N1456

PAPUA NEW GUINEA
[In the National Court of Justice]

O.S. 565 OF 1995

BETWEEN

THE PAPUA NEW GUINEA LAW SOCIETY
Plaintiff

AND

SAO GABI as The Attorney General
First Defendant

AND

ARNOLD MARSIPAL, Minister for Justice
Second Defendant

AND

THE STATE
Third Defendant

WAIGANI: Andrew, J
24 April 1996

MADANG: 28 June 1996

Declaratory Orders - Status of the Papua New Guinea Law Society and The Lawyers Statutory Committee and their relationship - Responsibility for the service (funding, staff and facilities etc) of the Lawyers Statutory Committee - Whether the Committee is an organ or function of the State or a Committee of the Papua New Guinea Law Society and independent of the State.

ANDREW J.: This matter, which was commenced by Originating Summons, seeks Declaratory Orders in the following terms:

"1. A declaration that the defendants or any of them are by law responsible for the provisions of staff, funds and facilities for the service and operations of the Lawyers Statutory Committee.

2. A declaration that monetary penalties imposed against lawyers by the Lawyers Statutory Committee are to be paid into the Consolidated Revenue Fund administered by the State.

3. Such further or other orders as the Court deems fit.

4. Costs.

5. The time for entry of these orders be abridged to the date of settlement by the Registrar which shall take place forthwith."

This matter concerns the status of the Lawyers Statutory Committee ("The Committee") and whether the State, through the Department of the Attorney General, is responsible for the service (the funding, staff and facilities etc) of the "Committee" or whether the Committee as an integral part of the Papua New Guinea Law Society is independent of the State.

The Papua New Guinea Law Society contends that the funding of the Committee, remains the obligation of the Department of Justice and that any monetary penalties ordered against lawyers by the Committee should accordingly be paid into consolidated revenue. Whilst the Law Society may have assumed the administrative responsibility of the Committee, it resolved that the financial management of the Committee remained the responsibility of the Department of the Attorney General. The State contends that the Committee is part and parcel of the Law Society and as such it is a non-governmental body for whose funding it is not responsible.

I think that firstly, it is necessary to consider the status of the Law Society and of its relationship to the Committee.

There is no dispute that the P.N.G. Law Society is a body corporate and that it is a non-governmental body created and operating under the lawyers Act 1986.

In Application of Karingu [1988-89] P.N.G.L.R. 276 per Kapi D.C.J. at 283 -

"The Law Society has not been integrated into the structure of the State in this country. The most important organ of the Society is the Council which has the responsibility of managing the affairs of the Society: See S.18 of the 1986 Act. The composition of the Council consists entirely of people elected by the members: See S.11 (2) of the 1986 Act. Even the Committees appointed by S. 20 of the Act and all officers of the Society, under PT III, Div. 4, of the Act are appointed and controlled by the Council. None of this is integrated into any State organ. There is no involvement by any officer such as a Judge. The Society has been set up to function independently outside the State.

The control of the practice of law is vested in the Statutory Committee and the National Court under PT. V of the 1986 Act.

The membership of the society is not intended to control the practice of the Law. It is intended to promote certain interests and benefits for lawyers: S.7 and S.8 of the 1986 Act.

The Law Society is given rule - making powers under S.21 of the 1986 Act but these relate to the activities and procedures of the Society. They do not relate to the control of the practice of law."

Further, per Bredmeyer J. at 293-4:

"...the important disciplinary powers conferred by the Act are not conferred on the Society at all. Section 48 of the Act establishes a Lawyers Statutory Committee which is independent of the Society. Three of its members are practising lawyers and they are appointed by the Chief Justice and one or two lay members are appointed by the Minister for Justice. The Committee is independent of the Society and is empowered to act without reference to the Society. It is not a Committee of the Society but its powers can impact on the Society. For example, among the many punishments it can impose under S.54 is that it can order the holder of an unrestricted practising certificate to be given a restricted practising certificate for a certain period. That order would be made against the Society."

This is a judgment of the Supreme Court and hence it is binding upon this Court. I think it is a fair summation of that judgment, as was submitted by Counsel for the Law Society, that the Committee exists and operates independently of the Society as its membership is composed of or determined by officers of the State, namely the Attorney General, the Minister for Justice and the Chief Justice and orders may be made by the Committee against the Society. Further, the Law Society Council may lodge its own complaints to the Committee and as a complainant, the Council may appeal to the National Court against a finding of the Committee.

Following the decision in Karingu (supra) the Lawyers Act was amended to include the Attorney General as not only a member of the Committee but as its chairman who shall preside at its meetings.

I think that it follows from all of this, and is implicit in the decision in Karingu (supra), that the Committee is an organ of the State which has been established to control the practice of law in the country and that it is integrated into the structure of the State carrying out government policy.

That is distinct from the Society which is clearly not an organ of the State but a self-regulatory Society of lawyers, membership of which is compulsory for all lawyers, created to promote certain interests and benefits of lawyers. The Council is elected by the members of the Society.

Further evidence that the Committee is a function of Government can be seen from the BOARDS (FEES AND ALLOWANCES) Act which obliges the State to pay fees and allowances to those members of approved bodies not officers of the Public Service. The Committee was so approved in National Gazette No. G. 87 of 10th October 1989. Again that suggests that the State is responsible for the Committee.

In relation to monetary penalties imposed by the Committee; under S.54 of the Lawyers Act the Committee, after an inquiry, may impose penalties including a fine not exceeding K10,000, may order that a lawyer pay cash or compensation and may order that a lawyer pay the costs of the inquiry etc. Upon an appeal in relation to improper conduct, the National Court (under S.59 of the Act) may make the same orders.

S.18 of the Interpretation Act provides:

"18. Where a statutory provision imposes or authorises a fine penalty or forfeiture, the provision shall be deemed to direct that the fine, penalty or forfeiture when recovered, be paid into the Consolidated Revenue Fund to defray the expenditure of the State."

For all of these reasons I am satisfied that the Lawyers Statutory Committee is an organ or function of the State for whose function the State is responsible and that any penalties imposed against lawyers by the Committee are to be paid into the Consolidated Revenue Fund.

ORDER

1.	I grant a declaration that the State is responsible for the services and operation of the Lawyers Statutory Committee.

2.	A declaration that any monetary penalties imposed by the Lawyers Statutory Committee are to be paid into the Consolidated Revenue Fund.

3.	Costs to the Plaintiff.

Lawyer for the Plaintiff: Ere Kariko
Lawyer for the Respondent: The Solicitor General