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

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 21 March 2003
• Court: National Court
• Citation: [2003] PNGLR 367
• Year: 2003
• Judgement Number: N2361

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 1996 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 1996, 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) N1842, Pwesei Benson Lomai v Papua New Guinea Law Society (1998) N1854 and Blackburn v Flavelle (1881) 6 App Cas 628 referred to

___________________________

N2361

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS. NO. 25 Of 2003

TOBY BONGGERE

Applicant

AND:

PAPUA NEW GUINEA LAW SOCIETY

Defendant

GOROKA: KANDAKASI, J.

2003: 14th & 21st March

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 – ss.35 to 47 Lawyers Act 1996 & ss.1, 3 to 10, 12 & 14 Lawyer’s (Trust Account) Regulations 1990.

LAWYERS – Lawyers duty bound to have readily available the Lawyers Act 1996, The Professional Conduct Rules and the Lawyers (Trust Account) Regulations as the necessary tools of their trade – A failure to have is inexcusable and could amount to a breach of the Professional Conduct Rules and could provide the foundation for a conclusion that the lawyer may have acted contrary to requirements of the law.

PRACTICE & PROCEDURE – A plaintiff 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.

LAWYERS - PRACTICE & PROCEDURE - Lawyers (Trust Account) Regulations 1990 - Application for waiver of the requirements under the Regulations – 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.

STATUTORY INTERPRETATION - Lawyers (Trust Account) Regulations 1990 – Regulations are intended to protect clients from unscrupulous lawyers and to make lawyers accountable – The requirements of the regulations are important and can not 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 – ss. 1, 3 to 10, 12, & 14 Lawyers (Trust Account) Regulations 1990.

Papua New Guinea Cases Cited:

The State v Cosmos Kutau Kitawal (No 1) (unreported judgement delivered 15/05/02) N2266.

Bank of Hawaii (PNG) Ltd v. Papua New Guinea Banking Corporation & Ors (unreported judgement delivered 08/06/01) N2095.

Danley Tindiwi & Ors v. John Nilkare & The State [1984] PNGLR 191.

Re Moresby North East Parliamentary Election (No.1): Goasa Damena v. Patterson Lowa [1977] PNGLR 424.

SCR No. 1 of 1982: Re Philip Bouraga [1982] PNGLR 178.

Peter Aigilo v Sir Mekere Morauta Prime Minister and Minister for Treasury Chairman of National Executive Council & Ors (No 1) (unreported judgement delivered 03/08/01) N2103.

Karingu v. Papua New Guinea Law Society (unreported and unnumbered judgement) SCA 69 of 1996.

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 (unreported judgement delivered 19/07/96) N1467.

Canisius Karingu v. Papua New Guinea Law Society (unreported judgement delivered 23/04/99) N1842.

Pwesei Benson Lomai v. Papua New Guinea Law Society (unreported judgement delivered on 04/12/98) N1854.

Overseas Cases:

Blackburn v. Flavelle (1881) 6 App.Cas. 628.

Texts Cited:

Craies on Statute Law, 7th ed., pp. 259-260.

Counsel:

Mr. T. Bonggere in Person.

Mr. M. Mukwesipu for the Defendant.

21st March 2003

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 28th 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 28th 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) Regulations 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...