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Sam, Re Lawyers Act [1986] PNGLR 145 (13 June 1986)

Papua New Guinea Law Reports - 1986

[1986] PNGLR 145 - Re Lawyers Act (Ch10); Re Peter Sam 

[1986] PNGLR 145

N541

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE LAWYERS ACT (CH NO 91)

AND IN THE MATTER OF PETER SAM

Waigani

Wilson J

13 June 1986

LAWYERS - Removal of name from Roll - No right to voluntarily removal - Inherent discretionary power in court - Lawyers Act (Ch No 91), s 13.

LAWYERS - Removal of name from Roll - Application for voluntary removal - Discretionary considerations - Applicant already defendant to proceedings to have name removed - Application refused - Lawyers Act (Ch No 91).

Held

(1)      A lawyer admitted to practise as a lawyer under the Lawyer’s Act (Ch No 91) does not have a right to have his or her name removed from the Roll kept by the Registrar under s 11(1).

(2)      The Court has inherent jurisdiction to remove the name of a lawyer admitted to practise from the Roll and may in an appropriate case grant an application for the voluntary removal of a practitioner from the Roll.

(3)      In the exercise of its discretion, the Court should refuse the application where the applicant lawyer having had orders made for the auditing of his trust account was the defendant in proceedings instituted by the Council of Legal Education to have his name removed from the Roll pursuant to s 13.

Leaver, Re (1965) 83 WN (Pt 1) (NSW) 278, considered.

Cases Cited

Leaver, Re (1965) 83 WN (Pt 1) (NSW); sub nom Re Application by Solicitor [1966] 1 NSWR 42.

Summons

This was an application by way of originating summons for an order removing the name of the plaintiff from the Roll of persons admitted to practise as lawyers.

Counsel

K Sandford, for the plaintiff.

T M Griffiths, for the Council of Legal Education, by leave of the Court.

Cur adv vult

13 June 1986

WILSON J: In the Motion Court on 13 June 1986 I refused an application made by way of originating summons by Peter Sam for an order “Removing, at his own request, his name from the Roll of persons admitted to practise as a lawyer in the Independent State of Papua New Guinea”. At the time I refused the application I dismissed the proceedings and indicated that I would provide my reasons subsequently.

The history of this matter goes back some years. In 1982 and 1983 this plaintiff was subject to lengthy and detailed proceedings before Gajewicz J, which resulted in orders being made for auditing of his trust account. Following the outcome of that process the plaintiff is now the defendant in proceedings instituted by the Council of Legal Education to have his name removed from the Roll of practitioners pursuant to s 13 of the Lawyers Act (Ch No 91). Those proceedings were the subject of an order by Amet J on 30 May 1986 directing the filing of affidavits and that the matter be placed in the civil call-over list on 23 June 1986 for a hearing date to be fixed. The present plaintiff, Mr Sam, has filed a notice of intention to defend those proceedings. Against this background the present application was made.

In view of the history of the matter and as an exercise in good sense, Mr Sandford, counsel for Mr Sam, delivered a copy of the originating summons and Mr Sam’s supporting affidavit to Mr Griffiths, counsel for the Council of Legal Education. Mr Griffiths sought leave to appear for the Council of Legal Education as a party to the present proceedings, leave was granted.

Mr Sandford argued that the Court had an implied power to accept the application as it was reciprocal to the power to admit to practice and that s 13 of the Lawyers Act did not prescribe the limits of jurisdiction dealing with removal from the Roll of practitioners.

The Court in my view has an inherent jurisdiction in these matters and could in an appropriate case accept an application for the voluntary removal of a practitioner from the Roll. The circumstances of each case will determine whether the discretion of the Court will be exercised. The existence of this power in the Court does not mean however that a lawyer has a right to have his or her name removed at any time.

Mr Griffiths referred me to Re Leaver ((1965) 83 WN (Pt 1) (NSW) 278) which is an authority right on the issue in this matter. In that case the applicant was the subject of certain proceedings before the Statutory Committee and sought to have his name removed from the Roll of Solicitors. The application was opposed and in the judgment of the Court of Appeal, delivered by Wallace P, he had the following to say (at 279):

“In my opinion it would be out of the question to say the Court has no discretion to refuse this type of application in a case where the applicant solicitor was, for example, before the Statutory Committee answering grave charges of misconduct, or even if his affairs were being investigated in respect of possible charges.”

In my view it would not be appropriate for the Court to accede to the application. It is in my view an attempt, legitimately founded, to take the easy way out and I consider that the interests of justice and the interest of public policy would not be served if in such circumstances as the plaintiff now finds himself he was able to voluntarily remove himself from the Roll.

The relationship between the Court and the Lawyers who are admitted to practice is a very special one, particularly at this stage of development in Papua New Guinea. There is no effective mechanism of practising certificates as there are in other jurisdictions, for example, and it is incumbent on the Court to set high standards and require that the reputation of the profession be maintained. The due process of law must also be appreciated by lawyers who themselves may be subject to disciplinary proceedings and it is in the overall interests of the administration of justice that such proceedings are finally and comprehensively concluded.

In the circumstances of this case it would be inappropriate to exercise my discretion in favour of the plaintiff and the proceedings are dismissed.

On the question of costs I have decided that each party shall bear its own. The issues raised were quite novel and certainly the question of jurisdiction had not been previously determined. The plaintiff was entitled to explore this approach and the Council for Legal Education will benefit, as will the profession generally, in having this issue determined. I am aware of the voluntary services given to the Council of Legal Education and in this case that service has well served the interests of the profession, and the Court.

Application refused

Lawyer for the plaintiff: Warner Shand Wilson Donigi Reiner.

Lawyer for Council of Legal Education: Beresford Love Francis & Co.