PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Samoa
You are here:  PacLII >> Databases >> Supreme Court of Samoa >> 2013 >> [2013] WSSC 11

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Ponifasio v Council of Samoa Law Society [2013] WSSC 11 (8 April 2013)

SUPREME COURT OF SAMOA

Ponifasio v Council of Samoa Law Society [2013] WSSC 11


Case name: Ponifasio v Council of Samoa Law Society

Citation: [2013] WSSC 11

Decision date: 8 April 2013

Parties:
TUALA AUIMATAGI PONIFASIO (Applicant) and COUNCIL OF SAMOALAW SOCIETY a body established pursuant to section 16 of the Law Practitioners Act1976 (Respondent).

Hearing date(s): 15 February 2013

File number(s): Misc 156/12

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s): Chief Justice Patu Falefatu Sapolu

On appeal from:

Order:
Representation:
R B Squire QC (of the New Zealand Bar) and Sarona Ponifasio for applicant
Semi Leung Wai for respondent
Catchwords:
audi alteram partem.
nemo judex in causa sua.

Words and phrases:
prima facie case
(Wednesbury unreasonableness)

Legislation cited:
Law Practitioners Act 1976
Judicial Review of Administrative Action (1995) 5th ed
Constitutional and Administrative Law in New Zealand (2001) 2nd ed
De Smith’s Judicial Review (2007) 6th ed

Cases cited:
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
Furnell v Whangarei High Schools Board [1973] AC 660
Dagnayasi v Minister of Immigration [1980] 2 NZLR 130,
Ridge v Baldwin [1963] UKHL 2; [1964] AC 40
Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1; [1968] AC 997
Cooper v Wandsworth Board of Works [1863] EngR 424; (1863) 14 CB (NS) 180
Board of Education v Rice [1911] UKLawRpAC 18; [1911] AC 179
Matatumua v Medical Council [2000] WSCA 3
Konig v Germany [1978] ECHR 6; (1980) 2 EHRR 170
Le Compte v Belgium [1981] ECHR 3; (1981) 4 EHRR 1; (1982) 5 EHRR
H v Belgium [1987] ECHR 30; (1987) 10 EHRR 339
Kraska v Switzerland [1993] ECHR 17; (1993) 18 EHRR 188
G.S. v Austria (1999) Application No. 26297/95
Russell v Duke of Norfolk [1949] 1 A11ER 109, 118
Lloyd v McMahon [1987] UKHL 5; [1987] AC 625, 702
Wiseman v Borneman [1971] AC 297
Lloyd v McMahon [1987] UKHL 5; [1987] AC 625, 702:
Wiseman v Borneman [1971] AC 297, 318, Lord Wilberforce stated:
Commissioner of Police v Tano
New Zealand Fishing Industry Association Inc v Minster of Agriculture and Fisheries [1988] 1 NZLR 544,
Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341
Gurusingbe v Medical Council of New Zealand [1989] 1 NZLR 138
Lewis v Wilson and Horton Ltd [2000] NZCA 175; [2000] 3 NZLR 546, 566;
Baker v Public Service Appeal Board [1982] 2 NZLR 437
Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 229.
Pouniu v Land Titles Investigation Commission [2003] WSSC 5

Summary of decision:


IN THE SUPREME COURT OF SAMOA

HELD AT MULINUU


FILE NO: MISC 156/12


IN THE MATTER: of Part XIX of the Supreme Court (Civil Procedure) Rules 1980.


BETWEEN:

TUALA AUIMATAGI IOSEFO PONIFASIO

Applicant


AND:


COUNCIL OF SAMOALAW SOCIETY a body established pursuant to section 16 of the Law Practitioners Act1976.

Respondent


Counsel:

R B Squire QC (of the New Zealand Bar) and S Ponifasio for applicant

S Leung Wai for respondent


Hearing: 15 February 2013


Conclusion: 15 February 2013


Judgment: 8 April 2013


JUDGMENT OF SAPOLU CJ

Proceedings

  1. These proceedings are concerned with a motion for judicial review by the applicant, Tuala Auimatagi Iosefo Ponifasio, seeking a declaration that the decision made by the respondent, the council of the Samoa Law Society, to issue an interim suspension order against him was unlawful and of no effect. The applicant further seeks an order to quash or set aside the said decision.
  2. The grounds in support of the motion for judicial review, as set out and explained in the submissions of counsel for the applicant, may be stated as follows:

(a) the respondent failed to treat the applicant fairly or in accordance with natural justice;

(b) the respondent improperly exercised its statutory power to impose an interim suspension order against the applicant; and

(c) the respondent did not have a quorum when it imposed the interim suspension order against the applicant so that the making of the said interim suspension order was without jurisdiction and unlawful.

  1. All three grounds of the motion were explained at length in the submissions of counsel of the applicant which I have found most helpful.

Background

  1. After being admitted as a barrister and solicitor in July 2005, the applicant engaged himself in private legal practice. In February 2010, the Samoa Law Society received a complaint against the applicant from a client of the applicant. This complaint led to four charges of professional misconduct being brought by the respondent against the applicant under the provisions of the Law Practitioners Act 1976. The charges were duly served on the applicant. There was then no suspension imposed by the respondent on the applicant.
  2. On 4 November 2010, a disciplinary tribunal consisting of five members of the respondent sat to hear and determine the charges brought by the respondent against the applicant. The applicant pleaded guilty to one charge and one charge was found proved. The remaining two charges were found not to have been proved and were therefore dismissed. After hearing submissions on the issue of penalty, the disciplinary tribunal on 26 November 2010 made an order suspending the applicant from practice as a barrister and solicitor for two years. This was the first time a suspension, which was by way of penalty, was imposed by the respondent on the applicant. The applicant was also ordered to pay $2,000 costs to the Samoa Law Society.
  3. The applicant then appealed to this Court against the findings of the disciplinary tribunal and the penalty imposed on him. Slicer J heard the appeal on 24 November 2011 and dismissed it on 22 December 2011. The applicant then further appealed to the Court of Appeal which dealt with the appeal at its sitting in May 2012. The Court of Appeal on 31 May 2012 upheld the applicant’s appeal and set aside both decisions of the disciplinary tribunal of 12 November 2010 relating to the findings of the tribunal on the charges against the applicant and the decision of the tribunal on 26 November 2010 suspending the applicant from practice for two years and ordering him to pay costs of $2,000. The grounds on which both decisions of the disciplinary tribunal were set aside by the Court of Appeal were apprehended bias and breach of the applicant’s right to a fair trial under Article 9 of the Constitution.
  4. Following the decision of the Court of Appeal, the applicant applied to the Samoa Law Society on 7 June 2012 for a practising certificate to enable him to resume his practice as a barrister and solicitor. By letter dated 13 June 2012, the secretary of the Samoa Law Society advised the applicant that at a meeting of the respondent on 12 June 2012, the respondent resolved to issue an interim suspension order pursuant to s.38 of the Law Practitioner Act 1976 suspending the applicant forthwith from practice as a barrister and solicitor pending the determination of the charges that were outstanding against him. This was because the decision of the Court of Appeal did not invalidate the charges that the respondent had brought against the applicant; it only set aside the decision made by the respondent in respect of those charges.
  5. As pointed out by Mr Squire QC, senior counsel for the applicant, in his submissions, the applicant was not given any prior notification by the respondent of its intention to impose an interim suspension order on him, nor was the applicant given any opportunity to put before the respondent by way of evidence or submissions any reasons as to why the making of an interim suspension order against him was not justified or was otherwise inappropriate. There was also no explanation given as to why the respondent had resolved to issue the interim suspension order against the applicant. The only reason given by letter dated 15 June 2012 under the signature of the secretary of the Samoa Law Society was that due to the seriousness of the charges, the respondent has resolved to suspend the applicant pending the re-hearing of the outstanding charges by a newly constituted disciplinary tribunal. When the issue was further pressed by counsel for the applicant, the respondent replied by letter dated 28 June 2012 under the signature of the president of the Samoa Law Society that so long as the decision was made by the respondent to inquire into a charge against a practitioner, the respondent has the power under s.38 of the Law Practitioners Act 1976 to suspend such practitioner without giving him prior notice. Furthermore, the respondent is not obliged to provide reasons for issuing an interim suspension order under s.38 so long as a decision was made to inquire into a charge against a practitioner. In these circumstances, Mr Squire QC submitted that there was no proper reason for the respondent’s refusal to provide the applicant with notification of its intention to make an interim suspension order under s.38 and depriving the applicant of the opportunity to be heard before making the order other than that the respondent thought it could do so.
  6. In the minutes of the respondent’s meeting of 12 June 2012, in which it was decided to issue the interim suspension order against the applicant, the reasons for the suspension appear as follows:

“Discussions on whether should exercise power under Act to issue interim suspension. Provision says we do not have to give any reasons. But the charges are serious. He was already found guilty on 1 charge and he pleaded guilty to one. That in itself suffices. We cannot allow him to practise given seriousness of charges. Appeal decision did not invalidate the charges; just the composition of the tribunal. Resolved to issue interim suspension order against Ponifasio. Rosella to notify him. Return practising fee without receipting it”.

  1. Furthermore, the minutes of the respondent’s meeting of 12 June 2012 show that only five members of the respondent were present even though s.16 of the Law Practitioners Act 1976 which established the council of the Samoa Law Society provides that the council shall consist of seven members. In my respectful view, Mr. Squire QC was convincing in his submissions that in terms of the relevant provisions of the Act, five of the seven members of the council (respondent) who met on 12 June 2012 and decided to issue the interim suspension order against the applicant did not validly constitute the council and therefore they could not have properly made the order to suspend the applicant. As a result, Mr. Squire QC further submitted that the order was made without jurisdiction and therefore unlawful.

The issues

  1. The issues for determination in these proceedings may be set out as follows in terms of the relevant grounds of review, namely, procedural fairness and illegality as derived from the judgment of Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410-411:

(a) Did the respondent accord procedural fairness, or natural justice, to the applicant when it issued the interim suspension order pursuant to s.38 of the Law Practitioners Act 1976 against the applicant? This is in terms of the ground of review of procedural fairness.

(b) Was the exercise by the respondent of its discretion under s.38 of the Law Practitioners Act 1976 in issuing an interim suspension order against the applicant a proper exercise of statutory power? This is in terms of the ground of review of illegality.

(c) Did the respondent have jurisdiction to issue an interim suspension order under s.38 of the Law Practitioners Act 1976 against the applicant when it did not have a quorum? This is also in terms of the ground of review of illegality.

  1. I will now discuss each of the above issues in turn. In doing so, I will consider the denial of natural justice alleged on behalf of the applicant under the ground of procedural fairness which now encompasses natural justice: see Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410-411.

(a) Connection between procedural fairness and natural justice

  1. It is generally accepted that there is an inter-connection between the concept of procedural fairness and the concept of natural justice so that the two concepts are often treated as synonymous. In Judicial Review of Administrative Action (1995) 5th ed by de Smith, Woolf and Jowell, para 7-007, the learned authors state that the expression ‘natural justice’ is the source from which procedural fairness flows.
  2. In Furnell v Whangarei High Schools Board [1973] AC 660 which was an appeal from New Zealand to the Privy Council, Lord Morris of Borth–y– Gest, in delivering the judgment of the majority, stated at p.679:

“Natural justice is but fairness writ large and juridically. It has been described as ‘fair play in action’

  1. In Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph, the learned author states at para 23.1, p.848:

“Natural justice’ is but fairness writ large and juridically: Furnell v Whangarei Schools Board [1973] 2 NZLR 705, 708. The duty to act fairly (or simply ‘fairness’) may substitute as a reference to natural justice: Dagnayasi v Minister of Immigration [1980] 2 NZLR 130, 141, per Cooke J. They are alternative descriptions for a single but flexible doctrine whose content may vary according to the nature of the public power and the circumstances of its use”

(b) The principles of natural justice

  1. Natural justice consists of two fundamental principles. The first principle is that no man should be condemned without being given notice and the opportunity to the heard. This is embodied in the maxim audi alteram partem. The second principle is that no man should be a judge in his own cause. This is embodied in the maxim nemo judex in causa sua. The first principle is sometimes referred to as the fair hearing rule and the second principle is sometimes referred to as the rule against bias.
  2. In Judicial Review of Administrative Action (1995) 5th ed by de Smith, Woolf and Jowell, the learned authors state at para 7-008, p.379:

“[Natural justice] became identified with the two constituents of a fair hearing; (a) that the parties should be given a proper opportunity to be heard and should be given due notice of the hearing (audi alteram partem) and (b) that a person adjudicating would be disinterested and unbiased (nemo judex in causa sua).

  1. In Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph, the learned author states at para 23.1, p.848:

“There are two pervasive principles of natural justice: that the parties be given adequate notice and opportunity to be heard (audi alteram partem) and that the decision-maker be disinterested and unbiased (no man a judge in his own cause – nemo judex in causa sua).

  1. I should also refer to the landmark case of Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 where Lord Hodson stated at p.132.

“No one, I think, disputes that three features of natural justice stand out – (1) the right to be heard by an unbiased tribunal; (2) the right to have notice of charges of misconduct; (3) the right to be heard in answer to those charges.”

(c) Amenability to judicial review of the exercise of a statutory discretion

  1. The exercise of a statutory discretion can be amenable to judicial review on the ground of illegality, procedural impropriety (procedural unfairness), or irrationality. There are numerous authorities which confirm that proposition. For example in the landmark case of Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1; [1968] AC 997 which was concerned with a challenge to the exercise by a Minister of his statutory discretion, Lord Reid stated at p.1030:

“It is implicit in the argument for the Minister that there are only two possible interpretations of this provision – either he must refer every complaint or he has an unfettered discretion to refuse to refer in any case. I do not think that is right. Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the Court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective, if persons aggrieved were not entitled to the protection of the Court”.

  1. Where the term “Minister” is used in the above passage, one may substitute the term “tribunal” or “council.”

(d) Applicability of procedural fairness, or natural justice, to the exercise of statutory power affecting rights or interests

  1. Often a statutory provision confers on a person or body of persons power to make decisions that will affect the rights or interests of others without saying whether a hearing should first be afforded to the person whose rights or interests will be affected. In such a situation, the Courts have insisted that the requirements of procedural fairness or natural justice apply unless there is good reason for procedural fairness or natural justice not to apply. The Courts approach is founded on the often-cited words of Byles J in Cooper v Wandsworth Board of Works [1863] EngR 424; (1863) 14 CB (NS) 180 where His Lordship said at p.194:

“[Although] there are no positive words in a statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature”

  1. In Judicial Review of Administrative Action (1995) 5th ed by de Smith, Woolf and Jowell, the learned authors state at para 1-029, pp 16-17:

“Where a statute authorising interference with property or civil rights was silent on the question of notice and hearing, the Courts, drawing upon the authority of the older cases, invoked ‘the justice of the common law’ to supply the ‘omission of the legislature’: Cooper v Wandsworth Board of Works [1863] EngR 424; (1863) 14 CB (NS) 180, per Byles J at 194. In a long line of cases on demolition orders, beginning with Cooper v Wandsworth Board of Works [1863] EngR 424; (1863) 14 CB (NS) 180, the rule, said to be of ‘universal application and founded on the plainest principles of justice’, was laid down that public authorities must either give the person concerned ‘notice that they intend to take this matter into their consideration with a view to coming to a decision, or, if they have come to a decision, that they propose to act upon it, and give him an opportunity of showing cause why such steps should not be taken’”.

  1. In Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph, the learned author states at para 23.1, p.847:

“Administrative authorities are bound by procedural requirements known as the rules of natural justice. It is ‘a duty on every one who decides anything’ to ‘act in good faith and fairly listen to both sides: Board of Education v Rice [1911] UKLawRpAC 18; [1911] AC 179, per Lord Loreburn at p.182. Where an empowering statute omits positive words imposing the duty, the ‘justice of the common law will supply the omission of the legislature’: Cooper v Wandsworth Board of Works [1863] EngR 424; (1863) 14 CB (NS) 180, per Byles J at p.194. The rules of natural justice promote decisions that are informed and accurate and which instill a sense of fairness”

  1. In the recent case Attorney-General v Mervyn Chapman [2011] NZSC 110, Chief Justice Elias states:

“The appellants were entitled to the observance of the principles of natural justice or fairness. In the landmark case Ridge v Baldwin [1963] UKHL 2; [1964] AC 40 Lord Morris of Borth–y–Gest observed about the principles of natural justice ‘here is something basic to our system: the importance of upholding it far transcends the significance of any particular case”.

(e) Section 38 and its interpretation

  1. Section 38 of the Law Practitioners Act 1976, under which the respondent in these proceedings issued the interim suspension order against the applicant, provides:

“At any time after the Council has decided to inquire into a charge against a practitioner in accordance with section 36, the Council may of its own motion and without having to give notice to the practitioner, make an order that he be suspended from practice as a barrister or solicitor, or as a barrister and solicitor, pending the disposal of the charge, and the Council may in the same manner at any time revoke such order”.

  1. It is clear from s.38 that the council is given a discretion to decide whether in a particular case a practitioner be suspended without notice after the council has decided to inquire into a charge against him. This was also recognised by the respondent. The use of the word ‘may’ instead of the word ‘shall’ or the word ‘must’ in s.38 implies that the council is given a discretion to exercise as to whether or not a practitioner be suspended from practice without notice pending the disposal of a charge against him. In other words, it is not in every case when the disposal of a charge against a practitioner is pending that the council has to suspend a practitioner without notice. The council may do that, but it may also not do it. It all depends on the circumstances of the case at hand. This is because s.38 gives the council a discretion. However, the provision is silent as to how that discretion is to be exercised in a particular case and whether the requirements of natural justice apply. As with many other statutory discretions, the exercise by the council of its discretion under s.38 is amenable to judicial review, see, for example, Padfield v Minister of Agriculture, Fisheries and Food [1968] UKHL 1; [1968] AC 997.

(f) Applicability of natural justice to the exercise of the respondent’s discretion under s.38 of the Law Practitioners Act 1976

  1. In my view, the requirements of natural justice do apply to the exercise of the respondent’s (council’s) discretion under s.38 as to whether to suspend a practitioner from practice pending the disposal of a charge against him. It would be contrary to principle and authority to hold otherwise. The circumstances of the applicant’s suspension do attract the requirements of natural justice.
  2. Article 9(1) of our Constitution, which provides for the right to a fair trial, is virtually a copy of Article 6(1) of the European Convention of Human Rights. It may apply to disciplinary proceedings for the suspension of a practitioner from practice. In Matatumua v Medical Council [2000] WSCA 3, Lord Cooke of Thorndon, in delivering the judgment of the Court of Appeal, said:

“It is true that the European Court has in the past taken the view that some purely public or administrative law issues between an individual and a state institution are outside the scope of civil rights and obligations; but professional disciplinary proceedings have been held in a number of cases to fall within Article 6(1): Konig v Germany [1978] ECHR 6; (1980) 2 EHRR 170 (medical practitioner’s authorisations to practise and run a clinic); Le Compte v Belgium [1981] ECHR 3; (1981) 4 EHRR 1; (1982) 5 EHRR 183 (suspension of right to practise medicine); H v Belgium [1987] ECHR 30; (1987) 10 EHRR 339 (non-restoration to roll of advocates); Kraska v Switzerland [1993] ECHR 17; (1993) 18 EHRR 188 (employed doctor’s treatment of patient without authorisation – a case raising issues similar to those in the present case); G.S. v Austria (1999) Application No. 26297/95 (licence to run a pharmacy). There is certainly no ground for adopting any narrower approach in Samoa”.

  1. As it would appear from Matatumua v Medical Council [2000] WSCA 3, Article 9(1) would apply to professional disciplinary proceedings including the suspension of a practitioner’s right to practise his profession, for example, as in Le Compte v Belgium (1981) EHRR 1.

(g) The contents of natural justice in a particular case

  1. The contents of the requirements of natural justice are not necessarily the same in every case. It all depends on the circumstances of the case at hand. In some cases a full hearing is required; in other cases, written or oral submissions are enough. But there are also cases which fall in between those two positions. The essential requirement is that the individual whose rights or interests are to be affected by a decision should be given a reasonable opportunity to state his case. In the well-known case of Russell v Duke of Norfolk [1949] 1 A11ER 109, 118, Tucker LJ, in a passage which has so often been cited, stated:

“There are in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case”.

  1. In the past, it was sometimes said that the statement by Tucker LJ in Russell v Duke of Norfolk [1949] 1 A11ER 109, 118 was vague. It has turned out in subsequent cases that that is not so. What is meant is that if the requirements of natural justice apply to a particular case, then the manner in which those requirements are to be satisfied will depend on the circumstances of the case at hand. But the one fundamental that must be observed is that the individual concerned must be given a reasonable opportunity to state his case.
  2. In Judicial Review of the Administrative Action (1995) 5th ed by de Smith, Woolf and Jowell, the learned authors stated at para 7-003, p.375:

“Some administrative decisions do not permit any participation; those for example that require speed and despatch and cannot be delayed. A hearing could not be held about whether a fire brigade, in the course of a fire, should destroy a building. In cases where participation is appropriate, the content of the procedures will vary in accordance with the nature of the decision to be made. Thus in some circumstances a full public inquiry may be required, whereas in others there will only be a bare entitlement to consultation”.

  1. In addition, in Judicial Review of Administrative Action (supra), the learned authors state at para 9-001, p.431:

“Tucker LJ in Russell v Duke of Norfolk [1949] 1 A11 ER & 109, 118 said that ‘there are, in my view, no words which are of universal application in every kind of domestic tribunal... whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case’.

“The content of fair procedures is therefore infinitely flexible. It ranges from mere consultation at the lower end, upwards through an entitlement to make written representations, to make oral representations, to a fully fledged hearing at the other extreme with most of the characteristics of a judicial trial. What is required in any particular case is incapable of definition in abstract terms. As Lord Bridge has put it in Lloyd v McMahon [1987] UKHL 5; [1987] AC 625, 702:

‘[The] so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates’”.

  1. In Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph, the learned author stated at para 23.1, p.848:

“The content of the rules and the standards of fairness are flexible. Whereas rigorous standards of procedural fairness may be expected of Courts, only a rudimentary standard may be expected of employers, trade unions or political parties. Some situations may call for a full impartial hearing with legal representation and cross-examination, other situations may warrant a simple notice in a local newspaper advising of an application and inviting comment or submissions”.

(h) Exclusion of the requirements of natural justice by legislative provision

  1. It is true, as counsel for the respondent submitted, that the requirements of natural justice may be excluded by statute. But this must be done ‘clearly and expressly’. Such a fundamental and longstanding principle of the common law as the requirements of natural justice is not to be easily or lightly excluded. Samoa is a country founded on God and Christian principles as the Preamble of the Constitution rightly states. The principles of natural justice were reflected in what happened in the trial at the Garden of Eden. Even though God knew that Adam and Eve had eaten the fruit of the ‘forbidden tree’, God still gave Adam and Eve the opportunity to be heard before He condemned them. God first asked Adam as to why he had eaten the fruit of the ‘forbidden tree’ and gave him the opportunity to give an answer. Adam blamed Eve. God then turned to Eve and asked her as to why she had eaten the fruit of the ‘forbidden tree’ and also gave her the opportunity to give an answer. Eve blamed the serpent. It was only after the opportunity to be heard was given to both Adam and Eve that condemnation followed. So the principles of natural justice were clearly applied in the very first case in the biblical history of mankind. That was done by no other than our Creator.
  2. Counsel for the applicant relied on passages from Wiseman v Borneman [1971] AC 297 and De Smith’s Judicial Review (2007) 6th ed in support of his submissions that the requirements of natural justice may be excluded by legislative provision. In Wiseman v Borneman [1971] AC 297, 318, Lord Wilberforce stated:

“Secondly, the legislature may certainly exclude or limit the application of the general rules. But it has always been insisted that this must be done, clearly and expressly:

“ ‘Such an intention is not to be assumed nor is it to be spelled out from indirect references, uncertain inferences or equivocal considerations. The intention must satisfactorily appear in express words of plain intendment: Commissioner of Police v Tano [1958] HCA 6; (1958) 98 CLR 383, 396, per Dixon CJ and Webb J’”.

  1. In De Smith’s Judicial Review (2007) 6th ed, para 8.003, the learned authors state:

“Provided it does so clearly and expressly, an Act of Parliament may dispense with the requirements of fair procedures where they would otherwise be required. A statute may, for example, permit the exercise of powers without notice. In the interests of administrative efficiency and expedition, the requirements of fairness have been excluded by statutory provisions which, for example, enable decision makers to decline an oral hearing, or to entertain particular kinds of representations and objections”.

(i) Are the requirements of natural justice excluded by the provisions of s.38 of the Act

  1. With respect to counsel for the respondent whose legal researches have been of assistance to the Court in other cases, I am not able to agree with him in this case that the provisions of s.38 of the Act exclude the requirements of natural justice in every case to which it applies, including the present case. In the first place, there is nothing in s.38 which ‘clearly and expressly’ states that the requirements of natural justice are excluded. It is true that in terms of s.38, the Council, after it has decided to inquire into a charge against a practitioner, may of its own motion and without having to give notice, suspend the practitioner concerned from practice pending the disposal of the charge against him. However, the use of the word ‘may’ clearly suggests that s.38 is discretionary rather than mandatory. It implies that the Council, in the exercise of its discretion, may of its own motion and without giving notice, suspend a practitioner from practice; but the Council, in the exercise of its discretion, may also decide not to do that. The matter is discretionary.
  2. As it also appears from what Lord Wilberforce said in Wiseman v Borneman [1971] AC 297, 318, the exclusion of the requirements of natural justice by legislative provision is not something to be assumed, or to be spelled out by indirect references, uncertain inferences, or equivocal considerations. It must appear in ‘express words of plain intendment’. This suggests that such a fundamental principle of the common law as natural justice, which is also embodied in Article 9 of our Constitution, should not be easily or lightly excluded. As Chief Justice Elias remarked in Attorney General v Mervyn Chapman [2011] NZSC 110, the principles of natural justice ‘is something basic to our system: the importance of upholding it far transcends the significance of any particular case’.
  3. Apart from exclusion by clear and express words of a statutory provision, there may be other situations where the requirements of natural justice may be relaxed or excluded, for example, in a state of emergency, where there is a need for urgency, or where relaxation is required in the interests of administrative efficiency and expedition. But none of those types of situations existed in the present case so as to call for a relaxation of the requirements of natural justice.

(j) Natural justice and the two stage process involved in professional disciplinary proceedings

  1. Professional disciplinary proceedings usually involve a two-stage process, the investigative stage and the adjudicative stage. The requirements of natural justice may not apply, or it may apply with less force, at the investigative stage of the disciplinary process but they normally apply at the adjudicative stage. In Rees v Crane [1994] 1 A11 ER 833, cited by counsel for the respondent, Lord Slynn of Hadley, in delivering the judgment of the Privy Council, stated at pp. 844 – 845:

“It is clear from the English and Commonwealth decisions which have been cited that there are many situations in which natural justice does not require that a person must be told of the complaints made against him and given a chance to answer them at the particular stage in question. Essential features leading the Courts to this conclusion have included the fact that the investigation is purely preliminary, that there will be a full chance adequately to deal with the complaints later, that the making of the inquiry without observing the audi alteram partem maxim is justified by urgency or administrative necessity, that no penalty or serious damage to reputation is inflicted by proceeding to the next stage without such preliminary notice, that the statutory scheme properly construed excludes such a right to know and to reply at the earlier stage.

“But in their Lordship’s opinion there is no absolute rule to this effect even if there is to be, under the procedure, an opportunity to answer the charges later. As de Smith’s Judicial Review of Administrative Action (4 th edn, 1980) p199 puts it :

“ ‘Where an act or proposal is only the first step in a sequence of measures which may culminate in a decision detrimental to a person’s interests, the Court will generally decline to accede to that person’s submission that he is entitled to be heard in opposition to this initial act, particularly if he is entitled to be heard at a later stage.’ (My emphasis)”.

  1. In my respectful view, the above passage does not assist the respondent. In the first place, the present case is no longer concerned with an investigation. The parties have long gone past the investigative stage of the disciplinary process. They have also long gone past the adjudicative stage of that process. They are now awaiting a re-adjudication or re-hearing following the decision of the Court of Appeal. It was during the early stage of this waiting period that the interim suspension order was issued by the respondent against the applicant under s.38 of the Act. The passage from Rees v Crane [1994] 1 A11 ER 833, 844-845 did not contemplate this kind of situation. Secondly, the material before the Court does not show that there was any urgency or exigency for the imposition of the interim suspension order against the applicant without giving him the opportunity to be heard. Thirdly, suspension would inevitably impact on the applicant emotionally and his livelihood may also be affected. However, this factor has been found to give way where in the circumstances it is appropriate to impose a suspension.

(k) Approach to the exercise of the respondent’s discretion under s.38 of the Act

  1. Mr Squire QC produced three decisions of the New Zealand Law Practitioners Disciplinary Tribunal which set out the Tribunal’s approach to the interim suspension of a practitioner pending the hearing and disposal of a charge against him. Without intending any discourtesy to counsel, I have decided to refer to only one of those decisions. In the matter of Wellington District Law Society v Carlyle (1998) the Tribunal stated :

“ In re C a Canterbury practitioner November 1989, the Tribunal restated some of the factors relevant when considering an application pursuant to section 115 of the Act. It was then said” :

“ ‘ The Tribunal has set out a number of criteria which must be satisfied before an interim suspension order will be made (see re K, a Wellington practitioner May 1989, re M an Auckland practitioner June 1989 (Auckland 1989) and re W, a Taupo practitioner September 1989). They are :-

  1. A prima facie case of conduct contrary to section 112 must be disclosed.
  2. That the conduct (if proved) is likely to persuade the Tribunal to be of the opinion that he is no longer a fit and proper person to practise.
  3. The facts must demonstrate an immediate need to safeguard the interests of the clients, present and future, all those to whom the practitioner may owe a fiduciary duty of care, the Fidelity Guarantee Fund or the interests of the profession generally.

In short it considers whether there is a risk that the unacceptable conduct may continue and if so then a suspension order is appropriate.

Section 115 gives the Tribunal a wide discretion which was undoubtedly intended. The paramount consideration must be the public interest but no order will be made unless an immediate need to protect the public is shown as such an order tends to pre-empt the substantive hearing and may have an unnecessary adverse effect on the practitioner and his practice. The Tribunal will not, however, hesitate to make an order if a case is made out.

Discussion

  1. As it would appear from what has been said, s.38 of the Act gives the respondent a discretionary power. In the exercise of that discretionary power, the respondent may or may not suspend a practitioner without notice pending the disposal of a charge alleging professional misconduct against him. However, s.38 is silent as to how the respondent is to exercise its discretion and whether the requirements of procedural fairness or natural justice apply.
  2. Based on principle and authority, I am of the view that the requirements of procedural fairness or natural justice apply to the exercise of the respondent’s discretion under s.38, unless there is an exigency or a need for urgency which requires immediate suspension without a hearing. This is a situation where ‘the justice of the common law’ will supply the ‘omission of the legislature’ The approach to be adopted in the exercise of the respondent’s discretion should be the same as that set out in the passage cited in this judgment from the decision of the New Zealand Law Practitioners Disciplinary Tribunal in Wellington District Law Society v Carlyle (1998).
  3. This is the first case on s.38 of the Law Practitioners Act 1976 and I can understand the difficulties the respondent was faced with in dealing with that provision. In my view, there is nothing to show that the respondent acted in a way other than in good faith. It adopted an interpretation of s.38 which it honestly believed to be its true meaning. Unfortunately, that interpretation was mistaken and it misinformed the actions subsequently taken by the respondent. As a result, the applicant was not accorded procedural fairness or natural justice when, in the circumstances, he should have been, before he was issued with the interim suspension order.
  4. The interim suspension order issued against the applicant was therefore not validly made and is set aside.

(l) The duty to give reasons and procedural fairness or natural justice

  1. I have decided to leave for discussion at this junction the duty to give reasons by a statutory tribunal in order to avoid possible confusion with the other well-established aspects of procedural fairness or natural justice already discussed in this judgment. As pointed out in Judicial Review of Administrative Action (1995) 5th ed by de Smith, Woolf and Jowell at para 9-048, p.465, ‘the duty to give reasons may now be seen simply as yet another aspect of the requirements of procedural fairness’. However, the authorities are clear that there is no general duty to give reasons imposed on statutory tribunals for their decisions, for example, in R v Awatere [1982] NZCA 91; [1982] 1 NZLR 644, Woodhouse P, in delivering the judgment of the New Zealand Court of Appeal, said at p.647:

“For the reasons given in this judgment we are unable, with respect, to accept the view that there is any general rule of law which requires reasons to be given, nor the conclusion reached in this case that a decision given in the absence of reasons would have to be regarded as a nullity. Later in the judgment we refer to the discretionary right in the Court to quash a decision should that be necessary in order to avoid injustice”.

(m) Circumstances where procedural fairness or natural justice may require the giving of reasons for a statutory tribunal’s decision

  1. It is not necessary to give an extensive account of the circumstances where procedural fairness, or natural justice, may require the giving of reasons for a statutory tribunal’s decision. Such an account may be found in Judicial Review of Administrative Action (1995) 5th ed by de Smith, Woolf and Jowell at para 9-047, pp.462 – 465. For present purposes, it would be sufficient to refer to the circumstances which are relevant to the present case.
  2. In Judicial Review of Administrative Action (supra) at para 9-047 (2), pp 462 – 463 the learned authors state:

“Where statute or regulation provides a right of appeal from a decision, reasons may be required so as to enable the affected individual to exercise effectively that right. A right to reasons in these circumstances may be explained either by reference to the rules of natural justice or, more usually, by a necessary implication from the rules which provide for the appeal”.

  1. In Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph, the learned author pointed out at para 23.4.10, pp. 871-872:

“In Potter v New Zealand Milk Board [1983] NZLR 620, 624, Davison CJ proclaimed it a public responsibility of both Courts and administrative authorities to provide reasons:

“ ‘The giving of reasons helps to concentrate the mind of the tribunal upon the issues for determination: it enables litigants to see that their cases have been carefully considered and the arguments understood and appreciated; it enables a litigant dissatisfied with a decision to more readily consider whether there are grounds of appeal; and it enables an appellate Court or tribunal to ascertain the determinations of the tribunal on questions of fact, to which appellate Courts pay deference on the hearing of an appeal and [it] also enables the appellate Court... to know what principles of law have been applied and to consider whether such were correct’.

“A refusal to provide reasons may invite the inference that a decision lacked foundation and was arbitrary: New Zealand Fishing Industry Association Inc v Minster of Agriculture and Fisheries [1988] 1 NZLR 544, 554, that mandatory relevant considerations were ignored, or that improper considerations materially influenced the outcome, for example, Padfield v Minister of Agriculture, Fisheries and Food [1969] AC 997, 1061-1062; Fiordland Venison Ltd v Minister of Agriculture and Fisheries [1978] 2 NZLR 341, 345-346. The rubric appears to be ‘fairness in the circumstances of the particular case’: Gurusingbe v Medical Council of New Zealand [1989] 1 NZLR 138, 163, per Davison CJ”.

  1. It appears from the authorities cited that if a statute provides a right of appeal from a decision of a tribunal, procedural fairness may require the tribunal to give reasons for its decision so that the right of appeal can be effectively exercised. Not to give reasons for its decision may frustrate the right of appeal. It may also lead to the inference that there are no good reasons for the decision or that the reasons for the decision are bad.
  2. It is, however, not necessary to express any view in this case on whether procedural fairness may also require the giving of reasons for a tribunal’s decision where not to do so may defeat a right to bring judicial review proceedings. But see Lewis v Wilson and Horton Ltd [2000] NZCA 175; [2000] 3 NZLR 546, 566; Baker v Public Service Appeal Board [1982] 2 NZLR 437, 446.

(m) This case

  1. Section 40 of the Law Practitioners Act 1976 provides a practitioner with a right to appeal to the Supreme Court against an order by the council (respondent) suspending him from practice. To make the exercise of that right effective, procedural fairness may require the council to give reasons for its decision There is nothing in s.38 which says that the council does not have to give reasons when it issues an interim suspension order against a practitioner pending the disposal of a charge against him. Section 38 is silent on the matter. The reasons given by the respondent for its decision to suspend the applicant were, firstly, that the charges against the applicant were serious and, secondly, that in terms of s.38 the respondent was not obliged to give prior notice of its intention to suspend the applicant from practice or to provide reasons for its decision to suspend the applicant. Mr. Squire QC submitted that these reasons were not valid. With respect, I agree.
  2. Thus, the respondent acted in accordance with procedural fairness in the sense of providing reasons for its decision to suspend the applicant from practice pending the disposal of the charges against him. But because the reasons were not valid, I will consider those reasons again under the next ground which relates to illegality..

(n) The legal concept of discretion

  1. The term ‘discretion’ implies that a person who is given a discretion to exercise has a choice to make between alternatives; he is not tied down to one particular course of action. In Judicial Review of Administrative Action (1995) 5th ed by de Smith, Woolf and Jowell, the learned authors state at para 6-004, p.296:

“The legal concept of discretion implies power to make a choice between alternative courses of action or inaction. If only one course of action can lawfully be adopted, the decision taken is not the exercise of a discretion but the performance of a duty. To say that somebody has a discretion presupposes that there is no uniquely right answer to a problem. There may, however, be a number of answers that are wrong in law. And there are degrees of discretion – varying scope for decisional manoeuvre afforded to the decision-maker”.

(o) Statutory discretion and illegality

  1. In Constitutional and Administrative Law in New Zealand (2001) 2nd ed by PA Joseph, the learned author states at para 21.1, p.788:

“A public authority must act within the parameters set by its empowering statute. It must understand correctly the law that regulates its decision-making power and must give effect to it: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, per Lord Diplock at p.410. Illegality encompasses three situations:

“(1) Abusing a discretionary power under the Wednesbury principle (for example exercising a power for an improper purpose);

“(2) Abdicating a discretionary power (for example adopting a rigid rule or policy); and

“(3) Committing a reviewable error in making findings of law or fact”.

  1. Further on in Constitutional and Administrative Law in New Zealand (supra), the learned author states at para 21.2, p.789:

“The holder of a statutory discretion, although acting in good faith, may also abuse his or her power by exercising it for an improper purpose, or on irrelevant grounds, or in disregard of relevant considerations. An authority which errs for any of those reasons is said to have acted ‘unreasonably’ within the first of Lord Greene’s meanings of that term in Associated Provincial Picture Houses v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 229. Lord Greene’s second meaning (Wednesbury unreasonableness) equates with ‘irrationality’ as a ground of review...”

Discussion

  1. As it appears from the New Zealand approach, one of the relevant and material considerations to be taken into account when determining whether to issue an interim suspension order against a practitioner pending the hearing and disposal of a charge against him, is whether there is an exigency or need for urgency that calls for immediate suspension without a proper hearing. From the reasons given by the respondent for its decision to issue the interim suspension order against the applicant, it is clear that the question of whether there was a need for urgency was not taken into account. But that is a very relevant consideration. In other words, the respondent in arriving at its decision to suspend the applicant did not take into account a very relevant consideration. I can understand why the respondent had acted the way it did. It was not because of any ulterior motive. As already pointed out, this is the first Samoan case on s.38 and it is likely that the respondent was not aware of the New Zealand approach. However, this does not make the respondent’s decision a proper exercise of discretion.
  2. Furthermore, the reasons given for the respondent’s decision were not valid. As Mr. Squire QC pointed out, the seriousness of the charges is not the sole test to be applied. The need for urgency should also have been considered. Furthermore, the reference in the respondent’s reasons to the applicant being ‘convicted’ of two charges is not valid because the Court of Appeal had set aside the decisions of the disciplinary tribunal that heard and determined the charges against the applicant. That was because of perceived bias and breach of Article 9 (1) of the Constitution. In other words, by taking into account the ‘convictions’ of the applicant by the disciplinary tribunal, the respondent had taken into account an irrelevant consideration in arriving at its decision to suspend the applicant.
  3. Thus, by not taking into account a relevant and material consideration, and by taking into account an irrelevant consideration, the exercise of the respondent’s discretion under s.38 of the Act was not a proper exercise of discretion. The respondent’s decision to issue an interim suspension order against the applicant is therefore also set aside on the ground of illegality.

Conclusion

  1. For the foregoing reasons, I have come to the conclusion that the respondent’s decision to issue the interim suspension order against the applicant pending the disposal of the charges against him is void on the grounds of procedural impropriety and illegality. That decision and the interim suspension order are therefore set aside.

Costs

  1. Counsel to file memorandum as to costs within ten (10) days if they have not done so already.

----------------------------------------

CHIEF JUSTICE


Solicitor

Ponifasio Law Firm for applicant

S Leung Wai Law Firm for respondent

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/ws/cases/WSSC/2013/11.html