Milpa v Gena [1995] PGNC 50; N1405 (12 December 1995)

Unreported National Court Decisions

N1405

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP 193 OF 1995
JOHN MOL MILPA - APPELLANT
V
PHILIP GENA - RESPONDENT

Kundiawa

Akuram AJ
11-12 December 1995

PRACTICE & PROCEDURE - Lawyers Act, Lawyer under suspension with pay by his employer - acting as lawyer for the Appellant - No Application for leave made.

PRACTICE & PROCEDURE - Lawyers Act - Lawyer under suspension with pay by his employer - NCDC - Acting as lawyer for the Appellant - Objection by the Lawyer for the State (Respondent) as having no “unrestricted Practicing Certificate” - And no leave by his employer (NCDC) to act for Appellant.

Counsel

Mr Yayonga D Bal for Applicant

Mr Francis Kuvi for the Respondent

12 December 1995

AKURAM AJ: This is an application by the Respondent’s lawyer, Mr Kuvi, objecting to Mr Bal acting as a lawyer for the Appellant. His grounds were that:

(i) Mr Bal is currently employed by the National Capital District Commission but is under suspension;

(ii) Mr Bal has no “Unrestricted Practicing Certificate” which is contrary to the lawyers Act;

(iii) Even if he is employed, he will still have to obtain leave by the National Capital District Commission to represent the Appellant.

Mr Bal concedes that he is under suspension by his employer but argues that this matter was given him during his suspension while he was in the Province (Simbu). The Appellant has requested his assistance. He does not hold himself out as a lawyer practising on his own right nor does he hold any moneys for anybody. He is pursuing the matter on a personal basis and that a party to any legal proceedings is entitled to any lawyer. He is not remunerated but acting, in a way, as an Amicus Curiae (friend of the court) to assist the appellant.

As to the third argument for the objection I find that it is true that Mr Bal has not been given leave by his employer, the National Capital District Commission, to act for the Appellant as he is currently employed by the National Capital District Commission. On the 2nd ground I also find that Mr Bal has no “Unrestricted Practicing Certificate” as he is an employee of the National Capital District and does not operate a Trust Account as required under Section 41 of the Lawyers Act, No 66 of 1986 (as amended).

As to the first ground, that Mr Bal is currently under suspension by his employer and therefore cannot represent the Appellant. From this argument, I take it and am of the view that he is under suspension with pay so he cannot act or hold himself out as a lawyer and act for another person whilst under such suspension. Under Section 33 of the lawyers Act dealing with “Practice” it is said that:

“A person:

(a) who has been admitted to practise as a lawyer under Section 28; and

(b) has signed the Roll,

may practise as a lawyer in accordance with the provisions of this Act.” (emphasis added).

The other provisions, of the Act dealing with Practising Certificates are section 35 (Requirement to hold a Practicing Certificate), section 37 (Restricted Practicing Certificates), section 39 (Practicing Certificates), section 40 (Restricted Practicing Certificate) and section 41 (Unrestricted Practicing Certificates). The main sections are 35, 40 & 41 on the requirement to hold a Practicing Certificate and the requirement is that as long as a person has signed the Roll and is the current holder of a Restricted or an Unrestricted practising Certificate, should practice as a lawyer, which I set out below:

“35. REQUIREMENT TO HOLD A PRACTISING CERTIFICATE

(1) A person shall not practise as a lawyer unless:

(a) he has signed the Roll, and

(b) he is the holder of a current restricted or unrestricted practising certificate.

(2) A person who practises as a lawyer contrary to the provisions of Subsection (1) is guilty of an offence.

Penalty: A fine not exceeding K1,000.00.

40. RESTRICTED PRACTISING CERTIFICATE

A lawyer who:

(a) has signed the Roll; and

(b) is a citizen or resident of Papua New Guinea, may be issued with a restricted practising certificate.

41. UNRESTRICTED PRACTISING CERTIFICATE

(1) A lawyer may be issued with an unrestricted practising certificate if:

(a) he:

(i) is the holder of, or is entitled to hold, a restricted practising certificate; and

(ii) has been employed exclusively as a lawyer for:

(a) not less than two years from the date of his admission to practise; or

(b) not less than two years in the five years proceeding the date of his application for an unrestricted practising certificate, by a lawyer, who during the period of employment was the holder of an unrestricted practising certificate; or

(b) he:

(i) has practised exclusively as a lawyer within a class of lawyers prescribed in the Rules for the purpose for a period of not less then two yeas in the period of five years immediately prior to his application for an unrestricted practising certificate; and

(ii) satisfies the Society that he has obtained experience in the practice of law at least equivalent to that gained by an applicant under Subparagraph (a) (ii); or

(c) he:

(i) has been admitted to practise law for a period of not less than three years following his admission to practise in such countries as are prescribed by the Rules; and

(ii) has practised with a restricted practising certificate in Papua New Guinea for a period of not less than three months immediately prior to his application for an unrestricted practising certificate; or

(d) he satisfies the Society that he has obtained experience in the practise of law, which, in the opinion of the Society, is at least equivalent to that gained by an applicant under Subparagraph (a) (ii); or

(e) he has been carrying on practice exclusively as a barrister in a country prescribed by the Rules of Court for a period of not less than five years preceding his application for an unrestricted practising certificate.

(2) For the purposes of Subsection (1) (e), “barrister” means a person who is a member of the bar in a country prescribed by the Rules of Court.

(3) Sections 39 (2) and 42 (2) (b) apply to an unrestricted practising certificate under Subsection (1) (e).”

Currently, Mr. Bal comes under Section 37 as he has a Restricted practising Certificate and it requires that:

“(1) A lawyer who is the holder of a current restricted practising certificate shall not practise as a lawyer on his own account or in partnership with another lawyer or hold moneys in trust for another person who is a client.

(2) A lawyer who practises contrary to Subsection (1) is guilty of an offence.

Penalty: A fine not exceeding K1,000.00.” (emphasis added).

In the present case Mr Bal says he does not practice as a lawyer on his own account nor hold money in trust for another person who is a client.

However, the issue does not end here but whether he can practice as a lawyer, which he no doubt may, whilst still employed but under suspension by the National Capital District Commission as their lawyer and still subject to their direction under his terms and conditions of employment. I can not answer this issue as I do not know the terms and conditions of his employment. All I can say is that this is a question involving ethical conduct and is for the Lawyers Statutory Committee to deliberate on as required under Sections 48, 52, 53, 54, 55 & 57. Under Part V (Professional Conduct) of the Act. And under sections 58 and 59, this Court is empowered to hear appeals and impose penalties.

I therefore make the following rulings on the present application:

(1) That Mr Bal is entitled to practice as a lawyer as he has a current Restricted practising Certificate;

(2) That I will grant leave to Mr Bal to represent the appellant on the conditions that:

(a) I will refer him to the lawyers Statutory Committee for deliberation in his present situation; and

(b) That he undertakes to inform the lawyer’s Statutory Committee of his current situation if he decides to proceed with this appeal.

Lawyer for the Applicant: Public Prosecutor

Lawyer for the Respondent: R Bal