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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
MP NO. 88 OF 1997
BETWEEN
PAPUA NEW GUINEA LAW SOCIETY - Informant
And
RICHARD STEGMAN - Defendant
Mount Hagen
Injia J
17 February 1997
9 May 1997
LAWYER - Prosecution under Lawyers Act 1986 - Company employee not a “lawyer” and not admitted to practice under the Act calling himself “Legal Officer” and head of Company’s Legal Department - Whether such person holds himself out or represents himself to be a Lawyer - Lawyers Act 1986, S.60(1)(b).
Cases Cited:
No cases are cited in the judgment.
Counsel:
P Kunai for the Applicant
R Stegman in person
9 May 1997
INJIA J: This prosecution is brought by the Papua New Guinea Law Society (PNGLS) against the defendant under the Ls Act 1986 (her (herein after referred to as the “Act”). The prosecution was initially commenced in the Distriurt at Mount Hagen but because of the definition of “Court” in the Act, to mean mean the National Court, the case was trared to this Court under S.23 of the District Courts Act (Cht (Ch. No. 40).
The PNGLS is empowered by the Act to institute prosecutions against any person who is not a lawyer for breach of provisions of the Act: S.8(d).
By information dated 6 November 1996, the PNGLS charged the Defendant under S.60(1)(b) of the Act. The charge reads in “#8220;that on 20th May 1996 and 19 August 1996 at Mount Hagen, you Richard Stegman have held yourself out or represent yourself to be a lawyer when you hot been admitted to practice as a lawyer” thereby cony contravening Section 60(1)(b) of the Lawyers Act No. 66 of 1986.
Section 60 (1) (b) of the Act provides:
“(1) & It is an offence foce for a person who has not been admitted to practice as a lawyer:
(a) ...
(b)ـټ to hold himset or sent himself to b to be a lawyer.
Penalty: A fine none not exceeding K1,000.00.”
Section 1 defines a lawyer as a n whobeen ted to practice as a lawyer under the Act.
It was allegedleged by P by PNGLS NGLS that on 20 May 1996, the Defendant swore an affidavit in support of a pending Court case before the District Court in Mount Hagen wherein he identified himself as a “Legal Officer”. It is further alleged that on 19th August 1996, the Defendant wrote a letter to the Lawyer for Steamships Trading Limited in relation to a pending Court case wherein he again identified himself as a “Legal Officer”.
The Defendant denies the charge. In his affidavitence, he a he admits that he deposed to the said affidavit and wrote the said letter and called himself a “Legal Officer” of his employer companies even though he is not a “lawyer” within the meaning of the Act. But he denies that doing,oing, he held himself out or represented himself to be a lawyer. The Defendant in his afit avit gives a detailed explanation as to why he is not guilty of committing an offence under S.60(1)(b) of the Act by calling lf a “Legal Officer”. It is necessary to set out his affidavit in full.&#ll. He sap>
“1. #160; ـy0; My name is Mris Mr Richard Stegman and I am not a Lawyer.
2. ; I60avn hmp sinc middle ofle of December 1995 as Head of the Lega Legal Department or the Officer in chargeharge of t of the Legal Department at Plumes & A.e App, ̵p>
3.   &< &160;  Because I am the He Officefficer in charge of the Legal Department at Plumes & Arrows I
can use the phrase, “Legal Officer”, in Affidavits and other Correspondence which refer to legal mattep> (a)  ftina Civil Default Sult Summonses against Individuals, Companies, and Government Departments for the non-payment of outstanding
debts. (b) &##160;; Dra Defe Affidavits, Notices etc. for. for the the same same CivilCivil Default Summonses against Individuals, Companies,
and Government Depnts. (c) Aitendeag hgs ind Trnals oals of the same to e to theirtheir completion. 5. &##160; T60; The Legaa Depnttme Plat Plumes & Arrows does not charge for its services. It y takes outstanding invg invoices
passed on fromAccouepartand issues Civil Default Summ Summonses against Individuals, Companies,nies, and and GoverGovernment Departments,
whatever the case e. The Department is t is only interested in collecting the money owed to it (Plumes & Arrows) by various
Individuals, Companies, and Government Departments. The Legal Department does not accept work from outside Companies, neither does
it offer legal advise. 6. ;ټ I have have been aeen accused of offending Section 60(1)(b) of the Lawyer’s o. 66 of 1986. The Lahe Law reads
and I quote, “It is an offence for a person who has not been admitted to practice as a lawyer to hold himself out or represent
himself to be a lawyer”, end of quote. I deny most vigorously thcs accusation because of the following reasons: (a) ـ The expe expression, “Legal Officer”, around which the entire canges can be defined as someone who is in
charge of a Legal egal Department and who handles the legal matters of that Department. Thiividues noe to beto be o be a La a Lawyer.
He can be any well educated individual. The Defendant is the Offi Officer of the LDepartment of Plumes & Arrows. See Apx,
‘A’.<17;. (b)
Fur becaus Defe is employeployed by P by Plumes & Arrows as head or Officerficer in charge of the Legal Department
which drafts Civil Default Summonses ag Indils, Cies, overnDepartments for ther the non- non-paymepayment ofnt of outs outstanding
debts, he can use the phrase, “Legal officer”, in Affidavits and Correspondence referring to legal matters without holding
himself out or representing himself to be a lawyer. (c) ; Further, in tre portion tion that I have received of the Lawyer’s Act (57, 58, 59, 60 & 61) the phrase, “Legal
Officer”, is not defined in the Lawyer’s Act as being synonymous with the word Lawyer. In fact it not define the the
phrase, “Legal Officer”, at all. Neither does this portion of the Lawyers Act, that I haveived, state or imply that to use the expression, Legal Officer”, one is holding ones oneself out or representing
oneself to bewyer. So how is the Defendant oifending against this this Act? Further if the expression, “Legal Officer”, can be construed to mean Lawyer there would be other such phrases in the English
language that could be interpreted to mean lawyer thus creating possibility after possibility for an individual to offend against
this Act. Indals would be subject toct to the whims of other individuals and groups. It would also appear that whenever an individual places the adjective “Lega21; in front of a significant word he or she can
be in dang danger of holding him or herself out or representing him or herself to be a Lawyer. Certainly this ot the inte intention
of the law maker. (d) & therr the the wordinording of Section 60 (1) (b) of the Lawyer’s Act has too broad a meaning, includes too many
possibilities, thus opening itself fsinteationse and the whims of other individuals aals and grnd groups.oups. What exactly does
the phrase, “to hold himself out or represent himself to be a lawyer”, mean? Where are the prac, concreoncrete examples
to clarify this expression so thatan be made applicable to individual cases. There are are no Sectionuor Subsection references
with this phrase in the Lawyer Act Section 60 to clarify rify it. one uses the expression, ion, “Legal Officer”,
how does one know he is holdingelf out or representing himg himself to be a Lawyer? (e) ـ The Affe Affidavits that have been presented in the court proceedings with the phrase, “Legal Officer”,
underneath the signature of the Defendant have been accepted OT RED by arious ious Magistrates in the District and LocalLocal Cour
Courts. Consequently the Magistrates themselves did not think that the Defendant held himself out or represented himself to be a
Lawyer by using the expression, “Legal Officer”, else would not have accepted them. (f) &160; ; Th0 Defendant has not helt held himself out or represented himself to be a lawyer by attending in court to the Default
Summonses for Plumes & Arrows. Magistrates themsecan allr allriousvidua attend to c to cases ases in coin court if they think
they are suitable. The Defendant has been presenting cases in court for Plumep; Arrows for over a year now. The tnumber of caof
cases ases (some concluded, some still pending) are over 80. The Defenhas been ad by thby the various Magistrates to attend to thto
these Civil Default Summonses in the District and Local Courts to their compn. Thus the Magistrates have given the Defendant TACIT
PERMISSION to act in this capa capacity. (g) &#The Magistrates themselveselves know that the Defendant does not hold himself out or represent himself to be a lawyer in
court b fact theyys atto the cases of the Lawyers first before they let the Defendafendant prnt presentesent his his case or cases. (h) ;ټ The Defe Defendantndant himself does not hold himself out or represent himself to be a Lawyer by his conduct in court
a the trar’s Office. In court hs in the back wick with the onlookers and onnd only aply approaches the Lawyer’s bench
when his case is on or he is told to by the Magistrates themselves. At the Registrar’s Office the Defendant waits with the
other people outside the grill until the clerks have time to serve those waiting. (i) ټ n60; nclusion I have nevel called myself a Lawyer. I have never written, R “Lawyer”, under my name.
I have a deto bewyer.; Wit; With all due respect I have have Certificates and Degrees from the U.he U.S.A. S.A. that that have been
harder and longer to get than th Degree.” His evidence is supported by the evie evidence of Mr Peter Van Fleet and Peter J. Spencer who are the “owners” of Budoa
Investments Pty Ltd, Tribal World (PNG) Pty Ltd and Minj Hotels Pty Ltd. Mr Stegman is said to be the “Legal Officer”
of all these companies as well as Plumes & Arrows Hotel. I agree with both parties thatcentral issue in this case is whether a person who is not admitted to practice as a lawyer wyer under
the Act and calls himself a “Legal Officer” holds himself out or represents himself as a lawyer within the meaning of
S. 60 (1) (b) of the Act. The Defendant admits that he is not a lawyer as defined under S. 1 of the Act. He submits thcause the
defe definition of a “Lawyer” in the Act does not mean or include a “Legal Officer”, it is not an offence
under S. 60 (1) (b) ll himself a “Legal Officer” and do the things ings he is presently engaged in doing for his employer.
It would be ical extensionnsion of his argument that if he called himself a “Lawyer” when he was not admitted to practice
as a l under the Act, and did the very things he is doing now, he could be held in breach of S. 6 S. 60 (1) (b). Counsel for the prosecution submits that although the definition of the word “Lawyer” in the Act is not wide enough to
include terms like “Legal Officer”, the use of the term “Legal Officer” in the documents in Court proceedings
misleads the public and the legal profession into thinking that he is a lawyer duly admitted to practice under the Act when in fact
he is not and therefore, he is in breach of S.60 (1) (b) of the Act. It is necessary to define the term “Legal Officer” in the generic sense. If in a generic sense, “Legal Officer”
means a “Lawyer”, is Mr Stegman representing or holding himself out as a “Lawyer” by calling himself a “Legal
Officer” within the meaninS. 60(1)(b) of the Act?? Tost me in my task of inte interpreting the words “Legal Officer”,
I am not referred to any authorities or treatises by both parties. In my view however, the ordinary English meaning of a “Lawyer” and “Legal Officer” is beyond doubt. A “Law8221;
is defindefined as a member of the legal profession, or a person versed in law: The Conciford Dictionary.&ary. The word 0;Legal”
is1; is an adverb of the word “La21;. RgalRl” means eans according to or relating to, based on, falling within
the provisions of or occupied with law:he Co Oxford Dictionarionary. The ph“Legal Officerficer” has a wide meaning.&#ng.
In a ic sense, a “Le20;Legal Officer” is synonymous with a “Lawyer”. In otheds, a “Lawyerawyer”
is a “Legal Officer&#. A officer is therefore a re a person who performs orms duties in the field of law. He could be aiser
on mattematters o, he be involved in t in the preparation and publication of legal documents, he could representesent people in
legal matters in meetings,egotiations, and in tribunal or court hearings. In eiIn either tion, a pera person who calls himself a
“Legal Officer” or a “Lawyer” must possess some qualification knowledge and skill in the field of law to
call himself a “LOfficer” or a “8220;Lawyer”. The statutory definition of a “Lawyer” in the Act is a restricted one. Not every person who chims himself a “Lawyer”
is a “Lawyer” within the meaning of the Act. Fotance, a Law Graduate whte who only holds a LLB degree and completed
pre-admission courses at the Legal Training Institute only person whose previous admission has expired but is not renewed may call
himself a “La20;Lawyer” without being admitted to practice under the Act - in a generic sense without offending S. 60
(1) (b). For there ary kinds of legf legal work that a person who possess a legal qualification (such as law degree) and legal experience
but who is not admitted to practice under tt can do. For example, he could lega legal adviser orer or officer of a government department,
a company, an institution, etc. Therefore, it seems to me that what is important under S. 60 (1) (b) is not what legal name a person
calls himself per se but having given himself a legal name, what that a person does. It isly a question of what what a person admitted
to practice law under the Act is entitled to do or things which a person not admitted to practice under the Act is not entitled to
do. The nogical question then is whes whether the Act defines or prescribes those activities which are exclusively reserved for persons
admitted to practice as “Lawyers” under the Act. Upon admission to practice as a lawyer, a person may be either issued with an unrestricted or restricted practicing certificate: S.
39. The holder of an unrcted pted practicing certificate “entitles” that person “to practice as a lawyer in any
manner allowed under the Act”. S. 39 (3).& A reted practiracticing certificate holder “entitlesitles the holder to practice
as a lawyer, but not - (a) on his own account(b) in partnership with another lawyer; or hold moneys in trust for another person who
is a is a client”: S. 39 (4). But ct does not specificalfically define what “practicing as a lawyer” involves
in terms of legal work. I am also ware y prevailinailing promulgation or regulations or rules under the Act. Section 6ion 60 (2) & (3) may provide some assie on this point. Section 60 (2)) define spee specific offences relating to the
conduconduct of non-lawyers who do specific things which only lawyers admitted to practice under the Act can do. S. 60 (2) &
(3) provides: “(2) St to ctise (3)n (3), it i it is an offence for a person who has not been admitted to practise as a lawyer, in expectation
oee, gr othward: (a)   &#to0; aw dr prerare a will will or l or otherother test testamentary settlement; or (b) ـ to drawror prepare pare a conveyance or other deed or instrument in relation to real or personal property; or (c)ـ҈& to issue, defend or carry on a court action or proceedings in the name name of a of anothenother person. Penalty: ;ټ < A60; A fine not exceeK1,00K1,000.00. (3) ـ It is n is not an offence agaSubse (2) where the person: (a)  wingaor preparreparingaring ting the will or other testamentary settlement; or
(c)ـ҈ issuing, defending or carrying on a court action or proceedings in then the name name of another person, was, at
the time of the alleged offence - (d) a public offiwer, rao dor s or prepares documents in the course of his official duty; or (e) & an employee of a lawyer ayer admitted to practise who, in his capacityn emp, carout general legallegal work work in t in
the ordinary course of his employment on behalf of his employer.” It may be inferred from S. 60 (2) and (3) that the specific things set out in (2) (a), (b) and (c) are reserved for lawyers admitted
to practice under the Act. They hings which only lawy lawyers admitted to practice under the Act can do and they’re entitled
to charge a fee or receive a or reward for doing those things. A person who is employed and paid by a company to d to do these things
may be deemed to be a person who is engaged to do them “in expectation of a fee, gain or other reward” . gain or reward
is in trm otrm of his salary, a form ofrm of income received for performing legal work. The only exceptions are i he is a “Public
Of” of the company or an employee of a lawyer admitted tted to practice under the Act: S. 60 (3) (d) (e). The evidence in nstant case is that the Defendant whilst calling himself a lf a “legal officer” is engaged as an employee
of the Budoa Investments Pty Ltd trading as Plumes & Arrows. He is thd of the Legal Depl Department” of these companies
for which I assume the position is fully funded and remuneration provided for the person so employed. egman holds no secret bei
being a legal man with legh legal knowledge and skill and his ability to do things which only a lawyer admitted to practice under
th is entitled to do. For instanc his affidavit avit ofit of 20th May 1996 filed in the District Court in Mount Hagen in the matter
of DC No. 80/96 between Budoa Investments Pty Ltd trading as Plumes & Arrows v (1) Mr Danny George, (2) Mr Tommy Goddard and,
(3) New Guinea Motors Pty Ltd, he deposed to the following: “(2) chardman gm them the LegalLegal officer of Budoa Investments Pty Ltd, Tribal World (PNG) Pty Ltd; and Minj Hotels Pty
Ltd, and act on behalf of Mr Peter Van Flehe Dir, anPeter James Spencer, the owner in this this mattematter.r.” It is not disputed that the Defendant is not a Public Officer of these Companies such as a Director or Company Secretary. There is
also no dispute hhat he is not employed by or works under a lawyer admitted to practice under the Act. Thereforfind that he does
does not fall into the exceptions in S. 6 (d) or (e). But he has been preparid iand issuing, png, proceedings, defending or carrying
on court actions and acting on beha or in the name of these cose companies and their Directors and proprietors. In other words,
by doin vehe very things he is prohibited from doing or doing the things only lawyers admitted to practice under the Act can do,
he has been holding himself out or repting himself to the public in Mount Hagen, the Lawyers, the, the Lower Courts, and the Court
Registry staff to be a lawyer admitted to practice under the Act. s been employed by these cese companies for a reward in the form
of his salary. He has not toldDistrict Coct Court that he is not a lawyer, that he is not a Public Officer or that he is not employed
by a lawyer as a clerk, for which he would require the leave of the Court to appear in Court on behalf of his clienclients: District
Courts Act (Ch. No. 40), S. 59 (1)(e), Local Courts Act (Ch. No. 41), S. 24 (1)(e). He has deposed before the District and Local Courts thaacts on behalf of these Companies and on behalf of the Director and proprietors
and is enti entitled to do as a “Legal Officer” of the companies. B does not posses any lega legal qualifications whatsoever
which might put him in the category of “Legal Officer” in the general sense. The preparatf affidavits iits in these
proceedings and in the District Court in Mount Hagen and correspondences issued by him to Lawyers suggest that he has acquired some
knowledge and experience somewhermatters of law and procedurcedure and thereby he’s able to call himself “Legal Officer”
and do the very thingis pris prohibited under the Act and which activities only a lawyer admitted to practice under the Act is entitled
to do. doin has held himself outf out or represented himself to be a “Lawyer” within thin the meaning of S. 60 (1)(b)
of the Ac> For these reasons, I am satisfied that the PNGLS has proved its case to the required sred standard of proof, that is, proof beyond
reasonable doubt. I fin Defendant guilty of y of contravening S. 60 (1) (b) of the Lawyers Act. I will now proceed to istenister the allocatus, receive submission on sentence and determine the appropriate punishment. Lawyer for the Informant: Kunai & Co Lawyers Defendant in person
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