Application by Moore [1993] PGLawRp 554; [1993] PNGLR 470 (17 September 1993)

PNG Law Reports 1993

[1993] PNGLR 470 - Application by Peter Norman Moore 

[1993] PNGLR 470

N1176

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE LAWYERS ACT 1986 AND IN THE MATTER OF AN APPLICATION BY PETER NORMAN MOORE

Lae

Sevua J

17 September 1993

LEGAL PRACTITIONERS - Admission to practice - Requirements for admission - Foreign lawyer - Application to be admitted as a lawyer under s 26 - Application to waive requirement of s 25(3)(d) under s 28 - Certificate that applicant is a fit and proper person - Discretion to issue certificate under s 25(3)(d) - Discretion vested in the Attorney-General - Power to waive - Substantial compliance.

Facts

A foreign applicant for admission to practice as a lawyer applied under s 28(2) of the Lawyers Act 1986 for waiver of the requirement of s 25(3)(d) for issuance by the Attorney-General of a certificate that the applicant is a fit and proper person to be admitted to practice in Papua New Guinea.

Held

N1>1.       An applicant for admission as a lawyer must satisfy the court that he possesses the required academic and practice qualifications and that he is a fit and proper person to be admitted as a lawyer.

N1>2.       The discretion vested in the Attorney General is a matter for policy decision and cannot be interfered with by the Court unless exercised unlawfully.

Cases Cited

PNG Law Society v McEniery [1993] PNGLR 76.

Counsel

L Milner, for the applicant.

17 September 1993

SEVUA J:  This is an application for admission to practice law in Papua New Guinea by Peter Norman Moore. As I understood, the application is twofold. Firstly, the applicant is applying in pursuance of s 28(2) of the Lawyers Act 1986 to waive the requirement of s 25(3)(d). Secondly, pursuant to s 26, he is applying for admission to practice as a lawyer. Section 25(3)(d) deals with the issuance of a certificate by the Attorney-General that the applicant is a fit and proper person to be admitted to practice in Papua New Guinea.

Apart from this application, there is another application pending before this Court. That application is for judicial review of the Attorney General's decision of 1 July 1993, whereby he refused to issue a certificate pursuant to s 25(3)(d). I mention that application because, in my view, it will be necessary to refer to it in this judgment, although I am not deciding the issues involved in it. I will refer to that application later.

The application for admission was set down for hearing on 24 September. However, as the PNG Law Society is not opposing it, leave was sought to have it brought forward to today. I was of the view that it be heard immediately, since the applicant's continued presence in the country is on the basis of pursuing his application for judicial review only and not for employment purposes. I granted leave to hear this application because of the urgency surrounding the circumstances of this case, as referred to above.

Firstly, the applicant makes this application pursuant to s 28(2), which states, "In considering an application for admission to practice as a lawyer, the Court may waive all or any of the requirements of s 25" (underlining mine). Section 25(1) of the Act provides, "An applicant for admission to practice shall satisfy the court that he possesses the required academic and practice qualifications and that he is a fit and proper person to be admitted as a lawyer." Under that section, therefore, the applicant must satisfy the National Court of three requirements. He must satisfy me that, firstly, he possesses the required academic qualifications; secondly, he possesses the required practice qualifications; and, thirdly, he is a fit and proper person to be admitted as a lawyer.

The applicant attended the Queensland Institute of Technology and was awarded the degree of Bachelor of Laws on 20 March 1986. On 24 February 1986, he was admitted as a Barrister of the Supreme Court of Queensland. However, he did not practice due to his employment there. On 21 April 1989, he was admitted as Barrister and Solicitor of the Supreme Court of the Australian Capital Territory, but he did not practice there. On 15 May 1989, he was admitted as a solicitor of the Queensland Supreme Court. He has held practicing certificates from the Queensland Law Society for the periods of 16 May 1989 - 30 June 1989, 1 July 1989 - 30 June 1990, 1 July 1990 - 30 July 1991, 1 July 1991 - 30 June 1992 and 1 July 1992 - 30 June 1993.

Between mid March 1989 and 23 February 1993, the applicant was employed as a Solicitor in a number of legal firms and practised in Brisbane, Toowoomba, Rockhampton, Cairns, Cabooture, and Lawnton in the State of Queensland. He has had considerable experiences in a wide variety of litigation matters in the Magistrates, District and Supreme Courts of Queensland and the Family and Federal Courts of Australia. He has had considerable experience in the preparation of legal documents, litigation in civil, criminal, and family law areas. He has gained considerable management experience in small and medium law firms and has been familiar with facets of office management and numerous other aspects of legal practice. He has also been a police officer in the Queensland Police Force for 15 years.

On the evidence before me, I am satisfied that the applicant has fulfilled the first two requirements of s 25(1). However, he lacks the third requirement; thus the application for waiver.

I have before me evidence confirming that the applicant was admitted as a solicitor of the Supreme Court of Queensland on 11 May 1989. His name is still on the Roll of Solicitors of Queensland and has never been removed therefrom. The Queensland Law Society has no record of any complaint being received requiring disciplinary proceedings against him. No order has ever been made directing him to be suspended from practicing, and no charge has been held against him for professional or other misconduct. The Queensland Law Society believes the applicant to be a fit and proper person to be admitted in another jurisdiction.

The Dean of the Law Faculty of the University of Papua New Guinea has sworn an affidavit that the applicant's academic qualification is equivalent in standard and content to a law degree from the University of Papua New Guinea.

I am further satisfied that the necessary prerequisites or other requirements under the Act and the Lawyers Admission Rules preceding the application for admission have been complied with. I am also satisfied that the applicant has passed the prescribed examinations.

On the basis of the evidence before me, counsel submitted that I should exercise my discretion to declare the applicant a fit and proper person, waive the requirement of s 25(3)(d), and admit him to practice as a lawyer. With respect, I consider that this contention is misconceived and mischievous. The discretion to hold an applicant a fit and proper person to practice is a discretion which rests solely on the Attorney-General by virtue of s 25(3)(d). I cannot see any concurrent discretionary powers here to be exercised by the Court and the Attorney-General. In my view, the Attorney-General's discretion is a matter of policy decision which this Court cannot interfere with unless the exercise of such a discretion is outrageous or is exercised unlawfully, for instance on the basis of race, sex or religion.

If counsel makes this submission on the basis of the Court's inherent powers under the Constitution, then I consider that I have not had the benefit of full arguments on this aspect and I regret that this should be left to some other time for final disposition.

Because the Lawyers Act 1986 does not give the Court any discretion under s 25(3)(d) in a situation where the Attorney-General, in his discretion, has refused to issue a certificate, I have no discretion to exercise and I consider that I would be in error if I step in and exercise a discretion which I do not have. And speaking of this discretion, whilst I sympathise with counsel's predicaments in respect of endeavours to comply with the legal requirements for admission, I consider that there is some evidence which justified the Attorney-General's refusal to grant a certificate.

Annexure 'G', which is an unsworn affidavit of the applicant annexed to his affidavit sworn on 27 August 1993, paragraph 10 states, "I came to Lae in Papua New Guinea on the 6th day of March 1993 and took up position as an assistant to Lata Dahya Milner of Milner & Associates, Lawyers and Attorneys". There can be no doubt in my mind that here, the applicant was deposing to facts. He was engaged upon his arrival and it is obvious from the foregoing that he had been or was practicing in Lae before he was admitted to practice. Why then shouldn't the Attorney-General here refused to issue a certificate in his discretion? In my view, his discretion cannot be said to have been exercised maliciously or without lawful basis.

The Attorney-General has, in his discretion, refused to issue a certificate that the applicant is a fit and proper person to be admitted as a lawyer in this country. That discretion, as I said, is vested in the Attorney-General alone. Since he has exercised it and has refused to issue a certificate, how then could I go around this refusal without offending the discretionary power of the Attorney-General? In my view, I cannot challenge the Attorney-General's exercise of his discretion unless it can be established that he has acted unlawfully, maliciously or in excess of his jurisdiction. On that basis, I do not see how I can waive s 25(3)(d).

Counsel has referred me to the recent Supreme Court decision, PNG Law Society v McEniery, [1993] PNGLR 76 which deals with "substantial compliance". When asked if compliance with the first two requirements of s 25(1) would be seen as substantial compliance, counsel said no, substantial compliance would mean compliance with all the requirements. What then is "substantial compliance"? It is not defined by the Supreme Court, yet the Court said it is the proper standard to be applied to s 28(2) of the Act. On p 79 of the judgment, the Court said, "The test to be applied is not 'on the balance of convenience' but whether there has been substantial compliance with s 25 of the Act.... On any view, this could not be said to be substantial compliance with the legislation and, therefore, he is not qualified for admission as a lawyer in Papua New Guinea at this time".

Going by the Supreme Court decision, I would hold that the applicant possesses the required academic and practice qualifications. However, as the Attorney General has refused to issue a certificate that the applicant is a fit and proper person to be admitted as a lawyer, this could not be said to be substantial compliance with the Act. Accordingly, the applicant would not qualify for admission as a lawyer.

In relation to the application for judicial review that I alluded to earlier, I am of the view that this application is improper in the light of the fact that the applicant's application for judicial review is still pending before this Court and has not been withdrawn or discontinued. The implication is that, if he fails in his application for waiver or admission, the applicant can fall back to his application for judicial review. With respect to the applicant, he just can't have two bites at the cherry. I would have thought the application for judicial review would have preceded this application. However, I am not here to decide what should or should not have been done in this case. What concerns me here, though, is the manner in which this application was brought whilst the application for judicial review relating to the same cause is still pending. In my view, this amounts to abuse of the process of the Court. Proceedings which in any way employ the court's process for an improper purpose or in an improper way may be stayed or dismissed for abuse of process. This Court has an inherent jurisdiction to stay or dismiss proceedings which are frivolous, vexatious, or an abuse of the Court's process. Whilst I do not hold that the applicant has acted in a frivolous or vexatious manner, I consider it improper and an abuse of the process when the application for judicial review is still pending.

For these reasons, I will refuse the application for waiver and, therefore, will not admit the applicant to practice as a lawyer in Papua New Guinea.

Lawyer for applicant: Milner & Associates.