PNG Law Society v David Rickey Cooper

• Jurisdiction: Papua New Guinea
• Judge: Injia CJ, David and Collier JJ
• Judgment Date: 05 May 2017
• Citation: (2017) SC1585
• Court: Supreme Court
• Year: 2017
• Judgement Number: SC1585

Full : SCA 102 of 2016; Papua New Guinea Law Society v David Rickey Cooper (2017) SC1585

Supreme Court: Injia CJ, David and Collier JJ

Judgment Delivered: 5 May 2017

SC1585

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 102 OF 2016

BETWEEN:

PAPUA NEW GUINEA LAW SOCIETY

Appellant

AND:

DAVID RICKEY COOPER

Respondent

Waigani: Injia CJ, David and Collier JJ

2017: 24th April, 5th May

LAWYERS ACT- Application for Unrestricted Practicing Certificate (UPC) made 3 years after Restricted Practicing Certificate (RPC) expired - Application made before Council of the Law Society - Whether application is for "renewal" or a fresh application - Relevant considerations for new applications vis-a-vis renewal application- Meaning of "renewal application"- Lawyers Act 1986, ss 39, 40, 41, 44 (1), (2) & (3)

SUPREME COURT- Inherent powers - To determine appeal on an important point of law considered and determined by the trial judge, but not expressly challenged in the grounds of appeal- Point underlies the errors set out in the grounds of appeal - Parties given opportunity to argue point in the appeal - Appeal allowed on that point of law - Constitution, s 155 (4).

Cases cited:

Papua New Guinea Cases

Amaiu v Papua New Guinea Law Society [2014] N5882

Bonggere v Papua New Guinea Law Society [2003] N2361

Dirua v Papua New Guinea Law Society [1996] N1467

Kakaraya v National Parliament [2004] SC756

Karingu v Papua New Guinea Law Society (SCA 69 of 1996, 30 October 1997

Karingu v Papua New Guinea Law Society [1999] PNGLR 83

Karingu, Enforcement of Rights Pursuant Constitution S57 [1988-89] PNGLR 276

Lomai v PNG Law Society [1998] N1854

PNG Power Ltd v Gura [2014] SC1402

Pruaitch v Manek [2010] SC1052

Papua New Guinea Law Society v Saga [2006] N3095

Ralai v Yama [2008] SC1029

Overseas Cases

Christian Youth Camps v Cobaw Community Health Services Ltd (2014) 308 ALR 615

Crampton v R (2000) 206 CLR 161

Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106

Hearn v Street (2008) 235 CLR 125

House v The King [1936] 55 CLR 499

Julius v. Lord Bishop of Oxford (1880) 5 App Cas 214

Roberts v Bass (2002) 212 CLR 1

Ward v. Williams (1955) 92 CLR 496

Counsel

I Molloy, for the Appellant

David Ricky Cooper, with B Frizzel, for the respondent

JUDGEMENT

5th May, 2017

1. BY THE COURT: This is an appeal from a decision of the National Court of 27th May 2016 where the Judge made the following orders:

· Court quashed the decision of the defendant made 26 January, 2016 refusing the plaintiff’s application for an unrestricted practicing certificate for 2016.

· The defendant issue that certificate to the plaintiff.

· Costs in relation to this application are ordered in favour of the plaintiff.

2. The proceedings have important ramifications extending beyond the interests of the parties. In particular, the appeal raises matters relevant to the powers of the Papua New Guinea Law Society (“the Law Society”) to issue practising certificates to legal practitioners under the Lawyers Act 1986, both by way of grant of application and renewal.

Background evidence and facts

3. Before turning to the grounds of appeal and the issues for decision, it is appropriate to explain the background facts.

4. The respondent, Mr David Cooper, is a Brisbane-based barrister. He was admitted to practice in Queensland in 1986 and was appointed a Queens Counsel in 1998. Mr Cooper practiced in Papua New Guinea following his admission. Until the end of 2007 he held an unrestricted practicing certificate in Papua New Guinea under the Lawyers Act 1986.

5. The Lawyers Act 1986 vests the Council of the Law Society with the power to issue practicing certificates to lawyers in accordance with provisions of that Act. Specifically, section 39 of the Lawyers Act 1986 states :

39. PRACTISING CERTIFICATES.

(1) The Council may, on behalf of the Society, in accordance with the provisions of this Act, issue to a lawyer who has signed the Roll a practising certificate which shall be–

(a) an unrestricted practising certificate; or

(b) a restricted practising certificate.

(2) A practising certificate issued under Subsection (1)(a) or (b)–

(a) shall be in the form prescribed in the Rules; and

(b) shall be issued for a period not exceeding one year; and

(c) shall expire on 31 December in the year in which it was issued.

(3) An unrestricted practising certificate issued under Subsection (1)(a) entitles the holder to practise as a lawyer in any manner allowed under this Act.

(4) A restricted practising certificate issued under Subsection (1)(b) entitles the holder to practise as a lawyer, but not–

(a) on his own account; or

(b) in partnership with another lawyer; or

(c) hold moneys in trust for another person who is a client.

6. Sections 40 and 41 of the Lawyers Act 1986 distinguish, and make specific provision in respect of, “unrestricted practising certificates” and “restricted practising certificates”. These sections provide:

40. RESTRICTED PRACTISING CERTIFICATE.

A lawyer who–

(a) has signed the Roll; and

(b) is a citizen or resident of Papua New Guinea,

may be issued with a restricted practising certificate.

41.UNRESTRICTED PRACTISING CERTIFICATE.

(1) A lawyer may be issued with an unrestricted practising certificate if–

(a) he–

(i) is the holder of, or is entitled to hold, a restricted practising certificate; and

(ii) has been employed exclusively as a lawyer for–

(A) not less than two years from the date of his admission to practise; or

(B) not less than two years in the five years preceding the date of his application for an unrestricted practising certificate,

by a lawyer, who during the period of employment was the holder of an unrestricted practising certificate; or

(b) he–

(i) has practised exclusively as a lawyer within a class of lawyers prescribed in the Rules for the purpose for a period of not less than two years in the period of five years immediately prior to his application for an unrestricted practising certificate; and

(ii) satisfies the Society that he has obtained experience in the practice of law at least equivalent to that gained by an applicant under Subparagraph (a)(ii); or

(c) he–

(i) has been admitted to practise law for a period of not less than three years following his admission to practise in such countries as are prescribed by the Rules; and

(ii) has practised with a restricted practising certificate in Papua New Guinea for a period of not less than three months immediately prior to his application for an unrestricted practising certificate; or

(d) he satisfies the Society that he has obtained experience in the practise of law, which, in the opinion of the Society, is at least equivalent to that gained by an applicant under Subparagraph (a)(ii); or

(e) he has been carrying on practice exclusively as a barrister in a country prescribed by the Rules of Court for a period of not less than five years preceding his application for an unrestricted practising certificate.

(2) For the purposes of Subsection (1)(e), “barrister” means a person who is a member of the bar in a country prescribed by the Rules of Court.

(3) Sections 39(2) and 42(2)(b) apply to an unrestricted practising certificate under Subsection (1)(e).

7. In each of the calendar years 2008, 2009, 2010 and 2011, Mr Cooper applied to the Law Society for, and was issued, a restricted practising certificate. Applications for restricted practising certificates are in Form PCA1, being the form prescribed by the Papua New Guinea Law Society Practising Certificate Rules 1990. The form requires completion of personal and professional information. The 2014 version of the form, which is materially the same as the years 2008, 2009, 2010 and 2011, is as follows :

Papua New Guinea Law Society Practising Certificate Rules 1990

FORM PCA1

Rule, Sec. 2(1)(a).

APPLICATION FOR RESTRICTED PRACTISING CERTIFICATE FOR 2014

TO: The Secretary

PNG Law Society

P. O. Box 2004

PORT MORESBY, National Capital District

Dr M r Mrs Ms

NAME: ........................................................................................................

(Surname) (Other Names)

Address: Business ............................................ Phone: ................................

............................................. Fax: .................................

............................................. E-mail .................................

Home .............................................. Phone: .................................

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