Lomai v PNG Law Society [1998] PGNC 117; N1854 (4 December 1998)

Unreported National Court Decisions

N1854

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 456 OF 1998
BETWEEN: PWESEI BENSON LOMAI
PLAINTIFF
AND: PAPUA NEW GUINEA LAW SOCIETY
DEFENDANT

Waigani

Sevua J
3 September 1998
4 December 1998

LAWYERS - Lawyers Act 1996 – fualification - Requirements for unrestricted practising certificate (UPC)– Holder of or entitled to hold restricted practising certificate – Has practised exclusively for not less than two years – Lawyers Act. s. 41 (1) (a) (i) & (ii).

LAWYERS -&#16wyers Act 1996 –#8211; Application for UPC – Discrepancy in date – Request for explanation by defendant - Plaintiff provided explanation – Reference by plaintiff to Vict Bar Readers Course and sigd signing of barristers roll – Whether Victorian Bar Readers Course a requirement of law under Lawyers Act – Whether refusal by defendant reasonable and or lawfully justifiable.

Where plaintiff applied thrice for a UPC and was refused thrice because of discrepancy in date and reference to admission as a barrister at the Victorian Bar.

HELD:

1. ҈ T60; There is no lajful fistification for the defendant to refuse the plaintiff’s third application after the plaintiff has sufficiently explained the discrepancy in the dates 16^th February5 andup>th> MarchMarch, 199, 1995.

2. ; T60 plaentiff has fulfilllfilled the legal requirement of s.41 (1) (a) of the Act, therefore there is no legal impediment to his application.

3. &#T60; anends a7;to g ant tant the pthe plaintlaintiff&#iff’s third application has no proper basis in law.

4. &#A60; r ttethc, sfmpsetf tetf the Victorian Barn Bar Read Readers cers courseourse and and admission to practise as a Barrister at the Victorian Bar are not presites. 41 a) ofLawyet. Therefore,fore, ques questionstions rela relating ting to the plaintiff’s completion of the Victorian Bar Readers course and his admission as a barrister are not relevant to the plaintiff’s application.

Cases Cited

Emily Paneyu Dirua -v- PNG Law Society, N 1467 Unreported, 19^th July, 1996.

Rose Kekedo –v- Burns Philp & Ors [1988-89] PNGLR 122.

Counsel

Plaintiff in person

W. Neil for Defendant

4 December 1998

SEVUA J: This is an cation by the pthe plaintiff for an order to review the defendant’s decision in refusing him an unrestricted practising certificate, and an order directing the defendant to issue him witunrestricted practising cerg certificate (UPC) pending review by the Court.

The plaintiff graduated with a Bachelor of Laws degree from the University of Papua New Guinea in March, 1993, however, a copy of his law degree is not in evidence despite the fact that he alluded to annexing it to his statutory declaration of 27^th July, 1998. He attended the Legal Training Institute thereafter, and successfully completed the post-graduate training program leading to a Certificate of Training issu 15^th November, 1993. He was admitted to practise in the National Court on 26th November, 1993. He hways held a restrictedicted practising certificate from 1994 to 1996.

On 17^th January, 1995; the defendant refthe plaintiff’s application for an unrestricted practising certificate on the ground ound that the period of legal experience did not satisfy the required term of two years. I think refe to 1995 in thin the defendant’s letter of 22^nd January, 1996, should be 1996, because the plaintiff’s statutory declaration in support is dated 10^th January6, and the defendant’8217;s letter is dated 22^nd January, 1996. There is no record of this application in the plaintiff’s evidence before me. It seems the plaintiff submitted another application again in the latter part of 1996.

On 29^th November, 1996; the defendant wrote to the plaintiff advising that his application for a UPC was before tuncil and that the Council ncil required explanation on two matters contained in the various documents lodged by the plaintiff. Firstly, there was a discrepancy in the date the plaintiff had joined the firm of Joe Wal Lawyers. In a statutory declaration dated 10^th January 1996, the plaintiff declared that he joined that firm on 16^th February, 1995.&#16 a lastatutory declaraclaration dated 24^th April, 1996, he said he joined that firm oirm on 16^th March, 1995. other statutory declaratioration dated 29^th May, 1996, the plaintiff said he practised “exclusiving as a lawyer Joe Wal Lawyers since 16^th February, 1995”. Sly, the defendantndant qunt questioned the plaintiff’s statutory declaration of 24^th April, 1996, where he said he had been “admitted to practise in the Victorican Bar aarrister”.

On p>On 25^th June, 1997, the plaintiff responded to the defendant’s letter. In respecthe discrepancy incy in the date he joined Joe Wal Lawyers, the plaintiff said, “16^th February, 1995 is the corrate not 16^th March, 1995”. That explanation red the dthe discrepancypancy in respect of the date, therefore I consider that, that anomaly has been rectified and the defendant should have accepted that explanation. The defendant&#821efusaacco accept that explaexplanation without any proper evidentiary basis to the contrary, is not only unjustifiable, but unfair aneasonable.

In relation to the second issue, the plaintiff said, “I had successccessfully and satisfactorily completed the requirements of training of barristers at the Victorian Bar in Melbourne and had signed the roll of barristers kept by the Victorian Bar. Although, I dohave the cere certificate to practise at the Victorian Bar, I am, however, equally admitted as the other barristers who are currently practising at the Victorian Bar. Admission and practise ao two separate things”. derstanding of admission aion and practice at the Victorian Bar is that, a law graduate can practise as a solicitor only.&#Howevf he wishes to appear as counsel in Court, he muse must successfully complete the Bar ReadeReader’s course and sign the roll as a barrister or counsel. Ier words, the successful sful completion of the Bar Reader’s course is a prerequisite to practise as a barrister in Victoria.

Given the scenario, I do not see why the defendant should be concerned with the plaintiff’s participation in the Bar Readers course in Victoria. As a matter of law, the successful completion of the Victorian Bar Readers course, and even, admission to practise at the Victorian Bar, are not requirements for a UPC under the Lawyers Act0; So why should the defendant, insist on an explanation fron from the plaintiff? The plaintiff Papua New Guew Guinean, not an overseas applicant. I find it qunreasonable, ale, and disturbing, to say the least, when the defendant insisted on an explon in respect of the plaintiff’s admission following wing his completion of the Victorian Bar Readers course. What has that coto do with with the PNG Law Society? In my view, questions relating to the plaintiff’s completion of the Victorian Baders course and his admission as a barrister at the Victorian Bar are not relevant to his his application. They are not legaliremende under s. 41(1)(a) )(a) of the Act, therefore irrelevant to the plaintiff’s application.

I consider that the pril issue here is whether the plaintiff has satisfied the requirement of s.41(1)(a)(ii) of thof the Lawyers Act, so as to entitle him to a UPC. The plaintiff hasonus of s of satisfying this requirement and he must prove that, as the holder of a restricted practising certificate, or one entitled to hold such a certificate, he has practised exclusively as a lawyer for at least two years.

In considering an application for a UPC, the defendant has the right to refuse such an application. S.41(1) vests a etionary pary power in the defendant. I held, in Emily Paneyu Dirua -v- Papua New Guinea Law Society, N1467, unrepojudgment of 19th July, 1996, that “the refusal to issue the plaintiff’s practisactising certificate was within the discrery power of the Council andl and in accordance with s.44(1)(a) of the Lawyers Act”. Howevhe facts in that case case differ to the present application.

The exercise of that discretion must be based on proper considerations, not on a preconceiviased or prejudiced reason. In controversy, I co I conI consider that the plaintiff must shoulder some of the blame. As uded e has thas the onue onus of showing that he has satisfied the requirement of s. 44(1)(a)(ii) of the Act. He filed thrparattutorlaraclarations which bore inconsistent dates as to when he became an employeployed lawd lawyer of the firm, Joe Wal Lawyers.&#16 was his duty to state the correct date, but he gave different dates, therefore, in my view view, failed in his duty, initially.

However, the plaintiff’s letter of explanation on 25^th June, 1997, said that the date which he commenced work with Joe Wal Lawyers was 16^th February, 1995, not 16^th March, 1995. To my mind, that is sufficient explanation. That date was cord at the the request of the defendant. So why wasn’t thentiaintiff’s appion approved? In it’s letter of 28^th November, 1997; the Secretary oary of the defendant advised the plaintiff thatdefendant was not satisfied with the plaintiff’s expl explanation therefore rejected his application. No reason was given as t twhy the defendant was not satisfied with the plaintiff’s explanation.

On 27^th July, 1998, the plaintifged his third application. On hatutory declaration ofon of the same date, the plaintiaintiff stated that he worked with Joe Wal Lawyers from 16^th February, 1995 to 30^th April, 1996. On 13 August, 1998, t98, the Council of the defendant considered the plaintiff’s application and again refused the application.

The reason was thhe &#Counculd find nothing in your previous appliapplicatiocation (dan (dated 27^th July, 1998), and the documents submitted with that application, which warranted a reversal of the decision made by the Council on 18^th September, 1997; and decided that you had again failed to give a satisfactory explanation to the matters put to you in the Secretary’s letter of 29^th November, 1996 ..............”

The explanation required was contained in the defendant’s letter of 29^th November, 1996 (Exhibit “D”) which I have already canvassed, therefore I need not discuss it again here. Suffice it to say that,plae plaintiff had given an explanation of the matters required.

I must reiterate that the discrepancy in respect of the date the plaintiff joined Joe Wal Lawyers had already been explained. The correct date was 16th February, 1995. Thentiff has alluded to thto that. I can see no reason at all for the defendant to contio refuse the plaintiff’s application when the discrepancy had been corrected more thae than once. Iider that the defendan acan acted unreasonably and there was no justification at all tall to continue to reject the plaintiff’s application when the plainhad sufficiently explained the discrepancy of the dates, 16s, 16^th February, 1995 and 16^th March, 1995. I defendant cared to carefcarefully look at the plaintiff’s statutory declaration of 22^nd July, 1998, it would fhat the plaintiff had practised for more than two years. A simpthematical calculalculalculation would reveal that the plaintiff had worked for Kemaken Lawyers for 1 year 1 week 2 days; with Joe Wal Lawyers for 1 year 2 months and 2 weeks; and with Sasoruo; & Associates for 8 mo 8 months. Those periods give a tota2 of 2 years 10 months 3 weeks and 4 days. The plaintiff has thre sate satisfied and fulfilled the requirement of s. 41(i)(a)(ii) of the Act, and therefore entitled, in law, to be issued a UP>

This Court curt can see no lawful justification for the defendant to refuse the plaintlaintiff’s third application following explanation required by the defendant, which the plaintiff had provided, and which, in my view, has already resolved the so called discrepancy, the defendant had used, as the basis for refusing the plaintiff’s first two applications. The plaf has met the legallegal requirement set out in s. 41(1)(a)(ii) of the Act. Therefore there wasegal imal impediment to hisd application. There is no other reqent ient in s. 41 which the plaintiff need to sato satisfy therefore, the defendant’sinuous refusal to grant a UPC to the plaintiff has no propeproper basis in law. Had the issue of judicial review argued fully and satisfactorily, the Court would have no hesitation in granting a review or quashing the defendant’s decision under the Wednesbury principle (Associated Provincial Picture Houses Limited -v- Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223; [1947] 2 All ER 650, per Lord Green M.R.).

Reference to the Wednesbury principle brings me to the final issue I wish to raise here. S. 4the Act grants a rightright to an unsuccessful applicant to do two things. Firstly, to seek a r of thof the council’ision, and secondly, to seek an order directing the Society to issue a certificate on termsterms, pending the review.

This appion is brought by way of an ordinary originating summons, nns, not by the procedures prescribed by Order 16 of the National Court Rules dealing with application for judicial review. I am awart in Dirua’8217;s case (supra) Mr Garo did raise this issue, however, it was not fully argued before me, therefore I did not consider the question of the appropriate procedure. I ao awaat Hinchliffe, J e, J e, J did deal with the application of J.B. Nanei in 1991 (OS 285/90) by way of an ordinary originating sum

In the present application, the question of proper procedures did not arise, howeveowever, I note that counsel for the defendant had referred to the decision in Rose Kekedo -v- Burns Philp & Ors [1988-89] PNGLR 122, a case dealing with judicial review.

The defendant has not opposed the application on the basis of improper procedure, so I do not wish to consider it here. Since the issue has not been raised and fully argued by the defendant, I consider that the defendant has consented to this matter proceeding as an application for a review by way of ordinary originating summons. Accordingly, I am of the view that the application should be granted on the basis that there is an error on the face of the record, and secondly, on the bas the Wednesbury principle.

For these reasons, I quash the decision of the defendant dant given on 13^th August, 1998, and communicated to the tiaintiff on 17^th August, 1998. I order that the defendant issue to the plaintiff, an unrestricted practising certificate, pursuant to s. 45 (2) of the Act, for the balance of 1998. In view of the fact that this year is almost up, I direct that the defendant, upon application by the plaintiff, issue an unrctericted practising certif to the plaintiff for the period, 1^st January to 31^st December, 1999.1999.

I order the defendant to pay laintiff’s filing fees and any other fees or expensesenses in the production of the plaintiff’s Court documents. Thder does not include proe professional fees.

Lawyer for Plaintiffs: Plaintiff in person

Lawyer for Defendants: Blake Dawson Waldron