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Papua New Guinea Law Society v Gabi as The Attorney General and Marsipal, Minister for Justice [1996] PNGLR 130 (28 June 1996)

PNG Law Reports 1996

[1996] PNGLR 130 - The Papua New Guinea Law Society v Sao Gabi as The Attorney General and Arnold Marsipal, Minister for Justice

[1996] PNGLR 130

N1455

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE PAPUA NEW GUINEA LAW SOCIETY (1)

V

SAO GABI, AS THE ATTORNEY GENERAL; AND ARNOLD MARSIPAL, MINISTER FOR JUSTICE

Waigani

Andrew J

24 April 1996

28 June 1996

LAWYERS – Lawyers Act 1986 - Declaratory proceedings - Exemption from payment of fee for practising certificate - Papua New Guinea Law Society Practising Certificate Fees (Exemptions) Rules 1995 - Whether ultra vires Lawyers Act 1986 - Power of the Minister for Justice to make Rules under section 21, Lawyers Act 1986.

Facts

The plaintiff claimed declarations that the Papua New Guinea Law Society Practising Certificate Fees (Exemptions) Rules 1995 made by the Minister for Justice were void as being ultra vires the Lawyers Act 1986. Under the Rules the Minister had purported to exempt certain “government lawyers” from the payment of the annual practising certificate fee.

Held

The Council of the Law Society had made Rules concerning practising certificates and the scale of fees payable for such certificates. Although the Minister for Justice is empowered by s 21(3) of the Lawyers Act to make Rules he could only do so where the Council had failed to do so. The issue therefore was whether the Council had made Rules on practising certificates which were comprehensive and exclusive so as to exclude the right of the Minister to make rules concerning exemption from payment of fees. Having regard to the Rules made by the Council concerning practising certificates and in particular for the payment of fees by lawyers employed by the State, the Rules made by the Minister were ultra vires the Lawyers Act.

Counsel

E Kariko, for the applicant.

28 June 1996

ANDREW J: The plaintiff in this matter proceeded by way of originating summons seeking the following declaration:

“A declaration that the Papua New Guinea Law Society Practising Certificate Fees (Exemptions) Rules 1995, made by the Minister for Justice as statutory Instrument No. 2 of 1995 and published in the National Gazette No. G. 8 of 1995, issued on 23rd January, 1995 was and is void ab initio.”

The Papua New Guinea Law Society Practicing Certificate Fees (Exemptions) Rules 1995 (“the Rules”) were made by the Minister for Justice on the 20th January 1995 in National Gazette No. 8 of 1995. These Rules exempted certain “government lawyers” (meaning a lawyer employed by a governmental body) from the fees payable for a practising certificate referred to in s 39 of the Lawyers Act. That Exemption was for the period 1st January, 1995 to 31st December, 1995.

The Papua New Guinea Law Society now claims that the Minister lacked the authority to make these Rules under the Lawyers Act (“The Act”) and that therefore the Rules are ultra vires the Act.

The Preamble of the Rules states that the instrument is made by the Minister under the Act.

PRACTISING CERTIFICATE RULES

Section 39(2) of the Act provides that practising certificates “shall be issued in the form prescribed by the Rules”, while s 42(2) provides that applications for practising certificates shall be “ in the form prescribed by the Rules and accompanied by any fee prescribed by the Rules”.

The main provision relating to the making of Rules is s 21 of the Act which provides:

“21.    Rules

(1)      The Council may make Rules providing for -

(a)      the regulation of the Society and its affairs; and

(b)      the holding of meetings of the council; and

(c)      all matters pertaining to election of the Council and election of the President; and

(d)      general, special and emergency meetings of the Society; and

(e)      the imposition of an annual levy on members of the Society of an amount reasonably necessary to provide for the objects of the Society and to enable it to carry out its functions; and

(f)      the financial procedures to be followed by the society; and

(g)      such other matters for which, by this Act, Rules are to be made.

(2)      Notice of Rules made under Subsection (1) shall be given in the National Gazette by the Minister and the Rules shall come into operation on the gazettal of such notice or on such other date as is specified in the notice.

(3)      Until such time as the council has made Rules for the purposes of Subsection (1), the Minister may determine the Rules.

(4)      The Rules determined under subsection (3) shall, on the making of Rules under subsection (1), be deemed to have been repealed”.

Sections 21 (3) and (4) were introduced by the Lawyers (Amendment) Act 1987, No. 7 of 1987, which came into force on 17th March 1987. This amendment allowed the then Minister for Justice to make the Papua New Guinea Law Society Rules L.S. No. 7 of 1987, which provided for the membership of the society and the election of a President and the Council. After the first council took office, it made the Papua New Guinea Law Society Membership Rules L.S. No. 2 of 1988 and later the Papua New Guinea Law Society Election Rules L.S. No. 6 of 1989. When these Instruments were made the Rules by the Minister in 1987 were repealed by the effect of s 21 (4) of the Act. It would seem that s 21 (3) and (4) were introduced to enable the Law Society to operate. Subsequently the council of the Law Society, exercising its powers under s 21 (1) (g), passed Rules in relation to practising certificates.

Section 21 of the Lawyers Act provides generally for the making of Rules by the Law Society Council. Although there is mention of the making of Rules in relation to the imposition of the annual levy on members, there is no specific mention of rules relating to practising certificate fees. The council has made Rules relating to practising certificates and scales of fees and it is apparent that they have been made under the general rule making powers of the council, namely, Section 21 (1) (g).

The Exemptions Rules 1995, it is conceded, were made by the Minister in accordance with the provisions of s 21 (3) of the Act. This Subsection which was inserted by No. 7 of 1987 reads:

“21 (3), Until such time as the Council has made Rules for the purposes of Subsection (1), the Minister may determine the Rules.”

Section 21 (4) provides that when the council has made Rules on the matter, the Minister’s Rule is automatically repealed. The Ministers rule making power, it is again conceded, is a transitional one that can only be exercised where the council has not yet exercised it.

I think that the issue is therefore whether any of the Rules made by the Law Society Council in relation to practising certificates are sufficiently comprehensive and exclusive such that they would exclude the Minister from passing the Exemptions Rules 1995, under the provision of s 21(3) of the Act.

The Council of the Law Society first made the Papua New Guinea Law Society practising Certificate Rules L. S. No. 4 of 1988. That was repealed by Papua New Guinea Law Society Practising Certificate Rules 1990 - Statutory Instrument L.S. No. 14 of 1990. That provides for:

“(a)    Applications for Practising Certificate for the period commencing 1st January and ending 31st December in each year.

(b)      Form and issuing of Practising Certificates.

(c)      The class of lawyers for the purpose of s 41(1)(b)(i) of the Lawyers Act.”

The class of lawyers required to make application for practising certificate and the relevant fee to be paid are contained in the instrument. That class of lawyers includes “a lawyer employed by the State or a body established by statute.”

It was submitted that these rules do not deal with the issue of the exemption of a class of lawyers from the payment of practising certificate fees and that accordingly the Minister was entitled to make the Exemptions Rules 1995 as a Rule in its own right. In my judgment however I think that that is a fallacious argument. Clearly the Rules of the Council provide unequivocally for a ‘government lawyer’ to pay the required fee and the Exemptions Rules 1995 are simply in contradistinction and are seeking to amend the Rules. The council has made Rules for the payment of fees for government lawyers and accordingly the Minister could not exercise his power under s 21 (3) of the Act to make further Rules. I am satisfied that the Papua New Guinea Law Society Practising Fees (Exemptions) Rules 1995 were ultra vires the Lawyers Act 1986.

ORDER

I make the following declaration. That the Papua New Guinea Law Society Practising Certificate Fees (Exemptions) Rules 1995, Statutory Instrument No. 2 of 1995 published in gazette No. G.8 of 1995 and issued in 23rd January 1995 is ultra vires the Lawyers Act 1986.

Lawyer for the applicant: Ere Kariko.

Lawyer for the respondent: Solicitor General.