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Application under Section 54(c) of the Lawyers Act 1986 v Karingu [2006] PGNC 86; N3098 (9 October 2006)

N3098

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 358 OF 2004

BETWEEN:

IN APPLICATION UNDER SECTION 54(c) OF THE LAWYERS ACT 1986
Plaintiff

AND:

CANISIUS KARINGU
Defendant

Waigani: Salika, J
2006: 9 October

NOTICE OF MOTION – Application to strike out lawyer from the roll – Application by Papua New Guinea Law Society – Who can invoke the powers under s.54(c) of the Lawyers Act – The Papua New Guinea Law Society cannot invoke s.54(c) of the said Act.

Counsel:
Mr N Asimba, for the Plaintiff
Mr C Karingu, In person

9 October, 2006

1. SALIKA J: The matter came to the Court on a motion filed by the plaintiff that the matter be set for trial or hearing at an earlier date. When the matter was called, the defendant informed the court that he had an application to make concerning the "locus standi" of the plaintiff to bring these proceeding.

2. Mr Karingu submitted that the Originating Summons in this matter was taken by the plaintiff, the Papua New Guinea Law Society against him purportedly pursuant to s.54(c) of the Lawyers Act 1986. The Law society took out an Originating Summons seeking orders that:-

(1) Canisius Karingu be removed from the Lawyers Roll pursuant to s.54(c)of the Lawyers Act belong to the Lawyers Statutory Committee and not the Papua New Guinea Law Society.

3. Part v of the Act deals entirely with Professional conduct of lawyers. The Lawyers Statutory Committee is established under s.48 of the Act. The Committee is to be administered by the Society that is the plaintiff and any costs it incurs shall also be borne by the Society. The members of the Lawyers Statutory Committee are:-

a) The Attorney General

b) A member of the Society Counsel who is the Chairman

c) 3 practicing lawyers

d) 2 lay persons

4. Apart from the Attorney General the others are appointed by the Chief Justice.

5. Mr Karingu relied on the decision of the National Court in the matter of OS 565 of 1995. The Papua New Guinea Law Society v Sao Gabi and Ors, Un-numbered and unreported decision of Andrew, J. The question before the Court then was relating to whether the Lawyers Statutory Committee was a committee of the State such that any penalties imposed by the Committee would be paid to the Consolidated Revenue Fund. The Lawyers Act has been amended since then. The Lawyers Statutory Committee is to be administered by the Law Society and is to be funded by the Society. Any monetary penalty imposed by the Committee is to be paid into the Fund created under Part IX of the Lawyers Act more specifically s.85 of the Act.

6. While the question before Andrew J was different, the question of who is to exercise the powers under s.54 of the Act are the same as it was when Andrew, J dealt with the matter referred to.

7. In that regard I have to agree with Mr. Karingu that the powers under s.54 including the power under paragraph (c) belongs to the Lawyers Statutory Committee and not the Papua New Guinea Law society. The Lawyers Statutory Committee is a creature of statute. It is different to the society, the plaintiff. If anyone is to exercise the power under s.54 (c) of the Act it has to be the Lawyers Statutory Committee.

8. The powers and functions of the society are clearly spelt out under s.7 and 8 of the Act.

9. Section 7 and 8 of the Act provide:-

S7. Functions of the Society.

The functions of the Society are—

(a) to promote the interest of the public and the interest of lawyers in relation to legal matters and generally to promote and uphold justice and the rule of law; and

(b) to promote and encourage proper conduct by lawyers; and

(c) to suppress illegal, dishonourable and improper and unprofessional practices and conduct by lawyers; and

(d) to preserve and maintain the integrity and status of lawyers; and

(e) to promote opportunities for the acquisition and diffusion of knowledge of the law; and

(f) to assist in the promotion, development and reform of the law and generally to advance and develop the underlying law and jurisprudence; and

(g) to provide a means for the amicable settlement of professional differences between lawyers; and

(h) such other functions as are conferred by this Act or any other law.

8. Powers of the Society.

In addition to any other powers conferred by this Act or any other law on the Society, on the Lawyers Statutory Committee of the Society or on the Professional Conduct Committee of the Society, the Society has the following powers:—

(a) to provide or arrange for the provision of educational and training programs for lawyers, including all necessary services and facilities for that purpose;

(b) to publish or arrange for the publication of such written material as it considers of benefit to the public or to lawyers;

(c) to oppose an application for admission as a lawyer of a person who, in the opinion of the Society, ought not to be admitted as a lawyer;

(d) to institute prosecutions against a lawyer or any other person for breach of any Act, law or Rule relating to the practice of the law;

(e) to appoint lawyers to perform services for the Society or to appear before a court, tribunal or other body in any of the foregoing matters or in any other matter in which the Society has an interest;

(f) to establish or participate in the establishment of a body, whether incorporated or not, whether situated in Papua New Guinea or elsewhere, for the purpose of exercising any of the Society's functions or powers;

(g) subject to the approval of the Minister, to borrow money on terms and conditions approved by the Minister.

10. The powers and functions under s.7 and 8 of the Act are very different to the powers under s.54. The Committee is not a branch or a division of the Society. It is a separate creature with its own chairman and members.

11. I adopt Andrew J’s decision in so far as it is relevant to the issue of the committee being distinct from the society and that the powers under s.54 including the power under paragraph (c) belong to the Committee and not the Society.

12. Accordingly, I find that the Papua New Guinea Law Society has no standing to invoke any powers under s.54 of the Lawyers Act.

13. In the end result the proceedings under OS 358 of 2004 are dismissed. Costs of the proceedings in this matter are awarded to the defendant.

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O’Briens Lawyers: Lawyer for the Plaintiff
Defendant in Person