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Kincaid, In re [1974] PGSC 17; [1974] PNGLR 219 (29 August 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 219 - Kincaid, In re

[1974] PNGLR 219

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN RE KINCAID

Port Moresby

Frost ACJ Clarkson Prentice JJ

2 August 1974

29 August 1974

LEGAL PRACTITIONERS - Qualifications and Admissions - Barrister and Solicitor - Practitioner admitted elsewhere - Student at law - Clerk in service of and under supervision of practitioner - Admitted in British Columbia - Articles performed in Vancouver - Lecturer in Law in Port Moresby - Not substantial compliance with requirements relating to service as clerk - Admission Rules 1963-1973 rr. 2[ccxciv]1, 6[ccxcv]2, 8[ccxcvi]3, 12[ccxcvii]4, 15[ccxcviii]5.

On an application for admission as a barrister and solicitor by an applicant being a Bachelor of Laws of the University of British Columbia, a Master of Laws of the University of Sydney, who had served articles in Vancouver and was admitted as a barrister and solicitor of the Supreme Court of British Columbia and had been a lecturer in law at the University of Papua New Guinea and was registered as a student at law for 13 months, but had not performed any service as a clerk in the service of and under the supervision of a practitioner of the Supreme Court of Papua New Guinea,

Held

N1>(1)����� An applicant for full admission as a barrister and solicitor must have both the necessary academic qualifications and practical training required by r. 6 (1) of the Admission Rules 1963-1973.

N1>(2)����� For a case for relief from compliance with the Admission Rules under rr. 12 and 15 thereof, the applicant must show substantial compliance with the requirements of r. 6 (1) (c) relating to service as a clerk.

In re Mellor, [1974] P.N.G.L.R. 213 followed.

N1>(3)����� An essential requirement under r. 6 (1) (c) of the Admission Rules, relating to such service as a clerk is that it should be performed in the service or under the supervision of a practitioner of the Supreme Court of Papua New Guinea.

N1>(4)����� As the applicant had failed to establish any such period of service as a clerk the application should fail.

Motion

The applicant P. J. Kincaid sought admission as a barrister and solicitor of the Supreme Court of Papua New Guinea pursuant to the Admission Rules 1963-1973 and by motion sought a declaratory order under r. 8 thereof, that by reason of his instruction and the possession of the prescribed academic and other qualifications, he was qualified for full admission to practise.

Counsel

J. A. Griffin, for the applicant.

L. K. Young, for the Law Society of Papua New Guinea.

Cur. adv. vult.

29 August 1974

FROST ACJ CLARKSON PRENTICE JJ: The applicant, P. J. Kincaid, applies by motion for a declaratory order under r. 8 of the Admission Rules 1963-1973 that the Court is satisfied that by reason of his instruction and the possession of the prescribed academic and other qualifications, he is qualified for full admission to practise.

Mr. L. K. Young appeared for the Law Society to support the application.

It appears from his affidavit that having graduated in 1968 as a Bachelor of Laws of the University of British Columbia, and in March 1970 as a Master of Laws of the University of Sydney, the applicant later served for one year as an articled clerk with a firm of solicitors in Vancouver, and on 30th June, 1971 was admitted to practise as a barrister and solicitor of the Supreme Court of British Columbia. He came to Port Moresby in June, 1973 taking up an appointment as lecturer in Law at the University. Since 4th June, 1973 he has been registered as a student at law. The fact that he has not either for the requisite period of two years or at all engaged in service as a student at law pursuant to r. 6 (1) (c) is the reason for the present application.

The applicant also seeks enabling orders under r. 12 (a) reducing the period of not less than two years required by r. 6 (1) (b) for registration as a student at law to a period of 13 months which is the period of his registration up to the date of this application, and also an order under r. 15 waiving so much of the Rules relating to service as a student at law as would prevent the Court from making a declaratory order under r. 8.

In view of the applicant�s prior experience there is little doubt that the Court would make an order for a substantial reduction under r. 12 (a), but it is convenient to consider first the application under r. 15 because unless that latter application succeeds an order under r. 12 (a) may be of no avail to him.

The scheme of the Admission Rules is to make special provision for the admission of �practitioners admitted elsewhere�, a category which by definition is limited, in effect, to practitioners qualified to practise in the High Court of Australia, the Supreme Court of a State or Territory of the Commonwealth or of New Zealand or a barrister or solicitor qualified in England (r. 2). These practitioners may be admitted immediately to practise under r. 3 on complying only with the formal requirements prescribed by s. 14 of the Legal Practitioners� Act 1954-1971. The present provisions relating to immediate admission without service as a clerk were introduced when this country was Australian Territory and there was no indigenous profession. Whether for traditional reasons or because past experience and investigation had shown it to be justified it was only practitioners from Australia and later those from England and New Zealand who were given a special standing as to both qualification and training requirements not given to practitioners perhaps equally competent from other common law countries and that situation still obtains.

But a person other than a practitioner admitted elsewhere who desires to be admitted to practise must comply with a quite different procedure. He is required, upon the lodging of a certificate of fitness (r. 5), to register with the Registrar as a student at law (r. 4). To qualify for admission the Court must under r. 6 (1) be satisfied that the applicant has the requisite academic qualifications (sub-par. (a)), has been registered as a student at law for a period of not less than two years or such lesser period as may be ordered under r. 12, (sub-par. (b)), and that throughout the period he has been registered as a student at law, he has devoted himself diligently to his employment as a clerk engaged in the performance of legal duties in the service of a practitioner of this Court, that being the effect in our opinion of sub-par. (c).

We shall assume in the applicant�s favour that the University of British Columbia, where the applicant graduated, is under r. 6 (1) (a) a University of a country the law of which is based upon the common law, so that upon the evidence as to the standing of that University, the applicant has shown that he has the necessary academic qualifications.

Mr. Griffin, on behalf of the applicant, argued strongly that it would be an unreasonable construction to be placed on the Admission Rules if an applicant who has already served one required period of articles in a common law country were required to serve another such period.

This consideration might well lead the Court to be satisfied that the applicant is by reason of his qualifications, experience and training a fit and proper person to be admitted to practise under r. 15 (b). But he is not entitled to relief unless he can first show substantial compliance with the Admission Rules as required by r. 15 (a). Mr. Griffin argued that it was unnecessary to show substantial compliance with each of the Rules. A similar argument was submitted to this Court in Re Mellor[ccxcix]⁶�which was an application under r. 15 by an applicant for provisional admission who, as in the present case, had not engaged for any period as a clerk employed in legal duties as required by r. 6a (1) (c). That subrule is in similar terms to r. 6 (1) (c). The conclusion that this Court reached in Re Mellor[ccc]⁷�was that an applicant must show substantial compliance with the requirements of r. 6a (1) (c) relating to service as a clerk. In our opinion, for the same reasons which we stated in that case, the applicant for full admission also must show substantial compliance with the requirements relating to service as a clerk laid down in r. 6 (1) (c).

An essential requirement under r. 6 (1) (c) relating to service as a clerk is, in our opinion, that it should be performed in the service or under the supervision of a practitioner of this Court. In the case of applications for full admission, as in those for provisional admission, it is necessary that an applicant should for some period have devoted himself to employment as a clerk in accordance with the requirements of the Rules.

The conclusion we have reached is supported by the consideration that the contrary view would render nugatory the basic distinction made in the Admission Rules between practitioners admitted elsewhere and other applicants.

For these reasons in our opinion this application must fail.

Application refused.

Solicitor for the applicant: J. A. Griffin.

Solicitor for the Law Society of Papua New Guinea: L. K. Young.