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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
CIVIL CASE No.98 OF 1999
IN THE MATTER OF:
The Legal Practitioners Act 1980 (CAP 119) as amended
AND IN THE MATTER OF: An application by MARK JAMES HURLEY
of Port Vila, Efate in the Republic of Vanuatu
for application for an Unconditional Practicing Certificate
BETWEEN:
MARK JAMES HURLEY
Applicant
AND:
LAW COUNCIL OF THE REPUBLIC OF VANUATU
Respondent
Coram: Mr. Justice John W. von Doussa
Counsel: Mr. P. T. Finnigan and Mr. J. C. Malcolm for the applicant
Mr. J. I. Kilu for the Respondent
JUDGMENT
This is an application brought by leave granted under Order 61 Rule 2 of the High Court (Civil Procedure) Rules 1964 for an Order of Certiorari to quash the decision of the respondent not to grant the applicant unconditional registration as a Barrister and Solicitor under the Legal Practitioners (Qualifications) Regulations made under the Legal Practitioners Act [CAP. 119].
BACKGROUNDS FACTS
The background facts are common ground. The applicant was admitted as a Barrister and Solicitor of the High Court of Australia in 1989, and practiced in a number of overseas jurisdictions thereafter. On 23rd January 1997 he applied for conditional registration as a barrister and solicitor in the Republic of Vanuatu. On 21st February 1997 the respondent granted him conditional registration subject to two (2) conditions.
“(i) whilst Mr. Hurley is being employed under the present employment contract, he must during his term of employment undertake the training of Ni-Vanuatu lawyers including Mr. Saling Stephens and the additional Ni-Vanuatu lawyers which Mr. Vasaris intends to employ; and
(ii) that at the completion of his present contract, he must leave Vanuatu and not be employed elsewhere.”
The second of the conditions was amended by the respondent on 25th February 1997. The amendment said that as the applicant had a two year employment contract, he must leave Vanuatu at the end of that period.
The applicant commenced practice as a barrister and solicitor in the Republic of Vanuatu on or about 7th of March 1997 as an employee of George Vasaris & Co. The principal of that firm is an unconditionally registered barrister and solicitor.
On 10th September 1998 the applicant made application to the respondent for unconditional registration as a barrister and solicitor.
On 14th November 1998 the respondent resolved to refuse the applicant unconditional registration. In a letter from the respondent advising the applicant of its decision the respondent said:-
“1. .........
On 1st December 1998, following representations from the applicant, the respondent agreed to reconsider its decision. To that end the respondent said it would allow the applicant, his counsel and Mr. Vasaris to make submissions.
Thereafter many meetings of the respondent were called to reconsider the matter. However some of those meetings had to be adjourned because of the unavailability of one or more of the members of the respondent, or of other people who were to be involved in the meetings.
During this time the respondent said that it wishes to receive evidence from Mr. Saling Stephens. Counsel for the applicant requested that he and the applicant be present to hear the evidence, and to ask question of Mr. Saling Stephens. On 9th December 1998 the respondent invited the applicant, his counsel, and Mr. Vasaris to be present during an interview with Mr. Saling Stephens. However Mr. Saling Stephens did not attend the meeting. Thereafter meetings of the Law Council were successively rescheduled for 10th, 16th, 17th and 19th December 1998, but on no occasion did Mr. Saling Stephens attend.
On 14th December 1998 the applicant provided to the respondent an affidavit giving particulars of the training that he had given to Mr. Saling Stephens, and on 16th December 1998 filed an affidavit by Ms. Karen Bani annexing a transcript of a public statement made by Mr. Saling Stephens referring to valuable training and knowledge obtained by him from George Vasaris & Co.
On 9th February 1999 the respondent scheduled another meeting, but that did not occur because the applicant, concerned at the delay, commenced proceedings in the Supreme Court seeking leave to apply for orders of certiorari and mandamus directed to the respondent.
On 4th March 1999 there was a meeting as the respondent at which it resolved not to deal further with the review of its earlier decision as the matter was now before the Court.
On 7th March 1999 Marum J., refused to grant leave. He refused leave in the case of the application for certiorari as the Law Council had agreed to review its decision of 14th November 1998, and that decision could no longer be considered a final one. He refused leave in respect of the application for mandamus on the ground that it was unnecessary as the Law Council was in the process of considering the matter.
The applicant appealed from Marum J.’s decision. The respondent considered that it should not consider the matter further until the appeal was heard as the matter was sub judice.
On 21st April 1999 the Court of Appeal heard the matter and said that it could find that no basis for the Law Council’s view that the matter was sub judice. The Court of Appeal considered that the matter should take its course before the respondent, and that until the respondent made a decision there was nothing properly to be considered by the Court of Appeal. The appeal was adjourned to a date to be fixed. The Court of Appeal noted that the review has been proceeding for many months and said it was time it was completed.
The respondent again encountered difficulties in rescheduling a meeting to suit its members. On 13th July 1997 the respondent, by letter from its secretary, advised the applicant as follows:-
“1. As you have been informed, the Law Council met yesterday.
On 16th July 1999, the secretary advised the applicant that the meeting was no longer possible and had to be rescheduled.
On 19th July 1999, the applicant by letter from his counsel again sought the opportunity to be present when Mr. Saling Stephens gave evidence Counsel sought the opportunity to question him and be given the opportunity to make submissions on his evidence. No response was received to that letter.
On 31st August 1999 the applicant was advised by the respondent that on 24th August 1999 it had affirmed its decision of 14th November 1998 to refuse unconditional registration. The respondent gave reasons for that decision which can be summarised as follows. The two conditions had been imposed on Mr. Hurley’s conditional registration pursuant to the respondent’s discretionary power under Section 1K (3) of the Act. As the conditions were included pursuant to that section, the conditions form part of the law applicable to the applicant’s registration as a legal practitioner, and as such he was required to comply with those conditions. The Law Council by virtue of Section 1K (2) had a discretionary power to refuse to register any person notwithstanding that he may have the qualifications required under Section 1L of the Act and the Legal Practitioners (Qualifications) Regulations, including Regulation 4 (3). The reasons continued:-
“The Law Council having heard counsel on behalf of the applicant and read and considered material information in support of the review application, and having also heard Mr. Saling Stephens, the Council find and is satisfied that condition No. 1 imposed on the applicant practicing certificate, in relation to training of Saling Stephens and other Ni-Vanuatu lawyers with the law firm of George Vasaris & Co., has not been complied with by the applicant and as such constitute a fundamental breach by the applicant of that condition”
The respondent considered that its discretionary powers under sub-sections s. 1K (2) and (3) overrode the provisions of regulation 4 (3), and as the respondent was satisfied that the applicant had failed to fulfil one of the conditions of his conditional registration, unconditional registration was refused.
GROUNDS OF CHALLENGE
The applicant contends that the two conditions attached to his conditional registration are invalid as they are beyond the power of the Law Council under the Act and regulations to impose. The decision to refuse unconditional registration is therefore invalid and should be set aside on the ground that irrelevant considerations were taken into account, namely the conditions and whether they were fulfilled. Alternatively, the decision was based on a misinterpretation of the Act and regulations. In the further alternative, if the conditions were within power, the applicant contend that the decision should nevertheless be set aside as he was denied natural justice in not being made aware of the evidence given by Mr. Saling Stephens, and being given an opportunity to be heard about that evidence.
Counsel for the respondent on the other hand contends that the decisions of the respondent are valid and should not be set aside. Counsel contends that s. 1K (2) gives the respondent an unfettered discretion to impose such conditions as it sees fit on a certificate of registration, and s. 1K (2) gives the respondent an unfettered discretion to refuse registration on any grounds that it sees fit notwithstanding that the applicant may have the qualifications specified s. 1L of the Act. Further, counsel seeks to refute the allegation of a denial of natural justice on the ground that s. 6 (4) of the Act provides:- “subject to this Act the Law Council may regulate its own procedures.”
THE LAW
The long title of the Act describes it as legislation “To provide for the admission and registration of legal practitioners, their qualifications, discipline and other matters connected therewith”.
Part IA of the Act deals with admission. Section 1A empowers the Chief Justice to admit to practice as a Barrister and Solicitor any person duly qualified for admission under the Act.
Section 1B provides that a person who hold a valid certificate of registration shall be qualified for admission. Section 1D requires that every person admitted to practice shall cause his name to be enrolled in the role of Barristers and Solicitors. Section 1E provides for the Registrar of the Court to issue a practicing to a person who has met the foregoing requirements.
Part IB, which deals with the registration of Legal Practitioners, was inserted by amendments to the Act made by the Legal Practitioners Regulations (Amendment) Act No. 39 of 1989, and uses the expression “Regulations” to refer to the Act. In the following Sections, the word “Regulation” should be understood in that sense. Sections 1J, 1K and 1L provide as follows:
“1J. (1) Any person who is qualified to be registered as a legal practitioner under this Regulation, may apply for and obtain a certificate of a Registered Legal Practitioner from the Law Council.
(2) Application under subsection (1) shall be made in the form and manner prescribed by the Law Council.
1K. (1) Subject to the provisions of this Regulation, upon an application made by any person under Section 1J, and a payment of the prescribed fee the Law Council shall –
(a) cause the name and the relevant particulars contained in such application to be entered in the register in the prescribed form kept for that purpose; and
(b) issue in respect of that person a Certificate of a Registered Legal Practitioner.
(2) The Law Council may, in its discretion, refuse to register any person as a legal practitioner, notwithstanding that he may have the qualifications specified under section 1L.
(3) The Certificate of a Registered Legal Practitioner may be issued subject to such conditions, as the Law Council may see fit to impose.
(4) Subject to the provisions of this Act no Certificate of a Registered Legal Practitioner shall be issued to any person under subsection (1), unless he is a resident of Vanuatu, in terms of the provisions of the laws of Vanuatu relating to immigration.
1L. Subject to the provisions of this Act, any person shall be qualified to be registered as a legal practitioner who fulfils the qualification, specified by the Law Council by order made under Section 15 of this Regulation.”
Part II of the Act establishes the Law Council. The Law Council consist of the Chief Justice who shall be chairman, the Attorney General, and one legal practitioner appointed by the Minister responsible for Justice, and there shall be a secretary to the Law Council. Section 5 prescribes the functions of the Law Council, and read as follow:-
“5. (1) The Law Council shall have general responsibility for the control and supervision of legal practitioners.
(2) Without derogation from the generality of subsection (1) the Law Council shall –
(a) prescribe the qualifications for legal practitioners;
(b) keep a Register of Legal Practitioners;
(c) be responsible generally for the discipline of legal practitioners;
(d) be responsible for the etiquette and conduct of legal practitioners;
(e) provide for the legal education and training of legal practitioners;
(f) control the registration of notaries public.”
Section 6 deals with procedural manners to be followed by the Law Council, and includes S. 6(4) earlier referred to.
Part III of the Act makes provision for the Law Council to appoint a Disciplinary Committee to hear complaints against Barristers and Solicitors and Employees.
Part IV makes it an offence for a person, not being a legal practitioner, to hold himself out to be entitled to practice, or to practice as a legal practitioner in Vanuatu. Substantial penalties are prescribed for the offence.
Part V provides for the making of Regulations Section 15 reads: -
“15. (1) The Law Council may make rules and regulations not inconsistent with the provisions of this Act and for the better carrying out of its provisions.
(2) Without derogating from the generality of subsection (1), regulations made pursuant to this section may provide for-
(a) the qualifications required for applicants for registration as legal practitioners;
(b) the name by which legal practitioners shall be called;
(c) the postgraduate training of persons desiring to become legal practitioners;
(d) forms and fees that persons making application pursuant to this Act or order made hereunder may be required to complete and pay;
The Legal Practitioners (Qualifications) Regulations 1996 were made pursuant to Section 15. The Regulations relevant to this matter are regulations 2 and 4 which read–
“CONDITIONAL REGISTRATION
2. No person shall be qualified to be registered as a legal practitioner unless he or she –
(a) holds a law degree or similar qualification from a University or such other appropriate institution recognised by the Law Council; and
(b) (i) is a Ni-Vanuatu citizen who is admitted as a barrister and/or solicitor in a Commonwealth jurisdiction; or
(ii) not being a Ni-Vanuatu citizen admitted in a Commonwealth jurisdiction, has at least two years post graduate supervised practical legal experience acceptable to the Law Council;
(c) is resident in Vanuatu.
UNCONDITIONAL REGISTRATION
(2) Such application shall be accompanied by a certificate of fitness in the form in Schedule 1 signed by his supervisor.
(3) The Law Council shall, on receiving an application for unconditional registration, grant the application unless it is satisfied that –
(a) the practitioner has not received appropriate supervision; or
(b) the practitioner is not a fit and proper person to be granted unconditional admission.
(4) If an application for unconditional admission is refused, the Law Council may, in its discretion, impose other or further conditions, including the undergoing of legal training and/or examination, precedent to the practitioner re-applying.
(5) The Law Council may, if it considers it in the interests of Vanuatu so to do, waive the requirement of one year continuous supervised practical legal experience in Vanuatu in individual cases and may, in those circumstances, substitute a requirement for the practitioner to undergo legal training and/or examination in aspects of Vanuatu Law approved by the Law Council.
DISCUSSION
Whilst a sub-section 1K (2) and (3) by their terms vest the Law Council with a discretion which is unlimited, the breadth of such a discretion must be interpreted so as to fulfil the purpose and policy of the Act, and must be understood as limited accordingly. In the leading case of Padfield –v- Minister of Agriculture, Fisheries and Food and others [1968] UKHL 1; [1968] AC 997 Lord Reid at 1030 said in relation to a discretion which provided “if the Minister ... directs”
“...Parliament must have conferred the discretion with the intention that is should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reasons, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the court. So it is necessary first to construe the Act.”
Barristers and solicitors who have the right to pursue their profession for reward hold a privilege position of trust in the community. By legislation they are given a monopoly to perform legal work (see part IV of the Act). The object and purpose of requiring and prescribing qualifications (see Section 1L) and of requiring the formal registration and admission of people as barristers and solicitors is to ensure that only people suitable to be entrusted with that privilege by reason of their character and skills act as barristers and solicitors. The provisions in Section 5 and Part III relating to educate, control, and discipline have the same purpose.
This general purpose has been eloquently stated in relation to similar legislation in Australia. In Ex Parte Meagher [1919] NSWStRp 83; (1919) 19 SR (NSW) 433 Gordon J. at 442 said:
“...By s. 10 of the Charter of Justice, this Court is only entitled to admit to practice as solicitors men who are “fit and proper persons”. By the words “fit and proper persons” it meant persons who have been proved to the satisfaction of the Court not only to be possessed of the requisite knowledge of law, but above all to be possessed of a moral integrity and rectitude of character, so that they may safely be accredited by the Court to the public as fit, without further inquiry to be entrusted by that public with their most intimate and confidential affairs without fear that the trust will be abused.”
More recently in Wenthworth v. New South Wales Bar or NSW Bar Associations Deane, Dawson, Toohey and Gaudron JJ at 251 said:
“In any event, the right to practice in the courts is such that, on an application for admission, the court concerned must ensure, so far as possible, that the public is protected from those who are not properly qualified and, to use the language of s. 4 (2) of the Act, from those who are not “suitable ... for admission”.”
The discretions given to the respondent in sub-section 1K (2) and (3) must be exercised consistently with those objects and the purpose of the Act, and not for extraneous or irrelevant purposes. Moreover as the discretions from part of s. 1K, they must be exercised for a purpose related to the subject matter of s. 1K.
Discretion of the kind given to the respondent are common in regulatory legislation as it is impossible to foresee every eventuality with which of a controlling body may have to deal. In the present case, the most obvious situation that may require the exercise of the discretion to refuse registration under s. 1K (2) would be where the respondent was not satisfied that that person was a fit and proper person to be registered. To refuse registration in those circumstances would plainly be for the purposes of the Act.
The power in s. 1K (3) to attach conditions to registration is, in the context of s. 1K, a power to enable the imposition of conditions designed and intended to further the purpose of registration, that is to ensure the proper standard of qualification is achieved, being qualification both as to academic and practical skills, and character. For example, a person seeking registration may have a law degree, the curriculum of which does not include tuition in the common law tenure system of real property and the Torrens System of land registration, or in some other topic of law that is thought to be important in Vanuatu. The respondent may in those circumstances consider it appropriate to impose a condition requiring a person to undertake study in a particular area of law within a time frame set by the condition.
In the present case, in 1997 the Law Council did not explain how or why it thought either of the conditions imposed on the applicant could serve the purpose of better achieving an appropriate level of qualification for registration in accordance with the requirements of Sections 1K and 1L. No such explanation has since been given, and none was advanced by counsel for the respondent before me, even though counsel was pressed to do so.
I am unable to find any reasonable and sensible relationship between the two conditions which were imposed, and the purpose of better achieving an appropriate level of qualification for registration. Neither conditions is directed to the legal skills, educational qualifications, fitness to practice, or character of the applicant.
The first condition which requires the applicant to train others is not a condition directed to the qualification of the applicant himself. It is a very odd concept that someone whose qualification is thought to be lacking to the extent that it is necessary to impose a condition on his registration (over and above the requirement of local experience under appropriate supervision imposed by Regulations 4 (1) (a) and 4 (3) (a)) should at the same time be asked to train others to attain the level of skill and confidence required of them to seek unconditional registration. In my view the training requirement was completely outside the object and purpose of Section 1K and 1L, and was beyond the power of the respondent to impose.
The second condition again bears no relationship to the qualifications for registration envisaged by the Act. The scheme of the Act is to permit conditional registration as a step towards unconditional registration, which in turn is a step towards long term admission as a barrister and solicitor in the Republic of Vanuatu. A condition which imposes a restraint upon the rights of a person who has registration to enjoy the rights which arise from registration is outside the objects and purpose of the Act. It is no function of the Law Council to control employment levels within the community of Vanuatu. Such a power may lie with the Executive under other legislation, but even if that is the case, the Law Council has no function or power to implement that legislation. In my opinion the second condition was also beyond power.
Counsel for the respondent contends that the conditions were valid because they were suggested by the applicant in the first place. As a matter of fact, that is not correct. It appears from the papers that Mr. George Vasaris, in making application for conditional registration on behalf of the applicant said, in passing, in his correspondence, that if registration were granted, Mr. Hurley would work in his firm, by implication as an employee, and would “also undertake training of ni-Vanuatu lawyers”. This is a statement of the intention of his employer as to the way in which the services of the applicant would be used. It cannot be construed as an offer by Mr. Hurley to submit to a condition to a kind that was imposed.
The papers also show that the second condition was imposed by the respondent of its own motion. Mr. Vasaris in his letter did not indicate that Mr. Hurley would be employed on a 2 years contract, and the respondent’s correspondence indicates that it was unaware of the details the employment of Mr. Hurley when the condition was imposed.
Counsel for the respondent further contends that the applicant should not now be allowed to challenge the validity of the conditions because they were imposed in January 1997, and that no complaint was made about them until late 1998. It is contended that the applicant is now out of time to proceed under Order 61 to obtain judicial review of the decision to impose the conditions, and further, the applicant is now estopped because no steps were sooner taken to challenge the conditions. In my opinion these submissions are without substance. If the conditions were beyond power, and therefore invalid at the time they were imposed, they remain invalid, and cannot as a matter of law be given life because the applicant did not sooner challenge them.
The decision to refuse unconditional registration made 24th August 1999, plainly rested upon the first condition. Indeed concessions that have been made in the course of these proceedings indicate that the decision was based solely on alleged non-compliance with the condition. It has been conceded that the applicant fulfils the requirements of regulation 4 (3).
As the conditions are invalid, it follows that in making the decisions of 14th November 1988 and 24th August 1999 the respondent took into account an irrelevant consideration, namely treating as valid conditions that were invalid, and proceeded on a mistaken view of the law, namely that the respondent was empowered in the first instance to impose the conditions. I think that the decisions are also based on a further error of law, namely the belief that the conditions themselves became part of the law which governed the entitlement of the applicant to be registered. Where the statute permits conditions to be imposed on the ground of a licence or permit, the law may impose consequences for the non-compliance with those conditions, but it does not make the conditions part of the general law. The notion that conditions constitute part of the law elevates the status of the conditions to that of subordinate legislation akin to the regulations made under section 15.
In my opinion an order of certiorari should issue to call up the decisions under challenge, and to quash them.
If I am wrong in this view of the case, I would nevertheless order that the decisions be quashed. The operative decision is that made on 24th August 1999. Once the respondent agreed on 1st December 1998 to reconsider the decision made on 14th November 1998, that decision ceased to be operative, but was given new life by the decision of 24th August 1999 that affirmed it. When the decision on 24th August 1999 was made, the applicant had not been made aware of the evidence apparently given by Mr. Saling Stephens, nor was the applicant given any opportunity to comment upon that evidence. It is trite law that in a statutory tribunal such as the respondent, which has the function of regulating the right of a person to pursue a trade or calling, that the person is entitled to know the case which is put against the grant of registration. This is the basic requirement of the natural justice. The procedure followed by the tribunal will not be fair in all the circumstances if a decision is made against the person without that person knowing the material put against him.
In the present case, counsel for the respondent argued that this requirement was met because the applicant and his counsel were given the opportunity to make oral and written submission in support of the application for unconditional registration. That submission misses the point. The submissions made by the applicant were made before Mr. Saling Stephens gave information to the respondent about his training to the respondent. At no time was the applicant made aware of what information was given by Mr. Saling Stephens or what criticisms he offered about the training which he had received whilst working the George Vasaris & Co. The applicant therefore was not made aware of what allegations required answer.
Before Mr. Saling Stephens gave information to the respondent, the applicant and Mr. Vasaris had provided information which gave details of the training of Mr. Saling Stephens, and supplied additional information from Ms. Karen Bani. That information suggested compliance with the first condition. At no stage was the applicant made aware that any of the information that he had supplied was challenged (if indeed that was the case).
Counsel for the respondent argues that the principles of natural justice cannot be invoked as the respondent by Section 6 (4) of the Act may regulate its own procedures. That the provision is a common one which recognizes the common law position that a tribunal is entitled to regulate its own affairs in the absence of any statutory direction to follow specific rules. That power may have been wide enough to authorize the respondent to receive information from Mr. Saling Stephens in the absence of the applicant or his counsel, and to deny a right to the applicant to cross-examine Mr. Saling Stephens. It is not necessary to decide that point, and it has not been argued. Even if Section 6 (4) has that effect, it cannot override the basic requirement of natural justice that, once the information was received by the respondent from Mr. Saling Stephens, the applicant be made aware of it, if it was adverse to the case which he had put forward in support of unconditional registration.
Counsel for the applicant argued that in the unusual circumstances of this case, the Court should also make a declaration that the applicant is entitled to be unconditionally registered. It is argued that there has already been very considerable delay, and that if the matter is returned to the respondent to be dealt with according to law, the inevitable result must be unconditional registration. Attention is directed in particular to regulation 4 (3) which provides that the respondent “shall” grant the application for unconditional registration unless it is satisfied as to one or other in the matters in paragraph (a) or (b). The concession has been made in course of trial that the requirements of regulation 4 (3) are met by the applicant.
Certainly there is nothing in the papers which would suggest any ground upon which the respondent could lawfully refuse unconditional registration in this case. However I decline to make the declaration sought. The function of granting unconditional registration is one given by statute to the respondent. The members of the respondent comprise the two chief law officers of the Republic, and another respected practitioner. There is no reason to doubt that they will conscientiously and properly perform their legal functions in accordance with law, as expressed by the Court. The matter should be returned to them to be dealt with according to law.
The applicant also contended that an order for mandamus should issue directing the respondent to make a decision within a short time frame. I also decline to make such an order. For the reasons just given, the matter should be left to the respondent, to proceed in the ordinary course. Hopefully there will not be further delays, but if delay unreasonably occurs, the law provides remedies that can be exercised.
COSTS
Finally, the applicant has made an application for costs against the respondent. Even though the respondent performs a statutory function, and has exercised that function in good faith (although mistakenly) these considerations provided no reasons for denying the applicant’s costs. In judicial review proceedings of this kind the ordinary rule applies, namely that the cost follow the event. I note that the counsel for the respondent has not argued against this proposition. The arguments advanced by counsel for the respondent on the question of costs concerned the manner of fixing those costs and their amount.
In my opinion the applicant is entitled to an order for party and party costs.
When the question of costs was argued, the Court was supplied with particulars of the costs sought. It was urged that I, as the trial judge, should fix the costs, partly because I have some knowledge of how the trial was conducted and the issues involved, and partly because (so I was informed) the resident judges who would normally fulfil the function of taxing costs are for one reason or another either disqualified or unable to undertake the task in this case. I think those are good and sufficient reasons for me to fix a gross sum for costs.
The Court has been supplied with particulars of the actual costs incurred by the applicant, including counsel fees payable to two New Zealand practitioners, namely Mr. Finingan and Professor Taggart. Mr. Finingan appeared for the applicant before me, having travelled to Vanuatu and obtained temporary admission for the purpose. His fees include travelling time and accommodation expenses. Professor Taggart gave an opinion to the applicant in January 1999.
The total amount claimed, including a disbursement to Mr. Finingan of 1.335.152VT for his fees, is 3.622.002VT. The costs have been calculated on a time basis at the rate of 20.000VT per hour in respect of the work of legal practitioners in Vanuatu, and at the rate of NZ$200 per hour in the case of Mr. Finingan.
In respect of the actual costs incurred the applicant seeks a “reasonable contribution” see Holden v. Architectural Finishes Ltd. [1977] 3 NZLR 143 at p. 146.
Mr. Kilu, representing the respondent, contends that a reasonable contribution in all the circumstance would be a 10 % of the amount claimed, but he did not give reasons for asserting that such a large discount should be applied. If the amounts claimed for costs were amounts incurred in relation to these particular proceedings, a discount of 90% would not constitute a reasonable contribution.
In the present case, however, upon analysis, the claim for costs includes substantial sums for other proceedings apart from the present application for an order for certiorari which I have heard. The claim includes costs in respect of the first application for leave to issue certiorari and mandamus which was unsuccessful before Marum J., and also includes the costs incurred in respect of the proceedings before the Court of Appeal. In my opinion I have no jurisdiction to make costs orders that relate to those proceedings.
In relation to the application before Marum J., costs were reserved. That matter can be re-listed before Marum J. to argue the question of costs if the applicant so desires although is should be observed that the application did not succeed.
The proceedings before the Court of Appeal were withdrawn without there being any order for costs. I have no jurisdiction to make an order in respect of proceedings before the Court of Appeal.
In my opinion costs on the present action should be awarded only in respect of the period commencing on 25th August 1999 when the applicant received news of the respondent’s decision on 24th August 1999.
I do not think it is appropriate to include in the costs awarded in favour of the applicant, the disbursements involved in obtaining the services of overseas counsel. There is a competent legal profession within Vanuatu. If a litigant wishes to obtain the services of a barrister from elsewhere, rather than utilize the services of the Vanuatu profession, that is a matter of choice for the litigant, but the extra expense involved including travelling costs and time, and accommodation, cannot be claimed as a component of party and party costs against an unsuccessful litigant.
I am prepared to assume, however, that the work done by visiting counsel would otherwise have been carried out by local practitioner, and that work should be brought to account, at a rate appropriate to Vanuatu when assessing party and party costs. However care must be taken to exclude ‘double counting’ where visiting counsel and local counsel both cover the same ground in preparing for trial.
Whilst the rate of VT20.000 per hour is a common rate charged in Vanuatu by the private legal profession in respect of corporate and commercial clients, it is a rate which significantly exceeds that which this Court is prepared to award for party and party costs. My inquiries within the Court suggest that a rate of about VT10.000 per hour is applied as a yardstick in assessing party and party costs.
My analysis of the fees and disbursements in the accounts presented in support of the claim suggests that about 80 hours work has been carried out by legal practitioners engaged by the applicant in respect of these proceedings since 25th August 1999. However I think there is a degree of ‘double counting’ arising from the use of visiting counsel. In addition there are significant disbursements in respect of documents filed at Court including copy documents for use of the Court. These documents include a substantial book of documents incorrectly described as “appeal book”. In fact the book was a compilation of documents for use at the trial.
The assessment of party and party costs must, of necessity, involve matters of judgment and degree as to whether each of the items of work was strictly necessary, and whether the time spent reflects reasonable efficiency, or a degree of pains taking care which exceeds that which the unsuccessful party should be required to compensate.
Understandably, the applicant treated the issues in this case as of the utmost importance to himself, and was anxious to leave no stone unturned in his preparation of the case for trial. But it must be recognised that every case is very important for the parties involved, and many of them are unable to meet the cost of “Rolls Royce” representation. Those that are able to do so if they follow that course, cannot expect to recover the full cost if they win from the other side.
The amount awarded of necessity can only be a broadly made estimate. In my opinion the costs of this action to be paid by the respondent should be fixed VT750.000 which amount includes all disbursements.
The formal orders of the Court will be
Dated at Port Vila, this ........... day of October 1999.
BY THE COURT
J. W. von Doussa
JUDGE
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