State v Arbitration Tribunal, ex parte PAFCO Employees' Union [2003] FJHC 315; HBJ0020r.2002S (6 August 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0020 OF 2002

Between:

THE STATE

v.

THE ARBITRATION TRIBUNAL
PACIFIC FISHING COMPANY LIMITED
Respondents

and

Ex parte:

PAFCO EMPLOYEES’ UNION
Applicants

Mr. T. Tokalauvere for the Applicants
Mr. E. Tuiloma for the 1st Respondent
Mr. H. Nagin for the 2nd Respondent

RULING

In this judicial review application made under Order 53 of The High Court Rules 1988, counsel appearing for the respondents have raised objections to Mr. T. Tokalauvere as General Secretary of PAFCO Employees’ Union appearing in Open Court to conduct the hearing when he is not a legal practitioner.

This is a Ruling on the objection.

Further to leave granted herein to apply for judicial review Affidavits in Reply were filed by the 2^nd Respondent on 24 September 2002 and the Tribunal’s (1^st Respondent’s) Record of proceedings were filed on 27 May 2003.

The hearing of the judicial review commenced in Open Court on 4 June 2003. The applicant Union was represented by the General Secretary Mr. Tomasi Tokalauvere ("Tokalauvere") who is not a solicitor. The Respondents’ counsels objected to Mr. Tokalauvere appearing to conduct the hearing for the Union. The union’s representative said he can appear and made his submission. Both counsel also made submissions opposing Tokalauvere who is not a legal practitioner appearing for the Union.

The issue

The issue for Court’s determination is whether Tokalauvere is allowed in law to appear for the Union.

Consideration of the issue

On the issue the court was referred to The High Court Rules 1988 and to the Trade Unions Act, Cap. 96 (the ‘Act’).

Order 5 r6(2) of the High Court Rules provides that:

"(2) Except as expressly provided by or under any enactment, a body corporate may not begin or carry on any such proceedings otherwise than by a barrister and solicitor." (emphasis added)

A ‘trade union’ is a ‘body corporate’, for under s17 of the Act it is provided:

"17. The registration of a Trade union shall render it a body

corporate by the name under which it was registered, and, subject to the provisions of this Act with perpetual succession and with power to hold property real or personal and to enter into contracts, to institute and defend suits and other legal proceedings and to do all things necessary for the purposes of its constitution."

(emphasis added)

In view of the above provisions in s.17 and Or5 r6(2), because the union (the applicant) is a body corporate it has to ‘carry on’ these proceedings by a ‘barrister or solicitor’. Hence Mr. Tokalauvere by virtue of him being the General Secretary of the Union cannot appear to conduct the hearing of this judicial review in Open Court.

Mr. Tuiloma referred the Court to s52 of the Legal Practitioners Act (No. 19 of 1997) which provides, inter alia, that ‘no person shall practice or act as a legal practitioner of Fiji or as a Notary Public without being the holder of a current practising certificate.’ He says that Mr. Tokalauvere is not a ‘legal practitioner’ and therefore cannot appear in Court conducting the case for the applicant.

In the Notes to 1995 White Book, under the caption ‘a body corporate’ it is stated:

A trade union, which is not a body corporate, does not come under para.(2) of this rule, and it may therefore be represented by a secretary or other officer duly authorised on its behalf, although in the ordinary way, especially in the case of a trade union with ample funds and faced with a complicated matter, the trade union as a legal entity would think it right and proper to employ a solicitor and counsel to conduct proceedings on its behalf in the High Court (Engineers’ and Managers’ Association v. Advisory, Conciliation and Arbitration Service (No.1) [1979] 1 W.L.R. 1113; [1979] 1 All E.R. 227, C.A.)

Bearing in mind the above Note, it is to be noted that in the present case the applicant is a body corporate and to use the words of Or.5 r6(2) it is "expressly provided" under the said s.17 what the requirements as to representation are.

On the need for trade unions to be represented by counsel, I refer to the Court of Appeal case of Engineers’ and Managers’ Association v Advisory, Conciliation and Arbitration Service and Another (No. 1). [1979] 3 All E.R. 223 where it was held:

As a general rule trade unions should be represented by counsel in the High Court and Court of Appeal because the issues involved in proceedings concerning trade unions were normally complicated. The court had, however, a discretion to make exceptions to that rule and would exercise that discretion in favour of UKAPE because it was a small union with limited resources and H merely wanted to put forward a simple point on its behalf. (emphasis added)

There at p.224 Lord Denning M.R. said that:

"If the trade union had been a body corporate then under RSC Ord. 5, r. 6(2) and RSC Ord. 12, r.1 it could not appear or carry on proceedings except through a solicitor."

But he said that if it was not a body corporate it will not come within the prohibition.

In this case it is not a ‘simple point’ which the applicant union wants to put before the Court hence it is not within the discretion of the Court to allow the applicant to be represented by the Secretary of the Union or any other Officer duly authorised on its behalf.

In Halsbury’s Law of England 4^th Ed. Vol. 3 at para 1155 it is stated that ‘a corporate litigant cannot appear in person’ and in the Notes to this statement it is stated:

"Whilst a corporation may be represented in chambers by a solicitor he can be represented in Open Court only by counsel: Frinton and Walton UDC v Walton District Sand and Mineral Co. Ltd [1938] 1 All E.R. 649."

Conclusion

To conclude, for the above reasons, considering the provisions of s17 of the Trade Unions Act, Order 5 r6(2) of the High Court Rules 1988 and the authorities, Mr. Tokalauvere the General Secretary of the applicant/union cannot be permitted to appear in Open Court on the hearing of the judicial review and to conduct the hearing.

It therefore follows that the applicant has to engage a barrister and solicitor to appear in this case on the hearing of the judicial review.

The objection is allowed, and once the applicant engages counsel hearing date could be assigned.

D. Pathik
Judge

At Suva
6 August 2003