N8586

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

LA No. 10 OF 2020 (IECMS-CC2)

IN THE MATTER OF THE LAWYERS ACT 1986 (AS AMENDED)

AND
APPLICATION BY PATRICIA ELAINE CAHILL
Applicant

AND
LA No. 07 OF 2020 (IECMS -CC2)
IN THE MATTER OF THE LAWYERS ACT 1986 (AS AMENDED)

AND
APPLICATION BY CHEYNE MALCOM BEETHAM
Applicant

AND
LA No. 05 OF 2020 (IECMS -CC2)
IN THE MATTER OF THE LAWYERS ACT 1986 (AS AMENDED)

AND
APPLICATION BY DAVID BRIAN SUTTNER
Applicant

AND
LA No. 04 OF 2020 (IECMS -CC2)
IN THE MATTER OF THE LAWYERS ACT 1986 (AS AMENDED)

AND
APPLICATION BY CLAIRE ELIZABETH VALMA DAVIES
Applicant

AND
LA No. 03 OF 2020 (IECMS -CC2)
IN THE MATTER OF THE LAWYERS ACT 1986 (AS AMENDED)

AND
APPLICATION BY NADIA SUZANNE BRAAD
Applicant

Waigani:  Kandakasi DCJ,

2020:	24th August
2020: 	09th October

LAWYERS ADMISSION - Application for admission to practice by foreign lawyers - Requirements for admission – Whether Applicants have met all academic and or practice requirements - Whether public policy requires grant of applications - Purpose of Lawyers Act 1986 - Intention of Act not to prohibit admission of foreign lawyers but to regulate - Assessment of academic qualification insufficient – Academic qualifications not met – No reciprocal arrangement between Australia and PNG - Attorney General purporting to grant exemption or waiver – Only Court has power to waive - No case made out for grant of waiver by Court – Application of admission defective in form  - Defect cannot be cured in Court -  Sections  25, 26, 27, 28 and 29 of the Lawyers Act 1986 – Section 2 Lawyers (Examination) Regulation 1992 – Rules 1, 4 and 5 of Lawyers Admission Rules.

EVIDENCE – Evidence by affidavit – Affidavits to contain facts and not conclusions, submissions, arguments, opinions or the law.

STATUTORY LAW – Interpretation of – Correct principle of interpretation - Fair large and liberal and purposive approach – Lawyers (Examination) Regulation requirement part of requirement to be met by an applicant for admission as a lawyer – Constitution s. 109 (4) – Lawyers Act 1986 Sections  25 and 28– Section 2 Lawyers (Examination) Regulation 1992.

Cases Cited:

Pokia v Yallon (2014) SC1336
William Powi (Acting Administrator for Southern Highlands Province) v. Southern Highlands Provincial Government (2006) SC844
Application by Roger Gill Maguire for Admission as a Lawyer (2003) N2466
SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314
Rakatani Peter v. South Pacific Brewery Ltd [1976] PNGLR 537
SCR No 3 of 1986 and Reference by Simbu Provincial Executive [1987] PNGLR 151
The Ship “Federal Huron” v. Ok Tedi Mining Ltd [1986] PNGLR 5
Rimbunan Hijau (PNG) Ltd v. Ina Enei (2017) SC1605
Hargy Oil Palm Ltd v. Ewasse Landowners Association Inc (2013) N5441
In the Matter of An Application by Peter Norman Moore [1993] PNGLR 470
Papua New Guinea Law Society v. Martin Dennis McEniery [1993] PNGLR 76
In the Matter of an Application by Godwin Haumu for Admission as a Lawyer (2001) N2094
The Application of Moge Enga & Minister for Lands Concerning Section 30 Allotment 7 Mt. Hagen [1995] PNGLR 246
Pius Sankin, Jimmy Lingau and James Numbunda v. Papua New Guinea Electricity Commission (2002) N2257
Re John Sifta [1975] PNGLR 435
Costello v. Controller of Civil Aviation [1977] PNGLR 229
Inakambi Singorom v. John Kalaut [1985] PNGLR 238
Reference by the East Sepik Provincial Executive (2011) SC1154
Reference pursuant to Constitution, Section 18(2) Re Jurisdiction of the Leadership Tribunal (2019) SC1852
Special Reference pursuant to Constitution s19(1) Special Reference by the Ombudsman Commission of PNG (2019) SC1879
PLAR No. 1 of 1980 [1980] PNGLR 326
Special Reference by the Attorney-General pursuant to Constitution, Section19 (2016) SC1534
Ronald Emanuel Jordan v. Glen Hamilton Edwards [1979] PNGLR 420
Bank of Hawaii (PNG) Ltd v. PNGBC (2001) N2095
William Duma v. Yehiura Hriehwazi (2004) N2526
Geru Holdings Ltd v. James Kruse (2019) N7867
Application by Cloudy Bay Sustainable Forestry Ltd v. Pako F & C Holding (PNG) Ltd (2019) SC1788
Re Application by Joyce Sylvia Kunjip for Admission as a Lawyer [1997] PNGLR 284.
The Papua New Guinea Law Society v. Sylvia Joyce Kunjip (1998) SC578
The Application of Tiffany Twivey (1997) N1500
In the Matter of an Application by Egerton MacPherson Robb [1995] PNGLR 462
Re Mellor [1974] PNGLR 213

Legislation

PNG Constitution 
Lawyers Act 1986 (as amended)
Lawyers Admission Rules 1990
Lawyers (Examination) Regulations 1992
National Court Rules

Other Sources 

https://www.collaw.ac.nz/learnwithus/overseas-practitioners.
Law Admissions Consultative Committee -Uniform Principles for Assessing Qualifications of Overseas Applicants for Admission to the Australian Legal Profession, August 2015 (Revised June 2017), copy found at   http://www.lpab.justice.nsw.gov.au/Documents/uniform-principles-for-assessing-overseas-qualifications.pdf).

Counsel:	

Ms. E. Parua, for the Applicants
Mr. I. Shepherd, for the Papua New Guinea Law Society 

09th October, 2020

1.	KANDAKASI DCJ:	These are five applications out of ten foreign lawyers’ applications for admission as lawyers under the Lawyers Act 1986 (the Act) to practice law in Papua New Guinea (PNG). The applications, issues and arguments are the same in all of these cases.  

2.	In support of each of their applications, the applicants secured a certificate of “fit and proper person” and a purported exemption from examinations under the Lawyers (Examination) Regulation 1992 (the Regulation) from the Attorney General (AG).  They also managed to get the Executive Dean of the School of Law of the University of PNG (the UPNG) to assess and say in his opinion that each of the applicants’ ‘Bachelor of Laws degrees’ course content are equivalent in standard and content to that of the UPNG.

3.	Relying on r. 5(3) of the LAR and s.155 (4) of the Constitution, the applicants are also seeking to have their signing of the Lawyers’ Roll by deeming that being done upon each of them signing a loose-leaf copy of Form 4 of the Lawyers Admission Rules 1990 (the LAR) and the Registrar transcribing the details on that form onto the Roll and pasting a photostat of the applicants’ signature onto the Roll. This they claim is necessitated by the current COVID-19 pandemic related travel restrictions.  Further, through their affidavits in support and not their respective notices of motions, they are seeking waivers under s. 28 of the Act.

4.	The PNG Law Society (the Society) opposes each of the applications on the basis that:

(a)	the jurisdiction cited for the orders sought in each of the notices of motion do not support the orders sought;

(b)	the applicants do not expressly seek waivers from the requirements of s. 25 (4) and (5) of the Act and s. 2 of the Lawyers (Examination) Regulation 1992 (the Regulations);

(c)	the certificate by the AG pursuant to s. 25 (3) (d) of the Act that the applicants are exempt from sitting the examinations referred to in (b) above is invalid as only the Court and not the AG can grant such exemptions;

(d)	Rule 5(3) of the Rules and Section 155 (4) of the Constitution do not provide the foundation for an admission of a lawyer outside what is prescribed in the Rules; and

(e)	Given the COVID-19 pandemic related travel restrictions and the applicants inability to practice in PNG there is no need for any admission of the applicants.
 
Relevant issues 

5.	Based on the above, it is clear that the issues for this Court to determine are as follows: 

(1)	Have the applicants cited and have therefore correctly invoked this Court’s jurisdiction to have each of them admitted as lawyers under the Act?

(2)	Whether the AG has correctly certified and therefore it is not necessary for each of the applicants to expressly seek an exemption from the requirements of s. 25 (4) and (5) of the Act and s.2 of the Regulation;

(3)	Whether the provisions of r.5 (3) of the LAR and Section 155 (4) of the Constitution can be invoked to allow for a signing of the Lawyers Roll upon admission outside that which is prescribed in the LAR.

(4)	Whether the applicants’ inability to practice law in PNG if admitted should be a factor against the applications?

6.	I will deal with the first and third issues together first. Thereafter, I will deal with the second and last issues in that order.  But first the relevant background and facts.

Relevant background and facts

7.	The relevant background and facts leading to these applications are the same.  However, the particular personal, educational and work experiences and backgrounds for each of them are different although similar in nature and character. Each of the applicants have been appointed by the current Government as Senior Counsel Assisting the Commission of Inquiry Into the Offshore Loan Obtained by the Government of Papua New Guinea from the Union Bank of Switzerland In 2014 and Related Transactions (COI).  Their appointments were pursuant to s. 4A of the Commission of Inquiry Act (Chp.31) (COI Act). They each claim that, they have the necessary professional expertise to assist the COI.  Since the Lawyers Act does not allow for conditional admissions, they each give their personal undertaking to the Court that, on the basis of any admission arising from their respective applications, they will not practise law in PNG other than to assist the COI.  They say it is not their intention to practise law in PNG after the COI is concluded and its report is provided in accordance with s.15 of the COI Act.  Finally, they are each seeking exemptions or waivers under s. 28 of the Lawyers Act on the basis that their employer (law firm) has been retained by the government of PNG to assist with the COI and they each believe they are in a position to assist the COI.

8.	Each of the applicants have filed affidavits which cover the Covid-19 related travel restrictions and how those restrictions prevent each of them from travelling to PNG. Based on those affidavits, they are seeking effectively a waiver of the requirements of the Rules so as to enable them to sign the Lawyers Roll as sought in term 2 of their respective notices of motions. 

9.	Finally, the applicants have each filed an affidavit by Ms. Eunice Parua.  She annexes a copy of a letter dated 02nd July 2020 from the AG which confirms the appointment of each of the applicants. Also, included in her affidavits is a copy of a certificate the AG has issued in favour of each of the applicants dated 08th July 2020.  The certificate in relevant parts reads:

“I also certify that I am of the opinion that the abovementioned persons have provided adequate evidence of their academic and practice qualifications and are not required to sit examinations under the Lawyers Act and Lawyers (Examinations) Regulation 1992.”

10.	Each of the applicant’s personal details are given in their respective affidavits filed in support of each of their applications. I outline each of the applicants’ details next.

(a)	Patricia Elaine Cahill

11.	Patricia Elaine Cahill deposes that, she undertook her primary schooling at Nollamara, St. Pauls’ Canning Vale and Sorrento Primary Schools, all in Perth, Western Australia, between 1970 and 1976. She then undertook her secondary schooling at Scarborough Senior High School also in Perth, Western Australia, between 1977 and 1981.  Thereafter, she entered university education and attained a Bachelor of Jurisprudence from the University of Western Australia and in 1987, she was awarded a Bachelor of Laws with Honours degree from the University of Western Australia. 

12.	Upon attainment of her bachelor of laws degree, she was admitted to practice law in Western Australia on 18th December 1987.  In the same year, she commenced as an Articled Clerk at Robinson Cox (now Clayton Utz), in Perth, Western Australia.  In 1988, she served as Associate to the Honourable Justice Malcolm Lee of the Federal Court of Australia.  Thereafter, in 1989 she was employed as a solicitor at Corrs Australian Solicitors, also in Perth, Western Australia.  Then from 1990 to 1992 she was employed as a solicitor and then became a senior associate at Finlaysons in Adelaide, South Australia.  From 1992 to 1995 she was employed as a senior legal officer at the Crown Solicitor’s Office also in Adelaide, South Australia.  Between 1997 and 2000 she was employed as a solicitor successively, at Phillips Fox, Corrs Chambers Westgarth and Pullinger Stewart, all in Perth Western Australia. Then from 2002 to 2004 she became a partner of Jackson McDonald in Perth, Western Australia. Thereafter, in 2004, she joined the Western Australian bar and commenced practicing as a barrister from Francis Burt Chambers in Perth Western Australia. In 2009, she was appointed Senior Counsel.  From 2004, she practised exclusively as a barrister in Australia.

13.	She also deposes to neither being the subject of any disciplinary proceedings nor being aware of any disciplinary proceedings pending against her.  She further deposes that she has neither been declared bankrupt or Insolvent nor has she been convicted of any criminal offence either in Australia or elsewhere and that she has not been struck off the roll of practitioners.

(b)	Brian David Suttner

14.	Brian David Suttner, deposes to in his affidavit that he undertook his primary schooling at King David Primary School in Sandton, Gauteng, South Africa between 1989 and 1995.  He then went on to undertake his secondary schooling at Crawford College in Sandton, Gauteng, South Africa between 1996 and 2000.  He then went onto doing his university studies also in South Africa.  On 27th January 2005, he was awarded a Bachelor of Laws degree from the University of Cape Town in South Africa.  Following his graduation from law school, it is apparent that, he commenced his law practice as a junior lawyer and made it to becoming a barrister.  He began his career as a barrister at the Johannesburg Bar, in South Africa, in January 2010.  

15.	In February 2015, Mr Suttner moved to Australia. The following year, on 01st July 2016, he got admitted to practise law in Australia.  From the date of his admission to 08th August 2018, he held a restricted practising certificate issued by the Legal Practising Board of Western Australia. While holding the restricted practising certificate, he was only authorised to engage in supervised legal practise and he worked under the supervision of Cameron Belyea who was a holder of an unrestricted practising certificate.  On 09th August 2018, he advanced to obtaining an unrestricted practising certificate following two (2) years of supervised legal practise. Since his admission to practise he has been continuously and exclusively employed as a lawyer, by a lawyer or under the supervision of a lawyer who during the period of employment was the holder of an unrestricted practising certificate. In the period from 01st July 2017, to present, he had averaged in excess of 7 billable hours per working day. He believes that, during the course of his career, he would have averaged in excess of 7 billable hours per day.

16.	Upon moving to and after being admitted to practise law in Australian, Mr. Suttner commenced his employment as a lawyer with the firm Clyton Utz, in Perth, Western Australia as a Solicitor in the firm’s Dispute Resolution Team.  Later in 2019, he commenced work with the firm of MinterEllision in Perth, Western Australia. He commenced and worked with that firm’s Dispute Resolution team as a commercial litigator, acting on various commercial matters and has made Court appearances in the Western Australian State Supreme Court and the Australian Federal Court. 

17.	Currently, Mr Suttner is on the Registrar of Practitioners kept in the Registry of the High Court of Australia, and he is entitled to practice as a lawyer in any Federal Court in Australia. He has not been struck of the Roll of Practitioners.  Also, he has not been the subject of any disciplinary proceedings and he is not aware of any disciplinary proceeding pending against him.  Further, he has not been declared bankrupt or insolvent and has not been convicted of any criminal offence in Australia or elsewhere.  He discloses however, that during or around 2003, in Moscow, Idaho in the United States, he was charged with a misdemeanour for consumption of alcohol. Otherwise, he has no records of any criminal charges.

(c)	Claire Elizabeth Valma Davies

18.	Claire Elizabeth Valma Davies deposes that, she did her primary schooling commencing at St Barnabas Primary School, in Oxford, England between 1993 and 1995 and finishing off at Camberwell Girls Grammar School, in Melbourne, Australia in 2000.  Between 2001 and 2006, she commenced and completed her secondary schooling at Camberwell Girls Grammar School in Melbourne, Australia.  Upon completing her secondary education, she undertook university education, which she completed in 2013, with an award of a degree of bachelor of laws and bachelor of arts (with majors in English and German) from the University of Queensland. 

19.	On 13th July 2015, she got admitted to practise as a lawyer in Queensland.  In the same year on 19th August 2015, her name was entered in the Registrar of Practitioners kept in the Registry of the High Court of Australia.  Since then, her name has and is on the Roll of Practitioners.  

20.	Following her admission, she held a restricted practising certificate issued by the Queensland Law Society. While holding the restricted practising certificate, she was only authorised to engage in supervised legal practise, which she did under the supervision of a Scott Turner of the Australia Taxation Office and later, a David O’Brian of MinterEllision, who were holders of unrestricted practising certificates.  

21.	On 18th August 2017, she had her practising certificate upgraded to an unrestricted parasitising certificate following two (2) years of supervised legal practise.  She goes on to say that, since her admission to practise, she has been continuously and exclusively employed as a lawyer, by a lawyer or under the supervision of a lawyer who during the period of employment was the holder of an unrestricted practising certificate. In the period from 01st July 2017, to present, she has averaged in excess of 6 billable hours per day.

22.	Further, Ms. Davies deposes that, she began her career as a lawyer at the Australia Taxation Office in Brisbane, in 2014. Whilst there, she completed her Australian Taxation Office Graduate Program in 2014, during which time she was not employed in a legal role.  In 2015, she commenced work in Australia Taxation Officer’s Review and Dispute Resolution group, which was the organisation’s litigation group. She regularly appeared on behalf of the Commissioner of Taxation and the Deputy Commission of Taxation in tax-related litigation in the Federal and State Courts. 

23.	In 2017, Ms Davies left the public sector and joined the private practice.  She commenced work at MinterEllision in Brisbane. Since commencing at MinterEllision, she has worked with the Dispute Resolution Team of the firm on a range of matters including commercial and regulatory matters. These matters have also involved Court appearances in the Federal and State Courts. 

24.	Furthermore, Ms Davies deposes that, she has never been the subject of any disciplinary proceedings and that, she is not aware of any disciplinary proceedings pending against her.  Additionally, she deposes that, she has never been declared bankrupt or insolvent and that, she has not been convicted of any criminal offence in either, Australia or elsewhere.  

(d)	Nadia Suzanne Braad

25.	The next applicant, Nadia Suzanne Braad deposes that, she did her primary schooling at Lindum State School in Wynnum, Queensland, and Kurwongbah State School in Petrie, also in Queensland between 1986 and 1992.  She then went onto the Pine Rivers State High School, Strathpine, Queensland and completed her secondary school between 1993 and 1997. She then went onto to do university studies and graduated eventually with a Bachelor of Laws degree from the Queensland University of Technology on 27th January 2005. Later on, 10th December 2012, she was awarded a Master of Laws (Intellectual Property Law) by Queensland University of Technology.

26.	On 29th January 2007, she was admitted to practise law in Queensland.  Following that, her name got entered in the Register of Practitioners kept in the Registry of the High Court of Australia on 02nd March 2007.  Since then, she has remained on the Roll and has not been struck out.  After her admission, and between 29th January 2007 and 16th October 2008, she held a restricted practising certificate issued by the Queensland Law Society. While holding the restricted practising certificate, she was only authorised to engage in supervised legal practise, which she did under the supervision of an Anthony James Bennett of Bennett & Philip who was the holder of an unrestricted practising certificate.

27.	On 17th October 2008, Ms. Braad’s practising certificate status was upgraded to an unrestricted practising certificate following two (2) years of supervised legal practise.  Since her admission to practise, she has been continuously and exclusively employed as a lawyer, by a lawyer or under the supervision of a lawyer who during the period of employment was the holder of an unrestricted practising certificate. In the period from 01st July 2017 to present, she has averaged in excess of 7 billable hours per working day.  She believes, during the course of her career, she would have averaged in excess of 6 billable hours per working day.

28.	Further, Ms Braad deposes that, she commenced her employment as a lawyer with the firm of Bennet & Philip in Brisbane in January 2005 as an Articled Clerk articled to Anthony James Bennett.  She practised continuously at Bennett & Philip until 2012. Whilst there, she conducted a broad range of commercial litigation and advisory dispute matters. A significant proportion of her practice was intellectual property litigation with the remainder being general commercial litigation and insolvency matters. In September 2012, she joined and commenced practising at MinterEllision. In that employment, she conducted a variety of commercial litigation matters and from time-to-time focused on very large litigation, including matters dealing with large, complex, or lengthy financial transactions as well as intellectual property matters.  She has also spent some time conducting a large patent matter culminating in a four-week patent trial in the Federal Court.  She considers herself a dispute resolution specialist with a particular focus on intellectual property matters having represented a number of clients and appeared in the Federal and State Courts. 

29.	Finally, Ms Braad deposes that, she has never been the subject of any disciplinary proceedings and that, she is not aware of any disciplinary proceeding pending against her.  Also, she deposes that, she has never been declared bankrupt or insolvent and that, she has not been convicted of any criminal offence in either, Australia or elsewhere.

(e)	Cheyne Malcolm Beetham

30.	The final applicant is Cheyne Malcolm Beetham.  As have the other applicants, Mr. Beetham deposes to having undertaken his primary schooling at Mandurah Primary School in Mandurah, and Singleton Primary Schools in Singleton, both in Western Australia, between 1991 and 1997.  He then went onto complete his secondary schooling at Mandurah Senior High School, and Mandurah Senior College in Mandurah, Western Australia, between 1996 and 2003.  Thereafter, he undertook university studies.  On 09th March 2010, he was awarded a Bachelor of Arts degree from University of Western Australia and on 23rd March 2010, he was awarded a Bachelor of Laws degree with First Class Honours from the University of Western Australia. Later on, 27th June 2015, he was awarded a Master of Laws with First Class Honours from the University of Cambridge, United Kingdom.

31.	On 07th February 2012, he was admitted to practise law in Australia out of Western Australia and had his name entered on the Register of Practitioners kept in the Registry of the High Court of Australia.  He was thus, entitled to practise as a lawyer in any Federal Court in Australia from about 06th March 2012.  Before that, between January and December 2010, he was Associate to the Honourable Justice ML Barker of the Federal Court of Australia. 

32.	After his admission, between 2011 and 2019, he was employed as an Articled Clerk (2011-2012), Solicitor (2012-2014) and Assistant State Solicitor (2014-2019) at the State Solicitor’s Office in Western Australia under the supervision of the State Solicitor. While employed at the State Solicitor’s Office he regularly appeared as counsel in most courts and tribunals in Western Australia, other than between September 2014 and June 2015 when he took a period of leave to complete his Master of Laws.  

33.	He goes on to depose that, as a “WA government lawyer”, as defined in section 36(1) of the Legal Profession Act 2008 (WA), he was not required to hold a practising certificate issued by the Legal Practice Board of Western Australia while employed by the State Solicitor for Western Australia. During his employment as a WA government lawyer, he averaged in excess of 6 hours of legal work per day. In February 2019 as a WA government lawyer, he averaged in excess of 6 hours of legal work per day.

34.	Finally, he deposes to not being the subject of any disciplinary proceedings and that, he is not aware of any disciplinary proceedings pending against him.  Also, he deposes that, he has not been declared bankrupt or insolvent and that, he has not been convicted of any criminal offence either, in Australia or, elsewhere.

	Consideration of the Issues

35.	Bearing these facts and backgrounds in mind, I will now turn to a consideration of each of the issues presented, starting with questions 1 and 3 first.

Issue 1 & 3 - Have the applicants cited and have therefore correctly invoked this Court’s jurisdiction to have each of them admitted as lawyers under the Lawyers Act?

36.	Each of the applicants’ notices of motion for admission is in similar terms.  Taking the application by Patricia Elaine Cahill SC for example, they each seek “pursuant to Sections 26 and 28 of the Lawyers Act 1986 and Rule 2 of the Lawyers Admission Rules 1990 that:

1. 	PATRICIA ELAINE CAHILL SC be admitted to practice as a Lawyer in Papua New Guinea.

2. 	Pursuant to Rule 5(3) of the Lawyers Admission Rules 1990 and section 155(4) of the Constitution, the applicant be deemed to have signed the Roll of Lawyers upon signing a loose-leaf copy of Form 4 of the Lawyers Admission Rules 1990 and the Registrar transcribing the details on that form onto the Roll and pasting a photostat of the applicant's signature onto the roll.

3. 	Pursuant to section 155(4) of the Constitution, the applicant be allowed to swear on oath (or make an affirmation) of the Lawyers Oath contained in Form 3 of the Lawyers Admission Rules 1990 via telephone or video call.”

37.	The Society argues that the applicants have not correctly cited the Court’s jurisdiction for seeking the reliefs they each are seeking.  The Society then points out the fact of each of the applicants’ seeking in their respective affidavits filed in support of the application, exemptions or waivers under s. 28 of the mandatory requirements of s. 25 both of the Lawyers Act, without seeking that relief in their respective notices of motion.  This the Society submits, has no foundation in any legislation, by reason of which each of the applicants are seeking a relief that has no statutory or legal foundation.  In support of its arguments, the Society places reliance on the decision in Pokia v. Yallon (2014) SC1336. There, the Supreme Court held that, a notice of motion was non-compliant with the National Court Rules, Order 4, Rule 49(8), as it did not contain sufficient reference to the Court’s jurisdiction to grant the orders sought. Instead, it referred to irrelevant laws. At the same time however, the Court held that, it is within the discretion of a Judge to nevertheless hear and determine a motion and doing so does not amount to any error of law.

38.	There are two parts to the question under consideration here.  First is the applicants’ reliance upon ss. 26 and 28 of the Lawyers Act.   The second is their reliance upon r.5 (3) of the LAR and s. 155 (4) of the Constitution.  I will deal firstly, with the first part of the issue first.

(i)	Sections 26 and 28 of the Lawyers Act

39.	Here, the applicants are clearly seeking to invoke the provisions of ss. 26 and 28 of the Lawyers Act. These provisions read:

“26.	Application for admission to practise.
(1)	An application for admission to practise shall be made to the Court.
(2)	An application under Subsection (1) shall be—
(a)	made in the manner prescribed by the Rules of Court; and
(b)	accompanied by—
(i)	evidence of qualifications for admission as required under Section 25; and
(ii)	the fee prescribed by the Rules of Court.”
…
28.	Court may admit applicant to practise.

(1)	The Court may, at any sitting, on motion, admit an applicant to practise as a lawyer if that applicant shows to the satisfaction of the Court that he possesses the required qualifications.
(2)	In considering an application for admission to practise as a lawyer, the Court may waive all or any of the requirements of Section 25.”

40.	Section 26 provides for the process for applications for admission as a lawyer.  Section 28 speaks of two different powers the Court is vested with; one is under subsection (1).  That provision vests the power in the Court on a motion to grant an applicant to practise as a lawyer provided, the applicant meets the “required qualifications” which are prescribed in s. 25 of the Act.  The second subsection grants an additional power in the Court to waive any of the requirements under s. 25.  Given that, I am of the view that, an applicant needs to clearly indicate which of these powers, or if it is the case, if both of these powers are sought to be invoked. That is necessary to place the Society and the public on notice of the reliefs an applicant for admission as a lawyer is seeking, so as to, enable the public to consider and if anyone so wishes, object to the proposed application.  

41.	Since an application for admission is a matter that the members of the public should be made aware of pursuant to s. 27 (a) of the Lawyers Act, the need to be specific is critical.  This has to be contrasted with a notice of motion filed in any ordinary proceeding before the National Court. Such motions are matters that are between the parties in a proceeding and do not concern the public at large, whereas a motion under s. 26 of the Lawyers Act is a matter of public interest.  Consequently, I am of the view that, where a motion under ss. 26 and 28 fails to specify the powers of the Court it is seeking to invoke and clearly plead the reliefs being sought, it is to that extent, defective by reason of which, such a motion would fail to properly invoke the Court’s jurisdiction.  In the light of the requirement for publication under s. 27 (a) of the Lawyers Act, such a defective motion cannot be ignored or cured in Court without the defect being properly corrected and brought to the attention of the public in the same way prescribed by s. 27 (a) of the Lawyers Act.  That would be conditional on proper application being made and leave being granted by the Court.

42.	In the present case, the applicants are seeking exemption under s. 28 without citing the correct subsection, (2) of the Act in their respective notices of motion. Also, they are effectively, asking for conditional admissions on the strength of their respective undertakings, without seeking that relief in their notices of motion.  Conditional admission and or the undertakings each of the applicants give have no foundation under the relevant and applicable law on admission of lawyers in PNG. Each of the applicants’ applications are therefore, seriously defective and which defects cannot be cured and or ignored by this Court, especially when no application for amendment is made for or by anyone of the applicants.

(ii)	Rule 5 (3) and s. 155(4) of the Constitution 

43.	Turning to the second part, I note, the LAR provides further details on the process for application for admission as a lawyer. It also elaborates on what happens upon a decision in favour of an application for admission.  Rules 4 and 5 are relevant.  They state as follows:

“4. LAWYER’S OATH.
At the admission ceremony the newly-admitted lawyer shall be required to swear an oath (or make an affirmation) in Form 3 and sign the Roll of Lawyers.
5. ROLL OF LAWYERS.
(1) The Roll of Lawyers required to be kept by Section 30 of the Act shall be a large bound book containing the information on each lawyer as set out in Form 4.
(2) The Registrar shall at least once in each year prepare a computer print-out in alphabetical order containing the name, address and admission date of each lawyer currently on the roll and that print-out shall be available for inspection free of charge at all times the Registry is open.
(3) Where a person is admitted outside of Waigani to practise as a lawyer he may sign a loose-leaf copy of Form 4 and the Registrar shall transcribe the details on that form onto the Roll and shall paste a photostat of the person’s signature onto the Roll and the person shall then be deemed to have signed the Roll.”

44.	Consistent with these rules, the established practice is, immediately upon the Court’s pronouncement of its decision to admit an applicant, a newly-admitted lawyer swears an oath or an affirmation in form 3 and signs the Roll of Lawyers.  These two steps take place in person. The oath is often administered and taken in the presence of and in the witness of the admitting Court, while the signing of the Roll takes place immediately thereafter, in person before the Registrar.

45.	In the present case, the applicants are seeking an invocation of the provisions of r 5 (3) of the LAR and s. 155 (4) of the Constitution to effectively dispense or waive the requirements and the practice established pursuant to r. 4 of the LAR.  This comes with two problems. Firstly, unlike the National Court Rules, per Order 1 r.7 which allows for dispensation of any requirements of the Rules to do justice, there is no similar provision under the LAR.  This Court’s power to waive under s. 28 (2) is restricted to the requirements of s. 25 of the Lawyers Act.  

46.	Rule 5 (3) is clear and specific. It provides for a case in which “a person is admitted outside of Waigani to practise as a lawyer	.”  An application for admission as a lawyer could be filed and moved in Lae, Mt. Hagen or elsewhere in PNG where we have resident National Court locations, which are clearly outside Waigani.  But this could not possibly include a venue outside PNG for obvious reasons.  For one, the National Court has no extra territorial jurisdiction.  It can only exercise its powers within the territorial limits of the country.  The reliefs sought in terms 2 and 3 of the each of notices of motion in each applicants’ application is effectively, asking this Court to extend its territorial boundaries to the relevant Australian cities and states where each of them are located for them to take their respective oaths and sign the Lawyers Roll.   I have not been assisted with any submission on what jurisdictional foundation this Court might have to do that and how I could possibly allow for the relief sought.

47.	Secondly, s. 155(4) of the Constitution is not a provision that applies in all cases.  Its application is instead, restricted and applicable only in certain cases.  The Supreme Court has held for example, in the case of William Powi (Acting Administrator for Southern Highlands Province) v. Southern Highlands Provincial Government 2006 SC844, per Jalina J (as he then was), Gavara-Nanu J and Kandakasi J (as I then was) that, the provision is best known for its abuse more than its proper use.  The Court then clarified by pointing out the correct attributes and the basis on which, the provision could be considered and applied 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.”
(Underling mine)

48.	 As could be apparent from the above statement of the relevant principles, s. 155 (4) cannot be employed to ask the Court for orders or a process contrary to that which is already provided for.  To do so would be getting into the sphere of abuse of process and the provision itself.  In Eremas Wartoto v. The State (2015) SC1411, per Sakora and Kandakasi JJ (as we then were) at para 64 after citing the above decision the Court made the point clear in the following terms:

“Hence, it would be an abuse of the process of the National Court and s. 155 (4) of the Constitution itself for an accused person to seek to invoke the civil jurisdiction of the National Court to effectively review criminal investigations and prosecutions, without first exhausting the remedies that are available under the District Court Act, the Criminal Code and the National Court’s Criminal Practice Rules.”

49.	In the present case, the Lawyers Act, the LAR and the Regulation provide for the right or privilege to be admitted as a lawyer in PNG together with the process and procedure to get admitted.  That being the case, one has to come within the process and procedure provided for by these legislations and ask for reliefs that are available under these legislations. Obviously therefore, s. 155 (4) of the Constitution does not and cannot be invoked to effectively get around what is provided for already by the relevant legislations on point or, to ask for reliefs not available under the relevant and applicable law. Attempts to do so, amounts to an abuse of process and s.155 (4) of the Constitution itself, by reason of which, the attempts must fail.

50.	In the end and for these reasons, I answer questions (1) and (3) as follows:

(1)	Have the applicants cited and have therefore correctly invoked this Court’s jurisdiction to have each of them admitted as lawyers under the Act?

Answer:  No

(3)	Whether the provisions of Rule 5(3) of the LAR and Section 155 (4) of the Constitution can be invoked to allow for a signing of Lawyers Roll upon admission outside that which is prescribed in the LAR?

Answer: No

51.	This leads us to consider the remaining questions, starting with issue (2) first.

Issue (2) - Whether the Attorney General has correctly certified and therefore it is not necessary for each of the applicants to expressly seek an exemption from the requirements of s. 25 (4) and (5) of the Lawyers Act and Regulation 2 of the Lawyers (Examination) Regulation 1992?

(i)	Relevant principles of law

52.	As I have noted in some of my previous judgments, as in the case of the Application by Roger Gill Maguire for Admission as a Lawyer (2003) N2466, the Lawyers Act and the LARs govern the admission of lawyers to practise law in PNG.  The most relevant and applicable provisions are ss.25, 26, 27 and 28 of the Act and rr. 1, 2 and 3 of the LARs.  Sections 26 and 27 of the Act and rr. 2 and 3 of the LARs provide for the mode and manner in which such an application can be made and where it ought to be made.  There is no issue in relation to the requirements under these provisions, in the present case. 

53.	The main arguments in this case are centered on the requirements under s.25 (3) (d) of the Act, s.2 of the Regulation and rr. 1 and 5 of the LARs.   Section 25 of the Act states:

“25.	Qualifications for admission.
	
(1)	An applicant for admission to practise 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.
(2)	The required academic qualifications referred to in Subsection (1) are—
(a)	possession of the degree of Bachelor of Laws from the University of Papua New Guinea; or
(b)	such other academic or educational qualifications as are prescribed by the Rules made by the Admission Council under Section 25A(2).
(3)	The required practice qualifications referred to in Subsection (1) are—
(a)	a certificate in the form prescribed by the Rules made by the Admission Council under Section 25A (2) signed by the Director of the Papua New Guinea Graduate Legal Training Institute certifying that the applicant has successfully completed the course of training conducted by that Institute; or
(b)	a certificate from the appropriate overseas authority certifying that the applicant was admitted to practise in a country prescribed by the Rules made by the Admission Council under Section 25A (2) together with evidence that the applicant has practised as a lawyer in a country prescribed by the Rules made by the Admission Council under Section 25A(2) for a period of not less than three years following the date of his admission to practise in that country; and
(c)	such other practice qualifications as are prescribed by the Rules made by the Admission Council under Section 25A(2); and
(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.
(4)	In determining whether or not to grant a certificate under Subsection (3)(d), the Attorney-General may require the applicant—
(a)	to attend before him for a personal interview; and
(b)	to produce to him such evidence of his fitness and academic and practice qualifications as the Attorney-General thinks fit.
(5)	Where the Attorney-General is of the opinion that an applicant has not provided adequate evidence of his academic and practice qualifications, he may require the applicant to sit examinations and for this purpose may set such examinations.”

54.	This provision is the main provision on the admission of lawyers to practise in PNG. The LARs and the Regulation supplement and elaborate on this.  Rule 1 of the LARs reads:

“1.	Qualifications for admission.
(1)	The required academic qualifications for the purposes of Section 25(2)(b) of the Act is a law degree, or other qualification equivalent in standard and content to a law degree from the University of Papua New Guinea.

(2)	The certificate required by Section 25(3)(a) of the Act that the applicant has successfully completed the course of training conducted by the Legal Training Institute shall be signed by the Chairman of the Council, and the Director of that Institute and shall be in Form 1.

(3)	For the purposes of Section 25(3)(b) of the Act, the countries are Australia, New Zealand and United Kingdom of Great Britain and Northern Ireland.”

55.	Section 2 of the Regulation, adds:

“2.	Subjects for examination.
For the purposes of Section 25(5) of the Act the Attorney-General may require an applicant to sit examinations in the law relating to—
(a)	the Constitution of the Independent State of Papua New Guinea; and
(b)	land in Papua New Guinea; and
(c)	custom in Papua New Guinea.”

56.	A combine reading and application of these provisions in the country to date is very clear.  No person can be admitted to practise law in PNG unless one has completed the bachelor of laws degree from the UPNG and has completed a course of post graduate legal training out of the Legal Training Instituted (LTI).  For a lawyer admitted and practising outside PNG and coming from any of the countries prescribed in r. 1 (3) of the LARs, has to meet the requirements of s. 25 (1), (2) (b) and (3) (b) to (d) of the Act as well as the provisions of s.2 of the Regulation.  The need to meet the requirements of s.2 of the Regulation has become a must because the bachelor of laws degree from the UPNG includes the three courses listed under this section as compulsory courses and they therefore form part of the core foundation for a bachelor of laws degree from the UPNG.  

57.	The courses listed in s. 2 of the Regulation are uniquely Papua New Guinean. They are a critical component of the bachelor of laws degree program at the UPNG.  Also, the laws taught in these courses form an important part of the laws in PNG. The Constitution of PNG undisputedly accepted as a homegrown one, forms the foundation for all other laws in the country: See SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314; Rakatani Peter v. South Pacific Brewery Ltd [1976] PNGLR 537; SCR No 3 of 1986 and Reference by Simbu Provincial Executive [1987] PNGLR 151.  Land law in PNG is also unique and peculiar to PNG in that, both the Torrens Land Tenure System and customary land law applies unlike the situation in Australia.  Customary law in itself is a big area of law in PNG which is also critical and a core part of our legal system.  By Constitution Sch. 2.1 (1), custom is an important part of our underlying law. With the assistance of lawyers through their well-researched, considered and well-articulated submissions, the Judges in PNG are responsible for developing the underlying law under Constitution Sch. 2.3 and 2.4: See The Ship “Federal Huron” v. Ok Tedi Mining Ltd [1986] PNGLR 5.  Additionally, in PNG, Alternative Dispute Resolution (ADR) is now a compulsory course that must be completed successfully for a bachelor of laws degree from the UPNG.  Also, ADR is now being promoted worldwide as a tool for better resolution of conflicts promptly, efficiently and effectively at less costs. Additionally, ADR is a tool which helps the courts to better manage their case backlogs and enable quality and expedited resolution of court cases: See Rimbunan Hijau (PNG) Ltd v. Ina Enei 2017 (SC1605), per Salika DCJ, Kandakasi J (as we then were) and Toliken J at para 47 and Hargy Oil Palm Ltd v. Ewasse Landowners Association Inc (2013) N5441, per Kandakasi J (as I then was) at paras 30 - 42.  This therefore calls for lawyers wishing to be admitted to practise in PNG to be educated in these areas of the law before they could be given the privilege of being admitted.  
58.	Requiring overseas trained and admitted lawyers applying for admission as lawyers in PNG to meet such requirements is not unique to PNG.  Australia and other countries have similar requirements.  In Australia, the requirement is for a total of ten subjects, seven more than PNG. They are namely:

Administrative Law Civil;
Procedure;
Contracts;
Company Law;
Criminal law and procedure;
Equity (including Trusts);
Ethics and Professional Responsibility;
Evidence;
Federal and State Constitutional Law; and
Property (including Torrens System Land) Torts

59.	Australia and New Zealand have a reciprocal arrangement under an Act of Parliament in the same name or title in both countries namely, the Trans-Tasman Mutual Recognition Act 1997.  This is based on bilateral arrangements between New Zealand and Australia under the Trans‑Tasman Mutual Recognition Arrangement entered into on 09th July 1996, between the Commonwealth of Australia, New Zealand, the States of New South Wales, Victoria, Queensland, Western Australia, South Australia and Tasmania, the Australian Capital Territory and the Northern Territory: See Section 3 (2) of the Australian Trans-Tasman Mutual Recognition Act 1997. This allows for lawyers trained and admitted to practise in one of the countries to register and practice as lawyers in the other.  That means, lawyers trained and admitted to practise in all other jurisdictions, including, those in PNG, are invariably required to take up studies and pass all of the subjects listed above.  This is the case, regardless of how eminently qualified and experienced a lawyer is: see https: www.collaw.ac.nz/learnwithus?overseas-practicioner and Law Admissions Consultative Committee and Uniform Principles of Assessing Qualifications of Overseas Applicants for Admission to Australian Legal Profession, August 2015 (Revised June 2017), at http://lpab.justice.nsw.gov. au/Documents/uniform-principles-for-assessing-overseas-qualification.pdf. The only, exceptions would be cases in which there are reciprocal arrangements as a matter of public policy and arrangements between countries and governments as is the case between New Zealand and Australia. I am not aware of any such reciprocal arrangement between PNG and Australia that is similar to or close to that which exists between New Zealand and Australia. 
60.	The current law and practice, not yet displaced or replaced by any bilateral arrangements or clear government and legislative change is the current legal framework in the country. Under the prevailing and now applicable law, I repeat, it is settled law that, before anyone can be admitted to practise law in PNG, an applicant has to meet the following requirements:

(1)	appropriate academic qualifications; and

(2)	appropriate practice qualifications; and

(3)	show that he or she is a “fit and proper person” to be admitted as a lawyer.

61.	In the case of an overseas qualified lawyer seeking admission to practise law in PNG, my decision in the application by Roger Gill Maguire (supra) is relevant. There, apart from the academic qualifications I commented on the practice requirements.  Firstly, I stated that: 

“In the case of an applicant who has been admitted to practice law in certain prescribed countries outside PNG, it means a certificate from an appropriate authority certifying that the applicant has been admitted to practice law and such other requirements of the Rules.  The prescribed countries are Australia, New Zealand, United Kingdom of Great Britain and Northern Ireland.”   

62.	I then stated:

“Secondly, there must be a certificate from the Attorney General that the applicant is ‘a fit and proper person to be admitted to practice in Papua New Guinea.’ In order to determine whether or not the applicant is ‘fit and proper person’, the Attorney General may require the applicant to attend on him for an interview and ‘produce to him such evidence of his fitness and academic and practice qualifications as the Attorney-General thinks fit.’ If through these processes, the Attorney General is of the view that the ‘applicant has not provided adequate evidence of his academic and practice qualifications, he may require the applicant to sit examinations and for this purpose may set such examinations.’” 

63.	Where the AG has issued a certificate, the decision in In the Matter of An Application by Peter Norman Moore [1993] PNGLR 470, per Sevua J (as he then was) is relevant.  There, speaking on the subject, His Honour said:

“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.
…
Because the Lawyers Act 1986 does not give the Court any discretion under s 25 (3)(d) in a situation where the Attorney General, in its 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.”

64.	As would be apparent here, once the AG has issued his certificate, the Court would usually be slow to go behind such certification. This is however with one exception.  The exception is in a case where it is “established that he [the AG] has acted unlawfully, maliciously or in excess of his jurisdiction.”  Obviously, the Court retains the power to review and where appropriate, overrule the Attorney General, in cases where he arrives at a decision that is malicious, illegal and or in excess of his jurisdiction.   

65.	In my decision in the application by Roger Gill Maguire (supra) I observed with respect that, the decision In the Matter of An Application by Peter Norman Moore (supra) appears not to have given any consideration to s.28 (2) in the context of discussing the meaning and effect of s.25 (3) (d) of the Act.  I went on to note that, this omission in my view, denied the Court the opportunity to appreciate that, s. 28 (2) covers even the requirement for a certificate as a “fit and proper person”.  

66.	Relevantly, the Supreme Court considered s. 28 (2) in its decision in Papua New Guinea Law Society v. Martin Dennis McEniery [1993] PNGLR 76.  There 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. In this case Mr. McEniery, despite his other qualifications has only minimal post admission experience in the practice of law in a prescribed country, well short of the required period of three years. 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.”

67.	In the application by Roger Gill Maguire (supra) 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 the 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.”  

68.	Earlier in, In the Matter of an Application by Godwin Haumu for Admission as a Lawyer, (2001) N2094, I considered the requirements under s. 25 in the context of s. 28 of the Lawyers Act.  I then observed in that context 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 issue his certificate or that he was actuated by fraud or bias towards the applicant, only then, could one go behind the certificate of the Attorney General.”

69.	These views accord well with the established principle that, there is no such a thing as unfettered discretion.  All discretion that is vested in a public authority must be exercised in accordance with the requirements of the law and for good reason: See The Application of Moge Enga & Minister for Lands Concerning Section 30 Allotment 7 Mt. Hagen [1995] PNGLR 246 and Pius Sankin, Jimmy Lingau and James Numbunda v. Papua New Guinea Electricity Commission (2002) N2257.

70.	That was in turn, in the context of a case in which, 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.  I went on to state that, any discussion on the question of whether a person is “a fit and proper person,” must bear in mind the meaning I had given to that phrase in, In the Application of Mr. Goodwin Haumu (supra).   There, in discussing that point, I had regard to the decision in Re John Sifta [1975] PNGLR 435 and Costello v. Controller of Civil Aviation [1977] PNGLR 229.  I then said:

“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 by 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?”
 
71.	After elaborating on these factors, I expressed the view that, these are necessary and important factors because of the very nature the legal profession is.  I then said:

“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 into account, 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.”

72.	In this case, quoting from my decision in the application by Roger Gill Maguire (supra), learned counsel for the applicants, Ms. Parua argues that, the PNG Parliament’s intention through the Lawyers Act, is to regulate and not to prohibit the admission of foreign lawyers. She then argues that, the requirement for examination in the three subjects listed under s. 2 of the Regulation is not part of the requirements under s. 25 of the Act and the LARs.   Hence, it is not necessary for the applicants to meet that requirement.

73.	If we are looking for an expressed accommodation of the relevant requirement, the submission is in order. However, that is not how all statutory law from the Constitution to any Act of Parliament or a rule or regulation is to be interpreted and applied in PNG. Section 109 (4) of the Constitution clearly dictates in no uncertain terms that: 

“(4)	Each law made by the Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit, and there is no presumption against extra-territoriality.
(Underlining mine)

74.	Proceeding on that basis, it is settled law that, the fair large liberal and purposive approach should be employed in the interpretation and application of a constitutional law and other statutory provisions as opposed to the narrow and restrictive approach.  The Supreme Court has been repeatedly making this point clear and have also applied the principle in many cases. One of its earliest decisions representing these authorities is Inakambi Singorom v. John Kalaut [1985] PNGLR 238.  There, the first national Chief Justice, Sir Buri Kidu, speaking in the context of considering the interpretation of a Maximum Penalty legislation said of the principles governing statutory interpretation:

“Whatever the rules or maxims of statutory interpretation say, one thing must not be lost sight of and that is that a clear parliamentary intention in legislation cannot be ignored or overruled by the courts. The courts cannot and must not frustrate clear parliamentary intention in any legislation so long as such legislation is constitutionally valid. For Parliament is empowered by the Constitution, s 100, to exercise the legislative power of the people and not the courts. In fact Parliament's legislative power, subject to the Constitution, is unfettered (the Constitution, s 109 (1)), and laws made by Parliament ‘shall receive such fair, large and liberal construction and interpretation as will best ensure that attainment of the object of the law according to its true intent, meaning and spirit’ (s 109 (4)”
(Underling mine)

75.	Later decisions continue to recognise these principles and adopt and apply them: See for example, in Reference by the East Sepik Provincial Executive (2011) SC1154, per Kirriwom J; Reference pursuant to Constitution, Section 18(2) Re Jurisdiction of the Leadership Tribunal (2019) SC1852, per Kandakasi DCJ, Batari, Cannings, David and Hartshorn JJ and Special Reference pursuant to Constitution s19(1) Special Reference by the Ombudsman Commission of PNG (2019) SC1879 , per Salika CJ, Kandakasi DCJ, Mogish & Manuhu JJ.  

76.	I consider what the Supreme Court said in the celebrated decision of Wilson and Andrew JJ., in PLAR No. 1 of 1980 [1980] PNGLR 326 is also instructive.  There, their Honours stated:

“… there is no place in a developing country where the courts, as well as the Law Reform Commission, are given special responsibilities in the process of development, for the narrow interpretation of statutes without adequate regard to the social purpose of particular legislation. Development is difficult to achieve if courts adopt too conservative an approach to the interpretation of statutes. There has been a tendency in our National Judicial System, less evident in some recent decisions of the courts but still perceptible, to over-emphasize the literal meaning of a provision at the expense of the meaning to be derived from other possible contexts; the latter including the application of the ‘mischief’ rule, the recognition of the general legislative purpose, as well as the obligations laid down under the Constitution such as, for example, the obligation upon the courts in interpreting the law to give ‘paramount consideration to the dispensation of justice’…”

77.	In my decision in the matter of Special Reference by the Attorney-General pursuant to Constitution, Section19 (2016) SC1534 and elsewhere, I have taken this to mean:

“… the Courts should be taking a more liberal and purposive approach when it comes to interpreting and applying the provisions of the Constitution and other statutory provisions in our country in order to do justice.  A large number of subsequent decisions of the Supreme and National Courts have consistently allowed themselves to be guided by these principles.  As I noted in my decision in Motu Koita Assembly v. NCDC,.. an example of the Court adopting the liberal and purposive approach to statutory interpretation, is the Supreme Court decision in SCR No. 1 of 2000; Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council…. There the Court having regard to the provisions of schedule 1.5 (interpretation) of the Constitution said: 

‘Going by this expressed dictation in the Constitution …, it is now an accepted principle of both constitutional and other statutory interpretation, that the provisions of the Constitution and all Acts of Parliament must be given their fair and liberal meaning. This is so as to give effect to the intent of Parliament behind the provisions in question.  There is a long line of case authority on that.’”

78.	At the same time, I note that, there are however, two well-known exceptions to the above position of the law.  The first of the two exceptions are in cases where the words used in the legislation are so plain and clear that no art of interpretation is required. The second exception is in the area of tax legislation, where the strict interpretation rule applies. The reason for this exception is simple.  For the imposition of a tax or a charge against a subject, Parliament needs to express that intention in clear and unambiguous terms in the relevant statute. A failure to do so, would result in an interpretation that is favourable to taxpayers.

79.	In the present case, the intention of Parliament through the enactment of s. 25 of the Lawyers Act is very clear.	A person can be admitted to practise law in PNG if he or she has the:

(1)	appropriate academic qualifications namely a bachelor of laws degree from the UPNG; and

(2)	appropriate practice qualifications, that is the postgraduate legal practice training from the LTI; and

(3)	meets the “fit and proper person” test to be admitted as a lawyer.

80.	In the case of a person who has an overseas qualification and admission seeking admission in PNG, such a person must demonstrate to the satisfaction first of the AG and secondly of the Court that the applicants academic and practice qualifications are equivalent to those offered by the UPNG and the LTI.  The three subjects listed under s. 2 of the Regulations as already mentioned are core compulsory courses that a law student at the UPNG must successfully undertake and complete as part of his or her bachelor of laws degree program.  Additionally, ADR is now a compulsory component of the courses that must be completed for a bachelor of laws degree out of the UPNG.  Given the importance of each of these subjects as discussed already, no person will graduate from the UPNG’s Law School with a bachelor of laws degree without successfully completing these core subjects. That would then prevent a person in PNG from entering the LTI and complete his or her post graduate legal training.  Consequently, that would in turn make it impossible for a person wishing to practise law in PNG.  Hence, a person aspiring or wishing to be a lawyer in PNG will fail to qualify.   It should therefore follow that, overseas trained and qualified lawyers, no matter how eminently qualified they might be, they need to establish to the satisfaction of the Court that they have undertaken each of the courses and successfully completed them or that the courses, they studied and completed from their universities bachelor of law degree program are equivalent in standard and content to those constituting the UPNG bachelor of laws degree program.  A failure to do so would result in no admission.  The same would be the case for a PNG qualified lawyer who has not undertaken or has done so but has failed to pass the examination requirements under the Australian system of the 10 subjects mentioned earlier. 

81.	Assessments by the Dean of the Law School at the UPNG of a foreign qualified lawyer is thus an important part of the process for admission of foreign trained and qualified lawyers.  It assists the Court in make a decision whether or not to admit such a lawyer to the practice of law in PNG.  Similarly, obtaining a “fit and proper person” certificate from the AG is also part of the requirements that must be met.   The Court is however, duty bound to take into account these factors without being bound by them.  Ultimately, the Court has the exclusive power to make a decision whether or not to admit a person to practise law in PNG.  In the process, the Court has the power under s. 28 (2) of the Lawyers Act, if need be, to waive the meeting of some or all of the requirements under s. 25.  That power is not concurrent with the AG or anybody else.  The AG’s power is only to decide whether or not to issue a “fit and proper person” certificate.  

82.	If there was a shift from the policy and the various powers that must be exercised by the AG and the Court as is presently represented by the Lawyers Act, the LARs and the Regulation, that had to come through proper legislative amendment or repeals and replacements.  Such policy shift would have to have the necessary reciprocal arrangements between PNG and Australia as is the case between Australia and New Zealand.  We cannot as a nation with a mature legal profession with some second-generation lawyers, like Ms Parua herself, already admitted and practising ably in the country now, allow for a one-way traffic favouring only foreign or overseas admitted lawyers to practice in PNG with no similar opportunity being created and given to PNG trained and admitted lawyers.  Until at such a time we have such a shift in the policy firmed up by appropriate legislative enactments with bilateral or multilateral arrangements, the current policy is as is represented by the current relevant and the applicable legislative provisions of the Lawyers Act, LARs and the Regulation.  The policy, aim and objective of the current legal regime as already noted is to protect PNG trained and lawyers already admitted to practise law in PNG as does Australia and other nations for their own lawyers. 

83.	Of course, where we as a country lack any particular kind of legal knowledge, experience and expertise, that may warrant, on a case by case basis, admission of overseas trained and experienced lawyers who possess the needed expertise in a particular field of law.  This would however, have to be tied down to such an expert working with a Papua New Guinean law firm or lawyer who he or she will help train and upskill to become an expert in the long term.  The way forward on this has been clearly led by prior decisions of the Courts especially on the issue of certifying overseas counsel’s fees or costs.   A case that quickly comes to mind is the decision of the Supreme Court, per Prentice CJ in Ronald Emanuel Jordan v. Glen Hamilton Edwards [1979] PNGLR 420. There the Court said:

“I consider that the situation has now arrived where more and more nationals in this Independent State become involved in litigation, that the cost of importation of foreign counsel should usually be borne by the party briefing him. And it should be kept in mind that the institution of Queen's Counsel is not recognized in our legal framework, and that fees on such a scale should not be allowed.

When considering whether an exception should be made in terms of the court's Rule — the court, I believe, should take into account as the principal factors — the difficulty of the case (in particular whether it involves complex matters of law); the nature and extent of the rights involved; the expertise reasonably required for the nature of the particular lis; (sic) whether the smallness of the profession and of the community might cause embarrassment to the employment of resident counsel; and above all the necessity of keeping costs as low as possible and access to advice as wide and as even as possible.”

84.	I had regard to the above decision in the matter of Bank of Hawaii (PNG) Ltd v. PNGBC (2001) N2095.  I then observed and summed up the principles in the following terms:

“We often speak of improving the level of advocacy and competence of Papua New Guinean lawyers and I believe that, quickly resolving to the engagement of overseas counsel will not assist in that aspiration. Besides, I note that Papua New Guinean lawyers do not get a reciprocal treatment in Australia, where most of the overseas counsels come from. I believe the time has come for a critical look at the practice of certifying overseas counsel’s costs as a matter of cause. The principles laid down by the Supreme Court in Ronald Emanuel Jordan v. Glen Hamilton Edwards (supra) should be considered in every case and applied.  Before there can be a certification of overseas counsel’s costs, the party applying for such certification must in my view show to the satisfaction of the court the following:
1.	The issues presented in the case are important and complex;
2.	Those issues have not been raised and consider in an earlier case in the country;
3.	There is no local experienced and capable lawyer to take on the case;
4.	The amounts involved are substantial;
5.	Reciprocal and or meaningful arrangements are in place to impart skills and knowledge to a Papua New Guinean with (sic) a specified period;
6.	If the overseas counsel concerned has appeared as counsel in a case before, he or she has in fact imparted skills and knowledge to a local lawyer or lawyers
The above list is in no way exhaustive. A court may take other factors into account to determine whether or not to certify overseas counsel’s costs.”

85.	Applying these principles to the case that was then before me, I resolved the issue of whether overseas counsel’s fees should be certified in this way:

“In the case before me, I appreciate and accept that, this may be the first case of its kind on the issues raised, in our jurisdiction. However, I do not accept that the issues raised were so complex requiring the assistance of overseas counsel. There is neither any evidence nor can I accept that, after more than 20 years of independence Papua New Guinea still lacks experience and competent lawyers of her own. Indeed, the Defendants were ably represented by Mr. Titus who is a relatively young national lawyer perhaps with not much experience but he understood the issues alright and did greatly assisted the court as much has the Plaintiff's overseas counsel did. I have nothing before me as to what skill and knowledge overseas counsel in this case imparted onto a Papua New Guinean lawyer in the context of this case or in any other respect. The amounts involved are not substantial, though K38, 600.50 is not a negligible amount. For these reasons, I have in the exercise of my discretion declined to certify overseas counsel’s costs.”

(ii)	Application of the law to the present case

86.	Against the current and existing legal framework, I have carefully examined each of the applicant’s bachelor of laws degree courses’ content.  Each of their academic transcripts do not disclose each or any of the applicants having undertaken successfully a course of study of the PNG Constitution, PNG land law and PNG customary law. Also, though not relevant, I note, none of the applicants appear to have undertaken any course on ADR, negotiations or conflict resolution except for Ms. Braad. None of the courses each of them has undertaken successfully get anywhere closure to the subjects listed under s. 2 of the Regulation.  This is not surprising because, these are specifically PNG subjects.  If, however, the courses each of the applicants have undertaken have substantially covered the three subjects in question, it was incumbent upon each of them to demonstrate that to the satisfaction of the Court.  None of the affidavits filed in support of each of the applications, including that of Professor Luluaki, with the greatest of respect, provide any explanation as how the course of studies in the various Australian and other universities for each of the applicants meets or are considered equivalent for example to the three core subjects listed under s. 2 of the Regulations.  

87.	The Law Society has obtained and filed an affidavit from a Ms. Fingkewe Zurenuoc who was admitted to practice law on 13th December 2019 after completing her LTI course of studies.  Attached to Ms Zurenuoc’s affidavit is a copy of her official academic transcript for the bachelor of laws degree program from the UPNG. That transcript includes the three subjects listed in s. 2 of the Regulation, but with land law comprising of two components, namely, Land Tenure Law and Land Administration Policy.  Professor John Luluaki, who has examined each of the applicants’ academic transcripts only states in his affidavit filed in support for all of the applicants:

“I am satisfied that the academic qualifications held by Claire Elizabeth Valma Davies [or replaced be each of the correct names corresponding their respective applications] is equivalent in standard and content to a law degree from the University of Papua New Guinea.”

88.	In my respectful view, more needs to be said about for example, how the PNG constitutional law course is similar or equivalent in content to the constitutional law courses offered by a university in Australia or South Africa.  This is critically important when the constitutional law course content at the UPNG is influenced by and reflects the PNG Constitution and the fact that, there are obvious differences between the constitutions of each of the countries of the world.  The same can be said of land law and customary law.  As I observed already, these subjects are unique to PNG. By reason of that, specific assessment of courses offered and completed at overseas universities need to be closely examined and assessed before arriving at a conclusion that they are equivalent in standard and content to those offered at the UPNG. Further, given that the examination and assessment of the academic record of an applicant is for the whole of the courses studied and passed as against the completeness of the courses and their contents for the bachelor of laws degree courses out of the UPNG, similar considerations have to be given with the relevant details for each of the courses.  Then for courses only offered by the Law School at the UPNG, especially the compulsory courses such as ADR, the assessor needs to point out, what was the equivalent course studied and completed out of the relevant overseas universities and how both the standard and the contents are the same or equivalent.  

89.	With respect, the affidavit by Professor Luluaki is a statement of conclusion without stating the facts about each of the courses standard and content to then form the foundation for the conclusion.  It is settled law that affidavits must state facts only to the exclusion of any conclusions, submissions on the law and or arguments: See William Duma v. Yehiura Hriehwazi (2004) N2526; Geru Holdings Ltd v. James Kruse (2019) N7867 and Application by Cloudy Bay Sustainable Forestry Ltd v Pako F & C Holding (PNG) Ltd (2019) SC1788.  I note in this case, that the relevant affidavit was prepared for the deponent by counsel assisting the applicants.  Hence, I am of the respectful view that, the shortfall or insufficiency in the assessment is not a reflection on the assessor but the applicants and their learned counsel. 

90.	 In view of the insufficiency in the assessment of each of the applicants’ academic qualifications, I do not accept the assessment of each of their academic qualifications as being equivalent in standard and content to that of the bachelor of laws degree content offered by the UPNG. In these circumstances, I find each of the applicants have failed to demonstrate to the satisfaction of this Court that they meet the academic qualifications under s. 25 of the Lawyers Act.

91.	 An exemption under s. 28 (2) of the Act might be an answer to each of the applicant’s problem of not meeting the academic qualification requirements under s. 25 of the Act.  Before any exemption or waiver can be considered and granted, such a relief must be specifically sought in an applicant’s notice of motion constituting his or her application for admission.  The relief thus sought, must be supported by appropriate evidence.  The Supreme Court decision in Martin Dennis McEniery’s case is on point.  There, in the context of considering the policy behind the provisions of ss. 25 and 28 (2) of the Act, the Court held:

“In our judgement the majority decision in Lash (supra) should not be followed for there is clearly discernible in the legislation, a policy and intention to restrict the admission of foreign lawyers in Papua New Guinea to those applicants who comply with the strict provisions of s25 of the Act subject only to the Court's power of a waiver in individual cases. Although the ‘satisfaction of the Court’ standard applies under s28(1) of the Act to applicants who possess all of the prescribed qualifications, the standard should not as a matter of law be arbitrarily imported into the interpretation of waiver applications under s28(2). The effect of the majority decision in Lash (Supra) is that the strict requirements of s25 become meaningless with s28(2) because the policy and intent of the Act can be defeated. The intention of the legislature may be seen by the repeal of the previous s8 of the Act and the amendments thereto. Thus, by further regulating the admission of foreign lawyers there is an intention to protect lawyers who have obtained their academic and legal practice qualification in Papua New Guinea against lawyers from the prescribed countries who do not have a minimum of 3 years post-admission practising experience.

In our judgement the proper standard to be applied to s28(2) of the Act is that of ‘substantial compliance’. Such a standard gives effect to the clear policy and intention of the legislation to restrict the admission of foreign lawyers in Papua New Guinea to those applicants who comply with the strict provisions of s25 subject only to the Court’s power of a waiver in exceptional circumstances. The requirements under s25 of the Act are not rendered meaningless when s28(2) is construed as requiring a standard of substantial compliance.
…
The test to be applied is not ‘on the balance of convenience’ but whether there has been substantial compliance with s25 of the Act.” 

92.	The “substantial compliance” test has been considered in a number of cases.  In Re Application by Joyce Sylvia Kunjip for Admission as a Lawyer [1997] PNGLR 284, per Salika J (as he then was), the Court was satisfied that the applicant substantially complied with the requirements of s. 25 for the purposes of granting an exemption under s. 28 (2). There, the applicant completed her bachelor of laws degree from the UPNG.  There was thus, no issue that she met all of the requirements, including the three core subjects listed in s. 2 of the Regulation for a bachelor of laws degree from the UPNG.  She then undertook post graduate legal training at the Queensland University of Technology.  The contents and her course of studies were found to be equivalent to those offered by the LTI. 

93.	The decision went on appeal to the Supreme Court by the PNG Law Society.  The Supreme Court in its decision in The Papua New Guinea Law Society v. Sylvia Joyce Kunjip (1998) SC578, per Amet CJ, Sakora and Sevua JJ (as they then were) upheld the National Court’s decision.  In so doing, the Court added:

“In our opinion s 28 (2) cannot be any clearer than that the Court has the absolute discretion to waive all or any of the requirements of s 25 including subsection (3)(a). That therefore means that the court can waive the need to obtain a certificate in the form prescribed by the Rules, which may mean that the person applying need not necessarily have attended the course of training conducted by the Papua New Guinea Legal Training Instituted such that a certificate in the form prescribed by the Rules need be issued pursuant to s 25 (3)(a).

What the factors and circumstances as might be fitting and appropriate for the Court to exercise the discretion to so waive all or any of the requirements of Section 25 remains a discretionary matter for the court. And unless any objector to the application can demonstrate to the trial court or this court that the matters taken into account by the trial court in the exercise of that discretion were wrong and inappropriate then of course the exercise of the discretion is not to be easily displaced.
…
Its application for the waiver of requirements of s 25 pursuant to s 28(2) must be considered on its own merits and circumstances.”

94.	In The Application of Tiffany Twivey (1997) N1500, per Salika J (as he then was), the Court found the applicant did not meet the “substantial compliance” test.  That was because the applicant had not been admitted to practice and had not been practising law in Australia.  The fact that the applicant had worked and lived in PNG as a lecturer in law at the UPNG and thus being exposed to PNG, the country’s laws and her legal system did not matter.

95.	Two years earlier, the Court found the applicant in In the Matter of an Application by Egerton MacPherson Robb [1995] PNGLR 462, did not meet the “substantial compliance” test.  That was again, despite the applicant teaching law in PNG with the LTI and working with a law firm in PNG.  The Court was of the view that, the applicant was required to produce evidence of post graduate legal practise in one of the prescribed countries, which he failed to do.  

96.	Much earlier in Re Mellor [1974] PNGLR 213, per Frost ACJ, Clarkson and Prentice JJ (as they then were), the Supreme Court found there was no “substantial compliance” by the applicant.  That was in a case where the applicant had graduated with a bachelor of laws degree and had worked as a magistrate in the service of the government of PNG but did not meet the then requirements of the provisions of r. 6a (1) (c) of the Rules.  In the Court’s own words, it said:  

“In our opinion, to establish compliance in any degree with r. 6a (1) (c) it is necessary that an applicant should for some period have devoted himself to employment as a clerk engaged in the performance of legal duties in accordance with the requirements of that rule. If an applicant cannot show that all the requirements of those sub-paragraphs have been strictly complied with, for example, service as a clerk for the whole of the required period, then if substantial compliance is shown, depending on the circumstances, a case may be made for relief under r. 15.

It was not argued that there had been compliance with these provisions. Valuable although the applicant's experience in legal duties for the Government of this country has been, and particularly his service as a magistrate, that experience is quite different from that of a clerk employed in the performance of legal duties in which the clerk has the advantages of supervision by a practitioner of this Court, substantial opportunities of gaining experience in all classes of legal work conducted by the practitioner, and also instruction in the actual performance of the matters, arising in the practice of that practitioner, as elaborated in r. 6a (1) (c). It thus follows that as the applicant has failed to establish any period of service as a clerk, the present application must fail.”

97.	As could be gathered, the applicant in that case, having lived and worked as a magistrate in the legal system of the country was not considered sufficient for the purposes of finding substantial compliance.  

98.	Finally, in Re Application by Godwin Haumu for Admission as a Lawyer (supra), I found for “substantial compliance” upon the applicant producing evidence of having obtained a bachelor or laws degree from the UPNG, completed the course of post graduate legal training provided by the LTI and having secured a “fit and proper person” certificate from the AG. 

99.	In the present case, as already noted, none of the applicants are seeking any exemption or waiver specifically in their respective applications, per their respective notices of motion.  However, they are each through their respective affidavits, seeking exemptions under s. 28 (2) of the Lawyers Act.  This may be is the case because, each of them has secured their purported exemptions from the AG.  Unfortunately, each of the exemptions were not properly and correctly sought and granted.  Under s. 28 (2) only this Court has the power to consider any application for exemption or waiver and if properly made out, grant it.  The AG has no power to consider and grant any exemption.  His purported exemptions in each of these applicants favour was a clear case of the AG usurping the powers of the Court. By reason of that, the purported exemptions are null and void and of no effect. 

100.	I already discussed the effects of each of the applicants’ failure to seek exemptions expressly in their respective notices of motion.  The effect of this is clear.  Each of the applicants are left with no proper application under s. 28 (2) of the Act.  Further, even if the applicants specifically sought exemptions under s. 28 (2), they each have not made out any case for a grant of any exemption of the mandatory requirements of s. 25 of the Act.  Two factors operate against any grant of an exemption or waiver for each of them. Firstly, none of the applicants have adduced any evidence of their knowledge, experience and or having practised in PNG and PNG law.  In this regard and in my humble view, the present applicants’ cases are no better or are worse compared to the applicants in Re Mellor (supra); In the Matter of an Application by Egerton MacPherson Robb (supra) and The Application of Tiffany Twivey (supra), each of whom had lived in PNG, had been exposed to and had worked with lawyers and the law in PNG prior to their respective applications.   

101.	Secondly, I note what I observed in my decision in Bank of Hawaii (PNG) Ltd (supra) equally applies here with appropriate modifications.  I reiterated that quickly resolving to the engagement of overseas counsel will not assist in building and having in place an experienced and competent legal profession in PNG that is comparable to that of Australia, New Zealand, England or elsewhere.  In the absence of any reciprocal arrangements between Australia, New Zealand and or England or indeed anywhere else and PNG, the principles enunciated in Jordan v. Edwards (supra) as I adopted and applied in the Bank of Hawaii (PNG) Ltd (supra) applies with appropriate modifications. Applying those principles with appropriate modifications, I note, none of the applicants have established that:

1.	The issues presented in the COI are important and complex and that each of the applicants have the required and necessary knowledge, skill and expertise beyond anyone already in PNG and are thus required to assist the COI;
2.	The issues presented have not been raised and considered in any earlier COI or a court case in the country such that, we are left with no guidance;
3.	There is or are no local experienced and capable lawyer to take on the tasks the applicants are required to take on and discharge;
4.	The amounts involved are substantial; and
5.	Reciprocal and or meaningful arrangements are in place to impart the applicants’ skills, knowledge and expertise to Papua New Guineans within a specified period;

102.	Having regard to all the foregoing, an answer to the issue under consideration is clear.  The AG incorrectly usurped the powers vested in this Court by s. 28 (2) of the Lawyers Act in granting the purported exemptions to each of the applicants from meeting the mandatory requirements of s. 25 (4) and (5) of the Lawyers Act and s. 2 of the Regulation.  Also, in any case, no case has been made out for grant of waivers or exemption under s. 28 (2) of the Lawyers Act.  Consequently, I find each of the applicants have failed to meet the requirements under s. 25 (4) and (5) of the Lawyers Act.   

Issue (4)	Whether the applicants’ inability to practice law in PNG if admitted is a relevant factor of consideration?

103.	The just concluded discussions conveniently leads us to a consideration of the last and remaining issue around each of the applicants not being able to practise law in PNG following a decision in favour of their admission.  The relevant question then becomes, if the applicants are not going to be actually practising law in PNG, how are they going to impart their skills, knowledge and expertise to Papua New Guinean lawyers?  An answer to that question had to come from the applicants. Unfortunately, we have no answer to that question from any of them.   This also raises the question of, if the applicants are practically not going to practise law in PNG, what is the utility of their respective applications for admission.  Again, the answer had to come from the applicants but again, we have no answer from them. The requirement for admission is necessary and must be met by lawyers who want to and will be practising law in PNG. It is not an academic exercise or a mere matter of formality.  Judicial time and before that, court registry and support staffs’ time is taken to process and consider an application for admission. The courts are inundated with many cases pressing for the courts’ attention.  Hence, I consider it important that, only persons who seriously wish to and will indeed be practising law in PNG once admitted should make applications for their admission to practise. 

104.	In the present cases, each of the applicants have adduced evidence of how difficult it is under the current COVID-19 pandemic restrictions for them to travel to and from PNG.  Given that and as already noted, they are not able to attend Court in person with their counsel to make their respective applications. Also, they are not able to take the lawyer’s oath and sign the Lawyers’ Roll immediately, if a decision to have each of them admitted were to be arrived at. Further, commissions of inquiry often do not take that long.  There is no evidence before the court that the COI, that is relevant to these applications, will go beyond the next few months.  Similarly, there is no evidence before the Court that, COVID-19 will go away anytime sooner with its related restrictions.  

105.	Having regard to all of the foregoing considerations and reasons, I am not satisfied that each of the applicants have made a case for their admission as lawyers.  Accordingly, I decline each of their applications and order a dismissal of each of them.
__________________________________________________________________
Leahy Lewin Lowing Sullivan Lawyers:	Lawyers for the Applicants
Ashurst PNG Lawyers:				Lawyers for the Defendants