In re Application by Tevita Akamini Vakalalabure [2002] FJHC 91; HBM0016D.2002S (18 October 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

MISCELLANEOUS ACTION NO. HBM0016 OF 2002

IN THE MATTER of the Legal Practitioners Act 1997

IN THE MATTER of the Barristers and Solicitors (Admission) Rules 2000

AND IN THE MATTER of an Application for admission as a Barrister and Solicitor by TEVITA AKAMINI VAKALALABURE

Mr. K. Vuataki, Mr. V. Naidu & Mr. R. Vakalalabure for the Petitioner
Mr. G.O’ Driscoll for the Fiji Law Society

REASONS FOR DECISION

On 14^th October the petition in this matter was granted for reasons which I now provide.

This is an application by way of petition under the Legal Practitioners Act 1997 ('the Act’ ) seeking admission as a barrister and solicitor in Fiji. The petition and supporting affidavit were filed in the High Court on 5^th April, 2002 and duly served on the Fiji Law Society ('the Society’ ) on 25^th April. The petition was also advertised in a local newspaper and was fixed for hearing on 26^th July 2002.

By letter dated 23^rd May 2002 the Society advised the Chief Registrar that it '...... has no objection to the Petition for Admission of Tevita Akamini Vakalalabure’ ( the 'no objection’ letter ). A month later the Society withdrew its 'no objection’ letter on the basis that '(it) has other views on the matter’ and promised '...... a further submission will be made on this Petition very soon’.

A further month elapsed and three (3) days before the hearing date of the petition the Society wrote advising that Ms. Tanya Waqanika would be appearing 'and she will be opposing the Petition for Admission of Mr. Tevita Vakalalabure’ ( the 'opposition’ letter ). No basis or grounds of opposition are set out in the letter. However on the same day the then Secretary of the Society Mr. Isaac Peter filed an affidavit in opposition to the petition. In it he refers inter alia to correspondence between the Society and the Dean of the University of the South Pacific Law School in Vanuatu where the petitioner was a former student, and with the Office of the Director of Public Prosecutions, and he deposes to his personal belief that '(the petitioner) is not a person of good character and is not a fit and proper person to be admitted to the bar’.

In reply the petitioner, a former employer, and a long time student counsellor at the University of the South Pacific filed affidavits, with the latter two affiants deposing to their contrary personal belief in the petitioner’s 'good character’ and fitness for admission.

On 6^th September 2002 the present Secretary of the Society Mrs. A. Seru filed a supplementary affidavit annexing further correspondence received from the Office of the Director of Public Prosecutions relating to a pending criminal case against the petitioner, and from the Dean of the University of the South Pacific Law School detailing disciplinary proceedings that had been taken against the petitioner whilst he was a student in the Law School.

It is noteworthy that in neither of the Society’s affidavits was any attempt made to explain why? the information disclosed in the affidavits was not available when it wrote the 'no objection’ letter nor, has any attempt been made to disclose when? and how? the information first came to the knowledge of the Society and whether or not? the Society had availed itself of the opportunity to enquire into the petitioner’s 'character qualification and experience’ as it was entitled to do.

Be that as it may the petition was mentioned on 12^th September 2002 and after counsel for the petitioner withdrew a preliminary objection, Ms. G. Phillips who appeared with the present Secretary of the Society confirmed that the hearing of the petition would require 2 days and further, that the ground of objecting to the petition was that the petitioner was 'not a fit and proper person’ to be admitted to practice solely on the basis that there were serious criminal charges pending against the petitioner before the Savusavu Magistrates Court that remained undisposed. The petition was then fixed for hearing in open court on the 14^th and 15^th October.

On 14^th October counsel appearing for the Society opened its case for showing cause against the grant of the petition by referring to the basic qualification in Section 35 of the Act that a petitioner for admission as a legal practitioner be 'a fit and proper person’. Counsel then proceeded to formulate in some detail the Society’s ground(s) of objection. These were that the petitioner had failed to make a full and frank disclosure in his petition for admission, of the serious criminal charges pending against him and of the disciplinary proceedings that had been taken against him in his law student days.

These omissions and the information uncovered, counsel suggested, were clear indicia of the petitioner’s personal character sufficient to render him 'unfit’ for admission as a legal practitioner. Thereafter counsel indicated that the Society desired to call two (2) police officers to testify.

Not unnaturally, Counsel for the petitioner vigorously objected to the turn of events. In the first place counsel complained that he was unaware, up till then, of the exact nature of the Society’s ground(s) of objection (which had changed) because of the absence of any prior written notice and further, the Society’s proposed witnesses had not previously deposed any affidavit(s) nor had the nature of their evidence been disclosed in advance and in fairness to the petitioner so as to enable full and proper instructions and enquiries to be undertaken prior to the hearing of the petition.

In response Counsel for the Society pointed out that the present proceedings were civil in nature (whatever that may mean) and, in any event, the Court could always allow a brief adjournment to Counsel to take instructions. In so far as a written 'notice of objection’ is concerned, Counsel frankly admitted that none had been filed in Court and Counsel sought a brief adjournment to regularise the matter.

The adjournment application was vigorously opposed by Counsel for the petitioner who submitted that the Court should proceed with the hearing of the petition which had been delayed long enough and the fixture had been specially fixed a month earlier with the agreement of the Society’s then Counsel and Secretary.

It is a serious matter to deny any person the opportunity to earn a living by practising his chosen profession. As was said by Cooke J. (as he then was) in Harder v. Auckland Law Society (1983) N.Z.L.R. 15 at p.17:

'...... the right to follow a vocation for which a person is qualified is very valuable. Any claim by a vocational body ...... to exclude a qualified person on character grounds needs at the present day plain legal justification. The Court has to scrutinize such a claim with particular care.’

In the present case the petition for admission as a legal practitioner was lodged in April 2002 and was originally approved by the Society which later changed its mind and opposed it as it is entitled to do. The right of the Society to unilaterally change its mind however, is not so clearly established given its ability to make such enquiries as it deems necessary into the petitioner’s 'character, qualification and experience’ [see: Section 36(2)] after receipt of the application for admission.

Be that as it may Section 37(1) of the Act provides that the Society 'shall be entitled to show cause why an application for admission should not be granted’ and subsection (2) provides that:

'The objection shall be filed in Court and a copy delivered to the applicant (and) Any person objecting who has complied with this Section and the rules made pursuant to this Part shall be entitled to appear on the hearing of the petition.’

In this latter regard Rule 8 of the Legal Practitioners (Admission) Rules 2000 states (so far as relevant):

'(1) If ...... the Society wishes to show cause why a petition should not be granted, ......, the secretary of the Society may file, in the matter of the petition, a notice of objection setting out the grounds of the objection and must send a copy of the notice to the petitioner.

(2) If an objection is filed under sub-rule (1), ...... the Society, ...... is entitled to appear on the hearing of the petition.’

It is sufficiently clear from the foregoing that the filing in Court of a 'notice of objection’ and the service of the same on the petitioner is a necessary pre-requisite for anyone wishing to show cause against the grant of a petition for admission as a legal practitioner. It also confers the necessary 'locus standi’ for the objector to appear at the hearing of the petition.

Needless to say in the absence of a proper 'notice of objection’ a petitioner would be unaware of the precise ground(s) on which objection is being taken to his admission and would be seriously prejudiced in preparing any answer(s) to the objection. What's more the objector would lack the necessary standing to appear at the hearing of the petition.

I accept that the wording of Rule 8 appears to be directory as to the filing of a 'notice of objection’ by the Society but that cannot be used to read down the mandatory requirements of Section 37(2) of the Act which are paramount and plainly based on fundamental fairness and good sense.

Having said that I am mindful of the absence of a time limit in the Rule within which a 'notice of objection’ by the Society must be filed in Court but there can be no denying that such an event, if it is to serve any useful purpose, must occur well before the actual hearing of the petition in order to enable the petitioner to prepare a response and entitle an objector to appear at the hearing.

The Society’s application for a short adjournment to file a written 'notice of objection’ was refused and in the absence of the requisite 'notice of objection’ the Society lacked the necessary 'locus standi’ to appear at the hearing of the petition which was accordingly granted.

That is sufficient to dispose of this matter, however, in deference to Counsel for the Society who was taken somewhat unawares, I propose to make some brief observations on the ground(s) of objection raised against the grant of the petition.

In my considered view the mere existence of pending criminal charges against the petitioner without more is not a sufficient reason to refuse the grant of his petition for admission as a legal practitioner.

In the petitioner’s case the criminal offences with which he is presently charged although described by the Society’s previous Counsel as 'serious and not ordinary’ are nevertheless misdemeanours. Additionally, Section 28(1)(a) of the Bill of Rights presumes that a person charged with an offence is 'innocent until proven guilty according to law’. In the face of such a legal presumption imposed by 'the supreme law of the State’ it is, with respect, naive to summarily dismiss it as 'irrelevant for present purposes’.

Furthermore non-disclosure of a petitioner’s past or even present misdeeds is not a requirement of the Act or the Rules made thereunder or in the prescribed form of petition and verifying affidavit, and, given the wide inquisitorial powers of the Society I am disinclined to treat a petition under the Act as a document which imposes on a petitioner a positive duty of 'uberrima fides’. A ground of objection based on such an assumption without more is therefore, at best, of doubtful merit.

As for the petitioner’s past indiscretions during his university days, without necessarily alluding to the particular charges or to the procedural irregularities that are alleged to have occurred in the disciplinary proceedings undertaken at the relevant time, suffice it to say that they were not considered sufficiently serious by either the University of the South Pacific or the Board of Legal Education to call for the permanent expulsion of the petitioner from the university or to justify a refusal to award him the necessary law degree and completion certificate under Section 35(b) of the Legal Practitioners Act 1997.

Additionally Section 20 of the Penal Code (Cap. 17) provides that 'a person cannot be punished twice ...... under the provisions of any other law for the same act or omission ......’ unless the act or omission subsequently causes death. In the petitioner’s case he has been punished for his past indiscretions and to resurrect them again so as to deny him admission as a legal practitioner is, in my humble opinion, impermissibly to cause the petitioner '...... to be punished twice’.

In so far as both matters may be said to be indicative of the petitioner’s general character, I accept that the petitioner has had a somewhat violent past aided to some degree by the consumption of alcohol but all that needs to be said about that is: 'people can and do change!’

(D.V. Fatiaki)
Chief Justice

At Suva,
18^th October, 2002.