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Gene v Thompson [2007] PGNC 111; N3254 (30 July 2007)

N3254

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 458 OF 2004

IN THE MATTER OF SECTION 58 OF
THE LAWYERS ACT 1986 (AS AMENDED)

BETWEEN

MICHAEL GENE
Appellant

AND

ROYALE THOMPSON, MARGARET PARUA,
FRAZER PITPIT, DAVID MANOKA, HENRY HENRY,
NIGEL AGONIA and FR. PHILLIP SMITH as Members
of the LAWYERS STATUTORY COMMITTEE
Respondents

Waigani: Injia DCJ
2007: 30 July

LAWYERS – Appeal from decision of Lawyers Statutory Committee – Ground – Lack of "quorum" of meeting – Quorum for meeting not prescribed by Lawyers Act 1986 – Majority principle applies – Majority means simple majority of more than one half of total members of Committee prescribed by statute – Seven members of committee prescribed by statute - Meeting which conducted enquiry constituted by two members only – Committee lacked quorum – Committee lacked jurisdiction to deal with matter – Appeal allowed and decision quashed and remitted to Committee for rehearing by differently constituted committee – Lawyers Act 1986, ss 48, 52, 53; Interpretation Act (Ch. 2), ss 38, 39; Commission of Inquiry Act (Ch. 31), s 14.

Cases cited in the judgment.

PNG Cases

Ketan v LSC (2001) N2290.
Chevu Jin Fq v Naniura [1990] PNGLR 506;

Overseas cases:

Green v The Queen [1891] VicLawRp 85; [1891] 17 V.L.R 329;
Hascord v Somany [1826] EngR 161; (1863) 89 ER 380;
Muncipality of St. Leonards v Williams [1966] TASStRp 17; [1966] Tas. S.R. 166.

Counsel

R. Raka, for the Appellant
N. Asimba, for the Respondents

30 July, 2007

1. INJIA, DCJ: This is an appeal from the decision of the Lawyers Statutory Committee (LSC) brought under s 58 of the Lawyers Act 1986. The decision made on 10 June 2004 relates to three (3) counts of improper conduct in respect of statements the appellant made in 1996, when he was the Attorney-General of Papua New Guinea, regarding the administration of justice by the Courts in Papua New Guinea. The statements were contained in an affidavit filed in an action filed in the Supreme Court of Victoria, Australia. The charges stem from a complaint made by the Papua New Guinea Law Society (PNGLS) to the LSC that the statement seriously damaged the Courts and the administration of justice in Papua New Guinea.

2. The three (3) counts are:

"Count 1: that on or about the 28th April, 1998 you made a sworn Affidavit in which you made statements intended to be used and were used before the Supreme Court of Victoria in a case between Gregory Toop (plaintiff) and Mobil Oil NG Ltd, Mobil Oil Australia Ltd and Yakaingi Business Group Inc. (defendants). It is alleged that in so doing, you engaged in conduct that was unprofessional, prejudicial to the administration of justice and may otherwise bring the legal profession into disrepute, thereby contravening Rule 3(a)(iii), (iv) & (v) of the Professional Conduct Rules 1989.

PARTICULARS OF UNPROFESSIONAL CONDUCT alleged are statements deposed to in paragraphs 7, 8, 9, 10 & 11 of the said Affidavit.

"Count 2: It is further alleged that with respect to the statement deposed to in paragraph 9 of the said Affidavit, you reported on what took place at a Confidential meeting of Lawyers in September, 1996 at which the Attorney-General was not present and where Lawyers only spoke on the condition that absolute confidence would be maintained. It is therefore, alleged that by reporting on a meeting that you did not attend and by naming one of the participants at that meeting, you made use of confidential information that you were not entitled to use thereby contravening Rule 9(1) & (3)(a), (b), (c) of the Professional Conduct Rules 1989.

"Count 3: You failed to respond to the letter of the Committee dated 19th March, 1999 requesting you to respond to the complaint made against you dated the 20th October, 1998 thereby contravening Rule 3(d) of the Professional Conduct Rules 1989."

3. He was found guilty on each of the three counts and fined a total of K4,300.

4. The appeal was conducted by way of rehearing de novo. The evidence for the appellant consist of the decision of LSC dated 10 August 2004 (Exhibit "A") and Minutes of decision of LSC dated 10 June 2004 (Exhibit "B"). The evidence for the respondents consists of the affidavit of the Secretary of LSC, Mr Malaki Unagui sworn on 11 January 2007 (Exhibit "C"). There was no oral evidence adduced by either party and no cross-examination involved.

5. There are twelve (12) grounds of appeal set out in the Amended Notice of Appeal filed on 16 March 2007. I set out those grounds in full hereunder:

Ground 1: That the Respondent/s acted ultra vires as it lacked jurisdiction for want of quorum as required under Section 48(2) of the Lawyers Act 1986.

Ground 2: The decision of the Respondents was made in breach of the rules of natural justice in that the Appellant was not provided particulars as requested to enable him to respond to the charges laid against him.

Ground 3: The Respondents breached the principles of natural justice enshrined under Section 53 of the Lawyers Act 1986 when it failed to:

(a) adduce evidence under oath in support of the complaint as stipulated by Section 53(2) of the Lawyers Act 1986
(b) allow the Appellant an opportunity to be heard before a verdict on guilt was made and before any decision on penalty was imposed; and
(c) give reasons for its decision on both guilt and penalty."

Ground 4: That pursuant to Section 155(4) of the Constitution this Honourable Court dismiss these proceedings before the Respondents on the basis that the Respondent’s failure to serve its decision on the Appellant within the 21 days prescribed under Section 58 of the Lawyers Act 1986 (as amended) has been harsh and oppressive on the Appellant by forfeiting him of the statutory right of appeal.

Ground 5: The Respondents acted ultra vires in their jurisdiction in that the matter the subject of their investigation and decision occurred in and was lawful under the laws of the State of Victoria, Australia.

Ground 6: The Respondents’ decision given on 10th June 2004, was unreasonable and ultra vires in that they could not have reasonably formed the view that the Appellant’s actions as enumerated in "Count 1" and "Count 2" of the decision constituted a prima facie case of professional misconduct, namely that:

(a) "Count 1: that on or about 28th April 1998 you made a sworn Affidavit in which you made statements intended to be used and were used before the Supreme Court of Victoria in a case between Gregory Toop (Plaintiff) and Mobil Oil PNG Ltd, Mobil Oil Australia Ltd and Yakaingi Business Group Inc., (Defendants). It is alleged that in so doing, you engaged in conduct that was unprofessional, prejudicial to the administration of justice and may otherwise bring the legal profession into disrepute thereby contravening Rule 3(a)(iii)(iv) and (v) of the Professional Conduct Rules 1989.

PARTICULARS OF UNPROFESSIONAL CONDUCT alleged are statements deposed to in paragraph 7, 8, 9, 10 and 11 of the said Affidavit."

(b) "Count 2: It is further alleged that with respect to the statement deposed to in paragraph 9 of the said Affidavit, you reported on what took place at a Confidential Meeting of Lawyers in September 1996 at which the Attorney General was not present and where lawyers only spoke on the condition that absolute confidence would be maintained. It is therefore, alleged that by reporting on a meeting that you did not attend and by naming one of the participants at that meeting, you made use of confidential information that you were not entitled to use thereby contravening Rule 9(1) and (3)(a)(b)(c) of the Professional Conduct Rules 1989."

Ground 7: The Respondents’ actions and decisions are unfair and oppressive and unconstitutional under Section 41 of the Constitution and that the Respondents have conducted their investigations and made decisions whilst the Ombudsman Commission has conducted and referred to the Public Prosecutor for prosecution under the Leadership Code on the same or substantially the same facts involving the same or substantially similar allegations of misconduct.

Ground 8: The Respondents failed to act fairly and impartially in refusing to adjourn their proceedings until the completion of the process and proceedings before the Public Prosecutor who is deciding whether or not to request the appointment of a Tribunal to determine these matters.

Ground 9: The Respondents’ actions as described in the last two preceding paragraphs have given rise to a reasonable apprehension of bias against the Appellant in circumstances where the Appellant has suffered a substantial miscarriage of justice.

Ground 10: In respect of both Counts 1 and 2 of the decision of the Respondents, the Affidavit sworn by the Appellant on 20th April 1998, referred to therein deposed to factual matters in furtherance of legal proceedings then (and presently) on foot in Supreme Court of Victoria, Australia and in such circumstances, the Appellant enjoyed the protection of an absolute privilege or immunity which is extended by Courts to all communications made in the course of, or incidental to, the processing and furtherance of judicial or quasi judicial proceedings. The Respondents failed to have regard to the fact that such immunity extended to all persons participating in the proceedings of the Court including the Judges, witnesses, parties and their Counsel to the contents of all pleadings, documents or other evidentiary material oral or written filed in furtherance of such proceedings.

Ground 11: In addition to the matters referred in the last preceding paragraph, as a matter of judicial comity, the privileges and immunities conferred on the Appellant by the Victorian Supreme Court must be respected and upheld by judicial and quasi judicial tribunals of this country. The Respondents in this instance overlooked these legal principles.

Ground 12: In respect of Counts 1 and 2 of the decision of the Respondents, the matters canvassed therein are matters of truth relating to judicial administration in this country and the Respondents failed to take a look at the Affidavit in this context and by which reason the Respondents ought not to have made a finding of misconduct.

6. The First ground relates to quorum of a meeting of LSC. This is the main ground. The relevant facts for purpose of this ground are that on 19 August 2003, at meeting No. 007 of 2003 of the LSC, the charges against the appellant was on the agenda for this meeting. Only two members attended the meeting. They are Ms Royal Thompson as chairperson and Mr David Manoka. Mr Mel Togolo, the third member who arrived for the meeting left the meeting at about 1.45pm after the Secretary informed him "that the others may not turn up." The meeting commenced at 2.35pm. The Committee’s only substantive matter discussed was in relation to a proposed recommendation on quorum to conduct meetings. Item four (4) of the Minutes states:

"The both members present made several recommendations for the Committee to consider:

1.(i) that the Committee must determine its own procedure under Section 53 of the Lawyers Act and issue a Practice Direction setting out procedures for conduct of meetings; and

(ii) the procedure referred to above will be that meetings can be conducted if there is at least two (2) members present with the decisions be recorded and transmitted to other members and if a majority of members approves the decision that shall be the decision of the committee."

7. There is no evidence before me if the full Committee or a majority of members of the committee approved this recommendation and whether a Practice Direction to that effect was issued.

8. In Meeting No. 005 of 2004 held on 10 June 2004, an enquiry was conducted on the charges laid against the appellant. The meeting was constituted by two members only namely, Ms Royale Thompson as Chairperson and Ms Margaret Parua. The Committee considered the evidence and found sufficient evidence to sustain each charge. He was fined K2,000 on the first count, K2,000 on the second count and K300 on the third count. He as also ordered to pay K200 for costs. The fines and costs were ordered to be paid within 30 days of notice of the decision.

9. A decision document setting out the decision in respect of each count was issued under seal of LSC and signed by the Secretary of the Committee. This decision was sent to the appellant by post. There is no evidence on whether the decision made by the two-member committee on 10 June 2004 was subsequently approved by the full committee or a majority of members of the Committee.

10. Mr Raka for the appellant submits s 48 of the Lawyers Act prescribes the membership of the LSC to comprise of seven (7) members. In the absence of any provision in the Act prescribing quorum for a meeting, s 38 and s 39 of the Interpretation Act applies. Section 39 requires "a majority" of the members of a statutory committee to do a prescribed thing. A simple majority is intended and in this case four (4) members is the simple majority. In the present case, the quorum fell short of this majority. Therefore, the meeting was not duly constituted and the decision reached is a nullity.

11. Mr Asimba for the respondent submits the lack of provision in the Lawyers Act on quorum is covered by s 53 which gives the LSC power to determine its own procedure or in the alternative, the procedural powers are the same as those of a Commission of Inquiry established under the Commission of Inquiry Act. First he submits the LSC determined its own procedure that two members would constitute a quorum to conduct a meeting. Pursuant to that resolution, a two-member committee conducted an inquiry into the matter. Although there is no evidence that the other members of LSC were consulted on the decision and they approved it, the Court should take judicial notice of the decision bearing the seal of LSC. The decision under seal is conclusive that this process was followed.

12. Second, under s 14 of the Commission of Inquiry Act (Ch. No. 31), where a Commission consists of more than one Commissioner, the Commission may authorize one member to conduct an enquiry into a matter. That provision applies to LSC by virtue of s 53(1). In the present case, two (2) members conducted the meeting which is one member above the minimum of one (1) required. The meeting was duly constituted and conducted.

13. Third, the s 38 and s 39 of Interpretation Act are not applicable in view of the express provisions of s 53(1) of the Act. In any case, s 38 and s 39 only applies to situation "where a statutory provision required or permits a thing to be done". These provisions should be literally construed (Chevu Jin Fq v Naniura [1990] PNGLR 506) so that they apply to a situation where a statutory provision makes express provisions for quorum. In the present case, there is no express provision on quorum in the Act to justify invoking the application of s 38 and s 39 of the Interpretation Act. The LSC derives its powers from the Act and it should not go outside the Act for its powers; Ketan v LSC (2001) N2290.

14. Mr Raka submits the Interpretation Act is of general application to all statutes and it applies to the Lawyers Act. Sections 38 and 39 should be fairly and liberally construed to mean that in the absence of express provision on quorum for a meeting, a simple majority is required to conduct a meeting. Further, to apply s 14(1) of the Commission of Inquiry Act, is to go against the principle of simple majority commonly practiced for meetings of statutory committees. A Commission of Inquiry is conducted by three members and it is permissible for the other two members to authorize one member to conduct or continue with the inquiry. LSC has seven (7) members and the simple majority principle applies.

15. I accept Mr Raka’s submission that the Interpretation Act applies to all statutes including the Lawyers Act. Section 2(1) of Interpretation Act says the provisions of the Act applies to "all statutes". In a situation where there is a doubt or ambiguity as to the use of a term or phrase in a statute, or there is lack of provision in a statute on a particular subject matter, it is intended that the relevant provisions of the Interpretation Act should apply.

16. The Lawyers Act, s 48 prescribes the full membership of the LSC to be seven (7) but does not prescribe the quorum for meeting. The function of LSC as prescribed by s 52 of the Act, is to enquire into complaints against a lawyer of improper conduct: s 52. It is not clear from s 52 as to whether the enquiry may be conducted by the "full committee" only or it is sufficient if conducted by majority of members. The word "Committee" is defined in s 1 of the Act as the LSC established under s 48. To me, the "Committee" as defined means the committee as a whole, as constituted by seven (7) members or the full committee.

17. It is practically difficult for any committee, board, council or other bodies established by statute or convention, to conduct their business in a meeting with its full members. It is an established principle of law that except where a rule of law or practice prescribes a special quorum for a meeting, the quorum for a meeting is constituted by a simple majority of its members. I will call this principle the majority principle. I am unable to locate any local case on the majority principle. I have come across three overseas cases. The rule that the majority binds the minority is a very old established principle of the common law: Hascord v Somany [1826] EngR 161; (1863) 89 ER 380; In Muncipality of St. Leonards v Williams [1966] TASStRp 17; [1966] Tas. S.R. 166, Chief Justice Burbury re-stated this principle in the context of a statutory municipal Commission, at p.175, as follows:
    

"... it is clear law that in the case of a Commission of this kind discharging public functions, (as distinct from co-agents appointed by a principal for private purposes), the decision of the majority becomes the decision of the Commission. All members must be present at a meeting to give the benefit of their particular qualifications and experience, and in that sense all members must participate in a decision or report. But it is not necessary that after their deliberations all members of the commission should be unanimous, and clearly the majority can bind the minority. This is a very old established principle of law going back to the days of Lord Coke in the Seventeenth century."

The Chief Justice qualified the general principle, at p.175:

"It is an instance of a modern authority applying the rule that the majority may bind the minority in the case of a statutory body, it is in my view no authority for the proposition that a decision may be taken by several of the persons appointed by the statute in the absence of others."

18. It depends on the intent of the legislature as expressed by the statutory provisions. If on a proper construction of the statute, it is intended that the whole number of members of the body or authority should perform the function, then that must be given effect to. In Green v The Queen [1891] VicLawRp 85; [1891] 17 V.L.R 329, Higinbothaw C.J. said at p.333:
    

"When an act of Parliament creates a body with certain powers, and requires that an act of the body, in the exercise of its powers, shall be done by the members, and no provision is made by or under the authority of the Act for the exercise of the powers by a quorum, or by part only of the whole number of the members, the act, in order to be valid must be done by all the members of the body."

19. The Lawyers Act makes no provision for a quorum for a meeting in which an enquiry is conducted by LSC under s 52. The Act only provides for LSC to conduct the enquiry. If it was not for the application of s 39 of the Interpretation Act, for reasons I have given in para 16 hereof, I would not hesitate to hold that the functions of the LSC under s 52 of the Lawyers Act must be performed by the whole number of members of LSC or the full Committee.
    

20. Section 39 of the Interpretation Act reflects the long established majority principle when it states:

"39. Powers of majority.

(1) Where a statutory provision requires or permits an act or thing to be done by more than two persons, a majority of them may do it.

(2) Subsection (1) extends to and includes—

(a) any case where a power, duty or function is conferred or imposed on persons jointly or collectively; and

(b) courts and tribunals."

21. It is clear that the majority principle in this provision applies to the full committee of seven-member committee which is empowered collectively by s 52(1) of the Lawyers Act to conduct an enquiry. Therefore, it is clear from the combined effect of s 39 of the Interpretation Act and s 48 and s 52 of the Lawyers Act that the LSC’s function under the Lawyers Act to conduct an enquiry into a complaint of an improper conduct by a lawyer as a lawyer, must be performed by the full Committee or a simple majority of the Committee constituted by not less than four members.

22. What then is the position of s 53(1) of the Lawyers Act. It is convenient to set out that section. Section 53 states:
    

"53. Procedures and Powers of the Committee.

(1) The Committee shall have the powers of a Commission of Inquiry under the Commissions of Inquiry Act (Chapter 31), but may otherwise determine its own procedures when enquiring into complaints of improper conduct and shall observe the rule of natural justice in carrying out an inquiry.
(2) Evidence given before the Committee shall be given on oath and witnesses may be examined and cross examined.
(3) The Committee may permit a lawyer instructed by the Society to assist in carrying out an enquiry.
(4) Proceedings of the Committee shall not be open to the public.
(5) Witnesses appearing in the course of an enquiry shall be protected against self-incrimination.
(6) The Committee shall cause a written record to be kept of proceedings of an enquiry."

Section 14 of the Commission of Inquiry Act is also relevant. Section 14 states:

"14. One Commissioner may make inquiries.

(1) Where a commission consists of more members than one, the commission may authorize any of its members to make such inquiries into such matters relevant to the subject of the Commission’s inquiry as it thinks fit.

(2) A Commissioner authorized under Subsection (1) has, for the purposes of his inquiries, all of the powers, functions and privileges of the Commission.

(3) The provisions of this Act, with any necessary modifications, apply to and in relation to a Commissioner authorized under Subsection (1), and to his inquiries, as they do to and in relation to the Commission and its inquiries, and references in this Act to the Commission include references to that Commission."

23. The power of LSC given by s 53(1) of the Lawyers Act to regulate its own procedure includes the power to regulate its own quorum for its meetings. This power is given to a meeting constituted by the full committee or a majority of the committee by operation of s 39 of the Interpretation Act. The Committee’s power to make a rule of procedure to authorize one of its members to conduct an enquiry under s 52 of the Lawyers Act, is equivalent to the full Commission comprising of three members authorizing one of its members to conduct an inquiry as provided in s 14 of the Commission of Inquiry Act. I do not think it is proper for a number of members constituting the Commission under the Commission of Inquiry Act or the LSC under the Lawyers Act, which falls short of full Committee or a majority of the Committee, to promulgate a rule of procedure which alters the quorum of LSC or the Commission. Therefore, in the case of LSC, only the full committee of LSC or a majority of the Committee, has the power to prescribe the quorum to conduct an inquiry.

24. There is no provision in s 14 of Commission of Inquiry Act for the results of the inquiry in the form of a report conducted by a single Commissioner to be approved by the full Commission or a majority of the Commission. It seems under s 14(2), the report becomes the full Commission’s report. The same cannot be said of an enquiry conducted by a number of members of LSC and decision made under s 52 of the Lawyers Act. This is where there is a fundamental difference between the powers of the Commission and the powers of LSC. A Commission is a fact finding inquiry and it has no power to determine the culpability of any person and impose a penalty whereas LSC is given those powers. Therefore, it is necessary for the full LSC or a majority of LSC to conduct an enquiry under s 52 of the Lawyers Act.

25. In conclusion, the power given to LSC to determine its own procedure including prescribing a quorum for its meetings given by s 53(1) of the Lawyers Act is vested in the "Committee", meaning the full Committee of LSC. Alternatively, by operation of s 39 of the Interpretation Act, a majority of the Committee may determine such procedure. I do not consider that it is the intent of s 53(1) that a LSC constituted by two members or any number of members less than the simple majority or the full committee is given any power to determine procedures of the Committee. An enquiry into the conduct of a lawyer is a serious thing and any procedures relating to the conduct of an inquiry including prescribing a quorum for a meeting must be determined by the full committee or a majority of the committee.

26. I appreciate that the LSC meeting on 19 August, 2003 simply recommended the new procedure on quorum and correctly sought the approval of the majority of LSC. The two-member LSC did in fact appear to have acknowledged the simple majority principle in s 39 of the Interpretation Act. There is however no evidence to show that the recommendation was approved in a subsequent meeting of LSC constituted by the full committee or a majority of the Committee and a Practice Direction to that effect was issued. The actual enquiry conducted on 10 June 2004 appears to have been conducted pursuant to the procedure recommended in its meeting of 19 August, 2003 because only two members proceeded to conduct the enquiry. Then there is no evidence to show that this decision was approved by the full Committee or a majority of the Committee.

27. Further, the affixing of the seal of the LSC is not conclusive of the decision on the enquiry made by the two-member committee being approved by the full Committee or a majority of the Committee. There is no provision in Part V of the Lawyers Act for decisions of LSC to be issued under seal. The only provisions in the Lawyers Act which make provision for documents under seal are s 4 and s 5 which relate to seal and documents issued under seal by PNGLS. The LSC is a separate body which is distinct from PNGLS. These provisions have no application to LSC.

28. For these reasons, I find that the enquiry by the two-member committee of LSC, held on 10 June, 2004 was not duly constituted as required by s 48(1), s 52 and s 53 of the Lawyers Act and s 39 of the Interpretation Act. Therefore, the two-member Committee which made the decision acted ultra vires those provisions. Even if the two-member Committee was duly constituted, there is no evidence that the enquiry conducted and decision made was approved by the full Committee or a majority of members of the LSC. The first ground of appeal must be therefore allowed and consequently, the said decision must be quashed.

29. I have allowed the appeal on a procedural blunder committed by LSC. The appellant’s other grounds also raise procedural issues of unfairness and breach of other procedures prescribed under the Act. He challenges the process used to determine guilt and raises issues of bias which are also a procedural issue. In my view, it is not necessary to separately address and determine those additional procedural issues. It is sufficient that the appeal is allowed on the first procedural ground.

30. In my view, it is fair to both parties that the matter must be remitted to LSC for a rehearing following proper procedures, in accordance with the opinion expressed in this judgment. The allegations made against the appellant are serious and they warrant a proper determination on the merits, after both sides are given opportunity to contest the case. It is also fair to the appellant that the two members of the LSC who participated in the determination of the charges on their merit should disqualify from participating in the rehearing.

31. The formal orders of the Court are:

1. The appeal is allowed.
2. The decision of the Lawyers Statutory Committee made on 10 June, 2004 in which the appellant was found guilty on three counts of improper conduct and fined a total sum of K4,300 and costs of K200, is quashed.
3. The matter is remitted to the Lawyers Statutory Committee for a rehearing, to be constituted by members other than Ms Royale Thompson and Ms Margaret Parua.
4. The Respondent shall pay the appellant’s costs of the appeal.

_________________________

Elemi Lawyers: Lawyer for the Appellant
O’Briens Lawyers: Lawyer for the Respondent