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Lomai v Papua New Guinea Law Society [1998] PGNC 152; [1998] PNGLR 380 (4 December 1998)

[1998] PNGLR 380

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PWESEI BENSON LOMAI

V

PAPUA NEW GUINEA LAW SOCIETY

WAIGANI: SEVUA J
3 September and 4 December 1998

Facts

The plaintiff was admitted to practice on 26 November 1993, and held a restricted practicing certificate from 1994 to 1996. In early 1996, the plaintiff’s application for an unrestricted practicing certificate was refused by the defendant Law Society on the basis that he had not completed two years’ legal experience.

The plaintiff made a second application later in 1996. In response, the defendant raised objections in November 1996 concerning a discrepancy in the dates contained in the plaintiff’s affidavit, and concerning his statement that he was admitted to practice as a barrister in Victoria. The plaintiff responded in June 1997, explaining the discrepancy in dates, and referring to his eligibility to practise in Victoria. Nevertheless, in November 1997 the second application was refused.

In July 1998, the plaintiff lodged a third application. When the defendant refused this in August 1998, the plaintiff then sought a court review of that decision, and an order directing the issue of an unrestricted practising certificate.

Held

1. There was no lawful justification for the defendant to refuse the plaintiff’s third application after the plaintiff had sufficiently explained the discrepancy in the dates contained in his affidavit.
   
2. The plaintiff had fulfilled the legal requirement of s 41(1)(a) of the Act; therefore there was no legal impediment to his application.
   
3. The defendant’s refusal to grant the plaintiff’s third application had no proper basis in law. The unrestricted practising certificate should therefore be issued forthwith.
   
4. As a matter of law, the successful completion of the Victorian Bar Reader’s course and admission to practise as a Barrister at the Victorian Bar are not prerequisites of s 41(1)(a) of the Lawyers Act. Therefore, questions relating to the plaintiff’s completion of the Victorian Bar Reader’s course and his admission as a barrister there were not relevant to the plaintiff’s application.
   

Papua New Guinea cases cited

Emily Paneyu Dirua v PNG Law Society, N1467 Unreported, 19th July 1996.

Rose Kekedo v Burns Philp & Ors [1988-89] PNGLR 122.

Counsel

Plaintiff in person.
W Neil, for defendant.

4 December 1998

SEVUA J. This is an application by the plaintiff for an order to review the defendant’s decision in refusing him an unrestricted practising certificate, and an order directing the defendant to issue him with an unrestricted practising certificate (UPC) pending review by the Court.

The plaintiff graduated with a Bachelor of Laws degree from the University of Papua New Guinea in March 1993, however, a copy of his law degree is not in evidence despite the fact that he alluded to annexing it to his statutory declaration of 27th July 1998. He attended the Legal Training Institute thereafter, and successfully completed the post-graduate training program leading to a Certificate of Training issued on 15th November 1993. He was admitted to practise in the National Court on 26th November 1993. He has always held a restricted practising certificate from 1994 to 1996.

On 17th January 1995; the defendant refused the plaintiff’s application for an unrestricted practising certificate on the ground that the period of legal experience did not satisfy the required term of two years. I think reference to 1995 in the defendant’s letter of 22nd January 1996, should be 1996, because the plaintiff’s statutory declaration in support is dated 10th January, 1996, and the defendant’s letter is dated 22nd January, 1996. There is no record of this application in the plaintiff’s evidence before me. It seems the plaintiff submitted another application again in the latter part of 1996.

On 29th November, 1996; the defendant wrote to the plaintiff advising that his application for a UPC was before the Council and that the Council required explanation on two matters contained in the various documents lodged by the plaintiff. Firstly, there was a discrepancy in the date the plaintiff had joined the firm of Joe Wal Lawyers. In a statutory declaration dated 10th January 1996, the plaintiff declared that he joined that firm on 16th February 1995. In a later statutory declaration dated 24th April, 1996, he said he joined that firm on 16th March, 1995. In another statutory declaration dated 29th May 1996, the plaintiff said he practised "exclusively as a lawyer with Joe Wal Lawyers since 16th February, 1995". Secondly, the defendant questioned the plaintiff’s statutory declaration of 24th April 1996, where he said he had been "admitted to practise in the Victorian Bar as a Barrister".

On 25th June 1997, the plaintiff responded to the defendant’s letter. In respect of the discrepancy in the date he joined Joe Wal Lawyers, the plaintiff said, "16th February, 1995 is the correct date not 16th March, 1995". That explanation resolved the discrepancy in respect of the date, therefore I consider that, that anomaly has been rectified and the defendant should have accepted that explanation. The defendant’s refusal to accept that explanation without any proper evidentiary basis to the contrary is not only unjustifiable, but unfair and unreasonable.

In relation to the second issue, the plaintiff said, "I had successfully and satisfactorily completed the requirements of training of barristers at the Victorian Bar in Melbourne and had signed the roll of barristers kept by the Victorian Bar. Although I do not have the certificate to practise at the Victorian Bar, I am, however, equally admitted as the other barristers who are currently practising at the Victorian Bar. Admission and practise are two separate things". My understanding of admission and practice at the Victorian Bar is that a law graduate can practise as a solicitor only. However, if he wishes to appear as counsel in Court, he must successfully complete the Bar Reader’s course and sign the roll as a barrister or counsel. In other words, the successful completion of the Bar Reader’s course is a prerequisite to practise as a barrister in Victoria.

Given the scenario, I do not see why the defendant should be concerned with the plaintiff’s participation in the Bar Reader’s course in Victoria. As a matter of law, the successful completion of the Victorian Bar Reader’s course, and even admission to practise at the Victorian Bar, are not requirements for a UPC under the Lawyers Act. So why should the defendant insist on an explanation from the plaintiff? The plaintiff is a Papua New Guinean, not an overseas applicant. I find it quite unreasonable, and disturbing, to say the least, when the defendant insisted on an explanation in respect of the plaintiff’s admission following his completion of the Victorian Bar Reader’s course. What has that course to do with the PNG Law Society? In my view, questions relating to the plaintiff’s completion of the Victorian Bar Reader’s course and his admission as a barrister at the Victorian Bar are not relevant to his application. They are not legal requirements under s 41(1)(a) of the Act, therefore irrelevant to the plaintiff’s application.

I consider that the principal issue here is whether the plaintiff has satisfied the requirement of s 41 (1) (a) (ii) of the Lawyers Act, so as to entitle him to a UPC.

The plaintiff has the onus of satisfying this requirement and he must prove that, as the holder of a restricted practising certificate, or one entitled to hold such a certificate, he has practised exclusively as a lawyer for at least two years. In considering an application for a UPC, the defendant has the right to refuse such an application. Section 41 (1) vests a discretionary power in the defendant. I held, in Emily Paneyu Dirua v Papua New Guinea Law Society, N1467, unreported judgment of 19th July, 1996, that "the refusal to issue the plaintiff’s practising certificate was within the discretionary power of the Council and in accordance with s 44(1)(a) of the Lawyers Act". However, the facts in that case differ to the present application.

The exercise of that discretion must be based on proper considerations, not on a preconceived, biased or prejudiced reason. In this controversy, I consider that the plaintiff must shoulder some of the blame. As I alluded to, he has the onus of showing that he has satisfied the requirement of s 44(1)(a)(ii) of the Act. He filed three separate statutory declarations, which bore inconsistent dates as to when he became an employed lawyer of the firm, Joe Wal Lawyers. It was his duty to state the correct date, but he gave different dates, and therefore, in my view, failed in his duty, initially.

However, the plaintiff’s letter of explanation on 25th June 1997, said that the date which he commenced work with Joe Wal Lawyers was 16th February 1995, not 16th March 1995. To my mind, that is sufficient explanation. That date was corrected at the request of the defendant. So why wasn’t the plaintiff’s application approved? In its letter of 28th November 1997; the Secretary of the defendant advised the plaintiff that the defendant was not satisfied with the plaintiff’s explanation and therefore rejected his application. No reason was given as to why the defendant was not satisfied with the plaintiff’s explanation.

On 27th July 1998, the plaintiff lodged his third application. On his statutory declaration of the same date, the plaintiff stated that he worked with Joe Wal Lawyers from 16th February, 1995 to 30th April, 1996.

On 13th August, 1998, the Council of the defendant considered the plaintiff’s application and again refused the application. The reason was that the "Council could find nothing in your previous application (dated 27th July, 1998), and the documents submitted with that application, which warranted a reversal of the decision made by the Council on 18th September, 1997; and decided that you had again failed to give a satisfactory explanation to the matters put to you in the Secretary’s letter of 29th November, 1996 ...."

The explanation required was contained in the defendant’s letter of 29th November 1996, which I have already canvassed; therefore I need not discuss it again here. Suffice it to say that the plaintiff had given an explanation of the matters required.

I must reiterate that the discrepancy in respect of the date the plaintiff joined Joe Wal Lawyers had already been explained. The correct date was 16th February 1995. The plaintiff has alluded to that. I can see no reason at all for the defendant to continue to refuse the plaintiff’s application when the discrepancy had been corrected more than once. I consider that the defendant had acted unreasonably and there was no justification at all to continue to reject the plaintiff’s application when the plaintiff had sufficiently explained the discrepancy of the dates, 16th February 1995 and 16th March 1995. If the defendant cared to carefully look at the plaintiff’s statutory declaration of 22nd July 1998, it would find that the plaintiff had practised for more than two years. A simple mathematical calculation would reveal that the plaintiff had worked for Kemaken Lawyers for 1 year 1 week 2 days; with Joe Wal Lawyers for 1 year 2 months and 2 weeks; and with Assure & Associates for 8 months. Those periods give a total of 2 years 10 months 3 weeks and 4 days. The plaintiff has therefore satisfied and fulfilled the requirement of s 41(i)(a)(ii) of the Act, and is therefore entitled, in law, to be issued with a UPC.

This Court can see no lawful justification for the defendant to refuse the plaintiff’s third application following explanation required by the defendant, which the plaintiff had provided, and which, in my view, has already resolved the so called discrepancy, (which the defendant had used as the basis for refusing the plaintiff’s first two applications). The plaintiff has met the legal requirement set out in s 41 (1) (a) (ii) of the Act. Therefore there was no legal impediment to his third application. There is no other requirement in s 41 which the plaintiff needs to satisfy; therefore the defendant’s continuous refusal to grant a UPC to the plaintiff has no proper basis in law. Had the issue of judicial review been argued fully and satisfactorily, the Court would have no hesitation in granting a review or quashing the defendant’s decision under the Wednesbury principle (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223; [1947] 2 All ER 650, per Lord Green M.R.).

Reference to the Wednesbury principle brings me to the final issue I wish to raise here. Section 45 of the Act grants a right to an unsuccessful applicant to do two things. Firstly, to seek a review of the council’s decision, and secondly, to seek an order directing the Society to issue a certificate on terms, pending the review.

This application is brought by way of an ordinary originating summons, not by the procedures prescribed by Order 16 of the National Court Rules dealing with application for judicial review. I am aware that in Dirua’s case (supra) Mr Garo did raise this issue, however, it was not fully argued before me, therefore I did not consider the question of the appropriate procedure. I am also aware that Hinchliffe, J did deal with the application of J.B. Nanei in 1991 (OS 285/90) by way of an ordinary originating summons.

In the present application, the question of proper procedures did not arise. However, I note that counsel for the defendant had referred to the decision in Rose Kekedo v Burns Philp & Ors [1988-89] PNGLR 122, a case dealing with judicial review. The defendant has not opposed the application on the basis of improper procedure, so I do not wish to consider it here. Since the issue has not been raised and fully argued by the defendant, I consider that the defendant has consented to this matter proceeding as an application for a review by way of ordinary originating summons. Accordingly, I am of the view that the application should be granted on the basis that there is an error on the face of the record, and secondly, on the basis of the Wednesbury principle.

For these reasons, I quash the decision of the defendant given on 13th August 1998, and communicated to the plaintiff on 17th August 1998. I order that the defendant issue to the plaintiff, an unrestricted practising certificate, pursuant to s 45(2) of the Act, for the balance of 1998. In view of the fact that this year is almost up, I direct that the defendant, upon application by the plaintiff, issue an unrestricted practising certificate to the plaintiff for the period, 1st January to 31st December 1999.

I order the defendant to pay the plaintiff’s filing fees and any other fees or expenses in the production of the plaintiff’s Court documents. This order does not include professional fees.

Lawyer for plaintiffs: Plaintiff in person.
Lawyer for defendants: Blake Dawson Waldron.