Anis v Dau [2020] PGNC 25; N8200 (19 February 2020)

N8200

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO.109 OF 2019

BETWEEN:
JOSHUA ANIS
Appellant

AND:
RUNNY DAU
Respondent

Waigani: Dingake J
2020: 10^th & 17^th February

LAWYERS ACT - whether counsel has authority to represent respondent who is a child in a maintenance suit – counsel is an in-house lawyer employed by the government department responsible for community development, youth and religion – lawyer a child protection officer under s36 of the Lukautim Pikinini Act - whether the office of the public solicitor is the only body that has the authority to provide legal aid to ordinary citizens – whether the respondents lawyer as a holder of Restricted Practicing Certificate and In-house Lawyer of the Division implementing the provisions of Lukautim Pikinini Act, 2015, has authority to represent the respondent in this matter- there is no merit in objecting to respondents counsel’s authority to represent the respondent - objection overruled
Counsel:

Mr. Solomon Wanis, for the Appellant
Mr. Otto Trur, for the Respondent

19^th February, 2020

1. DINGAKE J: This is my brief ruling on whether the respondent Counsel, Mr Otto Trur, has authority to represent the respondent, a child, in a maintenance suit.
2. Mr. Otto Trur is an In-house lawyer from the Department for Community Development, Youth and Religion, attached to the Child and Family Services Division. He is also a Child Protection Officer, in terms of Section 36 of the Lukautim Pikinini Act 2015.
3. Mr. Trur appeared on behalf of the respondent in the District Court, following an authority granted to him by his Director to do so on account of his experience on children welfare matters.
4. Before the District Court, the appellant herein, challenged his authority to appear; but the District Court acting pursuant to Section 59 of the District Court Act 1963, allowed him to appear.
5. When the appeal was called up for a hearing before me on the 17^th February, 2020, the appellant’s Counsel again challenged the authority of Mr. Trur to appear, contending, essentially, that his appearance violates Section 37 of the Lawyers Act 1986.
6. Additionally, Mr. Wanis, learned Counsel for the appellant, submitted that the only Statutory Office that is allowed by law, in fact the Constitution, to give legal aid to ordinary citizens is the office of the Public Solicitor.
7. Mr. Trur, learned Counsel for the respondent contends that he has authority to appear for the respondent as authorised by his Director and consistent with Lukautim Pikinini Act 2015, which is the law the respondent evoked to file for child maintenance.
8. Mr. Trur further argues that as a holder of Restricted Practicing Certificate and In-house Lawyer of the Division implementing the provisions of Lukautim Pikinini Act 2015, he has authority to represent the respondent in this matter.
9. Section 37 of the Lawyers Act provides that:
   • “37. Restricted practising certificate.
   • (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. (emphasis mine).
   • Penalty: A fine not exceeding K1,000.00.”
10. I do not consider that the above provision prohibits Mr. Trur as an in-house lawyer from his Division, fully authorized by his Director, and as a Child Protection Officer, to represent, in the National Court, matters having a bearing on the neglect of the welfare of the child.
11. I do not think in representing the respondent, Mr. Trur is practising as “a lawyer on his own account”, which contemplates, in my view, the establishment of one’s own office and possibly charging clients or keeping trust account. Mr. Trur is not doing any of the above.
12. I do not find that any law has been violated; and there is plainly no prejudice that a child alleging neglect should be assisted in the manner Mr. Trur is doing.
13. In the result, there is no merit in objecting to Mr. Trur’s authority to represent the respondent and the objection is hereby overruled.

_______________________________________________________________Solomon Wanis Lawyers: Lawyers for the Appellant
Department of Community Development
(NCD Child & Family Services): Lawyers for the defendants