Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Saulep v Mellor [2012] PGNC 122; N4835 (29 March 2012)

N4835

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

O.S. NO. 98 OF 2012

IN THE MATTER OF THE LAWYERS ACT 1986
AND IN THE APPLICATION:

BETWEEN:

RALPH AUGUSTINE SAULEP trading as SAULEP LAWYERS
Plaintiff

AND:

ROBERT MELLOR Secretary for PNG LAW SOCIETY
First Defendant

AND:

PNG LAW SOCIETY INCORPORATED
Second Defendant

Waigani: Kariko, J
2012: 8th, 19th & 29th March

LAWYERS – application for order directing Law Society to issue practising certificate pending review of decision of Council of Law Society – Sections 45(3) and (1)(b), Lawyers Act.

Facts:

A sole legal practitioner who was not granted a renewal of his unrestricted practising certificate by the Law Society filed for a review of the Law Society's decision. He then applied for the Court to issue the practising certificate pending the review.

Held:

(1) An applicant for the issue of a practising certificate pending the review of the decision of the Law Society refusing the grant or renewal of practising certificate must establish that:

• (a) there are serious questions to be tried and that an arguable case exists;
• (b) the balance of convenience favours the granting of the order; and
• (c) the interests of justice require that the order be made.
  

(2) Application granted.

Cases cited:

Canisius Karingu v Papua New Guinea Law Society (2009) N3688

Counsel:

Mr R Saulep, in person
Mr W Neill, for the defendants

29th March, 2012

1. KARIKO, J: Ralph Augustine Saulep has filed for a review under section 45(1) of the Lawyers Act (the Act) of the decision of the Council of the Papua New Guinea Law Society (the Council) refusing his application for a practising certificate for the year 2012.
   

Brief background

2. Mr Saulep is a sole legal practitioner running his own firm, Saulep Lawyers.
   
3. Following a complaint by letter dated 18 June 2010 from the Teachers Savings and Loans Society regarding monies it had deposited into the trust account of Mr Saulep's law firm (the Deposit), the Council initiated an inspection of books of account under section 75 of the Act. The accounting firm of Sinton Spence was appointed to carry out the inspection.
   
4. After completion of the inspection in February 2011 Sinton Spence compiled a report and furnished copies of it to both the Council and Mr Saulep as required by section 76 of the Act.
5. The report found that the Deposit had been disbursed and was no longer held in trust and that the trust account showed a deficiency of K37,000.
   
6. It appears the Council has not acted pursuant to section 78 of the Act whereby it could have referred the matter to the Lawyers Statutory Committee if considered appropriate.
   
7. Some 11 months later after the release of the inspection report Mr Saulep lodged his application for a practising certificate on 5 January 2012 which was considered by the Council on 26 January 2012.
   
8. By letter dated 30 January 2012 the Council purporting to act under section 44(3) of the Act asked Mr Saulep for explanations regarding the Deposit and the deficiency in his trust account. He was further informed that consideration of his application for a certificate was deferred pending his reply.
   
9. Mr Saulep responded but the Council was not satisfied with his answers and by letter dated 5 March 2012 asked for further information including evidence of authority for the disbursement and treatment of the Deposit.
   
10. In response Mr Saulep by letter of 5 March 2012 demanded a copy of the letter of complaint dated 18 June 2010 from the Teachers Savings and Loans Society which he claimed he had not been made aware of earlier, so he could properly answer the complaint. In the meantime, he filed this proceeding on 2 March 2012.
    

Application for direction to issue practising certificate

11. Pending the hearing of the review Mr Saulep has applied pursuant to section 45(1)(b) of the Act for this Court to direct the Papua New Guinea Law Society (the Society) to issue him a practising certificate on terms.
    
12. The relevant provisions to refer to in deciding this application are sections 45(3) and 45(1)(b) which read:
    

45. Review of Council's decision.

(1) An applicant, who is refused an application for a practising certificate, may apply to the Court for—

(a) .......

(b) an order directing the Society to issue to him a practising certificate on such terms as the Court thinks fit pending the review by the Court.

(2) .........

(3) The National Court may, pending a review under Subsection (1)(a), grant an order under Subsection (1)(b).

(4) ........

13. In Canisius Karingu v Papua New Guinea Law Society (2009) N3688 his Honour Cannings, J ruled that in the absence of express criteria in the Act to guide the court on how to exercise the obvious discretionary powers under Sections 45(3) and 45(1)(b), the relevant considerations in deciding applications for interim injunction pending a trial should be taken into account. His Honour held therefore that an applicant seeking an order under Sections 45(3) and 45(1)(b) must establish that:
    
    • (a) there are serious questions to be tried and that an arguable case exists;
      
    • (b) the balance of convenience favours the granting of the order; and
      
    • (c) the interests of justice require that the order be made.
      

Serious questions to be tried?

14. Are there serious questions to be tried and does the plaintiff have an arguable case? In the course of submissions, these issues emerged:

(a) Has the Society refused the application for a practising certificate by Mr Saulep?

(b) At the time of his application or when his last certificate expired, had Mr Saulep after having been called upon by the Council failed to provide a satisfactory explanation on a matter concerning his practice?

15. To my mind, these are serious questions which turn on the interpretation of section 44(3)(b) of the Act, and I consider the applicant has an arguable case.

16. Section 44(3)(b) states:

The Council shall renew a practising certificate issued under Section 39 on its expiry in accordance with this section on application by the holder of the certificate in the form prescribed and upon payment of any fee unless the holder, at the time of application or the date of expiry of the practising certificate—

(a) ......

(b) having been called upon by the Council or the Lawyers Statutory Committee, has failed to give a satisfactory explanation of any matter relating to his conduct or practice as a lawyer.

(d) The defendants argued that the Council has only deferred consideration of the application for a practising certificate while Mr Saulep submitted that the view of the Council that there was a satisfactory explanation outstanding meant the Council acted under the proviso in section 44(3) to not grant the certificate and this amounted to a refusal.

(e) The defendants also argued that the outstanding explanation existed at the time when Mr Saulep lodged his application for a practising certificate and also when his previous certificate lapsed at 31 December 2011.However Mr Saulep contended that the request for an explanation came after his application was lodged, therefore the Council could not act under section 44(3).

Balance of convenience?

17. Does the balance of convenience favour the granting of an order? In relation to this consideration, Cannings, J in Canisius Karingu v Papua New Guinea Law Society (supra) put the question in this form: what is the best thing to do on an interim basis taking into account the conflicting interests? The relevant questions in the present case then are: What will happen if Mr Saulep is not granted a practising certificate? And what will happen if he is issued one?

18. If a practising certificate is not issued to Mr Saulep, he will of course be unable to practise as a lawyer, which means his firm will not trade and his clients will need to seek alternative representation, and his employed lawyers will need to seek other employment.

19. On the other hand if Mr Saulep is issued a practising certificate, he will be able to practise as a lawyer, his firm will operate and serve its clients and his employed lawyers continue to work for the firm.

20. In my view the balance of convenience favours the grant of the interim order sought. I also endorse the observation of Cannings, J in Canisius Karingu v Papua New Guinea Law Society (supra) where his Honour said:

I tend to think that though there may be exceptional cases an order under Sections 45(3) and (1)(b) will generally only be efficacious where a lawyer has been practising continuously for some years and then for some reason has an application for a practising certificate refused; in which case it would be useful to make an order to grant an 'interim' certificate pending the substantive review.

Interests of justice

21. Do the interests of justice require that there be an order? In my opinion, the interests of justice calls for the interim order, mainly for the reasons discussed when dealing with the question of balance of convenience

Conclusion

22. Accordingly, I grant Mr Saulep's application and order as follows:

1. The Papua New Guinea Law Society is directed to issue the plaintiff an unrestricted practising certificate for 2012 pending the determination of the substantive proceeding.
   
2. Costs shall be in the cause.
   
3. This matter shall return to court on 12th April 2012 at 1.30pm for directions to progress the case to trial.
   
4. In the meantime the parties are encouraged to consider and settle consent directions.
   
5. Time for entry of the order is abridged to the date of settlement by the Registrar which shall take place forthwith.

__________________________________________

The plaintiff in person
Ashurst Lawyers: Lawyer for the defendants