N1176

PAPUA NEW GUINEA
[In the National Court of Justice]

OS 2 (L) OF 1993

IN THE MATTER OF THE LAWYERS ACT 1986
AND IN THE MATTER OF AN APPLICATION
BY PETER NORMAN MOORE

Lae: Sevua, J
17th & 24th September 1993

Lawyers - Lawyers Act 1986 - Admission to Practice - Requirements for Admission - Foreign lawyer - Application to be admitted as a lawyer under S.26 - Application to waive requirement of S.25 (3) (d) under S.28 - Certificate that applicant is a fit and proper person - Discretion to issue certificate under S.25 (3) (d) - Discretion vested in Attorney General - Court has no concurrent discretion with Attorney General under S.25 (3) (d) - Power to waive - substantial compliance.

Cases Cited:
The following case is cited in the judgement:
PNG Law Society v Martin Dennis McEniery SC 446

L Milner for the Applicant

SEVUA, J: This is an application for admission to practice law in Papua New Guinea by Peter Norman Moore. As I understood, the application is twofold. Firstly, the applicant is applying in pursuance of S. 28 (2) of the Lawyers Act to waive the requirement of S. 25 (3) (d) and secondly, pursuant to S. 26 he is applying for admission to practice as a lawyer. S. 25 (3) (d) deals with the issuance of a certificate by the Attorney General that the applicant is a fit and proper person to be admitted to practice in Papua New Guinea.

Apart from this application, there is another application pending before this Court. That application is for judicial review of the Attorney General's decision of 1st July, 1993, whereby he refused to issue a certificate pursuant to S. 25 (3) (d). I mention that application because in my view it will be necessary to refer to it in this judgment, although I am not deciding the issues involved in it. I will refer to that application later.

The application for admission was set down for hearing on 24th September, however, as the PNG Law Society is not opposing it, leave was sought to have it brought forward to today. I was of the view that it be heard immediately since the applicant's continued presence in the country is on the basis of pursuing his application for judicial review only and not for employment purposes. I granted leave to hear this application because of the urgency surrounding the circumstances of this case as referred to above.

Firstly, the applicant makes this application pursuant to S. 28 (2) which states, "in considering an application for admission to practice as a lawyer, the court may waive all or any of the requirements of Section 25" (underlining mine). S. 25 (1) of the Act provides, "an applicant for admission to practice 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." Under that section therefore, the applicant must satisfy the National Court of three requirements. Thus he must satisfy me that firstly, he possesses the required academic qualifications, secondly, he possesses the required practice qualifications and thirdly, he is a fit and proper person to be admitted as a lawyer.

The applicant attended the Queensland Institute of Technology and was awarded the degree of Bachelor of Laws on 20th March 1986. On 24th February 1986 he was admitted as a Barrister of the Supreme Court of Queensland however he did not practice due to his employment there. On 21st April 1989, he was admitted as Barrister and Solicitor of the Supreme Court of the Australian Capital Territory, but did not practice there. On 15th May 1989 he was admitted as a Solicitor of the Queensland Supreme Court. He has held practicing certificates from the Queensland Law Society for the periods of 16th May 1989 - 30th June 1989, 1st July 1989 - 30th June 1990, 1st July 1990 - 30th July 1991, 1st July 1991 - 30th June 1992 and 1st July 1992 - 30th June 1993.

Between mid March 1989 and 23rd February 1993, the applicant was employed as a Solicitor in a number of legal firms and practised in Brisbane, Toowoomba, Rockhampton, Cairns, Caboolture and Lawnton in the State of Queensland. He has had considerable experiences in a wide variety of litigation matters in the Magistrates, District and Supreme Courts of Queensland and the Family and Federal Courts of Australia. He has had considerable experience in the preparation of legal documents, litigation in civil, criminal and family law areas. He has gained considerable management experience in small and medium law firms and has been familiar with facets of office management and numerous other aspects of legal practice. He has also been a police officer in the Queensland Police Force for 15 years.

On the evidence before me I am satisfied that the applicant has fulfilled the first two requirements of S. 25 (1). However, he lacks the third requirement, thus the application for waiver.

I have before me evidence confirming that the applicant was admitted as a Solicitor of the Supreme Court of Queensland on 11th May 1989. His name is still on the Roll of Solicitors of Queensland and has never been removed therefrom. The Queensland Law Society has no record of any complaint being received requiring disciplinary proceedings against him and no order has ever been made directing him to be suspended from practicing and no charge has been held against him for professional or other misconduct. The Queensland Law Society believes the applicant to be a fit and proper person to be admitted in another jurisdiction.

The Dean of the Law Faculty of the University of Papua New Guinea has sworn an affidavit that the applicant's academic qualification is equivalent in standard and content to a law degree from the University of Papua New Guinea.

I am further satisfied that the necessary prerequisites or other requirements under the Act and the Lawyers Admission Rules preceding the application for admission have been complied with. I am also satisfied that the applicant has passed the prescribed examinations.

On the basis of the evidence before me, counsel therefore submitted that I should exercise my discretion to declare the applicant a fit and proper person therefore waive the requirement of S.25 (3) (d) and admit him to practice as a lawyer. With respect, I consider that this contention is misconceived and mischievous. The discretion to hold an applicant a fit and proper person to practice is a discretion which rests solely on the Attorney General by virtue of S. 25 (3 (d). I cannot see any concurrent discretionary powers here to be exercised by the Court and the Attorney General. In my view the Attorney General's discretion is a matter of policy decision which this Court cannot interfere with unless the exercise of such a discretion is outrageous or is exercised unlawfully, for instance on the basis of race, sex or religion.

If counsel makes this submission on the basis of the Court's inherent powers under the Constitution then I consider that I have not had the benefit of full arguments on this aspect thus I regret that this should be left to some other time for final disposition.

Because the Lawyers Act does not give the Court any discretion under S. 25 (3) (d) in a situation where the Attorney General, in his discretion, has refused to issue a certificate, I have no discretion to exercise and I consider that I would be in error if I step in and exercise a discretion which I do not have. And speaking of this discretion, whilst I sympathise with counsel's predicaments in respect of endeavours to comply with the legal requirements for admission, I consider that there is some evidence which justified the Attorney General's refusal to grant a certificate.

Annexure 'G' which is an unsworn affidavit of the applicant annexed to his affidavit sworn on 27th August 1993, paragraph 10 states, "I came to Lae in Papua New Guinea on the 6th day of March 1993 and took up position as an Assistant to Lata Dahya Milner of Milner & Associates, Lawyers and Attorneys". There can be no doubt in my mind that here, the applicant was deposing to facts. He was engaged upon his arrival and it is obvious from the foregoing that he had been or was practicing in Lae before he was admitted to practice. Why then shouldn't the Attorney General here refused to issue a certificate in his discretion? In my view, his discretion cannot be said to have been exercised maliciously or without lawful basis.

The Attorney General has, in his discretion, refused to issue a certificate that the applicant is a fit and proper person to be admitted as a lawyer in this country. That discretion as I said is vested in the Attorney General alone and since he has exercised it and has refused to issue a certificate, how then could I go around this refusal without offending the discretionary power of the Attorney General? In my view, I cannot challenge the Attorney General's exercise of his discretion unless it can be established that he has acted unlawfully, maliciously or in excess of his jurisdiction. On that basis, I do not see how I can waive S. 25 (3) (d).

Counsel has referred me to the recent Supreme Court decision, PNG Law Society -v- Martin Dennis McEniery, SC446, 30th July, [1993] which deals with "substantial compliance". When asked if compliance with the first two requirements of S. 25 (1) would be seen as substantial compliance, counsel said no, substantial compliance would mean compliance with all the requirements. What then is "substantial compliance"? It is not defined by the Supreme Court yet the Court said it is the proper standard to be applied to S. 28 (2) of the Act. On p. 5 of the judgment, the Court said, "the test to be applied is not "on the balance of convenience" but whether there has been substantial compliance with S. 25 of the Act.............. On any view this could not be said to be substantial compliance with the legislation and therefore he is not qualified for admission as a lawyer in Papua New Guinea at this time".

Going by the Supreme Court decision I would hold that the applicant possesses the required academic and practice qualifications, however, as the Attorney General has refused to issue a certificate that the applicant is a fit and proper person to be admitted as a lawyer, this could not be said to be substantial compliance with the Act. Accordingly, the applicant would not qualify for admission as a lawyer.

In relation to the application for judicial review that I alluded to earlier, I am of the view that this application is improper in the light of the fact that the applicant's application for judicial review is still pending before this Court and has not been withdrawn or discontinued. The implication thus is that, if he fails in his application for waiver or admission, the applicant can fall back to his application for judicial review. With respect to the applicant he just can't have two bites at the cherry. I would have thought the application for judicial review would have preceded this application, however, I am not here to decide what should or should not have been done in this case. What concerns me here though is the manner in which this application was brought whilst the application for judicial review relating to the same cause is still pending. In my view this amounts to abuse of the process of the Court. Proceedings which in any way employ the court's process for an improper purpose or in an improper way may be stayed or dismissed for abuse of process. This Court has an inherent jurisdiction to stay or dismiss proceedings which are frivolous, vexatious or an abuse of the court's process. Whilst I do not hold that the applicant has acted in a frivolous or vexatious manner, I consider it improper and an abuse of the process when the application for judicial review is still pending.

For these reasons, I will refuse the application for waiver and therefore will not admit the applicant to practice as a lawyer in Papua New Guinea.

Lawyer for Applicant: Milner & Associates