Robb, In the Matter of the Lawyers Act [1995] PGLawRp 711; [1995] PNGLR 462 (2 June 1995)

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[1995] PNGLR 462 - In the Matter of the Lawyers Act and In the Matter of an Application by Egerton MacPherson Robb

LEGAL PRACTITIONERS - Admission to practise - Foreign lawyer - Requirements of Lawyers Act 1986 - Application for admission as a lawyer under s 26 of the Lawyers Act - Application to waive requirement of s 25(3)(b) of three years post-admission experience in a prescribed country - Whether practice in another non-prescribed common law country constitutes “substantial compliance” - Power to waive under s 28(2).

The respondent, a foreigner, moved the Court for orders that he be admitted to practise as a lawyer in Papua New Guinea. He lacks one of the basic requirements under s 25 of the Lawyers Act 1986: he has not practised as a lawyer for at least three years in a “prescribed country”. The applicant had been a legal clerk since 1992 with a firm practising in Port Moresby. He was admitted as a solicitor of the Supreme Court of New South Wales on the 14 April 1994, but has not practised in that State (which has been declared by the Supreme Court to be a prescribed place for the purpose of the Lawyers Admission Rules 1990). His legal experience was gained in British Columbia, Canada, which is not a prescribed country under the Rules. He was admitted to practice in September 1987 by the Supreme Court of British Columbia and practised in that jurisdiction to some time in 1991, when he emigrated from Canada. He argued that the experience in British Columbia should be seen as “substantial compliance”, a phrase used by the Supreme Court in PNG Law Society v McEniery [1993] PNGLR 76 to give the Court grounds to exercise its discretion to waive strict compliance with the requirements under s 28(2) of the Lawyers Act.

N1>1. Substantial compliance cannot be achieved where an applicant cannot show any post-admission experience in the prescribed countries.

N1>2. To allow practical experience in British Columbia (a non-prescribed country) as a substitute for experience in a prescribed country has no statutory basis and is contrary to the Lawyers Act s 25(3)(b). The application is denied.

BROWN J: This application for admission to practice as a lawyer comes by way of notice of motion seeking my orders for admission and to waive so many of the requirements under the Lawyers Act 1986 (No 66 of 1986) (the Act), Admission Rules 1990, and Lawyers (Examination) Regulations 1992 as were, on their face, to prevent Mr E MacPherson Robb’s admission.

In support, Mr Sheppard, for Mr Robb, read two affidavits by the applicant, both of which annexed material relevant to many of the matters which would seem to preclude his admission. As well, the applicant tendered as an exhibit the Attorney General’s letter of the 17 May 1995, which went some way to easing the applicant’s burden in this Court. There are, however, a number of sticking points which Mr Kariko for the Law Society, as objector, says effectively disqualify the applicant from consideration and, consequently, which bear on my powers to make orders.

N2>1. the absence of a certificate by the Attorney-General under s 25(3)(d) that the applicant is a fit and proper person;

N2>2. the failure of the applicant to have practiced as a lawyer in “a country prescribed by the Rules made by the Admission Council under s 25A(2) for a period of not less than 3 years following the date of his admission in that country” (s 25(3)(b)).

The prescribed countries are the Commonwealth States of Australia, New Zealand, and the United Kingdom. There is no issue over Mr Robb’s academic qualifications for admission.

The applicant relies on the Court’s discretionary power in s 28 (2) of the Act, which says, “the Court may waive all or any of the requirements of s 25”.

The applicant’s legal studies commenced in February 1983, when he enrolled in the law course conducted by the University of New South Wales at Kensington, Sydney, Australia, where he studied full time until November 1984. He then apparently completed his UNSW degree by external credits obtained at University of Victoria, Canada, in 1986, obtaining his degree in 1987. He was then articled to a firm of lawyers in Vancouver, British Columbia, as prerequisite to admission as a lawyer in Canada. This took place in 1986-1987. He became eligible for admission to practice as barrister and solicitor (the British terminology, still employed to large extent in common law countries) and was so admitted in September 1987 by the Supreme Court of British Columbia.

In March 1988, he was employed by a firm practising in British Columbia. He deposed to the type of work which he handled whilst with that firm. In 1989, he left that firm and joined a North Vancouver firm of Collier Hanson & Milos. Again, he has deposed to the type of work handled then.

He made enquiries of the New South Wales Law Society in about 1990 to determine whether he was eligible for admission as a solicitor in the Supreme Court of New South Wales and any criteria applicable (he was married to an Australian citizen and, hence, his apparent wish to return, as it were, to New South Wales). In the event, he was encouraged by a reply of the Law Society in April 1991 to apply for admission in New South Wales, but chose not to do so, for in about October 1991, he accepted employment with Gadens Ridgeway, lawyers in Sydney, for work in their Port Moresby office. He arrived in Papua New Guinea in February 1992. It would be remiss not to add here that he had originally come into this country in 1977-1978, when he served as a volunteer with the Canadian University Service Overseas as a high school teacher in Buin. He returned later after completing his master’s degree in English Literature at the University of Toronto and was employed as the deputy head at Anditale High School, Enga. He was obliged to return to Australia on the birth of his first child towards the end of that year. There he was employed as an English and music teacher at Sydney Church of England Grammar School in Sydney, a prestigious academic school. His educational qualifications, interests, work, and residency experiences show him to be extremely competent in his endeavours, and this is reflected in the work he has done in Papua New Guinea whilst with Gadens Ridgeway, as evidenced by the wealth of knowledge in the various published and unpublished papers forming part of his affidavits.

He was admitted as a solicitor of the Supreme Court of New South Wales on 14 April 1994. He has never practiced in that jurisdiction. Whilst with Gadens Ridgeway, Port Moresby, he primarily assisted national lawyers with their responsibilities of practice; conducted legal training seminars, both in-house and for the wider legal community; and became involved with the PNG Legal Training Institute (LTI) as a visiting lecturer. He created a civil litigation course for the LTI and became heavily involved in academic work, both with the LTI and the University of Papua New Guinea.

His bent for things academic caused him to apply for an appointment as Associate Director, Legal Training Institute. As he says, this “purported appointment” was made on the 4 October 1994. He had been led to believe that he would be required to take up that appointment as long ago as August 1994, during a conversation with the present Chief Justice, the Chairman of the LTI Council. On the strength of that conversation and purported appointment, he gave up his position with Gadens Ridgeway in February 1995, and has been unemployed since. The position of Deputy Director has not, it appears, been created or funded.

I should say that it is somewhat naive of the applicant to expect a resolution of that impasse, in view of the 10 months which has passed since the initial meeting with the chairman. Nevertheless, I do not propose to have regard to these personal considerations or expectations, for, as Mr Kariko says, quoting Raine J in Re Devere [1975] PNGLR 1, the Court should resist urgings on compassionate grounds or because of the convenience which may be achieved. Clearly, where the Law Society, which has a vested interest in the LTI, opposes this application, the applicant cannot reasonably hold an expectation for a position in the LTI. Putting that to one side, I come back to the sticking points.

The first was that the Attorney-General does not touch on the fit and proper person aspect in his letter of 17 May 1995.

In these circumstances, it is open to this Court to exercise its overriding power, found in s 28 of the Act, to decide whether the applicant is a person of good repute. On the material in the affidavit, there is no doubt in my mind that he is. Consequently, while the Attorney-General is silent on the question, I would exercise my discretion under s 28, having found that the applicant is a fit person to be admitted, to waive the need for the Attorney-General’s certificate. That brings me to the lack of the required three years of practice in a prescribed country.

I have heard both arguments. Mr Sheppard cogently argues that post admission work in British Columbia should be equated with post admission work in the prescribed countries, for the good reason that it has a common law heritage and similar legal system to those prescribed countries.

Mr Kariko points to other countries which would qualify on that criteria. India, Pakistan, Bangladesh, Sri Lanka, Singapore, Malaysia, and Hong Kong come to mind. Mr Sheppard also points to the Bachelor of Laws Degree from the University of New South Wales and the waiver of the practical examination requirement in PNG by the Attorney-General as proof of “substantial compliance” with s 25, the phrase used by the Supreme Court in PNG Law Society v McEniery [1993] PNGLR 76 to qualify the discretion in s 28(2).

“In our judgment, the proper standard to be applied to s 28(2) of the Act is that of ‘substantial compliance’. Such a standard gives effect to the clear policy and intention of the legislation to restrict the admission of foreign lawyers in Papua New Guinea to those applicants who comply with the strict provisions of s 25, subject only to the Court’s power of a waiver in exceptional circumstances. The requirements under s 25 of the Act are not rendered meaningless when s 28(2) is construed as requiring a standard of substantial compliance.”

Mr Sheppard says the Court followed the dissenting judgment of Amet J in Lash v PNG Law Society [1993] PNGLR 53 at 57:

“If the minimum period of practice in a prescribed country requirement under s 25(3)(b) is sought to be waived, then the practical experience in a non-prescribed country sought to be relied upon must be elucidated and enumerated in far greater detail and specifics than was the case by the appellant. The obvious reason for this is so that the court can assess and determine whether or not the field of law the appellant practised in was comparable to Papua New Guinea in order to exercise the discretion to waive the requirement of s 25(3)(b).”

Consequently, he says, the applicant has satisfied the requirement to particularise his experience in British Columbia, and the Court should accept the similarity of the laws there, in the wider sense, with laws and practise in the prescribed countries. Mr Robb’s post graduate experience since September 1987 to at least, it seems, October 1991 (when he accepted employment with Gadens Ridgeway) exceeds three years, albeit in a non-prescribed country. For these reasons, he says there is substantial compliance.

I do not accept that inference can be drawn that the Supreme Court in McEniery’s case adopted the suggested rationale of Amet J (dissenting in Lash’s case) allowing “substantial compliance” with s 25(3)(b) by virtue of post-admission experience in a non-prescribed country.

In McEniery’s case, the Court spoke of a standard of substantial compliance with the requirements of s 25(3)(b). Substantial compliance cannot be achieved where an applicant, as in this case, cannot show any post-admission experience in the prescribed countries.

Substantial compliance may be achieved where there is some post-admission practise, but to allow practical experience in British Columbia as a substitute for experience in a prescribed country clearly has no statutory basis, for the regulation is explicit.

Mr Kariko, quite fairly in my view, accepted those matters put forward by Mr Sheppard as constituting exceptional circumstances. They are the applicant’s experience in the Canadian jurisdiction, his general educational qualifications, and the work he has done in PNG legal circles. But Mr Kariko says they go to his legal education, an aspect touched on elsewhere, in s 25(2)(b), and not to the specific requirement of practise. I have to agree. Exceptional circumstances mean some intervening factor which interrupts, as it were, the continuity of the period of three years post-admission experience, a factor which the Court is prepared to overlook when calculating the period. Such is not the case here. I find that there has been no post-admission practise in New South Wales for the purpose of s 25(3)(b). Consequently, post-admission practise elsewhere cannot cure that fatal defect.

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Papua New Guinea Law Reports

Robb, In the Matter of the Lawyers Act [1995] PGLawRp 711; [1995] PNGLR 462 (2 June 1995)

PNG Law Reports 1995