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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
LA NO 123 OF 2015
IN THE MATTER OF AN APPLICATION
FOR ADMISSION TO PRACTISE AS A LAWYER
PHILIP RICHARD WHITEHEAD
Applicant
V
PAPUA NEW GUINEA LAW SOCIETY
Respondent
Waigani: Cannings J
2015: 6, 12 November
APPLICATION FOR ADMISSION TO PRACTISE AS A LAWYER – Lawyers Act 1986, Part III (admission to practise, Sections 25A to 34 – Lawyers Admission Rules 1990 – whether the application, made by notice of motion, was compliant with the Rules – whether the applicant possesses required academic qualifications – whether the applicant had adequately disclosed criminal convictions.
Facts
The applicant is a non-citizen who is admitted to practise as a lawyer in Queensland, Australia. He applied by notice of motion for admission to practise as a lawyer in Papua New Guinea. The PNG Law Society opposed the application on four grounds: (1) failure to support the notice of motion with an affidavit by the applicant, setting out the matters required by Section 2 of the Lawyers Admission Rules 1990; (2) failure to provide evidence of academic qualifications as required by Section 25 of the Lawyers Act 1986; (3) failure to publish and serve the application in accordance with Section 27 of the Lawyers Act; and (4) failure to prove under Section 25(1) of the Lawyers Act that he is a fit and proper person to be admitted to practise as a lawyer, due to his failure to clearly state whether he has any criminal convictions, as required by Section 2(2)(d) of the Lawyers Admission Rules.
Held:
(1) The applicant's supporting affidavit was non-compliant with Section 2 of the Lawyers Admission Rules in that it did not set out brief details of the applicant's schooling or details of his academic qualifications and did not contain a clear statement as to whether he had any criminal convictions. Ground 1 of the objection was upheld.
(2) The applicant failed to provide details or evidence of his academic qualifications; and therefore failed to satisfy the Court that he had the qualifications required by Sections 25(1) and 25(2) of the Lawyers Act and Section 1(1) of the Lawyers Admission Rules. Ground 2 of the objection was upheld.
(3) The applicant complied with the publication and service requirements of Section 27 of the Lawyers Act. Ground 3 of the objection was dismissed.
(4) The applicant failed to satisfy the Court that he is a fit and proper person to be admitted to practise as a lawyer, that being one of the three essential requirements prescribed by Section 25(1) of the Lawyers Act. Ground 3 of the objection was upheld.
(5) Thus, three requirements for admission to practise were not complied with. The Court considered whether it should waive those requirements under Section 28 of the Lawyers Act but decided that it would not as there had not been substantial compliance (Law Society v Martin Dennis McEniery [1993] PNGLR 76).
(6) The application was refused. The parties were ordered to bear their own costs due to the Law Society's failure to give proper notice of the grounds of objection.
Cases cited
The following cases are cited in the judgment:
Application by Egerton MacPherson Robb [1995] PNGLR 462
Application by Joyce Sylvia Kunjip for Admission as a Lawyer [1997] PNGLR 284
Application by Peter Norman Moore [1993] PNGLR 470
Application of Tiffany Twivey (1997) N1500
In the matter of an application by Godwin Haumu for Admission as a Lawyer (2001) N2094
In the matter of an application by Roger Gill Maguire for Admission as a Lawyer (2003) N2466
Law Society v Martin Dennis McEniery [1993] PNGLR 76
APPLICATION
This was an application for admission to practise as a lawyer in Papua New Guinea.
Counsel
P Amaiu, for the Applicant
M Pokia, for the Respondent
12th November, 2015
1. CANNINGS J: Philip Richard Whitehead applies for admission to practise as a lawyer in Papua New Guinea pursuant to Section 26 of the Lawyers Act 1986.
2. The applicant is an Australian citizen. He presently practises as a solicitor at Gold Coast in the State of Queensland, Australia, where he runs his own practice. He has practised as a solicitor for a continuous period of 36 years. He wishes to also practise law in PNG. He proposes to work with the firm of Western Pacific Legal Services in Port Moresby. He states that he has extensive practical experience in many fields of law. He believes that his mediation and negotiation skills would be of great benefit to the legal profession in PNG.
2. The application is made by notice of motion, that being the originating process prescribed by Section 2 of the Lawyers Admission Rules. It is supported by two affidavits, one by the applicant and the other by Paul Amaiu of Western Pacific Legal Services.
APPLICATION OPPOSED
3. The PNG Law Society opposes the application and raises four grounds of objection:
(1) failure to support the notice of motion with an affidavit by the applicant, setting out the matters required by Section 2 of the Lawyers Admission Rules 1990;
(2) failure to provide evidence of academic qualifications as required by Section 25 of the Lawyers Act 1986;
(3) failure to publish and serve the application in accordance with Section 27 of the Lawyers Act; and
(4) failure to prove under Section 25(1) of the Lawyers Act that he is a fit and proper person to be admitted to practise as a lawyer, due to his failure to clearly state whether he has any criminal convictions, as required by Section 2(2)(d) of the Lawyers Admission Rules.
4. I will confine my attention to whether any of the grounds of objection have merit as the Law Society appears to concede that the application is otherwise compliant with the requirements of the Lawyers Act and the Lawyers Admission Rules.
GROUND 1: FAILURE TO SUPPORT THE MOTION WITH AN AFFIDAVIT BY THE APPLICANT, SETTING OUT THE REQUIRED MATTERS
5. Mr Pokia, for the Law Society, submits that the application is defective as it fails to meet the requirements of Rule 2 of the Lawyers Admission Rules, which states:
(1) An application for admission to practise as a lawyer shall be made by notice of motion supported by an affidavit from the applicant.
(2) An affidavit referred to in Subsection (1) shall set out the following matters:
- brief details of the applicant's schooling;
- details of the applicant's work experience;
- details of the applicant's academic qualifications as required by Section 25 of the Act and the original or a Photostat copy of any degree, diploma or certificate shall be annexed, or exhibited, to the affidavit;
- whether the applicant has any criminal convictions, and, if so, details of those convictions.
(3) In the case of an applicant from an overseas country prescribed in Section 1(3) [Australia, New Zealand and United Kingdom of Great Britain and Northern Ireland], the applicant shall submit a certificate from the appropriate professional body of the country (or countries) where he has practised for three years immediately prior to his application, that he has not been struck off, and that no disciplinary proceedings are pending against him, in that country.
(4) The fee payable for admission is K150.00.
6. Mr Pokia submits that, though some of the above matters might be in Mr Amaiu's affidavit, all matters are required to be set out in the applicant's affidavit, and not all of them are. I uphold that submission. There are three matters that are not set out in the applicant's affidavit.
7. First, brief details of the applicant's schooling, required by Section 2(2)(a) of the Lawyers Admission Rules. I take the word "schooling" to mean primary and secondary education, "brief details" of which would require the applicant to state where and when he did his primary and secondary education. No such details appear in the applicant's affidavit.
8. Secondly, details of the applicant's academic qualifications, required by Sections 25(1) and 25(2) of the Lawyers Act and Sections 1(1) and 2(2)(c) of the Lawyers Admission Rules, and the original or a photostat copy of any degree, diploma or certificate, required by Section 2(2)(c) of the Lawyers Admission Rules.
9. The required academic qualifications are (due to the combined effect of Section 25(2) of the Lawyers Act and Section 1(1) of the Lawyers Admission Rules):
10. The applicant does not set out that he has either category of academic qualifications. Nor does he annex or exhibit to his affidavit the original or a photostat copy of any degree, diploma or certificate attesting to his academic qualifications.
11. The applicant annexes to his affidavit a copy of his certificate of admission, on 30 January 1979, to practise as a Solicitor of the Supreme Court of Queensland. There is, in a certificate of fitness by Craig William Smiley, General Manager, Professional Standards, Queensland Law Society, dated 28 October 2015, a statement that prior to being admitted as a lawyer in Queensland, the applicant "completed Articles". However, neither of these documents is sufficient evidence of the applicant's academic qualifications.
12. Thirdly, a clear statement as to whether the applicant has any criminal convictions, required by Section 2(2)(d) of the Lawyers Admission Rules. In my view the applicant must make a clear and unequivocal statement that:
13. At paragraph 8 of his supporting affidavit, the applicant makes the following statement as to criminal convictions:
In reference to paragraph 8 of Mr Vasta's reference [a character reference by Antonio Vasta QC, annexed to the applicant's affidavit] I had received an accumulation of demerit points driving from the Gold Coast to Brisbane District and Supreme Courts and I [sought] and obtained a special driver's licence for a period of 3 months. I have no criminal convictions in the State of Queensland or any other State in Australia.
14. I agree with Mr Pokia's submission that it can be inferred from this statement and the contents of Mr Vasta's reference that the applicant has committed a number of offences, sufficient in severity, for a court, presumably in Queensland, to be called upon to determine whether the applicant should be disqualified from driving. That being the case, he should have disclosed those offences. It is arguable that a conviction for a traffic offence such as speeding is not a 'criminal conviction' for the purposes of Section 2(2)(d) of the Lawyers Admission Rules. However, I uphold Mr Pokia's submission that "criminal convictions" ought to be interpreted broadly so as to include traffic offences and that in this case the applicant should have disclosed the details.
15. There is another unsatisfactory aspect of the applicant's statement. He states that he has no criminal convictions in Queensland or any other State in Australia. This begs too many questions. What about the Territories of Australia? Does he have any criminal convictions in the Australian Capital Territory? Northern Territory? Norfolk Island? Any other Territory of Australia? Does he have any criminal convictions in any country other than Australia? USA? New Zealand? Papua New Guinea?
16. The applicant's failure to give details of convictions for traffic offences, combined with his equivocal statement as to lack of criminal convictions in jurisdictions other than the States of Australia, mean that he has failed to make a clear and unequivocal statement as to whether he has any criminal convictions. He has failed to comply with Section 2(2)(d) of the Lawyers Admission Rules.
17. Ground 1 of the objection is upheld.
GROUND 2: FAILURE TO PROVIDE EVIDENCE OF ACADEMIC QUALIFICATIONS
18. This is a similar objection to the second part of the first objection but I uphold Mr Pokia's submission that it should be considered separately. Whereas the first objection concerned the form of the application (failure to support the application with an affidavit by the applicant that complied with the Lawyers Admission Rules) this is an objection based on its substance. The argument is that the applicant has failed to comply with the substantive requirement that he satisfy the Court that he has the required academic qualifications. This requirement arises from Section 25(1) of the Lawyers Act, which states:
An applicant for admission to practise shall satisfy the Court that he possesses the required academic and practice qualifications and that he is a fit and proper person to be admitted as a lawyer.
19. As explained above, the required academic qualifications are:
20. There is no direct evidence of the applicant's academic qualifications in his supporting affidavit. It might be inferred that because the applicant has been admitted to practise in Queensland for 36 years he must have a law degree or other qualification equivalent in standard and content to a law degree from the University of Papua New Guinea. However, that is not the only reasonable inference. It appears he has "completed Articles", but what does that mean? Does that meet the PNG requirements? This was such an easy thing to prove, the natural question to ask is why was the evidence not put to the Court? What good reason is there for not providing evidence of the required academic qualifications? I cannot think of any. Oversight or neglect is not a good reason. I am not satisfied the applicant has the required academic qualifications. Ground 2 of the objection is upheld.
GROUND 3: FAILURE TO PUBLISH AND SERVE THE APPLICATION
21. Mr Pokia submits that the applicant failed to comply with Section 27 (publication and service of application) of the Lawyers Act, which states:
.
An applicant for admission to practise as a lawyer shall—
(a) not less than 14 days prior to the date of his application under Section 26, publish in a newspaper circulating throughout Papua New Guinea, notice of his intention to apply for admission to practise as a lawyer; and
(b) as soon as possible after making his application under Section 26 serve on the Secretary a copy of the application and of the evidence lodged therewith.
22. I reject the submission. The applicant has proven that he published notice of his intention to apply for admission to practise as a lawyer in The National newspaper on 30 September 2015, five weeks before the date of hearing his application. He made the application by filing the notice of motion on 15 September 2015. He served the application on the Secretary of the Law Society on 2 October 2015. I have no evidence that that was not, in the circumstances of this case, as soon as possible after the making of the application. I regard both the publication and service requirements of Section 27 as having been met. Ground 3 of the objection is dismissed.
GROUND 4: FAILURE TO PROVE THAT THE APPLICANT IS A FIT AND PROPER PERSON TO BE ADMITTED TO PRACTISE
23. Mr Pokia submits that the applicant has not met the fit and proper person requirement imposed by Sections 25(1) and 25(3)(d) of
the Lawyers Act.
24. Section 25(1) states:
An applicant for admission to practise shall satisfy the Court that he possesses the required academic and practice qualifications and that he is a fit and proper person to be admitted as a lawyer.
25. Section 25(3)(d) states:
The required practice qualifications referred to in Subsection (1) are ... a certificate signed by the Attorney-General that the applicant is a fit and proper person to be admitted to practice in Papua New Guinea.
26. Presentation of the Attorney-General's certificate under Section 25(3)(d) is necessary, but not sufficient, precondition to the Court being satisfied that the applicant is a fit and proper person to be admitted as a lawyer (In the matter of an application by Roger Gill Maguire for Admission as a Lawyer (2003) N2466). Without the certificate, the Court cannot be satisfied that the applicant is a fit and proper person. If a certificate is presented it is something the Court must take into account in deciding whether the applicant is a fit and proper person, and it is a weighty consideration.
27. However, a certificate is not conclusive evidence that the applicant is a fit and proper person. There might be other relevant considerations (such as the opinion of the Law Society) that have the effect, notwithstanding a certificate by the Attorney-General, that the Court is not satisfied that the applicant is a fit and proper person to be admitted as a lawyer (In the matter of an application by Godwin Haumu for Admission as a Lawyer (2001) N2094).
28. Mr Pokia submits that the fact that the applicant has committed a number of offences that has evidently led to him losing his driver's licence and that he has not disclosed their nature and extent, makes it unsafe to conclude that he is a fit and proper person to be admitted as a lawyer.
29. Before dealing with that submission, I note that there is evidence before the Court which, on the face of it, supports the proposition that the applicant is a fit and proper person to be admitted as a lawyer. In particular:
30. I nonetheless find merit in Mr Pokia's submission that some doubt exists as to whether the applicant meets the fit and proper person requirement. A closer examination of the evidence before the Court does not remove the doubt. I note the following:
First, as explained earlier, the applicant has not made a clear and unequivocal statement whether he has any criminal convictions.
Secondly, the Attorney-General's certificate is not adequate. It does not meet the requirements of Section 25(3)(d) of the Lawyers Act which are that (i) the certificate is current, in that it must be given a short time before the application is made, and (ii) it must be given by the current Attorney-General: the person holding office as Attorney-General at the time of filing of the application. In this case the certificate predates the filing of the application by one year and nine months. It is stale. It is by a former Attorney-General. I take judicial notice of the fact that on the date of filing the application, 15 September 2015, the Attorney-General was Honourable Ano Pala CMG MP. Mr Pala should have issued the required certificate.
Thirdly, Mr Vasta's reference, which appears, though it is undated, to have been prepared at some time in early 2011, is outdated. It does not state that the applicant is a fit and proper person to practise as a lawyer. It concludes "I consider that he is a fit and proper person to hold a driver's licence".
Fourthly, Mr Griffin's letter is outdated. It was two years and three months old at the time of filing the application. It is not a character reference. It is not addressed to the Court. It is a copy of a letter of introduction from Mr Griffin to the Honourable Labi Amaiu MP, Vice-Minister for Sports and Pacific Games, in which Mr Griffin makes general statements such as he has known the applicant for several years and found him to be an enthusiastic lawyer who has extensive skills in both commercial and criminal law. As is the case with Mr Vasta's reference it is an irrelevant document of little evidentiary value.
31. For the above reasons I am not satisfied that the applicant is a fit and proper person to be admitted to practise as a lawyer in Papua New Guinea. Ground 4 of the objection is upheld.
SHOULD THE APPLICATION BE GRANTED?
32. Three requirements for admission to practise as a lawyer have not been met:
33. The question now arises whether I should waive any of those requirements under Section 28(2) of the Lawyers Act, which states:
In considering an application for admission to practise as a lawyer, the Court may waive all or any of the requirements of Section 25.
34. I take account of two matters at this point. First it is doubtful whether Section 28(2) allows me to waive the requirement that an application comply with Rule 2 of the Lawyers Admission Rules, as that is not one of the requirements of Section 25. However, I will presume, for present purposes, that it is a requirement emanating from Section 25 and that it can be waived under Section 28(2).
35. Secondly, in Law Society v Martin Dennis McEniery [1993] PNGLR 76 the Supreme Court held that the power of waiver should only be exercised where there is substantial compliance with a requirement. This principle has been applied consistently by the National Court (Application by Peter Norman Moore [1993] PNGLR 470, Application by Egerton MacPherson Robb [1995] PNGLR 462, Application by Joyce Sylvia Kunjip for Admission as a Lawyer [1997] PNGLR 284, Application of Tiffany Twivey (1997) N1500). I am not satisfied that there is substantial compliance with any of the three requirements, so I decline to waive any of the three requirements.
36. I now refer to the provision of the Lawyers Act which allows the Court to grant or refuse an application for admission to practise as a lawyer. Section 28(1) states:
The Court may, at any sitting, on motion, admit an applicant to practise as a lawyer if that applicant shows to the satisfaction of the Court that he possesses the required qualifications.
37. For the purposes of Section 28(1) the applicant has not shown to the satisfaction of the Court that he possesses the required qualifications. The application must be refused.
COSTS
38. I will allow the parties to bear their own costs due to the Law Society's failure to give due notice of its opposition to the application and to the grounds of objection. I gave the applicant the opportunity to adjourn the hearing of the application so that he might better prepare a response to the grounds of objection but he elected to proceed.
ORDER
(1) The application for admission to practise as a lawyer in Papua New Guinea, made by notice of motion filed on 15 September 2015, is refused.
(2) The parties shall bear their own costs of the proceedings.
(3) The file is closed.
Judgment accordingly.
___________________________________________________________
Western Pacific Legal Services: Lawyer for the Applicant
Mirupasi Lawyers: Lawyers for the Respondent
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URL: http://www.paclii.org/pg/cases/PGNC/2015/217.html