Devere, In re [1975] PGSC 11; [1975] PNGLR 1 (30 June 1975)

1975

Papua New Guinea Law Reports - 1975

[1975] PNGLR 1 - Devere, In re

[1975] PNGLR 1

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN RE DEVERE

Port Moresby

Raine Williams Saldanha JJ

25 June 1975

30 June 1975

LEGAL PRACTITIONERS - Qualifications and admissions - Barrister and solicitor - Practical training - Clerk in service of and under supervision of practitioner - Strict compliance with minimum requirements of Admission Rules - Grounds for relaxation of rules - Maturity of applicant not a ground for relaxation of rules - Admission Rules 1963-1973.

On an application for admission as a barrister and solicitor and for abridgement of the two year period prescribed by r. 6 of the Admission Rules 1963-1973 to be served as a student at law and as a law clerk, fully devoted to learning his trade under the supervision of a practitioner, by a mature applicant who had gained some legal experience as a lecturer at the Administrative College at Waigani, who had served in the Australian Department of Foreign Affairs and as an officer in the R.A.A.F., and who had served nearly 17 months as a clerk in the Department of Law;

Held

(Per Williams J. with whom Saldanha J. concurred):

N1>(1)      It is the duty of the Court to insist on strict compliance with the minimum requirements of the Admission Rules 1963-1973, relating to service as a law clerk for a period of two years.

N1>(2)      No relaxation of the rules should be permitted unless it is clearly shown that the applicant has received practical legal education at least the equal of the education he would have received had he fulfilled the two year requirement.

N1>(3)      Relaxation of the rules should only be granted on some clear ground of principle rather than upon a comparison of the individual maturity of particular applicants.

N1>(4)      Accordingly, the applications should be refused.

(Per Raine J.) It is in the interests of the public that the Court should require those who seek admission as barristers and solicitors to undergo practical training and must resist urgings to reduce the time prescribed for undergoing such practical training on mere compassionate grounds or because of the convenience that might be achieved.

Motion

The applicant, R. F. Devere, sought admission as a barrister and solicitor of the Supreme Court of Papua New Guinea pursuant to the Admission Rules 1963-1973 and by motion sought abridgement of the two year period prescribed by r. 6 of the Admission Rules to be served as a student at law and as a law clerk, fully devoted to learning his trade under the supervision of a practitioner.

Counsel:

N. H. Pratt, for the applicant.

Cur. adv. vult.

30 June 1975

RAINE J: This is an application by Mr. Devere that certain of the Rules relating to admission as a practitioner should be relaxed. On Wednesday the same Court, before hearing Mr. Devere’s application, acceded to a similar application by Mr. Lovell. But it is easily distinguishable. Mr. Lovell had almost completed five years of articles of clerkship in the State of New South Wales. The Sydney firm where he served most of his articles is well known to me. It is a busy and prosperous firm, with a great variety of work. Then Mr. Lovell served about a year as associate to one of my brethren. In addition, he has served the equivalent of articles here for about seven months, a total period of training under supervision for about six and a half years in addition to his law degree.

But Mr. Devere cannot point to anything like the same experience. I hasten to add that the evidence indicates very clearly that the applicant is possessed of high personal qualities, the very qualities required by professional men.

The effect of the application is to seek abridgement of the time required to be served as a student at law and as a law clerk, fully devoted to learning his trade under the supervision of a practitioner. In both cases two years’ service is required unless this Court otherwise orders.

The abridgement of time served as a student at law is not nearly such a serious matter as abridgement of articles, or the equivalent thereof. In my home State, New South Wales, I saw many applications by intending barristers to abridge time, where they had forgotten to register as students at law. I cannot remember seeing such an application fail. Of course, the reason is obvious. The requirement to so register stems, I believe, from the requirements of the Inns of Courts for one to “eat one’s dinners”. But in my State, and here, although called a student at law, the student undertakes no prescribed studies.

But articles, or their equivalent here, are a very different thing. There is nothing formalistic about articles of clerkship. Practical training is essential before a graduate can be considered fit to put up his shingle as a solicitor, rather than as a barrister only. Here a man or woman is admitted as both. In Ex parte J. A. Y. Denniston[i]¹, the Full Court refer to “the detailed minutiae of a solicitor’s office and his practise”, and the words are apt. I know, and have known, very great counsel who could no more have run an office than flown to the moon. However, their role was quite different in New South Wales, where there is a divided profession, from the role of attorneys. The public are only introduced to counsel by attorneys. But the attorney sees the public day in and day out, the waiting room is full of people with every sort of problem. Probably 60% of the questions asked by clients will not have neat answers set out in the books. Even where a good practice book might have a neat answer, the attorney, so often, has no time to search for it. He leans on his experience, and a great deal of this stems from his early experience as an articled clerk. There is much to learn. One has to be able to find the right forms, and use them correctly. One has to know how to find one’s way around the various departments of state. One has to learn to keep careful records, and administer trust and general accounts.

However dedicated the master solicitor, however dedicated the clerk, or however brilliant, obviously the fully trained clerk cannot be expected to be perfect. But he or she should have a good background of experience before being let loose on the public.

I am, in saying what I have, trying to establish what principles should guide us in these applications. It seems to me, after anxious thought, that the Court’s first duty is to the public. The public are not only the civilian public, the public includes all lay people, police, politicians, and so on. Thus, so it seems to me, the court must resist urgings on mere compassionate grounds, or because of the convenience that might be achieved. What this particular Court does in the circumstances is, of course, highly important to Mr. Devere, but to me the really important issue is the principle that the Court should require those who seek admission to undergo proper practical training.

But there are subordinate issues, worthy of consideration. Thus, outstanding applicants, men of special promise, might be treated in a special way from time to time. I can imagine that there will be occasions where compassionate reasons might persuade the Court to reduce the period of service by a couple of months to allow somebody to keep a practice going as a partner, where a principal has had to retire through ill health.

I might add, and it is not to be read as critical of the Public Service, that experience as a clerk in the Service is rather different than in a private solicitor’s office. By and large the public servant, in a very big office, is farmed out into particular sections. While this is sensible and economical, it is limiting. Mr. Devere has had very little experience. I really take little note of his lecturing experience, they were his lectures, not the lectures of a master solicitor.

I think it is proper, however, to pay regard to his age, his obvious sense of responsibility, and his general experience.

But I would presently refuse the application.

However, we have here an applicant with wide general experience who is utterly satisfactory in a personal way, and apparently he is giving good service. I feel that we can do justice by acceding to his request ‘qua’ his studentship at law, but that he should be required to serve some further months under instruction and guidance.

Thus, to save expense, I would suggest that the application be stood over for a period of three months, with liberty to apply on two days’ notice. However, my brethren do not agree in this compromise.

WILLIAMS J: The applicant registered as a student at law on 3rd October, 1973. In consequence the period of two years prescribed by r. 6 (1) (b) does not expire until 2nd October, 1975.

He commenced service as a clerk in the Department of Law on 4th February, 1974, and has been so employed to the present. He has thus served nearly seventeen months of the two year period prescribed by r. 6 (1) (c).

Thus he seeks reduction of the period of his service as a student at law by approximately three months, and his period of service as a law clerk by approximately seven months.

He asks this Court to make these concessions upon the footing of the experience gained by him as a Lecturer at the Administrative College at Waigani, his service in the Australian Department of Foreign Affairs and his service as an officer of the R.A.A.F. In neither of the two latter respects is it suggested that he was performing duties of a legal nature.

The period of two years’ service as a law clerk was considered by the framer of the Admission Rules to be the minimum period of practical legal training which, in addition to the necessary academic qualifications, fits a person for admission. The Rules contemplate that the two year period be wholly devoted to the gaining of practical experience in everyday matters pertaining to the actual practice of the law.

For myself, I think that it is the duty of this Court to insist on strict compliance with these minimum requirements, and that no relaxation of the Rules should be made unless it be clearly shown that the applicant has received practical legal education at least the equal of the education he would have received had he fulfilled the two year requirement.

I am not persuaded that this has been shown in this case. I do not think that service as a Lecturer in academic subjects is a proper substitute for training in the practical aspects of legal practice. In this respect I would distinguish between this case and others which have come before this Court in which the applicants have had practical legal experience by virtue of having performed magisterial functions for substantial periods.

It has been urged on the applicant’s behalf that his background of service in the Department of Foreign Affairs and the R.A.A.F. have provided a maturity in the applicant which may not be present in the case of a younger immature man, and that the applicant as a mature man might be considered to have the capacity to absorb practical legal training much more quickly and readily than a young immature man.

This may be so, but the Rules themselves draw no such distinction and apply on their face universally. I think, in considering an application of this nature, that relaxation should only be granted on some clear round of principal rather than upon a comparison of the individual maturity of particular applicants. The latter can only lead to uncertainty and confusion in the application of the Rules.

Whilst I am sympathetic to the applicant, I do not think that it has been shown that this is a proper case to grant the orders sought.

SALDANHA J: I have read the judgment in draft of my brother Williams. I concur with the order proposed by him and agree with his reasons.

Solicitor for the applicant: B. W. Kidu, Crown Solicitor.

Application refused.

[i] (1956) 73 W.N. (N.S.W.) 136, at p. 137.