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Karingu v Henao [1992] PGNC 39; N1171 (17 December 1992)

Unreported National Court Decisions

N1171

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO 115 OF 1992
BETWEEN
CANISIUS KARINGU - APPELLANT
AND
LOANI HENAO, GREGORY LAY, BENJAMIN PASSINGAN, JOSEPH YAGI AND HENI VADA - RESPONDENTS

Waigani

Amet J
17 December 1992

LAWYERS - Misconduct and discipline - Disciplinary proceedings - Appeal From - Rehearing - Nature of - Lawyers Act 1986, s. 58.

APPEALS - Appeal by way of rehearing - Denial of natural justice - Insufficiency of evidence - Retainer - Nature of - Severity of penalty - Lawyers Statutory Committee - Appeal From - Lawyers Act 1986, s. 58.

Cases Cited

David Toll v Kibi Kara, Greg Lay, Pomat Paliau and Saloma Injia N851

Groom v Crocker and Others [1938] 2 All ER 394

17 December 1992

APPEAL

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

The Appellant is a lawyer who holds an unrestricted practising certificate under the Lawyers Act 1986 (Act). The Respondents are members of the Lawyers Statutory Committee established under S. 48 of the Act whose function under S. 52 - “is to enquire into complaints against a lawyer of improper conduct as a lawyer”.

The Committee had conducted inquiry into two allegations of improper conduct against the Appellant Canisius Karingu, and made two decisions in respect of them.

In Decision No.1 the Committee found that the Appellant had been guilty of improper conduct as a lawyer in commencing proceeding WS 301/88 in the National Court in the name of Dr G Gibson when the Appellant had no or no proper retainer from Dr G Gibson to do so.

The Committee imposed the following penalties:

1. A finding of improper conduct as a lawyer; and

2. Suspension from practice as a lawyer for period of 2 months commencing on 1 July 1992 such period to run concurrently with the period of suspension under Decision No 1.

The Committee had power under S. 54 to impose penalties. An aggrieved lawyer may appeal against a decision of the Committee to the National Court. This is such an appeal by the Appellant against both decisions No 1 and No 2, as to the findings of guilty of improper conducts and the penalties.

The Appellant’s grounds of appeal were reduced down to essentially two:

1. That he was denied natural justice in not being allowed an adjournment to enable him time to prepare and obtain affidavit evidence from a witness he wished to rely on, and also for he himself to give evidence.

2. That there were in respect of each decision no evidence or insufficient evidence to support the findings of guilt.

APPEAL BY WAY OF REHEARING

The Appellant sought to give oral evidence at the hearing of the appeal relying on s. 58 (4) of the Act, which stipulates that: “An appeal under subsection (1) or (2) shall be by way of rehearing by the Court”.

Both parties were content to rely on the only decided case on the construction of the expression ‘rehearing’ under the Act in this jurisdiction, which was by Kapi Deputy Chief Justice in David Toll v Kibi Kara, Greg Lay, Pomat Paliau and Salamo Injia, National Court Unreported Judgment No N851. His Honour held that rehearing within the context of S. 58 of the Act is a hearing de novo. I do not express a decided view on the issue at the present, because the parties did not argue the issue.

I therefore allowed the Appellant to give evidence, though I stress that this should not be considered a precedent in the circumstances where the Appellant was present and conducting his own defence before the Committee but chose not to give evidence.

After the Appellant had given evidence I requested that the complainant Dr G Gibson be called by the Respondents to put to him the specific contrary evidence by the Appellant relating to him.

By consent at the invitation of the Court the record of the proceedings of the Committee was admitted pursuant to S. 58 (5). It was referred to in argument and I propose to refer to and rely on it.

Dr Gibson had previously given evidence, in the form of a written statement, before the Committee on 15 March, 1991 at an adjourned hearing at which the Appellant was not present.

GROUND 1 - DENIAL OF NATURAL JUSTICE

At the resumed hearing on 26 October, 1991 when the Appellant was present the Complainant Dr G Gibson re-read his evidence in the form of the statement to the Committee. He was then cross examined by the Appellant. The record of the proceedings records that:

“At the close of the cross examination the lawyer applied for an adjournment to enable him to bring Mr Joe Davis before the Committee as his witness, or alternatively an affidavit would be filed by him. The Committee considered the application and adjourned the inquiry to 6 November at 9:30am to allow the lawyer to proceed with evidence and his witnesses.”

On 6 November, 1991 the hearing was further adjourned to a date to be fixed. On 6 February, 1992 when the inquiry resumed, the Appellant applied for a further adjournment which the Committee refused and the inquiry proceeded.

The Appellant elected not to give evidence or make submissions. The Committee deliberated and made findings of improper conduct on both allegations. The inquiry was then adjourned to 10 March, 1992 for addresses and deliberations on penalty.

After several further adjournments on 10 March, 1992 and 14 April, 1992 the hearing resumed on 21 May, 1992 for further deliberations and consideration of penalty. The Appellant is recorded as saying:

“I am not making any submissions in mitigation because I did not give evidence and its my understanding that if I give anything in mitigation I will be seen to be accepting the guilty finding. If I have to I will appeal and give my submission in mitigation to the National Court if necessary. I won't make any submissions, leave it to the Committee to decide its penalty under the Act, depending on the penalty I will decide whether to appeal.”

It was necessary to recite the record of the proceedings before the Committee in relation to the ground of appeal that the Appellant was denied natural justice in not being allowed an adjournment to present evidence in his defence of the allegations.

The records clearly show and the Appellant did not contend otherwise that the inquiry was adjourned on 26 October, 1991 to 6 November, 1991 to enable the Appellant to prepare his evidence for presenting to the Committee. The inquiry did not resume until 6 February, 1992, a period of over 3 months. Quite understandably when the Appellant applied for a further adjournment, presumably because he was not ready, the Committee refused the application, and ruled the inquiry was to proceed.

The Appellant was present but elected not to give evidence or make any submissions. In his evidence before me he has not contended otherwise. His only explanation for his unwillingness to give evidence was that he had gone to the inquiry without his file and quite unprepared to proceed if his application for adjournment was refused.

I find this ground of appeal quite without merit. The Appellant had quite ample time from the adjournment on 26 October, 1991 to 6 February, 1992 to prepare his evidence. He himself was present and could have quite easily given evidence. He had adequate time to have obtained affidavit from Mr Davis. I should add that up until this hearing the Appellant had still not obtained an affidavit to rely on. Indeed an application was made to adjourn this hearing on that same basis that the affidavit had not yet been obtained but I refused that application.

The Appellant said he had forwarded all copies of the affidavit to Mr Davis to swear and return in January, 1992.

This ground is therefore dismissed as being without merit, and not made out.

GROUND 2 - INSUFFICIENCY OF EVIDENCE

The second ground is that there was no or insufficient evidence to support the two findings of guilt. It is necessary to restate the evidence that was before the Committee. I reproduce in full the statement of the Complainant Dr G Gibson which he re-read to the Committee in the presence of the Appellant and the record of the Appellant's cross-examination of Dr Gibson.

STATEMENT

“In late September or early October 1988, between 5-6p.m., while I was gardening at the back of my house at Pacific Adventist College, some 14 miles from Port Moresby along the Sogeri Road, I was approached by Mr Davis with a request.

(I have been acquainted with Mr Davis over the years since he came to PNG and attended the church at which I was a member. He had escaped from a mid-European country facing a Communist takeover during the post-war period and was building a new life for himself. He seemed to be hard working and pursued a variety of business interests. Lately, Mr Davis had become involved in a great deal of publicity over the legality of his business activities, had faced a series of court cases, and had been gaoled and subsequently released. Given these circumstances it seems as though advantage could have been taken of his situation by those indebted to him and it was to remedy this that he sought to be able to pursue his claims through legal means. This, then, was the background when Mr Davis came to me with his request.)

As I understood it Mr Davis’ request had to do with needing a form signed to enable him to pursue his business interests through legal means. In particular, he indicated that he needed the signature of a reasonably well known person to enable him to begin legal proceedings to regain certain monies owing to him. As a long time resident of PNG (since 1956) and having worked with the National Department of Education, the University of Papua New Guinea, and more recently (since 1985) a church agency college (PAC), I was - in the Papua New Guinea context - a ‘reasonably well known person’.

Mr Davis’ request seemed reasonable and, after some discussion, I signed the form. No other person was with us at the time.

As far as I can recollect the form was a blank one with spaces to be filled in. At this point in time I am not certain that two sections of the form were completed at the time I signed - ie, the sections indicating plaintiff and defendant. I make this statement because it is unlikely that I would have signed any document which clearly and actively involved me in Mr Davis' interests, either business or legal.

There never was any intention, on my part, that I become involved in any way in either Mr Davis’ business or legal interests. I did not know then what his business interests were, nor do I know now. Nor did I understand clearly how he intended to pursue his business and legal interests. My only concern was to provide Mr Davis with the signature he apparently needed to establish his right to pursue his interests. I understood my signing of the document to be a technicality enabling Mr Davis to get on with his desire to sort out his business/legal interests and problems. This, as far as I was concerned, was the beginning and end of my interest in the matter. At no stage was I aware that I might be involved in anything more than this act of trying to be helpful. One takes people on trust and I have indicated both the context within which the form was signed and my reason for signing it.

The form was not signed before any Commissioner of Oaths. It was not accompanied by any other document or list of documents, nor were any other documents or lists attached to the form.

At no stage was it mentioned by Mr Davis, or anyone else, that I might be a plaintiff in a court case. The discussion with Mr Davis concerned the lack of papers/attachments accompanying the document and the propriety of signing without it being witnessed. After being assured that this was the way things were done I signed the form, assuming that if this was not so Mr Davis’ lawyer would be aware of it and not accept the signed paper.

At no stage was I aware of the proceedings as stated by Mr Karingu in his 11/12/89 letter to Messrs KY Kara. I was unaware of any of the court proceedings at any time and had no discussions with Mr Karingu or anyone else about them. I was completely unaware of the fact that I was being involved in a court case and an appeal. The first indication to me of all of this, and the implications of my signature, was the letter from KY Kara and its attachments of 21/11/89.

I have never had any dealings with a Mr Merchant, and still do not know who he is, or what his business is. Neither have I met him or corresponded with him or talked to him on any matter.

This being so the IOU dated 1.12.1986 is somewhat of a surprise since at that date I was not aware that such a person existed. The first time I saw this IOU was a photo-copy attached to the letter of the Secretary, Lawyers Statutory Committee (26/4/90).

Prior to the letter from Mr KY Kara I had no communication with Mr Karingu. Nor have I had any dealings with Karingu, Sitapai, Kamaken and Associates and at no stage have I ever instructed Mr Karingu, Sitapai, Kemaken and Associates and at no stage have I ever instructed Mr Karingu or Mr Davis to act on my behalf in any legal or other matters.

On 21 November 1989 I was handed the letter and legal documents from KY Kara Lawyers about ‘Your Claim Against Keith Merchant’.

This surprised and concerned me and my immediate reaction was that there must have been some mistake since I was unaware (as already indicated) that I had been involved in any legal proceedings of any sort.

I immediately phoned KY Kara Lawyers to find out what it was all about.

Then I tried to get in touch with C Karingu, by phone, to express my concern and find out how I had become involved. These calls were unsuccessful in getting through.

Consequently my surprise and concern was communicated to C Karingu in a letter dated 21 November 1989.

On 22 November 1989 I spoke to C Karingu by phone. He said then that he would try to get in touch with J Davis to resolve the matter.

It was difficult to get in touch with C Karingu by phone and I have never visited him at any time nor had I discussed any matters of any kind with him before receiving the letter from KY Kara explaining the situation and what was being done about it. He indicated that he would sort things out with both J Davis and KY Kara.

On 28 November 1989 I was informed by C Karingu, when I rang, that he had talked with J Davis, who - C Karingu said - would organise something.

I rang C Karingu regularly between 24 November and 7 December 1989 to find out what progress was being made but could rarely get through by phone. Many calls were unsuccessful because the phone was giving the engaged signal or he was out and there was no response. On the occasions I did get through it fairly quickly became clear that there was little progress.

At no stage have I contacted J Davis or been contacted by him about the matter.

I kept in touch with KY Kara to see whether there was any progress from their point of view.

When it became apparent, over a period of weeks, that there was unlikely to be much action my concern increased because:

(i) I felt that it was unfair to be involved in legal proceedings without my knowledge and consent (I now realise that the form signed is being used as evidence of my knowledge and consent). Whether the form was filled out legally is also a matter of concern.

(ii) My good name was now under question.

(iii) It appeared as though I might have been used for anticipated financial gain without my being aware of it.

Around 5 December 1989 phone calls lapsed as it was not possible to reach C Karingu easily. However, I did not send a further letter on 5 December to express my interest in having the matter resolved.

On 8 December I wrote to the PNG Law Society, as it seemed that little progress was going to be made in this matter without some sort of further action on my part.

In conclusion it may be helpful to point out that those who know me would most likely see me as being a helpful and honest person. Should you wish to verify this, two persons who could be approached for an opinion are: Sir Paulius Matane and Sir Alkan Tololo, both of whom have known me for some time.”

The following is the relevant part of the records of the inquiry on 26 October, 1991:

“Chair: On the 15 March 1991 Dr Gibson gave evidence, you may now cross-examine him.

Karingu: I can’t, I don't know what he said.

Chair: Dr Gibson, would you please read out the evidence you previously gave and I remind you, you are still on oath (Mr Batari hands copy of Dr Gibson’s 3 page statement to Mr Karingu who produces his own copy).

Karingu: I have a copy of the statement from James Baker.

Dr Gibson: Reads statement of evidence.

Chair: Mr Karingu, you may now cross-examine Dr Gibson.

Karingu: Dr Gibson, did you own a vehicle like a grey or white in colour?

Gibson: I owned a Datsun 260c off-white.

Karingu: Do you remember talking to me and Joe Davis once in 1989?

Gibson: No, don’t remember.

Karingu: Remember what document you signed?

Gibson: Affidavit document like this one, it was one page only (holds up the affidavit page from a list of documents in an action).”

This then is all the relevant evidence that was before the Committee, apart from a letter by the Appellant dated 26 February, 1990 to the Committee in reply to a letter from the Committee of 30 January, 1990. The Appellant annexed a copy of the IOU dated 1st December, 1986, plus a copy of the Affidavit the subject of Decision No 2.

And so apart from Mr Gibson’s statement read into evidence and 3 very brief questions in cross-examination by the Appellant, there was no contrary evidence by the Appellant. He was present and had the opportunity to present his case to the Committee. He elected not to give evidence or make submission. The Appellant is a lawyer of some years experience; he cannot plead ignorance of the procedural ramifications of the course he had elected to follow.

Quite simply there was sufficient evidence in the form of Dr Gibson’s statement before the Committee for it to rely on. It was substantially unchallenged by any other evidence. The Committee was perfectly entitled to rely solely on that evidence to find against the Appellant.

Only the basis of the evidence before the Committee this ground of appeal would be dismissed as being without merit and not made out.

However, because the hearing is deemed to be partially de-novo on the record of evidence before the Committee as well as additional evidence called, the Court now has to review the sufficiency of evidence from the totality of the evidence before it.

Only Mr Karingu the Appellant gave evidence and tendered copy of the letter of 26 February, 1990 referred to above that he sent to the Committee enclosing a photocopy of the IOU and the affidavit the subjects of the allegations and the decisions appealed from. I will return to the contents of the two documents.

Mr Karingu deposed that he was approached by a Mr Joseph Davis with the IOU purportedly on behalf of the creditor, a Dr G Gibson to institute recovery proceedings against the author of the IOU, one Keith T Merchant. Mr Davis did not produce to Mr Karingu any letter or written instruction of any kind from Dr G Gibson, nor was Mr Karingu able to produce any in evidence. At no stage prior to the commencement of legal proceedings by the issuing of the Writ of Summons on the 18 April, 1988 did Mr Karingu make any personal contact with Dr G Gibson either by telephone or letter either by post or through Mr Davis who Mr Karingu deposed had told him (Mr Karingu) that he was acting on instructions from Dr G Gibson.

Mr Karingu deposed that he had merely commenced the proceedings in Dr G Gibson’s name as Plaintiff on the basis of what he said Mr Davis had said, that he (Mr Davis) was acting on behalf of Dr G Gibson. I will set out the detailed statement of claim which Mr Karingu had pleaded, all in Dr G Gibson’s name without having made any contact or communication in any way whatsoever, with Dr G Gibson.

On Mr Karingu’s own evidence, nearly 7 months elapsed until 4 November, 1988 when he allegedly met Dr G Gibson for the first time to sign the Affidavit the subject of the second decision.

The IOU is in the following terms:

“1st December, 1988

This is to acknowledge an IOU of K15,500.00 to Dr G Gibson (or whatsoever this may be assigned to).

Repayments of K500.00 for 11 (eleven) months and a final balance payment of K10,000.00 on 1st December, 1987. Loan is interest free for a period of 1 (one) year.

Signed: (Merchant).”

The Statement of Claim is in the following terms:

1. The Plaintiff is a resident of Port Moresby.

2. The Defendant is a business man and a resident of Port Moresby.

3. The Plaintiff claims that following an auction sale at Allotment 25 and 35 Section 32, Dogura Road 6-Mile by a Mr John Reed on the 22nd November 1987, the Defendant entered into an agreement with Mr Joseph Davis.

4. The Plaintiff claims that under the said agreement, the Defendant would purchase certain machineries and chattels owned by the companies owned by Mr Joseph Davis for the sum of K21,500.00.

5. The Plaintiff claims that the Defendant was to pay K3.500.00 as deposit.

6. The Plaintiff also claims that for the balance of K18,000.00, the Defendant was issued a Promissory Note or an I owe you (‘IOU’).

7. The Defendant paid K3,500.00 for which the receipts were issued by Mr Joseph Davis.

8. The said Promissory Note contained the words,

‘...Keith T Merchant...K18,00.00

...Dr G Gibson...K500.00 per month

...first payment...1st January 1987

...balance...1st December 1987.’

9. The Defendant failed in paying the first instalment on 1 January, 1987.

10. The Defendant also failed in paying the second instalment due on 1st February, 1987.

11. The Defendant made the third instalment payment due on March 1, 1987.

12. The Plaintiff claims that the Defendant made the fourth instalment payment due in April 1, 1987 on the 14 April, 1987.

13. The Plaintiff claims further that the Defendant thereafter failed to making any other instalment payment and has continuously refused to making any or any such payments despite numerous requests.

14. The Plaintiff claims the sum of K17,000.00.

The first significant fact to note is the glaring inconsistency between the terms of the IOU or Promising Note the copy of which Mr Karingu enclosed in his letter to the Committee on 26 February, 1990 and the supposed terms pleaded in Clause 8 of the Statement of Claim. In the terms pleaded in Clause 8 are reference to “Keith T Merchant...K18,000” whereas on the copy enclosed in the letter there is no reference to “Keith T Merchant” and the principal amount is said to be K15,500.00 and not K18,000.00.

When pressed by the Court Mr Karingu was not able to explain such glaring discrepancy. He was not able to produce the original IOU on the basis of which he instituted proceedings. One could be forgiven for asking the obvious questions; which IOU formed the basis of the action or was there an IOU at all in existence.

Mr Karingu deposed in answer to the question by the Court that Mr Davis had told him that he Mr Davis had owed Dr G Gibson the money. Mr Karingu said Mr Davis did not say how much he owed Dr G Gibson. I presume it was either K15,500.00 or K18,000.00. In a comprehensive series of questions from the Court to ascertain the basis of the detailed claims in the Statement of Claim purportedly in the name of the Plaintiff Dr G Gibson, the following facts were adduced from Mr Karingu. He said Mr Davis had told him that he Mr Davis owed Mr Gibson some money. Following an auction sale of some of Mr Davis property, Mr Merchant entered into an agreement with Mr Davis to purchase certain machinery and chattels owned by companies owned by Mr Davis for the total sum of K21,500.00. Mr Merchant paid K3,500 - as deposit and for the balance of K18,000 the Promisory Note was issued by Mr Merchant in favour of Dr G Gibson.

In a series of specific questions by the Court Mr Karingu admitted that this account was told to him by Mr Davis, not as instructions from Dr G Gibson as to what Dr Gibson knew to be the facts, but simply as what Mr Davis was contending was the case. And of course Mr Karingu at no stage made any contact with Dr Gibson to have been instructed of any such detailed allegations of facts.

The significance of this is that the detailed clauses of the Statement of Claim are pleaded as facts known to the purported Plaintiff Dr G Gibson.

The facts are that Dr G Gibson in his statement before the Committee and evidence before this Court quite categorically and unequivocally denied any knowledge whatsoever of any of the matters or facts claimed in the Statement of Claim. He denied being owed any money by Mr Davies. He did not know a Keith Merchant and knew nothing about an IOU for any amount.

It is interesting to note that at the continued hearing before the Committee when Dr Gibson re-read his statement Mr Karingu did not ask in cross-examination any questions going to the basis of his commencement of the proceedings, nor was Dr Gibson cross-examined on these aspects before this Court.

It is true that the Appellant’s contention is that he had acted on instructions from Mr Davis supposedly on behalf of Dr Gibson. It was contended that Dr Gibson subsequently confirmed the instructions by signing the Affidavit in Mr Karingu’s presence at the Seventh Day Adventist College outside of Port Moresby on 4 November, 1988.

On the evidence that was canvassed before me I make the following findings of facts.

I accept entirely the evidence of Dr G Gibson, which in material respects are as follows:

He was not owed any money by Mr Davis. He did not know a Mr Keith Merchant and did not know of a purported IOU made in his favour for K15,500.00 or K18,000.00 by Mr Merchant. He knew nothing about agreements between Mr Davis and Mr Merchant. He had given no instructions to Mr Davis to start legal proceedings for he had no need to. He did not sign any legal document or an Affidavit in respect of any legal proceedings in his name as Plaintiff in front of Mr Karingu. He did sign a document in blank form at the request of Mr Davis to assist Mr Davis to pursue various legal actions to recover some of his (Mr Davis’) assets. The document he signed did not have his name on it. He identified the Affidavit the subject of the allegation as the one with his signature on it but he was not informed he was signing a document in respect of an action in which he was the Plaintiff.

If I accept that Dr Gibson was not owed any money by Mr Davis and that he did not know Mr Merchant or the existence of an IOU in his favour which formed the basis of the action WS 321/88, then as a reasonable man of some learning and experience I do not believe that he could possibly have signed the Affidavit now exhibited before me in the form that it is without being alerted as to his name being on the document as Plaintiff and enquiring as to what it was about.

Furthermore, even on Mr Karingu’s evidence which I cannot accept, if the 4 November, 1988 was the very first time he was making personal contact with Dr G Gibson, there is not the slightest bit of evidence that he had sought clarification of instructions or details thereof. All of Mr Karingu’s evidence relating to the signing of the Affidavit by Dr Gibson in his presence is premised on the basis that Dr Gibson was owed this large sum of money by Mr Davis and he was seeking to recover that from a Mr Merchant by virtue of the IOU.

Returning to Decision Number 1, the issue is still, did Mr Karingu have a retainer or proper retainer from Dr Gibson to commence the action in his name. Mr P Payne for the Respondents cited one English authority which touched a little on the relationship created by a retainer. I accept the legal principle relating to the relationship created by a retainer applies to the circumstances of the relationship here being discussed, to apply it as being appropriate and applicable.

In Groom v Crocker and Others[1938] 2 ALL ER 394 at 413, Lord Justice Scott stated the relationship in the following terms:

“A solicitor, as a professional man, is employed by a client just as much as is a doctor, or an architect, or a stockbroker, and the mutual rights and duties of the two are regulated entirely by the contract of employment...The relationship is normally started by a retainer, but the retainer will be presumed if the conduct of the two parties shows that the relationship of solicitor and client has in fact been established between them. The retainer when given, puts into operation the normal terms of the contractual relationship, including in particular the duty of the solicitor to protect the clients interest, and carry out his instructions in the matters to which the retainer relates, by all proper means. It is an incident of that duty that the solicitor shall consult with his client on all the questions of doubt which do not fall within the express or implied discretion left him, and shall keep the client informed to such an extent as may be reasonably necessary according to the same criteria. In all these aspects, however, the tie between the two is contractual.” (my emphasis).

Can it be reasonably concluded on the evidence now adduced that the Appellant had a retainer to commence the action on behalf of and in the name of Dr G Gibson, the Complainant?

The Appellant has relied on three factors as creating sufficient basis of a retainer; firstly the verbal instructions by Mr Davis, secondly the IOU Promisory Note and thirdly the alleged confirmation of the instruction by Dr G Gibson signing the affidavit in Mr Karingu’s presence.

I have accepted Dr Gibson’s evidence that he did not sign the affidavit in Mr Karingu’s presence and so that contention by the Appellant I reject as being untrue.

As against the Appellants evidence that Mr Davis instructed him on behalf of Dr Gibson and gave him the IOU, is the total absence of any communication or consultation of any kind by the Appellant with his supposed ‘client’, either prior to the commencement of proceedings by the filing of the Writ of Summons on 18 April, 1988 or at any other time thereafter.

There was no contact for consultation by telephone or any attempt made to make contact. There was no written communication to consult, either by post or through the person of Mr Davis who supposedly gave instructions on behalf of Dr G Gibson. There was no attempt to travel to the Seventh Day Adventist College, some 14 miles outside of Port Moresby to consult and confirm instructions.

There was no written note or letter from Dr G Gibson to the Appellant that could found a retainer. There was no engagement retainer fee.

What Mr Davis may have said in the absence of all of the above factors, I do not consider sufficiently constitutes a retainer. There just were no contact between the parties, as there was no contact or communication in any form with Dr Gibson by the Appellant, to show that a relationship of a solicitor and client had in fact been established to presume the creation or existence of a retainer.

There were no attempts by the Appellant, to consult with Mr Gibson which is an incident of the duty of a solicitor to a client. There was no attempt to keep the client informed of the progress to such an extent as might have been reasonably necessary.

To clearly found a relationship of lawyer and client, there needs to be a retainer established. I consider that the minimum requirements for a retainer would be the payment of the engagement or service fee or deposit and specific instruction in writing by the client. The payment of the fee is of course a matter entirely between the lawyer and the client. I think that it is prudent to have instructions of the client in writing before any substantive action is commenced. If initial instructions are given or conveyed by agents or representatives, then once again it is prudent to confirm them in writing with the client, through interpreters if necessary, before actions are commenced in the name of those clients.

It really is prudent and common sense to consult and advise and inform clients from time to time as may be reasonably necessary to avoid this very kind of complaint.

In all the circumstances of this appeal, the communications with Mr Davis alone, as supposed agent, was quite insufficient to found a retainer in law to have commenced proceedings WS 321/88 in the National Court in the name of Dr G Gibson.

I should add that quite apart from the legal principles of retainer and lawyer client relationship, the circumstances as have been disclosed, in ordinary reasonable community standards of common sense, were not sufficient to have commenced legal proceedings.

I am satisfied that on the evidence then before the Committee and adduced before me there was sufficient evidence to found the two findings of guilty of improper conduct as a lawyer.

In respect to Decision No 2, before the Committee there was only the Complainant's evidence. Before me I have accepted Dr G Gibson’s evidence and consequently I do not accept Mr Karingu’s evidence. There is therefore sufficient evidence before the Committee and this Court to find the Appellant guilty of the second allegation.

SEVERITY OF PENALTY

The Appellant did file constitutional grounds against the penalties as being harsh and oppressive or excessive but did not pursue them.

The penalties imposed in respect of Decision No 1, in addition to the finding of improper conduct were:

1. Suspension from practice as a lawyer for a period of 2 months to run concurrently with the period of suspension under Decision No 2 which was 6 months;

2. Order to pay compensation to Dr G Gibson in the sum of K2,743.00 and;

3. Suspension from practice as a lawyer from 21 July, 1992 if the compensation shall not then have been paid until it shall have been paid.

The penalty in Decision No. 2 in addition to the finding of guilty of improper conduct as a lawyer was suspension from practise as a lawyer for a period of 6 months to run concurrently with the period of suspension under Decision No 1 commencing on 1 July, 1992.

All these penalties have been stayed pending the determination of the appeal and so none of the time have run.

The main issue taken with the penalties was the order in Decision No.1 that the Appellant pay compensation to Dr G Gibson in the sum of K2,743.00. It was argued that there was no evidence upon which this order was based. That is true that there is no reference to this sum in the records. The Committee is however, empowered by S. 53 (1) to “determine its own procedures when inquiring into complaints of improper conduct, but shall observe the rules of natural justice in carrying out an inquiry”.

The reality of the whole dispute is that when the Appellant commenced the action WS 321/88 in the Complainant Dr G Gibson’s name against Mr Keith Merchant certain costs were incurred. On 20 October, 1989, an Order was obtained by KY Kara, Lawyers for Mr Merchant against Dr G Gibson the Plaintiff in the action, striking out the action and ordering costs against him. This order for costs was subsequently taxed by the Taxing Officer on the 13 November, 1989. The Defendants costs were taxed at K2,473.00 to be paid by the Plaintiff Dr G Gibson.

This is the basis of the order for compensation in favour of Dr G Gibson in the amount of K2,473.00, because Dr Gibson had a Court Order for costs made against him in an action in his name that he had no knowledge of and did not authorise.

The Court has power to confirm or vary any penalty imposed by the Committee pursuant to s. 59. I am satisfied that the order for compensation against the Appellant is entirely appropriate, save that if Dr G Gibson has not paid that cost of K2,743.00 then in all the circumstances, it would be just as convenient to order that Mr Karingu pay Mr Merchants cost in the amount of K2,743.00 to save Dr Gibson any more inconvenience.

I so vary Order Number 3 in Decision No 1, and order that Canisius Karingu pay the Defendant Mr Keith Merchants taxed costs in the amount of K2,743.00 in the action WS 321/8. I further order that the suspension orders will commence on the 1st February, 1993 and that the order as to the costs shall be payable by 1st April, 1993, a period of 2 months.

Finally, quite frankly I consider that the penalties of suspension are lenient in the circumstances in which the proceedings were commenced as I have ascertained and determined. I had seriously considered increasing the period of suspension to demonstrate the very serious view that I take of the circumstances I have discovered.

They are actions and conduct most unbecoming of a lawyer. It brings the profession into disrepute and demeans its integrity. However, peers of the member have imposed the penalty and I do not wish to lightly vary it.

The whole appeal is dismissed with costs.

Lawyer for the Appellant: Karingu, Sitapai & Associates, Mr Sitapai

Lawyer for the Respondents: Blake, Dawson Waldron, Mr Payne