N2905

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA 307 OF 2001

BETWEEN:

EMILY PANEYU DIRUA
-First Appellant-

AND:

EMILY PANEYU DIRUA TRADING AS DIRUA LAWYER
-Second Appellant-

And:

LAWYERS STATUTORY COMMITTEE
-First Respondent-

And:

PNG LAW SOCIETY
-Second Respondent

WAIGANI : Injia, DCJ
2005 : August 16th, 31st

Inferior Courts & Tribunals – Appeal – From decision of Lawyers Statutory Committee – Appeal procedure not prescribed by Lawyers Act 1989 – Ad hoc procedure recommended – District Court appeal procedure to be followed – Lawyers Act 1989, s.58; Practice Direction No. 1 of 1993 (Appeal Book); Constitution, s.185; District Court Act (Ch. No. 40), Part XI, ss.219 – 236.

Cases cited in the judgment:
Andrew Baing v PNG National Stevedores Pty Ltd (2000) SC 627 
Henry ToRobert v Mary ToRobert (2004) N2744.

T. Manjin for the Appellant
Mr. Raurela for the Respondent

31st August 2005

INJIA, DCJ: This is an appeal from the decision of the Lawyer’s Statutory Committee ("LSC") filed under S.58 of the Lawyers Act 1989.

By Motion filed on 14 April 2004, the Appellant applies to set aside the ex parte order made on 17 March 2005 dismissing her appeal for failure to comply with the conditional order made on 19 February 2003. She relies on her affidavit sworn on 14 April 2004 and her affidavit sworn on 4 July 2005. The Respondent contests the Motion and it relies on two affidavits sworn by Turia Elemi sworn on 8 July 2005 and 8 July 2005 respectively and affidavit of Hubert Kikira sworn on 12 July 2005.

The present application is made on the basis that the order was made ex parte on 17 March 2003. There is no contest on this procedure.

The conditional order of 19 February 2003 made by consent of the parties states:

"1.	The Appellants takes steps to settle the Index to the Appeal Book on or before 26 February 2003;
2.	The Appellants file and serve the Appeal Book on or before 5 March 2003;
3.	Should the Appellants fail to comply with orders 1 and 2 above the Appeal shall be dismissed; and
4.	The Appellants to pay the Respondent’s costs of and incidental to this application".

The order of 19 February 2003 and 17 March 2003 stems from the Appellant’s failure to compile, file and serve the Appeal Book. It is therefore necessary to discuss the relevant statutory provisions and other rules of Court relating to that particular requirement. In order to appreciate the requirement to file an Appeal Book in respect of an appeal from a decision of the Lawyer’s Statutory Committee, it is also necessary to discuss the procedural provisions relating to appeals from the Lawyer’s Statutory Committee under the Lawyers’ Act and issue some ad hoc procedural guidelines to fill what appears to be gap in that Act.

Appeals from decisions of the Lawyer’s Statutory Committee made under the Lawyers Act 1989 is provided in s.58 and it states:-

"58.	Appeal from decision of Committee

(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 persons 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."

The Lawyers Act is silent on the procedure for instituting an appeal in the National Court except that s.58(2) prescribes the time limit for filing the appeal. In the present case the Notice of Appeal filed on 13 December 2001 adopts the form of Notice of Appeal in the District Courts Act. On 28 December 2003, a Recognizance of Appeal in the form in the District Court Act was also filed. Also on 28 December 2003, an Entry of Appeal in the form in the District Court Act was filed. These documents were filed despite the lack of any provision in the Lawyer’s Act which adopts the procedure in the District Court Act as it is the case with s.49 of Workers Compensation Act which expressly adopts the District Court appeal procedure. Section 49(1) of the Workers Compensation Act states:-

"49.	Appeal to National Court

(1)	Where in any proceedings under this Act a tribunal gives a decision or makes an order or award, either party o the proceedings may appeal from the decision, order or award on a question of law or fact, or both, to the National Court within the time and in accordance with the conditions prescribed by the Rules of Court for appeals from decisions of the District Court."

In my view, there is a gap in the Lawyers Act as to the procedure to be followed in instituting and prosecuting an appeal in the National Court. I know that in previous cases and the present appeal is one such example, the District Court forms for Notice of Appeal, Recognizance on Appeal and Entry of Appeal have been adopted. I do not see any real legal and practical difficulty with this prevailing practice and I would sanction such practice in this particular case and recommend the same procedure to be followed in future appeals under the Lawyers Act. I would promulgate an ad hoc rule under s.185 of the Constitution, to say that until such time as the Parliament introduces legislation prescribing the appeal procedure under the Lawyers Act, the practice for the time being should be that it should closely follow the procedure prescribed in the District Court Act (Part XI Appeals from Decision of District Courts, ss.219 – 236). In relation to time limits, the Notice of Appeal is required to be filed in 28 days. As for other formal requirements of the Notice of Appeal, filing the Recognizance on Appeal and Entry of Appeal, requirements for service of the Notice of Appeal and issue of Notice of Hearing of Appeal, these should closely follow the form and requirements in the District Courts Act.

This brings me to the requirement to file an Appeal Book. The filing of an Appeal Book is not a requirement of the Lawyers Act, the District Courts Act or the National Court Rules. It is required by Practice Direction No. 1 of 1993 which states:-

"Appeal Books – National Court

To ensure that Appeals procedures are improved the National Court requires, that for all Appeals to the National Court an Appeal Book be filed containing the following information:

Title page;
Index;
Appeal Notice;
Any Amended Notice of Appeal;
A summary of the argument of the Appellant;
A summary of the rejoinder by the Respondent(s);
Magistrates Reasons –w here delivered when the Decision is handed down by the Magistrates;
Typed copy of the Transcript – signed by a Clerk of Court certifying that the Transcript is correct;

Any other Documents filed on the Court file, including Orders to Appeal out of time, that are deemed relevant to the Appeal.

All documents to be numbered, and where there is a reference to the transcript or the rejoinder the lines on the transcript are to be numbered.

If a Magistrate fails to provide reasons for his decision when that decision is handed down by the Magistrate, then no such reasons can be included in the Appeal book, except by prior leave of the Court on Motion accompanied by an appropriate Affidavit. An instance is where such leave may be given is where a Magistrate provides verbal reasons from the Bench at the time the decision is handed down.

The provisions of Order 7 Rule 43 of the Supreme Court Rules shall be adopted and applied so far as it is applicable to the matter, subject to the above modifications.

Where both parties are represented by a Lawyer, then both parties must sign the Appeal Book, and if there is a dispute as to the contents the Registrar or a Deputy or Assistant Registrar may on 7 days notice by the Registrar or a Deputy or Assistant Registrar on both parties settle the Appeal Book – such Notice of Appointment to be prepared for signing by the Applicant’s Lawyer.

If as respondent is represented by a Lawyer, and the Appellant is not so represented the Lawyer for the Respondent shall prepare the Appeal Book.

An Appeal Book must be delivered to the Court, and served on the other party at least 10 days before the matter can be set down for a Trial Date."

The order for filing the Index to the Appeal Book and the Appeal Book was made pursuant to Practice Direction No. 1 of 1993. There is no issue taken of the conditional order of 19 February 2003. There is also no contest that the Appellant failed to file the Index and the Appeal Book in compliance with the order. There is also no issue taken of the Notice of Motion by the Respondents filed on 7 March 2003 to give effect to the order of 19 February 2003. This is the correct procedure: see Andrew Baing v PNG National Stevedores Pty Ltd (2000) SC 627 applied in Henry ToRobert v Mary ToRobert (2004) N2744.

On 17 March 2003, the Appellant did not attend the hearing of the Respondent’s Motion. It was established by evidence from the Respondent that she had failed to file the Appeal Book by 5 March 2003 and the Court order was made on that basis. From what we know now, she would have given some explanation for the difficulties she had in complying with the order and would have asked for an extension of time to file the Index and the Appeal Book. Whether the Court would have accepted her explanation and granted the extension is another matter and it is conjecturous of me to speculate what the Court would have done.

What is properly before me is the question of whether the Appellant has satisfied the usual requirement to set aside an ex parte order. The applicant must give reasonable explanation as to why she allowed the judgment to be entered in her absence, that she must have an arguable case on appeal on the merits and that in the interest of justice, the appeal should be allowed to proceed to a merit hearing notwithstanding the default. Another relevant factor is whether to allow or not allow the application, the parties would be prejudiced. A further relevant consideration is the steps taken by the Appellant to prosecute the appeal promptly in accordance with her undertaking in the Recognizance of Appeal.

It is submitted by Mr. Manjin that when the Respondent’s Motion was returnable on 14 March 2005 at 9.30a.m. before Amet CJ, she was aware that the Motion was returnable that morning. She came to the Courthouse to find her matter was listed before the Motion List but the Motion Court List showed "TBA" (Time to be arranged). So she returned to her office and awaited further advice. On the afternoon of 14 March 2003, her secretary, Ms Julie Anga, received advice from Mr. Elemi for the Respondent that the Motion had been adjourned to 19 March 2003. So she advised her secretary to inform Mr. Elemi that she would be travelling to Goroka where she had another office. When she returned from Goroka a week later, she was served with the order dismissing the appeal.

Mr. Elemi says he sent a fax message to the Appellant advising of the adjournment of the matter by the Court to 17 March 2003.

The explanation given by the Appellant as to her non-attendance does not appear to be that of a diligent lawyer having carriage of her own matter in Court. She clearly failed to appear before the Chief Justice on 14 March 2005 and made no communication, preferably by return fax, with the Respondent’s lawyer, or even to the Court advising of her unavailability on 17 March 2005 and seeking an adjournment. It seems to me that she was evading the Court on 14 March 2005 and on 17 March 2005. She had also not filed any affidavit in response to the Respondent’s Motion, explaining why she had failed to comply with the order of 19 February 2003.

As to the grounds of appeal, she may well have arguable grounds of appeal because a finding of improper conduct and a substantial monetary penalty are serious things for a lawyer. She has challenged the hearing process that resulted in these findings and the penalty and they may raise substantial issues of law and procedure governing the Lawyers’ Statutory Committee. One issue that attracts my immediate attention is the penalty imposed which states:

"(2) To pay compensation in the sum of K7,000.00 to the PNG Law Society within 6 months of the 19th April 2001, failing which, you be suspended from practice as a lawyer until such time as the said compensation is paid in full."

This penalty was imposed under s.54(f) of the Lawyers Act which provides:

"Where, after an enquiry, the Committee is of the opinion that a lawyer has been guilty of improper conduct as a lawyer, it may impose any one or more of the following penalties:

(f)	Order that the lawyer pay compensation in cash or in kind to another person."

The issue arises as to whether "another person" includes the PNG Law Society (PNGLS). It will become necessary to construct s.54(f) of the Act. This is an important legal issue as to jurisdiction of the Committee which in my view requires resolution by the Court.

As to the prejudice to be suffered, the nature of the complaint was that the PNGLS complained to the Committee of being denied its interest on funds held in the Trust Account operated by the Appellant because she did not deposit trust monies into her firm’s Trust account. The Committee computed the interest to be in the sum of K7,000. The Appellant will remain suspended until she pays the compensation in the sum of K7,000.00. The sum of K7,000 is a substantial amount of money and the situation now appears to be that she has been unable to pay up, even under protest. She will continue to remain suspended until she gets a chance to clear her name in this appeal. As to the prejudice to be suffered by the PNGLS, it has been kept out of the K7,000.00 which it needs to fund its activities. Both parties will suffer prejudice in that sense and neither party derives any advantage from this consideration.

In relation to the steps taken by the Appellant to prosecute the appeal diligently generally, the decision was made on 18 April 2001 and Appeal was filed on 28 December 2001. It is now coming to some 3 years 8 months and the Appellant has yet to prepare the Appeal Book. I note the Index was filed on 6 March 2005. Both parties have accused the other side of not co-operating in settling the Index and what should go into the Appeal Book. If parties are unable to settle it, then under Practice Direction No. 1 of 1993, the Appellant is required to seek an appointment with the Registrar to settle the Index, etc. Under this Practice Direction, the Appellant carries the primary onus of Compiling the Appeal Book, have it certified and filed. Even when the Court made the order on 19 February 2005, she has not yet compiled the appeal book. What the Court wants to know is compliance with the order, not excuses. If a party is finding it difficult to comply with the conditions set out in the Court Order, he or she should apply for extension of time. Court orders must be taken seriously by parties. Also, Rules of Court made by judges, including Practice Directions for the conduct of proceedings in the National Court be taken seriously too.

In summary, notwithstanding the absence of a reasonable explanation, the delay in filing the Appeal Book and breach of the Court Order of 17 March 2003, the importance of the issues in the grounds of appeal require determination by the Court. In the exercise of my discretion, I allow the appeal to proceed to a hearing so that these issues can be argued and determined. I award costs of this application to the Respondent on a Solicitor-Client basis. The substantive appeal is fixed for directions on 14 September 2005 at 9.30a.m.
______________________________________________________________________

Lawyer for the Appellant		:	Ketan Lawyers
Lawyer for the Respondent		:	Regeau Elemi & Kikira Lawyers