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Khaiser v PNG Law Society [1988-89] PNGLR 509 (8 December 1989)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 509 - Anthony Siaguru Khaiser v PNG Law Society�

[1988-89] PNGLR 509

N787

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

SIAGURU-KHAISIR

V

THE PAPUA NEW GUINEA LAW SOCIETY

Waigani

Bredmeyer J

1 December 1989

8 December 1989

LAWYERS - Practising certificates - Right to unrestricted practising certificate - Where employed for two years as lawyer from date of admission - Where �equivalent� experience - Equivalent experience must also be from date of admission - Sufficiency of post-admission experience in Department of Foreign Affairs and Trade - Lawyers Act 1986, s 41.

The Lawyers Act 1986, s 41, provides:

�41.��� Unrestricted Practising Certificate

(1)����� A lawyer may be issued with an unrestricted practising certificate if:

(a)����� he:

(i)������ is the holder of, or is entitled to hold, a restricted practising certificate; and

(ii)����� has been employed exclusively as a lawyer for:

(a)����� not less than two years from the date of his admission to practice; or

(b)����� not less than two years in the five years preceeding the date of his application for an unrestricted practising certificate,

by a lawyer, who during the period of employment was the holder of an unrestricted practising certificate; or

...

(d)����� he satisfies the Society that he has obtained experience in the practice of law, which, in the opinion of the Society, is at least equivalent to that gained by an applicant under Subparagraph (a)(ii); or ...�

Held

(1)����� For the purposes of s 41(1)(d), the experience �at least equivalent to that gained by an applicant under Subparagraph (a)(ii)� must be equivalent experience from the date of admission: experience prior to date of admission cannot be taken into account.

(2)����� Post-admission experience in the Department of Foreign Affairs and Trade including four years as Head of the Department was not �equivalent experience�: it was within a restricted area; it did not involve the research and giving of advice but rather the receipt of advice; and it did not involve court experience.

Application for Review

This was an application, made pursuant to s 45 of the Lawyers Act 1986, for review of a decision of the Council of the Law Society to refuse an unrestricted practising certificate.

Counsel

T Glenn, for the plaintiff.

J Shepherd, for the defendant.

Cur adv vult

8 December 1989

BREDMEYER J: Mr Siaguru is a lawyer and a holder of a restricted practising certificate. Normally the holder of such a certificate has to be employed as a lawyer by the holder of an unrestricted practising certificate for a period of two years before he can be given an unrestricted practising certificate. In October 1989, Mr Siaguru applied to the Council of the Law Society for special consideration. At that time he had practised as a lawyer under a restricted practising certificate for 16 to 17 months. He applied to the Council for an unrestricted practising certificate on the basis that he had other practical legal experience which was at least equivalent to the two years required by the Lawyers Act. The Council refused the application and Mr Siaguru has applied to this Court under s 45 of the Lawyers Act for a review of that decision. This is the first case of its kind.

The material before me is the same as that which was put before the Council in October 1989. But, in addition, I asked a few questions of Mr Siaguru from the Bar Table to clarify some of the statements in the written material. I also read his admission file BS 13 of 1972(B), against the objection of counsel for the Law Society, and I am glad I did so as it corrected certain minor inaccuracies in the material placed before me. For example, Mr Siaguru�s affidavit of 20 November 1989 annexes a statutory declaration from Mr Craig Kirke which states that Mr Siaguru worked part-time under Mr Kirke�s supervision for a period of one year two months between November 1970 and January 1972 and that throughout this time Mr Siaguru was registered as a student at law pursuant to r 4 of the Admission Rules 1963. The material on the 1972 file shows that Mr Siaguru was registered as a student at law on 12 February 1971. It also gives the exact dates of employment with Mr Kirke as between 23 November 1970 and 7 January 1972.

From all this material, I briefly describe Mr Siaguru�s legal career. Mr Siaguru completed his preliminary year at the University of Papua New Guinea in 1966. He then studied law in 1967, 1968, 1969, 1970 and 1971. He completed his final exams at the end of 1971 and was awarded the LLB degree in March 1972. As part of the requirement of the law course at that time, a student had to do six months practical training with an Australian firm of solicitors. So Mr Siaguru in his third year, in 1969, was employed by a Brisbane firm of solicitors, Messrs Gilshenan and Luton, between July 1969 and February 1970. In his final year at the University (1971), Mr Siaguru was attending lectures but also working part-time for a Port Moresby lawyer, Mr Craig Kirke. As stated above, Mr Siaguru worked part-time for Mr Kirke between 23 November 1970 and 7 January 1972. Mr Kirke has said that that period of part-time work was equivalent to six months work full-time. At that time, the relevant Admission Rules were the Admission Rules 1963 (as amended) passed under the Legal Practitioners Act 1954 (as amended). Rule 6a, which was a new rule inserted in 1971, provided that to gain provisional admission a person had to have completed the five-year law course provided by the University of Papua New Guinea and graduated in that course, and to have completed not less than one year as a registered �student at law�. The person could register as a student at law during or after his law course. During his law course he had to work under the supervision of a practitioner during normal business hours except for the time spent attending lectures and tutorials at the University. So in his final year at Law School, Mr Siaguru was employed by a lawyer, Mr Kirke, and worked under his supervision apart from the time he spent attending University lectures and tutorials. Although Mr Siaguru worked for Mr Kirke for a period of over a year between the dates given above, he only became registered as a student at law on 12 February 1971. He completed work with Mr Kirke on 7 January 1972 when he left to commence a career in Foreign Affairs. So at that time he had been working as a registered student at law for a little less than 10 months. Mr Siaguru applied to the Supreme Court, as it then was, in 1972 for provisional admission and asked for an order reducing the period required to be served by him as a registered student at law from one year to the period of just under 10 months which I have already mentioned. That application succeeded before Minogue CJ and on 11 December 1972, Mr Siaguru was provisionally admitted as a practitioner of the court. At that time, under r 6b, a person provisionally admitted had to work as an employed practitioner for a period of 12 months gaining experience before he could be fully admitted. As stated above, in early January 1972, Mr Siaguru left the law and began a career in the Foreign Affairs Department and was later elected to the National Parliament.

In the intervening years, the Admission Rules as they existed in 1972 have changed. The present position is that a student completes a four-year law degree, followed by one year at the Legal Training Institute. He is then provisionally admitted. He must work as a provisional admittee under the supervision of another lawyer for six months and then he will be granted full admission. The Lawyers Act has imposed another practical requirement on newly admitted lawyers. After full admission, the lawyer is given a restricted practising certificate and, in the case of a Papua New Guinea law graduate, he normally has to work two years for a lawyer holding an unrestricted practising certificate before he is eligible to obtain a similar certificate. Mr Siaguru worked in the Department of Foreign Affairs from 1972 to 1979 and from 1975 to 1979 was Secretary of the Department of Foreign Affairs and Trade. During that time, the Legal Adviser to that Department was Mr Geoffrey Dabb, then employed by the Department of Law and now resident in Canberra. As an officer of the Department of Foreign Affairs and as Secretary of that Department, Mr Siaguru was involved in a number of legal issues involving international law. Mr Dabb has referred to them in a Statutory Declaration from which I quote:

�4.����� During the said period that Department was involved continuously in a number of international legal matters, some of them of complex nature, including:

��������� treaty succession by the Independent State of Papua New Guinea, involving some two hundred treaties on a range of matters.

��������� law and practice on diplomatic, consular and international organisation privileges and immunities.

��������� law of the sea including the Third United Nations Conference, and offshore jurisdiction generally, including fisheries.

��������� maritime boundary treaties, including with Australia, Indonesia and the Solomons, and the land boundary with Indonesia; these treaties raised novel issues concerning the application of domestic laws in the border areas.

��������� bilateral and multilateral trade matters.

��������� air traffic rights agreements.

��������� bilateral aid agreements.

The Department was also involved in a number of domestic legal issues arising out of the legislation it administered relating to customs, migration and citizenship.

5.������ I know the said Anthony Michael Siaguru took a leading personal role in all the matters referred to in paragraph 4 hereof and I believe that his work on those matters provided him with experience in international legal work of a kind not ordinarily available to a lawyer in practice in Papua New Guinea.

6.������ In my opinion, the said Anthony Michael Siaguru obtained experience during the said period in the practice of law, capable of being at least equivalent to that gained by a lawyer who, being the holder of a restricted practising certificate, had been employed exclusively for not less than two years from the date of his admission to practise by a lawyer who during the period of employment was the holder of an unrestricted practising certificate.�

In May 1988, Mr Siaguru became an employed lawyer with the firm of Blake Dawson Waldron and has remained employed by that firm until the present time. On 1 July 1989, he was admitted as a partner in that firm and his name appeared on the letterhead. That was quite wrong as he was only provisionally admitted and the holder of a restricted practising certificate. Under s 37 of the Lawyers Act, it is an offence for a person holding a restricted practising certificate to enter into a partnership with another lawyer which carries a fine of up to K1,000. It could also be the basis of disciplinary action against Mr Siaguru. Mr Glenn, counsel for Mr Siaguru in this application, and a senior partner of that firm, explained the partnership given to Mr Siaguru was given in ignorance of the law and apologised for it. They endeavoured to correct the problem. Mr Glenn says the partnership was dissolved. The letterhead showing Mr Siaguru�s name as a partner was not destroyed but it was the firm�s practice to rule it through. On a letter written to the Law Society on 12 October 1989, Mr Siaguru�s name was not, in fact, crossed out. All this is an unimpressive account of Mr Siaguru�s knowledge of the law and unimpressive legal work from a firm which normally produces good legal work. Two other steps were taken to remedy the problem. In September, Mr Siaguru applied to the National Court and was given full admission on 22 September 1989. As stated above, under our current rules full admission can be given six months after provisional admission. In October 1989, he applied to the Law Society to have the normal two-year qualifying period before gaining an unrestricted practicing certificate reduced to the 16 or 17 months period which he had already served.

The application was made under s 41 of the Lawyers Act, the relevant sub-sections of which are 1(a) and (d), which I quote.

�41.��� Unrestricted Practising Certificate

(1)����� A lawyer may be issued with an unrestricted practising certificate if:

(a)����� he:

(i)������ is the holder of, or is entitled to hold, a restricted practising certificate; and

(ii)����� has been employed exclusively as a lawyer for:

(A)���� not less than two years from the date of his admission to practise; or

(B)����� not less than two years in the five years preceding the date of his application for an unrestricted practising certificate,

by a lawyer, who during the period of employment was the holder of an unrestricted practising certificate; or

...

(d)����� he satisfies the Society that he has obtained experience in the practice of law, which, in the opinion of the Society, is at least equivalent to that gained by an applicant under Subparagraph (a)(ii); or�

Mr Siaguru relies on s 41(1)(d). He says that he has obtained experience in the practice of the law which was at least equivalent to that gained by an applicant under sub-par (a)(ii). In particular, he relies on his practical experience for seven or eight months with the Brisbane firm of lawyers in 1969-1970, his part-time experience equivalent to six months experience full-time with Mr Kirke between November 1970 and January 1972, and on his years in the Foreign Affairs Department, particularly as Head of that Department between 1975 and 1979. His counsel has submitted that all that experience is at least equivalent to that gained by an applicant under s 41(1)(a)(ii)(a) who has been employed exclusively as a lawyer by a lawyer who was the holder of an unrestricted practising certificate for a period of �not less than two years from the date of his admission to practise�.

In the normal case, a law graduate completes the LLB degree and then the one-year course of the Legal Training Institute. He is then provisionally admitted. He is then employed by a lawyer holding an unrestricted practising certificate for six months and then is fully admitted. Upon provisional admission, the lawyer may apply for and will be granted a restricted practising certificate. As such, by s 39(4) of the Act, he is not allowed to practise on his own account, or in partnership with another lawyer, or hold moneys in trust for a client. As the holder of a restricted practising certificate, he is required to work for at least two years �from the date of his admission� with a lawyer who holds an unrestricted practising certificate and then he is eligible to obtain an unrestricted practising certificate. Section 41(1)(a)(ii)(a) requires the applicant to be employed by a solicitor holding an unrestricted practising certificate for a period of not less than two years �from the date of his admission to practise�. I consider that under s 41(1)(d), if the applicant is claiming to have equivalent experience to sub-par (a)(ii)(a), it must be equivalent experience from the date of his admission. I therefore consider that Mr Siaguru�s practical experience with the Brisbane firm of solicitors in 1969-1970 and in Mr Kirke�s office from November 1970 until January 1972 is irrelevant to this application. The section is concerned with his post-admission practical experience and Mr Siaguru was provisionally admitted only on 11 December 1972.

That is a legal point but I also look at it from a practical point of view. Mr Siaguru�s experience in the third year of his law course in a Brisbane firm of lawyers was part of the formal requirements of his law degree. It was not experience gained uniquely by him, other students did the same thing. It was practical experience which was a necessary part of the LLB degree. He is now asking for that experience to be counted towards the post-graduate and post-admission practical experience which the Act requires. Similarly, his period of employment on a part-time basis for a little over one year with Mr Kirke was an essential prerequisite of provisional admission. The rules provided that that experience could be gained prior to or after graduation. In Mr Siaguru�s case he acquired that experience prior to graduation, in the fifth and final year of his law course. Again the experience he gained in that period with Mr Kirke was not unique to him. Other fifth-year law students were doing the same thing as our register shows. That practical experience was necessary to gain provisional admission and Mr Siaguru is now asking us to count it towards the post-admission practical experience required by s 41 of the Lawyers Act. I consider that he is trying to have that practical experience counted twice. He is trying to use the practical training in Australia which was necessary to get the degree and the practical training in Port Moresby which was necessary for provisional admission, to count as the equivalent of practical training normally necessary after graduation and after admission. He is like a person who has placed the correct token in a turnstile to go three sections on a subway, and who has then endeavoured to retrieve that token from the turnstile and use it again to go a further two sections on the subway. I also consider that practical training in a lawyer�s office as a third-year and fifth-year law student is not as valuable as practical training post-graduation and post-admission because then the trainee is better qualified to gain more from that practical experience. Also post-admission the trainee is able to appear in the superior courts which a law student is not permitted to do.

It remains for me to consider whether Mr Siaguru�s post-admission experience in the Department of Foreign Affairs and Trade, especially when he was the Head of the Department between 1975 and 1979, is equivalent to the full-time experience gained by working under a lawyer holding an unrestricted practising certificate. I consider that it is not equivalent for several reasons. First, it is a very restricted area of law. Secondly, Mr Siaguru was receiving advice, not giving it. During that time Mr Siaguru was the Head of the Department receiving advice on these matters from a fully qualified lawyer, Mr Dabb. I have no doubt that Mr Siaguru, being a lawyer at the time, took an intelligent interest in the advice which he sought and received but he did not draft the advice, and I consider that as Head of a busy Department he did not have the time to research independently the law and check that advice. He was merely the intelligent and well-informed recipient of legal advice. Thirdly, in those years he did not gain court experience. I consider that Mr Dabb�s opinion in par 6 of his affidavit saying that Mr Siaguru�s legal experience in the Department of Foreign Affairs is �capable of being at least equivalent� to a person being employed full time with a lawyer holding an unrestricted practising certificate for two years, is nonsense. It smacks of a person not familiar with the wide scope of practice or overwilling to help a friend to get an advantage.

On my review of the Council�s decision, I can find no fault with it. If my function under s 45(2) is not so much to review the decision but to review the application, then I, too, have come to the same conclusion. I therefore uphold the decision of the Society to refuse the application. I will hear the parties on the question of costs.

Decision of Council of Law Society upheld

Lawyers for the plaintiff: Blake Dawson Waldron.

Lawyer for the defendant: K Y Kara.