According to current National Court decisions, overseas “barrister or solicitor” can come in and appear in the National and Supreme Courts WITHOUT admission to the bar and a current practising certificate.
Overseas barristers and solicitors brought in by law firms or clients in the country only have to apply for and obtain the Attorney General’s Certificate of Authorisation issued under section 15[1] of the Attorney General Act 1989.
In National Capital District Commission v Internal Revenue Commission [2021] PGNC 277; N9142 (20 September 2021), in response to an application by the Central Provincial Government (“CPG”) to remove overseas counsel (acting for NCDC) from appearing in Court on the ground that overseas counsel had not obtained the AG’s certificate, His Honour Anis J. ruled that section 15 applied only to overseas “barristers or solicitors”, but not to “lawyers” as defined in PNG Law.
The Court held that since the word “lawyer” is defined in the Lawyers Act as a “person who has been admitted to practice as a lawyer under this Act”. Therefore Section 15 applies to a barrister or lawyer who is practising overseas ONLY, and not to overseas lawyers who are also practising in Papua New Guinea.
Thus, “lawyers” are those legal practitioners who have been (1) admitted to the Bar in PNG and (2) have a current practising certificate. Section 15 does not apply to those overseas barristers and solicitors who have NOT been admitted and do not possess a practising certificate.
The Court in OS 11 of 2021 extensively quoted Downer Construction Ltd v. Allan Marat et al in which His Honour Sevua J. expressed opinions about Section 15 of the AG Act. In that case, the Applicant sought Judicial Review of the AG’s refusal to grant a Section 15 certificate to overseas counsel (who was admitted to practice in PNG). His Honour Sevua J opined that Section 15 could not be held to apply to lawyers who have been admitted to practice in PNG. Curiously, whilst expressing those opinions, His Honour did not declare that Section 15 did not apply in that case, but made formal orders that the then-Attorney General grant the Section 15 approval to the overseas counsel for the applicant.
The OS 11/2021 and Downer case could effectively create TWO pathways for overseas lawyers, barristers and solicitors, to appear in the National and Supreme Courts: The first is by Admission and Certification under the Lawyers Act. This applies to both lawyers in PNG and lawyers overseas. The second method is by AG authorisation under Section 15 of the Attorney General Act 1989.
In OS 11/2021, CPG’s motion and submission argued that Section 15 of the AG Act was complimentary to the Lawyers Act. In fact this is the express provision of subsection (6) of of s. 15 of the AG Act which states:
“(6) The provisions of this section are in addition to, and not in derogation of, the requirements of the Lawyers Act 1986.”
CPG argued that Section 15 is a mandatory requirement for overseas based barristers or solicitors, including “lawyers” admitted to practice in PNG and who possess a current practising certificate. In reading the Lawyers Act and the AG Act s. 15 together, it was argued that the proper construction of s. 15 provides that the aggregate qualifications for an overseas-based lawyer to appear in the PNG National and Supreme Courts are:
(a) Admitted to Bar and has signed the Roll (Lawyers Act)
(b) Possesses Unrestricted Practising Certificate (Lawyers Act)
(c) Possesses AG Certificate to Appear (Attorney General Act)
However, the Court’s ruling effectively means (c) can stand alone and apart from (a) and (b). Whilst overseas-based lawyers, barristers and solicitors have two pathways to practice in PNG, PNG lawyers have only one pathway for practice in PNG, that is by way of the Lawyers Act.
It would effectively mean that, contrary to the express provision of subsection (6), Section 15 is NOT in addition to the requirements of the Lawyers Act, but a Stand-alone admission requirement for overseas “barristers” and “solicitors”.
CPG chose not to appeal the ruling to the Supreme Court as it would not have served its purpose in defending against the substantive claim in OS 11 of 2021.
In light of the Downer case not declaring that AG Section 15 did not apply to overseas counsel who are admitted to practise in PNG, and OS 11/2021 being a ruling on interlocutory motion rather than a substantive ruling and declaration, and further that the Supreme Court has not yet had the opportunity to rule on the question, it remains open to parties in existing and future cases to raise the question before either the Supreme and National Court.
Ganjiki D. Wayne, LLB, LLM
[1] 15. EMPLOYMENT OF BARRISTERS, ETC., PRACTISING OUTSIDE THE COUNTRY.
(1) The Attorney-General may, in his discretion, issue to a barrister or solicitor who–
(a) is a non-citizen; and
(b) ordinarily practises as a barrister or solicitor outside the country; and
(c) is not ordinarily resident in the country,
a certificate in the prescribed form authorizing that barrister or solicitor to appear in a case before the National or Supreme Court.
(a) is a non-citizen; and
(b) ordinarily practises as a barrister or solicitor outside the country; and
(c) is not ordinarily resident in the country,
is not entitled to appear before the National or Supreme Court in any case without a certificate under Subsection (1).
(3) An application for a certificate under Subsection (1) shall be made by the lawyer proposing to instruct the barrister or solicitor in respect of whom the application is made and shall be accompanied by–
(a) evidence that the barrister or solicitor has obtained a work permit under the Employment of Non-citizens Act 1978; and
(b) evidence of the qualifications and experience of the barrister or solicitor; and
(c) a certificate to the effect that there is no lawyer who–
(i) is a citizen; or
(ii) is normally resident in the country,
available and competent to appear in the case; and
(d) such other information as the Attorney-General may require.
(4) In determining whether or not to grant a certificate under Subsection (1), the Attorney-General shall have regard to–
(a) the academic and practise qualifications of the barrister or solicitor; and
(b) the degree of difficulty of any legal issues which might reasonably be expected to arise in the matter in which it is proposed to instruct the barrister or solicitor to appear; and
(c) whether the matter is one in which, in the opinion of the Attorney-General, a competent lawyer practising within the country could be expected to appear; and
(d) any other relevant matter.
(5) A certificate under Subsection (1) authorizes the barrister or solicitor named in the certificate to appear in all applications, interlocutory or final, in the case specified in the certificate.
(6) The provisions of this section are in addition to, and not in derogation of, the requirements of the Lawyers Act 1986.
