Emily Paneyu Dirua v Papua New Guinea Law Society

• Jurisdiction: Papua New Guinea
• Judge: Sevua J
• Judgment Date: 19 July 1996
• Citation: (1996) N1467
• Court: National Court
• Year: 1996
• Judgement Number: N1467

National Court: Sevua J

Judgment Delivered: 19 July 1996

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 191 OF 1996

EMILY PANEYU DIRUA — PLAINTIFF

V

PAPUA NEW GUINEA LAW SOCIETY — DEFENDANT

Waigani

Sevua J

13 May 1996

19 July 1996

LAWYERS — Lawyers Act 1996 — Qualifications — Requirements for practising certificate — Requirement for report of an accountant — Requirement for insurance cover — Requirement for fee — Lawyers Act 1986, ss. 35, 42, 43 & Lawyers' (Trust Account) Regulation 1990, s. 13.

LAWYERS — Lawyers Act 1996 — Application for practising certificate — Requirement for renewal — Whether the Council has discretionary power to waive any requirement for practising certificate — Refusal to renew certificate — Where application is refused — Application to Court — Power of Court discretionary — Lawyers Act 1986, ss. 44, 45.

Where the plaintiff was refused renewal of her practising certificate for failure to lodge report of accountant (or Trust Account Audit) for period 1 March, 1994 to 28 February, 1995.

Held

1. The Papua New Guinea Law Society has no power to waive any requirement for practising certificate under the Lawyers Act where an applicant has failed to comply with a requirement for practising certificate under the Act.

2. The refusal to renew the plaintiff's practising certificate was within the discretionary power of the Council and in accordance with s. 44 (1) of the Lawyers Act.

3. In the circumstances of this case, the plaintiff's application should be granted in the exercise of the Court's discretion.

Counsel

J Aisa for Plaintiff/Applicant

G Garo for Defendant/Respondent

19 July 1996

SEVUA J: This is an application by the plaintiff seeking inter alia, an order that the Council of the PNG Law Society issue an unrestricted practising certificate to her for the year commencing 1st January and ending 31 December, 1996.

The plaintiff/applicant in this matter gained provisional admission as a lawyer on 18 November, 1988 followed by full admission on 6 September, 1990. Following her full admission, she was issued with a restricted practising certificate and practised as a lawyer with Simbu Provincial Government, Henao Lawyers and Namaliu Lawyers. In 1993, she went into partnership with Harold Ross Howard and the partnership practised under the firm name, 'Howard & Dirua Lawyers' which operated from the 1st floor, PNGBC, Waigani Drive. The partnership commenced on 16 June, 1993 and Harold Ross Howard was the managing partner holding 49 shares, while the plaintiff was the other partner, holding 51 shares. Under the deed of partnership which was signed by both partners, the managing partner was responsible for the day-to-day management of the firm. The plaintiff's evidence is that, the managing partner was responsible for the management and finance of the firm which include signing of cheques and the care and custody of the irm's accounting records. Despite the fact that the plaintiff was a partner, she did not have her signature on the firm's accounts. The firm lasted for about 18 months, to December, 1994, when Harold Howard left the firm.

The partnership was formally dissolved on 18 February, 1995 when Mr Howard returned to Papua New Guinea in January that year to wind up the firm.

At about the same time that Mr Howard left the partnership, he had arranged with a Mr Flanagan Kevin, an accountant, to audit the books of the firm. The plaintiff was under the impression that Mr Flanagan Kevin was also an auditor and was able to prepare an audit for the firm's trust account for the year ending 28 January, 1994. Since then the plaintiff has been advised by the Papua New Guinea Association of Accountants that Mr Flanagan Kevin's Accountants Registration Certificate was not issued to him in 1995. Despite the plaintiff's attempts to speak with Mr Flanagan Kevin, she has been unable to do so. Mr Flanagan Kevin could not be located and he could not be contacted and as a result, the plaintiff has not been successful in recovering the firm's account books for the purpose of an audit.

On 26 March, 1996, the plaintiff wrote to the Accountants' Registration Board and inquired about the location of Mr Flanagan Kevin. On 27 March, 1996, the plaintiff was advised by the Registrar of the Accountants' Registration Board of Papua New Guinea that Mr Flanagan Kevin was no longer a registered public accountant as of 31 December, 1994. The Registrar further advised the plaintiff that Mr Flanagan Kevin had applied for renewal of registration in 1995, but his application had been rejected, and since then, the plaintiff has not been able to communicate with Mr...