Fiji Law Society’s Application Denied
The Civil High Court in Suva has refused to allow Fiji Law Society to call their King’s Counsel Laura Anne O’Gorman via video link to participate in an Application for Joinder filed by the Society to intervene in the committal proceedings against Richard Naidu.
The matter arose when the Fiji Law Society filed Summons seeking an order directing that the Fiji Law Society be granted leave to be joined as an intervener, and be permitted to file and serve written submissions and appear at the substantive hearing of the application for committal (oral submissions may be made only if leave granted at the hearing).
The grounds on which the Fiji Law Society sought the order on are:
The issue raised by the application are of public and general importance, and concern professional standards the rule of Law and public confidence in the administration of justice in Fiji;
The Fiji Law Society has statutory functions under the Legal Practitioners Act 2009 to maintain the professional standards of its members and to protect and assist the public in all matters incidental to the practice of the Law;
The Fiji Law Society will provide the court with material assistance on an independent and objective basis, which is important given the inherent conflicts in proceedings of this type; and
The Fiji Law Society’s participation will focus on providing legal submissions and relevant legal authorities, and will have no material adverse effect on the efficient hearing and determination of proceedings.
Judge’s ruling
In the ruling delivered by High Court Judge Justice Jude Nanayakkara yesterday, he noted that the motion was vigorously opposed by the Attorney-General’s counsel and raised legal objections to the application contending that there was no principle or provision in the Law that supported the application of the Fiji Law Society to allow overseas counsel to conduct hearing of
the proceeding via video link.
Justice Nanayakkara said it appeared to him that the application of the Fiji Law Society (not being a party to the proceedings) seeking permission from the court to allow KC O’Gorman to appear for Fiji Law Society and to permit her to conduct hearing of the proceeding on the platform of video link was premature.
He said the Fiji Law Society stated it did not have the funds to pay for each of KC O’Gorman’s physical attendance to this matter in Fiji, especially when there were several applications before the Court.
The judge raised the question in his judgment why not engage a senior local counsel in Fiji. There were 67 senior legal practitioners in Fiji with over 25 years of experience.
He said in very exceptional cases for vulnerable witnesses and hardly ever for convenience reasons, the court had power to permit a departure from the usual practice and to permit testimony to be given on the platform of video link.
He further said the hurdle was higher than that, in an application to conduct the hearing on the platform of video link.
The judge said generally, a case should be argued by counsel directly and in the presence of the court.
He added the court insisted upon the physical presence of counsel for argument and presentation of counsel for argument and presentation of oral submissions.
The judge said he failed to see a reason for a justifiable departure from the usual practice.
He raised a question of why should the court make a departure from the usual practice for mere convenience of the Fiji Law Society.
Justice Nanayakkara said it did not appear from the affidavit of Wylie Clark, the president of the Fiji Law Society, the significance of Fiji Law Society may have if the application to join as an intervener was argued by KC O’Gorman.
He said there was virtually no evidence in affidavit form to support that Fiji Law Society would be materially prejudiced if the court did not accede to Fiji Law Society’s application to permit KC O’Gorman to argue the case and present oral submissions.
He added that the Fiji Law Society had not shown to the court that in the past, upon a sense of responsibility for the public interest, it had intervened or applied to intervene as a party in proceedings concerning other legal practitioners who were also charged with contempt of court.
He said the Fiji Law Society had a statutory duty to look after the welfare, integrity, and the legal status of all its members, including its distinguished member, the respondent in the matter.
He further said the Fiji Law Society would not be fundamentally affected by the outcome of the litigation.
Judge’s distinct impression
Justice Nanayakkara said he got the distinct impression that, the ultimate interest of Fiji Law Society was identical with the interest of its distinguished member, the respondent and the Fiji Law Society could not assert an interest of its own separate and distinct from that of its distinguished member and therefore Fiji Law Society was not neutral and would not remain neutral in these proceedings.
He said the court could not grant permission to the Fiji Law Society to enter the arena upon a sense of responsibility for the public interest because the Fiji Law Society might move from that of neutral friend of the court to one of partisanship and would inject arguments in the interest of its distinguished member and advance the defence of its distinguished member than to assist the court as a friend.
He said there was no need for this court to appoint Fiji Law Society as a “amicus curiae, or friend of the court” to represent the public interest in the administration of justice because the A-G was already serving essentially in that capacity.
The Judge said although the A-G was a member of the Government in power and a political appointee, it was a matter of clear Constitutional Doctrine the initiation of public interest litigation, including proceedings for contempt of court.
He said this was a fundamental Constitutional principle of long standing.
He added that the Fiji Law Society’s submission stated about a circular issued by the Chief Justice on April 21, 2021, directing that if parties preferred to have cases dealt or heard via written submissions or
Skype then the Judicial officers had the discretion to decide whether the matter could be dealt with or heard via written submission or
Skype.
He said the Fiji Law Society’s submission stated that the pandemic was not over and caution was still advised.
The Judge said the circular was issued at a time when Fiji borders were closed to international travellers except for repatriation and/or compassionate exemption.
He said the restrictions placed on overseas travel due to COVID-19 pandemic had been lifted and that there were no restrictions on overseas travel and that there was no national crisis or medical emergency.
He added that he failed to see a justifiable reason for departure from the usual practice and that currently, there were no national COVID-19 medical emergency.
He said usual physical court room trials were not risky to the participants and therefore, the court should not depart from the usual physical court room hearing for the mere convenience of Fiji Law Society.
He further said that the Fiji Law Society was completely off the mark in insisting that the court consider the words ‘electronic recording’ of proceedings to mean video link.
In the substantive matter, Naidu’s hearing has been set for September 29 and the hearing on Application for Joinder filed by the Fiji Law Society has been set for September 26.