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Lash v Law Society of PNG [1993] PNGLR 53 (27 April 1993)

PNG Law Reports 1993

[1993] PNGLR 53 - Michael H Lash v Law Society of PNG 

[1993] PNGLR 53

SC438

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

MICHAEL HARVEY LASH

V

PAPUA NEW GUINEA LAW SOCIETY

Waigani

Amet Hinchliffe Salika JJ

29 June 1992

27 April 1993

LAWYERS - Lawyers Act 1986 - Foreign lawyer - Application to be admitted as a lawyer under s 26 of the Lawyers Act - Application to waive requirements of s 25(3)(b) of the Lawyers Act under s 28 of the same - Discretion to waive requirements of s 25(3)(b) of the Act is wide open - Seven years practical experience in a non-prescribed jurisdiction sufficient grounds to waive s 25(3)(b) of the Act - Admission in a prescribed country also taken into account.

Facts

The appellant applied for admission to practise law in Papua New Guinea. He had not satisfied the practise requirement contained in the Lawyers Act for overseas lawyers seeking admission, i.e. at least 3 years post-admission practise in a prescribed country. He, however, had a total of almost seven years post-admission experience in the practice of law in the USA and American Samoa, non-prescribed countries, and four months in New South Wales. The applicant sought the waiver of the practice requirement in s 25(3)(b) of the Lawyers Act, but this application was rejected and, consequently, the motion for admission was declined. He appealed that decision on the ground that the judge erred in the exercise of his discretion in the application of the waiver provision.

Held

1.       (Majority allowing the appeal) The standard to be applied in exercising the waiver discretion is that of sufficient practical experience to "the satisfaction of the Court".

2.       Amet J (in a dissenting judgment) set the standard as "substantial compliance" with the minimum practice requirement and thought that the onus is on the applicant to satisfy the court that his practical experience is sufficient for a waiver of the requirement.

Counsel

B Sakora, for the applicant.

J Shepherd, for the Papua New Guinea Law Society.

27 April 1993

AMET J: The appellant is an American qualified lawyer who applied to the National Court pursuant to s 26 of the Lawyers Act 1986 (hereafter the Act) for admission to practise as a lawyer in Papua New Guinea. Section 25(3)(b) of the Act states that an applicant for admission to practise shall prove that he or she was admitted to practise in a prescribed country and that he or she had practised as a lawyer in that country for a period of not less than three years following the date of his or her admission to practise in that country. The appellant specifically asked that this requirement be waived pursuant to s 28(2) of the Act. His application for waiver was rejected and, consequently, the motion for admission was declined on 4 January 1991.

From that decision of the National Court, the appellant has appealed to this Court, on the principal basis that the motion judge erred in the exercise of his discretion in the application of s 28(2) by declining to waive the requirement of s 25(3)(b). Section 28 provides as follows:

"(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 s 25."

It is useful to state the facts upon which the appellant had relied to seek waiver of s 25(3)(b) practice qualification, and upon which he also relied before this Court. I reproduce the relevant paragraphs from the appellant's supporting affidavit of 28 December 1990.

"1.      That I graduated from Miami University, Oxford, Ohio, in 1979 with the degree of Bachelor of Science in Business. A true copy of the said degree is annexed hereto and marked exhibit "A".

2.       That I graduated from the American University, Washington College of Law, Washington DC, in 1983 with the degree of Juris Doctor. A true copy of the said degree is annexed hereto and marked exhibit "B".

3.       That I was admitted to practise as an Attorney in the District of Columbia on 13 December 1983 and a true copy of a certificate from the District of Columbia Court of Appeals indicating admission is annexed hereto and marked exhibit "C".

4.       That I was admitted to practise as an Attorney in American Samoa in 6 August 1984 and a Certificate from the Clerk of the Court indicating such admission is annexed hereto and marked exhibit "D".

5.       That I was admitted to practise as a Solicitor in New South Wales by the Supreme Court of New South Wales on 3 August 1990 and a Certificate of Admission is annexed hereto and marked exhibit "E".

6.       That I have been employed as an Attorney or Solicitor since November 1983 with the following offices:

(a)      United States Department of Justice, Office of Administrative Counsel, Washington DC, 1983 to 1984.

(b)      Legislature of American Samoa, Legislative Counsel, Pago Pago, American Samoa, 1984 to 1988.

(c)      Charles Alailima and Associates, Pago Pago, American Samoa, 1987 to 1988.

(d)      Hunt and Hunt Solicitors, Sydney, Australia, 1989 to 1990.

7.       That I am experienced in Litigation, Negotiations, Research, Drafting and Procedure, and document preparation in areas including Commercial Law, Personal Injury, Criminal Law, Workers Compensation, Immigration, Family Law, and Appropriations. My experience also includes acting as instructing solicitor for Barristers in Sydney, Australia, in matters appearing in the Supreme Court and District Court of New South Wales. A copy of my current Practising Certificate is annexed hereto and marked exhibit "F". I seek to take up employment with a law firm, Messrs Day & Associates."

I note that there are several inconsistencies between the dates of admissions in America and American Samoa deposed to in par 3 and par 4 and the several annexures relating thereto. In par 3 it is deposed that the appellant was admitted in District of Columbia on 13 December 1983. The annexure "C" Certificate from the Court of Appeal states the admission to have been on 19 December 1983. This was dated 29 June 1984. A more recent Certificate from the District of Columbia Court of Appeals entitled "Inactive Member in Good Standing", dated 2 November 1990, states that the appellant was admitted on 13 November 1983.

The second inconsistency relates to the date of admission in Pago Pago, American Samoa. The appellant deposed in par 4 that he was admitted on 6 August 1984. The Certificate from the High Court of American Samoa confirms 6 August 1984, whilst the American Bar Association President stated in annexure "H" that the appellant was admitted in June 1984.

These are, of course, not sufficient for compliance with the s 25(3)(b) post admission practise requirement of three years in a prescribed country, as the United States of America is not a prescribed country under the admission rules. Australia is a prescribed country. The State of Australia are not "prescribed countries".

The appellant was admitted to the New South Wales Supreme Court, Australia, on 3 August 1990. I accept the respondent Law Society's submission that the references from Hunt & Hunt dated 7 August 1990 and from Mr Phillip Perry dated 14 August 1990 would suggest the period in actual fact spent in practise in New South Wales post admission could only have been 4 to 11 days, at the most, before he left Hunt & Hunt to seek employment with Day and Associates in Papua New Guinea. But, of course, New South Wales is not a "prescribed country". The highest court in Australia is the High Court of Australia, and there is no evidence that the appellant was also admitted in the High Court.

The appellant had thus sought to have the s 25(3)(b) requirement waived pursuant to s 28(2) by relying upon his pre-admission period of practise in the American jurisdictions, and some 15 months or so pre-admission legal work with Hunt & Hunt Solicitors in Sydney, Australia, a total of about seven years.

It was submitted that the learned motions judge, having acknowledged that the appellant had a distinguished career to date, then ignored it and considered only the "four months" post-admission period in Australia and, thus, erred in ruling that that period alone was not "substantial compliance" with the requirement of s 25(3)(b). The appellant submitted that the Court erred in using this test of "substantial compliance" in considering the s 28(2) waiver discretion; and the Court further erred in not taking into account the appellant's extensive practical experience in the American jurisdictions and pre-admission in Australia. It was submitted that, if the Court did take into account the appellant's distinguished career to date, it would have exercised its discretion to waive compliance with s 25(3)(b) requirement.

Section 25(3)(b) sets the following practise qualifications:

"a certificate from the appropriate overseas authority certifying that the applicant was admitted to practise in a country prescribed by the Rules of Court together with evidence that the applicant has practised as a lawyer in a country prescribed by the Rules of Court for a period of not less than three years following the date of his admission to practise in that country".

The appellant submitted that the general purpose of the Lawyers Act 1986 was to regulate the qualification of lawyers in order to protect the public from inexperienced and incompetent lawyers. This section was included to overcome this mischief, to require that lawyers were sufficiently experienced with a minimum requirement of three years. It was strongly contended that the appellant was not such a lawyer. Although his practise in a state of a prescribed country was only about 4 months, his total experience extended over seven years and so he could not be said to be such an unqualified or inexperienced lawyer from whom the public needed to be protected.

It is true that the general purpose of the Lawyers Act 1986 is to regulate the proper qualification of lawyers in order to protect the interests of the public and, indeed, of the legal profession from unqualified, inexperienced and incompetent lawyers. The more specific mischief s 25(3)(b) is directed at is to restrict and regulate the admission of foreign lawyers. It is to restrict them to lawyers from "prescribed countries" with a minimum of three years practical experience as a lawyer following admission in that prescribed country. The primary purpose of this is to ensure that foreign lawyers seeking admission in Papua New Guinea are sufficiently experienced in areas of the practise of the law comparable to the practise in Papua New Guinea. It can be safely presumed that the Admission Council had on purpose prescribed countries with the common law tradition from which Papua New Guinea's law generally derived, so that the jurisdictions and areas of law practised therein could safely be said to be comparable. It was obviously decided that a period of three years post admission was a sufficient minimum period. For these reasons, I am of the opinion that the learned motions judge was not in error when he held that "four months practise out of 36 can hardly be said to be such substantial compliance that this requirement should be waived".

I am of the opinion that it is not wrong to require, as a matter of principle, that, although under s 28(2) "the Court may waive all or any of the requirement of Section 25", the minimum requirements of s 25(3)(b) must be substantially complied with for the reasons I consider are the mischief the provision is aimed at preventing.

I am of the opinion also that, consistent with the rationale that foreign lawyers need to have had adequate practical experience to be admitted, a lawyer such as the appellant from a non-prescribed jurisdiction, who has not been admitted in a prescribed country for the requisite minimum period, would need to prove to the satisfaction of the court that the less-than-the minimum period is adequate together with other experience being relied on. The other practical experience being sought to be relied upon needs to be proven in much greater detail to satisfy the court in waiving the requirement of s 25(3)(b).

In this appellant's case, I do not accept the pre-admission experience in Sydney, Australia, with Hunt & Hunt to be sufficient. I do not find the deposition in par 6 and par 7 of the appellant's affidavit shows sufficient detail of practical work undertaken. The majority of the seven years was spent in the Legislature of American Samoa as Legislative Counsel. There is no detailed enumeration of the kind of legal work done in those four years for me to be satisfied that it was legal work comparable to legal practice in Papua New Guinea. It is not sufficient to state in one paragraph all the work ever done. There needs to be some detail of the length of such practice over the period with the different organisations. It may well be that the kind of practice referred to may have only been dealt with or experienced once. That, of course, would not be sufficient.

Apart from the short par 7 quoted above, there is no other detail of the kind of practice experience in the American jurisdictions in Washington DC and American Samoa. The short period in New South Wales, Australia, is negligible.

If the minimum period of practice in a prescribed country requirement under s 25(3)(b) is sought to be waived, then the practical experience in a non-prescribed country sought to be relied upon must be elucidated and enumerated in far greater detail and specifics than was the case by the appellant. The obvious reason for this is so that the court can assess and determine whether or not the field of law the applicant practised in was comparable to Papua New Guinea in order to exercise the discretion to waive the requirement of s 25(3)(b).

The preponderance of the application of s 25(3)(b) must be against an applicant who had not complied with the minimum requirement of s 25(3)(b), and the onus is upon the applicant to satisfy the court that his practical experience is sufficient to waive the requirement.

Whilst I accept that the learned motions judge did not exercise his mind to the sufficiency of the appellant's previous American experience, I am not satisfied that that experience has been sufficiently amplified and enumerated for me to be satisfied that it is comparable to the practice in Papua New Guinea and for a sufficiently long enough period to waive the minimum requirement of s 25(3)(b).

One of the important underlying reasons for the requirements of s 25(3)(b) is to ensure that foreign lawyers applying to be admitted to practise in Papua New Guinea are sufficiently experienced in the practise of law in the prescribed national jurisdictions considered to be comparable to the law in Papua New Guinea.

I am of the view that this requirement cannot be satisfactorily fulfilled by reliance on experience in the prescribed foreign jurisdiction alone, let alone in a non-prescribed jurisdiction. I now hold the view that foreigners applying to be admitted to practice law in this jurisdiction before the courts of this country should be required, as a matter of law or practise, to sit exams in specified subjects in the law of this country. There are several obvious subjects which must be compulsory. For instance, no amount of practical experience in United States of America, England, New Zealand or Australia can ever be substitute for an understanding of Papua New Guinea customary law. Land law is another subject which an applicant should have to sit an exam for. The most significant subject that all foreign lawyers should have to sit an exam on, with the few exceptions of those lawyers who might have been lecturers of the subject in Papua New Guinea, is Papua New Guinea constitutional law. It is an area of the law which is assuming greater and greater significance in most areas of the practise in this jurisdiction, and any lawyer desiring to practise in this country should have to pass an exam in it.

I am of the strong view that the appropriate authorities should now promulgate this as a statutory requirement. This is necessary for the purposes of a more deliberate and determined effort towards developing an "indigenous jurisprudence" or "underlying law". Foreign lawyers who have no real knowledge, let alone experience, in Papua New Guinea customary law, land law and, importantly, constitutional law will be of no real benefit or assistance in the aspiration of this country towards developing an indigenous jurisprudence which is more responsive, applicable and appropriate to the circumstances of this country.

The present practise of foreign lawyers being able to be admitted without being required to sit examinations in certain subjects or being required to have met minimum residential qualifications is a mockery of the constitutional aspirations to fashion a jurisprudence more appropriate to the needs of the people of this country. I have said it before and I say it emphatically again, this is but one way of perpetuating the "dependency syndrome" of continually relying on so called "foreign expertise" and, thus, perpetuating continued dependence and reliance on foreign law, which is what foreign lawyers who have no practical experience or knowledge of Papua New Guinea law are best at.

RECIPROCITY IN REQUIREMENTS TO SIT EXAMS

The other factor which compels me to adopt this view is the need to maintain reciprocity of practise. Some of the prescribed foreign jurisdictions require that foreign practitioners will sit exams in certain subjects before they can apply to be admitted. This is for the same reasons, to ensure that such foreign lawyers pass the most stringent qualifying tests of knowledge of the specific domestic subjects in law.

For instance, it is a fact that a Papua New Guinean practitioner would have to sit specified exams in states of Australia and also be residentially qualified for some period in other states in order to be admitted to those state jurisdictions and the highest court of that country, the High Court. I would imagine that there would probably be similar requirements in United Kingdom, New Zealand and United States of America.

I have no doubt that a Papua New Guinean would have great difficulty getting admitted to practise before the Supreme Court of the United States of America or the High Court of Australia or the House of Lords. This has been the case in the Australian State of New South Wales in several recent incidences. Well then, why should it be easier for lawyers from those jurisdictions to be admitted to practise in this country without having to sit examinations in areas of law peculiar to this country or having to be residentially qualified? This is an independent country which needs to begin to develop it's own jurisprudence. This requires, in my view, a deliberate choice in protecting the practice of the law to Papua New Guineans, principally, who can then have greater opportunity and the interest in the development of that indigenous jurisprudence.

I dismiss the appeal.

HINCHLIFFE SALIKA JJ: This appeal arose out of an unsuccessful application in the National Court by the appellant to be admitted as a lawyer in Papua New Guinea under s 26 of the Lawyers Act 1986.

On 4 January 1991, the appellant moved the National Court for orders that he be admitted to practise as a lawyer in Papua New Guinea. In so moving, he sought the discretion of the Court to waive the requirements under s 25(3)(b) of the Act. His application was refused and he now appeals to this court. The basis of his appeal is that the motion judge erred in the exercise of his discretion in the application of s 28(2) in refusing to waive the requirement of s 25(3)(b) of the Act.

We set out the affidavit of the applicant in full support of his application to practise as a lawyer in this jurisdiction sworn on 28 December 1990 in full:

"Sworn on the 28th day of December 1990, I, MICHAEL HARVEY LASH of PO Box 1269, Port Moresby, Papua New Guinea, MAKE OATH AND SAY as follows:

[Their Honours listed paragraphs 1 to 7 of the affidavit already cited by Amet J at pp 54 & 55, infra, and continued:]

8.       A true copy of a statement from the Law Society of New South Wales is annexed hereto and marked exhibit "G".

9.       A true copy of a statement from the American Samoa Bar Association is annexed hereto and marked exhibit "H".

10.     A true copy of a statement from the District of Columbia Court of Appeals is annexed hereto and marked exhibit "I".

11.     True copies of two (2) letters of reference, one (1) from a solicitor, Ms Veronica Chapman, and one (1) from a Barrister, Mr Phillip Perry, are annexed hereto and marked exhibit "J".

12.     A Notice of Intention to Apply for Admission was placed in the Post Courier on 10 December 1990. A copy of that Notice is annexed hereto and marked "K".

13.     Mr Pomat P Paliau, Attorney General of Papua New Guinea, [sic] issued a Certificate of Qualification for Admission on my behalf on 21 December 1990. It is annexed hereto and marked "L"."

Section 26 of the Act makes provision for an applicant to apply for admission to practise as a lawyer to the National Court. The application is to be made in the manner prescribed by the Rules of the National Court, accompanied by evidence of qualification for admission and the required fee.

In this case, the applicant has applied under s 26 of the Act for admission and filed an affidavit giving evidence of his academic and practical qualifications.

In order to get admitted here, he has to comply with certain requirements under s 25 of the Act.

Those requirements are that he must possess the required academic and practical qualification and that he must be a fit and proper person.

The appellant's academic qualifications are not in question now. His practical qualification was the basis for refusal of his application for admission at the National Court. Section 25(3)(b) of the Act provides:

"(3)     the required practise qualifications referred to in Subsection (1) are:

(b)      a certificate from the appropriate overseas authority certifying that the applicant was admitted to practise in a country prescribed by the Rules of Court together with evidence that the applicant has practised as a lawyer in a country prescribed by the Rules of Court for a period of not less than three years following the date of his admission to practise in that country."

The applicant was admitted to practise law in the District of Columbia in United States of America. United States of America is not a prescribed country for the purposes of the Act under the Admission Rules. He then practised in American Samoa, which is not a prescribed country either for the purposes of the Act. On 3 August 1990, he was admitted to practise as a Solicitor in New South Wales, Australia. A point has been raised that New South Wales is not Australia. Whilst it is true New South Wales is not Australia in that statement, it is a State of Australia and, as such, the applicant is admitted to practise in Australia for the purposes of the Act. Whether one is admitted to practise in Victoria or Queensland, it is our view that he is admitted in Australia for the purposes of the Act. The Act does not say one has to be admitted to the High Court of Australia in order to be admitted in this country.

It is true that the appellant has not practised in Australia, a prescribed country, for a period of three years or more as required under s 25(3)(b). We think the appellant is very well aware of that fact. He applied to waive that requirement under s 28(2), which reads:

(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."

Section 28(2) is very broad in its scope and gives the court a very wide discretion in determining whether or not to waive all or any of the requirements under s 25 of the Act. When considering whether or not to waive any or all of the requirements of s 28 of the Act, the Court should satisfy itself that the applicant is:

(a)      academically qualified as a lawyer; and that

(b)      he has the necessary practical qualification or experience as a lawyer; and that

(c)      he is a fit and proper person to be admitted to practise as a lawyer.

There were no questions raised as to the appellant's academic and practical qualifications and that he is a fit and proper person to be admitted as a lawyer. The motion judge, we think, was satisfied that the applicant possessed the necessary qualifications.

We agree with the respondent's submission that the practice requirement is not a mere formality and that it should not be capable of a pre-emptive waiver under s 28(2). However, we do not think that it is a requirement that the appellant should be made to "substantially comply with the practise requirement". The Act is silent on whether or not an applicant for admission as a lawyer should substantially comply with the practise requirement in order to waive the requirements of s 25(3)(b). The motion court, in our view, improperly applied substantial compliance as the standard in determining whether or not to waive the requirement.

The proper standard to be applied under s 28(2) is "satisfaction of the court". In our view, it was not the intention of Parliament that an applicant for admission as a lawyer should substantially comply with s 25(3)(b) requirement.

The waiver provision of s 28(2) of the Act must be considered to be available in every application for admission. The appellant expressly sought the exercise of that waiver authority by the court in his notice of motion of 18 December 1990. He sought the court's discretion to waive the requirement of s 25(3)(b). The basis of that application was that he was a qualified lawyer and that he has had over seven years of experience in a variety of legal jurisdictions. His seven years pre-admission experience in law was held by the motion judge to be a "distinguished career". The motion judge did not find any flaw or defect in the appellant's practical qualification. If there was no such finding in his practical qualifications, why was the s 28(2) discretion not exercised in his favour? It is true that he did not practise as a lawyer in a country prescribed by the Rules of Court for a period of not less than three years following the date of his admission to practise in the prescribed country. But s 28(2) is clear that that requirement can be waived upon the court's satisfaction.

Here the Court was so satisfied that he had seven years practical experience and that he was admitted to practise in Australia. For those reasons, we believe the applicant had sufficient grounds to apply for a waiver of s 25(3)(b).

The effect of s 28(2) is that an applicant for admission does not have to be admitted to practise in a prescribed country. The wider effect of s 28(2) of the Act is that an applicant need not be a law graduate to be admitted to practise in Papua New Guinea. Bearing in mind that an applicant need not be admitted in a prescribed country to be admitted to practise in Papua New Guinea, the appellant in this case is at least admitted in a prescribed country, whether for 11 days or 1 day or 3 years.

It may be argued that the effect of s 28(2) makes post admission experience in a prescribed country meaningless. That argument would be valid where one only has post-admission experience in a prescribed country. However, where one has pre-admission experience in another jurisdiction other than a prescribed jurisdiction, that argument, in our view, is not valid. The emphasis is on practical experience. The appellant has that. This is exactly why he is seeking to waive the requirement of s 25(3)(b). Because he has over seven years of "distinguished career" experience, he should be admitted to practise law in Papua New Guinea. And why not, when he has the provisions of s 28(2) wide open to him? We think he was entitled to a waiver of the requirements of s 25(3)(b), especially when he has had a "distinguished career" record.

We sympathise with the sentiments of Amet J in relation to reciprocity on requirements to sit for examinations in selected areas of law. We would agree with him entirely, but that is a matter for the Law Society to work on and get over with. As is the case now, foreign lawyers will continue to be admitted here without much opposition and difficulty. The requirements under s 25 of the Act become meaningless with s 28(2) of the same Act, especially where an applicant has had at least three years of practical experience not only in a prescribed country but also in a non-prescribed country. The only hindrance is probably the discretion of the court.

As is the case now, there is no effective control of admission of foreign lawyers in PNG.

In summary, we agree that, because the applicant has had seven years of practical legal experience in a non-prescribed country and because he has been admitted as a solicitor in Australia, a prescribed country, those are sufficient factors to exercise the court's discretion under s 28(2) of the Lawyers Act in the applicant's favour. We, accordingly, waive the requirements of s 25(3)(b).

We allow the appeal and admit the appellant to practise law in Papua New Guinea.

Lawyers for the applicant: Day and Associates.

Lawyers for the respondent: Kibi Kara Lawyers.