Attorney General v Orme & Reiher [1989] KICA 2; Civil Appeal No 3 of 1988 (16 March 1989)

IN THE COURT OF APPEAL OF KIRIBATI

Civil Jurisdiction

Civil Appeal No 3 of 1988

BETWEEN:

ATTORNEY GENERAL
Appellant

AND

BRIAN STEWART ORME

AND

HENRY REIHER
Respondents

Mr. Altments for Appellant
Mr. Orme in person

Date of Hearing: 13th March 1989
Delivery of Judgments: 16th March 1989

JUDGMENT OF THE COURT
(Gibbs V.P., Frost, Donne, Dillon and Mitchell J.J.A.)

The respondents to this case stated were the defendants in an action brought by the Attorney-General to recover income tax allegedly due. During the course of the proceedings the respondents filed a motion as follows:-

"(i) that the Defendant be at liberty to be represented by Counsel of its choice at the hearing of these proceedings.

(ii) that the Defendant be at liberty to retain Mr Roger Murray Bell as its Counsel for the hearing of these proceedings.

(iii) that the Plaintiff do issue a Certificate of qualification for Admission for Roger Murray Bell pursuant to the Lawyers Admission Rules.

(iv) that the Plaintiff take all such other steps as may be within his power to allow Roger Murray Bell to represent the Defendant in these proceedings."

The learned trial judge, Topping J., dismissed the motion, but he also stated a case which raised the following questions for the determination of the Court:

"1. Does a party to a civil suit before the Court in Kiribati have a constitutional right to be represented by the representative of his own choice in the same way as he does under s. 10(2) (d) of the Constitution in criminal matters?

2. If he does have such a right, how can this be reconciled with the right to a fair trial within a reasonable time under s. 10(8) of the Constitution where a party wishes to be represented by a representative from overseas where attendance may involve severe delays thereby preventing the holding of a trial within a reasonable time?

3. If the party in question has a right to a representative of his own choice irrespective of how long it would take to secure his attendance, is this right an absolute one or may it be limited by the question of that proposed representative's immigration status or some other bona fide administrative act which would effectively preclude such chosen representative from appearing before the Courts of Kiribati?"

That proceeding was irregular, since under section 13 of the Court of Appeal Act a judge who states a case may give judgment only subject to the opinion of the Court. It must be taken that the refusal of the motion by Topping J. was intended to be subject to the decision of this Court on the case stated.

Mr. Roger Bell, whom the respondents wish to represent them at the hearing of the action, is a New Zealand practitioner, who was formerly entitled to practice in Kiribati. However, in 1986 the Lawyers Admission Rules were amended with the effect that the names of all legal practitioners admitted elsewhere were removed from the roll of legal practitioners and that they ceased to be entitled to practise in Kiribati until readmitted. Mr. Bell has applied for readmission, but without success. In addition, he has been declared to be an illegal immigrant.

Those matters were discussed in this Court last year in the cases of Orme against the Attorney General and Compass Rose Enterprises Limited against the Attorney General.

The grounds stated in support of the Notice of Motion show that the respondents wish to challenge the validity of the Lawyers Admission Rules and of the refusal of the Attorney General to issue Mr Bell with a certificate entitling him to admission. It is a serious question whether the respondents have standing to make a challenge of this kind, but it is clear that such a challenge cannot be made upon a interlocutory motion filed in an income tax proceeding. The case stated must be dealt with on the footing that Mr. Bell is not entitled to practise in Kiribati.

The first question in the stated case refers to section 10(2) (d) of the Constitution of Kiribati which provides as follows:-

"Every person who is charged with a criminal offence -

(d) shall be permitted to defend himself before the court in person or, at his own expense, by a representative of his own choice."

This provision is not unique to Kiribati; it occurs in other constitutions also and it of course applies only where a person is charged with a criminal offence. It has no application to the present proceedings. In any case, the right conferred by the provision is not absolute, although it does mean that the State cannot take action for the purpose of preventing an accused person from enjoying legal representation; Robinson v R [1986] LRC (Const) 405. Constitutional guarantees must be understood in the context of the local legal system and local conditions (Bell v Director of Public Prosecutions [1986] LRC (Const) 392), and we would agree with the remarks of the Supreme Court of Hong Kong that a rule that a litigant is entitled to counsel of his choice means no more than that he has a right to choose counsel who are available and are entitled to practise: Re an application by GJ Coles QC for admission as a barrister [1985] HKLR 480; noted 1986 Commonwealth Law Bulletin, Volume 12, page 783.

The constitutional provision which is relevant to the present case is that contained in section 10(8) of the Constitution which provides as follows:-

"Any court or other adjudicating authority prescribed by law for the determination of the existence or the extent of any civil right or obligation shall be established or recognised by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time."

Speaking generally a person will be denied the right to a fair trial if he is denied the right to be legally represented by a person qualified and available to appear. It does not follow that the right to a fair trial is necessarily denied because a party is not allowed to be represented by a person who is not within the jurisdiction and not qualified to appear there. It would be a different matter if it were proved that the State took steps to prevent a party from securing any legal representation, such as by refusing any person, although fully qualified, a right to enter Kiribati and to be admitted to practise here even if the party could not otherwise secure representation. However that has not been established in the present case.

For these reasons the first question in the stated case must be answered No, and it will therefore be unnecessary to answer the other questions.

Vice President
Judge of Appeal
Judge of Appeal
Judge of Appeal
Judge of Appeal