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Kincaid, In re [1974] PNGLR 219 (29 August 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 219 - Kincaid, In re

[1974] PNGLR 219

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN RE KINCAID

Port Moresby

Frost ACJ Clarkson Prentice JJ

2 August 1974

29 August 1974

LEGAL PRACTITIONERS - Qualifications and Admissions - Barrister and Solicitor - Practitioner admitted elsewhere - Student at law - Clerk in service of and under supervision of practitioner - Admitted in British Columbia - Articles performed in Vancouver - Lecturer in Law in Port Moresby - Not substantial compliance with requirements relating to service as clerk - Admission Rules 1963-1973 rr. 2[ccxciv]1, 6[ccxcv]2, 8[ccxcvi]3, 12[ccxcvii]4, 15[ccxcviii]5.

On an application for admission as a barrister and solicitor by an applicant being a Bachelor of Laws of the University of British Columbia, a Master of Laws of the University of Sydney, who had served articles in Vancouver and was admitted as a barrister and solicitor of the Supreme Court of British Columbia and had been a lecturer in law at the University of Papua New Guinea and was registered as a student at law for 13 months, but had not performed any service as a clerk in the service of and under the supervision of a practitioner of the Supreme Court of Papua New Guinea,

Held

(1)      An applicant for full admission as a barrister and solicitor must have both the necessary academic qualifications and practical training required by r. 6 (1) of the Admission Rules 1963-1973.

(2)      For a case for relief from compliance with the Admission Rules under rr. 12 and 15 thereof, the applicant must show substantial compliance with the requirements of r. 6 (1) (c) relating to service as a clerk.

In re Mellor, [1974] P.N.G.L.R. 213 followed.

(3)      An essential requirement under r. 6 (1) (c) of the Admission Rules, relating to such service as a clerk is that it should be performed in the service or under the supervision of a practitioner of the Supreme Court of Papua New Guinea.

(4)      As the applicant had failed to establish any such period of service as a clerk the application should fail.

Motion

The applicant P. J. Kincaid sought admission as a barrister and solicitor of the Supreme Court of Papua New Guinea pursuant to the Admission Rules 1963-1973 and by motion sought a declaratory order under r. 8 thereof, that by reason of his instruction and the possession of the prescribed academic and other qualifications, he was qualified for full admission to practise.

Counsel

J. A. Griffin, for the applicant.

L. K. Young, for the Law Society of Papua New Guinea.

Cur. adv. vult.

29 August 1974

FROST ACJ CLARKSON PRENTICE JJ: The applicant, P. J. Kincaid, applies by motion for a declaratory order under r. 8 of the Admission Rules 1963-1973 that the Court is satisfied that by reason of his instruction and the possession of the prescribed academic and other qualifications, he is qualified for full admission to practise.

Mr. L. K. Young appeared for the Law Society to support the application.

It appears from his affidavit that having graduated in 1968 as a Bachelor of Laws of the University of British Columbia, and in March 1970 as a Master of Laws of the University of Sydney, the applicant later served for one year as an articled clerk with a firm of solicitors in Vancouver, and on 30th June, 1971 was admitted to practise as a barrister and solicitor of the Supreme Court of British Columbia. He came to Port Moresby in June, 1973 taking up an appointment as lecturer in Law at the University. Since 4th June, 1973 he has been registered as a student at law. The fact that he has not either for the requisite period of two years or at all engaged in service as a student at law pursuant to r. 6 (1) (c) is the reason for the present application.

The applicant also seeks enabling orders under r. 12 (a) reducing the period of not less than two years required by r. 6 (1) (b) for registration as a student at law to a period of 13 months which is the period of his registration up to the date of this application, and also an order under r. 15 waiving so much of the Rules relating to service as a student at law as would prevent the Court from making a declaratory order under r. 8.

In view of the applicant’s prior experience there is little doubt that the Court would make an order for a substantial reduction under r. 12 (a), but it is convenient to consider first the application under r. 15 because unless that latter application succeeds an order under r. 12 (a) may be of no avail to him.

The scheme of the Admission Rules is to make special provision for the admission of “practitioners admitted elsewhere”, a category which by definition is limited, in effect, to practitioners qualified to practise in the High Court of Australia, the Supreme Court of a State or Territory of the Commonwealth or of New Zealand or a barrister or solicitor qualified in England (r. 2). These practitioners may be admitted immediately to practise under r. 3 on complying only with the formal requirements prescribed by s. 14 of the Legal Practitioners’ Act 1954-1971. The present provisions relating to immediate admission without service as a clerk were introduced when this country was Australian Territory and there was no indigenous profession. Whether for traditional reasons or because past experience and investigation had shown it to be justified it was only practitioners from Australia and later those from England and New Zealand who were given a special standing as to both qualification and training requirements not given to practitioners perhaps equally competent from other common law countries and that situation still obtains.

But a person other than a practitioner admitted elsewhere who desires to be admitted to practise must comply with a quite different procedure. He is required, upon the lodging of a certificate of fitness (r. 5), to register with the Registrar as a student at law (r. 4). To qualify for admission the Court must under r. 6 (1) be satisfied that the applicant has the requisite academic qualifications (sub-par. (a)), has been registered as a student at law for a period of not less than two years or such lesser period as may be ordered under r. 12, (sub-par. (b)), and that throughout the period he has been registered as a student at law, he has devoted himself diligently to his employment as a clerk engaged in the performance of legal duties in the service of a practitioner of this Court, that being the effect in our opinion of sub-par. (c).

We shall assume in the applicant’s favour that the University of British Columbia, where the applicant graduated, is under r. 6 (1) (a) a University of a country the law of which is based upon the common law, so that upon the evidence as to the standing of that University, the applicant has shown that he has the necessary academic qualifications.

Mr. Griffin, on behalf of the applicant, argued strongly that it would be an unreasonable construction to be placed on the Admission Rules if an applicant who has already served one required period of articles in a common law country were required to serve another such period.

This consideration might well lead the Court to be satisfied that the applicant is by reason of his qualifications, experience and training a fit and proper person to be admitted to practise under r. 15 (b). But he is not entitled to relief unless he can first show substantial compliance with the Admission Rules as required by r. 15 (a). Mr. Griffin argued that it was unnecessary to show substantial compliance with each of the Rules. A similar argument was submitted to this Court in Re Mellor[ccxcix]⁶ which was an application under r. 15 by an applicant for provisional admission who, as in the present case, had not engaged for any period as a clerk employed in legal duties as required by r. 6a (1) (c). That subrule is in similar terms to r. 6 (1) (c). The conclusion that this Court reached in Re Mellor[ccc]⁷ was that an applicant must show substantial compliance with the requirements of r. 6a (1) (c) relating to service as a clerk. In our opinion, for the same reasons which we stated in that case, the applicant for full admission also must show substantial compliance with the requirements relating to service as a clerk laid down in r. 6 (1) (c).

An essential requirement under r. 6 (1) (c) relating to service as a clerk is, in our opinion, that it should be performed in the service or under the supervision of a practitioner of this Court. In the case of applications for full admission, as in those for provisional admission, it is necessary that an applicant should for some period have devoted himself to employment as a clerk in accordance with the requirements of the Rules.

The conclusion we have reached is supported by the consideration that the contrary view would render nugatory the basic distinction made in the Admission Rules between practitioners admitted elsewhere and other applicants.

For these reasons in our opinion this application must fail.

Application refused.

Solicitor for the applicant: J. A. Griffin.

Solicitor for the Law Society of Papua New Guinea: L. K. Young.

[ccxcv]Rule 6 (1) of the Admission Rules 1963-1973 provides:—

A Student at Law shall be qualified for admission to practise on satisfying the Court that—

(a) he is a graduate in Law of an Australian University or of a University of a country the law of which is based upon the Common Law and of which the Court is satisfied that the standard of graduation in law is equal to or higher than the standard of Bachelor of Laws of the University of Queensland or he possesses other academic legal qualifications to the satisfaction of the Court;

(b) he has been registered as a Student at Law for a period of not less than two years, or such lesser period as the Court may require under Rule 12 of these Rules, prior to his application for admission to practise;

(c) he has filed an Affidavit by a practitioner of the Court that throughout the period he has been registered as a Student at Law—

(i) he has, during normal business hours devoted himself diligently to his employment as a clerk engaged in the performance of legal duties in the service or under the supervision of the practitioner and has so devoted himself to the exclusion of any other business, trade or occupation;

(ii) & (iii) & (d) as in Rule 6a (1) (c) (ii) and (iii) and (d).

(e) by reason of his instruction and experience and possession of the prescribed academic and other qualifications he is qualified to be admitted to practise.

[ccxcvi]Rule 8 of the Admission Rules 1963 as amended provides:—

A person, other than a practitioner admitted elsewhere, desiring to establish his qualifications for admission under Rule 6, Rule 6a or Rule 6b of these Rules may, after giving the Secretary for Law not less than five clear days’ notice in writing of his intention so to do, apply to the Court upon motion for a declaratory order that the Court is satisfied that, by reason of his instruction and the possession of the prescribed academic and other qualifications, he is qualified for admission to practise.

[ccxcvii]Rule 12 of the Admission Rules 1963 as amended provides:—

The Court may by order and for good cause reduce—

(a) the period of not less than two years referred to in subparagraph (b) of paragraph (1) of Rule 6 of these Rules;

(b) the period of not less than one year referred to in subparagraph (b) of paragraph (1) of Rule 6a of these Rules;

(c) the period of twelve months referred to in subparagraph (a) of paragraph (1) of Rule 6b of these Rules.

[ccxcviii]Rule 15 of the Admission Rules 1963 as amended provides:—

Notwithstanding anything in these Rules contained where the Court is satisfied that an applicant—

(a) has substantially complied with these Rules;

(b) is, by reason of his qualifications, experience and training a fit and proper person to be admitted to practise; and

(c) is otherwise a fit and proper person to be admitted to practise, then the Court may, by order, waive so much of these Rules as would prevent the Court from making a declaratory order under Rule 8 of these Rules.

[ccxcix][1974] P.N.G.L.R. 213.

[ccc][1974] P.N.G.L.R. 213.

[ccci]Section 302 of the Criminal Code (Queensland adopted) provides:

“Definition of murder.—Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say,—

(1) If the offender intends to do to the person killed or to some other person some grievous bodily harm;

(2) If death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;

(3) If the offender intends to do grievous bodily harm to some person for the purpose of facilitating the commission of a crime which is such that the offender may be arrested without warrant, or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such crime;

(4) If death is caused by administering any stupefying or overpowering thing for either of the purposes last aforesaid;

(5) If death is caused by wilfully stopping the breath of any person for either of such purposes;

is guilty of murder.

In the first case it is immaterial that the offender did not intend to hurt the particular person who is killed.

In the second case it is immaterial that the offender did not intend to hurt any person.

In the three last cases it is immaterial that the offender did not intend to cause death or did not know that death was likely to result.”