry of Appeal, requirements for service of the Notice of Appeal and issue of Notice of Hearing of Appeal, these should closely follow the form and requirements in the District Courts Act."

7. I endorse and adopt the rule promulgated by his Honour; with the exception of the reference to 28 days which, with respect, I say should be 21 days.

8. Council for the appellant has drawn to my attention the decision of Kandakasi J. in the case of Samson Dacany v Noah Taia N2316 where his Honour analyses s.231 and s.232 and other sections of the District Courts Act.

1. Subject to subsection (2), an appeal shall not be defeated merely by reason of a defect, whether of substance or form, in a notice or statement of the grounds of appeal, but if on the hearing the National Court is of opinion that an objection raised to the notice or statement is valid the National Court may cause the notice or statement to be amended.

an amendment shall be allowed only on such terms as to costs or postponement, or both, as the National Court thinks just."

9. His Honour held, and I with respect concur, that s.232 authorises amendment to existing grounds of appeal but does not authorise new grounds of appeal. To add a new ground after the appeal period has expired the appellant must bring himself within and obtain an extension of time pursuant to s.231.

(a) dispense with compliance with a condition precedent to the right of appeal prescribed by this Act, if, in its opinion, the appellant has done whatever is reasonably practicable to comply with the provisions of this Act; and;

(b) on application made ex parte by the party appealing—extend the time for compliance with a condition precedent to the right of appeal prescribed by this Act.

11. Again Kandakasi J has considered what should be shown in making an application under this section and held that (1) there must be a reasonable explanation for the delay,(2) the ground must be arguable and (3) no prejudice has or will be suffered by the respondent, because the appellant failed to come within the time prescribed: See Seravo Jack v Jack Bahafo (2001) N2078. I adopt those tests and will seek to apply them in this case.

13. I am satisfied that both ground "a" of the grounds of appeal and ground "1" of the amendment sought, deal with the same subject matter, that is whether the evidence before the respondent was before it in sworn form. The amendment only adds to the ground by drawing attention to the relevant section of the Lawyers Act. I allow that ground as it falls within the parameters of s.232 and I do not consider that the respondent will be prejudiced by it.

14. Ground II sought to be added, a breach of natural justice, is not mentioned in the appeal grounds. It is a completely new subject matter. It cannot be added pursuant to s.232 of the District Courts Act.

15. Turning then to s.231, I approach the question of whether or not the appellant has met the tests mentioned above, first by reference to the issue of delay. To understand what delay is involved at a glance, I set out a short table:

Event	Date	Time Elapsed from instituting Appeal
Decision	27 August 2002
Appeal, stay and direction to prosecute appeal in November 2002 sittings	19 Sept 2002
Letter to Sec. Law Soc.	December 2002	2 ½ months
Fax to Mr Vele Noka	28 June 2003	8 ½ months
Request for matter to be listed	March 2006	3 years 5 ½ months
Visit to Port Moresby	June 2006	3 years 8 ½ months
Receipt of the record	June 2006	Ditto
Filing record in court	December 2006	4 years 1 month

16. I agree that there has been delay on the part of the respondent. Its procedures leave something to be desired. Given the current state of the law one would expect that on receipt of a notice of appeal the respondent would immediately send a copy of the record to the appellant so that the respondent cannot be accused of delay. However, four approaches to the respondent over a period of close to four years cannot be described as diligent prosecution of an appeal in anyone’s language. The delay has been explained, but the explanation is far from being satisfactory and cannot all be laid at the feet of the respondents. The appellant has been in breach of a court order directing that the appeal be prosecuted in the November 2002 circuit for a considerable time but did not approach the court for an order for production of the record or to amend the order. It displays complacency after obtaining a stay, which is unacceptable and not to be encouraged by the Court.

17. Further, after obtaining the record in June 2006 the appellant took until December 2006 to produce it to the court. There is no explanation for that delay.

18. I will not consider whether the ground sought to be added is arguable or if the respondent will be prejudiced because I consider the delay in pursuing the production of the record so extensive and the appellant’s lack of diligence in this regard so grave as to not warrant the exercise of the Court’s discretion in favour of the appellant. The application to amend or add ground "II" is refused.

19. The amendment allowed could have been made within the period for appeal as it is only a reference to law in respect of which the facts were already in the notice of appeal. The appellant did not require the record of proceedings to discover the law. As the second ground has been disallowed the proper order for costs is that the appellant pay the respondent’s costs of the application.

20. This appeal has gone on for far too long and the Court of its own volition will make orders to ensure that it is dealt with from now on with reasonable despatch.

1. Leave granted to amend the Notice of Appeal by the addition of the words in paragraph 1(i) of the Notice of Motion filed 12 December 2006;

3. The appellant shall prepare the appeal book and take all necessary steps to have the appeal ready for hearing on 18 May 2007 at 1:30 pm which date is appointed for hearing;

4. The appeal will be mentioned for pre trial conference in motions on 20 April 2007;

Warner Shand Lawyers: Lawyers for the Appellant
Kivu & Associates: Lawyers for the Respondent.

National Court of Papua New Guinea

Latu v Kua [2007] PGNC 39; N3151 (23 February 2007)