Canisius Karingu v Papua New Guinea Law Society (2009) N3688

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 19 June 2009
• Citation: (2009) N3688
• Docket Number: OS NO 228 of 2009
• Court: National Court
• Year: 2009
• Judgement Number: N3688

Full Title: OS NO 228 of 2009; Canisius Karingu v Papua New Guinea Law Society (2009) N3688

National Court: Cannings J

Judgment Delivered: 19 June 2009

N3688

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO 228 OF 2009

CANISIUS KARINGU

Plaintiff

V

PAPUA NEW GUINEA LAW SOCIETY

Defendant

Waigani: Cannings J

2009: 12, 17, 19 June

PRACTICE AND PROCEDURE – motion to dismiss proceedings for failure to disclose reasonable cause of action, being an abuse of process – National Court Rules, Order 12, Rule 40(1).

LAWYERS – application for order directing Law Society to issue practising certificate pending review of decision of Council of Law Society – Lawyers Act, Sections 45(3) and (1)(b).

The plaintiff applied to the National Court under Section 45(1) of the Lawyers Act for review of the decision of the Council of the Law Society to refuse his application for a practising certificate. While that review was pending two motions were filed. One by the Law Society under Order 12, Rule 40(1) of the National Court Rules seeking dismissal of the review for failure to disclose a reasonable cause of action and being an abuse of process. The other by the plaintiff under Sections 45(3) and (1)(b) of the Lawyers Act seeking an order, pending the review, directing the Law Society to issue him a practising certificate.

Held:

(1) As to the defendant’s motion: a reasonable cause of action has been disclosed and no abuse of process has been proven. The motion for dismissal was consequently refused.

(2) As to the plaintiff’s motion, an arguable case in support of the application was made out but the balance of convenience and the interests of justice do not warrant the granting of the interim relief sought.

(3) Both motions were dismissed, with the parties bearing their own costs.

Cases cited

The following cases are cited in the judgment:

Application by Karingu (2006) N3098

Ewasse Landowners Association Inc v Hargy Oil Palms Ltd (2005) N2878

Karingu v Papua New Guinea Law Society OS 162 of 1996, 23.04.99

Karingu v Papua New Guinea Law Society SCA 69 of 1996, 30.10.97

Saga v Kua and Papua New Guinea Law Society SCA 127 of 2005, 29.08.08

Telikom PNG Ltd & ICCC v Digicel (PNG) Ltd (2008) SC906

Thompson v Karingu (2008) SC954

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

Counsel

C Karingu, the plaintiff, in person

D Wood, for the defendant

19 June, 2009

1. CANNINGS J: The plaintiff, Canisius Karingu, applied to the defendant, the Papua New Guinea Law Society, for an unrestricted practising certificate. His application was refused on 16 April 2009.

2. On 1 May 2009, he applied to the National Court for a review under Section 45(1) of the Lawyers Act of the decision of the Council of the Law Society to refuse his application. He did that by filing an originating summons. The substantive review, which is the subject of the originating summons, has not yet been heard.

SECTION 45 OF THE LAWYERS ACT

3. Section 45 (review of Council’s decision) states:

(1) An applicant, who is refused an application for a practising certificate, may apply to the Court for—

(a) a review of the decision by the Council to refuse his application; and

(b) an order directing the Society to issue to him a practising certificate on such terms as the Court thinks fit pending the review by the Court.

(2) The Court, on an application under Subsection (1), shall review the application to the Society for a practising certificate and may—

(a) uphold the decision of the Society to refuse the application; or

(b) order that the application be granted.

(3) The National Court may, pending a review under Subsection (1)(a), grant an order under Subsection (1)(b).

(4) The Society shall comply with and give effect to an order under—

(a) Subsection (2)(b); or

(b) Subsection (3).

TWO MOTIONS

4. While the review under Section 45(1) is pending, the parties have filed two motions.

5. On the one hand, Mr Karingu moves the court for an order directing the Law Society to issue him a practising certificate, pending the review. That order is sought under Sections 45(3) and (1)(b) of the Lawyers Act. The amended notice of motion to be ruled on was filed on 11 May 2009.

6. On the other hand, the Law Society moves the court for an order that the proceedings be struck out and dismissed. That order is sought under Order 8, Rule 27(1) and Order 12, Rule 40(1) of the National Court Rules. The relevant notice of motion was filed on 11 June 2009.

7. I will deal with the motions in reverse order, so the issues are:

1. Should the proceedings be struck out or dismissed?

2. If not, should the Court make an order directing the Law Society to issue Mr Karingu a practising certificate pending the review?

1 SHOULD THE PROCEEDINGS BE STRUCK OUT OR DISMISSED?

8. The proceedings cannot be struck out under Order 8, Rule 27(1) as that rule, being in Division 8.1 of the National Court Rules, only applies to proceedings commenced by writ of summons.

9. The proceedings can, however, be dismissed under Order 12, Rule 40(1) as that rule applies to proceedings commenced by originating summons.

10. Order 12, Rule 40(1) (frivolity etc) states:

Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) no reasonable cause of action is disclosed; or

(b) the proceedings are frivolous or vexatious; or

(c) the proceedings are an abuse of the process of the Court,

the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

11. The Law Society relies on Rules 40(1)(a) and 40(1)(c). They say that the originating summons (which was amended on 11 May 2009):

· discloses no reasonable cause of action; and

· is an abuse of process.

No reasonable cause of action

12. Mr Wood submits that a review under Section 45(1) is not a judicial review under Order 16 of the National Court Rules. It is properly regarded as an appeal. Therefore Mr Karingu was obliged to follow the Appeal Rules 2005. He had to commence the proceedings by a notice of appeal, which should have set out the grounds of relief. He did not do that. He simply filed an originating summons, which set out the relief that he was seeking but not any grounds on which he was seeking relief. He has failed to comply with the Rules and as a consequence his originating summons fails to disclose any reasonable cause of action.

13. I agree with Mr Wood’s first proposition: an application for review of the refusal to issue a practising certificate is not an Order 16 judicial review. It is more akin to an appeal (Karingu v Papua New Guinea Law Society SCA 69 of 1996, 30.10.97; Saga v Kua and Papua New Guinea Law Society SCA 127 of 2005, 29.08.08; Toby Bonggere v Papua New Guinea Law Society (2003) N2361).

14. However, it does not follow from that, necessarily, that the Appeals Rules 2005 applied. The Lawyers Act draws a distinction between appeals and reviews, eg Section 58 confers a right of appeal against a decision of the Lawyers Statutory Committee. The fact that different terminology is used creates a presumption that there is a difference in form and procedure between a review and an appeal; and this gives rise to doubt whether it is necessary to make an application for review under Section 45 under the Appeals Rules, using a notice of appeal.

15. It was sufficient for Mr. Karingu to make his application using an originating summons. He complied with Order 4, Rule 3 of the National Court Rules. The originating summons was in a proper form and though perhaps desirable it was not necessary for him to set out the grounds on which he was seeking relief. There was no failure to disclose a reasonable cause of action. So I reject the first argument.

Abuse of process

16. The Law Society argues that the application under Section 45 is an abuse of process in two respects:

· the application offends against an order of the National Court made in previous proceedings, which prohibits Mr Karingu bringing proceedings for issuance of a practising certificate;

· Mr Karingu does not satisfy the requirements of Section 41(1) of the Lawyers Act.

Previous National Court order

17. The order in question was made by Kandakasi J on 3 August 2006 in OS 392 of 2006:

The plaintiff [Mr Karingu] shall bring no further proceedings for a practising certificate to be issued to him pending the determination of CIA No 291 of 2002, CIA No 292 of 2003 and OS No 358 of 2004.

18. OS 358 of 2004 has already been determined but the other two proceedings have not. They are appeals by Mr Karingu against the decisions of the Lawyers Statutory Committee in May 2002 ordering that his name be removed from the Roll of Lawyers. No order has been made setting aside, quashing or staying Kandakasi J’s order. On the face of the order it seems to prohibit the application under Section 45 that is the subject of the present originating summons. However, there has been a significant development since then. On 24 April 2007, in proceedings commenced by the Lawyers Statutory Committee, Los J ordered that Mr Karingu be issued with a practising certificate and that he be allowed to practise as a lawyer (Thompson v Karingu, OS 798 of 2006, 24.04.07).

19. Mr Karingu submits that Los J’s...