Mellor, In re [1974] PGSC 25; [1974] PNGLR 213 (29 August 1974)

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LEGAL PRACTITIONERS - Qualifications and admissions - Barrister and solicitor - Provisional admission - Student at Law - Clerk in service of and under supervision of practitioner - Long experience as officer of Administration performing duties of legal nature - Not substantial compliance with requirements relating to service as clerk - Admission Rules 1963-1973 rr. 6a[cclxxxvii]1, 8[cclxxxviii]2, 12[cclxxxix]3, 15[ccxc]4.

On an application for provisional admission as a barrister and solicitor, by an applicant possessing the necessary academic qualifications who had had long experience as an officer of the Administration performing at times duties of a legal nature, including magisterial functions, but who had not performed any service as a clerk in the service of and under the supervision of a practitioner of the Supreme Court of Papua New Guinea,

N1>(1) The clear effect of r. 6a (1) of the Admission Rules 1963 is that an applicant for provisional admission must have both the necessary academic qualifications and practical training: registration as a student at law under r. 6a (1) (c) would be a requirement without substance if it was not accompanied by service as a clerk.

N1>(2) The discretion conferred on the Court by r. 12 of the Admission Rules 1963 is thereby to reduce the period of registration, there is no power to dispense with it entirely.

N1>(3) For a case for relief from compliance with the Admission Rules under rr. 12 and 15 thereof, the applicant must show substantial compliance with the requirements of r. 6a (1) relating to service as a clerk.

N1>(4) As the applicant had failed to establish any period of service as a clerk, the application should fail.

The applicant, R. H. C. Mellor sought provisional admission as a barrister and solicitor of the Supreme Court of Papua and New Guinea pursuant to the Admission Rules 1963-1973, and by motion applied for an order under r. 15 thereof that the requirements of r. 6a (1) (c) which relate to service as a student at law be waived.

FROST ACJ CLARKSON PRENTICE JJ: The applicant, R. H. C. Mellor, who seeks provisional admission as a barrister and solicitor, applies by motion for an order under r. 15 of the Admission Rules of 1963, as amended, that the requirements of r. 6a (1) (c) which relate to service as a student at law be waived, and also for a declatory order under r. 8, that the Court is satisfied that by reason of his instruction and the possession of the prescribed academic and other qualifications, he is qualified for such admission.

As the applicant became in 1972 a graduate in law of the University of Papua New Guinea, he has the necessary academic qualifications. He has also been registered as a student at law for the requisite period of one year, but in lieu of any period as a clerk in the service of and under the supervision of a practitioner, the applicant relies upon long experience as an officer of the Administration of Papua New Guinea during which he has performed from time to time and for various periods, duties of a legal nature. His experience goes back to 1951 when as a young cadet patrol officer he was appointed to the Department of District Services and Native Affairs. Thereafter part of his duties were those of a member of the Court for Native Affairs, from 1955 of a Magistrate for Native Affairs and from 1965 he had extensive experience as a Local Court Magistrate in both criminal and civil jurisdiction. He has also carried out police duties.

Whilst holding the position of Assistant District Commissioner he carried out the functions of coroner and acted as a Reserve Magistrate of the District Court in committal proceedings and in summary matters. Early in his career he had experience as a defending officer in the Supreme Court, and he has had extensive experience in the investigation and purchase of land in Papua New Guinea. Thus be has acquired a good general knowledge of local customs. In February 1969 he transferred to the Administrative College where he has continued to perform in the Legal Studies Branch various duties all concerned with the training of magistrates, including the giving of lectures and tutorials in the law subjects, and the training of police prosecutors. Until June 1970 he had the benefit of the direction and control in the conduct of his duties of Mr. T. E. Barnett, a legal practitioner in charge of the Branch.

The applicant’s case is that the experience he has had is equal to and comparable with the experience he would have gained as a clerk over the required period, although his experience was not that contemplated by the Rules. It was thus submitted on his behalf that his experience as outlined should be accepted in lieu of service as a clerk under r. 6a (1) (c).

His counsel sought to rely on the fact that as the application was for provisional admission only, if it succeeded, it would be necessary before the applicant obtained full admission that he should engage in employment for one year as a barrister and solicitor when in accordance with the Rules he would be under the supervision of a practitioner, but this cannot assist the applicant unless he can establish a case under r. 15.

The applicant’s counsel relied upon two Victorian cases, R. v. McKay[ccxci]⁵ and In re McDonald[ccxcii]⁶. Whilst we agree with the opinion of Mann C.J. in the earlier case that provisions such as r. 15 which confer an enabling power should be construed in a liberal manner, as the Rules considered in those cases are very different from the Admission Rules of this Court, we do not find those cases of any further assistance to us.

For the applicant to bring himself under r. 15 he must show that he has substantially complied with the Rules (r. 15 (a)). It was submitted that it was unnecessary that the applicant should show substantial compliance with each of the relevant Rules. But the clear effect of r. 6a (1) is that the applicant must have both the necessary academic qualifications and also practical training. Registration as a student at law under r. 6a (1) (b) would be a requirement without substance if it was not accompanied by service as a clerk. It is to be noted that the discretion conferred on the court by r. 12 is thereby to reduce the period of registration; there is no power to dispense with it entirely. The fact that when r. 12 was repealed and re-made in a form which omitted any reference to the period as one “required to be served as a student at law”, we do not regard as of significance because the period of registration remains inextricably tied to the requirement that it must be shown by affidavit that throughout that period of registration the applicant has served as a clerk. See Admission Rules 1972, r. 5. Accordingly, in our opinion, an applicant must show substantial compliance with the requirements of r. 6a (1) (c) relating to service as a clerk.

In our opinion, to establish compliance in any degree with r. 6a (1) (c) it is necessary that an applicant should for some period have devoted himself to employment as a clerk engaged in the performance of legal duties in accordance with the requirements of that rule. If an applicant cannot show that all the requirements of those sub-paragraphs have been strictly complied with, for example, service as a clerk for the whole of the required period, then if substantial compliance is shown, depending on the circumstances, a case may be made for relief under r. 15.

It was not argued that there had been compliance with these provisions. Valuable although the applicant’s experience in legal duties for the Government of this country has been, and particularly his service as a magistrate, that experience is quite different from that of a clerk employed in the performance of legal duties in which the clerk has the advantages of supervision by a practitioner of this Court, substantial opportunities of gaining experience in all classes of legal work conducted by the practitioner, and also instruction in the actual performance of the matters, arising in the practice of that practitioner, as elaborated in r. 6a (1) (c). It thus follows that as the applicant has failed to establish any period of service as a clerk, the present application must fail.

But this is not to say that if subsequently the applicant takes up an employment as a clerk in accordance with the Rules, his experience as outlined could not be relied upon by him to found a further application for relief. Such an application however would be more appropriately made under r. 12 (b) for an order reducing the period required for registration as a Student at Law.

Finally, we would wish to refer to the case of Re Keenan[ccxciii]⁷ which was referred to by the applicant’s counsel. In that case a declaratory order was made under r. 8 in relation to an application for full admission, although the applicant’s period of service as a clerk had been a little less than five months. But that was a case decided on its own special facts for as a general rule such a relatively short period of service could not be accepted as justifying an order under either r. 12 or r. 15.

[cclxxxviii]Rule 8 of the Admission Rules 1963 as amended provides:—

A person, other than a practitioner admitted elsewhere, desiring to establish his qualifications for admission under Rule 6, Rule 6a or Rule 6b of these Rules may, after giving the Secretary for Law not less than five clear days’ notice in writing of his intention so to do, apply to the Court upon motion for a declaratory order that the Court is satisfied that, by reason of his instruction and the possession of the prescribed academic and other qualifications, he is qualified for admission to practise.

[cclxxxix]Rule 12 of the Admission Rules 1963 as amended provides:—

The Court may by order and for good cause reduce—

(a) the period of not less than two years referred to in subparagraph (b) of paragraph (1) of Rule 6 of these Rules;

(b) the period of not less than one year referred to in subparagraph (b) of paragraph (1) of Rule 6a of these Rules;

[ccxc]Rule 15 of the Admission Rules 1963 as amended provides:—

Notwithstanding anything in these Rules contained where the Court is satisfied that an applicant—

(a) has substantially complied with these Rules;

(b) is, by reason of his qualifications, experience and training a fit and proper person to be admitted to practise; and

(c) is otherwise a fit and proper person to be admitted to practise, then the Court may, by order, waive so much of these Rules as would prevent the Court from making a declaratory order under Rule 8 of these Rules.

[ccxci][1936] V.L.R. 365.

[ccxcii][1950] V.L.R. 518.

[ccxciii](Unreported) 1971.

[ccxciv]Rule 2 of the Admission Rules 1963-1973 provides where relevant:—

In these Rules—

...

“A practitioner admitted elsewhere” means—

(a) A barrister, a solicitor, or a barrister and solicitor of the High Court of Australia or of the Supreme Court of a State or Territory of the Commonwealth; or

(b) A solicitor of the Supreme Court of Judicature of England; or

(d) A barrister or a solicitor of the Supreme Court of New Zealand.

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Supreme Court of Papua New Guinea

Mellor, In re [1974] PGSC 25; [1974] PNGLR 213 (29 August 1974)

Papua New Guinea Law Reports - 1974