Wehrenberg v Pickering [2022] FJILSC 1 (7 January 2022)

IN THE INDEPENDENT LEGAL SERVICE COMMISSION

AT SUVA

ILSC CASE NO. 008 OF 2019

BETWEEN : FRED WEHRENBERG

APPLICANT

AND : JOHN PICKERING

RESPONDENT

Counsel : Applicant in person

Ms P Prasad and Ms O Solimailagi for the Respondent

Date of Decision : 7 January 2022

DECISION

[1] The Applicant has a long history of being involved in civil litigation against the Commissioner of Police and the Attorney General and Minister for Justice before the courts in Fiji. He succeeded in some cases and some he did not.

[2] The legal practitioner is an employee of the Office of the Attorney General. He was counsel for the defendants/respondents in some of the later cases involving the Applicant as the plaintiff/appellant (HBC 79 of 2006L and Civil Appeal ABU99 of 2017). The practitioner was holding the post of Acting Principal Legal Officer at the relevant period.

[3] When the Applicant did not succeed with some of his applications in court, he filed a complaint of professional misconduct against the legal practitioner with the Chief Registrar.

[4] On 3 April 2019, the Chief Registrar summarily dismissed the complaint and notified the Applicant of his decision in writing with the following brief reasons:

...the complaint is summarily dismissed as it appears that the allegations made by you is baseless and without merit.

[5] On 3 June 2019, the Applicant commenced proceedings against the legal practitioner before the Commission pursuant to section 110 (4) of the Legal Practitioners Act.

[6] A hearing was conducted and the Applicant was heard. Apart from oral hearing, the Applicant has filed extensive written submissions. The submissions are repetitive and argumentative. It is not necessary to recite every submission made by the Applicant.

[7] The gist of the allegations are two-fold. I deal with the allegations in the reverse order.

[8] The first allegation is that the legal practitioner knowingly deceived or misled the court while representing the defendants in the cases in which the Applicant was the plaintiff.

[9] The allegation of deceiving or misleading the court is grave. The legal practitioner admits representing the defendants by virtue of his employment with the Office of the Attorney General, but he denies misleading or deceiving the court on any matters. The legal practitioner says that he made legal submissions based on the facts to counter the submissions made by the Applicant in person.

[10] It is apparent to me that the Applicant did not agree with the submissions of the legal practitioner. He raised his objections to the court but the court did not accept that the legal practitioner had misled or deceived the court with his submissions.

[11] Rule 3.1 of the Rules of Professional Conduct and Practice states that a practitioner shall not knowingly deceive or mislead the court. Subject to this overriding obligation of a practitioner to the Court, a practitioner shall conduct each case in such manner as the practitioner considers will be most advantageous to his or her client (Rule 3.7). If a legal practitioner conducts contrary to the rules of professional conduct in court, the court has jurisdiction to reprimand the lawyer. Section 130 of the Legal Practitioners Act has expressly preserved the disciplinary jurisdiction of the court over the legal practitioners.

[11] In this particular case, there is not one iota of evidence that the legal practitioner misled or deceived the court with his submissions. The legal practitioner was entitled to make submissions to counter the submissions of the Applicant. The legal practitioner was representing the defendants in a litigation brought by the Applicant. His clients were the defendants and not the Applicant.

[12] When the Applicant appealed to the Court of Appeal when some of his applications were declined by the High Court in Civil Action No 79 of 2006L, the Court of Appeal dismissed the appeal saying that the learned Judge has, in good faith and in a most just manner, exercised his discretion in favour of the Applicant, despite not having allowed all the relief claimed by the Applicant. The Court of Appeal further stated that the ‘denial of relief by a court cannot be equated to injustice’.

[13] The Applicant may not agree with the legal submissions made by the legal practitioner but to accuse him for deception for that disagreement is far-fetched.

[14] The second allegation is that the legal practitioner intentionally harmed the Applicant by instructing the Government’s Chief Accountant not to pay the actual amount of post judgment interest owed to him after a successful litigation against the defendants in which the Applicant was the plaintiff.

[15] The legal practitioner does not dispute that he provided a legal opinion to the Government’s Chief Accountant on the post judgment interest to be paid to the Applicant. The advice was rendered as part of his function as State counsel. The practitioner’s legal opinion was based on the existing law at the time on post judgment interest. The opinion was sanctioned by the Office of the Attorney General before the Chief Accountant acted on it.

[16] The Commission lacks power to review the correctness of the legal opinion offered by the legal practitioner as part of his function as State counsel. That is a matter for the practitioner’s employer. There is no evidence that the legal practitioner has acted maliciously towards the Applicant with the intention to cause him harm in performance of his duties as State counsel.

Result
[17] The allegations against the legal practitioner are baseless, vexatious and frivolous.

[18] The allegations are dismissed with prejudice.

. ...........................................
Hon. Mr Justice Daniel Goundar

COMMISSIONER
Solicitors:
Applicant in person
Attorney-General’s Chambers for the Respondent.