In The Matter of The Lawyers Act 1986; In The Matter of an Application by Roger Gill Maguire for Admission as a Lawyer (2003) N2466

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 07 October 2003
• Citation: (2003) N2466
• Docket Number: LA No 2 of 2003
• Court: National Court
• Year: 2003
• Judgement Number: N2466

Full Title: LA No 2 of 2003; In The Matter of The Lawyers Act 1986; In The Matter of an Application by Roger Gill Maguire for Admission as a Lawyer (2003) N2466

National Court: Kandakasi J

Judgment Delivered: 7 October 2003

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

LA NO. 2 OF 2003

IN THE MATTER OF

THE LAWYERS ACT 1986

IN THE MATTER OF AN APPLICATION BY

ROGER GILL MAGUIRE

FOR ADMISSION AS A LAWYER

WAIGANI: KANDAKASI, J.

2003: 22nd August

7th October

LAWYERS ADMISSION - Application for admission to practice by a foreign lawyer - Requirements for admission - Applicant meeting all academic and practice requirements - Attorney General effectively refusing to certify applicant as “a fit and proper person” on the basis of a policy not publicly stated - Alleged policy inconsistent with legislative intent and purpose of Layers Act 1986 - Intent of Act not to prohibit admission of foreign lawyers but to regulate it - No good basis to refuse certification - Requirement for Attorney General’s certification dispensed waived - Applicant admitted to practice - Ss. 25, 26, 27, 28 and 29 of the Lawyers Act 1986.

WORDS AND PHRASES - “Fit and proper person” - Meaning of - Factors to be considered – “Fit and proper person requirement is in addition to academic and practice qualifications – Means the personal standing and character of applicant - A person with good character record and standing as well as an ability to perform as a lawyer is “a fit and proper person” - Lawyers Act 1986 s. 25(3)(d).

Cases Cited:

In the Matter of the Lawyers Act 1996 and In the Matter of An Application by Peter Norman Moore [1993] PNGLR 470, at pp. 472 and 473.

Papua New Guinea Law Society -v- Martin Dennis McEniery [1993] PNGLR 76.

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 06/04/01) N2094.

The Application of Moge Enga and Kuipi Group in the Matter of a Decision of the Minister for Lands Concerning Section 30 Allotment 7 Mt. Hagen [1995] PNGLR 246.

An Application of the NCDIC [1987] PNGLR 339.

Pius Sankin, Jimmy Lingau and James Numbunda v Papua New Guinea Electricity Commission (ELCOM) (Unreported judgement delivered on 19/07/02) N2257.

Re John Sifta [1975] PNGLR.

Costello v. Controller of Civil Aviation [1977] PNGLR 229.

In the matter of the Lawyers Act and In the Matter of an application by Egerton MacPherson Robb [1995] PNGLR 462.

Jack Livinai Patterson v. National Capital District Commission (unreported judgement delivered 05/10/01) N2145.

Fly River Provincial Government v. Pioneer Health Services Limited (unreported judgement delivered on 24/03/03) SC705.

Counsels

Mr. K. Kua for the Applicant

Dr. J. Nonggorr for the PNG Law Society

7th October 2003

KANDAKASI, J: In this matter, Mr. Roger Gill Maguire (the applicant) is applying under s. 28(2) of the Lawyers Act 1986 (the Act) for a waiver of the requirements for certification as “a fit and proper person” under s. 25 (3) (d) of the Act. Subject to that application being granted, he is also seeking admission as a lawyer to practice in Papua New Guinea. This follows an application by the applicant for a waiver of the requirement to sit an examination under s. 25 (5) of the Act, on the basis of his academic and practice qualifications. That application was made as a prelude to getting a certification under s. 25 (3)(d) as “a fit and proper person” before applying for admission as a lawyer under s. 26 of the Act. This application is opposed by the Attorney General but the Law Society is not.

Arguments of the Parties

The applicant accepts that it is within the discretion of the Attorney General to decide whether or not to certify a person seeking to be admitted as a lawyer in the country under s. 25 (3)(d) of the Act. But that discretion he submits must be exercised within the ambit of the Act and in particular subsection (1) of that provision as elaborated in subsection (2) and (3). On the requirement of sitting an examination, the applicant argues that, an examination is necessary only if an applicant fails to provide sufficient evidence of both his and or her academic and practice qualifications.

In his case, he argues that the Attorney General was satisfied and indeed impressed with evidence he provided in relation to both his required academic and practice qualifications as well as his personal background, standing and character as a lawyer. Despite that, the Attorney General decided not to waive the examination requirements and effectively refuse to certify him under s. 25(3)(d) of the Act as “a fit and proper person” because of an alleged policy not to waive that requirement. The alleged policy has not been formally stated and or announced in any manner, prior to its application against the applicant. This, the application argues, was not a proper reason and one, which fell outside the ambit of the Act and the requirements an applicant for admission, as a lawyer is to meet. Therefore the Attorney General erroneously refused to grant the waiver sought. Accordingly, he argues for a waiver of the requirements for certification by the Attorney General under s. 25 (3)(d) of the Act and for admission as a lawyer.

The Attorney General takes no issue on the applicant having met the required academic and practice qualifications. Also, he takes no issue that, the applicant is otherwise “a fit and proper person” to be admitted has a lawyer. The only issue he takes is that, he as discretion not to certify the applicant as “a fit and proper person” as a matter of policy not to waive the requirements for sitting an examination. In furtherance of his position, reference is made to the years that have past since independence and there being a good number of Papua New Guinean lawyers being admitted and practicing law. Furthermore, he argues that since he is charged with a duty to make a policy decision, this Court is not the proper forum to review or reconsider his decision.

The Relevant Issues

These arguments give rise to a number of issues for this Court to determine. These are:

1. Whether the Attorney General erred in refusing to waive the requirements for sitting an examination by the applicant for the purposes of determining whether or not the applicant is “a fit and proper person” under s. 25(3)(d) of the Act?

2. Has the application made out a case for a waiver of the requirements for the Attorney Generals certification of him as “a fit and proper person” to be admitted as a lawyer in the country?

3. Has the applicant made out a case for admission has a lawyer to practice in the country?

These issues are closely related and so they need be considered together. I will therefore approach them in that manner. But before I could do that, it is necessary to set out the relevant facts and I do that first.

The Relevant Facts

The applicant is an Australian. He was born in Brisbane in the State of Queensland on the 5th of November 1955. He undertook primary schooling from 1961 to 1967 at Shorncliffe State School, which is in Brisbane. Then from 1968 to 1972, he attended St. Pauls School at Bald Hills, also in Brisbane.

He commenced is working live with 5 years article clerkship with the firm of Roderick & Beston Solicitors in 1974. During this period he also undertook studies after hours. The lectures were given by practicing barristers and solicitors, Queens Counsels and judicial officers. He further attended various courses conducted by the Queensland Law Society on matters such as obtaining client’s statements, preparation of pleadings, negotiation skills, family law subjects, conducting personal injuries claims, criminal and civil litigation, traffic matters, conveyancing and estate planning, commercial leases. By the end of the clerkship, he had his own portfolio of clients in the areas in which he had clerkship.

On the 17th of July 1979, he was admitted to practice as a Solicitor of the Supreme Court of Queensland. Following his admission, he continued to work with the firm of Roderick and Co as an employed solicitor until late 1983. In late 1983 he formed a partnership with a Peter Wallace and they together practiced under the name Maguire and Wallace, until 1987 when they split up. That saw the applicant practicing on his own under the name of...