Toby Bonggere v Papua New Guinea Law Society (2003) N2361

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: [2003] PNGLR 367
• Date: 21 March 2003
• Year: 2003

Full Title: Toby Bonggere v Papua New Guinea Law Society (2003) N2361

National Court: Kandakasi J

Judgment Delivered: 21 March 2003

1 LAWYERS—Application for Practicing Certificate—Requirements that must be met—Provision of trust account audit report—Conflicting audit reports—Lawyer seeking to justify deficiencies in audit reports after having relied on it and the Law Society rejecting it—No independent and credible evidence provided to support purport justification for deficiencies in audit reports—No case made out for grant of orders sought—s35 to s47 Lawyers Act 1986 and s1, s3 to s10, s12 and s14 Lawyers (Trust Account) Regulation 1990.

2 LAWYERS—Lawyers duty bound to have readily available the Lawyers Act 1986, the Professional Conduct Rules 1989 and the Lawyers (Trust Account) Regulation 1990 as the necessary tools of their trade—A failure to have is inexcusable and could amount to a breach of the Professional Conduct Rules 1989 and could provide the foundation for a conclusion that the lawyer may have acted contrary to requirements of the law.

3 PRACTICE AND PROCEDURE—A plaintiff is under an obligation to demonstrate his statutory or other basis for his claim or action—Court's under no obligation to identify basis for a plaintiff's action—Where a lawyer is a party there is a higher duty for him to demonstrate the legal basis for his action and that the relief he seeks is one that can be granted—A failure to do so may lead to the conclusion that there is no legal basis for the action.

4 LAWYERS—PRACTICE AND PROCEDURE—Lawyers (Trust Account) Regulation 1990—Application for waiver of the requirements under the Regulation—Application must be supported by evidence showing that the intent of the regulations has not and will not be defeated and that the applicant is a trustworthy and therefore a fit and proper person to practice law.

5 STATUTORY INTERPRETATION—Lawyers (Trust Account) Regulation 1990—Regulations are intended to protect clients from unscrupulous lawyers and to make lawyers accountable—The requirements of the regulations are important and cannot be readily dispensed with, except in cases where the intent of the legislation has and will not be defeated—An applicant seeking a waiver of the requirements must show a case for waiver by appropriate evidence that the intent of the legislation has not and will not be defeated by a waiver—s1, s3 to s10, s12 and s14 Lawyers (Trust Account) Regulation 1990.

6 The State v Cosmos Kutau Kitawal (No 1) (2002) N2245, Bank of Hawaii (PNG) Ltd v PNGBC (2001) N2095, Tindiwi v Nilkare [1984] PNGLR 191, In re Moresby North East Parliamentary Election: Goasa Damena v Patterson Lowa (No 1) [1977] PNGLR 424, SCR No 1 of 1982; Re Phillip Bouraga [1982] PNGLR 178, Peter Aigilo v The Independent State of Papua New Guinea (No 1) (2001) N2103, Canisius Karingu v Papua New Guinea Law Society (2001) SC674, Curtain Brothers (Queensland) Pty Ltd and Kinhill Kramer Pty Ltd v The State [1993] PNGLR 285, Emily Paneyu Dirua v Papua New Guinea Law Society (1996) N1467, Canisius Karingu v Papua New Guinea Law Society [1999] PNGLR 83, Pwesei Benson Lomai v Papua New Guinea Law Society [1998] PNGLR 380 and Blackburn v Flavelle (1881) 6 App Cas 628 referred to

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Kandakasi J: The Plaintiff, Mr Toby Bonggere was refused both an Unrestricted and a Restricted Practicing Certificate despite three repeated applications to the Papua New Guinea Law Society (Law Society). He is now applying by origination summons for orders that:

1. The requirements for him to file his trust account audit report for the period ending 28 February 1998 be waived; and

2. The Defendant issues either a Restricted or an Unrestricted Practicing Certificate to him.

He claims that his trust account records, books and client files (records) for the period ending 28 February 1998 were lost to criminals after the police in Mt Hagen had locked him and other tenants out of the premises he was operating out off. As a result of that he says, he is not able to meet the requirements for him to produce and submit to the Law Society, his trust accounts' audit report (audit report). But this fact was not made known to the Law Society, either before or at the time of making his application. He is not arguing specifically in any way that the Law Society was wrong in refusing to grant him an Unrestricted or a Restricted Practicing Certificate. His main argument without pointing to any specific provision of the Lawyers (Trust Account) Regulation 1990, (LTAR) or any other law, is that this Court has a discretion to grant the orders he seeks and asks this Court to grant him those orders.

The Law Society is opposing the application saying there is no truth in what Mr Bonggere is claiming. It also argues that the requirements for the production of an audit report is an important requirement as a matter of law, which has an important public policy consideration. As such, it can not be readily dispensed with except in exceptional circumstances. It also argues that Mr Bonggere has not made out a case for a waiver of the requirements for the provision of an audit report.

Issues

These arguments present a number of issues for determination. These are:

1. Is the claim by Mr Bonggere that police locked him out of his office and his records were eventually lost to vandals credible, and if so, is it of any consequence to his application?

2. Whether there is any discretion in this Court to waive the requirements for the provision of an audit report under the Lawyers (Trust Account) Regulation 1990, and if so, in what circumstances can the Court exercise that dissection in favour of an application for a waiver?

3. Subject to the answers to the above questions, has Mr Bonggere made out a case for a waiver of the requirements for an audit report and the orders he seeks?

I will deal with these questions in the order in which they appear. But before getting into that, I will first deal with the relevant facts.

The relevant facts

The relevant facts from which the arguments and the issues arise are straightforward and not much in issue. They emerge from the following affidavits:

1. Affidavit of Toby Bonggere sworn 7th and file 8th January 2003;

2. Affidavit of Toby Bonggere sworn and filed 28th February 2003;

3. Affidavit of Ere Kariko sworn 3rd and filed on 6th March 2003;

4. Affidavit of Toby Bonggere sworn 11th and file 13th March 2003;

5. Affidavit of Koim Kip sworn 11th and file 13th March 2003;

6. Affidavit of John Coonmer sworn 11th and file 13th March 2003;

Through his affidavits, Mr Bonggere says he has been practicing as a sole practicing lawyer since 1984 under the name Bonggere & Co. Lawyers. In 1994, he moved his practice from Kundiawa in the Simbu Province to Mt Hagen in the Western Highlands Province and established his practice at a building called the YMCA building.

In the beginning of 1997, he was attending to a matter in the National Court in Lae, when the police in Mt Hagen, acting on an order of the National Court in Mt Hagen, locked up the YMCA building, resulting in a lockout of all of its tenants. The tenants were not given any opportunity to take their belongings at any stage. The building is still locked up even to this day but in a deteriorated condition due to vandalism.

He claims to have spoken to the police, without specifying the date, time, place and the name of the policeman he has spoken to about his desire to get his records. He goes on to claim that the police did not allow him to do so. That has resulted in a complete lost of all his records and other things. He has neither made any formal requests to the police, nor has he lodged any complaints with the police on the vandalism. He has not even made any application to the Court for appropriate orders.

Sometime in 1997, Mr Bonggere applied for a renewal of his Unrestricted Practicing Certificate. For the purpose of his application, he was requested to provide an audit report for the period ending February 1998. He therefore, sought and secured the services of three different accountants, Bob Tepra, Gigmai Towa and Thomas Serowa to do the report. The fourth one, Tengdui & Associates refused because Mr Bonggere was not able to provide his relevant accounts records.

Mr Bonggere says the Law Society rejected the audit reports by Bob Tepra and Gigmai Towa because they were not registered with the Accountants Registration Board. The report by Thomas Serowa was prepared without examining his records and the report did indicate that position. The Law Society refused to grant a renewal of his Unrestricted Practicing Certificate or even issue him with a Restricted Practicing Certificate because the Law Society was of the view that, the audit report disclosed gross mismanagement, as he was not able to provide his records to the auditor.

Following the refusal to renew his Unrestricted...