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Amaiu v Papua New Guinea Law Society [2014] PGNC 237; N5885 (18 December 2014)

N5885

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

O.S. NO. 750 OF 2014

BETWEEN:

PAUL AMAIU
Plaintiff

AND:

PAPUA NEW GUINEA LAW SOCIETY
Defendant

Waigani: Kariko, J
2014: 12th & 18th December

Cases cited:
Canisius Karingu v Papua New Guinea Law Society (2009) N3688
Toby Bonggere v Papua New Guinea Law Society (2003) N2361

Counsel:

P Amaiu in person
D Wood, for the defendant

RULING

18th December, 2014

1. KARIKO, J: In this proceeding, Paul Amaiu, a lawyer, has applied to this court under section 45(1) of the Lawyers Act 1986 to review the decision of the PNG Law Society refusing his application for an unrestricted practising certificate for the year 2014. He filed his application for review by way of an originating summons.

Application to dismiss

2. The Law Society has moved for the proceeding to be dismissed for non-compliance with certain Rules under Order 18 of the National Court Rules that relates to the conduct of appeal cases in the National Court. The defendant claims that the applicant has not complied with:

(1) Rule 2, which lists the different file references for various appeal matters; and/or
(2) Rule 6, which requires the compilation of an Appeal Book; and/or
(3) Rule 18, which deals with appeals from a Review Tribunal under the Income Tax Act; and/or
(4) Rule 19, which sets out the requirements of a notice of appeal in a taxation appeal.

3. The Law Society has argued that Mr Amaiu is obliged to comply with those Rules, as that would be consistent with the authority of Toby Bonggere v Papua New Guinea Law Society (2003) N2361 that a review pursuant to section 45(1) of the Lawyers Act is akin to a hearing of an appeal. While counsel for the Law Society agreed that it was acceptable to institute the application for review by way of an originating summons, Mr Wood submitted that the originating summons should include details such as those set out in Rule 19 including ground for the review.

4. The same issue was previously argued in the case of Canisius Karingu v Papua New Guinea Law Society (2009) N3688 where after accepting that an application for review of the refusal to issue a practising certificate is akin to an appeal, Cannings, J stated at paragraphs 14 and 15:

"14. However, it does not follow from that, necessarily, that the Appeals Rules 2005 applied. The Lawyers Act draws a distinction between appeals and reviews, eg Section 58 confers a right of appeal against a decision of the Lawyers Statutory Committee. The fact that different terminology is used creates a presumption that there is a difference in form and procedure between a review and an appeal; and this gives rise to doubt whether it is necessary to make an application for review under Section 45 under the Appeals Rules, using a notice of appeal.

15. It was sufficient for Mr. Karingu to make his application using an originating summons. He complied with Order 4, Rule 3 of the National Court Rules. The originating summons was in a proper form and though perhaps desirable it was not necessary for him to set out the grounds on which he was seeking relief. There was no failure to disclose a reasonable cause of action. So I reject the first argument."

5. I endorse the observations of his Honour. For the same reasons he explained, I do not accept the submissions by the Law Society. In any case, I am satisfied that it is implicit from the relief sought in the originating summons, that:

(1) under section 45(1) of the Lawyers Act the plaintiff is seeking a review of the decision of the Law Society refusing his application for an unrestricted practising certificate;
(2) the Law Society wrongfully refused his application for the certificate;
(3) he had met the legal requirements to be issued the certificate; and
(4) the Court should therefore order he be issued the certificate.

Orders

6. Accordingly, I dismiss the notice of motion filed by the Law Society on 10th December 2014 with costs in relation to this application ordered in favour of the plaintiff.

__________________________________________
The plaintiff in person
Ashurst Lawyers: Lawyer for the defendant