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PNG Law Society v McEniery [1993] PNGLR 76 (30 July 1993)

PNG Law Reports 1993

[1993] PNGLR 76 - PNG Law Society v Martin Dennis McEniery 

[1993] PNGLR 76

SC446

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

PAPUA NEW GUINEA LAW SOCIETY

V

MARTIN DENNIS MCENIERY

Waigani

Kidu CJ Amet Andrew JJ

26 April 1993

30 July 1993

LAWYERS - Lawyers Act 1986 - Admission to practise - Requirements for admission - Foreign lawyer - Application for admission as a lawyer under s 26 of the Lawyers Act - Application to waive requirement of s 25(3(b) of three years post-admission experience in a prescribed country - Power to waive - Exercise only where there has been substantial compliance with the Act.

PRECEDENTS - Supreme Court not bound by previous decision.

Facts

The respondent moved the Court for orders that he be admitted to practise as a lawyer in Papua New Guinea. He sought, unsuccessfully, the exercise of the Court's discretion to waive the practise requirement for admission as established in s 25(3)(b) of the Lawyers Act, i.e. three years post-admission practise in a prescribed country. It was admitted that the applicant had only eight months post-admission practicing experience in a prescribed country.

In his appeal to the Supreme Court:

Held

1.       The act is silent as to the standard to be applied as a matter of law in the interpretation of the waiver application.

2.       The Supreme Court in Lash v PNG Law Society [1993] PNGLR 53 rejected the argument that in such applications there must be substantial compliance with the practice requirements. It held, instead that the proper standard to be applied under the waiver provision is sufficient practical experience to the "satisfaction of the court".

The effect of that decision is that s 28(2) makes the strict requirements of s 25 meaningless because the policy and intent of the Act can be defeated.

The proper standard to be applied to s 28(2) of the act is that of "substantial compliance".

3.       The decision in Lash is not binding on the Supreme Court.

Cases Cited

Lash v PNG Law Society [1993] PNGLR 53.

Siaguru-Khaisir v PNG Law Society [1988-89] PNGLR 509.

Counsel

J Shepherd, for the appellant.

K Kua, for the respondent.

30 July 1993

KIDU CJ AMET ANDREW JJ: This is an appeal from a decision of the National Court wherein the respondent Mr Martin McEniery, as applicant was admitted to practise as a lawyer in Papua New Guinea under s 26 of the Lawyers Act 1986 (hereafter the Act).

On 4 November 1992, the respondent moved the National Court for orders that he be admitted to practise as a lawyer in Papua New Guinea. He sought the discretion of the Court to waive the requirements for admission as established by s 25 of the Act. The power of waiver is established by s 28(2). The applicant sought a waiver of the practise qualification of admission to practise in a country prescribed by the Lawyers Admission Rules 1990 (hereafter the Rules) for a period of three years following the date of his admission to practise in that country.

Section 25(1) of the Act provides that an applicant for admission must satisfy the National Court of three separate matters:

(a)      that he possesses the required academic qualifications;

(b)      that he possesses the required practice qualifications; and

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

By s 25(3), the required practice 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 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 25 A(2).

The prescribed countries for the purposes of s 25(3)(b) of the Act are Australia, New Zealand and United Kingdom of Great Britain and Northern Ireland: Lawyers Admission Rules 1990 s 1(3).

There is no dispute that Mr McEniery possesses the required academic qualifications and that he is a fit and proper person to be admitted as a lawyer in Papua New Guinea. However, his own affidavit material establishes that he has less than eight months post-admission practising experience in prescribed countries. This is not in dispute. As he only had a maximum of eight months post-admission experience in prescribed countries, he applied under s 28(2) of the Act for a waiver of the three-year post-admission legal experience requirement set out in s 25(3)(b) of the Act.

Section 28(2) provides:

(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.

The Act is silent as to the standard to be applied as a matter of law in the interpretation of waiver applications under s 28(2). In Lash v PNG Law Society [1993] PNGLR 53 (hereafter Lash) the Supreme Court majority rejected the argument that in such applications there must be substantial compliance with the practice requirements.

At p 61:

"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 practice requirement'. The Act is silent on whether or not an applicant for admission as a lawyer should substantially comply with the practice 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 decision in Lash is not binding on the Supreme Court:

Constitution Sch 2.9(1)

"All decisions of law by the Supreme Court are binding on all other courts, but not on itself."

In our judgment, the majority decision in Lash 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 s 25 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 s 28(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 s 28(2). The effect of the majority decision in Lash is that the strict requirements of s 25 become meaningless with s 28(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 s 8 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 three years post-admission practising experience.

In our judgment, the proper standard to be applied to s 28(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 s 25, subject only to the Court's power of a waiver in exceptional circumstances. The requirements under s 25 of the Act are not rendered meaningless when s 28(2) is construed as requiring a standard of substantial compliance.

In the present case, the learned trial judge was aware of the decision in Lash but was at a disadvantage in that the reasons for the decision had not then been published. He compared Mr McEniery's eight months post-admission experience to Mr Lash's four months post-admission experience in prescribed jurisdictions and found that "the balance of convenience" favoured Mr McEniery and that he should, therefore, be admitted to practise. In our view, this is an error, for the judgment in Lash shows that his application was ultimately successful not on the basis of four months post-admission experience in prescribed countries, but rather on the basis of almost seven years post-admission experience in the practise of law in the USA, American Samoa, and New South Wales. There was further error, in our view, in that the applicant's pre-admission experience in common law countries was taken into account. Pre-admission experience in a like jurisdiction is no substitute for post-admission experience. See Siaguru-Khaisir v PNG Law Society [1988-1989] PNGLR 509.

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 practise 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.

We would allow the appeal and order that Mr McEniery be removed from the roll of lawyers in Papua New Guinea. He is at liberty to re-apply when he has completed the required period of post-admission experience.

Lawyer for the appellant: Shepherds Lawyers.

Lawyer for the respondent: Carter Newell Lawyers.