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Milpa v Gena [1995] PGNC 50; N1405 (12 December 1995)

Unreported National Court Decisions

N1405

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APP 193 OF 1995
JOHN MOL MILPA - APPELLANT
V
PHILIP GENA - RESPONDENT

Kundiawa

Akuram AJ
11-12 December 1995

PRACTICE & PROCEDURE - Lawyers Act, Lawyer under suspension with pay by his employer - acting as lawyer for the Appellant - No Application for leave made.

PRACTICE & PROCEDURE - Lawyers Act - Lawyer under suspension with pay by his employer - NCDC - Acting as lawyer for the Appellant - Objection by the Lawyer for the State (Respondent) as having no “unrestricted Practicing Certificate” - And no leave by his employer (NCDC) to act for Appellant.

Counsel

Mr Yayonga D Bal for Applicant

Mr Francis Kuvi for the Respondent

12 December 1995

AKURAM AJ: This is plication by the Rthe Respondent’s lawyer, Mr Kuvi, objecting to Mr Bal acting as a lawyer for the Appellant. His grounds that:

(

(i)ـ &##160; Mr Bal is curs currently ymployed by d by the National Capital District Commission but is under suspension;

(iii) Even if he is employed, he will still have to obtain leave by the National Capital District Commission to represent the Appellant.

Mr Bal concedes that he is under suspension by his employer but argues that this matter was given him during his suspension while he was in the Province (Simbu). The Appellant equested hisd his assistance. Hs not hold himself out asut as a lawyer practising on his own right nor does he hold any moneys for anybody. He is pursuing theer on a on a personal and a party to any leny legal proceedings is entitled to any lany lawyer. He is not remunerated but acting, in a way, as an Amicus e (friend of the court) to assist the appellant.

As p>As to the third argument for the objection I find that it is true that M has not been given leave by his employer, the National Capl Capital District Commission, to act for the Appellant as he is currently employed by the National Capital District Commission. On nd ground I also find tind that Mr Bal has no “Unrestricted Practicing Certificate” as he is an employee of the National Capital District and does not operate a Trust Account as red under Section 41 of the Lthe Lawyers Act, No 66 of 1986 (as amended).

As to the first ground, that Mr Bal is currently under suspension by his employer and therefore cannot represent the Appellant. From this argume take it a it and am of the view that he is under suspension with pay so he cannot act or hold himself out as a lawyer and act for another person whilst under suspension. Under Section 33 of awyerswyers Act dealinealing with “Practice” it is said that:

“A person:

(a) & who has been admitted to d to practise as a lawyer under Section 28; and

(b) hgs sithed oll R/p>

mayp>may practise as a lawyer in accordance with the provisions of this Act.” (emphasisd)

Ther pions,ions,he Acling with Practising Certificates are section 35 (R35 (Requirequirementement to h to hold aold a Practicing Certificate), section 37 ricted Practicing Certificates), section 39 (Practicing Cerg Certificates), section 40 (Restricted Practicing Certificate) and section 41 (Unrestricted Practicing Certificates). The main sectare 35, 40 &a40 & 41 on the requirement to hold a Practicing Certificate and the requirement is that as long as a person has signed the Roll and is the current holder of a Restricted or anstricted practising Certifirtificate, should practice as a lawyer, which I set out below:

“35. REQUIRETO HOLD A PRACTISINTISING CERTIFICATE

(1) soperhal snot ractise as e as a lawyer unless:(a)&ـ he has signed tll, and

(b) ##160&&#160 he i he is the holder of r current restd or trictactising certificate.

(2) &##160; A persoperson who psactis s as a lawyelawyer conr contrary to the provisions of Subsection (1) is guilty offe/p>

Penalty: Aty: A fine not exceeding K1,000.00.

40. ټ RESTRICTTRICTED PRAD PRACTISING CERTIFICATE

A lawyer who:

(a) &#1as signed the Roll; and

(b) &ـ is a ci a citizen izen or ent oua New Guinea, maa, may be y be issued with a restricted practising certificate.

41. &##160; UNRESTRICTED CTED PRACTISENG CERTIFICATE(1)& A lawyer may beay be issueissued with an unrestricted practising certificate if:

(a) &#1#1e:<&&60;&ـ1600; is t e holf, orf, or is enis entitled to hold,hold, a re a restricstricted pted practising certificate; and

(ii0;҈&&#160 beenoyed exclusively asly as a la a lawyer for:

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

(b) ҈ not lest less than two yenrs in the five years proceedhe da his cation for an unrn unrestriestricted practising certificate, by a lawa lawyer, who during the period of employment was the holder of an unrestrictedtisintificate; or

(b

(b) he:

(i) ـټ h60; has practised exclusively as a lawyer within a class of lawyers prescribed in the Rules for the purpose for a period of not less then two yeas in eriodive yimmediately prior to his application fion for an unrestricted practiractising sing certificate; and

(ii) &##160;; satisfitisfies ocis ociety that he has obtained experience in the practice of law at least equivalent to that ghat gained by an applicant under Subparagra) (ir

(c) & he:

>

(i)&>(i) ټ&#h60; ees been admi admitted to practise law for a period of not less than three years following his admission to practise in such countries as are prescribed by the Rules; and

(ii);ټ&##160; h60; has pras practisactised with a restricted practising certificate in Papua New Guinea for a period of not less than three months immediately prior to his application for an unrestricted practising certificate; or

(d) &#16 satisfies the Society iety that he has obtained experience in the practise of law, which, in the opinion of the Society, is at equit to gainean applicant under Subparagraph (a) (ii); or

(e) #160; &#160 he h he has been car on pron practice exclusively as a barrister in a country prescribed by the Rules of Court for a period of not less than five years precedin applon founrestricted prac practising certificate.

(2) &160; #160;ـ Fe the purposes of Subsecubsection (1) (e), “barrister” means a person who is a member of the bar in a country prescribed by the Rules of Court.

(3) ҈& Sect39 (2) a(2 4and 4and 42 (2)2 (2) (b) apply to an unrestricted practising certificate under Subsection (1) (e).”

Currentl. Bals under Section 37 as he has a Restricted practising Certificate and it requires ires that:that:

“(1) yer w thesholdeholder of a of a current restricted practising certificate shall not practise as a lawyer on his own account or itnersith ar lawyer or hold moneys in trust for another person who is a client.

>

(2)&#(2) & A lawyelawyer who practises contrary to Subsection (1) is guilty of an offence.

Penalty: A fine not exceeding K1,000.00.” asis ).

However, the issue does not end here but whether he can practice as e as a lawyer, which he no doubt may, whilst still employed but under suspension by the National Capital District Commission as their lawyer and still subject to their direction under his terms and conditions of employment. I ca answer this issue as e as I do not know the terms and conditions of his employment. All I can s that this is a is a question involving ethical conduct and is for the Lawyers Statutory Ctee to deliberate on as reqs required under Sections 48, 52, 53, 54, 55 & 57. Under Part V (Profnal Cond Conduct) of the Act. Ader sections 58 and 59, t59, this Court is empowered to hear appeals and impose penalties.

I therefore make the foll rulin the present application:

(1) #160;
h0; Tr t M is ents entitentitled to practice as a lawyer as he has a current Restricted practising Certificate;

(2) &#That I will grant leave tave to Mr Bal to rent thellanthe conditioditions thns that:

(a) ټ&#I will will refer efer him to the lawyers Statutory Committee for delibon inpresetuation; and; and

(b

(b) &##160;; That heat he underundertakes to inform the lawyer’s Statutory Committee of his current situation if he decides to proceed with this appeal.

Lawyer for the Applicant: Public Prosecutor

Lawyer for the Respondent: R Bal