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Yatu, In re [2017] PGNC 339; N7042 (20 March 2017)

N7042


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


LA NO.89 OF 2017


BETWEEN


IN THE MATTER OF THE LAWYERS ACT


AND:
IN THE MATTER OF THE LAWYERS ADMISSION RULES


AND:
IN THE MATTER OF AN APPLICATION
FOR ADMISSION TO PRACTICE AS A LAWYER


YALA SEM YATU
Applicant


Waigani: David, J
2017: 9 & 20 March


LAWYERS ADMISSION – application for admission to practice as a lawyer – applicant, a Legal Training Institute trainee – applicant former Director of Papua New Guinea Institute of Public Administration– application opposed by Papua New Guinea Law Society – complaint lodged by Chairman of Papua New Guinea Institute of Public Administration Governing Council concerning legal costs associated with previous civil proceedings instituted by the applicant against Papua New Guinea Institute of Public Administration – complaint lodged with Papua New Guinea Law Society and Attorney General and Minister for Justice – letter from Office of Secretary of Department of Justice to Director of Legal Training Institute requesting return of original certificate of “fit and proper person” issued by Attorney General - Justice Papua New Guinea Institute of Public Administration to avail itself of processes under the National Court Rules and District Courts Act to pursue costs against the applicant - requirements for admission - objection without merit – applicant admitted to practice – Constitution, Sections 9, 37 - Lawyers Act, Sections 25, 26, 27 and 28, 29 – Lawyers Admission Rules, Rule 2 – Attorney General Act, Section 5 - National Court Rules, Order 22 – District Courts Act, Part XIII (Costs) – District Courts Regulation, Section 48 and Schedule 4.


Cases cited:


In the matter of an Application by Peter Norman Moore [1993] PNGLR 470
Re Application by Godwin Haumu for Admission as a Lawyer (2001) N2094


Counsel:


David Lambu and Phillip Feareka, for the Applicant
Clayton Joseph ,for Papua New Guinea Law Society


RULING

20th March, 2017


  1. DAVID, J: This is a ruling on an application by Yala Sem Yatu for admission to practice as a lawyer in Papua New Guinea pursuant to Part III of the Lawyers Act 1986 and the Lawyers Admission Rules 1990 more particularly under Sections 26 and 28 of the Lawyers Act and Rule 2 of the Lawyers Admission Rules.
  2. The application is made by notice of motion filed on 16 February 2017, that being the originating process prescribed by Section 2 of the Lawyers Admission Rules. It is supported by three affidavits and they are of:
  3. Papua New Guinea Law Society (the Law Society) opposes the application. It is permitted to do so by virtue of Section 29 of the Lawyers Act. It relies on the affidavit of Robert Mellor sworn and filed on 6 March 2017.
  4. The applicant’s affidavit sets out the brief details of his personal antecedents including, schooling, work experience, academic qualifications, that he graduated from the Papua New Guinea Legal Training Institute (the Legal Training Institute) on 22 February 2017 and was issued with a Certificate of Training on 9 February 2017, is a recipient of a certificate issued by the Attorney General dated 16 February 2017 pursuant to Section 25(3)(d) of the Lawyers Act certifying that he is a fit and proper person to be admitted to practice as a lawyer in Papua New Guinea, and matters relating to whether he has any criminal convictions and he has none recorded against him as per the National Police Clearance certificate issued by the Commissioner of Police on 17 February 2017.
  5. Ms Pauline T Mogish, Director of the Legal Training Institute, in her affidavit states that she has sighted two letters from Mr John Kali, Secretary for the Department of Personnel Management and the Chairman of the Papua New Guinea Institute of Public Administration (the PNGIPA) stating his objection to the admission of the applicant to practice as a lawyer. The first was a letter by Mr Kali addressed to the Attorney General and Minister for Justice dated 13 February 2017 and the other addressed to the Secretary of the Law Society dated 21 February 2017. Copies of these letters are annexed to the affidavit of Robert Mellor as forming part of annexure “A”. She states that these letters raise matters concerning civil proceedings taken out by the applicant against the PNGIPA, his former employer in connection with the appointment of the Director of the PNGIPA (in which he had a personal interest as the Acting Director) including costs orders. She states that costs orders need to be addressed like in any normal civil litigation such as taxation of bills of costs and there was no evidence that the PNGIPA or any of the defendants had served on the applicant any bill of costs for purposes of taxation.
  6. Ms Mogish states that on 23 February 2017, she sent a letter to Mr Mellor, Secretary of the Law Society attaching to it a copy of a letter by the applicant dated 17 February 2017 addressed to the Attorney General responding to the allegations by Mr. Kali. In that letter, the applicant essentially stated that; allegations raised by Mr Kali were mere allegations; he had every right guaranteed by the Constitution to seek redress in any court of law and if costs orders were made against him, those in whose favour they were awarded had sat on their rights and had done nothing to pursue them against him; and the letter of complaint by Mr Kali was a personal attack on him with malicious intent, had no relevance and should be disregarded.
  7. Ms Mogish also states that as the Director of the Legal Training Institute, she has seen the applicant’s character and behaviour over a period of 10 months he has been at the Legal Training Institute and has found him to be a mature and honest person and transparent in his dealings with his colleague trainee lawyers and staff for which he was awarded the price of leadership on graduation day on 22 February 2017 by the Honourable Governor for Morobe Province, Mr Kelly Naru LLB, MP. She has no hesitation in recommending the applicant to be admitted as a lawyer of both the National and Supreme Courts.
  8. In Mr Mellor’s affidavit, he states that he is the Secretary of the Law Society. On 2 March 2017, he attended a meeting of the Council of the Law Society (the Law Society Council) where one of the matters under consideration was a complaint served on the Law Society on 22 February 2017 by John Kali in his capacity as Chairman of the PNGIPA Governing Council by letter dated 21 February 2017 objecting to the admission of the applicant, a Legal Training Institute trainee as a lawyer (annexure “A”). Attached to that letter were copies of the following documents:
(e) Court Order filed on 23 April 2014 in relation to proceedings OS (JR) No.582 of 2014, Yala Yatu v John Kali & Ors;
  1. Mr Mellor also states that at the meeting of the Law Society Council, it also considered the letter from the applicant to the Attorney General and Minister for Justice dated 17 February 2017 (annexure “B”) and an affidavit opposing objection by the applicant filed in these proceedings on 23 February 2017 (annexure “C”). In that affidavit, the applicant states that he was the Director of the PNGIPA from June 2010 to April 2014 until replaced by one Angori Wewerang. On or about 17 February 2017, he had an audience with the Director of the Legal Training Institute about the allegations made against him and concluded that they were mere allegations which were unfounded and constituted a personal attack on him and they concerned matters that were civil in nature including two proceedings in the National Court and one in the District Court. He reaffirmed that he had satisfied all the necessary requirements to be admitted to practice as a lawyer. The objection did not raise any specific issue about any wrongdoing he might have committed or omitted to do in his management of the PNGIPA during his tenure as Director which he said he managed very well and delivered successful results for the benefit of the country and that he was unaware of any resolution passed by the PNGIPA Governing Council to object to his admission.
  2. Mr Mellor also states that the Law Society Council also considered a copy of a letter dated 27 February 2017 from the Secretary of the Department of Justice and Attorney General (the Secretary of the Department of Justice) to the Director of the Legal Training Institute (annexure “D”) which was received by the Law Society on 2 March 2017 through email. By that letter, the Director of the Legal Training Institute was requested to return the original of the certificate issued by the Attorney General certifying that the applicant was a fit and proper person to be admitted to practice as a lawyer upon the receipt of that letter.
  3. Mr Mellor states that because of Mr Kali’s complaint to the Attorney General and also to the Law Society and the letter dated 27 February 2017 from the Secretary of the Department of Justice to the Director of the Legal Training Institute, the Law Society Council considered that there were grounds for opposing the application for admission of the applicant which it was entitled to do under Section 29 of the Lawyers Act on the basis that the applicant could not satisfy the mandatory requirement for admission under Section 25(3)(d) of the Lawyers Act.
  4. Sections 25 and 26 of the Lawyers Act state:

25. Qualifications for admission.

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

(2) The required academic qualifications referred to in Subsection (1) are—

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

(b) such other academic or educational qualifications as are prescribed by the Rules made by the Admission Council under Section 25A(2).

(3) The required practice qualifications referred to in Subsection (1) are—

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

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

(c) such other practice qualifications as are prescribed by the Rules made by the Admission Council under Section 25A(2); and

(d) 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.

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

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

(b) to produce to him such evidence of his fitness and academic and practice qualifications as the Attorney-General thinks fit.

(5) Where the Attorney-General is of the opinion that an applicant has not provided adequate evidence of his academic and practice qualifications, he may require the applicant to sit examinations and for this purpose may set such examinations.


26. Application for admission to practise.

(1) An application for admission to practise shall be made to the Court.
(2) An application under Subsection (1) shall be—

(a) made in the manner prescribed by the Rules of Court; and

(b) accompanied by—

(i) evidence of qualifications for admission as required under Section 25; and

(ii) the fee prescribed by the Rules of Court.


  1. Rule 2 of the Lawyers Admission Rules 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:


(a) brief details of the applicant’s schooling;

(b) details of the applicant’s work experience;

(c) 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;

(d) 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.


  1. According to Section 25(1) of the Lawyers Act, an applicant for admission must satisfy the National Court of three separate requirements and these are:
    1. he possesses the required academic qualifications;
      1. he possesses the required practice qualifications; and
    2. that he is a fit and proper person to be admitted as a lawyer.

Does the applicant possess the required academic qualifications?


  1. Section 25(2) prescribes what the required academic qualifications are for purposes of Section 25(1). The provision states:

“The required academic qualifications referred to in Subsection (1) are—

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

(b) such other academic or educational qualifications as are prescribed by the Rules made by the Admission Council under Section 25A(2).”


  1. The evidence of the applicant’s academic qualifications is contained in the applicant’s first affidavit, the affidavit of Ms Mogish and the applicant’s affidavit opposing objection sworn and filed on 23 February 2017 (the applicant’s affidavit opposing objection) (annexure “C” to Mr Mellor’s affidavit). In his first affidavit, the applicant sets out his educational qualifications prior to attending the Legal Training Institute. He did his primary education at the Erave Primary “T” School in the Southern Highlands Province and in 1973 he completed Grade 6. He then attended the Mt Hagen Technical College where at the end of 1977 completed Grade 10. He went on to Passam National High School where at the end of 1979 he completed Grade 12 and graduated with a Higher School certificate. He later attended the University of Papua New Guinea and enrolled as a student in the School of Business from February 1986 to November 1989 and completed all requirements for the degree of Bachelor of Arts in Commerce and graduated on 9 March 1990. He enrolled as a student in the School of Education at the University of Papua New Guinea between February 1990 and November 1990 where he studied for a Post Graduate Diploma in Education and graduated on 8 March 1991. He won an Australian Government Scholarship and in January 1999, enrolled at the Northern Territory University in Darwin to do a Masters programme in Business Administration and graduated with a Master of Business Administration on 24 July 2000. He enrolled at the University of Papua New Guinea in the Law School in December 2009 to do a degree of Bachelor of Laws and completed his studies in November 2015. He graduated with a degree of Bachelor of Laws on 8 April 2016. According to Section 25(2), his possession of a degree of Bachelor of Laws from the University of Papua New Guinea satisfies the required academic qualifications referred to in Section 25(1). I am satisfied that the applicant possesses the required academic qualifications.

Does the applicant possess the required practice qualifications?


  1. The evidence of the applicant’s practice qualifications is also contained in the applicant’s first affidavit, the affidavit of Ms Mogish and the applicant’s affidavit opposing objection.
  2. Section 25(3) prescribes what the required practice qualifications are for purposes of Section 25(1). The provision states:

“The required practice qualifications referred to in Subsection (1) are—

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

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

(c) such other practice qualifications as are prescribed by the Rules made by the Admission Council under Section 25A(2); and

(d) 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.”


  1. For purposes of considering and deciding the issue with regard to this application, Section 25(3)(a) and (d) are relevant. Two requirements must be met conjunctively and this are: first, a certificate signed by the Director of the Legal Training Institute certifying that the applicant has successfully completed the course of training conducted by that Institute; second, 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.

First requirement of practice qualifications


  1. After completing his law studies at the University of Papua New Guinea, the applicant enrolled as a trainee in the practice of law and with an intention to be admitted as a lawyer at the Legal Training Institute on 11 April 2016 and completed his training on 16 December 2016. He graduated on 22 February 2017 and was issued with a certificate signed by Ms Pauline Toliman Mogish, Director of the Legal Training Institute, as well as by the Chief Justice, Sir Salamo Injia as Chairman of the Legal Training Institute Council dated 9 February 2017 certifying that the applicant had successfully completed the course of training conducted by the Institute (annexure “I”). I am satisfied that the applicant has met the first requirement.

Second requirement of practice qualifications


  1. After the applicant was interviewed by one Counsel Marat, a representative of the Attorney General for purposes of complying with Section 25(3)(d), on 16 February 2017, the Attorney-General signed a certificate certifying that the applicant was a fit and proper person to be admitted to practice in Papua New Guinea (annexure “J”).
  2. By a letter from the PNGIPA to the Attorney General and Minister for Justice dated 13 February 2017 signed by John M Kali as Chairman of the PNGIPA Governing Council, responding to a notice of intention to apply for admission as a lawyer by trainees at the Legal Training Institute including the applicant published in the Post Courier on 7 February 2017 pursuant to Section 27(a) of the Lawyers Act, an objection as to the applicant being a “fit and proper person” for admission as a lawyer was lodged in connection with a number of civil court proceedings the applicant had instituted against PNGIPA and others namely, Yala Yatu v Angori Wewareng & Ors, OS No.430 of 2014, Yala Yatu v John Kali & Ors, OS (JR) No.582 of 2014 and Yala Yatu v PNGIPA & Ors, Complaint No.27 of 2014. Mr Kali’s letter to the Attorney General and Minister for Justice was brought to the attention of the Law Society under cover of a letter to the Secretary of the Law Society by John Kali in his capacity as Chairman of the PNGIPA Governing Council dated 21 February 2017 objecting to the admission of the applicant. The applicant responded to the objection in writing by a letter to the Attorney General and Minister for Justice dated 13 February 2017 and the filing of the applicant’s affidavit opposing objection. These were also brought to the attention of the Law Society. A letter emanating from the Office of the Secretary of the Department of Justice addressed to the Director of the Legal Training Institute dated 27 February 2017 and signed by or on behalf of the Secretary requested the return of the original certificate issued by the Attorney General because of the objection lodged by the PNGIPA. All these matters were considered by the Law Society Council at a meeting held on 2 March 2017 and it was considered that there were grounds for opposing the admission of the applicant under Section 29 of the Lawyers Act.

Objection by the Law Society


  1. Section 29 of the Lawyers Act permits the Law Society, on an application moved pursuant to Section 26 of the Lawyers Act for admission of a lawyer to practice in Papua New Guinea, to appear and make submission as it thinks fit in support or in opposition to the application. The basis of the objection was the complaint lodged by the PNGIPA in writing to the Attorney General and Minister for Justice which was pursued with the Law Society and the letter from the Office of the Secretary of the Department of Justice to the Director of the Legal Training Institute requesting the return of the original certificate of “fit and proper person” issued by the Attorney General.
  2. The basis of the PNGIPA’s complaint against the applicant concern costs orders made against him in unsuccessful civil proceedings he took out against the PNGIPA including Mr Kali and Others in the National Court in Yala Yatu v Angori Wewareng & Ors, OS No.430 of 2014, Yala Yatu v John Kali & Ors, OS (JR) No.582 of 2014 and in the District Court in Yala Yatu v PNGIPA & Ors, Complaint No.27 of 2014. These proceedings revolved around the position of the Director of PNGIPA which position he had occupied previously. He had every right guaranteed by Section 37 of the Constitution to issue proceedings against his former employer. The protection of the law under Section 37 of the Constitution is not limited to matters or circumstances prescribed in that provision, but includes rights given by other laws set out under Section 9 of the Constitution. Whether he succeeded or not is another matter.
  3. In the normal course of events, where a party obtains an order from the National Court in his or her favour, that party will be entitled to have his or her legal costs paid by the opposing party or parties. The amount to be paid is worked out according to a scale of costs. However, where the parties do not agree on what the amount of legal costs should be, then the question of costs is submitted to “taxation” and the taxing officer is the Registrar.
  4. The National Court’s power to award costs is regulated by Order 22 (Costs) of the National Court Rules. It is up to the PNGIPA and or Mr Kali to avail themselves of Order 22 and pursue costs orders made in their favour in Yala Yatu v Angori Wewareng & Ors, OS No.430 of 2014, Yala Yatu v John Kali & Ors, OS (JR) No.582 of 2014 through taxation if the applicant is not agreeing.
  5. Similarly, for costs incurred in the District Court in Yala Yatu v PNGIPA & Ors, Complaint No.27 of 2014, the PNGIPA is at liberty to pursue them under Part XIII (Costs) of the District Courts Act: see also Section 48 of the District Courts Regulation (Agents fees) and Schedule 4 (Lawyers and Agent’s Costs).
  6. I find the objection instigated by the PNGIPA and taken up by the Law Society to be without any merit and dismiss it.
  7. The next question I now ask is; has the Attorney-General withdrawn or revoked the certificate he issued on 16 February 2017 that the applicant is a fit and proper person to be admitted to practice in Papua New Guinea? If he has, the Court has no discretion to exercise that power under Section 25(3)(d) of the Lawyers Act: In the matter of an Application by Peter Norman Moore [1993] PNGLR 470; Re Application by Godwin Haumu for Admission as a Lawyer (2001) N2094. The request to return the original certificate was done by the Secretary of the Department of Justice to the Director of the Legal Training Institute. Mr Joseph of counsel for the Law Society contended that the Secretary of the Department of Justice in his capacity as the delegate of the Attorney General had the right to do that and the only available avenue open to the applicant was to challenge that decision by instigating judicial review proceedings under Order 16 of the National Court Rules. I asked Mr Joseph a couple of times during his submissions what legislative basis he relied on to support his contention and on both occasions he conceded that he had none.
  8. The Attorney General is the only person or authority required by Section 25(3)(d) of the Lawyers Act to issue a certificate that an applicant is a fit and proper person to be admitted to practice in Papua New Guinea. The exercise of discretion is a matter of policy decision which the Court cannot interfere with: In the matter of an Application by Peter Norman Moore. The certificate issued by the Attorney General is conclusive unless there is proof of fraud, malice, bias, it is outrageous, the exercise is in excess of jurisdiction or otherwise unlawful exercise of power: In the matter of an Application by Peter Norman Moore; Re Application by Godwin Haumu for Admission as a Lawyer. Assisting the Attorney General in matters he raised in his letter to perform his function is one thing, but the actual signing of a certificate and the determination whether to issue one is done by the Attorney General and no other person including the Secretary of the Department of Justice. The discretion to hold an applicant to be a fit and proper person to practice as a lawyer in Papua New Guinea rests solely on the Attorney General: In the matter of an Application by Peter Norman Moore.
  9. It is clear from Section 5 of the Attorney General Act that where the Attorney-General is out of the country or is out of speedy and effective communication or is unable to fulfil his duties as the Attorney- General, the Secretary for the Department of Justice becomes the Attorney-General and Principal Legal Adviser to the National Executive Council by operation of law. In order words, if the Attorney-General is out of the country or is unable to perform his duties, functions and responsibilities for whatever reason, the Secretary for the Department of Justice performs duties, functions and responsibilities of the Attorney General. There is absolutely no evidence before the Court that the Secretary for the Department of Justice was the Attorney General by virtue of Section 5 of the Attorney General Act when he issued the letter to the Director of the Legal Training Institute.
  10. There is absolutely no evidence before the Court that the Attorney General made any decision to revoke or withdraw the certificate he issued in favour of the applicant. The Secretary for the Department of Justice only requested for its return and nothing more can be read into that letter. His request reflected in that letter in my view does not in any way affect the substantive matter concerning the issue by the Attorney General of the certificate of “fit and proper person” therefore need not be a subject of review as proposed by Mr Joseph as he does not have any power to issue any certificate of fit and proper person unless acting as Attorney General. That request, in my view, cannot be interpreted as amounting to a withdrawal or revocation by the Attorney General. He did not say that the Attorney had revoked or withdrawn his certificate so the original certificate should be returned. If so, he would have to produce the Attorney General’s decision to support his request. Mr Joseph’s submission that the applicant should instigate judicial review proceedings therefore has no merit as there is no decision of the Attorney General to challenge by judicial review. The applicant cannot challenge the request made by the Secretary to return the original certificate because that in itself does not constitute a decision made by the Attorney General to revoke or withdraw the certificate.
  11. I therefore find that the certificate issued by the Attorney General on 16 February 2017 was not revoked or withdrawn by the Attorney General and remains valid for the purposes of Section 25(3)(d) of the Lawyers Act.
  12. So as to the second requirement of practice qualifications, I am satisfied that the applicant has met the requirement.
  13. The applicant having met the two requirements of practice qualifications, I am satisfied that the applicant possesses the required practice qualifications.

Is the applicant a fit and proper person to be admitted as a lawyer?


  1. No issue was taken by the Law Society on this requirement. Therefore, this factor will be considered in favour of the applicant.
  2. Notwithstanding that finding, I will make these additional remarks.
  3. The evidence demonstrating that the applicant is a fit and proper person to be admitted as a lawyer is also contained in the applicant’s first affidavit, the affidavit of Ms Mogish and the applicant’s affidavit opposing objection.
  4. The determination of the second factor in favour of the applicant adds support of this factor being considered in favour of the applicant.
  5. In Re Application by Godwin Haumu for Admission as a Lawyer, Kandakasi, J attempted to define the phrase “fit and proper person” within the context of Section 25(3)(d). Due to a dearth of case authority, His Honour referred to cases involving similar legislation which discussed the meaning of the phrase “fit and proper person” in the context of those legislation for assistance or guidance. He concluded that the phrase did not concern the academic qualifications or practice qualifications as they were already specifically provided for by the earlier parts of Section 25. Instead, he said the phrase concerned the character, reputation or standing of an applicant applying to be admitted to be a lawyer and he suggested the following factors, which were not exhaustive, to be considered when deciding whether an applicant was a “fit and proper person”:

“1. Whether the applicant has any criminal conviction of such a nature that it would not be proper to admit him to the practice of law?

  1. Whether the applicant has such disciplinary record or problems with the schools, universities and or colleges he has attended that reflects adversely against him or her as a person worthy of admission to the practice of law?
  2. Whether the applicant has any record of conducting in such a manner that demonstrates a lack of respect for authority, the rule of law and law and order generally?
  3. Whether the applicant's character is of such a nature that it would not be proper for him to be admitted to the practice of law?
  4. Whether the applicant has any mental or physical disability that would not enable him to properly discharge the duties and responsibilities of a lawyer?

6. Whether he is proficient with the English language?

  1. Generally, whether certifying the applicant as a fit and proper person will go against the high respect esteem and status lawyers enjoy in society?
  2. Whether the standing government or State policy on admission of lawyers to the practice of law, favours the applicant to be admitted?”
  3. Notwithstanding that these factors were propounded in the context of Section 25(3)(d), I will adopt and apply them here for purposes of deciding whether the applicant is a fit and proper person to be admitted as a lawyer for purposes of Section 25(1).
  4. Section 25(4)(b) provides what an applicant must produce at an interview conducted by the Attorney General under Section 25(4)(a) before he considers issuing a certificate and this include evidence of three distinctive matters namely his; fitness; academic qualifications; and practice qualifications. This only reinforces Kandakasi J’s remarks that there is a separate and distinct category where an applicant must demonstrate that he is a fit and proper person to be admitted as a lawyer quite apart from the similar requirement he has to satisfy the Attorney General with for purposes of meeting the requirement that he possesses the required practice qualifications.
  5. Does the applicant meet any or all of these considerations? The onus is on the applicant to show that he is a fit and proper person to be admitted as a lawyer so he has to demonstrate that these considerations do not apply to him. Several of these factors had to be considered by the Attorney General in order to issue the certificate.
  6. First, the police clearance report which is in evidence shows that the applicant has no criminal conviction or any run in with the law.
  7. Second, the applicant has no disciplinary record or problems with the schools, universities and or colleges he has attended that reflects adversely against him as a person worthy of admission to the practice of law. The Director of the Legal Training Institute speaks highly of the applicant and he was awarded the leadership price at the end of course graduation of the Legal Training Institute. Apart from the complaint by PNGIPA which I have already found to be without merit, no one else has registered any objection about his character or conduct.
  8. Third, there is no evidence that the applicant has any record of conducting himself in such a manner that demonstrates a lack of respect for authority, the rule of law and law and order generally. Again the complaint by the PNGIPA at the backdrop of three civil suits instituted by the applicant against it and others and which I have found to be without merit does not fall within this consideration.
  9. Fourth, there is no evidence before the Court that the applicant's character is of such a nature that it would not be proper for him to be admitted to the practice of law. Again, the Director of the Legal Training Institute speaks highly of the applicant and he was awarded the leadership price at the end of course graduation of the Legal Training Institute. The police clearance report clears him of any wrong doing with the law.
  10. Fifth, there is no evidence before the Court that the applicant has any mental or physical disability that would not enable him to properly discharge the duties and responsibilities of a lawyer. The letter from the Secretary for the Department of Justice to the Director of the Legal Training Instituted indicates that the Attorney General was advised to issue certificates to all the trainees including the applicant who had provided police clearance, medical certificates and passed all academic requirements. The issue of the certificate by the Attorney General is conclusive evidence that all those matters were considered in favour of the applicant before the certificate was issued.
  11. Sixth, English, as one of the official languages of Papua New Guinea apart from Tok Pisin and Motu, is the official language of communication both in government and in commerce including formal schools, law schools and the formal courts. It can therefore be inferred from the applicant’s academic qualifications that he is proficient or reasonably proficient with the English language.
  12. Seventh, there is no evidence to show that he is a violent person who has no respect for law and order and is untrustworthy or is of a questionable nature or characteristic and does not have the necessary language skills to conduct himself as a lawyer. The applicant is a mature, well-educated and a married man with five children and has an impressive employment record. He has worked in various organisations since 1983 to 1993 and was a lecturer in Accounting and Business Studies at the PNGIPA from August 1994 to November 2004. His leadership qualities were recognised when he was appointed to the position of Director of the PNGIPA which he held from 18 November 2004 to 18 November 2007. He was the Acting Director of the PNGIPA from 1 June 2010 to 28 April 2014. The National Police Clearance Certificate issued by the Commissioner of Police on 17 February 2017 certifies that a search of the records kept by the Constabulary reveals nothing to the detriment of the applicant. Nothing adverse has been said about him from anyone else regarding his personal or marriage life. Ms Mogish, the Director of the Legal Training Institute has given evidence of his good character and leadership during his time at the Legal Training Institute.

  1. Eight, as to whether the standing government or State policy on admission of lawyers to the practice of law, favours the applicant to be admitted, the certificate issued by the Attorney General dated 16 February 2017 pursuant to Section 25(3)(d) of the Lawyers Act certifying that he is a fit and proper person to be admitted to practice as a lawyer in Papua New Guinea is conclusive evidence that the relevant government policy on admission of lawyers to the practice of law reflected by the requirements for admission to practice as lawyers set out in the Lawyers Act have been met.
  2. I am satisfied that the applicant is a fit and proper person to be admitted as a lawyer.
  3. All three requirements that the applicant must satisfy under Section 25(1) of the Lawyers Act have been met.
  4. In the result, I will grant the application for the applicant Yala Sem Yatu to be admitted to practice as a lawyer in Papua New Guinea.

Ruling accordingly.


___________________________________________________________________
Legal Training Institute In-House Lawyers: Lawyers for the Applicant
Ashurst: Lawyers for PNG Law Society

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