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Toll v Kara (No.2) [1990] PGNC 139; [1990] PNGLR 201; N851 (5 June 1990)

N851

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

TOLL

V

KIBI KARA, GREG LAY, POMAT PALIAU AND SALAMO INJA (NO 2)

Waigani
Kapi DCJ

25 May 1990
5 June 1990

LAWYERS - Misconduct and discipline - Disciplinary proceedings - Appeal from - Rehearing - Nature of - Hearing de novo - Lawyers Act 1986, s 58.

APPEALS - Appeal by way of rehearing - Nature of - Determined by statutory context - Lawyers Statutory Committee - Appeal from - By way of hearing de novo - Lawyers Act 1986, s 58.

The Lawyers Act 1986, s 58, provides:

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

...

(5) On an appeal, the record of proceedings of the enquiry by the Committee may, with the consent of the person making the complaint 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."

Held

Within the context of the Lawyers Act 1986, s 58, the term "rehearing" in s 58(4) means a hearing de novo.

Cases Cited

Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616.
Powell and Wife v Streatham Manor Nursing Home [1935] AC 243.
R v Syme, Reynolds and Williams; Ex parte Page [1970] WAR 153.
Toll v Kibi Kara [1990] PNGLR .

Appeal

This was an appeal from a decision of the Lawyers Statutory Committee to suspend from practice a lawyer found guilty of improper conduct.

Counsel

J Reeves, for the appellant.
J Sleight, for the respondents.

5 June 1990

KAPI DCJ: The Lawyers Statutory Committee is established under s 48 of the Lawyers Act 1986 (as amended). The Committee has power to deal with complaints against lawyers of improper conduct as a lawyer under s 52 of the Act. The Committee has power to impose penalties for improper conduct under s 54 of the Act.

The appellant was initially dealt with by the Committee under these provisions and was found guilty of improper conduct as a lawyer. It is not necessary at this stage to set out the details of the findings of the Committee in relation to the two complaints and the penalties imposed. The appellant subsequently appealed against the decision of the Committee on the finding of improper conduct as a lawyer and against the imposition of the penalties pursuant to s 58 of the Lawyers Act. This matter came before Hinchliffe J, and on 12 February 1990 his Honour delivered his judgment, upholding the finding of improper conduct as a lawyer, but quashing the penalties imposed on the basis that the principles of natural justice were breached in that the appellant was not heard on the question of penalty: see Toll v Kibi Kara [1990] PNGLR 71. The matter was sent back to the Lawyers Statutory Committee for the appellant to be given an opportunity to address the Committee on the question of penalty. The Committee sat again on 21 February 1990 and heard submissions from the appellant. On 28 February 1990, the Committee having considered the submissions, imposed a penalty in respect of decision No 1 made on 26 October 1989, of suspension from practice of a period of 28 days commencing on 28 February 1990. The Committee imposed a penalty in respect of its decision No 2 made on 26 October 1989 of 42 days suspension from practice to be operative from 28 February 1990 and both penalties to be concurrently served. The appellant has now appealed to this Court against the penalties imposed by the Committee.

At the hearing of the appeal, both counsel have raised a preliminary issue which needs to be decided before proceeding to deal with the merits of the appeal. It has been submitted by counsel for the appellant that an appeal under s 58 of the Lawyers Act is a rehearing de novo, and therefore the parties should lead fresh evidence for the purposes of the determination of the appeal. Counsel for the respondents has submitted that the appeal under s 58 of the Lawyers Act is confined to evidence which was put before the Statutory Committee.

The provision which calls for interpretation is:

"Section 58

(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 of 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 complaint 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."

Subsection (4) provides that an appeal under this provision shall be by way of rehearing by the Court. Both counsel are agreed that the term "rehearing" is capable of having different meanings. In Powell and Wife v Streatham Manor Nursing Home [1935] AC 243 at 249, Viscount Sankey LC said:

"There are different meanings to be attached to the word ‘rehearing’. For example, the rehearing at Quarter Sessions is a perfect rehearing because, although it may be the defendant who is appealing, the complainant starts again and has to make out his case and call his witnesses."

In the case of R v Syme, Reynolds and Williams; Ex parte Page [1970] WAR 153 at 155, Jackson CJ said:

"In my opinion the word ‘rehearing’ is susceptible of different connotations according to its context, and in each case it is a matter of construction to decide what meaning it bears in the context of a particular statute."

The question is what meaning is to be given to the term "rehearing" in the context of s 58 of the Lawyers Act? In determining this question, the passage from the judgment of Mason J (as he then was) in Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 at 621 is helpful:

"Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect. Despite some suggestion in argument to the contrary, I do not read Ex parte Australian Sporting Club Ltd; re Dash [1947] NSWStRp 11; (1947) 47 SR (NSW) 283 as enunciating such an absolute rule. There are, of course, sound reasons for thinking that in many cases an appeal to a court from an administrative authority will necessarily entail a hearing de novo and I exclude for present purposes the case of an appeal to a federal court exercising the judicial power of the Commonwealth under Ch III of the Constitution (Cth). The nature of the proceeding before the administrative authority may be of such character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority. There may be no provision for a hearing at first instance or for a record to be made of what takes place there. The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable. Again, the authority may not be required to furnish reasons for its decision. In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo.

On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed. The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination. In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance."

In my view, these are the relevant considerations in determining whether a rehearing takes on one form or the other. Mason J then goes on, and in my view, this is the determinant factor in considering this issue:

"But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing."

Where the legislation simply uses the word "rehearing", the matters set out in the judgment of Mason J would be the relevant considerations in determining the issue. However, as he pointed out, these matters in themselves are not definite indicators and the important thing is to elucidate the real intention of the Parliament. It would appear that in considering the matters discussed by Mason J, there is a strong argument supporting the position that a rehearing in the National Court should be based on the materials that were available before the Committee hearing. However, I need to interpret s 58(5), which would give the real intention of the Parliament regarding the nature of the rehearing before the National Court.

Where the Parliament intends that an appeal is by way of rehearing on the evidence given in the lower tribunal from which the appeal is lodged, the record of the hearing and the decision by the lower tribunal is provided to the appellate court for the purposes of hearing. The need to do that is inherent in the nature of the appeal. How this record is prepared and is brought to the appellate court, are set out in the rules of practice and procedure. For example, in the case of an appeal from the local court to the National Court, O 18, r 6 and r 7 of the National Court Rules deal with the manner in which the record, the decision, and other relevant documents are to be forwarded to the Registrar for the purposes of the hearing. Likewise, when there is an appeal from a review tribunal under the Income Tax Act the records of the review tribunal are forwarded to the Registrar for the purposes of the hearing under O 18, r 21 of the National Court Rules. Similarly, where there is an appeal from the National Court to the Supreme Court and the appeal is by way of rehearing under s 6 of the Supreme Court Act (Ch No 37), the Supreme Court Rules deal with questions of the record, the decision, and other relevant documents for hearing by the Supreme Court in an Appeal Book under O 7, Divs 11, 12, 13, 14 and 15 of the Supreme Court Rules. If the intention of the legislation under s 58 of the Lawyers Act is that the nature of the rehearing is based on the evidence that was given at the Committee hearing, the question of how the record of the Committee is placed before the National Court is a matter to be covered by regulations to be made under s 109 of the Lawyers Act. As far as I am aware, such regulations have not yet been made. The question of the record of a lower tribunal becoming part of the record which the appellate court considers in a case where the rehearing is on the basis of what was placed before the lower tribunal, becoming admissible before the appellate court is not dependent on the consent of the appellant or the other party. It is therefore important to construe from s 58(5), the real nature of the rehearing under the Act. In my view, if the rehearing was by way of considering the appeal on the basis of the record before the Committee hearing, then there would be no need for subs (5). The parties would be concerned about the accuracy of the record and agree about the relevant documents but its admissibility is essential and not dependent on consent of parties. Subsection (5) in my view makes sense in a rehearing where the rehearing is not based on the record before the lower tribunal, but where the hearing is in the nature of hearing de novo. Under subs (5), parties may shorten the need to call all the evidence again before the National Court, if they consent that everything they wish to call before the appellate court is contained in the evidence and the opinion of the Committee in the lower tribunal. If they do not consent, which they are entitled to do, then, of course, the parties will need to bring all the relevant information before the court by leading new evidence before it. Having come to this view of s 58(5), I infer then that it was the intention of the Parliament that the rehearing before the National Court is a hearing de novo, where the hearing is an original hearing and the parties may by consent admit the relevant evidence of the hearing before the lower tribunal and any other matters which parties may wish to call for the purposes of the hearing before the National Court.

Orders accordingly

_____________

Lawyers for the appellant: Namaliu and Company.
Lawyers for the respondents: Blake Dawson Waldron.