Papua New Guinea Law Society v Cooper [2017] PGSC 10; SC1585 (5 May 2017)

SC1585

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 102 OF 2016

BETWEEN:
PAPUA NEW GUINEA LAW SOCIETY
Appellant

AND:
DAVID RICKEY COOPER

Respondent

Waigani: Injia CJ, David and Collier JJ

2017: 24^th April, 5^th May

LAWYERS ACT- Application for Unrestricted Practicing Certificate (UPC) made 3 years after Restricted Practicing Certificate (RPC) expired - Application made before Council of the Law Society - Whether application is for "renewal" or a fresh application - Relevant considerations for new applications vis-a-vis renewal application- Meaning of "renewal application"- Lawyers Act 1986, ss 39, 40, 41, 44 (1), (2) & (3)

SUPREME COURT- Inherent powers - To determine appeal on an important point of law considered and determined by the trial judge, but not expressly challenged in the grounds of appeal- Point underlies the errors set out in the grounds of appeal - Parties given opportunity to argue point in the appeal - Appeal allowed on that point of law - Constitution, s 155 (4).

Cases cited:
Papua New Guinea Cases

Amaiu v Papua New Guinea Law Society [2014] N5882
Bonggere v Papua New Guinea Law Society [2003] N2361
Dirua v Papua New Guinea Law Society [1996] N1467
Kakaraya v National Parliament [2004] SC756
Karingu v Papua New Guinea Law Society (SCA 69 of 1996, 30 October 1997
Karingu v Papua New Guinea Law Society [1999] PNGLR 83
Karingu, Enforcement of Rights Pursuant Constitution S57 [1988-89] PNGLR 276
Lomai v PNG Law Society [1998] N1854
PNG Power Ltd v Gura [2014] SC1402
Pruaitch v Manek [2010] SC1052
Papua New Guinea Law Society v Saga [2006] N3095
Ralai v Yama [2008] SC1029

Overseas Cases

Christian Youth Camps v Cobaw Community Health Services Ltd [2014] VSCA 75; (2014) 308 ALR 615
Crampton v R [2000] HCA 60; (2000) 206 CLR 161
Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106
Hearn v Street [2008] HCA 36; (2008) 235 CLR 125
House v The King [1936] 55 CLR 499
Julius v. Lord Bishop of Oxford (1880) 5 App Cas 214
Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1
Ward v. Williams [1955] HCA 4; (1955) 92 CLR 496

Counsel

I Molloy, for the Appellant
David Ricky Cooper, with B Frizzel, for the respondent

JUDGEMENT

5th May, 2017

1. BY THE COURT: This is an appeal from a decision of the National Court of 27^th May 2016 where the Judge made the following orders:
   
   • Court quashed the decision of the defendant made 26 January, 2016 refusing the plaintiff’s application for an unrestricted practicing certificate for 2016.
   • The defendant issue that certificate to the plaintiff.
   • Costs in relation to this application are ordered in favour of the plaintiff.
     
2. The proceedings have important ramifications extending beyond the interests of the parties. In particular, the appeal raises matters relevant to the powers of the Papua New Guinea Law Society (“the Law Society”) to issue practising certificates to legal practitioners under the Lawyers Act 1986, both by way of grant of application and renewal.
   

Background evidence and facts

3. Before turning to the grounds of appeal and the issues for decision, it is appropriate to explain the background facts.
   
4. The respondent, Mr David Cooper, is a Brisbane-based barrister. He was admitted to practice in Queensland in 1986 and was appointed a Queens Counsel in 1998. Mr Cooper practiced in Papua New Guinea following his admission. Until the end of 2007 he held an unrestricted practicing certificate in Papua New Guinea under the Lawyers Act 1986.
   
5. The Lawyers Act 1986 vests the Council of the Law Society with the power to issue practicing certificates to lawyers in accordance with provisions of that Act. Specifically, section 39 of the Lawyers Act 1986 states :
   

39. PRACTISING CERTIFICATES.

(1) The Council may, on behalf of the Society, in accordance with the provisions of this Act, issue to a lawyer who has signed the Roll a practising certificate which shall be–

(a) an unrestricted practising certificate; or

(b) a restricted practising certificate.

(2) A practising certificate issued under Subsection (1)(a) or (b)–

(a) shall be in the form prescribed in the Rules; and

(b) shall be issued for a period not exceeding one year; and

(c) shall expire on 31 December in the year in which it was issued.

(3) An unrestricted practising certificate issued under Subsection (1)(a) entitles the holder to practise as a lawyer in any manner allowed under this Act.

(4) A restricted practising certificate issued under Subsection (1)(b) entitles the holder to practise as a lawyer, but not–

(a) on his own account; or

(b) in partnership with another lawyer; or

(c) hold moneys in trust for another person who is a client.

6. Sections 40 and 41 of the Lawyers Act 1986 distinguish, and make specific provision in respect of, “unrestricted practising certificates” and “restricted practising certificates”. These sections provide:
   

40. RESTRICTED PRACTISING CERTIFICATE.

A lawyer who–

(a) has signed the Roll; and

(b) is a citizen or resident of Papua New Guinea,

may be issued with a restricted practising certificate.

41.UNRESTRICTED PRACTISING CERTIFICATE.

(1) A lawyer may be issued with an unrestricted practising certificate if–

(a) he–

(i) is the holder of, or is entitled to hold, a restricted practising certificate; and

(ii) has been employed exclusively as a lawyer for–

(A) not less than two years from the date of his admission to practise; or

(B) not less than two years in the five years preceding the date of his application for an unrestricted practising certificate,

by a lawyer, who during the period of employment was the holder of an unrestricted practising certificate; or

(b) he–

(i) has practised exclusively as a lawyer within a class of lawyers prescribed in the Rules for the purpose for a period of not less than two years in the period of five years immediately prior to his application for an unrestricted practising certificate; and

(ii) satisfies the Society that he has obtained experience in the practice of law at least equivalent to that gained by an applicant under Subparagraph (a)(ii); or

(c) he–

(i) has been admitted to practise law for a period of not less than three years following his admission to practise in such countries as are prescribed by the Rules; and

(ii) has practised with a restricted practising certificate in Papua New Guinea for a period of not less than three months immediately prior to his application for an unrestricted practising certificate; or

(d) he satisfies the Society that he has obtained experience in the practise of law, which, in the opinion of the Society, is at least equivalent to that gained by an applicant under Subparagraph (a)(ii); or

(e) he has been carrying on practice exclusively as a barrister in a country prescribed by the Rules of Court for a period of not less than five years preceding his application for an unrestricted practising certificate.

(2) For the purposes of Subsection (1)(e), “barrister” means a person who is a member of the bar in a country prescribed by the Rules of Court.

(3) Sections 39(2) and 42(2)(b) apply to an unrestricted practising certificate under Subsection (1)(e).

7. In each of the calendar years 2008, 2009, 2010 and 2011, Mr Cooper applied to the Law Society for, and was issued, a restricted practising certificate. Applications for restricted practising certificates are in Form PCA1, being the form prescribed by the Papua New Guinea Law Society Practising Certificate Rules 1990. The form requires completion of personal and professional information. The 2014 version of the form, which is materially the same as the years 2008, 2009, 2010 and 2011, is as follows :
   

Papua New Guinea Law Society Practising Certificate Rules 1990

FORM PCA1

Rule, Sec. 2(1)(a).

APPLICATION FOR RESTRICTED PRACTISING CERTIFICATE FOR 2014

TO: The Secretary

PNG Law Society

P. O. Box 2004

PORT MORESBY, National Capital District

Dr M r Mrs Ms

NAME:

........................................................................................................

(Surname) (Other Names)

Address: Business ............................................ Phone: ................................

............................................. Fax: .................................

............................................. E-mail .................................

Home .............................................. Phone: .................................
..............................................
...............................................

Place of PNG Date of

Admission: .......................................................... Admission: .............................................

Other Countries Date of

where Admitted:.................................................... Admission: ............................................

1. I make application to the Council of the Law Society for a Restricted Practising Certificate.
   
2. I am a citizen/*resident of Papua New Guinea.
   
3. I attach a statement in writing on oath as to citizenship or residence.
   
4. As at the date of this application I practise as follows:
   

Employed by .........................................................................................law firm
Employed by the State. Indicate department/organisation ........................................
Employed by .....................................................................Provincial Government
Other (indicate nature and employer’s name) ................................................................

5. Actual location of place of practice ..............................................................................

..........................................................................................................

6. I, the above-named applicant, declare that the information set forth in this application is true and correct in every particular.
   

DATED this day of 20_________

*(Delete as appropriate) ...................................................

(Signed)

8. Form PCA3, prescribed by Papua New Guinea Law Society Practising Certificate Rules 1990 sec 2 (2), is headed “STATEMENT IN WRITING ON OATH AS TO CITIZENSHIP OR RESIDENCE BY APPLICANT FOR A RESTRICTED PRACTISING CERTIFICATE”. At all material times it has been in the following form :
   

Papua New Guinea Law Society Practising Certificate Rules 1990

FORM PCA3

Rule, Sec.2(2).

STATEMENT IN WRITING ON OATH AS TO CITIZENSHIP OR RESIDENCE BY

APPLICANT FOR A RESTRICTED PRACTISING CERTIFICATE

I, .......................................................................... of .....................................................................

being an applicant for a restricted practising certificate make oath and say as follows:

*1. I am a citizen of Papua New Guinea.

OR

*2. I declare that I intend to reside in Papua New Guinea for a period of not less than 12 months from the date of my application for a restricted practising certificate.

SWORN at ..........................................

this ______________ day of ________________________ 20 _____

Before me,

..................................................... .......................................

A Commissioner for Oaths

Signature of Applicant

*(Delete 1 or 2 above as appropriate).

9. For each of the calendar years 2008, 2009, 2010 and 2011 Mr Cooper completed an application in the relevant form at the time, and swore a Statement in Writing on Oath as to Citizenship or Residence (“Statement”). It is not in dispute that, in each Statement, Mr Cooper deleted the sentence “I am a citizen of Papua New Guinea”, and that accordingly he swore “I declare that I intend to reside in Papua New Guinea for a period of not less than 12 months from the date of my application for a restricted practising certificate”.
   
10. In each of his applications for a restricted practising certificate in the calendar years 2008, 2009 and 2010, Mr Cooper nominated his employer as O’Briens Lawyers in Port Moresby. In the 2011 application, Mr Cooper left blank the identity of his employer. Mr Cooper’s addresses as set out in the applications for restricted practising certificates varied between 2008 and 2011. So:
    
    • In his application for 2008, Mr Cooper nominated his business address as “239 George Street Brisbane”, and his home address as “267 Avalon Road Sheldon Queensland”, with Queensland telephone numbers.
    • In his application for 2009, Mr Cooper nominated his business address as “O’Briens Lawyers, Level 5, Defens Haus, Port Moresby” and his home address as “Unit 3 Lot 1 Sec 39, Ela Makana St, Port Moresby”, with Papua New Guinea business telephone numbers and an email address at O’Briens Lawyers.
    • In his application for 2010, Mr Cooper nominated his business address as “PO Box 389, Level 5, Defens Haus, Cnr Hunter St & Champion Pde, Port Moresby NCD 121” and his home address as “Lot 1 Sec 39, Ela Makana St, Port Moresby”, with Papua New Guinea business and home telephone numbers and an email address at O’Briens Lawyers.
    • In his application for 2011, Mr Cooper left blank the details of his physical addresses, telephone numbers and email address.
      
11. Mr Cooper made no application for a practising certificate of any kind in Papua New Guinea in 2012. He then applied, unsuccessfully, for unrestricted practising certificates in 2013, 2014 and 2015.
    
12. The form of application for an unrestricted practising certificate is Form PCA 2 prescribed by the Papua New Guinea Law Society Practising Certificate Rules 1990. It is as follows :
    

Papua New Guinea Law Society Practising Certificate Rules 1990

FORM PCA 2

Rule, Sec. 2(1)(b).

APPLICATION FOR UNRESTRICTED PRACTISING CERTIFICATE FOR 2014

TO: The Secretary

PNG Law Society

P. O. Box 2004

PORT MORESBY, National Capital District
Dr Mr Mrs Ms

NAME:

.............................................................................................................

(Surname) (Other Names)

Address: Business .............................................Phone:.....................................

..................................................... Fax: ..........................

.................................................... e-mail: ........................

Home ..................................................... Phone: ........................
.....................................................

Place of PNG Date of

Admission: ................................................................ Admission:..................

Other Countries Date of

where Admitted: ....................................................... Admission: .................................

1. I make application to the Council of the Law Society for an Unrestricted Practising Certificate.
   
2. I declare as follows: (Delete parts inapplicable)
   

(a) I am the holder of, or I am entitled to hold, a restricted practising certificate and I have been employed exclusively as a lawyer for not less than 2 years from the date of my admission to practise by a lawyer who, during the period of employment was the holder of an unrestricted practising certificate: or

(b) I am the holder of, or I am entitled to hold, a restricted practising certificate and I have been employed exclusively as a lawyer for not less than 2 years in the 5 years preceding the date of this application by a lawyer who, during the period of employment, was the holder of an unrestricted practising certificate: or

(c) I have practised exclusively as a lawyer within a class of lawyers prescribed in the Rules for a period of not less than 2 years in the period of 5 years immediately prior to this application and I claim to have obtained experience in the practice of law at least equivalent to that gained by an applicant under Paragraph (a) or (b): or

(d) I claim to have obtained experience in the practice of the law which is at least equivalent to that gained by an applicant under Paragraph (a) or (b): or

(e) I have been admitted to practise law for a period of not less than three years following my admission to practise in a country prescribed by the Rules and I have practised with a restricted practising certificate in Papua New Guinea for a period of not less than three months immediately prior to this application; or

(f) I have been carrying on practice exclusively as a barrister in a country prescribed by the Rules of Court for a period of not less than five years preceding this application;

3. As at the date of this application I am practising as follows:
   

Sole Practitioner
Partner
Employed by ....................................................................................law firm
Employed by State. Indicate department/organisation .......................................
Employed by ................................................................Provincial Government
Other (Indicate nature)
............................................................................ ......................................
.............................................. ............................. .......................................

4. Actual location of place of practice ..............................................................................

.........................................................................................................

5. I am a citizen/non-citizen of Papua New Guinea.
   
6. I, the above-named applicant, declare that the information set forth in this application is true and correct in every particular.
   

DATED this ___________ day of ______________________ 20 _______

.............................................

(Signature)

(NOTE): A lawyer who practised on his own account or in partnership as at 01st July,1988 and who currently holds an unrestricted practising certificate should apply under Paragraph (c).

A lawyer employed by the State, a Provincial Government or a Statutory Body who is applying for an unrestricted practising certificate for the first time should apply under Paragraph (c).

13. In each of his applications for an unrestricted practising certificate in 2013, 2014, 2015 and 2016 Mr Cooper nominated his physical addresses as in Queensland. He also deleted paragraphs 2 (a)-(e) on the form, leaving paragraph 2 (f) which was as follows :

I have been carrying on practice exclusively as a barrister in a country prescribed by the Rules of Court for a period of not less than five years preceding this application.

14. The primary Judge found that the Council of the Law Society failed to finalise decisions on each of Mr Cooper’s applications before the relevant year elapsed. This finding is not challenged.
    
15. Examining the matter more closely, it is evident that there was considerable correspondence between Mr Cooper and the Law Society during this period. It is useful to set out some of this correspondence as it provides us with some insight into the stances taken by the Law Society and Mr Cooper in respect of his applications.

2013 unrestricted practising certificate application

16. At all relevant times the Secretary for the Law Society was Mr Robert Mellor. In a letter from Mr Mellor to Mr Cooper dated 3 September 2013, Mr Mellor wrote:

I wish to inform you that your application for an Unrestricted Practicing Certificate for 2013 was considered by the Council at a meeting on 30^th August 2013.

The Council has requested that you provide evidence of your residency in Papua New Guinea in the years 2008 to 2011 inclusive.

In the meantime your application has been deferred.

17. In response, in a letter dated 12 September 2013 Mr Cooper wrote to Mr Mellor as follows :

In response to your letter of 3 September 2013 I advise that between 2008 and 2011 I did not undertake any legal work in Papua New Guinea, and, consequently, did not reside there in that period.

The reason for that is that my wife was diagnosed with cancer in 2008 and I stayed in Australia to care for her until her death last October.

It is only because of her death that I am now able to take briefs offered to me by practitioners in Papua New Guinea.

Would you please issue my practicing certificate as a matter of urgency as I have been requested to act in a number of matters.

18. Mr Mellor then wrote to Mr Cooper on 8 October 2013 as follows:
    

At a meeting of the Law Society’s Council on 2^nd October 2013, your letter of 12^th September was considered.

The Council has requested please that you provide details of your practice in Australia for the last 5 years. The Council also has asked for an explanation from you as to why in 2008 to 2011 in your applications for Restricted Practicing Certificates you stated that you intended to reside in Papua New Guinea for a period of not less than 12 months from the date of your application for a Restricted Practicing Certificate.

19. Mr Cooper wrote to Mr Mellor in reply on 30 October 2013 as follows :
    

My practice in Australia for the last five years was the same as it has been every year since I took silk in 1998.

As to your second enquiry – I entered into an agreement with O’Briens Lawyers to be employed by that firm as a consultant. Mr O’Brien then prepared, and as I understand it, submitted on behalf of his firm, a request for the practicing certificate which was required to give effect to that agreement. Notwithstanding these matters, I did not work in Papua New Guinea between 2008-2011 and I have explained why.

Please issue my practicing certificate without delay.

20. On 21 November 2013 Mr Mellor wrote as follows to Mr Cooper :

Thank you for your response of 30^th October 2013.

The reason that the Council requested that you provide details of your practice in the last 5 years, is that your UPC application is founded on the basis that you have practiced exclusively as a barrister in Australia in the 5 years preceding your application.

This appears to be inconsistent with our records of your practice, which show that between 2008 and 2010, you were apparently resident in PNG. This is what has been stated, not in a document signed by Mr O’Brien, but in documents signed by you.

We look forward to receiving your clarification, in due course.

2014 unrestricted practising certificate application

21. On 13 January 2014 Mr Mellor wrote to Mr Cooper in the following terms:

On 21 November the enclosed letter was written to you, and faxed to you on 22 November 2013. It was also posted.

As your application for an Unrestricted Practicing Certificate for 2014 will be going before the Council shortly, could you please let me now (sic) if you responded to our letter of 21 November 2013, and if so, could you fax us a copy please.

22. This letter was followed by a further letter from Mr Mellor dated 15 January 2014, in which Mr Mellor wrote to Mr Cooper as follows:
    

Your application for a UPC was considered by the Council at a meeting today, and further consideration of it has been deferred.

The Council has made a correction to a letter written to you on 21^st November 2013. In the 3^rd paragraph of that letter the date 2010 should read 2011, so the corrected sentence now reads “this appears to be inconsistent with our records of your practice, which show that between 2008 and 2011, you were apparently resident in PNG.

You are again invited to respond to the letter of 21^st November 2013 if you have not already done so. If you have done so, please provide us with a copy.

23. On 26 February 2014 Mr Mellor wrote to Mr Cooper as follows:
    

This is to advise you that your application for an Unrestricted Practicing Certificate for 2014 has been considered by the Council. Your application was deferred as the Council still requires a response please to our letter of 21^st November 2013, as well as our letter of 15^th January 2014.

We attach copies of these letters, for your ease of reference.

24. Mr Mellor again wrote to Mr Cooper on 24 March 2014, as follows:
    

We didn’t appear to have received a reply to our letter of 26^th February 2014, a copy of which is enclosed.

We would like to invite you again to reply to that letter.

25. In a letter dated 25 March 2014 Mr Cooper wrote to Mr Mellor in the following terms :
    

I refer to our telephone conversation today. Would you be kind enough to seek from the Council a time which is mutually convenient to all parties so that I might discuss with them (or their delegate) my application for an unrestricted practicing certificate.

I would appreciate your urgent assistance given the time which has elapsed since I first made my application.

26. On 31 March 2014 Mr Mellor replied :

Thank you for your letter of 25 March 2014 to which were enclosed copies of two emails addressed to the Law Society, dated 22 November 2013, and one email addressed to the Law Society on 15 January 2014.

We regret to advise that we have no record of receiving these 3 emails. This may be because we have been experiencing problems with our internet system for some time now, and it is only now that the system has been rectified.

In your email of 22 November 2013, you asked for copies of documents referred to in the following statement in our letter of 21 November 2013. “This appears to be inconsistent with our records of your practice....This is what has been stated...in documents signed by you.”

The documents you requested are enclosed. A list is provided as an attachment to this letter.

When applying for Restricted Practicing Certificates for the years 2008, 2009, 2010 and 2011, you signed a declaration on page 2 of the application form (Form PCA 3) for each of those years that you intended to reside in Papua New Guinea for a period of not less than 12 months from the date of your application for a Restricted Practicing Certificate.” Copies of the application for those 4 years are enclosed.

In these declarations signed by you that the Council has asked for clarification, as in your application for an Unrestricted Practicing Certificate for 2014, (and also for 2013), (copies enclosed) you declared in paragraph (f) of the application that you had been carrying on practise exclusively as a barrister in a country prescribed by the Rules of the Court for a period of not less than five years preceding this application.

Taking the statement in paragraph (f) in the 2014 application (and also in the application for 2013), and matching that with the declarations in your Restricted Practicing Certificate applications for 2008 – 2011, there is an inconsistency. On the one hand it is stated in your UPC applications for 2013 & 2014 that for the last 5 years (2009-2013), you practised exclusively as a barrister in a country prescribed by the Rules, yet for 3 of those years (2009-2011) you declared in your applications for RPCs your intention to reside in Papua New Guinea for not less than 12 months.

It is this inconsistency that the Council is querying. Until it is clarified the Council is not satisfied your application complies with paragraphs 2(f) of the UPC application for 2014.

List of documents attached:

- Applications for Restricted Practising Certificates for 2008, 2009, 2010 and 2011 and Certificates issued.
- Applications for Unrestricted Practising Certificates for 2013 & 2014.

27. On 7 April, 2014 Mr Mellor wrote to Mr Cooper as follows:
    

Your request was put to the Council at a meeting on 28^th March 2014.

It was the decision of the Council that your request would be considered at a later date.

28. There was then correspondence between the parties in relation to receipt of documentation. On 27 August 2014 law firm Warner Shand, on behalf of Mr Cooper, wrote to Mr Mellor as follows:
    

Further to your letter addressed Mr David Cooper QC 31.03.2014 the writer would like to clarify matters raised as following –

in 2005 Steven O’Brien offered Mr Cooper the position as a consultant to his firm. This retainer required work to be done exclusively for his firm and involved both Court appearances and advices. The retainer was capable of being performed partly in Papua New Guinea and partly in Australia because of the internet;

Mr O’Brien spoke to Mr Mellor about the paper work necessary to give effect to the retainer and received, and acted upon, the advice of Mr Mellor. Enclosed is an email of 16 June 2005 which confirms this (*1)

in 2005, 2006 unrestricted practising certificates were issued by the Law Society in respect of the applications submitted which were to the same effect as subsequent applications. Annexed are copies of the 2005 and 2006 certificates (*2 & *3)

when the application was to be made in 2007 Mr Cooper requested advice from Mr Goodwin Poole about whether he completed the paperwork correctly. Annexed hereto is a copy of an email dated 5 February 2007 and the enclosure (*4)

he submitted an application in the form advised and in 2007 an unrestricted certificate was issued. Annexed is a copy (*5)

the 2008 application was completed by Mr Cooper in its entirety and gives a “home” address in Australia. He did not represent he was living in Papua New Guinea. He completed and signed the PCA3 which should be read with the “Business” and “Home” addressed in the PCA1. There is apparently no form which can be completed to recognise a professional consultancy. Notwithstanding the express disclosure of a “Business” address in Australia, a restricted practising certificate was issued.

the applications for 2009 and 2010 practicing certificates were completed by Mr Cooper in blank with the remainder to be added O’Briens in Port Moresby.

again in the 2011 application Mr Cooper did not provide any home address with the form completed by O’Briens;

the applications for 2013 and 2014 were completed by Mr Cooper

29. In addition and by way of further explanation:

between June 2005 and June 2008 Mr Cooper acted as a consultant to O’Briens discharging that retainer both in PNG and in Australia

the subsequent applications were made after Mrs Cooper was diagnosed with a terminal illness and submitted by him on the basis that Mrs Cooper recovered and O’Briens gave him instructions which she could undertake in PNG given the circumstances; and which applications were filed either by his secretary on the instructions from O’Brien or by one of O’Briens employees;

Mr Cooper did not tell Steven O’Brien of his wife’s illness or its severity or of his unavailability during her illness and O’Briens requested Mr Cooper to complete the applications for 2008 and 2011 in ignorance of the personal circumstances of Mr Cooper;

had O’Briens known of Mr Cooper’s circumstances those applications would not have been lodged.

It is obvious from a perusal of the history of his matter there has been confusion on both sides. Mr Cooper has submitted what he believed was the required documentation on each occasion after the matter was raised with Mr Mellor, and in respect of that documentation the Law Society has issued both restricted and unrestricted certificates. It appears there has been confusion and misunderstanding on both sides because of poor communication by all parties

Mr Cooper has not done any work for O’Briens since 2008. Their relationship effectively finished at that time because of his wife’s illness.

Recently Mr Cooper has been asked to receive, and wishes to receive instructions in matters which require him to have an unrestricted practicing certificate.

He apologizes unreservedly for any problems which have arisen in the past because he did not communicate personally with the Law Society and undertakes to act directly and appropriately with the Law Society hereafter.

We trust the foregoing clarifies the concerns raised by the council and request a response within 7 days.

30. On 23 September 2014, Mr Mellor wrote to Mr Bill Frizzell at Warner Shand, as follows:

We refer to your letter of 27^th August 2014 which we received on 28^th August 2014 and which was considered by the Council at a meeting 18^th September 2014.

The matters mentioned in your letter, do not address the issues raised in our letter of 31^st March 2014 to Mr Cooper, regarding his RPC applications from 2008-2011. For example, you have said in your letter that Mr Cooper “did not represent he was living in Papua New Guinea”. In fact, Mr Cooper signed a number of consecutive statutory declarations attesting to the fact that he intended to live in Papua New Guinea for consecutive periods of 12 months.

Consequently, the Council resolved that a satisfactory explanation of those matters has not yet been provided. Until Mr Cooper provides a satisfactory explanation, the Council is unable to be satisfied that Mr Cooper has practiced exclusively as a barrister in Australia in the relevant years as stated in the UPC application.

2015 unrestricted practising certificate application

31. On 10 March 2015 Mr Mellor wrote to Mr Cooper as follows :

I wish to advise that you application for an Unrestricted Practising Certificate for 2015 dated 17 February 2015 and received on 23 February 2015 was considered by the Council of the Law Society at a meeting on 2015.

Your UPC application for 2015 is founded on the basis that you have practised exclusively as a barrister in Australia in the 5 years preceding your application.

This appears to be inconsistent with our records of your practise which shows that in 2010 and 2011 you were apparently resident in Papua New Guinea.

As a result, the Council cannot be satisfied that you have practised exclusively as a barrister in Australia in the relevant years stated in your Unrestricted Practising Certificate application.

The Council calls on you to provide a satisfactory explanation to the matters referred to above which relate to your conduct and your practice as a lawyer.

32. On 29 April 2015 Mr Frizzell wrote to Mr Mellor in the following terms:
    

We refer to previous correspondence and your letter to Mr Cooper 10.03.2015.

Our letter to PNGLS 27.08.2014 and the affidavits deposed by our client and the writer in the withdrawn proceedings OS 831 of 2014 – D R Cooper and Papua New Guinea Law Society explain the consultancy arrangement with O’Briens and the reasons why our client never took up residence in PNG, relevantly in 2010 and 2011. In addition our client has deposed to practicing exclusively as a barrister in Australia for well in excess of the five year period. It is understood PNGLS had this material prior to 05.03.2015.

It would be appreciated if we could appear when this matter may be considered by PNGLS to clarify any of the foregoing facts and circumstances.

In light of the history of this matter we request PNGLS indicate within fourteen days whether this letter and matters to which it refers satisfy the enquiry made in the PNGLS correspondence.

33. On 11 May 2015 Mr Mellor wrote to Mr Frizzell:
    

Your letter of 29 April 2015 was considered by the Council at a meeting on 7 May 2015. Mr Bill Frizzell was not available to attend the meeting but the Council resolved that his attendance was not required, as clarification by him was not needed on any of the issues.

The Council considered the part of your letter in which you say that the applicant has already explained the “reasons why our client never took up residence in PNG...” If his non-residence is accepted, he therefore needs to explain why he swore on oath that he intended to reside in PNG for a period of at least a year from the date of each of his applications for Restricted Practicing Certificates in 2008, 2009, 2010 and 2011.

The Council assumes that the explanation to which you are referring is contained in the letter from the applicant dated 12 September 2013. In that letter, the applicant said that he had not resided in PNG from 2008-2011 and that the reason for this was that his wife had been diagnosed with cancer in 2008 and so he stayed in Queensland to care for her until her death in October 2012. While that is an explanation for the fact that he did not reside in PNG from 2008-2011, it is not an explanation for why he nevertheless continued to sign statutory declarations in 2009, 2010 and 2011 stating on oath that he intended to reside in PNG for at least the next 12 months. This is inconsistent with his explanation that apparently after signing his statutory declaration in 2009, he changed his mind and decided not to reside in PNG and instead to remain in Queensland to care for his wife.

If the applicant changed his mind in 2008 and decided not to reside in PNG, why did he swear on oath in 2009, 2010 and 2011 that he intended to reside in PNG? If he wanted to retain his option of being able to work in PNG but not live here, all he had to do was to apply for an Unrestricted Practicing Certificate in accordance with the usual practice of overseas barristers.

The Council has repeatedly called on the applicant to give a satisfactory explanation of this matter as it clearly relates to his conduct and practise as a lawyer.

The Council concluded that the letter of 29 April 2015 did not provide any new material and so the position remained the same as at the meeting of 5 March 2015 that the applicant had been called on to provide a satisfactory explanation of his conduct on the issues raised by his statutory declarations and that no satisfactory explanation had been received.

Please inform the Law Society if your letter of 29 April 2015 is the applicant’s final response so that the Council can make a decision.

2016 unrestricted practising certificate

34. On 15 December 2015 Mr Frizzell wrote to Mr Mellor as follows :

We refer to previous correspondence and enclose application for 2016 unrestricted practising certificate for Mr Cooper dated 14.12.2015, statutory declaration and details of his insurance for 2016.

Kindly inform of any other requirements.

35. On 11 January 2016 Mr Mellor replied to Mr Frizzell:
    

Receipt is acknowledged of your letter 91300038 B/WJF: 303 of 15 December 2016 and of an application from David Cooper QC for an Unrestricted Practising Certificate for 2016.

Mr Cooper’s application along with others which have come in before the Christmas/New Year period, will be considered by the Council, hopefully at a meeting next week.

In relation to Mr Cooper’s application for 2015, we do not appear to have received a response to our letter of 11 May 2015, a copy of which is enclosed.

36. Finally, on 15 February 2016 Mr Mellor wrote to Mr Frizzell as follows :

We refer to our letter of 11 January 2016 and confirm that Mr Cooper’s application for a UPC in 2016 was considered by the Council at its meeting on 22 January 2016.

Mr Cooper has applied for a UPC on the basis that he has “been carrying on practice exclusively as a barrister in a country prescribed by the Rules of Court for a period of not less than 5 years preceding this application”.

Our records show that in the 5 years preceding this application, namely, in 2011, Mr Cooper swore on oath in a statutory declaration that he intended to reside in PNG for the following 12 months, and was issued a Restricted Practising Certificate. Because Mr Cooper is not a citizen, unless he was resident in PNG, he was not entitled to hold a Restricted Practicing Certificate.

As Mr Cooper had sworn that he intended to reside in PNG in 2011, the Council could not now be satisfied that he had practised exclusively as a barrister in Australia for at least 5 years preceding his application.

This was the issue which the Council previously raised with Mr Cooper in 2014 and 2015. The Council’s letter for 11 May 2015 was the last occasion on which the Council requested the applicant to give a satisfactory explanation of this matter relating to his conduct and practice as a lawyer and it remains unanswered at the date of the current application.

For these reasons, the Council refused the application.

Proceedings in the National Court

37. On 4 March 2016 Mr Cooper filed an originating summons in the National Court (OS No 114 of 2016). In that summons he claimed the following relief:
    
    1. A declaration pursuant to section 155 (4) Ch. 1 that the Society has, by its conduct, constructively refused to issue to the applicant/plaintiff an unrestricted practicing certificate for the 2016 legal year.
    2. A declaration pursuant to section 155 (4) Ch. 1 that the Society has denied the applicant/plaintiff natural justice and procedural fairness in its deliberation and refusal to issue to the applicant/plaintiff the said unrestricted practicing certificate.
    3. A declaration pursuant to section 155 (4) Ch. 1 and sections 39 to 44 of the Lawyers Act (“the Act”) that the plaintiff is entitled to be issued with an unrestricted practicing certificate forthwith for the 2016 legal year.
    4. An order pursuant to section 45 (1)(b) of the Act that pending determination of these proceedings the Society be directed to issue a practicing certificate to the applicant/plaintiff on such terms the Court sees fit.
    5. Such further or other orders or directions as the Court considers appropriate.
38. On the same date Mr Cooper filed a notice of motion seeking interlocutory orders pursuant to section 45 (1)(b) of the Lawyers Act that pending determination of the proceedings he be granted an unrestricted practising certificate for the 2016 legal year.
    
39. The primary Judge heard the originating summons on 4 May 2016 and delivered his decision on 27 May 2016. His Honour commenced his judgment by setting out background facts, and then continued:
    

Applications for practicing certificates are matters – sorry, are made to the council who may grant or refuse the application, sections 44 (1) and (2). Under section 44 (3), “The council shall renew a practicing certificate unless the applicant : (a) has failed to comply with the Act; or (b) having been called upon by the council or the Lawyers Statutory Committee has failed to give a satisfactory explanation of any matter relating to his conduct or practice as a lawyer.”

Although not stated in the letter, it is properly inferred from the contents of the letter and confirmed by counsel for the Law Society that the decision of the council was based on section 44 (3)(b) of the Act. Applications for practicing certificates are made to the council who may grant or refuse the application sections 44 (1) and (2)...

40. After noting that the decision of the Law Society was referable to a refusal to renew Mr Cooper’s practising certificate, his Honour noted that eligibility requirements for grant of an unrestricted practising certificate are set out under section 41 of the Lawyers Act 1986, and those grounds are restated in Form PCA 1. His Honour observed that the requirements include a criterion under section 41 (1)(e) that the applicant must have practised “exclusively as a barrister in a country prescribed by the rules of court for a period of not less than 5 years preceding his application”, and that Australia is one of the prescribed countries. His Honour noted that Mr Cooper had applied for an unrestricted practising certificate pursuant to section 41 (1)(e).
    
41. His Honour continued :

As I noted earlier, the council did not make any final decision in relation to Mr Cooper’s UPC applications for the years 2013 to 2015 because council took the view that the applicant had not properly answered the council’s query regarding the apparent inconsistency between the statutory declarations wherein he stated that he intended to reside in Papua New Guinea for the next 12 months and his statement in the recent UPC applications that he had been practising exclusively as a barrister for a period of not less than 5 years in a prescribed country, that is, Australia. It is for the same reason that the UPC application for 2016 was refused.

42. After referring to the extensive correspondence between the Law Society and Mr Cooper, his Honour continued:
    

The issues to answer in this application turn on the construction of section 43 (1) of the Act and in particular the meaning to be accorded to the words “renew” and “a satisfactory explanation” found in section – sorry, that should be construction of section 44 (3)(b) and in particular the meanings to be accorded to the words “renew” and “a satisfactory explanation”.

In my view, the word “renew” includes replace so that section not only applies where a RPC holder is applying for a RPC again or a UPC but also applies where a UPC holder is applying for a UPC again or a RPC instead. Even if I am wrong in my interpretation and the word “renew” applies to obtaining a new certificate of the same type as the previous certificate then I consider that the matters in section 44 (3) are equally relevant in deciding whether or not to grant a certificate of a different type to the previous certificate.

Section 44 (3) provides grounds upon which the application for a new certificate shall be refused. Firstly, where the applicant has not complied with the Act, and secondly, where a query of the Law Society or the Lawyers Statutory Committee regarding the applicant’s conduct and practice as a lawyer remains not satisfactorily answered. The grounds allow the council some supervision of the practice and conduct of lawyers so that the society does not permit lawyers to practice if they have not complied with the legislation including the relevant regulations and rules that govern the legal profession in this country where there are questions regarding the conduct and practice – regarding conduct and practice.

In addition to the second matter, additionally, there exists the Lawyers Statutory Committee established by the Act to deal with the discipline of lawyers so that proper high standards of conduct and practice are maintained. That means that any issue or complaints regarding the lawyers’ conduct and practice are properly investigated and determined by the committee. Therefore, it is my opinion that the explanation to be provided under section 44 (3) must be adequate. That does not mean that the council must necessarily accept or be happy with the explanation. It only requires that the applicant has sufficiently explained the query. If the council considers that the explanation gives rise to a possible breach of the Professional Conduct Rules or a breach of the laws, it may refer the matter to the Lawyers Statutory Committee to deal with.

Having considered all the affidavit material and submissions, I am of the opinion that Mr Cooper gave a satisfactory explanation in relation to the apparent inconsistency raised by council. He explained how and why he applied for the RPCs. He clarified why he did not practice in Papua New Guinea despite those statutory declarations in support of the application for RPC. He affirmed that during the relevant years he practised exclusively as a barrister in Brisbane...

From submissions and by inference from the correspondence by the Law Society to Mr Cooper, it appears the council believes Mr Cooper made a false declaration. If the Law Society believes that Mr Cooper did make false statements in his statutory declarations then that is not a matter for my determination in this application. That is a serious allegation against a senior lawyer and such an allegation should be properly determined in a separate proceeding in accordance with the principles of natural justice.

The council may wish to refer the matter to the Lawyers Statutory Committee, for example. Before concluding, I am somewhat surprised that O’Briens Lawyers did not provide any direct evidence in relation – in this application and I wonder if the council has questioned that firm regarding the same issue. I say no more.

For the purposes of this application, I find that the council erred in deciding that Mr Cooper failed to provide a satisfactory explanation. Accordingly, I quash the decision of the defendant made 26 January 2016 refusing the plaintiff’s application for an Unrestricted Practising Certificate for 2016 and I order that the defendant issue that certificate to the plaintiff. Costs in relation to this application are ordered in favour of the plaintiff.

Notice of Appeal

43. In its notice of appeal filed on 4 August 2016 the Law Society sought the following orders:
    
    1. That the appeal is allowed
    2. That the judgment delivered by His Honour Justice Kariko on 27 May 2016 in National Court proceedings OS No. 114 of 2016 be quashed and/or set aside.
    100. That the judgment delivered by His Honour Justice Kariko on 27 May 2016 in National Court proceedings OS No. 114 of 2016 be set aside.
    4. That the respondent pay the appellant’s costs in National Court proceeding OS No. 114 of 2016.
    5. Such further or other orders as the Court considers appropriate.
    6. That the respondent pay the costs of and incidental to this appeal.
       
44. The appellant relied on the numerous, and detailed, grounds of appeal:
    
    1. His Honour erred in law or mixed fact and law when he decided that the respondent had provided a satisfactory explanation to the query raised by the appellant regarding the statutory declarations signed by the respondent (collectively the Statutory Declarations) in the respondent’s applications in the years of 2008 to 2011 for a Restricted Practicing Certificate (RPC) (collectively the Applications), in circumstances where:
       1. the respondent had stated in those Statutory Declarations that he intended to reside in Papua New Guinea (PNG) for the 12 months following each of the Applications but admitted that he had not resided in PNG between 2008 and 2011;
       2. he admitted that during those years he only intended to travel from Australia to PNG if required;
       3. his 2016 UPC application stated that he had practiced exclusively as a barrister in Queensland, Australia for a period not less than 5 years preceeding that application –

notwithstanding that section 44 (3)(b) of the Act provides the appellant with the discretion to not issue a practicing certificate where, having been called upon by the appellant to answer a query relating to his conduct or practice as a lawyer, the respondent did not provide an explanation that the appellant considered to be satisfactory

2. His Honour erred in law or mixed fact and law in finding in the Judgment that although “...the explanation to be provided under Section 44(3) must be adequate, that does not mean that the Council must necessarily accept or be happy with the explanation”¸ in circumstances where:
   1. the query made by the Council was for respondent to provide a satisfactory explanation for applying for a UPC on the basis that he had practiced exclusively as a barrister in Australia for the preceding 5 years, when at the same time he had signed statutory declarations stating that he intended to reside in PNG from 2008-2011;
   2. the respondent’s response provided an explanation for why he resided in Australia rather than in PNG from 2008-2011, but did not provide any explanation for why he nevertheless signed annual statutory declarations swearing on oath that he intended to reside in PNG;
   3. the explanation given by the respondent did not explain why he signed statutory declarations which on their face were inconsistent with his actual conduct;
   4. as there was no explanation offered for the inconsistency between respondent’s conduct and his signing of the statutory declaration, it could not have been a sufficient explanation;
   5. as the respondent failed to explain the inconsistency between his conduct and the statutory declarations, the Council was entitled to find that it was not satisfied that the respondent had shown that he had been carrying on practice exclusively as a barrister in Australia;
   6. having not been satisfied that the applicant complied with the requirement, the Council was entitled to refuse the application.
      

100. His Honour erred in law or mixed fact and law when he decided that the respondent’s explanation that he had not resided in PNG between 2008-2011 due to having the care for his wife in Australia was a satisfactory explanation to the query raised by the appellant regarding why the respondent had signed consecutive Statutory Declarations in the Applications stating he intended to reside in PNG for the 12 months following each of the Applications between 2008 and 2011, which statements were not true, in circumstances where the respondent had signed the Statutory Declarations stating he would reside in PNG in the years 2008 to 2011 when he knew he would be required to reside in Australia during those years to care for his wife, and notwithstanding that section 44 (3)(b) of the Act provides the appellant with the discretion to not issue a practicing certificate where, having been called upon by the appellant to answer a query relating to his conduct or practice as a lawyer, the respondent did not provide an explanation to the appellant’s query that the appellant considered to be satisfactory

4. His Honour erred in law or mixed fact and law when he decided that the respondent’s explanation that he signed the Statutory Declarations pursuant to advice from O’Brien’s Lawyers was a satisfactory explanation to the query raised by the appellant regarding why the respondent had signed the consecutive Statutory Declarations in the respondent’s Applications stating he intended to reside in PNG for the years 2008 to 2011 and those statements were untrue, because he was required to care for his wife in Australia and where the respondent being a senior member of the Queensland Bar would have been well aware of the consequences of signing a statutory declaration where the contents of the statutory declaration could not be true, and notwithstanding that section 44 (3)(b) of the Act provides the appellant with the discretion to not issue a practicing certificate where, having been called upon by the appellant to answer a query relating to his conduct or practice as a lawyer, the respondent did not provide an explanation to the appellant’s query that the appellant considered to be satisfactory
5. His Honour erred in law or mixed fact and law when he decided that section 44 (3)(b) of the Act only required the respondent to provide an explanation to the query raised by the appellant regarding why the respondent had signed the consecutive Statutory Declarations in the respondent’s Applications stating he intended to reside in PNG for the years 2008-2011, and the effect of what His Honour determined was that section 44 (3)(b) did not provide that the appellant has to be satisfied with the explanation provided by the respondent, so that effect of His Honour’s decision was that the respondent only need to provide an explanation, but not that it be a satisfactory explanation as required by the appellant
6. His Honour erred in law or mixed fact or law when he found in his Judgment that “Mr Cooper has explained to the Council through several letters that he did not practice in Papua New Guinea from 2008 to 2011 and did not reside here. During that time he continued to practice as a barrister in Brisbane. He staying in Australia to attend to his sick wife who eventually died in October 2012 in circumstances where that may have been an explanation for why he did not reside in PNG from 2009-2012, but was not an explanation for why he swore on oath from 2009-2011 that he intended to reside in PNG for each of those 12 month periods, so that the effect of His Honour’s decision was that the respondent only need provide an explanation, but not that it be a satisfactory explanation as required by the appellant.
7. His Honour erred in law or mixed fact and law when he found in his Judgment that Mr Cooper “...completed the statutory declarations for the RPC’s on advice from O’Briens Lawyers of Port Moresby with whom he had entered into a Consultancy Agreement that RPC was an appropriate certificate to hold”, and that this was a sufficient explanation for the purpose that an unrestricted practicing certificate be issued to the respondent for 2016 in circumstances where:
   1. an RPC can only be issued to citizens, or non-citizens who intend to reside in PNG for at least 12 months from the date of issue;
   2. a UPC was the correct certificate for a non-resident non-citizen;
   3. an RPC was clearly an incorrect certificate for a non-citizen who did not intend to reside in PNG;
   4. an RPC was clearly an incorrect certificate for a non-citizen who intended to reside in Brisbane and attend to his sick wife;
   5. the respondent had a non-delegable duty to be truthful in completing and signing a statutory declaration;
   6. neither O’Briens Lawyers nor anyone else could advise the respondent on the question of whether or not he intended to reside in PNG for the next 12 months;
   7. the sworn statement of intention to reside in PNG could only be made by the respondent, and not by any other person.
8. His Honour erred in fact and law when he ordered that the respondent be issued with an Unrestricted Practicing Certificate for 2016, because His Honour did not give consideration to, or sufficient weight to the Oaths, Affirmations and Statutory Declarations Act, whereby the respondent should only have signed the statutory declarations if it was indeed true that he intended to reside in PNG for the period of not less than 12 months from the date of his respective applications.
9. His Honour erred in law or mixed fact and law in finding in his judgment that “If the Law Society believes that Mr Cooper did not make false statements in his statutory declarations, then that is not a matter for my determination in this application.”, in circumstances where the issue of whether or not Mr Cooper signed false statutory declarations was not before the Court, and the issue which was before the Court was whether or not the Council’s belief that the respondent did sign false statutory declarations was a sufficient reason for the Council to exercise its discretion when finding that it was not satisfied with the explanation and therefore refused the UPC.
   

45. Ground (j) was abandoned by the appellant at the hearing of the appeal.
    
46. On 6 December 2016 Mr Cooper filed an application seeking orders that the appeal be dismissed for reasons that it disclosed no reasonable cause of action and/or because it was frivolous or vexatious and/or an abuse of process and/or because the Supreme Court had no jurisdiction to hear it. The Court dealt with this application at the hearing, and dismissed it.
    
47. Further, we note that both parties filed applications for the admission of further evidence. These applications were not pursued.
    
48. It follows that it is only the appeal that remains for consideration by this Court.

Submissions of the parties

49. At the hearing of the appeal the Law Society was represented by Counsel. Mr Cooper appeared in person. Both parties made detailed oral submissions, supported by written submissions.
    
50. In summary, the Law Society submitted as follows:
    
    • The primary Judge erred in finding that an explanation pursuant to section 44 (3) Lawyers Act must merely be “adequate” and the Law Society need not accept or be satisfied with that explanation.
    • The explanation given by Mr Cooper concerning why he did not reside in Papua New Guinea during 2008, 2009, 2010 and 2011 when he swore at the end of each preceding year that he intended to reside in Papua New Guinea for a period of not less than the following 12 months, was unsatisfactory.
    • While Mr Cooper deposed as to his wife’s illness and death, and this may have been an explanation as to why he did not visit Papua New Guinea during that time, it did not address the question why for four consecutive years he swore oaths that he had intended to live in Papua New Guinea when that clearly was not the case.
    • It would be illogical that a person called upon to provide a “satisfactory explanation” would need only to respond to that query.
    • It was open to the Law Society on the evidence to conclude that at the time of swearing the oaths referable to the restricted practising certificates issued in 2008, 2009, 2010 and 2011, Mr Cooper never intended to reside in Papua New Guinea, and that accordingly those declarations were false.
    • If Mr Cooper had had any doubt that he would be residing in Papua New Guinea for 12 months, he could have paid a higher fee and applied for an unrestricted practising certificate.
    • Mr Cooper’s renewals of his restricted practising certificates between 2008 and 2011 were at odds with his application for an unrestricted practising certificate for the 2016 legal year, which was founded on the basis that he had practised exclusively as a barrister in Australia for a period of not less than five years preceding the application. The Law Society had invited Mr Cooper to explain this inconsistency.
    • His Honour’s finding that, on the proper construction of section 44 (3)(b) Lawyers Act, Mr Cooper gave a satisfactory explanation to the Law Society for inconsistencies in his documentation, was not available on the facts.
    • The Law Society repeatedly gave Mr Cooper the opportunity to provide an explanation, yet he failed to do so.
    • The primary Judge erred in finding that if the Law Society was of the view that Mr Cooper was guilty of providing a false statutory declaration, that conduct should be referred to the Lawyers Statutory Committee. The express statutory purpose of section 44 (3)(b) is to provide the Council of the Law Society with a discretion to refuse to renew a practising certificate. Requiring the Council to refer a matter of this nature to the Lawyers Statutory Committee would be an unsatisfactory remedy and contrary to the purpose of the statute.
    • The primary Judge failed to give sufficient consideration to the provisions of the Oaths, Affirmations and Statutory Declarations Act 1962 and the onus it places on persons who sign statutory declarations to ensure that they are making truthful declarations. His Honour failed to consider that Mr Cooper was a senior and experienced legal practitioner, and that it could not be a satisfactory explanation for him to say that, in swearing an oath, he simply relied on the advice of O’Briens Lawyers.
      
51. Mr Cooper’s submissions, in summary, were as follows:
    
    • Mr Cooper denies that his statutory declarations referable to restricted practising certificates issued in 2008, 2009, 2010 and 2011 were false. The Law Society has never accused him of swearing false declarations or used such an accusation as a basis for refusing to give him an unrestricted practising certificate.
    • The only reason ever given by the Law Society for refusing to issue Mr Cooper an unrestricted practising certificate was that he failed to provide a “satisfactory explanation” for alleged inconsistencies in his sworn documentation. Mr Cooper gave extensive explanations, however the Law Society never explained why those explanations were not satisfactory.
    • The conduct of the Law Society between 2013 and 2016 was dissembling.
    • Section 44 (3)(b) Lawyers Act contemplates an objectively satisfactory explanation, not an explanation which is subjectively satisfactory to the Law Society. To that extent, the Law Society cannot “qualitatively vet” Mr Cooper’s explanations.
    • The Law Society has not challenged the evidence of Mr Cooper.
    • At no time did Mr Cooper swear that he was a resident of, or had resided in, Papua New Guinea, in his declarations supporting his applications for restricted practising certificates. In each case he swore that he intended to reside in Papua New Guinea.
    • The primary Judge was correct in equating “satisfactory” with “adequate”.
    • Section 45 Lawyers Act does not give the Council of the Law Society the power to seek an explanation about perceived fitness issues when considering the issue of a practising certificate.
      

Consideration

52. In its written submissions the Law Society grouped the grounds of appeal as follows:
    
    • (1) Whether an explanation provided pursuant to Section 44(3) Lawyers Act must merely be ‘adequate’ and the Law Society need not accept or be satisfied with that explanation (Grounds (b) and (e))
    • (2) Whether the finding by the trial judge that “Mr Cooper gave the satisfactory explanation” pursuant to Section 44(3)(b) of the Act was available on the evidence (Grounds (a), (c), (d), (e), (f) and (g))
    • (3) Whether the trial judge erred in law in deciding that the Law Society, if unsatisfied with the Respondent’s explanation, ought to refer his conduct to the Lawyers Statutory Committee
    • (4) Whether the trial judge considered and/or gave sufficient consideration to the Oath, Affirmations and Statutory Declarations Act (the OASD) (Grounds (a), (c), (d), (e), (f), (g), (h) and (i))
      
53. This consolidation of issues for decision referable to the grounds of appeal is convenient. Before we turn to these issues, and therefore the grounds of appeal, we consider that a threshold issue which arose from the submissions of the parties at the appeal requires determination. This issue is whether his Honour erred in determining that the decision of the Law Society to refuse Mr Cooper an unrestricted practising certificate was based on section 44 (3)(b) Lawyers Act and, if his Honour did err in this respect, the implications of that error. In other words – did Mr Cooper seek “renewal” of a practising certificate, which the Law Society was required to renew unless the conditions prescribed by section 44 (3)(b) applied, or was Mr Cooper making a fresh application for a practising certificate which the Law Society could grant or refuse pursuant to section 44 (1) and 41 (1)?

Was section 44 (3)(b) Lawyers Act relevant?

54. It appears from the transcript of the National Court hearing of 4 May 2016 that the Law Society initially conducted its case before his Honour on the basis that, because Mr Cooper had held other practising certificates in Papua New Guinea for many years, it was of no consequence whether it was a renewal or a new application for the purposes of the proceedings before his Honour (transcript page 22 lines 23-25). On being pressed by the primary Judge however, Counsel for the Law Society agreed that the decision of the Law Society was made pursuant to section 44 (3)(b) Lawyers Act, and that language in Mr Mellor’s letters to Mr Cooper referring to the need for Mr Cooper to give a “satisfactory explanation” relating to his conduct and practice as a lawyer was “borrowed” from section 44 (3)(b) (transcript pages 23-24).
    
55. There was also an extensive exchange between his Honour and Counsel acting for Mr Cooper, in relation to the issue whether section 44 (3) applied. Counsel submitted that section 44 (3) was not relevant because that section implicitly assumed that the type of certificate being sought was identical to that which had expired, and that the applicant already held a practising certificate for the previous legal year. His Honour queried whether a restrictive or liberal interpretation ought to be accorded to the term “renewal”, including that it extend to practising certificates not currently held by an applicant. In the judgment it is clear that the primary Judge assumed that a broader interpretation was applicable, and that “renewal” of the practising certificate was therefore relevant to the circumstances of Mr Cooper’s 2016 application.
    
56. However a plain reading of section 44 (3) Lawyers Act suggests otherwise. In our view in 2016 Mr Cooper was not seeking renewal of a practising certificate within the meaning of section 44 (3) Lawyers Act. His application for an unrestricted practising certificate in 2016 was a fresh application, and any refusal by the Law Society to grant it would have been made pursuant to section 44 (1). That this is so is clear from the proper interpretation of section 44 (3), and the facts of the case.
    
57. Materially, section 44 (3) provides as follows:

The Council shall renew a practising certificate issued under Section 39 on its expiry in accordance with this section on application by the holder of the certificate in the form prescribed and upon payment of any fee unless the holder, at the time of application or the date of expiry of the practising certificate —

1. ...
2. having been called upon by the Council or the Lawyers Statutory Committee, has failed to give a satisfactory explanation of any matter relating to his conduct or practice as a lawyer.
   

58. Section 44 (3) requires the Council to “renew” a practising certificate issued under section 39:
    • on its expiry in accordance with section 44 and
    • on application by the holder of the practising certificate.
      
59. Section 44 (3)(b) provides a reason why the Council should not “renew” that practising certificate, namely that the “holder” of the practising certificate has failed to give a satisfactory explanation of any matter relating to his conduct or practice as a lawyer.
    
60. The plain English meaning of the word “Renewal” in the context of s 44 (3) of the Lawyers Act is clear. Renewal of a lawyer's practicing certificate is the act of validating a practicing certificate, immediately or soon upon the expiration of the original licence, by the issue of a new certificate, of the same type and on the same or similar terms as the original certificate. Renewal connotes a continuing certificate of the same type on the same or similar terms as the original certificate: see definition of "renewal" of statutory licences and English cases found in Stroud's English Dictionary of Words and Phrases, 7th Ed, Vol 3 P-Z, Sweet & Maxwell, London (2006), at pages 2354 - 2355. Also see the definition of "renewal" in the Macquarie Dictionary which includes a repetition – the concept of something happening “again”; or to make new, or as if new, again; restore to a former state; to begin again or recommence. A statutory certificate of a different type and on terms dissimilar to the original certificate applied for or sought and granted after a lengthy break or passage of time from the expiration of the original certificate cannot qualify as a "renewal".
    
61. Clearly, section 44 (3), and for that matter section 44 (3)(b), can only be relevant where an applicant already holds a practising certificate. This follows not only from the use of the word “renew”, but because section 44 (3) specifically refers to the person being the existing holder of a practising certificate. Indeed, section 44 (3) contemplates that it is the expiry of the practising certificate which triggers the obligation of the Council under section 44 (3) to renew it.
    
62. This can be contrasted with the much broader discretion of the Council to grant or refuse a practising certificate under section 44 (1) (and, potentially, section 41 (1)) Lawyers Act.
    
63. In our view, the rationale for this statutory approach is clear. The statute contemplates that the holder of an unrestricted practising certificate in Papua New Guinea has an investment in it as well as responsibilities. He or she has paid fees for their existing certificate, potentially practises as a lawyer, and may conduct a business with clients, files, Court and trust obligations, and employees. The holder of a restricted practising certificate, while not having the same responsibilities, nonetheless may have employment and a career as a lawyer in Papua New Guinea. Holders of both types of practising certificates also enjoy the benefits of membership of the Law Society. In such circumstances section 44 (3) protects the investment of the lawyer by requiring the Law Society to renew the practising certificate unless there exist those exceptional circumstances set out in section 44 (3)(b).
    
64. These dynamics are not in play where a person is not the holder of a practising certificate issued under section 39 – such a person cannot, under the Lawyers Act, be already practising as a lawyer in Papua New Guinea. His Honour expressed concerns during the hearing that a narrow interpretation of section 44 (3) could lead to the mischief whereby a person with matters outstanding with the Law Society could escape being asked difficult questions by temporarily ceasing to hold a practising certificate and, on application for a further certificate, thus avoid the effects of section 44 (3)(b) (transcript page 12). On a proper interpretation of section 44 however the Law Society would have broader discretion to consider refusal of a practising certificate to such a person, not weaker powers, because the Law Society’s consideration of the application for a practising certificate would be under section 44 (1), not section 44 (3).
    
65. It follows that a person who applies for the issue of a practising certificate where he or she does not currently hold one, can be the subject of the exercise of powers of the Law Society to either grant or refuse the application under section 44 (1), compared with the holder of a current practising certificate.
    
66. A plain English reading of section 44 (3) also suggests that it only applies to the situation where a person seeks to renew the same type of practising certificate. The section speaks of renewal of “a practising certificate” on application by the holder of “the certificate”. So, for example, a person who held a restricted practising certificate could scarcely be said to be “renewing” it if he or she sought an unrestricted practising certificate – it is a different species of practising certificate under the Lawyers Act. On this basis, it could not be said that Mr Cooper was “renewing” his practising certificate when he had previously held a restricted practising certificate but in 2016 applied for an unrestricted practising certificate.
    
67. To that extent we find that his Honour erred in determining that the decision of the Law Society to refuse Mr Cooper an unrestricted practising certificate in 2016 was based on section 44 (3)(b) Lawyers Act.

Implications of error

68. In these circumstances, what are the implications of this error on the part of the primary Judge?
69. First, section 45 Lawyers Act provides for review of decisions of the Council of the Law Society by the National Court. In particular, the provision states:

REVIEW OF COUNCIL’S DECISION.

(1) An applicant, who is refused an application for a practising certificate, may apply to the Court for–

(a) a review of the decision by the Council to refuse his application; and

(b) an order directing the Society to issue to him a practising certificate on such terms as the Court thinks fit pending the review by the Court.

(2) The Court, on an application under Subsection (1), shall review the application to the Society for a practising certificate and may–

(a) uphold the decision of the Society to refuse the application; or

(b) order that the application be granted.

(3) The National Court may, pending a review under Subsection (1)(a), grant an order under Subsection (1)(b).

(4) The Society shall comply with and give effect to an order under–

(a) Subsection (2)(b); or

(b) Subsection (3).

70. The proper interpretation of the word “may” in legislation depends on its context. As a general proposition, “may” in its natural meaning is permissive or enabling, and it lies on those who assert that there is an obligation to exercise a power conferred to show, as a matter of construction of the legislation as a whole, that this is so: Julius v. Lord Bishop of Oxford (1880) 5 App Cas 214, Ward v. Williams [1955] HCA 4; (1955) 92 CLR 496, Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 at [22]. Further, the use of the word “may” in legislation generally contemplates that the exercise of the power conferred is accompanied by a discretion on the part of the wielder: PNG Power Ltd v Gura [2014] SC1402 at [30], Ralai v Yama [2008] SC1029 at [11], Kakaraya v National Parliament [2004] SC756.

71. In Dirua v Papua New Guinea Law Society [1996] N1467 Sevua J held that section 45 (2) is couched in language appropriate to the vesting of a discretionary power in the National Court. We agree. The inclusion of the word “may” is strongly supportive of this conclusion in these circumstances. Given the discretionary nature of his Honour’s judgment, the proper approach of this Court in hearing this appeal is clear – as the Supreme Court observed in Pruaitch v Manek [2010] SC1052:

And the following passage from the decision of the High Court of Australia in House v The King [1936] 55 CLR 499 at pp 504–520 was cited with approval in Alina Sarah Bean v Ian Maxwell Bean (supra) by Kapi, J (as he then was) at pp.317-318:

"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

72. Second, and critically, the Supreme Court in Karingu v Papua New Guinea Law Society (SCA 69 of 1996, 30 October 1997) interpreted section 45 (2) Lawyers Act as follows :

We are satisfied that pursuant to s 45 (2) the Court ‘shall review the application to the Society....’ which in our view amounts to a reconsideration of the application. The Orders that the Court may make are also supportive of our view that the review envisaged is in fact a reconsideration of the application. The Orders that the Court may make are to:

(a) uphold the decision of the Society to refuse the application; or

(b) order that the application be granted.

(referred to by Kapi DCJ in Karingu v Papua New Guinea Law Society [1999] PNGLR 83 and Kandakasi J in Bongere v Papua New Guinea Law Society [2003] N2361).

73. The comments of the Supreme Court in Karingu are clearly referable to the role of the National Court in its reconsideration of decisions of the Council of the Law Society pursuant to section 45 Lawyers Act. In our view, in conducting a review under section 45 (2) Lawyers Act, the Court must properly identify not only the decision of the Council to refuse to grant the application for a relevant practising certificate, but the proper basis on which the Council made that decision.

74. Third, section 44 (1) requires the Secretary of the Law Society to submit applications for practising certificates to the Council of the Law Society, which in turn “may grant or refuse an application”. Specifically in relation to the issue of unrestricted practising certificates, section 41 (1) provides that a lawyer “may” be issued with such a certificate if he or she satisfies the criteria prescribed by that section. Both sections are drafted in such terms that the Law Society “may” act, although the primary power appears vested in the Council by section 44 (1) Lawyers Act.

75. The discretion of the Law Society to grant or refuse applications for practising certificates must be viewed through the prism of its statutory regulatory role in relation to the legal profession (see for example Papua New Guinea Law Society v Saga [2006] N3095, Karingu, Enforcement of Rights Pursuant Constitution S57 [1988-89] PNGLR 276). In particular, section 7 Lawyers Act describes the functions of the Law Society as:

(a) to promote the interest of the public and the interest of lawyers in relation to legal matters and generally to promote and uphold justice and the rule of law; and

(b) to promote and encourage proper conduct by lawyers; and

(c) to suppress illegal, dishonourable and improper and unprofessional practices and conduct by lawyers; and

(d) to preserve and maintain the integrity and status of lawyers; and

(e) to promote opportunities for the acquisition and diffusion of knowledge of the law; and

(f) to assist in the promotion, development and reform of the law and generally to advance and develop the underlying law and jurisprudence; and

(g) to provide a means for the amicable settlement of professional differences between lawyers; and

(h) such other functions as are conferred by this Act or any other law.

76. The National Court has held that the exercise of the power vested in the Council of the Law Society by section 44 (1) must be based on proper considerations, and not for example for preconceived, biased or prejudiced reasons: Sevua J in Lomai v PNG Law Society [1998] N1854 (cf Kariko J in Amaiu v Papua New Guinea Law Society [2014] N5882). However in light of the important role played by the Law Society in ensuring the highest standards of conduct of lawyers in Papua New Guinea, its discretion to refuse a practising certificate must be broad, and considered in light of its statutory functions.

Conclusion

77. Having regard to these issues, it is clear that his Honour’s review of the decision of the Law Society concerning its refusal of Mr Cooper’s application for a practising certificate was attended by an error more fundamental than those claimed by the Law Society in its notice of appeal. In his reasons for decision, the primary Judge was influenced by irrelevant considerations. Specifically, his Honour erred when he considered himself confined in his review of the Law Society’s decision by the operation of section 44 (3)(b) Lawyers Act, and the question whether Mr Cooper had provided the Law Society with a “satisfactory explanation” in answer to its questions concerning inconsistency in his application documentation over several years.

78. Extensive submissions were made by the parties concerning the meaning of “satisfactory explanation” in section 44 (3)(b) Lawyers Act, and much was made in submissions to this Court concerning the content of correspondence either supporting or rebutting the “satisfactoriness” of Mr Cooper’s communications to the Law Society. We have set out in detail many of these communications. However the discretionary power of the Law Society to refuse Mr Cooper’s application was much broader than his Honour recognised. Indeed, in applying section 44 (3)(b), his Honour approached the decision of the Law Society from the perspective of a “renewal” of a practising certificate under section 44 (3) – that is, the circumstance where the Law Society was obliged to issue a practising certificate unless the factual circumstances set out in section 44 (3)(b) existed.

79. This approach was incorrect. Mr Cooper’s application in 2016 was a fresh application for an unrestricted practising certificate, and in its consideration of his application the Law Society was entitled to have regard to broader factors referable to its functions and powers as well as standards of practice in Papua New Guinea. Those factors include the matters considered by the Council in this case with regard to the matters deposed to by Mr Cooper in his statutory declarations for previous years.

80. We have allowed the appeal on an important point of law (whether the application for practicing certificate was a renewal application) that is not expressly raised in the grounds of appeal in the notice of appeal, but one underlies the errors set out in the notice of appeal. The point was addressed by the trial judge as a threshold issue and we raised the point at the commencement of arguments. Both parties argued the point before us.

81. This Court's authority to consider and determine an appeal on a point of law that is not directly raised in the grounds of appeal in the notice of appeal is derived from the inherent power given to this Court by Section 155 (4) of the Constitution provides as follows:

Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

82. While the Court is generally sparing in its application of section 155 (4), the general words at the end of the subsection permitting the Court to make “such other orders as are necessary to do justice in the circumstances of a particular case” confer a broad discretion.

83. In Crampton v R [2000] HCA 60; (2000) 206 CLR 161, Kirby J in the High Court of Australia said with respect to appeals heard in that Court:

118. ... Whilst a case is still properly before the judiciary, the jurisdiction to prevent miscarriages of justice and fundamental errors of law should remain untrammelled by unduly protective procedural conceptions.

119. I know of no final court, with functions akin to this Court, which denies itself the right to permit enlargement of the issues before it where justice requires and convenience suggests that course. Generally speaking, the rigidities of procedural rules, that were a feature of the nineteenth century jurisprudence of the common law, were replaced in the twentieth century by a greater flexibility and by judicial impatience with rigidities that would prevent the ultimate attainment of justice according to law. So it is here.

84. Similarly in Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 Kirby J said:

143. Like the courts of South Australia, this Court is not in a position to accept an incorrect understanding of the law. It cannot accept an agreement of the parties that does not reflect the binding law of qualified privilege, moulded to the Constitution where it applies. The Constitution cannot be ignored as a result of mistakes or misunderstandings of the parties or judges in earlier proceedings. Subject to law, parties can agree between themselves as they like. But if they invoke the courts of this country they cannot expect the courts to go along unquestioningly with their erroneous understandings of the law.

85. More recently in the same Court Kirby J said in Hearn v Street [2008] HCA 36; (2008) 235 CLR 125:

29. Notwithstanding opinions to the contrary, this Court has held that it may enlarge the issues on appeal, in exceptional circumstances, beyond the controversies decided earlier. Normally, however, it is for the parties to define the ambit of their dispute. This is conventionally done by the pleadings, and by the manner in which the hearing is conducted. In respect of an appeal, the grounds of appeal contained in the notice of appeal, unless varied or departed from by agreement or conduct, define the issues for decision.

30. This Court has repeatedly said that it will not provide advisory opinions; nor will it decide theoretical questions or points no longer in real controversy. What, then, is to happen where, in an appeal, it appears to a judge of this Court that the parties have ignored an important constitutional impediment that appears to arise; have overlooked an important legal argument; have agreed to confine their submissions in an artificial, needless or erroneous way; or have made assumptions about the state of the governing law that the judge is disinclined to accept?

31. Sometimes, where a constitutional difficulty presents, the judge, giving due notice, may decline to accept a shared assumption of the parties, out of a recognition of the special duty of the Justices of this Court to uphold the Constitution, whatever the parties choose to argue in a particular case. Sometimes, where to consider such issues would inflict a procedural unfairness on a party, the judge may swallow any doubts and proceed to deal with the issues in the way in which the parties present them. Sometimes the judge will do so for the practical reason that, in the absence of submissions and effective assistance from the parties, it would be dangerous or even impossible for the judge, unaided, to embark upon a consideration of a question that is of apparent concern.

86. In Christian Youth Camps v Cobaw Community Health Services Ltd [2014] VSCA 75; (2014) 308 ALR 615 Maxwell P said:

148. Although this issue was not raised by the applicants in the grounds of appeal, and only addressed by them after the question had been raised by the court, I consider that the court has no alternative but to correct the error.

...

324. It is, of course, unusual for a court of its own motion to raise a question of law not raised by the parties, all the more so to proceed to decide the question over the opposition of a party which stands to benefit from a finding of error. But, for similar reasons to those given earlier in relation to the question of law concerning the “person” who committed the act of discrimination, I consider that this is an issue which the court should decide.

325. It is not an academic or hypothetical question. On the contrary, it was the subject of a ruling by the tribunal. It is, moreover, fundamental to the operation of the religious freedom exemptions. Finally — and decisively, in my view — it is both appropriate and necessary to correct what seems to me to be a clear error in the tribunal’s construction of the EO Act. As Redlich JA pointed out in the course of argument, to fail to do so would be to run the risk of perpetuating the error.

87. It is of concern to us that the matter is determinable on the basis we have identified rather than by reference to the grounds in the notice of appeal. However, like Courts at the highest level in other jurisdictions, it is an important aspect of the supervisory role of the Supreme Court in this country to avoid perpetuating errors in the law. To that extent while it is for the parties to define the ambit of their dispute, it is not appropriate for the Court to determine an appeal on an incorrect basis, irrespective of the pleadings before it.

88. In doing so however, there is a risk of possible injustice to the parties who have prepared their appeal on the basis of the pleadings. We are fortified in our approach in this case however by noting that:

• The issue of renewal or fresh application was raised before his Honour in the National Court, and submissions made by both parties in those proceedings;
• Submissions were made by both parties at the hearing of this appeal in response to questions from several members of the Bench on the issue whether in fact Mr Cooper sought renewal of his practising certificate or had made a fresh application; and
• Counsel for the appellant in the appeal submitted – in our view correctly – that a fresh application would have conferred wider discretion on the Law Society to refuse Mr Cooper’s application.
  

89. To that extent we are satisfied that the parties were afforded an opportunity to be heard on the issue of renewal (or otherwise) in this appeal.

90. It follows that the appeal should be allowed for reasons going to fundamental error of law from which the errors set out in the grounds of appeal in the notice of appeal arise. The primary judgment should be set aside and the matter be remitted to the National Court for reconsideration pursuant to section 45 Lawyers Act, according to law.

91. The Law Society has sought its costs, both in the National Court proceedings and in this appeal. We note, however, that despite the actual decision of the Law Society in relation to Mr Cooper’s 2016 application making no reference to section 44 (3)(b) Lawyers Act, in the National Court the counsel for the Law Society relied on section 44 (3)(b) as the basis of that decision. We note further that the primary Judge accepted as correct this contention advanced by the Law Society, rejecting submissions to the contrary put by Mr Cooper’s counsel. The case was conducted on a similar basis on appeal.

92. In the circumstances, we consider that the fair approach is that the parties bear their own costs of both the National Court proceedings and this appeal.

93. Finally, we also consider it to be in the interests of justice that Mr Cooper retains his current practising certificate pending the outcome of the remitted National Court proceedings. We note that the Law Society issued Mr Cooper a practising certificate for the 2016 and 2017 legal years solely because of orders of the primary Judge in the National Court proceedings. If the National Court considers upholds the 2016 decision of the Law Society, it is open to the Court to order that Mr Cooper’s 2017 practising certificate be cancelled. Until the decision of the Law Society is reviewed according to law however we consider it fair to maintain the status quo.

Orders

94. The Court orders that:

1. The appeal is allowed.
2. The judgment of the National Court delivered in OS114 of 2016 on 27 May 2016 is quashed.
3. The matter is remitted to the National Court for a rehearing before another Judge.
4. Pending the determination of the National Court proceedings, the 2017 unrestricted practising certificate issued to Mr David Rickey Cooper continue until further order of the National Court.
5. The parties bear their own costs of the National Court proceedings OS 114 of 2016 and of and incidental to this appeal.

_______________________________________________________________
Ashurst Lawyers: Lawyers for the Appellant
Warner Shand Lawyers: Lawyer for the Respondent