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Toll v Kibi Kara [1990] PNGLR 71 (12 February 1990)

Papua New Guinea Law Reports - 1990

[1990] PNGLR 71 - David Toll v Kibi Kara, Greg Lay�

[1990] PNGLR 71

N804

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

TOLL

V

KIBI KARA AND OTHERS

Waigani

Hinchliffe J

21-22 December 1989

12 February 1990

LAWYERS - Misconduct and discipline - �Improper conduct� as a lawyer - What constitutes - Dishonesty not necessary - Lawyers Act 1986.

LAWYERS - Misconduct and discipline - Disciplinary proceedings - Improper conduct as lawyer - Standard of proof - Right to be heard on penalty - Lawyers Act 1986, s 53(1).

Under the Lawyers Act 1986, s 58, the Lawyers Statutory Committee may discipline a lawyer for improper conduct. Having made two findings of improper conduct against a lawyer, the Lawyers Statutory Committee proceeded to impose fines and suspension from practice without giving the lawyer an opportunity to address it on the question of penalty. On appeal,

Held

(1)����� �Improper conduct� by a lawyer in pursuit of his profession is what would be reasonably regarded as disgraceful or dishonourable by his fellow lawyers of good repute and competency, and dishonesty is not a necessary element.

In re A Solicitor; Ex parte The Law Society [1911] UKLawRpKQB 173; [1912] 1 KB 302 at 311, 312, followed.

(2)����� The standard of proof of improper conduct by a lawyer is a high standard but slightly short of the criminal standard of proof.

Bhandari v Advocates Committee [1956] 3 All ER 742, followed.

(3)����� The principles of natural justice apply to disciplinary proceedings by the Lawyers Statutory Committee where penalty is not automatic and the Committee has a discretion in fixing the appropriate penalty. The affected lawyer is entitled to be heard on the question of penalty.

Cases Cited

Allinson v General Council of Medical Education and Registration [1894] UKLawRpKQB 36; (1894) 1 QB 750.

Bhandari v Advocates Committee [1956] 1 WLR 1442; [1956] 3 All ER 742.

In re A Solicitor, Ex parte the Law Society [1911] UKLawRpKQB 173; [1912] 1 KB 302.

Appeal

This was an appeal against two decisions of the Lawyers Statutory Committee pursuant to s 58 of the Lawyers Act 1986 disputing findings of �improper conduct� as a lawyer and the penalties imposed.

Editorial Note

For further proceedings see Toll v Kibi Kara (No 2) at 201.

Counsel

J Patterson, for the appellant and the appellant in person.

J Sleight, for the respondents.

Cur adv vult

12 February 1990

HINCHLIFFE J: This is an appeal from two decisions of the Lawyers Statutory Committee pursuant to s 58 of the Lawyers Act 1986.

The first decision went as follows:

�1.����� ... you, David Toll, have been guilty of improper conduct as a lawyer in that:

you engaged in conduct which was unprofessional and prejudicial to the administration of justice in that you did, on or about the 22nd June 1989 swear in an Affidavit in National Court proceedings WS1009 of 1989 �That no notice of intention to defend has been filed within 30 days of service of the summons herein as required by Order 4r.11(b)1� when in fact such notice of intention to defend has been filed.

2.������ The Committee imposes the following penalties upon you:

(1)����� a finding of improper conduct as a lawyer; and

(2)����� a monetary penalty of K500; and

(3)����� suspension from practice for a period of 21 days commencing from the date of service upon you of this Decision.�

The second decision reads:

�1.����� ... you, David Toll have been guilty of improper conduct as a lawyer in that:

you engaged in conduct which was dishonest, unprofessional, prejudicial to the administration of justice and brought the legal profession into disrepute in that you did on or about 17 April 1989 obtain an order in the District Court, Port Moresby in the matter of Fairdeal Housing and Appliances Pty Ltd and Gary William Alcock and Yvonne Alcock restraining the respondents from leaving Papua New Guinea when you knew that the claim against the respondents was improperly made since an identical claim had been made in the National Court against Techtronics Pty Ltd for the debt claimed to be due from the respondent.

2.������ The Committee imposes the following penalties upon you:

(1)����� a finding of improper conduct as a lawyer; and

(2)����� a monetary penalty of K500; and

(3)����� suspension from practice for a period commencing from the termination of the period of suspension from practice imposed under Decision No 1 of 26 October 1989 and terminating after 21 days.�

The appellant claims that his actions did not amount to improper conduct as a lawyer and that the Lawyers Statutory Committee (hereinafter referred to as the Committee) erred. Mr Toll and Mr Sleight both addressed me in relation to what is �improper conduct�. There are no Papua New Guinean cases on the point and they therefore referred me to a number of cases from Australia and England.

I say from the outset that it seems to me that most of the Australian States and Territories differ from one another as to what improper conduct as a lawyer actually entails. On the other hand, the situation in England is clearer. If it is shown that a solicitor, in pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the tribunal to say that he has been guilty of professional misconduct: see In re A Solicitor; Ex parte The Law Society [1911] UKLawRpKQB 173; [1912] 1 KB 302 at 311, 312. Interestingly enough, the court in that case followed Allinson v General Council of Medical Education and Registration [1894] UKLawRpKQB 36; [1894] 1 QB 750 in its definition of professional misconduct as it applies to a medical practitioner.

I am of the view that we should follow the English definition. It is clear and it is suited to the situation here. To follow the Australian authorities could create a state of utter confusion. I cannot accept Mr Toll�s submission that �dishonesty� must be an element of improper conduct as a lawyer. There are numerous situations where it could be said that a lawyer is guilty of improper conduct but not necessarily involving dishonesty.

The short facts leading to the first decision are that Mr Toll swore an affidavit to the effect that a notice of intention to defend had not been filed and sought before Brunton AJ (as he then was) to have the defendant�s defence struck out and obtain judgment. His Honour, after perusing the file, discovered that a notice of intention to defend in fact had been filed and there is no doubt that he was not happy with Mr Toll. Brunton AJ reported the incident to the Committee. Mr Toll did not deny that the affidavit was incorrect but he stated that he did not do it with any dishonest intent. He swore the affidavit the day before he appeared before his Honour and he did not have an opportunity to peruse the file for a last-minute check because it was already with the judge. He further assumed that a notice of intention to defend had not been filed because there was nothing to that effect on his own file. That is, his office had not received such a notice as would be expected if the matter was to be defended.

When Mr Toll appeared before the Committee, part of the transcript goes as follows:

�I admit the charge, there were several grounds for proceeding to enter judgment or strike out the defence ... I realised at the time, it was possible that a Notice of Intention to Defend could have been filed, pressure of work, duty to client, could not check file because with the Judge. I recognised should have been more careful to phrase my affidavit. Oversight on my part. Believe Judge over-reacted because unfamiliar with procedure in civil proceeding. Standard procedure for Judge to check file � knew I could rely on Judge. Know there is a great requirement of absolute truthfulness and duty to the Court, over anxious for my client, wanted to rely on the additional ground.�

I am of the view that the appellant made some serious errors and his conduct was improper as far as a lawyer is concerned. It is clear that he swore an affidavit not knowing whether the contents thereof were correct or not. That, in itself, is serious. The swearing of an affidavit by anyone should not be taken lightly and the swearing of a false affidavit could cause the deponent to be charged with a criminal offence.

There is no doubt that Mr Toll should have checked the court file before he swore the affidavit. Even if he had had the opportunity to search the court file on the morning he appeared before Brunton AJ and then discovered the existence of the said notice, he still would have been guilty of swearing an incorrect affidavit. He seems to have sworn it in anticipation of not finding the notice in the court file the next morning. That is not the way one would expect a lawyer to conduct his business. It shows little respect for an important document.

It also seems to me that the fact that the appellant was unable to see the court file because the judge had it is no excuse. If Mr Toll was unable to peruse the file before he made his application, then to my mind he should have adjourned the application to a date after he had arranged to search the file. If that had happened, then, of course, the application may not have been made. Needless to say, he would still be burdened with the affidavit he had sworn. The contents of it were not correct.

After Mr Toll left the Committee hearing, the Committee deliberated. The transcript goes as follows:

�First Charge � admits he knew he had no knowledge of the fact to which he swore in the Affidavit and that he ought to have obtained that knowledge before swearing the Affidavit. Serious matter to rely on an affidavit before the National Court knowing you did not have knowledge of the facts sworn to be true.�

I agree with those words of the Committee. I am of the view that the conduct of the appellant was improper as far as a lawyer is concerned: see In re A Solicitor; Ex parte The Law Society, and that the finding of the Committee was thoroughly justified by all the facts before it.

I shall consider the penalty after I have dealt with the second decision.

The short facts in the second charge are that there was a matter proceeding in the National Court titled Fairdeal Housing and Appliances Pty Ltd v Techtronics Pty Ltd. Mr Toll appeared for the plaintiff. Warner Shand, lawyers, appeared for the defendant. Gary Alcock and Yvonne Alcock were directors of the defendant and admissions had been made to part of the plaintiff�s claim. A director of the plaintiff had information that the Alcocks were intending to leave the country for good and he immediately went to the appellant with instructions to stop the Alcocks from leaving. The appellant subsequently took out an ex parte order in the District Court with Fairdeal Housing and Appliances Pty Ltd and Gary Alcock and Yvonne Alcock as respondents. The purpose of the order was to restrain the Alcocks from leaving the country and to detain them until they paid K5,080 to the applicant. That is the same amount of money that Techtronics Pty Ltd admitted to owing the applicant in the National Court proceedings. Subsequently Mrs Alcock was restrained from boarding an aircraft to Australia. It was at that time that the ex parte order came to the notice of Warner Shand, some two weeks after it was taken out.

In his letter of complaint to the Committee, Mr Payne of Warner Shand states:

�Upon being instructed that Mrs Alcock had been restrained from boarding the aircraft, the writer telephoned Mr Toll at Henao Cunningham who advised the Order had been obtained ex parte and that a copy had not been served upon either Mr or Mrs Alcock. The writer drew to Mr Toll�s attention the fact that proceedings had earlier been commenced in the National Court claiming the debt was due by Techtronics Pty Ltd and that it was now not open to the Plaintiff to bring concurrent proceedings in both the National Court and the District Court against separate Defendants for the same claim. Mr Toll replied, �I know that I should not have got the Order but my client heard that they were leaving the country. I told him he could not get the Orders against individuals when the debt was due by the Company, but the client insisted.� A copy of the writer�s contemporaneous notes of the conversation is also enclosed.

Mr Toll readily agreed to having the Orders set aside and by 9.30 a.m. on 2nd May 1989 had obtained an Order from the District Court setting aside the Orders of 17th April 1989.�

I am of the view that the Committee was entitled to accept what Mr Payne said and to find that Mr Toll�s conduct was �dishonest, unprofessional, prejudicial to the administration of justice and brought the legal profession into disrepute�.

Some time after that conversation with Mr Payne, Mr Toll said that what he did was not improper and that he was proceeding against the Alcocks personally because they were hiding behind �the corporate veil�. Whether it be correct in law or not, I do not and the Committee did not accept this afterthought of Mr Toll. Clearly his client was desperate to stop the Alcocks from leaving and the only way they could do this was to take out proceedings in the District Court against them. It was a company debt, not the Alcocks� personal debt, and Mr Toll was fully aware of it. He admitted it to Mr Payne. He acted wrongly under severe pressure from his client�s director and forgot his duty to the court. He acted dishonestly. He did not bother to advise Mr Payne or the Alcocks of the order. That is the least he could have done.

In relation to the second charge, after the Committee deliberated over the evidence, the transcript reads as follows:

�Second Charge � knew the defendants represented in the National Court proceedings but proceeded ex parte in the District Court. Then sat on the Order for 2 weeks without notifying the defendant�s lawyers. Serious matter, has taken the view the end justifies the means.�

Again I am of the view that the conduct of the appellant was improper as far as a lawyer is concerned: see In re A Solicitor; Ex parte The Law Society and that the finding of the Committee was thoroughly justified by all the facts before it.

PENALTIES

I am quite satisfied on the evidence that the Committee did not give Mr Toll an opportunity to address it on penalty. To my mind, that is a denial of natural justice and therefore the Committee has not complied with s 53(1) of the Lawyers Act 1986 which provides:

�(1)��� The Committee shall determine its own procedures when enquiring into complaints of improper conduct, but shall observe the rules of natural justice in carrying out an enquiry.�

The Committee, after finding Mr Toll guilty of the charges against him, penalised him. It did it in his absence without inviting him to address it on penalty.

Hotop, Principles of Australian Administrative Law, 6th ed (1985), at 199-200, reads as follows:

�In the case of a disciplinary proceeding, where, after a finding of guilt, the penalty is not automatic and the decision-maker has a discretion in the fixing of the appropriate penalty, the person affected is entitled to be given the opportunity to be heard separately on the question of penalty even in the case of a non-statutory domestic body: Hall v New South Wales Trotting Club Ltd [1977] 1 NSWLR 378; Calvin v Carr [1977] 2 NSWLR 308 at 337.�

Section 59 of the Act provides:

�Where, after an appeal under Section 58, the Court is of the opinion that a lawyer has been guilty of improper conduct as a lawyer, it may confirm the penalty imposed by the Committee or may vary it by imposing any one or more of the penalties specified in Section 54.�

Because the Committee did not hear Mr Toll on the question of penalty I am not in any position to confirm or vary the penalties it handed down. Because I have no �plea material� before me, therefore it is impossible for me to come to an appropriate penalty.

The Act is silent about referring the question of penalty back to the Committee for further consideration but I am of the view that this Court has the inherent power to do so in the interests of justice.

Finally, on the question of standard of proof, I am in agreement with the Privy Council in Bhandari v Advocates Committee [1956] 3 All ER 742 at 744-745, when it agreed with the Court of Appeal�s description of the duty of a tribunal such as the Advocates Committee. The Court of Appeal had said:

�We agree that in every allegation of professional misconduct involving an element of deceit or moral turpitude a high standard of proof is called for, and we cannot envisage any body of professional men sitting in judgment on a colleague who would be content to condemn on a mere balance of probabilities.�

Therefore I am of the view that the standard of proof is not the standard required in the criminal courts but it falls only slightly short of it. I have no reason to think that the Committee applied any lower standard of proof.

I make the following orders:

1.������ The appeals against both the guilty findings are dismissed.

2.������ The appeals against all the penalties are upheld and the penalties are set aside.

3.������ I refer this matter back to the Lawyers Statutory Committee so it can hear the appellant on penalty before making its final decision.

4.������ The appellant and respondents to bear their own costs.

Appeals dismissed

Matters referred to Lawyers Statutory Committee

Lawyers for the appellant: Henao Cunningham & Priestly.

Lawyers for the respondents: Blake Dawson Waldron.