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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO 228 OF 2009
CANISIUS KARINGU
Plaintiff
V
PAPUA NEW GUINEA LAW SOCIETY
Defendant
Waigani: Cannings J
2009: 12, 17, 19 June
PRACTICE AND PROCEDURE – motion to dismiss proceedings for failure to disclose reasonable cause of action, being an abuse of process – National Court Rules, Order 12, Rule 40(1).
LAWYERS – application for order directing Law Society to issue practising certificate pending review of decision of Council of Law Society – Lawyers Act, Sections 45(3) and (1)(b).
The plaintiff applied to the National Court under Section 45(1) of the Lawyers Act for review of the decision of the Council of the Law Society to refuse his application for a practising certificate. While that review was pending two motions were filed. One by the Law Society under Order 12, Rule 40(1) of the National Court Rules seeking dismissal of the review for failure to disclose a reasonable cause of action and being an abuse of process. The other by the plaintiff under Sections 45(3) and (1) (b) of the Lawyers Act seeking an order, pending the review, directing the Law Society to issue him a practising certificate.
Held:
(1) As to the defendant’s motion: a reasonable cause of action has been disclosed and no abuse of process has been proven. The motion for dismissal was consequently refused.
(2) As to the plaintiff’s motion, an arguable case in support of the application was made out but the balance of convenience and the interests of justice do not warrant the granting of the interim relief sought.
(3) Both motions were dismissed, with the parties bearing their own costs.
Cases cited
The following cases are cited in the judgment:
Application by Karingu (2006) N3098
Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878
Karingu v Papua New Guinea Law Society OS 162 of 1996, 23.04.99
Karingu v Papua New Guinea Law Society SCA 69 of 1996, 30.10.97
Saga v Kua and Papua New Guinea Law Society SCA 127 of 2005, 29.08.08
Telikom PNG Ltd & ICCC v Digicel (PNG) Ltd (2008) SC906
Thompson v Karingu (2008) SC954
Toby Bonggere v Papua New Guinea Law Society (2003) N2361
Counsel
C Karingu, the plaintiff, in person
D Wood, for the defendant
19 June, 2009
1. CANNINGS J: The plaintiff, Canisius Karingu, applied to the defendant, the Papua New Guinea Law Society, for an unrestricted practising certificate. His application was refused on 16 April 2009.
2. On 1 May 2009, he applied to the National Court for a review under Section 45(1) of the Lawyers Act of the decision of the Council of the Law Society to refuse his application. He did that by filing an originating summons. The substantive review, which is the subject of the originating summons, has not yet been heard.
SECTION 45 OF THE LAWYERS ACT
3. Section 45 (review of Council’s decision) states:
(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).
TWO MOTIONS
4. While the review under Section 45(1) is pending, the parties have filed two motions.
5. On the one hand, Mr Karingu moves the court for an order directing the Law Society to issue him a practising certificate, pending the review. That order is sought under Sections 45(3) and (1) (b) of the Lawyers Act. The amended notice of motion to be ruled on was filed on 11 May 2009.
6. On the other hand, the Law Society moves the court for an order that the proceedings be struck out and dismissed. That order is sought under Order 8, Rule 27(1) and Order 12, Rule 40(1) of the National Court Rules. The relevant notice of motion was filed on 11 June 2009.
7. I will deal with the motions in reverse order, so the issues are:
1 SHOULD THE PROCEEDINGS BE STRUCK OUT OR DISMISSED?
8. The proceedings cannot be struck out under Order 8, Rule 27(1) as that rule, being in Division 8.1 of the National Court Rules, only applies to proceedings commenced by writ of summons.
9. The proceedings can, however, be dismissed under Order 12, Rule 40(1) as that rule applies to proceedings commenced by originating summons.
10. Order 12, Rule 40(1) (frivolity etc) states:
Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—
(a) no reasonable cause of action is disclosed; or
(b) the proceedings are frivolous or vexatious; or
(c) the proceedings are an abuse of the process of the Court,
the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.
11. The Law Society relies on Rules 40(1) (a) and 40(1) (c). They say that the originating summons (which was amended on 11 May 2009):
No reasonable cause of action
12. Mr Wood submits that a review under Section 45(1) is not a judicial review under Order 16 of the National Court Rules. It is properly regarded as an appeal. Therefore Mr Karingu was obliged to follow the Appeal Rules 2005. He had to commence the proceedings by a notice of appeal, which should have set out the grounds of relief. He did not do that. He simply filed an originating summons, which set out the relief that he was seeking but not any grounds on which he was seeking relief. He has failed to comply with the Rules and as a consequence his originating summons fails to disclose any reasonable cause of action.
13. I agree with Mr Wood’s first proposition: an application for review of the refusal to issue a practising certificate is not an Order 16 judicial review. It is more akin to an appeal (Karingu v Papua New Guinea Law Society SCA 69 of 1996, 30.10.97; Saga v Kua and Papua New Guinea Law Society SCA 127 of 2005, 29.08.08; Toby Bonggere v Papua New Guinea Law Society (2003) N2361).
14. However, it does not follow from that, necessarily, that the Appeals Rules 2005 applied. The Lawyers Act draws a distinction between appeals and reviews, e.g. Section 58 confers a right of appeal against a decision of the Lawyers Statutory Committee. The fact that different terminology is used creates a presumption that there is a difference in form and procedure between a review and an appeal; and this gives rise to doubt whether it is necessary to make an application for review under Section 45 under the Appeals Rules, using a notice of appeal.
15. It was sufficient for Mr. Karingu to make his application using an originating summons. He complied with Order 4, Rule 3 of the National Court Rules. The originating summons was in a proper form and though perhaps desirable it was not necessary for him to set out the grounds on which he was seeking relief. There was no failure to disclose a reasonable cause of action. So I reject the first argument.
Abuse of process
16. The Law Society argues that the application under Section 45 is an abuse of process in two respects:
Previous National Court order
17. The order in question was made by Kandakasi J on 3 August 2006 in OS 392 of 2006:
The plaintiff [Mr Karingu] shall bring no further proceedings for a practising certificate to be issued to him pending the determination of CIA No 291 of 2002, CIA No 292 of 2003 and OS No 358 of 2004.
18. OS 358 of 2004 has already been determined but the other two proceedings have not. They are appeals by Mr Karingu against the decisions of the Lawyers Statutory Committee in May 2002 ordering that his name be removed from the Roll of Lawyers. No order has been made setting aside, quashing or staying Kandakasi J’s order. On the face of the order it seems to prohibit the application under Section 45 that is the subject of the present originating summons. However, there has been a significant development since then. On 24 April 2007, in proceedings commenced by the Lawyers Statutory Committee, Los J ordered that Mr Karingu be issued with a practising certificate and that he be allowed to practise as a lawyer (Thompson v Karingu, OS 798 of 2006, 24.04.07).
19. Mr Karingu submits that Los J’s order, being later in time than Kandakasi J’s order, qualifies Kandakasi J’s order. He says that the Law Society has failed to comply with Los J’s order. They appealed against it but their appeal was dismissed in November 2008 by the Supreme Court in Thompson v Karingu (2008) SC954 so they are obliged to comply with it. All he is doing by seeking review under Section 45(1) is seeking to enforce Justice Los’ order.
20. I find merit in this reasoning. Kandakasi J’s order must be interpreted and applied in the light of Los J’s order. They are both orders of the National Court and should be interpreted in so far as is practicable that they are both enforced. In the event of inconsistency between them, the later in time should prevail. I find that Mr Karingu’s Section 45(1) application, as it has been occasioned by an ostensible or at least arguable failure to comply with Los J’s order, does not contravene Kandakasi J’s order. Therefore there is no abuse of process in the manner contended for by the Law Society.
21. I add that if I had concluded that there was an abuse of process I would still not have been inclined to dismiss the proceedings. The decision to dismiss is an exercise of discretion. It is conceivable that, having found an abuse of process, the court may exercise its discretion not to dismiss the proceedings (Telikom PNG Ltd & ICCC v Digicel (PNG) Ltd (2008) SC906, para 113). Here, if I had found that there were an abuse of process, it would have been what might be termed a technical abuse – not a sufficiently serious abuse (in light of the uncertainty created by Los J’s order) to warrant dismissal of the entire proceedings.
Section 41(1) Lawyers Act
22. The other abuse of process argument is based on Section 41(1) of the Lawyers Act. This is the provision that sets out the requirements a lawyer must satisfy in order to be issued with an unrestricted practising certificate. When Mr Karingu recently applied for (and was refused) an unrestricted practising certificate he stated that he had practised as a lawyer for at least two out of the last five years and that he was experienced in the practice of the law. He pointed out that he had been litigating his own cases in both the National Court and the Supreme Court.
23. Mr Wood submits that Mr Karingu is not admitted as a lawyer and has not practised as a lawyer for the last 15 years and in no way satisfies the requirements of Section 41(1).
24. He also points out that in OS 162 of 1996, Karingu v PNG Law Society, decided by Kapi DCJ on 23 April 1999, a similar application under Section 45(1) was refused. The National Court was satisfied that the Law Society had reasonably refused to issue a practising certificate due to Mr Karingu failing to submit an audited trust account of the partnership he was in with Mr Sawi Sitapai. That irregularity has still not been cured and that was one of the reasons the Law Society gave for its decision to refuse to issue an unrestricted practising certificate.
25. As to the order of Los J this only applied to the Lawyers Statutory Committee, which is a separate entity to the Law Society (Application by Karingu (2006) N3098). Therefore the Law Society is not bound by it.
26. As a consequence, Mr Karingu has no prospects of success with his Section 45(1) application and it is an abuse of process.
27. I reject this argument as it is based too much on a consideration of the merits of the Section 45(1) application and I do not consider that the merits of the application for review are swaying so much in favour of the Law Society that the application is bound to fail.
28. On the contrary it is arguable that Mr Karingu is a lawyer. His name is still on the Roll. He has been admitted to practice and as long as he remains on the Roll, he is a lawyer. It is arguable that he has been practising as a lawyer by virtue of being a prolific litigant. It is arguable that he has taken reasonable steps to obtain an audited trust account and that his failure to obtain the audit should not be held against him. It is also arguable that the Law Society is bound to comply with Los J’s order even though it was not party to the proceedings under which the order was made.
29. Clearly there is no abuse of process in the manner contended for by the Law Society.
Conclusion re Law Society’s motion
30. I refuse to make the orders sought for dismissal of the proceedings.
2 SHOULD THE COURT MAKE AN ORDER DIRECTING THE LAW SOCIETY TO ISSUE MR KARINGU A PRACTISING CERTIFICATE PENDING THE REVIEW?
31. In the absence of express criteria in the Act to guide the court on how to exercise the discretion whether to grant an order under Sections 45(3) and (1)(b), I think it would be useful to apply the considerations the court takes into account when it is deciding whether to make an interim order or injunction pending a trial.
32. Transposing those principles to the present scenario, it is incumbent on an applicant seeking an order under Sections 45(3) and (1)(b) of the Lawyers Act to show that:
33. The principles can conveniently be applied by posing three questions. They are drafted so that a ‘yes’ answer will be a factor weighing in favour of granting a stay. A ‘no’ will work against granting a stay.
(1) Are there serious questions to be tried and does the plaintiff have an arguable case?
34. Yes. As I have just explained there are a number of arguable issues.
(2) Does the balance of convenience favour the granting of an order?
35. As I said in Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878 this requires the court to ask: what is the best thing to do on an interim basis taking into account the conflicting interests? What will happen if an order is not granted – if Mr Karingu is not granted a practising certificate? What will happen if an order is made – if Mr Karingu is issued a practising certificate?
36. If Mr Karingu is not issued a practising certificate, he will continue to be unable to practise as a lawyer (other than representing himself) which has been the situation for the past 15 years.
37. If he is issued a practising certificate, he will be able to practise as a lawyer – but not with any level of confidence I suggest, as he would face the prospect of his review under Section 45(1) not being successful. This would create great uncertainty and not be in the best interest of his clients.
38. I tend to think that though there may be exceptional cases an order under Sections 45(3) and (1)(b) will generally only be efficacious where a lawyer has been practising continuously for some years and then for some reason has an application for a practising certificate refused; in which case it would be useful to make an order to grant an ‘interim’ certificate pending the substantive review.
39. But here, where it is a long time since the applicant last held a practising certificate I do not think it serves much purpose to make an order under Sections 45(3) and (1)(b).
40. The balance of convenience does not favour making an order.
(3) Do the interests of justice require that there be an order?
41. I do not see any injustice to the applicant by allowing the present situation to continue. He will have his day in court. There is plenty to argue about. The order of Los J and the dismissal of the appeal against that order seem on the face of it to enhance the prospects of a successful review of the decision of the Council.
42. The interests of justice do not require that an order be made.
Conclusion re Mr Karingu’s motion
43. Only one of the three considerations favours the granting of an order. Therefore I refuse to make an order under Sections 45(3) and (1)(b).
ORDER
__________________________________________
Lawyers for the plaintiff: The Plaintiff in Person
Blake Dawson: Lawyers for the Defendant
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