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Kot v Law Society of Papua New Guinea [2016] PGNC 359; N6576 (24 November 2016)

N6576

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

L.A. NO. 125 of 2015


BETWEEN

In The Matter Of An Application By

KUI KOT


AND

In The Matter Of The

LAWYERS ACT 1986


AND

In The Matter Of The

LAWYERS ADMISSION RULES OF 1990


AND

THE LAW SOCIETY OF PAPUA NEW GUINEA

First Respondent


AND
THE LAWYERS STATUTORY COMMITTEE

Second Respondent


Waigani: Kandakasi, J.

2016: 17th March, 24th November


LAWYERS ADMISSION - Application for admission to practice by lawyer removed from the Lawyers Roll – Decision and actual removal from the Lawyers Roll not upset - Requirement for certificate as to “a fit and proper person” not met - Notice publishing intention to make the application published well short of the required 14 days – No case made out for grant of application - Sections 25, 26, 27 and 28 of the Lawyers Act 1986.


WORDS AND PHRASES - “Fit and proper person” - Meaning of - Factors to be considered – “Fit and proper person” requirement is in addition to academic and practice qualifications – Meaning of - Person with standing in the community and with good character - Lawyers Act 1986 s. 25(3)(d) .

Papua New Guinea Cases cited:
In the Matter of the Lawyers Act 1986 and In the Matter of an Application by Peter Norman Moore [1993] PNGLR 470.
In The Matter of The Lawyers Act 1986; In The Matter of an Application by Roger Gill Maguire for Admission as a Lawyer (2003) N2466.
Re Application by Goodwin Haumu for Admission as a Lawyer (2001) N2094.
Re:Sifta [1975] PNGLR 435.
William Powi (Acting Administrator for Southern Highlands Province) v. Southern Highlands Provincial Government 2006 SC844.


Overseas Cases cited:
Re Valvo [2014] NTSC 27.
Saunders v. Legal Profession Admission Board [2015] NSWSC 1893.


Counsel:

K. Kot in Person, for the Applicant
D. Wood, for the Respondents


24th November, 2016


1. KANDAKASI J: The Applicant, Mr. Kui Kot a lawyer whose name had been removed from the Lawyers Roll is applying for readmission as a lawyer. The Law Society of Papua New Guinea (Law Society) and the Lawyers Statutory Committee of Papua New Guinea (LSC) are opposing the application. In so arguing, they point out that a decision to have Mr. Kot’s name removed from the Lawyers’ Roll is in force which precludes this Court from dealing with and granting the application. They also argue that Mr. Kot’s application does not meet the requirements for admission as a lawyer under s. 25 (3) (d) of the Lawyers Act 1986 (the Act) in that he has not secured a certificate from the Attorney General (AG) as “a fit and proper person”. Further they argue that Mr. Kot has not met the requirements of s.27 (a) of the Act, because he has not published his notice of intention to apply for admission 14 days prior to the date set for a hearing of his application.


Relevant Issues


2. The issues for this Court to resolve are thus these are:


(1) Does this Court has jurisdiction to deal with an application for re-admission as a lawyer by a lawyer whose name had been removed from the Lawyers’ Roll?


(2) Is this an appropriate case in which the requirement for certification as a “fit and proper person” under s. 25 (3) (d) can be dispense with?


(2) Is the requirement for publication of a notice of a lawyer’s application to be admitted as a lawyer is mandatory and any failure to comply is fatal to such an application?


Relevant Facts


3. The relevant facts commence in February of 1983 when Mr. Kot graduated with a Bachelor of Laws Degree from the University of Papua New Guinea. During the balance of 1983, he attended the Legal Training Institute and was admitted to practice as a lawyer in November 1983. Soon thereafter, he started his legal career with the Office of the Public Solicitor and remained with that office until 1994. Following his resignation from the Office of the Public Solicitor, he joined the then law firm of William Neill Lawyers in 1995 and worked with that firm until 1997 when he left and set up his own law firm.


4. On 26th February 2004, the LSC inquired into a complaint made by a Wayne Tepra against Mr. Kot for dishonestly applying to his own use a sum of K90, 000.00. On 19th March 2004 the LSC found him guilty of improper conduct and imposed the following penalties against him:


(1) requiring him to refund the monies dishonestly used;


(2) requiring him to pay costs of K300;


(3) an application be made to strike his name off the Lawyers Roll; and


(4) all monies payable by him be paid with 8% interest within 30 days of the decision of the LSC.


5. Aggrieved by that decision, Mr. Kot applied for judicial review. The National Court refused the applicant on 21st July 2006. Thereafter, the LSC commenced National Court proceeding OS No. 1010 of 2005 seeking an order that Mr. Kots name be removed from the Lawyers Roll. On 13 February 2008, the late, Justice Davani granted that application. Being aggrieved by that decision, he almost immediately lodge an appeal against the decision of the National Court. The Supreme Court after having heard the parties, dismissed the appeal on 2nd September 2010. In arriving at that decision the Supreme Court noted Mr. Kot was the author of his own misfortune because he unduly delayed challenging the decisions that went against him. At the same time the Court noted that “it remains open to the Appellant [Mr. Kot] to make an application to the LSC for his position to be reconsidered.” Based on this part of the Supreme Court’s decision, Mr. Kot says he sought a reconsideration from the LSC on 16th September 2010, which by the way was the country’s Independence Day and would have been a public holiday. After much delay, the LSC in December 2015 took the position that it had no jurisdiction to deal with Mr. Kot’s request. The LSC pointed out that if Mr. Kot wished to, he could take the matter to Court.


6. Before the LSC’s decision, Mr. Kot on 15th July 2015, filed in proceedings LA 120 of 2015, an application by way of a Notice of Motion seeking directions that the Court waive the requirements under s.25 and s. 27 of the Lawyers Act. He asserted that these requirements had already been met during his initial admission in November 1983. On 19th August 2015, the National Court dismissed that applicant and his entire proceedings LA No. 120 of 2015. Thereafter, Mr. Kot sought the AG’s “fit and proper person” certification under s. 25 of the Act. On 29th September 2015, the AG, Hon. Ano Pala, CMG, MP, responded informing Mr. Kot that his request for certification under section 25 (3) (d) of the Act will not be granted. At the same time, the AG informed Mr. Kot that he had the right to go to Court and seek a waiver of the requirement for certification by the AG, if need be. That led to Mr. Kot filing the proceedings now before this Court. They were fixed for hearing on 16th March 2016. Before the hearing date, Mr. Kot caused a Notice of Intention to Apply for Admission to be published in the National newspaper on 7th March 2016, which was 8 days short of the required 14 days under s.27 (a) of the Lawyers Act.


The Relevant Law


7. The Lawyers Act and the Lawyers Admission Rules 1990 (the Rules) govern the admission of lawyers to practice law in Papua New Guinea. The relevant provisions are ss.25, 26, 27 and 28 under the Act and ss. 1, 2 and 3 under the Rules. Sections 26 and 27 of the Act and ss. 2 and 3 of the Rules provide for the mode and manner in which such an application can be made and where it ought to be made.


8. The arguments in this case are center around the requirements under s.25 (3) (d) and s.27 (a) of the Act. These provisions read:


“25. Qualifications for admission.

...


(3) The required practice qualifications referred to in Subsection (1) are —

...

(d) a certificate signed by the Attorney-General that the applicant is a fit and proper person to be admitted to practice in Papua New Guinea.”


...


“27. Publication and service of application.


An applicant for admission to practise as a lawyer shall—

(a) not less than 14 days prior to the date of his application under Section 26, publish in a newspaper circulating throughout Papua New Guinea, notice of his intention to apply for admission to practise as a lawyer...”

Issue 1 - The Courts jurisdiction


9. With the background facts and the law in mind, I will deal firstly with the jurisdictional issue of, does this Court have the jurisdiction to deal with an application for re-admission as a lawyer after applicants name has been removed from the Lawyers Roll? Mr. Kot relies on the provisions of ss. 155 (4) and 158 (2) of the Constitution and argues that this Court has the necessary jurisdiction to deal with his application. These provisions read:


“155. The National Judicial System.

...

(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.”

....

“158. Exercise of the judicial power.

...

(2) In interpreting the law the courts shall give paramount consideration to the dispensation of justice.”


10. Many lawyers and parties over the years tried to use these two provisions, to cover all sorts of situations in what was in essence an abuse of these provisions. One such attempt was made in the case of William Powi v. Southern Highlands Provincial Government.[1] The Supreme Court reviewed some of the cases on point up to that time and summed the important attributes of s. 155 (4) in the following terms:


“From the foregoing, we are of the view that, there are about five important features or attributes of s. 155 (4) of the Constitution. These are as follows:


  1. The provision vests the Supreme and National Court with two kinds of jurisdictional powers, namely orders in the nature of prerogative writs and the power to make “such other orders as a necessary to do justice in the particular circumstances of a case” before the Court;
  2. Although the power is inherent, it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights. Instead it is a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution;
  3. Where remedies are already provided for under other law, the provision does not apply;
  4. The provision does not grant the Supreme Court power to set aside or review the decision of another Supreme Court regardless of [the] number it is constituted, except as may be provided for by any law; and
  5. A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law.”

11. In the case of a person’s right to be admitted as a lawyer, the Lawyers Act and the Rules enacted thereunder are the places to turn to for guidance on how to exercise that right and be admitted. Part III – Admission to Practice (ss. 25A- 34) is the most relevant part of the Act. Within that part, ss.25 – 27 are most relevant and critical. They provide as to academic and other qualifications a person wishing to be admitted as a lawyer must have and steps he or she must take to get to the point of being admitted to practice law. Clearly, there is no vacuum to be filled by the application of s. 155(4) in conjunction with s. 158 (2) of the Constitution. Hence, these provisions have no application.


12. It follows therefore that Mr. Kot is required to come within the provisions of the Lawyers Act. A survey of the Act fails to disclose any provision being made for a lawyer whose name has been removed from the Lawyers Roll to apply for re-admission. This vacuum in my view exists not by mistake but by deliberate design. Section 54 of the Act empowers the LSC to impose one or more penalties against a lawyer who is found guilty of improper conduct as a lawyer. This provision reads in relevant parts:


“54. Power of Committee to impose penalties.

Where, after an enquiry, the Committee is of the opinion that a lawyer has been guilty of improper conduct as a lawyer, it may impose any one or more of the following penalties:—

...

(c) apply to the Court to remove the lawyer’s name from the Roll..”

13. A lawyer affected by a decision of the LSC has a right of appeal to the National Court within 21 days pursuant to s. 58. The Court has power under s. 59 of the Act to confirm, vary or quash a decision of the LSC which includes the LSC’s decision on penalty. In Mr. Kot’s case, he lost his right of appeal by reason of undue delay. He therefore applied for judicial review and was unsuccessful on grounds of undue delay as well. He then took the case to Supreme Court by way of any appeal which was dismissed. The effect of all these was that, the decision amongst others to have Mr. Kot’s name removed from the Lawyers Roll remains fully in force. Pursuant to the LSC decision, an application was made to the National Court to have Mr. Kot’s name removed from the Lawyers’ Roll. The National Court granted that application. There is no evidence of any challenge against the decision of the Court ordering a removal of Mr. Kot’s name from the Lawyers Roll. To the extent that the decision of the LSC and the eventually the National Court’s decision to have Mr. Kot’s name removed from the Lawyers’ Roll remains in full force, Mr. Kot has no right to be re-admitted or otherwise practice as a lawyer. This operates as a bar or a serious impediment to any application by Mr. Kot. Consequently, this Court lacks any authority or jurisdiction to entertain and in grant Mr. Kot’s his application.


14. The above decision on jurisdiction should be sufficient to dispose of this matter. But since the parties’ arguments also centered on s. 25 (3) (d) and s. 27 (a) of the Lawyers Act I will deal with them starting first with the issue of the AG’s certificate as “a fit and proper person” under s. 25 (d) of the Lawyers Roll.

Issue 2 - Requirement for certification as a “fit and proper person” and waiver of it


15. I had the opportunity to deal with the issue of certificate as to a “fit and proper person” in Re Application by Goodwin Haumu for Admission as a Lawyer.[2] There Mr. Haumu applied for admission as a lawyer which the Law Society opposed. The opposition was on the basis that the applicant was not a “fit and proper person” to be admitted as a lawyer in accordance with the Act. At pages 10, 11 and 12 of my judgment I referred to the earlier decision of the National Court in Re:Sifta[3] and said:


“Taking the above as a guide for the purposes of the phrase ‘it and proper person’ within the meaning of s. 25(3)(d) of the Act in the present case, I am of the view that, that phrase does not concern the academic or practice qualifications, which are already specifically provided for by the earlier parts of s. 25. Instead, I am of the view that, this has to do with the character, reputation or standing of the person applying to be admitted as a lawyer. That question may be determined having regard to a number of factors. Without limiting the list I consider the following factors relevant:


1. Whether the applicant has any criminal conviction of such a nature that it would not be proper to admit him to the practice of law?


2. Whether the applicant has such disciplinary record or problems with the schools, universities and or colleges he has attended that reflects adversely against him or her as a person worthy of admission to the practice of law?


3. Whether the applicant has any record of conducting in such a manner that demonstrates a lack of respect for authority, the rule of law and law and order generally?


4. Whether the applicant's character is of such a nature that it would not be proper for him to be admitted to the practice of law?


5. Whether the applicant has any mental or physical disability that would not enable him to properly discharge the duties and responsibilities of a lawyer?


6. Whether he is proficient with the English language?


7. Generally, whether certifying the applicant as a fit and proper person will go against the high respect esteem and status lawyers enjoy in society?


8. Whether the standing government or State policy on admission of lawyers to the practice of law, favours the applicant to be admitted?


Elaborating on these, let me say that, an applicant with a criminal record has the onus of showing that his conviction is not a serious one and do not and should not reflect on the legal profession, which he is seeking to join. The same would go for any disciplinary problem or record he may have and his general conduct and or attitude to respecting authority, the rule of law and law and order generally.


The power to make a decision as to whether a person is a fit and proper person to be admitted as a lawyer is vested in the Attorney General by virtue of s. 25(3)(d) of the Act. That discretion should be exercised after having regard to the above factors and taking into account all the factors that need to be taken, including any policy matters. Only if it is shown that, due to circumstances beyond the control of the applicant it is difficult to obtain such a certificate from the Attorney General and the case is proven to be one which requires a waiver of meeting that requirement, then the Court may assume that responsibility and determine the question of whether or not the applicant before it, is a ‘fit and proper person’ to be admitted as a lawyer as did his Honour, Brown J. in In the Matter of the Lawyers Act and In the Matter of an Application by Egerton MacPherson Robb [1995] PNGLR 462 at 466. Once, the discretion vested in the Attorney General has already been exercised than as Sevua, J. said in the application of Peter Norman Moore (supra), the Court has no discretion to go behind the certificate. That is subject to the exceptions mentioned in that judgment and those mentioned above.”
(Emphasis added)


16. In the case of, In the Matter of the Lawyers Act 1986 and In the Matter of an Application by Peter Norman Moore[4] late Sevua J. had before him an expatriate lawyer applying under section 28 (2) of the Lawyers Act. The application was for waiver of the requirements of section 25 (3) (d) of the Act and issuance by the AG a certificate that the applicant is “a fit and proper person” to be admitted to practice in PNG. His Honour held at pages 3, 4 and 5:

“On the basis of the evidence before me, counsel submitted that I should exercise my discretion to declare the applicant a fit and proper person, 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.


Counsel has referred me to the recent Supreme Court decision, PNG Law Society v McEniery, [1993] PNGLR 76 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 79 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.”

(Emphasis added)


17. Later in the case of In The Matter of The Lawyers Act 1986; In The Matter of an Application by Roger Gill Maguire for Admission as a Lawyer,[5] I considered what was said in Peter Norman Moore and Martin Dennis McEniery cases. There, I commented:


“As will be apparent from the view expressed by the Supreme Court, there is no doubt that the requirements under s.25 of the Act can be waived. This is consistent with s. 28(2) of the Act which vests a discretion in the Court to waive all or any of the requirements of s. 25 of the Act. The Supreme Court thus in my view, spoke only on the test to be applied when an application is made for a waiver rather than what can be waived and what cannot be waived.”


18. I then referred to my decision in the Godwin Haumu case and said:

“I considered the requirements under s. 25 in the context of s. 28 of the Act [and] observed that as long as the requirements under s. 25 of the Act are met, there is nothing preventing the Court from granting an application for admission. That observation I said:


‘... accords well in my view, with the general import of the Supreme Court decision in the Martin Denise McEniery (supra) case where the Supreme Court said, the appropriate test is ‘whether there is substantial compliance’ with the requirements under s. 25 of the Act. Thus, in the context of a s. 25(3) (d) issue, there would be substantial compliance of the requirements of the Act if there were a certificate from the Attorney General certifying the applicant as a ‘fit and proper person’. The only way to get around that is to show by appropriate evidence that, the certificate was obtained unlawfully, maliciously or in excess of jurisdiction to use the words of Sevua J in Peter Norman Moore (supra) case. I add that, if there is prove of the Attorney General taking into account irrelevant factors or failing to take into [account] relevant factors before deciding to or not to issue his certificate ...he was actuated by fraud or bias towards the applicant, only then, could one go behind the certificate of the Attorney General.’”


19. In Godwin Haumu’s case, the AG gave his certificate under s. 25(3) (d). Despite that, the Law Society opposed the application, without questioning the issuance of the certificate. Given that position, I found there was no good reason to go behind the AG’s certification. Accordingly, I granted the application for admission. Later, in the case of Roger Gill Maguire, the AG refused to issue a certificate of “fit and proper person” to the applicant on the basis of a public policy not to admit foreign lawyers. That policy was not published and in any case went against the object of the Lawyers Act which was not to prohibit but to regulate the admission of foreign lawyers. I went on to reaffirm the position that, when deciding whether or not to issue a certificate of “fit and proper person” the factors I outlined in the Godwin Haumu case must be the basis upon which the AG must decide whether or not to grant such a certificate. Having regard to that position, I pointed out that, the AG did not have an unfettered discretion. Instead, he was required to work within the object of the legislation taking into account only the relevant factors as outlined in the Godwin Haumu case. This was not done in Roger Gill Maguire’s case. In the circumstances, I decided to waive the requirements of s. 25 (3) (d) of the Act and granted his application for admission as the applicant meet all of the requirements for admission as a lawyer except only for the AG’s certificate as to “a fit and proper person” to be admitted as a lawyer.


20. In the present case, the AG declined to issue a certificate of “fit and proper person” to Mr. Kot. The main basis for that was the fact that he had been found guilty of misconduct as a lawyer by the LSC and more so by order of the Court his name was removed from the Lawyers Roll. In refusing to issue his certificate the AG said in his letter to Mr. Kot dated 29th September 2015:


“...I have considered your situation and the circumstances that your name had been removed from the Lawyers Roll and I am of the view that I do not think your conduct warrants you to be issued a Certificate of Qualification. Therefore, I advise you that I will not issue a Certificate of Qualification for your application to the Court.”


21. There is no evidence of Mr. Kot doing his utmost best to demonstrate to the AG that he is “a fit and proper person”. He did not for instance demonstrate that, since the decision to have his name removed he has taken steps to make right the misconduct he was found guilty of. Similarly, he provided no evidence of being remorseful and that he has since become a person of good standing in society to qualify for a “fit and proper person” certificate from the AG.


22. The Law Society and the LSC argue that Mr. Kot does not satisfy the principles for qualification for admission as a lawyer and should not be admitted or “re-admitted” to practice as a lawyer in PNG because:


(a) His name has been removed from the Lawyers Roll on or about 24 July 2014. Also, the decision of the National Court to have his name removed has not been varied or set aside and thereby removal the serious impediment against his application for re-admission;


(b) His conduct which resulted in the removal of his name from the Lawyers Roll allegedly involves the misuse of a substantial amount of money (K90, 000.00) belonging to his client. The decision and finding of the Law Society and the LSC relating to that improper conduct has not been quashed and there is no evidence that he has repaid the money as directed by that decision;


(c) He has not provided a certificate issued by the AG stating he is a “fit and proper person” to be admitted to practice as a lawyer which is contrary to the requirements of s. 25 (3) (d) of the Lawyers Act,;


(d) The AG has assessed his situation and the circumstances that led to his name being removed from the Lawyers Roll and has deemed his conduct is not that of a fit and proper person who ought to practice as a lawyer and therefore decided that it did not warrant the issuance of a certificate of “fit and proper person” under s. 25 (d) of the Lawyers Act;


(e) His Notice of Intention to apply for Re-Admission published on 7th March 2016 was published only 1 week prior to the date of hearing of his application on 15th March 2016. This is not in accordance with s.27 (a) of the Lawyers Act which requires the publishing of such a notice no less than 14 clear days prior to the hearing of the applicant's application;


(f) His application by way of Notice of Motion filed 15 July 2015 seeking directions from the Court to waive the requirements under ss.25 and 27 of the Lawyers Act was dismissed on 19th August 2015. Hence, the requirements under the provisions of s.25 and 27 of the Act still apply in their entirety. Consequently, Mr. Kot has not met the requirements under those provisions; and


(g) His affidavit in support of his application sworn on 26th and filed on 30th November 2015 contains his purported notice of intention to apply for admission dated 7th March 2017. This is irregular and adds to the argument that Mr. Kot’s application fails to meet the requirements for admission both procedurally and substantially.


23. Having regarding to the relevant law and the facts as discussed above, the Law Society and the LSC submit that Mr. Kot has not “substantially complied” with the requirements of section 25 (3) (d) of the Lawyers Act which has resulted in the AG refusing to issue him with a Certificate of Qualification as a fit and proper person. Their submissions also emphasis that the AG was right in his decision on the basis of the evidence of Mr. Kot’s prior misconduct as a practising lawyer which, was a significant and an entirely relevant factor to determining whether an applicant is a fit and proper person to be admitted (or “re-admitted”) to practice as a lawyer.


24. Relying on the Supreme Court decision in his case, Mr. Kot points to the Law Society and the LSC failure to give him his right to be heard before their decision. Then picking on the Supreme Court’s comment that “it remains open to the Appellant [Mr. Kot] to make an application to the LSC for his position to be reconsidered” and the AG’s suggestion for him to apply to the Court, Mr. Kot argues that it is open for his application for re-admission being considered by this Court. For that purpose, he also argues that, the Court has wide powers under s. 28 (2) of the Lawyers Act to waive the requirements for certification under s. 25 (3) (d) of the same Act.


Decision on the second issue

25. I accept the submission that, this Court has power under s. 28 (2) of the Lawyers Act to waive the requirements for certification as a “fit and proper person” under s. 25 (3) (d). This is not the first time an application for a waiver of that requirement is before this Court. My decisions in Godwin Haumu and Roger Gill Maguire, late Sevua J’s decision in Peter Norman Moore and the Supreme Court’s decision in Martin Dennis McEniery are earlier cases in which the issue was raised and addressed. The sum effect of all of these decisions is that:


(1) The power to grant or not to grant a certificate under s. 25 (3) (d) is vested in the AG;


(2) Once the AG has come to a decision or has not under s. 25 (3) (d) no Court can under s. 28 of the Lawyers Act go behind the decision except in:


(a) cases where an applicant is not able to secure a certificate due to circumstances beyond his or her control; or


(b) cases where the AG has arrived at his decision unlawfully by taking into account irrelevant factors such as race, colour, sex or religion; and


(b) cases where the AG has failed to take into account the relevant factors in terms of:


(i) Whether the applicant has any criminal conviction of such a nature that it would not be proper to admit him to the practice of law?


(ii) Whether the applicant has such disciplinary record or problems with the schools, universities and or colleges he has attended that reflects adversely against him or her as a person worthy of admission to the practice of law?


(iii) Whether the applicant has any record of conducting in such a manner that demonstrates a lack of respect for authority, the rule of law and law and order generally?


(iv) Whether the applicant's character is of such a nature that it would not be proper for him to be admitted to the practice of law?


(v) Whether the applicant has any mental or physical disability that would not enable him to properly discharge the duties and responsibilities of a lawyer?


(vi) Whether he is proficient with the English language?


(vii) Generally, whether certifying the applicant as a fit and proper person will go against the high respect, esteem and status lawyers enjoy in society?


(viii) Whether the standing government or State policy on admission of lawyers to the practice of law, favours the applicant to be admitted?


26. In this case, in refusing Mr. Kot a certificate of “fit and proper person”, the AG based his decision on the evidence before him. The evidence concerned Mr. Kot’s misconduct as a then practising lawyer which lead to the decision and hence, the ultimate act of having his name removed from the Lawyers Roll by an order of the Court. The relevant decisions and orders and the eventual removal of Mr. Kot’s name from the Lawyers Roll has not be reversed or varied in favour of Mr. Kot. These are serious impediments to his application for waiver of the requirements under s.25 (3) (d) of the Lawyers Act. No evidence was adduced by Mr. Kot before the AG of any significant change in his circumstances since the decisions of the Law Society and the LSC and the National and Supreme Court decisions which support a case of Mr. Kot having overcome the effects of those decisions and orders. In the circumstances, I am unable to find that the AG’s decision is unlawful, malicious or in excess of his jurisdiction. Hence, I am not persuaded that Mr. Kot’s application for the Court to waive the requirements of s. 25 (3) (d) of the Lawyers Act should be granted.


27. A comparative look at the position in Australia, supports the decision I have arrived at. I accept learned counsel for the Law Society and LSC, Mr. Wood’s submission that, in Australia, the process for admission to law practice differs between state jurisdictions. The states of New South Wales (NSW) and Victoria however have consistent regulations. Generally, under the Legal Profession Uniform Admission Rules 2015 (Admission Rules), the Legal Profession Admission Board is responsible for issuing a ‘Compliance Certificate’ to the Supreme Court verifying that the applicant for admission to practice has attained the required academic and practical legal training qualifications and is also a ‘fit and proper person to be admitted’.


28. Where an applicant has been refused a compliance certificate by the Legal Profession Admissions Board, the Admission Rules allow for an appeal to be made to the Supreme Court. In Saunders v. Legal Profession Admission Board,[7] the appellant appealed to the Supreme Court against a decision by the Legal Profession Admission Board of NSW refusing to issue him with a compliance certificate. That was on the basis that he was convicted of a criminal offence. That involved dishonestly obtaining Centrelink Austudy funds of $9,236.46 when he was not entitled to. Also he previously failed an application for admission to practice in the Northern Territory. The Supreme Court stated at paragraph 48 to 49 that:


“48. In resolving what here arises for determination, it is thus important to bear in mind that r (10) (1) (f) requires consideration to be given to whether a person is currently of good fame and character. That statutory formulation plainly contemplates the possibility of change. On the one hand, it permits of the possibility that an applicant may no longer be of good fame and character, although they were in the past and on the other, that while in the past not of good fame and character, they may currently have those attributes.

49. It follows that the assessment of an applicant’s good fame and character must be made on the evidence as to the current position, although, of course, light on that position can be shed by events which have occurred in the past.”


29. Unlike Mr. Kot, the appellant in Saunders case, provided in support of his application for admission, evidence from various legal practitioners who vouched for his reformation and his current good character. Again unlike Mr. Kot, the appellant in Saunders’ case had demonstrated to the Court that he was not only remorseful for his prior bad conduct but that he had also taken steps to learn from his past offence and reshape his attitude and behaviour so as to be able to successfully reapply for admission. Consequently, the Court allowed the appeal. In so doing it deemed the appellant a fit and proper person because the Court noted at paragraph 99 of its decision that:


“...By pursuing, as he has, his rehabilitation in the ways described in the evidence, including by those who know him best who now support his application for admission to practice for the reasons they have described, he has, I am satisfied now, become a person who may be accepted to be a fit and proper person for admission to practice, now being of good fame and character, notwithstanding his earlier offending.”


30. In contrast, there is nothing in the various material filed in support of Mr. Kot’s application that revels clearly an unreserved acceptance of responsibility for the conduct that resulted in his removal from the Lawyers Roll. Similarly, he has failed to demonstrate in any way and manner of being remorseful for his conduct or that he has taken any tangible steps towards personal rehabilitation. In the matter of Re Valvo,[8] the failure of an applicant seeking admission to satisfactorily acknowledge his or her past misconduct was discussed. There, the Northern Territory Supreme Court dealt with an appeal similar to that of Saunders.


31. The appellant in Re Valvo was previously convicted of a similar act of dishonesty involving Centrelink funds that he was not entitled to and had been referred by the Legal Professions Board to the Supreme Court for the Court to determine whether he was a fit and proper person to be admitted. The Supreme Court in deeming the appellant as one not being “a fit and proper person” stated at paragraph 37 to 38:


“[37] Notwithstanding the seriousness of the Centrelink offending, I would have been prepared to make a finding that he is currently of good fame and character and a fit and proper person to be admitted, but for the following matters:

1. The applicant’s failure to candidly and comprehensively disclose, and acknowledge (until pressed in cross-examination), the full extent of his moral culpability in the Centrelink offending.

...

[38] Because of the three matters referred to in [37] I am not satisfied as to the applicant’s “worthiness and reliability for the future”.[9] I am not satisfied that he has yet achieved the necessary level of principle to enable this Court to rely on his frankness and candour and thus credit him as worthy of public confidence. In summary, I am not satisfied that the applicant is a fit and proper person to be admitted to the legal profession.”


32. The case before this Court is distinguishable from that of Saunders and the Re Valvo cases. Here, Mr. Kot was already admitted to practice when he committed the misconduct as a lawyer. One of the fundamental obligations a private practising lawyer has is to hold monies in trust for a client in a transparent and accountable manner. Viewed against that obligation, Mr. Kot’s conduct in misappropriating substantial amounts of money belonging to his client is, in itself a significant breach of trust. There is no clear and convincing evidence of Mr. Kot having undergone any form of training in relation to the proper conduct of lawyers generally and more so the practice of holding of monies in trust for clients. The presence of any such evidence would demonstrate to the Court to some extent that Mr. Kot appreciates that his conduct was wrong and that it is something he will not do again. Ultimately, Mr. Kot has not demonstrated to the satisfaction of this Court that currently he is a “fit and proper person” and as such this is an appropriate case for the requirements of s. 25 (3) (d) of the Lawyers Act to be waived and he be re-admitted to practice as a lawyer. Hence, the answer to the second issue is, this is not an appropriate case for a waiver of the requirements under s. 25 (3) (d) of the Lawyers Act.


Issue 3 – Whether requirements for notice under s. 27 of the Lawyers Act mandatory?

33. The provisions of section as set out in the earlier part of this judgment are in mandatory terms. Strictly speaking therefore, Mr. Kot was required to meet this requirement in accordance with the prescription stipulated in the provision. There is no provision for any waiver or otherwise dispensation of this requirement. This requirement is necessary and important in my view. This is because the requirement to serve the notice serves two important purposes. Firstly, a notice in accordance with s. 27 (a) would give the Law Society, the LSC and the members of the community at large sufficient notice of a lawyers intention to apply for admission as a lawyer. Secondly, the notice would give the Law Society, LSC and any member of the public the opportunity to object to any application for admission in appropriate cases. A failure to observe or meet this requirement would render an application for admission not valid. Hence such an application would not be properly before the Court on the basis of which, the Court could decline the application.


34. Here, there is no contest that, Mr. Kot gave notice of his intention to apply for his admission about 8 days short. Obviously, Mr. Kot did not meet the mandatory requirement for 14 clear days’ notice before moving for his re-admission. Hence, his application defective, by reason of which it must fail.


Summary


35. In summary the Court finds that Mr. Kot has failed to establish to the satisfaction of this Court that:


(1) the Court has the necessary jurisdiction to deal with an application by a lawyer whose name has been removed from the Lawyers Roll;


(2) he has met all of the requirement for admission as a lawyer in particular a certificate as a “fit and proper person” to be admitted as a lawyer from the AG;


(3) the AG unlawfully, maliciously or otherwise improperly declined to issue him a certificate as a “fit and proper person” and this court should grant him a waiver of the requirement for certification of him as a “fit and proper person” for admission as a lawyer; and


(4) he has otherwise met all of the requirements under the Lawyers Act including the notice requirements under s. 27 (a) for his application for re-admission.


For these reasons, I order a dismissal of this proceeding with costs against the applicant, Mr. Kot. Such costs shall be taxed if not agreed.


___________________________---------------------_____________________________
Mr. Kui Kot: In Person for the Plaintiffs
Asthurst Lawyers: Lawyers for the Respondents

[1] (2006) SC844.
[2] (2001) N2094.
[3] [1975] PNGLR 435.
[4] [1993] PNGLR 470
[5]6 (2003) N2466.
[7] [2015] NSWSC 1893.
[8] [2014] NTSC 27.

[9] Incorporated Law Institute of New South Wales v Meagher [1909] HCA 87; (1909) 9 CLR 655 at 681 per Isaacs J (in an application for re-admission).

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