N11128
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

LA NO. 131 OF 2024

IN THE MATTER of the Lawyers Act 1986 (as amended) and the Lawyers Admission Rules 1990

AND 
IN THE MATTER of an application by WENDY GUMAGOGL TAMBAGLE for admission as a lawyer

WAIGANI: KARIKO J
9 & 14 JANUARY 2025

LAWYERS - application for admission - PNG citizen admitted to practise in Australia – application by notice of motion – competency of the application – failure to state concisely jurisdictional basis for the application

A PNG citizen who was admitted to practice as a lawyer in Australia, applied to be admitted to practice in PNG. Objection was taken to the competency of the application based on failure to state concisely in the notice of motion the jurisdictional basis for the application.

Held:

(1)	An applicant for admission is required to clearly state in the notice of motion which of the powers under ss 26 and 28 of the Lawyers Act are sought to be invoked in the application. 

(2)	Failure to cite concisely the jurisdictional basis for an application for admission renders the application incompetent: Application by Patricia Elaine Cahill, In re (2020) N8586 followed.

(3)	(Obiter) The relevant practice qualification to consider for an applicant for admission who has been admitted to practice in a prescribed country named in s 2 of the Lawyers Admission Rules is provided in s 25(3)(b) of the Lawyers Act, and there is no distinction whether the applicant is a PNG citizen or not.  

Cases cited

Application by Kunjip for Admission as a Lawyer [1997] PNGLR 284
Application by Patricia Elaine Cahill, In re (2020) N8586
Lash v Law Society of PNG [1993] PNGLR 53
PNG Law Society v Kunjip (1998) SC578

Counsel

R Pato & J Kakaraya for the applicant
C Copeland for the PNG Law Society

1.	KARIKO J:   This is an application for admission as a lawyer of the National and Supreme Courts pursuant to the Lawyers Act 1986 (the Act) and the Lawyers Admission Rules 1990 (the Admission Rules) which was opposed by the PNG Law Society who is entitled under s 29 of the Act to appear in these applications.

2.	The applicant Wendy Gumagogl Tambagle is 28 years old and comes from Simbu Province. After attending primary schooling to Grade 7 mostly in Kundiawa, she completed her high school in Townsville Australia in 2014.  Ms Tambagle continued with tertiary education at the University of Southern Queensland in Brisbane graduating with a degree of Bachelor of Laws in September 2018. She then undertook and successfully completed the practical legal training offered by the College of Law in Brisbane and was awarded the Graduate Diploma of Legal Practice in November 2019. The Supreme Court of Queensland admitted her as a lawyer on 17 February 2020. She returned to PNG after her admission due largely to the COVID-19 pandemic and she has not returned to Australia since to progress her legal career.  

NOTICE OF MOTION 

3.	Pursuant to s 26 of the Act, an application for admission shall be in the form prescribed by the Admission Rules which is essentially that it be by way of a notice of motion with supporting affidavit (s 2).

4.	The notice of motion by the applicant pleads one relief:

That the said WENDY GUMAGOGL TAMBAGLE be admitted to practice as a Lawyer of the National and Supreme Court of Papua New Guinea pursuant to Sections 26 and 28 of the Lawyers Act 1986 (as Amended) and Rule 2 of the Lawyers Admission Rules 1990.

5.	When the application was moved, the Court was informed by Mr Pato that his client was seeking a waiver under s 28(2) only of the requirement of s 25(3)(a) – that an applicant has successfully completed the course offered at the Legal Training Institute.  Counsel argued the application on this basis.

JURISDICTION

6.	The Law Society challenged the competency of the notice of motion on grounds that it failed to concisely state the jurisdictional basis for the application – that the applicant did not specifically ask for a waiver, let alone the particulars of the waiver sought. 

7.	In response, it was argued for the applicant that the cited provisions are correct because:

•	s 26 of the Act and s 2 of the Admission Rules cover the procedural requirements for an application for admission, while

•	s 28 of the Act allows for an applicant to seek a waiver of all or any of the requirements of s 25 of the Act (which prescribes the qualifications for admission). 

CONSIDERATION 

8.	This same jurisdictional question arose in Application by Patricia Elaine Cahill, In re (2020) N8586, a case where several lawyers admitted to practice in various courts in Australia applied for admission in this jurisdiction also citing s26 and s28 of the Act and s 2 of the Admission Rules in their motions.  

9.	Kandakasi DCJ noted that while s 26 provides for the process for applying for admission, s 28 refers to two distinct powers of the Court – the power to admit an applicant to practice law, and the power to waive any or all requirements of s25 in deciding whether to grant the application. His Honour stressed at [40]:

... 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...

10.	His Honour added at [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... Consequently, I am of the view that, where a motion under ss. 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. 

11.	His Honour further remarked that failure to properly cite the powers to be invoked cannot be ignored by the Court and may only be corrected upon proper filing of an application to amend. No such application was filed in the present case.

12.	The mischief caused by the failure to plead the specific power of the Court sought to be invoked which was alluded to by the Deputy Chief Justice at [40] of his judgment, was evidenced in this case. Based on the applicant’s affidavit, the Law Society anticipated waiver under s 28(2) would be sought and assumed the waiver would concern the practice requirement under s 25(3)(b). It prepared arguments for the hearing in line with that theory. Only when the application was moved, did the Law Society and indeed the Court learn that it was the requirement under s 25(3)(a) that the Court was being asked to waive. 

13.	I adopt and endorse the views of Kandakasi DCJ, and pursuant to O4 r 49(8) of the National Court Rules I would dismiss this application for being incompetent. 

ADDITIONAL REMARKS 

14.	It is not necessary then to consider other submissions of counsel, but I offer some observations regarding the required practice qualifications for admission.

15.	These qualifications are found in s 25(3) which requires that the applicant shall have:
 
•	successfully completed the course at the Legal Training Institute: s 25(3)(a); or 

•	been admitted to practice in a prescribed country and practiced for at least 5 years in that country; s 25(3)(b). (The prescribed countries are Australia, New Zealand, United Kingdom of Great Britain and Northern Ireland: s 1(3) of the Admission Rules)

16.	The applicant was admitted to practice in Queensland, Australia.  In my view, s 25(3)(b) is the applicable provision concerning her situation. 

17.	I understood Mr Pato to suggest that s 25(3)(b) provided for “foreign lawyers” and because Ms Tambagle is not a foreign lawyer, that provision is irrelevant to her case. The term “foreign lawyer” is not contained in the provision, nor does it appear anywhere in the Lawyers Act. Mr Pato was unable to point to such provision. What is clear from the plain English reading of the section is that it refers to an applicant who has been admitted to practise in a country prescribed by the Rules, which are Australia, New Zealand, United Kingdom of Great Britain and Northern Ireland. No distinction is made as to whether the applicant is a PNG citizen or not.  

18.	Counsel may have persisted in using the terminology “foreign lawyer” based on the applicant’s reliance on the cases of Application by Kunjip for Admission as a Lawyer [1997] PNGLR 284, Papua New Guinea Law Society v Kunjip (1998) SC578 and Lash v Law Society of PNG [1993] PNGLR 53. 

19.	In Kunjip, the applicant was a PNG citizen who after obtaining her law degree from UPNG did her legal practice training in Queensland and was admitted to practice as a solicitor in Queensland, but she never practiced there.  The applicant sought waiver of s 25(3)(a) which was granted, and she was admitted. The issue of whether s 25(3)(a) or s 25(3)(b) was the appropriate provision in considering practice qualification was not raised nor argued although Salika J remarked as obiter that s 25(3)(b) is intended for “foreign lawyers”. The issue was also not a matter raised or considered in the appeal to the Supreme Court.

20.	In Lash, which involved an American qualified lawyer but who was admitted to practise in NSW Australia, Amet J observed that s 25(3)(b) was intended to regulate the admission of “foreign lawyers” to practice in this jurisdiction - that they are sufficiently experienced practitioners.

21.	It remains the law in my respectful opinion that s 25(3)(b) and indeed s25(3)(a) makes no distinction between an applicant who is a PNG citizen and one who is not.

22.	To my mind, the applicant in Kunjip was an applicant like the applicant in Lash and to whom s 25(3)(b) applied – both were “admitted to practice in a country prescribed by the Rules”. The waiver sought in Kunjip ought to have been of the requirements of s 25(3)(b) rather than s 25(3)(a).  

ORDER

23.	I order that:

(1)	This application for admission to practice as a lawyer is dismissed for being incompetent.

(2)	The applicant shall pay the PNG Law Society’s costs of and incidental to the application, to be taxed if not agreed.

(3)	Time for entry of the order be abridged to the time of settlement which shall take place forthwith. 
________________________________________________________________
Lawyers for the applicant: O’Briens
Lawyers for the PNG Law Society: Ashurst PNG