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Application for Admission by Maria Bolokon [2022] PGNC 372; N9755 (1 July 2022)

N9755

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]


LA NO.38 OF 2022 (IECMS-CC1)


IN THE MATTER OF LAWYERS ACT 1986 (AS AMENDED)


AND
APPLICATION FOR ADMISSION BY MARIA BERNADONIE BOLOKON
Applicant


LA NO.49 OF 2022 (IECMS-CC1)


IN THE MATTER OF LAWYERS ACT 1986 (AS AMENDED)


AND
APPLICATION FOR ADMISSION BY SAMSON KANDATA
Applicant


LA NO. 65 OF 2022 (IECMS-CC1)


IN THE MATTER OF LAWYERS ACT 1986 (AS AMENDED)


AND
APPLICATION FOR ADMISSION BY PINDAO ADAMS PULI
Applicant


LA NO. 78 OF 2022 (IECMS-CC1)


IN THE MATTER OF LAWYERS ACT 1986 (AS AMENDED)


AND
APPLICATION FOR ADMISSION BY PINDAO ADAMS PULI

Applicant


Waigani: Wurr AJ
2022: 27th April, 1st July


LAWYERS ADMISSION –Application for admission to practice as a lawyer- Application to generally waive requirements under s 25 – Relevant requirement (s) not pleaded in the notice of motion– whether failure amounts to deficiency in form of the motion contrary to Order 4 Rule 49 (8) of the National Court Rules - Defect cannot be cured in Court – Sections 25, 26, 27 and 28 of the Lawyers Act 1986 (as amended)- Requirements for admission- whether applicants have met all requirements – whether public policy requires grant of application- No case made out for grant of waiver


Cases Cited

In the matter of the Lawyers Act 1986 and In the matter of an Application by Peter Norman Moore [1993] PNGLR 470
In the matter of the Lawyers Act 1986 (As Amended) and Application by Patricia Elaine Cahill, Cheyne Malcom Beetham, David Brian Suttner, Claire Elizabeth Valma Davies, Nadia Suzanne Braad (2020) N8586
In the Matter of the Lawyers Act and In the Matter of an Application by Egerton MacPherson Robb [1995] PNGLR 462 at 466
In the matter of the Lawyers Act 1986 (as amended) and In the Matter of an Application by Godwin Haumu for Admission as a Lawyer (Unreported National Court Judgement delivered on (2001) N2094
Re Application by Kui Kot in the Matter of Lawyers Act (1986) (2016) N6576


Legislation

Lawyers Act 1986 (as amended)

National Court Rules


Counsel
S.Kiene, for the Applicants
I.Shepherd, for the Papua New Guinea Law Society


JUDGMENT

01st July, 2022


  1. WURR AJ: The Applicants seek to be admitted to practice as lawyers of the National and Supreme Courts of Papua New Guinea pursuant to s. 26 of the Lawyers Act 1986 (as amended) (“the Act”) and apply to the Court by way of a motion under s. 28(1). The applicants also seek pursuant to s. 28 (2) a waiver of the requirements under s. 25 but do not specify which requirements under s 25 they seek to waive.

APPLICANTS’ SUBMISSION


  1. The applicants’ arguments are similar. They move that the requirement under s. 25(3)(d) of the Act, which is the requirement for a Certificate by the Attorney General certifying that the applicants are fit and proper persons to be admitted to practice law in Papua New Guinea, should be waived and that they be admitted to practice as lawyers. The applicants submit that the fit and proper test conducted by the Attorney General is in two parts- interview and written examination. All the applicants passed the interview but failed the written examination. Their reason for failing the exam is that the training at the Legal Training Institute (“Institute”) was very intensive and conducted within only six months due to the COVID 19 Pandemic and therefore as the training was more practical than theoretical, they did not have enough time to properly study for the exam. In any event they argue that they all have passed all necessary subjects at the University of Papua New Guinea particularly Constitutional law, Customary law, Land Law, Torts Law and social issues. Out of eighty-five trainees, seventy-four successfully completed the academic courses at the Institute and they were among those who passed and were issued with certificates of training. They therefore argue that the requirement for Attorney General Certificate should be waived.

LAW SOCIETY’S RESPONSE


  1. Mr Shepherd on behalf of the Law Society raised two grounds of objection, first of which is that the Motions do not comply with Order 4 Rule 49 (8) of the National Court Rules as they do not contain sufficient reference to the Court’s jurisdiction to grant the orders being sought. Mr Shephard relied on the case of Application by Patricia Elaine Cahill & 4 Others (2020) N8586 to support his contention. The second objection raised is that the applicants have not made a case to warrant the court’s intervention to waive the requirement under s. 25(3)(d) of the Act. It is argued that the power to determine whether a person is a fit and proper person to be admitted as a lawyer is vested in the Attorney General according to s. 25 of the Act, and the exercise of that power although discretionary should be exercised after having regard to all the relevant factors including any policy matters. For the applicants to succeed in seeking a waiver, they must show that their case is one which requires a waiver of that requirement such that the Court may intervene. It is the Law Society’s argument the applicants have failed to make a case for the Court to intervene. In any event, the applicants have been advised by the Attorney General that they can sit for the exam later this year with the rest of the trainees who are currently undergoing training at the Institute so they have another chance to re-sit the exam.

COMPETENCY OF THE MOTIONS


  1. The competency of the motions is the first issue raised by Mr Shepheard. Although it is technical in nature, it is an important issue worth considering first before I move on to deal with the merit of the applications.
  2. Each of the applicants’ notice of motion seeking admission is pleaded in similar terms as follows;

“ TAKE NOTICE that pursuant to Section 26 and 28(1) & (2) of the Lawyers Act 1986 and Section 2 of the Lawyers Admission Rules 1990, the Applicant will at 9:30am on the 28 January 2022 at Waigani move the Court for an order that he be admitted to practice as a lawyer of the National and Supreme Court of Papua New Guinea.”


  1. The motions plead s. 26 and s. 28 (1) and (2) of the Act but do not specify which requirement under s. 25 of the Act they are seeking to waive, and because of that the Law Society argues that the applications do not comply with Order 4 Rule 49 (8) of the National Court Rules. Mr Shepherd referred this Court to the case of Application by Patricia Elaine Cahill & 4 Others (supra) where in that case the applicants invoked s. 26 and s. 28 of the Act but did not properly plead subsection (1) and or (2) of s. 28. His Honour Deputy Chief Justice Kandakasi who presided over that matter discussed this issue at length at paragraphs 40, 41 and 42 of his judgment as follows;

“ 40. Section 26 provides for the process for applications for admission as a lawyer. Section 28 speaks of two different powers the Court is vested with; one is under subsection (1). That provision vests the power in the Court on a motion to grant an applicant to practise as a lawyer provided, the applicant meets the “required qualifications” which are prescribed in s. 25 of the Act. The second subsection grants an additional power in the Court to waive any of the requirements under s. 25. Given that, I am of the view that, an applicant needs to clearly indicate which of these powers, or if it is the case, if both of these powers are sought to be invoked. That is necessary to place the Society and the public on notice of the reliefs an applicant for admission as a lawyer is seeking, so as to, enable the public to consider and if anyone so wishes, object to the proposed application.


41. Since an application for admission is a matter that the members of the public should be made aware of pursuant to s. 27 (a) of the Lawyers Act, the need to be specific is critical. This has to be contrasted with a notice of motion filed in any ordinary proceeding before the National Court. Such motions are matters that are between the parties in a proceeding and do not concern the public at large, whereas a motion under s. 26 of the Lawyers Act is a matter of public interest. Consequently, I am of the view that, where a motion under section 26 and 28 fails to specify the powers of the Court it is seeking to invoke and clearly plead the reliefs being sought, it is to that extent, defective by reason of which, such a motion would fail to properly invoke the Court’s jurisdiction. In the light of the requirement for publication under s. 27 (a) of the Lawyers Act, such a defective motion cannot be ignored or cured in Court without the defect being properly corrected and brought to the attention of the public in the same way prescribed by s. 27 (a) of the Lawyers Act. That would be conditional on proper application being made and leave being granted by the Court.


42. In the present case, the applicants are seeking exemption under s. 28 without citing the correct subsection (2) of the Act in their respective notices of motion. Also, they are effectively, asking for conditional admissions on the strength of their respective undertakings, without seeking that relief in their notices of motion. Conditional admission and or the undertakings each of the applicants give have no foundation under the relevant and applicable law on admission of lawyers in PNG. Each of the applicants’ applications are therefore, seriously defective and which defects cannot be cured and or ignored by this Court, especially when no application for amendment is made for or by anyone of the applicants.”

(Underlining mine)


  1. The Law Society’s argument on this issue as I understand it, is that it is not sufficient to only plead Sections 26 and 28 (1) and/or (2). Applicants seeking waiver must go a step further to plead the particular requirement (s) under s 25 they are seeking to waive, and this is based on the same reasoning of the National Court in the case of Application by Patricia Elaine Cahill & 4 Others (supra).
  2. The comments made by Deputy Chief Justice His Honour Justice Kandakasi in the case of Application by Patricia Elaine Cahill & 4 Others (supra) are important and I agree with His Honour, that a motion seeking approval of the court to be admitted as a lawyer is an application of public interest, by its nature it is special and not the same as other ordinary motions hence the need to be specific is quite critical, especially where an applicant seeks to waive the requirements under s 25 of the Act.
  3. Following on from that reasoning, I agree with Mr Shepherd that any applicant seeking waiver of any requirements under s 25 of the Act need to go a step further than just pleading ss 26 and 28 (1) and or (2). They must specify which requirement (s) under s. 25 of the Act they seek to waive.
  4. When one looks at s 25 of the Act, it provides clearly that an applicant for admission shall satisfy the Court that he possesses the required academic and practice qualifications and that he is a fit and proper person to be admitted to practice as a lawyer. Subsection 2 provides for the required academic qualifications whilst subsection 3 provides for the required practice qualifications. If an applicant seeks to waive any of these requirements, they must be specific so that the Law Society and the public for that matter are made aware and put on notice when it is published. As the Court held in the case of Application by Patricia Elaine Cahill & 4 Others (supra), such a defective motion cannot be ignored or cured in Court without the defect being properly corrected and brought to the attention of the Society and public in the same way prescribed by s. 27 (a) of the Act (publication).
  5. I therefore uphold the Society’s argument that all the Motions are defective and fail to comply with Order 4 Rule 49 (8) of the National Court Rules and dismiss them accordingly.

WHETHER THE APPLICANTS HAVE MADE A CASE FOR THIS COURT TO WAIVE THE REQUIREMENT UNDER S. 25(3)(d) OF THE ACT


  1. For purposes of completeness, I will go on to consider the merits of the applications. Section 25 (3)(d) of the Act provides that the Attorney General will provide a Certificate that the applicant is a fit and proper person to be admitted to practice in Papua New Guinea. Subsection 4 goes on to provide that in order to determine whether or not to grant a certificate under Subsection (3)(d), the Attorney-General may require the applicant to attend before him for a personal interview and to produce to him such evidence of his fitness and academic and practice qualifications as the Attorney-General thinks fit. Where the Attorney-General is of the opinion that an applicant has not provided adequate evidence of his academic and practice qualifications, subsection 5 provides that he may require the applicant to sit examinations and for this purpose may set such examinations.
  2. The current Attorney General Dr Eric Kwa in objecting to all these applications relies on his detailed affidavit which raises concerns about the quality of lawyers being produced into the workforce in Papua New Guinea. With the legislative backing and under his leadership he has in recent times produced an examination system (which he describes in detail in his affidavit) with the objective of testing the quality of academic qualifications of applicants for fit and proper persons certificates before they are admitted. The system he has introduced is quite comprehensive and involves an interview and written examination.
  3. According to the evidence of the Attorney General, all the four applicants failed the written examination. The applicant Maria Bernadonie Bolokon scored a total of 21 marks out of 50 which was below the requisite pass mark of 25. Samson Kandata scored a mark of 23 out of 50, Pindao Adams Puli scored 19 out of 50 and Matalyne Monts scored the lowest, 16 out of 50 marks. The applicants purported to appeal from the Attorney General’s decision to which the Attorney General responded and advised each of the applicants to re-sit the examination later this year (2022) with the trainees currently undergoing training at the Institute. The applicants have instead opted to seek the court’s intervention to waive the requirement under section 25(3)(d) of the Act.
  4. The approach taken by the Attorney General to improve the quality of lawyers is a question of policy hence the Court should be reluctant to interfere. See the case of Re Application by Kui Kot in the Matter of the Lawyers Act 1986 (2016) N6576. In that case the Court also held that Section 25 (3)(d) is not concerned with academic or practice qualifications. It is concerned with the “character, reputation or standing of the person applying to be admitted as a lawyer”.
  5. In the case of In the matter of the Lawyers Act 1986 (as amended) and In the Matter of an Application by Godwin Haumu for Admission as a Lawyer (Unreported National Court Judgement delivered on (2001) N2094, His Honour Justice Kandakasi (as he then was) held that the following considerations must be the basis upon which the Attorney General should decide whether or not to grant a certificate. This position was reinforced in the case of Kui Kot (supra):
    1. Whether the applicant has any criminal conviction of such a nature that it would not be proper to admit him to the practice of law?
    2. Whether the applicant has such disciplinary record or problems with the schools, universities and or colleges he has attended that reflects adversely against him or her as a person worthy of admission to the practice of law?
    3. Whether the applicant has any record of conducting in such a manner that demonstrates a lack of respect for authority, the rule of law and law and order generally?
    4. Whether the applicant's character is of such a nature that it would not be proper for him to be admitted to the practice of law?
    5. Whether the applicant has any mental or physical disability that would not enable him to properly discharge the duties and responsibilities of a lawyer?
    6. Whether he is proficient with the English language?
    7. Generally, whether certifying the applicant as a fit and proper person will go against the high respect esteem and status lawyers enjoy in society?
    8. Whether the standing government or State policy on admission of lawyers to the practice of law, favours the applicant to be admitted?
  6. The power to make a decision as to whether a person is a fit and proper person to be admitted as a lawyer is vested in the Attorney General by virtue of s. 25(3)(d) of the Act. That discretion should be exercised after having regard to the above factors and taking into account all the factors that need to be taken, including any policy matters. (Kui Kot, p.10, followed).
  7. Only if it is shown that, due to circumstances beyond the control of the applicant it is difficult to obtain such a certificate from the Attorney General and the case is proven to be one which requires a waiver of meeting that requirement, then the Court may assume that responsibility and determine the question of whether or not the applicant before it, is a ‘fit and proper person’ to be admitted as a lawyer. ( In the Matter of the Lawyers Act and In the Matter of an Application by Egerton MacPherson Robb [1995] PNGLR 462 at 466, followed).
  8. In In the Matter of the Lawyers Act 1986 and In the Matter of an Application by Peter Norman Moore, an expatriate lawyer applied under s 28 (2) of the Act seeking waiver of the requirements of s 25 (3) (d) of the Act. His Honour Late Justice Sevua, in that case held:

“On the basis of the evidence before me, counsel submitted that I should exercise my discretion to declare the applicant a fit and proper person, waive the requirement of s 25 (3) (d), and admit him to practice as a lawyer. With respect, I consider that this contention is misconceived and mischievous. The discretion to hold an applicant a fit and proper person to practice is a discretion which rests solely on the Attorney-General by virtue of s 25 (3) (d). I cannot see any concurrent discretionary powers here to be exercised by the Court and the Attorney-General. In my view, the Attorney-General's discretion is a matter of policy decision which this Court cannot interfere with unless the exercise of such a discretion is outrageous or is exercised unlawfully, for instance on the basis of race, sex or religion........ Because the Lawyers Act 1986 does not give the Court any discretion under s 25 (3)(d) in a situation where the Attorney General in its discretion has refused to issue a certificate, I have no discretion to exercise and I would consider that I would be in error if I step in and exercise a discretion which I do not have.”


  1. From those cases, it is clear that in order to persuade this Court to exercise its discretion to waive any of the requirements under s 25 of the Act, the applicants must show that;
    1. due to circumstances beyond their control, it is difficult to obtain such a certificate from the Attorney General; or
    2. the Attorney General’s exercise of discretion is outrageous; or
    3. the Attorney General’s exercise of discretion is exercised unlawfully, for instance on the basis of race , sex or religion.
  2. All 2021 trainees underwent the same intensive six-months legal training and most of them passed the exam except the four applicants. The reason they provide does not make their case or circumstance exceptional than the rest of the trainees. They have been given another opportunity by the Attorney General to re-sit the exam later this year. All hope is not lost for them.
  3. The applicants further claim that an international student from Solomon Islands failed the exam but was certified by the Attorney General and allowed to be admitted, is a mere allegation without any evidentiary material to support it. Furthermore, it was not properly argued by parties. I therefore dismiss it.
  4. Given these facts, I am not satisfied that the applicants have made a case that the Attorney General’s exercise of discretion is outrageous or was exercised unlawfully, or that it is difficult to obtain such a certificate from the Attorney General due to circumstances beyond the control of the applicants. In other words, the applicants have failed to satisfy the Court that any of these situations exist to warrant this Court to exercise its discretion under s 26 and 28 (1) and (2) to waive the requirement under s 25 (3)(d) of the Act.

FORMAL ORDERS


  1. My formal orders are:
    1. The respective motions seeking admission pursuant to s 26 and waiver of requirements pursuant to s 28 (1) and (2) of the Act, are individually declared incompetent for not complying with Order 4 Rule 49(8) of the National Court Rules are dismissed.
    2. Cost of each of these applications will follow the event, meaning the applicants will pay the cost of their respective applications on a party-party basis to be taxed if not agreed.
    3. Each of the files are to be closed forthwith.

Orders accordingly.
___________________________________________________________________
Cornerstone Legal Services: Lawyers for Applicants
Ashurst PNG Lawyers: Lawyers for the Law Society

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