Frawley, In re [1975] PGLawRp 499; [1975] PNGLR 6 (27 March 1975)

Papua New Guinea Law Reports - 1975

[1975] PNGLR 6 - Frawley, In re

[1975] PNGLR 6

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN RE FRAWLEY

Port Moresby

Prentice ACJ Raine Saldanha JJ

24 March 1975

27 March 1975

LEGAL PRACTITIONERS - Qualifications and admissions - Barrister and Solicitor - “Practitioner admitted elsewhere” - Limited right of practice in Australian Capital Territory - No practising certificate taken out in Australian Capital Territory - Right to practise restricted within r. 2 of Admission Rules 1963-1973.

On an application for full admission as a barrister and solicitor by an applicant who was enrolled as a barrister and solicitor of the Supreme Court of the Australian Capital Territory and registered in the High Court of Australia as a person having a right to practise as a barrister and solicitor of any Federal Court and who was entitled to but had not taken out a limited practising certificate in the Australian Capital Territory,

Held

That insofar as the applicant was registered to practise both as a barrister and solicitor in the Australian Capital Territory, that right to practise was restricted in that he could not practise as a solicitor at all without a practising certificate and then only with entitlement to a limited right of practise and accordingly he was not a “practitioner admitted elsewhere” within the meaning of r. 2 of the Admission Rules 1963-1973 and the application should be refused.

Per curiam: The same result follows from s. 15 of the Legal Practitioners Act 1954.

Motion

The applicant, J. W. Frawley, sought full admission as a barrister and solicitor of the Supreme Court of Papua New Guinea pursuant to r. 3 of the Admission Rules 1963-1973 as being a “practitioner admitted elsewhere” within the meaning of r. 2 of those rules. Further relevant facts appear in the reasons for judgment hereafter.

Counsel

P. A. Benson, for the applicant.

N. F. K. O’Neill, for the Secretary for Law.

Cur. adv. vult.

27 March 1975

PRENTICE ACJ: The applicant seeks admission to practise in this Court under r. 3 of the Admission Rules as amended to date, as being “a practitioner admitted elsewhere” (r. 2). He seeks a full right to practise. His affidavit reveals that he was enrolled as a “barrister and solicitor” of the Supreme Court of the Australian Capital Territory on 20th January, 1975, and that thereafter he was registered in the High Court of Australia as a person having a right to practise as a “barrister and solicitor” in any Federal Court.

The Secretary for Law has certified as to his qualifications in the form 2 provided under s. 14 (2) of the Legal Practitioners Act 1954 as amended; that is certifying his fitness to be provisionally admitted to practise.

Mr. Secretary has made representation to this Court that Mr. Frawley’s admission can be only a provisional one, and that not under r. 3, but under r. 6.

Though the supporting documents do not indicate any restriction on the applicant’s right to practise in the Australian Capital Territory or in Federal Courts; the Court was informed and accepts it to be a fact that, as a solicitor, he would be entitled in the Australian Capital Territory to a limited practising certificate only. Mr. Frawley has not taken out a practising certificate as yet — but apparently when he does, his right to practise must thereafter for a period be limited.

If I understand applicant’s counsel correctly, his submission is that as no limited practising certificate has been issued, the applicant’s right to practise in the Australian Capital Territory and Federal Courts cannot at this point of time be said to be restricted in any way, within the meaning of this Court’s r. 2.

It is interesting to note the remarks of the Full Court of New South Wales in its judgment upon Mr. Denniston, a barrister’s application, to be admitted as a solicitor. “... The distinction must also be borne in mind between the admission of an applicant as a solicitor in the sense of placing his name upon the roll, and the right of such solicitor to practise his profession as such. Rule 11 of the Solicitors’ Practices Rules, which in its present form has been in force for nearly sixty years at least, provides that a solicitor who has not practised for two years continuously shall not commence or resume the practise of his profession without first obtaining the leave of the Court. Many applications are made to the Court under this rule, and consideration is invariably given to the question whether such solicitor should be required to serve in some other solicitor’s office for a longer or shorter period in order to equip himself with sufficient professional ability and experience to justify granting to him a full practising certificate. He is a solicitor on the rolls, but his right to practise as such, depends upon the view of the Court as to his professional fitness and qualifications.”[ii]¹.

I am of the view that insofar as he has been registered to practise both as a barrister and solicitor, it must be held that this applicant’s right to practise is restricted; in that as a solicitor he cannot yet practise at all without a practising certificate; and in that when such a certificate is issued it can only entitle him to a limited right of practise. It is an anomalous position — for, if he had been admitted as a barrister only in the Australian Capital Territory or the High Court his right to practise would not have appeared to be limited in any way. I consider therefore that his application must be refused for that he is not “a practitioner admitted elsewhere” within the meaning of r. 2.

I think the same result follows also from the terms of s. 15 of the Legal Practitioners Act. The scheme set out therein and in s. 14 of the Act, seems to provide that it is a sine qua non of admission or provisional admission that a certificate be given by the Secretary for Law either as to fitness for full admission or for provisional admission respectively. As the Secretary has certified here only as to provisional admission, it seems that the Court could not grant full admission. I have no doubt that in an appropriate case the Secretary on being asked by the Court to re-consider his certification would in fact give a certification as to full admission.

The Court notes that it is open to Mr. Frawley to apply for provisional admission to practise in this Court; on satisfying the Court under r. 6 as to his academic qualifications, and the certification by the Legal Workshop authority in Canberra (the course provided by that Institute having been approved by the Council of the Legal Training Institute of Papua New Guinea under r. 6c (1) (d)).

I consider that the application should be refused.

RAINE J: I concur.

SALDANHA J: I concur.

Application refused.

Solicitor for the applicant: G. P. M. Dabb, Assistant Secretary for Law (Executive).

[ii] (1956) 73 W.N. (N.S.W.) 136, at p. 139.