Gomez v Klonaris et Al
| Jurisdiction | Bahamas |
| Judge | Sawyer, J.,J. |
| Judgment Date | 02 March 1992 |
| Court | Supreme Court (Bahamas) |
| Docket Number | Common Law Side No. 63 of 1991 |
| Date | 02 March 1992 |
Supreme Court
Sawyer, J.
Common Law Side No. 63 of 1991
Mr. Dennis L. Gomez, plaintiff in person.
Mr. M. R. Scott for the First defendant.
Mr. E.A. Knowles for the Second defendant.
[ Smith, Senior judge present in person — Third defendant].
Ms. M. Bethel for Third defendant
No appearance by or on behalf of Fourth and Fifth defendants.
Injunction - Exparte Interlocutory injunction restraining disciplinary proceedings — Delay in making application — Whether serious issue to be tried.
Legal profession - Power of Bar Council to discipline members — Immunity of members of Disciplinary Committee from civil suit — Bahamas Bar Act, 1971.
On 17th February, 1992, I dismissed an ex parte summons filed on January 16, 1992 by the plaintiff in which he sought the following relief:–
“1. An injunction to restrain the defendants or either of them from acting or purporting to act against the plaintiff pursuant to The Bar (Disciplinary Proceedings) Regulations, 1981 and The Bahamas Bar (Code of Professional Conduct) Regulations, 1981 in pursuance of the terms of the purported complaint of the First defendant dated the 11th day of January, A.D. 1991, pending the determination of these proceed- ings or until further Order.
2. An injunction to restrain the First, Third, Fourth and Fifth defendants from acting in accordance with their stated intent by Notice to the plaintiff dated the 17th day of December, A.D. 1991 to commence hearing of the purported complaint of First defendant against the plaintiff on the 17th day of January, A.D. 1992 or otherwise purporting to take any proceedings against the plaintiff pursuant to the provisions of The Bar (Disciplinary Proceedings) Regulations, 1981 and The Bahamas Bar (Code of Professional Conduct) Regulations 1981, pending the determination of these proceedings or until further Order.
3. An order that the costs of this application be costs in the action.”
At the same time, I awarded costs against the plaintiff to be taxed and paid before any other steps are taken in this action. At that time, the plaintiff gave oral notice of his intention to appeal my decision and I promised to give my reasons in writing for so doing. This I now do.
Background:
This matter, from the papers on the file, arises out of earlier proceedings between the first defendant and persons for whom the plaintiff acted as counsel and attorney in a conveyancing transaction between their respective clients. In addition, there was, apparently, another action brought against the plaintiff personally for breach of an undertaking he had given to the first defendant in connection with that transaction. In the latter case, the plaintiff apparently allowed judgment to be entered against him by default — see Exhibit “DLG 4” especially sub paragraphs 2 (i) to (xiv) thereof.
The plaintiff, first, fourth and fifth defendants are all, by the provisions of The Bahamas Bar Act (Ch.44) (“the Act”) members of The Bahamas Bar Association, an unincorporated body of which the second defendant is its executive body. Further, under the provisions of the Act section 17 (1) — counsel and attorneys are “officers” of the Supreme Court.
As a result of the previous proceedings, a complaint was made by the first defendant to the second defendant in accordance with the Act and The Bahamas Bar Act (Disciplinary Proceedings) Regulations, 1981 (“the Regulations”) made thereunder.
Acting, or purporting to act, in accordance with the provisions of the Act and the Regulations the second defendant was apparently of opinion — see s. 28(1) of the Act — that the complaint as laid, might, if established, require the exercise by a disciplinary committee of one or other of the sanctions contained in section 30 of the Act, decided to appoint a disciplinary committee to hear the complaint.
As required by the Act, the members of the committee were appointed under the hand of the President of the second defendant pro tem. They are the third, fourth and fifth defendants (hereafter “the Committee”).
I should add that Smith, Senior Justice was appointed Chairman of the Committee by the incoming president of the second defendant not the outgoing president about whom complaint is made in paragraphs 26 and 27 of the plaintiff's affidavit sworn and filed on 16th January, 1992.
By a notice dated 17th December, 1991 over the signature of the third defendant, the 17th January, 1992 was fixed as the date; for the hearing of the complaint. The plaintiff was served with the notice on the same day — see paragraph 24 of his affidavit.
In that same paragraph, the plaintiff complains that the service of the notice on him was invalid because although the affidavit of the first defendant accompanied the notice, the complaint itself did not and therefore there had been non-compliance with the Regulations.
Although he, was served with the notice of the hearing of the complaint on 17th December, 1991, even bearing in mind the number of dies non occurring in the period, it was only on the 16th January, ie., the day before the hearing before the Committee was due to begin, that the documents — ie., the originating summons, the ex parte summons and the affidavit were filed and the hearing of the ex parte summons was apparently set for the 17th January; 1992 before Hall, J.,— ie., the very day on which the complaint was scheduled to be heard. The plaintiff's explanation for the delay in applying ex parte for the injunction is contained in paragraph 34 of his affidavit.
Apart from the question of the invalidity of the service of the notice of hearing upon the plaintiff, a number of questions are raised in the originating summons as well as the plaintiff's affidavit; In my view, the most serious of those questions deal with the vires of the Regulations and allegations of bias in the second and fourth defendants.
In support of the application for the injunction, the plaintiff deponed that damages are not an adequate remedy.
The plaintiff also deponed (at paragraph 31 of his affidavit) that the defendants have interfered with his “unfettered right to practise as an attorney of the Supreme Court of The Bahamas and unless restrained [he] apprehended that they are likely to continue to do so and thereby infringe his fundamental right guaranteed to [him] in Article 20(8) of the constitution. …” Now, under the Westminster model constitutions, where there are entrenched fundamental rights provisions, one may well speak of one's constitutional rights but everyone's constitutional rights are necessarily subject to everyone else's constitutional rights and the public interest of the community generally. If it were not so then some members of the community would have licence because of intrinsic or other power to do whatever they wish while others would have the duty to allow them to do so. Further, Article 20(8) of the Constitution is concerned with how the, civil rights of persons are to be decided. It is not clear what civil right, apart from the alleged “unfettered right” of the plaintiff to practise as a counsel and attorney of The Bahamas Bar, is being infringed except insofar as the allegations of bias and invalidity of the legislation is concerned for, as counsel and attorneys are officers of the Supreme Court and have been admitted to practice by the Chief Justice — acting, since 1973, on the advice of the Bar Council — they are, and always have been, subject to the, disciplinary control of the judges of the Supreme Court — at least at Common law and up until 1973. Further, as the plaintiff himself depones in his affidavit that one of the reasons for the delay in applying for the injunction was that he was busily preparing over two months for an appeal to the Privy Council, it is difficult to understand how the requirement that he appear to answer to the complaint could be an unnecessary interference with his practise of the law unless the profession is itself beyond the law. Furthermore, the plaintiff himself, at the end of the hearing before me, said that the Committee had adjourned the proceedings until 6th March, 1992.
As to the allegation of bias in the then president of the Bar Council, it should be noted that the third defendant, at least, was appointed by the present president in respect of whom there is no allegation of bias nor other improper motive.
It also appears, from the plaintiff's affidavit that he was aware for some time prior to 17th December, 1991 that disciplinary proceedings were being contemplated against him. That is important in View of the very late hour when the plaintiff sought to move the Court, ex parte, for an injunction and the delay was, in my view, itself determinative of the ex parte application — see eg., Megarry, J. (as he then was) in Bates. v. Lord Hailsham [1972] 1 W.L.R. 1373 at p. 1279f — 1380c:–
“Finally, there is the point that I raised, that of timing. An application made at 2 p.m. for an injunction to restrain certain acts which may take place at 4.30 p.m. on the same day is an application made at a desperately late hour. Indeed, when the submissions of counsel continue until 4.15 the application could scarcely run it finer. There are, of course, occasions when circumstances make an earlier application impossible. But here, the dates speak for themselves. The announcement by the Lord Chancellor of the proposal to abolish scale fees altogether was made over two and a half months ago. The association's first circular was sent out at about the same time. The draft order was published nearly a month ago. Well over three weeks ago it was in the hands of solicitors generally. Not until a week ago did the association send its submissions to the committee, following them up with individual letters some five days ago. For nearly three weeks the association has...
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