N1157

PAPUA NEW GUINEA
NATIONAL COURT OF JUSTICE

APPEAL NO 254 OF 1992

BETWEEN:

ROBERT SAGA
Appellant

AND:

THE LAWYERS STATUTORY COMMITTEE
First Respondent

AND:

LINDSAY KIVIA
Second Respondent

Waigani: Amet J
1993: 17 February & 14 July

Lawyers Act - Statutory Committee - Improper Conduct By Lawyer - Excessive Lawyer Client Costs

Mr R Saga, Appellant in person
Mr P Payne, for the Respondent

AMET J: The Appellant was on 20th August 1992, after an enquiry by the Lawyers Statutory Committee found guilty of improper conduct as a lawyer, of the following complaint:

"That on or about 9 May 1992 you rendered a bill of costs to your client, Lindsay Kivia in the sum of K37,200 - which bill of costs you knew or ought to have known was unjustified and excessive having regard to the work you performed for your client."

On 11 November 1992, after a further hearing as to the appropriate penalty the Committee imposed the following penalties:

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

2) 	An order pursuant to Section 54(2) of the Lawyers Act that he reduce his fees in respect of the work carried out by him, the subject of the inquiry, to the sum of K10,000.00; and

3) 	An order that he pay compensation to his client, Lindsay Kivia, in the sum of K27,200.00 on or before 30 November 1992; and

4) 	Suspension from practise as a lawyer from 30 November 1992 if the monetary penalty shall not then have been paid until it shall have been paid.

The Appellant appeals from these decisions on diverse grounds, which I summarise as follows:

(1) 	The Statutory Committee was in contempt of the National Court order that the costs be taxed, which taxation had not yet been done by the Taxing Officer.

(2) 	The Statutory Committee was pre-empting the Courts powers by declaring the costs of K28,200- as unreasonable and excessive.

3) 	The Statutory Committee did not give an opportunity to be heard before it passed penalty.

4) 	Members of the Committee Messrs Batari and Baker had conflict of interest in that the Bill of Costs to be taxed was ordered to be paid by the State and that both members were employees of the State Department of the Attorney-General.

5&6) 	Complaints against client complainant Lindsay Kivia.

7) 	The Committee acted ultra vires in over-taking the Registrar of the National Courts' powers.

8) 	The penalty imposed was excessive.

The Statutory Committee filed affidavit by its Secretary Mr James Baker deposing to the conduct of the enquiry and annexing the Records of the Proceedings of 20 August, 1992 and 11 November 1992 and copies of two letters to the Appellant advising of the enquires. The first was letter dated 21 August 1992, advising that the Committee conducted an enquiry into the complaint on 20 August, 1992. The letter stated that the committee noted that the Appellant failed to appear but had presented written submissions. The Committee proceeded and determined that the allegation had been made out and made a finding of improper conduct. The letter further advised that the enquiry would resume on a date to be notified to the Appellant for the purpose of determining penalty and that the Appellant may make written submissions on or before that date or he may appear in person for that purpose. The second letter dated 4 September 1992 advised that the enquiry would resume on 14 October, 1992 at 9:30am for the purpose of determining penalty.

Mr Baker the Statutory Committee's Secretary deposed that the Committee was unable to meet on 14 October, 1992 due to a lack of quorum. In any event the Appellant did not attend the venue of the proposed committee meeting. Mr Baker deposed that he believed he wrote to the Appellant advising of the Committee's enquiry being adjourned to 11 November 1992.

I quote the whole of the record of proceedings in respect of the two enquires:

RECORD OF PROCEEDINGS

20 August 1992

The allegation was read by the Secretary and the correspondence in support of the allegation was produced and tendered to the Committee. The lawyer did not attend but had provided written submissions. The Committee noted that the taxation of costs by the National Court to which the lawyer referred, was in relation to the party and party costs of the proceedings, and that the allegation was concerned with the lawyer and client costs. The Committee considered therefore that the National Court taxation had no bearing on the matter. The Committee considered the lawyer/client bill of costs prepared by the lawyer and agreed that the costs charged were grossly excessive having regard to their own experience and to the nature of the work carried out for the client. The Committee noted especially that the judgment against the State had been a default judgment and that the matter had gone to trial for only one day on an assessment of damages. The Committee accordingly made a finding of improper conduct against the lawyer. The committee then stood over the enquiry to a date to be fixed to enable the lawyer to make submissions on penalty.

11 November 1992

The enquiry resumed. The lawyer did not attend but had made further written submissions which the committee considered. Applying their own knowledge of the fees normally charged for matters of the kind dealt with by the lawyer the Committee considered that fees would fall into the K8,000-K10,000 range. Giving the lawyer the top of the range the Committee considered that a figure of K10,000 for costs was appropriate. The decision of the Committee would be therefore that the lawyer reduce his fees to K10,000 and pay compensation of the difference between the amount charged and received and the reduced fees to the client on or before 30 November. The lawyer would be suspended from practice with effect from 30 November if the compensation was not paid on or before that date.

I now turn to deal with the different grounds of appeal. Grounds (1), (2) and (7) can be dealt with together. These grounds are quite simply misconceived. The Committee had properly dismissed the submission by the Appellant. The taxation of costs by the National Court was in relation to party and party costs of the proceedings and not lawyer and client costs which was the subject of the complaint. It had no relevance to the enquiry by the Committee.

Under ground (3) the appellant contended that the Committee did not give him opportunity to be heard before it imposed penalty. The records disclose that on 21 August, 1992, the day following the Committee hearing and the finding of improper conduct against the Appellant, the Secretary of the Committee advised the Appellant by letter that "the enquiry will resume on a date to be notified to you for the purpose of determining penalty. You may make written submissions for the purpose of determining penalty. You may make written submissions on or before that date or you may appear in person for that purpose." Again by letter dated 4 September 1992 the Secretary to the Committee advised the Appellant that the "enquiry will resume on 14 October, 1992 at 9:30am for the purpose of determining penalty." The Secretary Mr Baker deposed in affidavit that the Committee was unable to meet on 14 October, 1992. The Appellant did not attend the venue, but had forwarded to the Committee submissions on penalty.

In these circumstances I consider that this ground is without merit. The Appellant had been given ample notice and opportunity to be present and forward written submissions which he did.

Ground(5) and (6) which relate to complaints against the Complainant Lindsay Kivia are quite irrelevant to the merits of the appeal.

The remaining ground takes issue with the penalty as being excessive. I am satisfied that the finding of improper conduct is proper. The second order on penalty that the Appellant reduce his fee in respect of work done to K10,000, is not really challenged at all. The Appellant submitted that he had charged K37,200 - but if upon taxation he was assessed to have overcharged then he would have been prepared to reimburse the client complainant. Well, that just illustrates the misconception that the Appellant was under. His professional peers considered "that the costs charged were grossly excessive having regard to their own experience and to the nature of the work carried out for the client". The Committee noted especially that the judgment against the State had been a default judgment and that the matter had gone for trial for one day on an assessment of damages.

I too consider the costs charged to be grossly excessive. I add that it is this kind of quite unjustified excessive charges on clients which could bring the good name of the profession into disrepute and cause loss of credibility.

The profession through its peer group disciplinary structure will re-assert and establish that good name and credibility by properly holding members accountable for improper conduct.

The further order to repay the amount of K27,200 as compensation to the Complainant by 30 November, 1992 and failing such repayment by that date the Appellant shall be suspended from practise as a lawyer until it shall have been paid is not excessive punishment.

This ground is therefore dismissed. Consequently the whole appeal is dismissed, and orders of the Statutory Committee are affirmed.

The Orders have been stayed pending determination of this appeal. I now make the following orders for the enforcement of the orders:

1. 	Robert Saga repay his client Lindsay Kivia the amount of K27,200- on or before the 31 July, 1993, and

2. 	In default, Robert Saga be suspended from practice as a lawyer from 31 July, 1993 until the full amount of K27,200 - shall have been paid.

3. 	The Appellant shall pay the costs of the Respondent.

Lawyer for Appellant: Robert Saga Lawyers
Lawyer for Respondent: Blake Dawson Waldron