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Amaiu v Papua New Guinea Law Society [2014] PGNC 238; N5882 (23 December 2014)

N5882

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

O.S. NO. 750 OF 2014

BETWEEN:

PAUL AMAIU
Plaintiff

AND:

PAPUA NEW GUINEA LAW SOCIETY
Defendant

Waigani: Kariko, J
2014: 18th & 23rd December

Cases cited:

Emily Paneyu Dirua v Papua New Guinea Law Society (1996) N1467
Karingu v Papua New Guinea Law Society (unreported and unnumbered judgement) SCA 69 of 1996

Counsel:

P Amaiu in person
D Wood, for the defendants

RULING

23rd December, 2014

1. KARIKO, J: Paul Amaiu, a lawyer, has sought a review of the decision of the PNG Law Society refusing his application for an unrestricted practising certificate (UPC) for the year 2014 under section 45(1) of the Lawyers Act 1986.

Decision of Law Society

2. The Council of the Law Society at its meeting on 16th October 2014 refused Mr Amaiu's application when it resolved:

"1. Application refused. Amaiu did not qualify under paragraph (c) of the Application Form, which was the paragraph on which he based his eligibility. It was also noted that the applicant had not been employed exclusively as a lawyer for at least 2 years by a lawyer who held a UPC.

2. The Council had received evidence that Amaiu had practised as a lawyer without holding a Practising Certificate in 2014, and this was in breach of the Lawyers Act. It was resolved that this matter be referred to the Lawyers Statutory Committee."
   

Mr Amaiu was informed of that decision by letter dated 22nd October 2014 from the Law Society.

Application for review of decision

3. Section 45 of the Lawyers Act reads:

"45. Review of Council's decision.

(1) An applicant, who is refused an application for a practicing certificate, may apply to the Court for—

(a) a review of the decision by the Council to refuse his application; and

(b) an order directing the Society to issue him a practicing certificate on such terms as the Court thinks fit pending the review by the Court.

(2) The Court, on an application under Subsection (1), shall review the application to the Society for a practicing certificate and may—

(a) uphold the decision of the Society to refuse the application; or

(b) order that the application be granted.

(3) The National Court may, pending a review under Subsection (1)(a), grant an order under Subsection (1)(b).

(4) The Society shall comply with and give effect to an Order under—

(a) Subsection (2)(b); or

(b) Subsection (3)."

4. The Supreme Court in Karingu v. Papua New Guinea Law Society (unreported and unnumbered judgement) SCA 69 of 1996, said:

"We are satisfied that pursuant to s 45 (2) the Court 'shall review the application to the Society....' which in our view amounts to a reconsideration of the application. The Orders that the Court may make are also supportive of our view that the review envisaged is in fact a reconsideration of the application. The Orders that the Court may make are to:

(a) uphold the decision of the Society to refuse the application; or

(b) order that the application be granted"

5. The practice requirements for a lawyer to be eligible for a UPC are provided under section 41 of the Lawyers Act. Those requirements have been imported onto the relevant application form (Form PCA 2) required to be completed by an applicant for a UPC. In summary those requirements (relevant to the present case) are that the applicant must be:

(a) A lawyer qualified to hold a restricted practising certificate (RPC) who has practised for at least two years since admission under the supervision of a UPC holder;

(b) A lawyer qualified to hold a RPC who has practised for at least two years in the last five years under the supervision of a UPC holder;

(c) A lawyer who has practised for at least two years in the last five years within a class of lawyers prescribed by the Rules (referring to the PNG Practising Certificate Rules 1990) and has gained experience equivalent to that prescribed under paragraphs (a) and (b); or

(d) A lawyer who has obtained practice experience equivalent to that prescribed by paragraphs (a) or (b).

6. Mr Amaiu applied for his 2014 UPC under paragraph (c) which reflects section 41(b) of the Lawyers Act. The Law Society decided that he did not qualify under that paragraph. The class of lawyers prescribed by the PNG Practising Certificate Rules 1990 are:

"(a) A lawyer employed by the State, a provincial government or a body established by statute;

(b) A barrister resident outside Papua New Guinea;

(c) A lawyer who practised as a lawyer under the Lawyers Act (Chapter 91) on his own account as of 1 July 1998 and is a holder of an unrestricted practising certificate; and

(d) A lawyer who practised as a lawyer under the Lawyers Act (Chapter 91) in partnership as of 1 July 1998 and is a holder of an unrestricted practising certificate."

7. While it is correct that Mr Amaiu does not meet the criteria under paragraph (c) of Form PCA 2 that is section 41(b) of the Lawyers Act, it is also clear that the minimum level of practice experience required to qualify for a UPC is two years practise under the supervision of a UPC holder or the equivalent practise experience.

8. The records of the Law Society show that Mr Amaiu has been a holder of a practising certificate since 1990 except for the years 2000, 2008 and 2009. For most of those years that he held a certificate, it was in the form of a UPC. In the last 5 years he was issued a RPC in 2010 and 2013 while in 2011 and 2012 he was granted a UPC. It is a proper inference that when Mr Amaiu's application for UPC was considered in 2011 and 2012, the Law Society would have been satisfied that he had the requisite practise experience to qualify for a UPC. In 2014 therefore Mr Amaiu would have qualified for a UPC on the same basis. While he may not qualify under the criteria he applied under this year, he must be qualified under paragraph (d) of Form PCA 2 or section 41(1)(d) of the Lawyers Act – that he has obtained the requisite practise experience.

9. Section 41(1) vests a discretionary power in the Law Society; Emily Paneyu Dirua v Papua New Guinea Law Society (1996) N1467. In my view the Law Society should have acknowledged that Mr Amaiu had referred to the wrong eligibility ground, corrected that and issued him with a UPC. The Law Society's decision to outright refuse the application for citing the wrong eligibility criteria for a UPC, was unreasonable in the circumstances.

10. Counsel for the Law Society correctly agreed that the alleged breach of the Lawyers Act referred to in the Society's letter of 22nd October 2014 is not the basis for the refusal of Mr Amaiu's application for a UPC. That matter is for the Lawyers Statutory Committee to deal with, and even the Law Society could prosecute Mr Amaiu. Counsel however impressed upon the Court that Mr Amaiu did not comply with the Council's request for further information regarding his practice. I find no evidence that the application for a UPC was refused for failure to comply with a request from the Council.

Orders

11. Accordingly, I quash the decision of the defendant made 16th October 2014 refusing the plaintiff's application for an unrestricted practising certificate. As this year is almost up, I order pursuant to section 45(2) of the Lawyers Act that the defendant issue to the plaintiff an unrestricted practising certificate for 2015, subject to him satisfying the eligibility criteria other than practise experience. I further direct the payments made for the 2014 application fees and indemnity insurance is taken into account for the 2015 dues. Costs in relation to this application are ordered in favour of the plaintiff.

__________________________________________
The plaintiff in person
Ashurst Lawyers: Lawyer for the defendant