Tawaia v Attorney-General [2001] KICA 21; Civil Appeal 07 of 2000 (5 April 2001)

IN THE KIRIBATI COURT OF APPEAL
CIVIL JURISDICTION
HELD AT BETIO, KIRIBATI

Civil Appeal No. 7 of 2000

BETWEEN:

BINATAAKE TAWAIA
Appellant

AND:

ATTORNEY-GENERAL
Respondent

Before: Casey JA
Bisson JA
Tompkins JA

Counsel: The Appellant in person
Mr D James for the respondent

Date of Hearing: 29 March 2001
Date of Judgment: 5 April 2001

JUDGMENT OF THE COURT

[1] Mr Tawaia appeals against the decision of the Chief Justice in the High Court at Betio of 24 August 2000 dismissing his application for a writ of Mandamus or Certiorari against the Attorney General in respect of his refusal to issue a certificate of qualification for admission to practise law. In response to his request for such a certificate the Attorney-General had written stating that he did not consider him a fit and proper person to practise law in Kiribati setting out his reasons, which included convictions for fraud and theft as a servant, for which the appellant had been imprisoned for four years in 1984. His Honour said it was clear that the Attorney-General had considered the application, and that the question of the appellant's suitability was entirely one for that officer, and he was not prepared to interfere.

[2] Among the grounds of appeal were allegations of pre-determination and unfairness by the Chief Justice in dealing with the application without giving Mr Tawaia an opportunity to be heard, but even if he had done so (and we express no opinion on this), His Honour had ample material on the record to justify his conclusion that the application could not possibly succeed, and the appellant's submissions in this Court did not alter that situation.

[3] He attempted to persuade us that the Attorney-General had failed to act in conformity with rule 3(2) of Admission Rules 1992 (2) reading:

"(2) After a personal interview with the applicant and on being satisfied that the applicant-

(a) is qualified for admission; and

(b) is a fit and proper person to be admitted,

the Attorney General in his discretion may issue a certificate of qualification as in Form 1 or form 1A, as the case may be".

His point was that the Attorney-General was required to hold a personal interview as a condition precedent, whether or not he decides to issue a certificate, and had not done so in his case. We do not read the subsection in that way. It clearly makes an interview a condition to be complied with before he decides to issue a certificate, but the converse does not follow. If he concludes that the applicant is not qualified, or is not a fit and proper person, he can refuse to issue one without having to go through an interview which can have no purpose.

[4] It is plain from the material exhibited to his affidavit that the Attorney-General had very full submissions from the appellant relating to his criminal convictions and to other matters relevant to his qualifications and fitness to practise law. In this Court he submitted there was nothing in the rules setting out what constituted a "fit and proper person", nor any specific warrant for taking criminal convictions into account, as was the case in some other jurisdictions. We disagree with his proposition that because of these omissions the Attorney General was not allowed to have regard to them. To do so does not amount to filling gaps in the legislation, as submitted by the appellant; it is simply giving a common-sense application of the words in the rules. In his letter refusing the application the Attorney-General displayed a responsible grasp of the obligations and responsibilities of a legal practitioner in reaching the obvious conclusion that fraudulent conduct of the kind evidenced by the convictions rendered Mr Tawaia unfit to practise. We can see no error in the way he approached his task. The appellant's final submission that the Attorney-General should have taken into account the fact that he was incompetently represented at his criminal trial is not worthy of comment in the light of his subsequent unsuccessful appeal. He advanced this point at some length to the Attorney-General, who responded with understandable scepticism.

Result

The appeal is dismissed with costs to the respondent and disbursements, to be taxed if the parties cannot agree.

Casey JA
Bisson JA
Tompkins JA