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Ponifasio v Samoa Law Society [2012] WSCA 4 (31 May 2012)

Court of Appeal of Samoa

Ponifasio v Samoa Law Society [2012] WSCA 4

Case name: Ponifasio v Samoa Law Society

Citation: [2012] WSCA 4

Decision date: 31 May 2012

Parties: TUALA AUIMATAGI IOSEFO PONIFASIO v SAMOA LAW SOCIETY

Hearing date(s): 28 May 2012

File number(s): C.A. 01/12

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s):

Honourable Justice Baragwanath

Honourable Justice Fisher

Honourable Justice Galbraith

On appeal from:

Order:

Representation:

B Squire QC and S Ponifasio for appellant

S Leung Wai for respondent

Catchwords:

Words and phrases:

nemo iudex principle

Legislation cited:

Cases cited:

Porter v Magill [2002] 2 AC 357

Saxmere v Wool Board [2009] NZSC 72; [2010] 1 NZLR 35

R v Institute of Legal Executives [2011] EWCA Civ 1168,

Findlay v United Kingdom [1997] ECHR 8; (1997) 24 EHRR 221

Porter v Magill at 489:

R v Bow Street Magistrates, Ex Parte Pinochet (No 2) [1999] UKHL 1; [2000] 1 AC 119

R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2) [1999] UKHL 1; [2000] 1 AC 119, 139

Re P;

Sengupta v Holmes

Carver v Law Society of NSW (1997) 43 NSWLR 71

Livesey v NSW Bar Association (1983) 151 CLR

R v Institute of Legal Executives.

Meerabux v AG of Belize [2005] EWCA Civ 634; [2005] 2 AC 513

Smith v Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242

Laws v Australia Broadcasting Tribunal (1990) 170 CLR 935

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

C.A. 01/12

BETWEEN

TUALA AUIMATAGI IOSEFO PONIFASIO

Appellant

AND

THE SAMOA LAW SOCIETY

Respondent

Coram:

Honourable Justice Baragwanath

Honourable Justice Fisher

Honourable Justice Galbraith

Counsel:

B Squire QC and S Ponifasio for appellant

S Leung Wai for respondent

Hearing: 28 May 2012

Judgment: 31 May 2012

JUDGMENT OF THE COURT

Background

1. This is an appeal against the judgment of the Supreme Court given on 22 December 2011 dismissing an appeal brought by the appellant against two decisions of a Tribunal of the Samoa Law Society. The first, delivered orally on 14 November 2010 and confirmed in a written decision on 10 December 2010, held that the appellant was guilty on two charges of professional misconduct relating to a failure to account to a client for funds received. The second, delivered on 26 November 2010, suspended the appellant from practice for a period of two years.
2. Most of that period has passed now.
3. The disciplinary process of the Society rests on sections 35 and 36 of The Law Practitioners Act 1976:

“35. Disciplinary powers of Council – The Council may inquire into and determine in accordance with this Part any charge of professional misconduct, or of conduct unbecoming a barrister or a solicitor, relating to any practitioner.

36. Procedure on inquiry – (1) Where it appears to the Council, after making such preliminary inquiries as it thinks proper, that there is reasonable cause to suspect that any practitioner is guilty of professional misconduct, or of conduct unbecoming a barrister or a solicitor, the Secretary shall serve a notice in writing of the charge on the practitioner.

(a) Specifying the charge in sufficient detail to enable him or her to prepare any defence; and

(b) Appointing a time and place, not being sooner than 21 days after the notice is served on the practitioner, at which the Council will proceed to hear and determine the charge.

(2) If the Secretary is unable to serve the notice on the practitioner because he cannot be found, or is abroad, the Secretary may effect service by publishing the notice in the Gazette or in the Savali or in any Samoa newspaper, on 2 separate occasions at least 14 days apart, and the notice shall be deemed to be duly served on the date on which it is so published for the second time.

(3) The Council may appoint any member of the Law Society to present the case against the practitioner.

(4) Where the Council is satisfied that the notice has been duly served in accordance with this section, it may proceed to hear and determine the charge, whether or not the practitioner appears to answer it.

(5) The practitioner against whom the charge is brought shall be entitled to be represented personally or by counsel, and cross-examine witnesses called against him or her, and call evidence in his or her defence, and address the Council on the charge.

(6) The Council may from time to time adjourn the hearing of any charge as it thinks proper and may reserve its decision.

(7) After hearing the charge in accordance with this section, the Council shall decide whether the charge is proved or not proved.”

4. On receipt in 2009 of a complaint from the appellant’s client the Society instituted an enquiry through its Disciplinary Committee which consisted of three members of the Society who were not members of the Council. That Committee met on 19 May 2010 and recommended to Council that four charges be laid. That recommendation was considered by the Council which was required to determine whether reasonable grounds existed for the laying of the charges. The Council determined that such grounds existed and four charges were notified on 5 October 2010. Mr Leung Wai, a member of the Society but not of the Council, was appointed to prosecute. The Council further resolved to appoint a Tribunal consisting of five members of the Council, including the President and Vice-President to hear and determine the charges. The hearings took place in November 2010 with the outcome noted above. The appellant challenges the validity of the process.

Discussion

5. There is no doubt and no challenge to the fact that the Council of the Law Society set about its task in good faith and intending to comply with sections 35 and 36 of the Act. Those sections identify functions of initial enquiry, determination as to whether reasonable grounds exist to justify charges, appointment of a prosecutor, and ultimate hearing and determination of any charges. It is the last function and the delegation to a Tribunal consisting of Council members that raises issues important not just to this individual case but for subsequent legal disciplinary proceedings in Samoa.
6. The principal issue on appeal is whether that Tribunal, constituted by five members of the Council, satisfies the obligations of independence and impartiality recognised in Article 9 of the Constitution and at common law.
7. The common law, conventions such as the Convention for the Protection of Human Rights and Fundamental Freedoms, and national statutory and internal regulatory regimes for disciplinary proceedings similar to the present one have become increasingly responsive to the precept that justice must not only be done but be seen to be done. This is reflected, for example, in the development of the test for apprehended bias now recognised in England in Porter v Magill [2002] 2 AC 357 and in New Zealand in Saxmere v Wool Board [2009] NZSC 72; [2010] 1 NZLR 35.
8. Absent actual bias, which is not and could not be alleged in the present case, bias is then a poor but traditional descriptor of the underlying concept which, in our view, is better encapsulated by the terms of Article 9 of the Constitution and the requirement for an independent and impartial Tribunal.
9. It is that question, can the Tribunal constituted by Council members be held to satisfy the requirements of independence and impartiality, which is central to the appeal. There are two related aspects to this question:
   1. Does the constitution of the Tribunal bring into play the nemo iudex principle – no person shall be a judge in their own cause.
   2. Would the constitution of the Tribunal give rise in the mind of a fair minded lay observer of a real apprehension of bias or partiality, in the sense of a concern that the Tribunal members might consciously or unconsciously be influenced by their earlier decision that there were reasonable grounds to lay the charges and the fact that the Counsel was, or behalf of the Society, the prosecuting entity.
10. The English Court of Appeal has recently, in R v Institute of Legal Executives [2011] EWCA Civ 1168, suggested that these two strands of the law are tending to coalesce. We agree that there is a sense in which that is so, although the leading authorities still recognise a distinction. Nevertheless the broad justification which underlies both principles can be seen in a passage from the judgment of the European Court of Human Rights in Findlay v United Kingdom [1997] ECHR 8; (1997) 24 EHRR 221 cited by Lord Hope in Porter v Magill at 489:

“The court recalls that in order to establish whether a tribunal can be considered as ‘independent’, regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence. As to the question of ‘impartiality’, there are two aspects of this requirement. First, the tribunal must be subjectively free from personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. The concepts of independence and objective impartiality are closely linked...”

11. The developments which have taken place are all reflective of an overriding policy recognition that people must have confidence in the institutions of power in the State and a more sophisticated recognition of long recognised values that processes such as the present one must meet criteria that outsiders, i.e. lay persons, not just insiders, i.e. Judges or lawyers, can have confidence in without qualification. In our view that value is explicitly recognised in Article 9 of the Samoa Constitution, albeit that we accept that the application of the value and practice may today be more developed than at the time of the introduction of the Constitution. As Mr Leung Wai accepted the Constitution is a speaking document and so is to be interpreted in the contemporary context.
12. Before this Court the appellant relied upon the decision in Re P [2005] 1 WLR 3019 as encapsulating the applicable principles. That decision had not been cited to the Judge in the Supreme Court. The facts in Re P differ from the present case, in that the challenge there was to the presence of a lay member, on a disciplinary tribunal, who had not been involved in any way in the preliminary stages of laying of the charges but who was a member of the entity which had regulatory responsibility for laying and prosecuting the charges. Despite the lack of any direct involvement it was held that she was disqualified from sitting on the disciplinary tribunal. The ratio of the decision is breach of the nemo iudex principle but the Court’s decision makes it clear that she would also have been regarded as disqualified under the principle of apprehended bias. And this without any personal prior knowledge or involvement in the process.
13. Re P contains a valuable traverse of the path by which not only courts have developed the applicable jurisprudence but disciplinary practices have been adjusted to appropriately meet the dual principles of nemo iudex and apprehended bias. The most authoritative recent decision on nemo iudex is that of the House of Lords in R v Bow Street Magistrates, Ex Parte Pinochet (No 2) [1999] UKHL 1; [2000] 1 AC 119. After extensive citation from that decision, the judgement in Re P concludes in respect to situations where the challenged person is not a party:

“86. It is clear from the analysis of Lord Hoffmann’s position that the key consideration for the purposes of automatic disqualification at common law in a case where the judge or tribunal member is not a party to the proceedings is the nature of that person’s connection with or relationship to a party and in particular whether that connection or relationship is such that the person in question must be treated as if the “cause” of one of the parties was also his “cause”. The rationale for so treating such person is that by reason of the connection or relationship in question he is taken to share the interest of the party in a particular outcome. In applying this analysis it is, however, important not to confuse it with a relationship or connection which gives rise to mere apparent bias at common law, let alone to an inference of actual bias. The conclusion that would be derived by the fair-minded and informed observer by consideration of all the circumstances which had a bearing on whether there was a real possibility that the judge was indeed biased is therefore not the relevant test. As Lord Nolan briefly put it in R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 2) [1999] UKHL 1; [2000] 1 AC 119, 139: ‘I would only add that in any case where the impartiality of a judge is in question the appearance of the matter is just as important as the reality.’

87. What matters is whether the appearance in the court of the relationship between the judge and a party indicates that they have a common interest.”

14. It was further held in Re P that the challenged person, as a member of the prosecuting entity albeit not herself involved in the prosecution, was associated with the prosecuting entity:

“89. The decision by the PCCC [Professional Conduct and Complaints Committee of the Bar Council] to institute proceedings against a barrister thus imposes upon the PCCC as agent for the Bar Council a duty to prosecute that person and, consistently with the applicable procedure, to present the case against the barrister in a manner designed to procure conviction. Whereas it is undoubtedly true that the proceedings in which the charges are prosecuted must be fairly and justly conducted, those representing the Bar Council have a duty as its agents to procure conviction or in the case of appeals before visitors to defeat an appeal. They do not have the function of a neutral amicus. Their interest is conviction or dismissal of appeals.

90. ...That responsibility applies to the PCCC as an entire body and not merely to some of its members.”

15. The position here is of an even more direct involvement. While the charges are laid in the name of the Society it is the Council members who made the determination to lay the charges and represent the Society which is the prosecuting entity. As well, while not necessarily directly involved in the conduct of the prosecution, they have oversight of the prosecution. Those functions inevitably and directly bring into play the nemo index principle, both as reflected in Article 9 and in the common law. In our view it is not possible to describe a body which considers and makes the determination to lay charges, appoints the prosecutor, in effect is the prosecuting entity and controls the conduct of the prosecution, as independent. The appellant’s challenge must succeed on this ground.
16. Whether the challenge should succeed on the impartiality ground is more nuanced. A preliminary determination may not in all situations disqualify a decision maker from participating in the ultimate determination. Certainly Judges who have determined a preliminary issue, for example an interim injunction application, would not without more be regarded as barred from determining the substantive injunction application. But Judges engaged in that process are independent. They are not party in any way to the proceedings. They are accepted to be capable of distinguishing the different legal and evidential tests at the two stages – after all that is why they were appointed as a Judge. We would be cautious about drawing conclusions based on a analogy with the position of Judges.
17. Similarly while Laws LJ was right to say in Sengupta v Holmes, The Times, 19 August 2002 that fair minded people would or should not inevitably presume that a person was incapable of changing his or her mind with the benefit of further information there are, regrettably, many examples where right minded people have proved incapable of such rationality. That risk, or at least the perception of that risk, is compounded when those persons are not truly independent in the process. In those situations the authorities indicate that the choice is generally to be made of avoiding that risk and preferring the certainty of insulating those involved in preliminary determinations from any involvement in the ultimate determination. As Lord Hope said in Porter v Magill:

“...the concept requires not only that the tribunal must be truly independent and free from actual bias, proof of which is likely to be very difficult, but also that it must not appear in the objective sense to lack those qualities.” [489].

18. Again Re P provides a useful traverse of the manner in which disciplinary regimes have been modified to expressly avoid the involvement in the ultimate determination process of any person who has had involvement at a preliminary stage, even though that involvement might only be characterised as “screening”.
19. The decision in Carver v Law Society of NSW (1997) 43 NSWLR 71 is but one example:
    

“It is clear law that a judge should not sit to hear a case if, in all the circumstances, the parties, or the public, might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it (see e.g. Livesey v NSW Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294, 298-299) and although the respondent denied that the facts of the present case attracted the application of that principle, the respondent did not deny that principle was applicable to the members of a tribunal such as the Tribunal. Whatever may be the views of others. I must say that it is my view that it could not be said that a fair minded and reasonable observer who became aware that one of those who had been involved in the investigation of, and the making of the decisions in relation to, matters to be determined by a tribunal of which that person was a member, could not reasonably entertain an apprehension that that person might not bring an impartial and unprejudiced mind to the resolution of the question involved.

20. Exactly that same recognition of the inevitability of disqualification because of preliminary involvement can be seen in the discussion of the issue in R v Institute of Legal Executives. In Re P, Lord Hope’s judgment in the Privy Council in Meerabux v AG of Belize [2005] EWCA Civ 634; [2005] 2 AC 513, where the challenge arose simply from membership of the complainant Bar Association, was cited:

“30. As for the automatic disqualification rule on the facts of the case, Lord Hope said as follows:

[24] ... it is clear that Mr Arnold’s detachment from the cause that the Bar Association was seeking to promote was complete. He had taken no part in the decisions which had led to the making of the complaints, and had no power to influence the decision either way as to whether or not they should be brought. In that situation his membership of the Bar Association was in reality of no consequence. It did not connect him in any substantial or meaningful way with the issues which the tribunal had to decide. As Professor David Feldman has observed, the normal approach to automatic disqualification is that mere membership of an association by which proceedings are brought does not disqualify, but active involvement in the institution of particular proceedings does: English Public Law (2004), para 15 – 76 ...”

And it was then said:

“35.These authorities to my mind illustrate the distinction which may have to be made. Participation in a prosecutorial capacity, even if not in the case in question, will disqualify or else raise concern in the mind of fair minded observer about the appearance of impartial justice.

“36. Folskett J accepted the submission....that the creation of IPSL [ILEX Professional Standards Limited] was a sufficient guarantee of fair regulation...The obligation on ILEX members to procure compliance with professional standards did not give rise to any material interest or to an appearance of bias, for it did not require the adoption of unfair procedures...The “fundamental concern” of all the jurisprudence, including P, was that “ a member of the disciplinary panel should not have had an investigation or screening role in the inquiry into the allegations of misconduct that he or she is called upon to consider” (at para 36). There was every sign, for instance in the fact that Ms Kaur was acquitted of one of the two charges against her, that the system operated fairly.

37. In any view, this judgment does not adequately reflect the principled concerns discussed in the case. It is clear from the jurisprudence that the “fundamental” concern goes much wider than involvement in the allegations in the instant case on which the panel member was called to adjudicate. Nor does on underlying fair procedure make up for a perception of the real possibility of bias. Nor can one assess the play of the issues concerned by reference to confidence in a fair outcome.”

21. Accordingly, but again emphasising that there is no question here of actual bias by any member of the Council or the Tribunal, it is our view that the process adopted, in circumstances where the Council was not independent, did not meet the Article 9 or common law process obligations of impartial determination.
22. A further question arises as to whether the applicant’s acceptance of the process adopted by and participation in the hearing by the Tribunal bars his present challenge. It was submitted on behalf of the Society that this was not a situation where the disqualifying factor was in some way hidden but rather than the appellant had full knowledge of the process adopted and the status of the members of the Tribunal.
23. That is undoubtedly correct. However, waiver requires full knowledge – see, for example, Smith v Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242. While in a sense knowledge was available, the implications of the adopted process was not necessarily obvious as is evidenced by the contrary view taken by the Supreme Court in this case. Indeed Ms Ponifasio, who appeared as counsel for the appellant before the Tribunal, has sworn an affidavit to the effect that she and her husband accepted the process because it appeared to confirm to section 36 of the Act and that the invalidating implications were not recognised by them. Of course, it might also be said that the Council of the Society also did not recognise the implications. While there may be situations where absence of appreciation of a legal argument may not avoid a finding of waiver that is unlikely to arise where there has been a failure to comply with a constitutional obligation.
24. In our view it would be inappropriate to hold against the appellant’s challenge on the ground of waiver. For completeness we simply note that the doctrine of necessity which was discussed in Laws v Australia Broadcasting Tribunal (1990) 170 CLR 935 does not arise because the Council always had the power in section 18(3) to create a Hearing Tribunal. The power therefore existed to create a Tribunal independent of the members of the Council who had been involved in the preliminary determination and who would oversee the conduct of the prosecution.
25. On the view we have taken the appellant’s challenge succeeds on the first ground of appeal. It is therefore unnecessary for is to determine the second or third grounds advanced.
26. We accordingly order that:

(1) the decision of the Supreme Court is reversed;

(2) the Society’s decisions of 12 November 2010 (delivered in writing on 10 December 2010) and 26 November 2010 are set aside.

27. Our decision has no effect on the validity of the charges that were validly laid. The Council of the Society should now determine whether to proceed on those charges but in doing so it must, and we are confident will, ensure the appointment of an independent Tribunal made up of members of the Society who have not been involved in any of the preliminary stages of the prosecutional process in relation to the charges.

Decision

28. The appeal is allowed. Costs payable by the respondent to the appellant are fixed at $5,000.
    

Honourable Justice Baragwanath

Honourable Justice Fisher

Honourable Justice Galbraith