Papua New Guinea Law Society v Kunjip [1998] PGSC 46; SC578 (19 October 1998)

Unreported Supreme Court Decisions

SC578

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCA 51 OF 1997
BETWEEN: THE PAPUA NEW GUINEA LAW SOCIETY
APPELLANT
AND: SYLVIA JOYCE KUNJIP
RESPONDENT

Waigani

Amet CJ Sakora Sevua JJ
19 October 1998

LAWYERS ACT 1986 – Application for Admission to practice – Application to waive requirements of s 25(3)(a) –

LAWYERS ACT – Application to waive requirements of s 25(3)(a) pursuant to s 28(2) – Discretionary power to the court – circumstances to be taken into account –

Held:

(1) Appeal dismissed.

(2) The Court has power to waive the requirements of s 25(3)(a) of the Act, pursuant to s 28(2) of the Act.

(3) The circumstances of the Applicant, a PNG citizen graduate of UPNG law school who satisfactorily completed a Legal Practice Course, at the Queensland University of Technology, comparable to the PNG Legal Training Institute, are factors properly taken into account by the Court in exercising the discretionary power to waive the requirements of s 25(3)(a) of the Act.

Counsel

J Yagi, for the Appellant.

P Payne, for the Respondent.

AMET CJ SAKORA SEVUA JJ: This is an appeal from the judgement of the National Court in granting the application of the Respondent to be admitted to practise as a lawyer in this jurisdiction.

The Respondent is a Papua New Guinean citizen. She graduated with a degree of Bachelor of Laws from the University of Papua New Guinea on 15 March 1996. She undertook the 1996 Legal Practise Course conducted by the Queensland University of Technology, Faculty of Law, satisfactorily completing such course so that she is eligible to obtain a graduate diploma in legal practice, evidenced by a certificate dated 25^th October 1996, signed by the Director, Legal Practice Course, the Acting Dean Faculty of Law and the Registrar of the University.

This fact was supported by the affidavit of John Kees DeGroot, and Associate Professor of Law holding the position of Director of Legal Practice in the Faculty of Law at the Queensland University of Technology. He deposed to the co-units covered in the Queensland University of Technology Course and that on completion of this course graduates were entitled to be admitted as solicitors of the Supreme Court of Queensland provided they held an approved Law Degree. He deposed further to being familiar with the Legal Practice Course offered by the Legal Training Institute in Papua New Guinea having being engaged as a consultant by the Institute during 1992 and 1993. Incidental to that consultancy he visited the Legal Training Institute in Port Moresby on two occasions and that as a result of those visits he was generally familiar with the course structure and the materials at the Legal Training Institute. He expressed the opinion that the course offered by the Queensland University of Technology is comparable to the one offered by the Legal Training Institute in Papua New Guinea.

On 11^th November 1996 the Respondent was admitted as a Solicitor to the Supreme Court of Queensland which admission was evidenced by a copy of her certificate of admission. She had obtained the necessary Police Clearance Certificate certifying that she had no record of any criminal conviction. She was also issued with a certificate of qualification for admission signed by the Attorney General pursuant to Section 25(3)(d) that she is a fit and proper person to be admitted to practise as a lawyer in Papua New Guinea. She also produced a copy of a Certificate from the Secretary of the Queensland Law Society Incorporated confirming that she was admitted as a Solicitor of the Supreme Court of Queensland on 11^th November 1996. The Certificate stated that the Respondent did not hold a Practising Certificate in Queensland and that the Society had record of her name being removed from the Roll of Solicitors and that the Society had no record of any complaint being made requiring disciplinary proceedings against her.

A final affidavit was filed by Dickson David Kombagle a lawyer admitted to practise in Papua New Guinea and currently holding the position of Director of the Legal Training Institute. He deposed that in March 1997 he interviewed the Respondent on the Practical Courses she undertook at the Queensland University of Technology in 1996, perused the syllabus of the courses she undertook and expressed the opinion that the Legal Practice Courses she undertook and completed at the Queensland University of Technology are comparable with those offered at the Legal Training Institute. He further deposed to referring to the affidavit of Associate Professor John DeGroot and that as a result of the consultancy deposed to by Associate Professor DeGroot, the Practice Legal Course provided at the Legal Training Institute is modeled along the same line as those provided at the Queensland University of Technology. Director Kombagle further deposed that as part of that consultancy by Associate Professor DeGroot legal practice papers used at the Queensland University of Technology were provided to the Legal Training Institute which were modified to suit the Papua New Guinea practice requirement but that the substance and contents of the course materials remained very similar.

The Notice of Motion for Admission before the National Court sought two orders:

(1) That the Applicant be admitted to practise as a lawyer; and

(2) That a waiver of s 25(3)(a) of the Lawyers Act be made pursuant to s 28(2) of the said Act.

The trial judge in granting the application for admission said the following:

“Taking into account all the considerations alluded to above I grant the orders sought in the notice of motion. Accordingly, requirements of s 25(3)(a) of the Lawyers Act are waived insofar as it applied to the applicant pursuant to s 28(2) and the Applicant is admitted to practise as a lawyer.”

The appellant pleaded the following grounds of appeal:

(i) The National Court erred in law by taking into account irrelevant factors such as “the benefits Papua New Guinea lawyers may have in achieving what the Applicant has achieved” and “the limitations at the Legal Training Institute” when the Lawyers Act 1986 (“the Act”) and in particular s 25(3)(a) of the Act does not provide for such factors to be taken into account.

(ii) The National Court erred in law in finding that the comparable courses completed by the Respondent at the Queensland University of Technology Australia amounted to substantial compliance within the meaning of s 25(3)(a) of the Act when the said statutory provision (s 25(3)(a)) specifically provides for “a certificate in the form prescribed”.

(iii) The National Court erred in law by accepting the evidence of the Director of the Legal Training Institute in the form of a sworn affidavit as a substitute or equivalent of a “certificate in the form prescribed” within the meaning of s 25(3)(a) of the Act.

(iv) The National Court erred in law in the exercise of its discretionary power under s 28(2) of the Act by waiving the requirements of s 25(3)(a) of the Act because the legal implication or effect of the waiver means that it is open for any lawyer who possesses the required academic qualification equivalent to the degree of Bachelor of Laws from the University of Papua New Guinea and who also have completed courses comparable to the course offered at the Legal Training Institute to be eligible for admission to practise in Papua New Guinea in the same way as the Respondent by seeking waiver of the requirement of s 25(3)(a) of the Act.

(v) The National Court erred in law in awarding costs against the Appellant on its own motion because firstly the Respondent did not seek orders for costs either in her formal undated notice of motion filed on 10^th April 1997 nor through her Lawyer during the hearing of the formal application and secondly that the Appellant had a statutory right to appear in appropriate cases either in support or in opposition to such applications and clearly this was an appropriate case for the Appellant to exercise its statutory right..

The thrust of the Appellant’s grounds of appeal were primarily that the National Court erred in the exercise of its discretion in waiving the requirements of Section 25(3)(a) of the Act. It was submitted that the three main factors that were taken into account in exercising the discretion to waive the requirements were irrelevant and compassionate grounds of which ought not to have been taken into account. It was further contended that those were not matters that s 25(3)(a) of the Act envisaged to be taken into account. These several matters or factors taken into account were:

(a) the benefits the Papua New Guinea lawyers may have in achieving what the Respondent achieved;

(b) the limitations at the Legal Training Institute; and

(c) citizenship.

It was submitted that the certificate required to be in the prescribed forms under the Rules pursuant to s 25(3)(a) was a mandatory requirement and one that was not capable of being substantially complied with by an affidavit by the Director of the Legal Training Institute deposing to the comparability of courses undertaken at the Queensland University of Technology with the courses undertaken at the Legal Training Institute, nor by accepting the courses undertaken at the Queensland University of Technology as being comparable and thus amounting to substantial compliance within the meaning of s 25(3)(a) of the Act.

It was further submitted that the basis upon which the Court exercised the discretion to waive the requirements of s 25(3)(a) was improper and contrary to the intention of the legislation.

The Respondent has submitted that the particular circumstances of the Respondent were relevant for the Court to take into account in deciding whether or not to exercise its discretion under s 28(2) of the Act. All of these circumstances deposed to in the supportive affidavits amounted to substantial compliance with the requirements of s 25(3)(a) to warrant the exercise of discretion by the Court in waiving the requirements under s 28(2). It was submitted that the legislature had clearly intended that there would be circumstances where strict compliance would not be necessary and could be waived otherwise s 28(2) would be meaningless. It was submitted that this was such a case of substantial compliance and therefore the court was entitled to exercise its discretion and waive strict compliance with the requirements of Section 25(3)(a).

Section 25 is in the following terms:

Qualifications for Admission

(1) An applicant for admission to practise shall satisfy the Court that he possesses the required academic and practice qualifications and that he is a fit and proper person to be admitted as a lawyer.

(2) The required academic qualifications referred to in subsection (1) are:

(a) possession of the degree of Bachelor of Laws from the University of Papua New Guinea; or

(b) such other academic or educational qualification as are prescribed by the Rules made by the Admission Council under Section 25(A)(2)(Amended by No 30 of 1989 s 3).

(3) The required practice qualifications referred to in subsection (1) are:

(a) a certificate in the form prescribed by the Rules made by the Admission Council under Section 25A(2) signed by the Director of the Papua New Guinea Legal Training Institute certifying that the applicant has successfully completed the course of training conducted by that Institute; or

(b) a certificate from the appropriate overseas authority certifying that the applicant was admitted to practise in a country prescribed by the Rules made by the Admission Council under Section 25A(2) together with evidence that the applicant has practised as a lawyer in a country prescribed by the Rules of Court for a period of not less than three years following the date of his admission to practise in that country; and

(c) such other practice qualifications as are prescribed by the Rules made by the Admission Council under Section 25A(2) after consultation with the President; and (Amended No 30 of 1989 s 3).

(d) a certificate signed by the Attorney General that the applicant is a fit and proper person to be admitted to practise in Papua New Guinea; and (Replaced by No 30 of 1989 s 3).

(4) In determining whether or not to grant a certificate under subsection (3)(d), the Attorney General may require the applicant:

(a) to attend before him for a personal interview; and

(b) to produce to him such evidence of his fitness and academic and practice qualifications as the Attorney General thinks fit. (Replaced by No 30 of 1989 s 3).

(5) Where the Attorney General is of the opinion that an applicant has not provided adequate evidence of his academic and practice qualifications, he may require the applicant to sit examinations and for this purpose may set such examinations. (Added by No 30 of 1989 s 3).

Section 28 is in the following terms:

Court May Admit Applicant to Practise.

(1) The Court may, at any sitting, on motion, admit an applicant to practise as a lawyer if that applicant shows to the satisfaction of the Court that he possesses the required qualifications.

(2) In considering an application for admission to practise as a lawyer, the Court may waive all or any of the requirements of Section 25.

We consider with respect that the learned trial judge was correct in the exercise of his discretion to admit the Respondent pursuant to s 28(1) by waiving the requirements of section 25(3)(a) pursuant to s 28(2). We are satisfied that the circumstances that the learned trial judge took into account in the exercise of his discretion were proper and we do not think that the trial judge erred.

The circumstances of the Applicant/Respondent is not strictly one of substantial compliance but rather whether because of her having completed a comparable course of studies in another institution being the Queensland University of Technology, the requirement of s 25(3)(a) could properly be waived pursuant to s 28(2). The issue was therefore not one of whether the acceptance by the Court of the certification by the Director of the Queensland University of Technology Director of the Legal Practise Course that she had completed a comparable course at that university to the courses offered at the Legal Training Institute and the deposition by the Director of the Legal Training Institute of his satisfaction that the course of studies at the Queensland University of Technology Legal Practice Course was also comparable to the course at the Legal Training Institute. Being sufficient substitute of equivalent of a “certificate in the form prescribed” within the meaning of s 25(3)(a) of the Act. Nor was the issue one of whether the course of studies satisfactorily completed by the Respondent at the Queensland University of Technology amounting to substantial compliance.

The issue quite simply, in our view, is that whether the court had the discretionary power to “waive all or any of the requirements of s 25” pursuant to s 28(2) of the Act and whether in the circumstances and the factors or matters taken into account the court had exercised that discretion correctly.

In our opinion s 28 (2) cannot be any clearer than that the Court has the absolute discretion to waive all or any of the requirements of s 25 including subsection (3)(a). That therefore means that the court can waive the need to obtain a certificate in the form prescribed by the Rules, which may mean that the person applying need not necessarily have attended the course of training conducted by the Papua New Guinea Legal Training Instituted such that a certificate in the form prescribed by the Rules need be issued pursuant to s 25 (3)(a).

What the factors and circumstances as might be fitting and appropriate for the Court to exercise the discretion to so waive all or any of the requirements of Section 25 remains a discretionary matter for the court. And unless any objector to the application can demonstrate to the trial court or this court that the matters taken into account by the trial court in the exercise of that discretion were wrong and inappropriate then of course the exercise of the discretion is not to be easily displaced.

We do not consider that the several factors pertaining to the Respondent’s circumstances that were taken into account were inappropriate. In our view, this is not a case which can properly be said to be opening the flood gates at all. Its application for the waiver of requirements of s 25 pursuant to s 28(2) must be considered on its own merits and circumstances. In this Respondent’s application, however, the circumstances that the trial judge accepted remain peculiar to this Respondent’s application and that this decision accepting the exercise of the trial court’s discretion in these circumstances is only authority for the discretionary power in the court pursuant to s 28(2) in these circumstances in this case.

We do not accept that this case is authority for any of the propositions put by the appellant; that it leads to uncertainty in the law that it renders the strict requirement of s 25 of the Act meaningless, it defeats the policy and intention of the Act and sets a bad precedent.

By our upholding the National Court decision we are now endorsing that the circumstances specifically of the Respondent are such circumstances as may be properly taken into account in the exercise of the court’s discretion to waive all or any of the requirements of s 25. We repeat that this does not open the possibilities of any other factual circumstances such as suggested by the applicant. This decision is confined strictly to the circumstances of this case and any other application to waive the requirements of s 25 must be considered individually on the merits of the circumstances.

We therefore dismiss the appeal and affirm the decision of the National Court.

In these circumstances the costs of the application in the National Court and this appeal are to be borne by the appellant.

Lawyer for the Appellant: Yagi Lawyers.

Lawyer for the Respondent: Blake Dawson Waldron Lawyers.