SC1492

PAPUA NEW GUINEA 
	  [IN THE SUPREME COURT OF JUSTICE] 	

SCA 87 of 2014 

BETWEEN: 
HON. JAMES MARAPE in his capacity as Minister for Finance
    Appellant 

AND:
HON. PETER O’NEILL in his capacity as Prime Minister
First Respondent

AND:
HON. ANO PALA, Attorney General & Minister for Justice
Second Respondent

AND:
PAUL PARAKA trading as Paul Paraka Lawyers
Third Respondent

AND:
ROYAL CONSTABULARY OF PNG
Fourth Respondent

AND:
THE INDEPENDENT STATE OF 
PAPUA NEW GUINEA
Fifth Respondent

AND:
MATTHEW DAMARU, as the Director of National 
Fraud & Anti-Corruption Directorate
Sixth Respondent

AND:
TIMOTHY GITUA, as the Deputy Director National 
Fraud & Anti-Corruption Directorate
Seventh Respondent

                                    Waigani: Hartshorn, Makail and Sawong JJ
             2015: 17th November, 
	      2016: 18th March 

SUPREME COURT – Application to discharge order of single Judge - Referral of two lawyers to Lawyers Statutory Committee for disciplinary action – Alleged improper conduct by lawyers – Grounds of – Alleged breach of natural justice and procedural fairness – Denial of right to be heard – Constitution – Section 59 – Supreme Court Rules – rules 25 and 26

PROFESSIONAL CONDUCT – Lawyers conduct – Improper conduct – Conduct arising from legal proceedings – Conduct amounting to collusion to pervert the course of justice – Referral by judge constituted a complaint – Lawyers Act, 1986  – Sections 48, 49, 50, 51, 52, 53, 54, 55, 57, 58 & 59 – Professional Conduct Rules, 1989 – Rule 15

Cases cited:	
Papua New Guinea cases:

C L Toulik Business Consultant Ltd v. Kuek (2006) SC876 
James Marape v. Peter O’Neill (2015) SC1458
John Bedford Bray v. Susan Kupa Derks (2008) N3483
Madang Development Corporation Limited v. Radtrad Madang Limited (2013) N5259
Rimbink Pato v. Reuben Kaiulo & Ors (2003) N2455
Simon Ketan v. PNG Law Society (2002) N2290
Spirit Haus Limited v. Robert Marshall (2004) N2630 
Yakasa v. Piso (2014) SC1330

Overseas cases:	

Ainsworth v. Criminal Justice Commission (1992) 175 CLR 564
Evan Rees v. Richard Crane [1994] 2 AC 173
Re Sandbrook Solicitors [2015] EWHC 2473

Counsel:

Mr. R. Leo, for the Appellant
Mr. M.M. Varitimos QC and Mr. D. Kipa, for the First Respondent
Mr. J. Umbu, for the Second and Fifth Respondents
Mr. R. Kasito, for the Third Respondent
Mr. I.R. Molloy, and Mr. N. Tame for the Fourth Respondent
Mr. G. M. Egan and Mr. M. Nale, for the Sixth and Seventh Respondents 

18th March, 2016
1.     HARTSHORN J:  (Dissenting) This is a decision on an application by the first respondent to review the decision of Kirriwom J sitting as a single judge of the Supreme Court. The part of the decision of Kirriwom J that this decision is concerned with is in respect of His Honour’s decision to refer Ms. Tiffany Twivey to the lawyers Statutory Committee. As His Honour’s decision to refer was also in respect of Mr. Sam Bonner, I will treat the application as though it refers to both lawyers. The specific question is whether those lawyers should have been accorded natural justice and procedural fairness before they were referred. 
2.   The appellant, second respondent, fourth respondent and fifth respondent support this application, the third respondent takes no position and the sixth and seventh respondents oppose this application.
Background 
4.    Kirriwom J heard an application by the fourth respondent for interim injunctions. His Honour published his Ruling in the matter and refused the interim injunctions sought. Another decision of this Court has considered a review of His Honour’s decision in that regard. 
5.    His Honour in his Ruling also found that at pages 30 – 31:
“In this case lawyers for the Fourth Respondent Sam Bonner and the First Respondent Ms Twivey could be guilty of collusion in perverting the course of justice where they filed application in the District Court and signed consent judgment setting aside the warrant of Arrest of Dairi Vele without notifying Detective Chief Inspector Gitua who was the complainant in the proceeding before the District Court in this matter and who was by virtue of being the Complainant was a party in the case. And they did so by removing Timothy Gitua’s name as the Informant and replaced it with Royal PNG Constabulary. Is that standard practice in the Police force? No it is not. And Mr Sam Bonner someone who spent so many years with Police Force as career policeman and lawyer ought to know this very well. That is the way it has always been and that was the only way to deal with this matter. By deliberately changing the name of the case halfway through the proceeding, actions of these very experienced and senior lawyers can only be described as deliberate act by them to avoid opposition from the Sixth and Seventh Respondents. I am given no choice but to refer both lawyers to the Lawyers Statutory Committee for disciplinary action. As to how the Sixth and Seventh Respondents wish to take this matter further I leave to them.”
6.     In essence, His Honour made a direction referring both lawyers to the Lawyers Statutory Committee for disciplinary action.
7.     In evidence is a letter signed by His Honour, on official Chambers letterhead, dated 27th August 2015, entitled “Referral of lawyers Sam Bonner and Tiffany Twivey.” The letter referred to the Supreme Court decision delivered by His Honour and attached a copy of the judgment. In the letter it was stated amongst other that, “… I undertook to refer to (sic) senior lawyers ….. for conduct which I found to be unethical, unprofessional and could very well amount to perverting the course of justice.” Then later, “This is a very deceitful conduct or practice by two (2) very senior lawyers….”
8.    His Honour went on to state, in bold type, “it smacks of deliberate acts perpetrated with malice to defeat the course of justice”.
Power to review the referral to the Lawyers Statutory Committee
9.    The jurisdiction to review is afforded by Order 11 Rule 25 Supreme Court Rules which provides that amongst others, a party dissatisfied with a direction or order given by a Judge under these rules or Section 5 of the Act may apply to the Court which may make such order as appears just.
10.    Section 5 (1) (a) Supreme Court Act provides amongst others that where an appeal is pending before the Supreme Court, a direction not involving the decision on the appeal may be made by a Judge.
11.    The direction of Kirriwom J that the two lawyers be referred to the Lawyers Statutory Committee was made when an appeal was pending, but was not a decision involving the decision on appeal. It accordingly falls within s. 5 (1) (a) Supreme Court Act.
12.     I am satisfied that the direction that the two lawyers be referred to the Lawyers Statutory Committee was made under s. 5 Supreme Court Act and, pursuant to Order 11 Rule 25 Supreme Court Rules, was open to challenge.
13.    I refer to this Court’s decision of James Marape v. Peter O’Neill (2015) SC1458 and its consideration of applications made pursuant to Order 11 Rules 25 and 26 Supreme Court Rules. In accordance with the observations made in that decision, I am satisfied that the notice of motion as amended and the application contained therein meet the requirements of those Rules.
Referral of lawyers to the Lawyers Statutory Committee
14.    The first respondent contends that before Kirriwom J referred the two lawyers to the Lawyers Statutory Committee he should have accorded them natural justice and procedural fairness.
15.    The fourth respondent contends that Kirriwom J acted without hearing any submissions on the question of whether the two lawyers should have been referred to the Lawyers Statutory Committee and without giving Mr. Bonner and Ms. Twivey a reasonable opportunity to be heard. This is contrary to s. 59 Constitution. It does not matter that the two lawyers will have an opportunity to be heard before the Lawyers Statutory Committee it is contended.
16.    Further, as the pronouncement of Kirriwom J was public, will remain in the public record and was made with the authority of a senior Supreme and National Court Judge, it was unfair that the two lawyers were not first given any opportunity to be heard.
17.    The sixth and seventh respondents contend that:
a)	the application concerning the referral of the two lawyers is an abuse of process: Ketan v. Lawyers Statutory Committee (2002) N2290;
b)	as Kirriwom J has acted judicially, it is for the Lawyers Statutory Committee to decide;
c)	the fourth respondent has not applied to become a party to this proceeding and it is not their fight in any event.
Consideration
18.     The sixth and seventh respondents contend that that this application is an abuse of process with reliance upon Ketan v. Lawyers Statutory Committee (supra). In Ketan (supra), the National Court refused an application for leave to judicially review a referral by the Papua New Guinea Law Society of a lawyer, to the Lawyers Statutory Committee. The Law Society had initially been written to by the National Provident Fund Inquiry complaining about the conduct of Mr. Ketan. The application before us is under Order 11 Rule 25 Supreme Court Rules and concerns the referral of two lawyers to the Lawyers Statutory Committee by a Supreme Court Judge of his own volition. In Ketan (supra), the Law Society had received a complaint and then made a referral to the Lawyers Statutory Committee. The differing factual circumstances in Ketan (supra) do not lead me to the conclusion that the application before us is an abuse of process and in any event I am satisfied that the first respondent is able to make his application under Order 11 Rule 25 Supreme Court Rules as referred to above.
19.    The submission that as Kirriwom J has acted judicially in making the referral, it is now for the Lawyers Statutory Committee to decide, assumes that this Court does not have jurisdiction to consider the application. I am of the view that Order 11 Rule 25 Supreme Court Rules does provide for a review of Kirriwom J’s direction and as stated I am satisfied that the application is properly before us.
20.    In regard to the submission that the fourth respondent did not apply to become a party in this proceeding, there is no application before us for the removal of the fourth respondent. As to the issue of the referral of the two lawyers to the Lawyers Statutory Committee not being the fight of the fourth respondent, the same can be said in regard to the position of the sixth and seventh respondents. In any event, the fourth, sixth and seventh respondents are parties to this proceeding and so are entitled to be heard on this application.
21.    The first respondent’s contention that the two lawyers should have been accorded natural justice and procedural fairness by Kirriwom J before his referral of them to the Lawyers Statutory Committee for disciplinary action is based upon the common law principles of natural justice. These principles are contained in s. 59 Constitution:
“59.	Principles of natural justice
(1)	Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2)	The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.”
22.    Pursuant to s. 59 Constitution, a court is required to act fairly: C L Toulik Business Consultant Ltd v. Kuek (2006) SC876; Yakasa v. Piso (2014) SC1330.
23.   Further, I agree with and refer to the following observation made by this Court in Yakasa v. Piso (supra):
“It is given that……. the National Court was bound to afford natural justice, in the sense described in the cases cited and having the minimum content referred to in s. 59 (2) of The Constitution, to all of those against whom orders were sought that day: The Constitution, ss 20, 59, ch 2.2 (1) and Premdas.”
24.   I comment that a corollary of that statement in my view is that a National Court, here the Supreme Court, is bound to afford such natural justice to all of those against whom orders are not sought, but in respect of whom the Court desires to make orders.
25.   The ruling of Kirriwom J concerning the two lawyers was to refer the lawyers to the Lawyers Statutory Committee for disciplinary action. His Honour did not make any adverse finding or order against the two lawyers in his written ruling. I note though the content of the letter written by His Honour to the Lawyers Statutory Committee in which His Honour stated that: “… I undertook to refer to (sic) senior lawyers….. for conduct which I found to be unethical, unprofessional and could very well amount to perverting the course of justice.” and later, “This is a very deceitful conduct or practice by two (2) very senior lawyers….”
26.   So given the circumstances, where a referral to the Lawyers Statutory Committee for disciplinary action is made in a written decision by a Supreme Court Judge that was delivered in open court, there not being any adverse finding or order made in the written decision against the two lawyers, but the Judge in a letter to the Lawyers Statutory Committee informs that he did make adverse findings against the two lawyers; should natural Justice and procedural fairness have been accorded to the two lawyers before they were referred to the Lawyers Statutory Committee?
27.   Counsel for the first respondent referred to amongst others the Australian High Court case of Ainsworth v. Criminal Justice Commission (1992) 175 CLR 564. In that case the court held that a Commission that made a recommendation in a publicised report to the Queensland Parliament that Ainsworth Companies not be permitted to participate in the poker machine industry, although the recommendation had no legal effect, should have afforded procedural fairness because of the potential of the report to affect reputations. The Court also held that the requirements of natural justice would not be satisfied by any subsequent hearings by a parliamentary committee. This finding was made after it was stated that: 
“It was not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if “the decision-making process viewed in its entirety, entails procedural fairness”, South Australia v. O’Shea (1987) 163 CLR 378 per Mason CJ at p389. The difficulty in the present case is in reviewing the Commission and the Parliamentary Committee as engaged in the one decision-making process.”
28.    I have had recourse to the Privy Council decision of Evan Rees v. Richard Crane [1994] 2 AC 173. In that case the Board considered whether a Judge had been accorded natural justice in the course of action taken for his removal. The Board held that the Judge had not been treated fairly as he had not been told of the allegations made to a Commission and given a chance to deal with them. The Commission was the body that made the initial representation in a three stage statutory process that the question of the removal of a Judge ought to be investigated. Such a representation per se was not a punishment or penalty.
29.    The Board said as to the representation made by the Commission:
“It is true….. that the decision to make a representation is not itself a punishment or penalty and that the eventual dismissal requires two further investigations. That, in their Lordships’ view, is too simplistic an approach in resolving the present questions. There was obviously considerable publicity for the decision to make a representation even if the detailed charges were not publicised.”
30.    The Board cited with approval the following passage by Sir William Wade in Administrative Law (6th Edition) 1988 p570:
“Natural justice is concerned with the exercise of power; that is to say, with acts or orders which produce legal results and in some way alter someone’s legal position to his disadvantage. But preliminary steps, which in themselves may not involve immediate legal consequences, may lead to acts or orders which do so. In this case the protection of fair procedure may be needed throughout, and the successive steps must be considered not only separately but also as a whole. The question must always be whether looking at the statutory procedure as a whole, each separate step is fair to the persons affected.”
31.    The Board concluded as to the procedure for the removal of a Judge when considered as a whole that it would not necessarily rectify any damage to a Judge’s reputation when it said that:
“…the suspension or conviction that the Commission and even the President was satisfied that the charges were made out (was) in a way which subsequent revocation of the suspension would not necessarily dissipate.”
32.    In the present case, notwithstanding that a referral per se to the Lawyers Statutory Committee does not affect the rights of the lawyer referred, in my view, it may have the potential to affect the reputation of that lawyer, particularly when the referral is made public, is made in a court, by a senior Supreme Court Judge, and is described as a referral for disciplinary action.
33.    Further, the informing of his adverse findings by Kirriwom J in his referral letter to the Lawyers Statutory Committee, although as far as I am aware not made public, in my view does have the potential to adversely affect the reputation of the lawyers referred in the eyes of the members of the Lawyers Statutory Committee, particularly as they are the adverse findings of a senior Supreme Court Judge.
34.    The procedure in the Lawyers Act concerning an inquiry by the Lawyers Statutory Committee into a complaint against a lawyer involves a complaint or request to inquire being made by any person: s.52 (1), (2). The Lawyers Statutory Committee has the powers of a Commission of Inquiry and may otherwise determine its own procedures when inquiring into complaints of improper conduct, and it shall observe the rules of natural justice in carrying out an inquiry: s. 53 (1). The proceedings of the Lawyers Statutory Committee shall not be open to the public: s. 53 (4), and an appeal from a decision of the Lawyers Statutory Committee to the National Court is provided for: s. 58.
35.    From a consideration of the procedures involved, I am not satisfied that they would necessarily lead to any damage occasioned to the reputation of a lawyer referred publicly to the Lawyers Statutory Committee for disciplinary action by a Supreme Court Judge, likely being nullified or dissipated in the event that the referral was found to be unwarranted.
36.    Notwithstanding that the referral by Kirriwom J was not a preliminary hearing of the process followed by the Lawyers Statutory Committee; it was the event that initiated the process that could lead to disciplinary orders being made against the two lawyers. That the referral was made in public in court by a senior Supreme Court Judge and because of this, increased the potential to affect the reputation of the lawyers referred, that the Supreme Court Judge communicated to the Lawyers Statutory Committee that he had made adverse findings against the two lawyers, and that communication is likely to have influenced the members of the Lawyers Statutory Committee in how the referral will be dealt with, and further, as there is nothing in the procedure of the Lawyers Statutory Committee that is likely to result in the dissipation, rectification or undoing of any damage caused to the reputation of the two lawyers by the referral in the event that the referral was found to be unwarranted, I am of the view that the two lawyers were not treated fairly and that they should have been accorded natural justice and procedural fairness.
37.     The two lawyers should have been informed of the allegations against them by Kirriwom J and the prospect of their referral to the Lawyers Statutory Committee. They should then have been given an opportunity to be heard by making submissions as to whether any referral was warranted.
38.    In this regard I make reference to the England and Wales High Court Administrative Court case of Re Sandbrook Solicitors [2015] EWHC 2473 as an example of what in my view appears to be natural justice and procedural fairness being accorded. In that case certain solicitors were given notice by the Court that there were serious concerns as to their conduct and what those allegations were. They were then given notice that a court hearing would be heard at which the solicitors should attend and show cause why they should not be referred by the Court to the Solicitors Regulation Authority.
39.    As to the National Court cases referred to by Makail J in his decision, which involved the referral of lawyers to the Lawyers Statutory Committee, I note his comment that none of the presiding Judges in those cases heard counsel before referring them to the Committee for investigation. These cases do not involve a referral by a Supreme Court Judge and are distinguishable on their facts. In my decision of Madang Development Corporation Ltd v. Rabtrad Madang Limited (2013) N5259 to which Makail J refers, the contemnor lawyer had pleaded guilty to contempt of court. There was a hearing as to the sentence to be imposed at which the contemnor was heard as to penalty. This case did not involve a referral to the Lawyers Statutory Committee, the body established to inquire into a complaint against a lawyer, for disciplinary action. It also was not a referral before any adverse finding, order or determination of guilt, as in this case. As Makail J notes, it involved the forwarding of a copy of my decision to the Police Commissioner and President of the PNG Law Society for their consideration as to what action may be warranted. This case therefore is distinguishable on its facts.
40.    As I am of the view that the two lawyers were not treated fairly and that they should have been accorded natural justice and procedural fairness but were not, the referral of the two lawyers by Kirriwom J should be quashed. Given this it is not necessary to consider the other submissions of counsel.
41.    I would Order that:
a)	the findings, decision and directions of Kirriwom J to refer Ms. Tiffany Twivey and Mr. Sam Bonner to the Lawyers Statutory Committee are quashed.
b)	costs be in the cause.

42.   MAKAIL J: This is an application to discharge an order of a single Judge of the Supreme Court pursuant to Order 11, rules 25 and 26 of the Supreme Court Rules.  The brief facts of the case are this, Kirriwom J sitting as a single Judge of the Supreme Court heard an application by the fourth respondent for an interim injunction to restrain Jema Lawyers from acting for the sixth and seventh respondents.  In his ruling, his Honour observed that Mr. Sam Bonner and Ms. Tiffany Twivey counsel for the Commissioner of Police and the first respondent respectively “could be guilty of perverting the course of justice where they filed application in the District Court and signed consent judgment setting aside the warrant of Arrest of Dairi Vele without notifying Detective Chief Inspector Gitua who was the complainant in the proceeding before the District Court in this matter and who was by virtue of being the Complainant was a party in this case.”

43.   His Honour’s reason was that it was not a standard practice in the Police Force for lawyers who were acting for a third party to remove the Informant – Mr. Gitua.  Based on this, his Honour referred both lawyers to the Lawyers Statutory Committee (“Committee”) for disciplinary action and left it to the sixth and seventh respondents to pursue.  Subsequently, his Honour sent a letter under the official Chambers letterhead dated 27th August 2015 to the Chairman of the Committee referring both lawyers for unethical, unprofessional conduct and conduct which could amount to perverting the course of justice.  His Honour also enclosed a copy of his written judgment given on the application which also covered his reasons for referring these two lawyers for disciplinary action.

44.   The main ground is based on the principles of natural justice and procedural fairness.  The two lawyers claimed that they should have been accorded natural justice and procedural fairness by Kirriwom J before his referral of them to the Committee for disciplinary action.  They contended that his Honour did not give them an opportunity to respond to the allegation before their referral to the disciplinary body for investigation.  Amongst other things, they contended that the referral had attracted much publicity in mainstream media newsprint and internet and as a consequence, had adversely impacted on their practice as lawyers, tarnished their reputation and painted a bad picture of them in the public eyes and importantly, their clients.  They stood to lose substantially, personally and professionally.   

45. The principles of natural justice are stated in section 59 of the Constitution.   It states:

“59.	Principles of natural justice.

(1)	Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2)	The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.”

46.  In my view the claim of denial of natural justice and Kirriwom J’s referral of the two lawyers to the Committee for disciplinary action must be considered in the context of lawyers conduct and discipline under the Lawyers Act, 1986. Otherwise, it may be misunderstood and lead to lawyers using the Court to usurp the authority of a designated body mandated by statute to deal with lawyers conduct and disciplinary matters.  Thus, the real issue is not one which was asserted to be the issue in this case but one of whether the referral was an order of the Court.  If it is, it is susceptible to challenge by an aggrieved party (or lawyer).  

47.  Part V of the Lawyers Act, 1986 deals with Lawyers Professional Conduct.  A quick run-down of the scheme of things under this Part is:

•	Section 48 provides for establishment of a Lawyers Statutory Committee.
•	Section  49 provides for composition of the Committee.
•	Section 50 provides for vacation of office by members of the Committee.
•	Section 51 provides for protection of the Committee.
•	Section 52 provides for functions of the Committee.
•	Section 53 provides for procedure and functions of the Committee.
•	Section 54 provides for power of the Committee to impose penalties.
•	Section 55 provides for decision of the Committee.
•	Section 57 provides for the Committee to advise the PNG Law Society of order to remove lawyer’s name from Lawyers Roll.
•	Section 58 provides for appeal from decision of the Committee to the National Court.
•	Section 59 provides for the powers of the National Court to impose penalties.

48.  Significantly, the Act establishes a Lawyers Statutory Committee: section 48.  The function of the Committee is to enquire into complaints against a lawyer of improper conduct: section 52(1).  Any person may request the Committee to enquire into an allegation of improper conduct by a lawyer: section 52(2).  As to how the Committee conduct its inquiry, the Committee has powers of a Commission of Inquiry under the Commissions of Inquiry Act, 1951 but may otherwise determine its own procedures when enquiring into complaints of improper conduct and shall observe the rules of natural justice in carrying out an inquiry: section 53(1). (Emphasis added).  

49.   It is further noted that proceedings of the Committee is not open to the public: section 53(4) and witnesses are protected from self-incrimination: section 53(5). In my view these provisions under Part V of the Act provide a comprehensive procedure for disciplining lawyers for alleged improper conduct.  

 50.  The Professional Conduct Rules, 1989 (“Rules”) sets out the various offences that the Committee may deal with regarding lawyers conduct.  The referral of the two lawyers emanated from legal proceedings before the Court.  Rule 15 of the Rules is pertinent to this case because it covers conduct of lawyers in the discharge of their duties in Court proceedings.  Of relevance is Rule 15(2) which states that “A lawyer shall not knowingly deceive or mislead the Court.”

51.  Here, we are dealing with a case where a Judge of the Supreme Court referred two lawyers to the disciplinary body to be dealt with for suspected improper conduct.  The suspected improper conduct emanated from Court proceedings in which both were counsel. They were suspected of misleading the Court.  They appeared at the District Court and by agreement removed Mr. Gitua as Informant and replaced him with the Police Commissioner and then had the Court set aside the warrant of Arrest of Mr. Vele.  In my view such conduct would fall within Rule 15(2) and constitute an improper conduct.  Whether such conduct is, in fact, improper is a different matter and the appropriate and mandated body to deal with that question is the Committee pursuant to the procedure which I have briefly outlined at [47], [48] and [49] above.  

52.   The case of Ainsworth v. Criminal Justice Commission (1992) 175 CLR 564 which was relied upon to support the proposition that the two lawyers should have been given an opportunity to be heard before their referral is distinguishable.  It was a case dealing with a company and publication of a report which contained a recommendation to the Queensland Parliament that the Ainsworth Companies not be permitted to participate in the poker machine industry.  Thus, that case is of no assistance.

53.   Other than this, parties did not cite any case on point.  The case of Re Sandbrook Solicitors [2015] EWHC 2473 which Hartshorn J referred to in his judgment may be of some assistance.  It was a decision of the England and Wales Administrative Court where the Court was concerned about the conduct of solicitors in handling a case before it. They were given notice to attend a hearing to show cause why they should not be referred by the Court to the Solicitors Regulation Authority.  However, that case is of persuasive value and this Court is not bound to follow it.  

54.  The issue of referral of lawyers by a Judge is not a new thing or a recent invention.  It has been done before in this jurisdiction and I can refer to some of the reported cases dealing with this issue.  In Rimbink Pato v. Reuben Kaiulo & Ors (2003) N2455, that was a case where the Court constituted by Kandakasi J referred counsel for one of the parties, Mr. John Poro to the Committee for breaching Rule 15(10) of the Rules.  The second case is Spirit Haus Limited v. Robert Marshall (2004) N2630 where the same Judge referred Mr. Michael Wilson counsel for the defendant to the Committee for improper conduct under Rule 15 of the Rules.

55.  Thirdly, in John Bedford Bray v. Susan Kupa Derks (2008) N3483, Manuhu J referred Mr. Karu counsel for one of the defendants to the Committee for improper conduct arising from a Court proceeding and asked Mr. Bray to facilitate the referral.  The fourth case is Madang Development Corporation Limited v. Radtrad Madang Limited (2013) N5259.  In that case, the presiding Judge, Hartshorn J after finding lawyer Mr. Emmanuel Mai guilty of contempt of Court and sentenced him to imprisonment for nine months, directed the Registrar to forward a copy of the decision to the Police Commissioner and President of the PNG Law Society for their consideration as to what action may be warranted.  The final case is Simon Ketan v. PNG Law Society (2002) N2290.  That was a referral by the PNG Law Society based on a complaint by the Commission of Inquiry which inquired into the National Provident Fund (“NPF”).

56.   Except for Simon Ketan case which originated from a complaint from the Commission of Inquiry, in the other cases, none of the Judges heard counsel before referring them to the Committee for further investigation.  In my view what Kirriwom J did appears consistent with the practice adopted by the Judges over the years.  And there are good reasons for this.  The practice is not only consistent with the procedure for dealing with improper conduct by lawyers under the Lawyers Act, 1986 but also one that respects the authority of the Committee which is mandated by law to perform its function without interference by the Court. 

57.  The referral of the two lawyers has characteristics of an order of the Court because it was made by a Judge and emanated from a Court proceeding before his Honour.  Given this it can easily be mistaken as an order.  However, it is not an order nor can it be described as one. In my view the true nature of the referral is a complaint under section 52(1).  It is the case because section 52 does not state how a complaint is made to the Committee and who can make a complaint although it does state that any person can make a complaint.  Thus, in my view his Honour’s referral was one way of formally bringing to the notice of the Committee a suspected improper conduct by these two lawyers.  

58.  Equally important is that, it was a way of informing the lawyers of the complaint he will be making to the Committee.  Another way could be that his Honour could make a complaint in private to the Committee by way of a letter.  In this case, his Honour did both.  In open Court, he informed the parties and the two lawyers concerned and subsequently sent a letter to the Committee together with a copy of the written judgment.  The concerns by the lawyers that his Honour’s referral of them in open Court attracted huge adverse publicity in the media is unavoidable given that it is common knowledge that we live in the days of modern technology making media coverage of events and occurrences readily available to the public on a daily basis.  Thus, it is through no fault of the Court that the referral of the lawyers featured prominently in the media at the material time.

59.  If this was the primary consideration for the Judge to give the lawyers opportunity to explain their conduct, it would be tantamount to the lawyers using the Court to usurp the authority of the Committee, even if it may be a preliminary hearing for the lawyers to show cause as was done in Re Sandbrook Solicitors.  I conclude that his Honour did not order the lawyers to be referred to the Committee but made a complaint about their conduct in the case before him.  It follows that the challenge to the referral must fail.  

60.   As it is a complaint, the Act adequately covers how the complaint is to be dealt with. The allegation of improper conduct will now be processed through the Committee under the Act.  It also has safeguards to protect the interests of the parties, particularly the lawyer subject of the complaint.  For instance, the lawyers will be accorded the opportunity to be heard by the Committee as the Committee is bound by section 53(1) to observe the rules of natural justice when inquiring into the allegation.  The other is they will be heard in private because by section 53(4), the proceedings of the Committee are not open to public.  They are also entitled to give sworn evidence and may cross-examine witnesses.  Thus, I find the concerns raised by the lawyers premature and misconceived.

61.  The affording of the right to be heard had, in fact, began.  There is evidence before us in the form of a letter from the Secretary of the Committee to one of the lawyers dated 24th September 2015 informing that the Committee had received a complaint of improper conduct against the lawyers from his Honour and asked her to respond within twenty-one days.  There is further evidence that Ms. Twivey responded to the Committee’s letter and I refer to the letter from Twivey Lawyers dated 20th October 2015.

62.   In her response, Ms. Twivey tried to explain the circumstances leading up to her referral and mentioned something about the referral being “sub judice of the Supreme Court”.  It is not the function of this Court nor is it my intention to discuss the merits of the explanation by Ms. Twivey but the point to bring home is that if she and Mr. Bonner are complaining about being denied by the Judge of being heard, they are now being given the opportunity and it is there at the Committee hearing that they can respond to the allegation.

63.  For these reasons, I decline to follow Re Sandbrook Solicitors.  I find the entire application is misconceived.  It is refused with costs.

64.   SAWONG J:	  The background facts are adequately set out by Hartshorn, J. This aspect of my decision is in regard to the decision by Kirriwom, J to refer two lawyers to the Lawyers Statutory Committee.  

65.  I have read the draft of Makail, J’s reasons.  I agree with his reasons.  However I wish to add a few comments of my own.

66.  Section 5 (1) of the Supreme Court Act, gives a single Judge of the Supreme Court power to make incidental directions or interim orders, where  an appeal is pending before the Supreme Court.  

67.   A party aggrieved by such direction or order may apply to the full court to vary or discharge those interim orders or incidental directions.  Order 11 Rule 25 Supreme Court Rules.

68.   In my view, there are two issues to determine in regard to this part of the application.  The first is whether the two lawyers concerned are proper parties to seek a review of the decision of Kirriwom, J. 

69.   The second is whether, upon a proper construction of these statements and actions of Kirriwom, J, in referring the said two lawyers, amounted to issuing incidental direction or interim orders within the meaning of section 5(1) (a) of the Supreme Court Act and therefore would come under Order 11 Rule 25 of the Supreme Court Rules to have those incidental direction or interim order varied or discharged.

70.  Before I consider these issues, it is necessary to set out in full the relevant law.

71.  Section 5 reads:

1.	 Incidental Directions and Interim Orders.
(1)	 Where an appeal is pending before the Supreme Court-
(a)	 A direction not involving the decision on the appeal; or
(b)	 An interim order to prevent prejudice to the claims of the parties; or 
(c)	 An order in any proceedings (other than criminal proceedings) for security for costs; or
(d)	 An order dismissing an appeal in any proceedings (other than criminal proceedings) for default in furnishing security; or 
(e)	 An order admitting an appellant to bail,
      may be made by a Judge. 
(2)	 A direction or order made under Subsection (1) shall be deemed to be a direction or order of the Supreme Court.
(3)	A direction or order made under Subsection (1) may be discharged or varied by the Supreme Court.”

72.   Order 11 Rule 25 reads:

“25. A party dissatisfied with a direction or order given by a Judge under these rules or Section 5 of the Act, may, upon notice to the other parties concerned in proceedings, file and served within 21 days of the making of such direction or order, apply to the Court which may make such orders as appears just”.

73.   Section 5 of the Act, grants jurisdiction to a single Judge of the Supreme Court, to make interim orders or incidental directions where an appeal is pending before the Supreme Court. The jurisdiction of a single judge is limited in scope to those matters set out in S.5 (1) (a) to 5(e).

74.  For instance, a Judge has jurisdiction under s.5 (1) (a) to make “a direction not involving the decision on the appeal”.  Similarly, a single Judge of the Supreme Court has jurisdiction to make “an order admitting an appellant to bail” s.5 (1) (e).

75.   Section 5 of the Act and Order 11 Rule 25 of the Supreme Court Rules must be read together to give proper meaning and effect. 

76.  In my view, when read together, the provisions are meant to apply to parties to an appeal, that is, the appellant and the respondents.  It is not meant to apply to strangers or parties who are not parties in an appeal before the Supreme Court.

77.  In my opinion Order 11 Rule 25 makes this abundantly clear, for it reads; “A party dissatisfied with a direction or order” may apply to the full Court.  Rule 25 refers to “a party”- meaning that the jurisdiction to review under Order 11 Rule 25 is restricted to parties on the appeal.  It is not open to non parties.

78.  In my view, it would be wrong to interpret section 5(1) and Order 11 Rule 25 widely, to include parties or persons who are not parties to “an appeal before the Supreme Court”.  In my view, to interpret section 5(1) and order 11 rule 25 widely to include strangers or persons who is not “party to an appeal before the Supreme Court”, would be too great a change into the law by unnecessary implication. 

79.  In this case, the application to discharge the referral of the lawyers is made by the First Respondent.  However, it is clear to my mind that Kirriwom J. did not direct or order the First Respondent to the Lawyers Statutory Committee.  To that extent, the application by the First Respondent to discharge referral of the two lawyers is misconceived.

80.   Further, upon a closer analysis, I am of the opinion that the two lawyers have sought to discharge their referral in the disguise of this application.  They have mounted an argument on back of an application by the First Respondent.  The problem with this is that Kirriwom, J did not issue a direction or order to the First Respondent, nor did he direct or order the First Respondent to do anything in regard to the two lawyers concerned.  There in lies the heart of problem with this part of the application.

81.  The true nature of the application is made by Ms Twivey and Mr Bonner to discharge their referrals to the Lawyers Statutory Committee. The way this ground is pleaded is to make this ground look as if it was a ground by the First Respondent, when in fact the ground is relied on by Ms Twivey and Mr Bonner to discharge their referrals in my opinion, this is deceptive and misleading.  It is a mischievous ground and should not have been pleaded nor raised in the first place. 

82.   Further, in order to determine whether the words and actions complaint of amounted to a “incidental direction” or “interim order”, it is necessary to determine, whether upon a proper construction of the statements made by His Honour amounted to an “incidental direction” or “interim order” under Section 5 (1) (a) and would therefore fall within the ambit of Order 11 Rule 25 of the Rules to discharge or vary those direction or order.  

83.  A plain and ordinary reading of the statement shows that His Honour did not make any direction or order to anyone.  He did not issue any direction or order to the First Respondent nor to any of the other parties to the appeal.  He certainly did not direct or order anyone else to do anything to Ms Twivey or Mr Bonner.  

84.  In my view what Kirriwom, J said and did are upon a proper construction, complaints by him about the conduct of the two lawyers concerned.  He stated that he was unhappy with their conducts in the way they dealt with a particular aspect of the case in the District Court.  In my view, upon a proper construction of the statements complained of, cannot by any stretch of imagination, amount to him issuing incidental directions or interim orders.

85.  For these reasons I am not satisfied that the statements made by Kirriwom, J falls within the ambit of s.5 (1) (a) of the Supreme Court Act, and Order 11 Rule 25 of the Supreme Court Rules.  I am of the view that this part of the application is misconceived.  I would therefore refuse this ground of the application.

86. I would order that the appellant, the first, second, fourth, fifth respondents pay the costs of the 6th & 7th respondent in respect of this part of the application.

Orders
87.  The Orders of the Court are:
a)	the application of the first respondent for the findings, decision and directions of Kirriwom J to refer Ms. Tiffany Twivey and Mr. Sam Bonner to the Lawyers Statutory Committee to be quashed is refused;
b)	the costs of the sixth and seventh respondents of and incidental to the application referred to in paragraph a) above shall be paid by the appellant, second respondent, fourth respondent and fifth respondent, to be taxed if not agreed.

____________________________________________________________
Leo Lawyers:         Lawyers for the Appellant                                        
Twivey Lawyers:   Lawyers for the First Respondent                            
Saulep Lawyers:    Lawyers for the Second and Fifth Respondents       
Paraka Lawyers:  Lawyers for the Third Respondent                           
Tame Lawyers:    Lawyers for the Fourth Respondent                        
Jema Lawyers:   Lawyers for the Sixth and Seventh Respondents