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Application of Tiffany Twivey and In the matter of the Lawyers Act 1986 and In the matter of the Lawyers Admission Rules 1990 [1997] PGNC 5; N1500 (6 February 1997)

Unreported National Court Decisions

N1500

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

LA 37 OF 1996
THE APPLICATION OF TIFFANY TWIVEY
And:
IN THE MATTER OF THE LAWYERS ACT 1986
And:
IN THE MATTER OF THE LAWYERS ADMISSION RULES 1990

Waigani

Salika J
6 February 1997

LAWYERS - Lawyers Act 1986 - Requirements for Admission - Application for admission as a lawyer - Application to waive requirements of s. 25 (3) (b) because teaching law is practicing law - teaching law not same as practicing law.

Counsel:

Mr J Yagi for the Law Society

Mr K Kua for the Applicant

6 February 1997

SALIKA J: The applicant has moved the Court for orders that she be admitted to practice as a lawyer in Papua New Guinea. The applicant is a lecturer in law at the law Faculty at the University of Papua New Guinea. The applicants work experience details are that on leaving the University at the end of 1990 she completed a Graduate certificate in Legal Practice at the University of Tasmania. In August 1991 she worked for one year as an apprentice at Law with a firm of Lawyers Piggot, Wood and Baker in Tasmania. During 1991 and 1992 she also worked as a College law tutor at Jane Franklin residential College at the University of Tasmania. In January 1993 she was contracted to work with Warner Shand Lawyers in Papua New Guinea. While awaiting admission in this country she also lectured part-time at the University in 1993. In June 1994 she commenced full time employment at the law Faculty, University of Papua New Guinea. She has continued to lecture at the Law Faculty. She has been contracted for a further three years from the 1st December 1996. During her time at the Law Faculty she has been an assistant editor of the Papua New Guinea Law Reports since 1993 and has been Associate Dean (Academic) for the law Faculty since November 1994.

The applicant was admitted as a Legal Practitioner to the Supreme Court of Tasmania on the 4th September 1992 and to the High Court of Australia on 14th September as a barrister and solicitor.

The Law Society of Papua New Guinea opposes this applicant for admission on the ground that the applicant has had no post admission experience in a prescribed country.

The applicant in seeking the orders for admission is further seeking orders to waive certain requirements under the lawyers Act.

The applicant relies on affidavits filed by Dr John Luluaki and herself and a letter from the Attorney General. The Law Society does not contest the academic qualifications of the applicant for she is academically qualified. The Society through its counsel Mr Yagi however submits that the applicant should not be admitted to practice as a lawyer in Papua New Guinea for two reasons. The reasons are:

(1) Failure of the applicant to have practiced 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 her admission to practice in that country. This requirement is prescribed by s. 25 (3) (b) of the Lawyers Act; and

(2) Absence of a certificate by the Attorney General under s. 25 (3) (d) that the applicant is a fit and proper person.

Mr Kua for the applicant argues that evidence of the applicants work experiences as a lecturer in Law at the Law Faculty of the University of Papua New Guinea, her, one year apprenticeship with a law firm in Tasmania and her employment with Warner Shand Lawyers in Port Moresby are sufficient to satisfy the practice requirements under s. 25 (3) (b). In other words he submitted that teaching law at the University is “practising law.” Mr Kua further asked that the Court exercise its discretion under s. 28 (2) of the Act to waive the requirement of s. 25 (3) (b).

Evidence before the court is that the applicant was admitted to practice law in Tasmania and in the High Court of Australia but never practiced law either in Tasmania or in the High Court of Australia. Her employment for a year serving an apprenticeship with a firm of lawyers was for the purposes of being admitted to practice. After being admitted she came here. She did part time lecturing and then took up full time lecturing. Up to now she would have done two and half years of full time lecturing and one year of part time lecturing. These instances seem to be her only work experiences. Mr Kua submitted that the Lawyers Act does not define the word “practice” as used in s. 25 (3) (b). He therefore submitted that the word “practice” as used in s. 25 (3) (b) must also include teaching law. On that basis he submitted that the applicant has substantially complied with the provision of s. 25 (3) (b) of the Act.

I with respect, do not subscribe to that submission. The words: “the applicant has practised as a lawyer” in my view means that applicant has actually practiced law as opposed to teaching law. Practising Law is actually applying the law in a real live situation most often in a court of law. It involves counsel researching and arguing the law in open court on behalf of clients. Teaching law is teaching theory of the law. These are two different things. Teaching law in my view cannot be equated with the practice of the law, nor can it be a substitute for the practice of the Law. Moreover in this country all lawyers are required to have a practicing certificate to practice law. She has never been issued a practicing certificate in this country. There is no evidence that she ever had a practicing certificate issued to her in Tasmania or Australia for that matter. It therefore cannot be said that she has practised as a lawyer while teaching law at the Law Faculty. S. 25 (3) (b) is specific in my view that the applicant must have practised Law in a prescribed country. In that regard I find that the applicant has never practiced law either in Tasmania or the High Court of Australia and in Papua New Guinea. Thus her application to the court to exercise its discretion to waive the practice requirement is refused because she has not practised law in a prescribed country. She cannot succeed on the “substantial compliance” argument because she has not even partially complied with the requirements of s. 25 (3) (b). For those reasons I refuse to make orders in terms of the notice of motion.

Application is dismissed. I award costs to the Law Society.

Lawyers for Law Society: Mr Joseph Yagi

Lawyers for Applicant: Fiocco Posman & Kua Lawyers