|SHORT WELCOME: Bullard with Epeli Nailatikau.|
The acting chief registrar, Mohammed Saneem, has told the 14th attorney general's conference in Natadola that lawyers must also 'not tell their clients their case is progressing when it is stacked on the shelf.'
The implications of the huge backlog is in itself interesting, more so coming from Saneem who was singled out recently by the Australian magistrate, Greg Bullard, as one of those who was despicable to him during his short stint in Suva.
Saneem has told lawyers at the conference to respond to emails or phone calls within 48 hours.
The acting president of the Fiji Court of Appeal, Justice William Calanchini, has also made a big deal about the basics reminding lawyers to be in robes for court sittings.
But as Bullard, who was dismissed after just a month with the Fiji judiciary has revealed in a second letter, those running the judiciary have motives for the way they are doing things.
Bullard, a former legal practitioner in the Supreme Court of New South Wales, was bundled out of Suva after challenging the independence of the Legal Practitioners Unit and the abnormal practice of judicial officers being beholden to the Chief Justice' and the illegal attorney general.
Here is his second letter on what happened:
Dear Legal Practitioners of Fiji,
The reasons for my termination were never given by the Attorney General. This may clarify some of the reasons. Some of my observations overlap and cannot properly be delineated into their own sub-heading. Where this occurs, I will put include both parts that“dovetail”. Parts 1 and 2 fall into this category.
Resources of the Legal Practitioners Unit (LPU)
During my first week in my role as Head of the LPU, it was clear that the Chief Justice and the Chief Registrar were not interested in adhering to the provision of resources that had been allocated and approved by the Public Service Commission (PSC) in June 2012. The Chief Registrar and Chief Justice were using the allocated staff members for their own purposes.
The staffing model, as approved by the PSC, allowed for 17 staff. The LPU offices had space for 6. There was close to 1000 open files at this point in time. Many of these complaints that I reviewed could be described as vexatious. They appeared to be unresolved to allow the Chief Justice recourse against the named legal practitioners. There was no other obvious reason that these files were still “open”.
Of the 17 staff, I did not get to meet half of them. The Chief Registrar, under the direction of the Chief Justice, had them seconded “elsewhere”. The Chief Justice utilised the legal officers for unrelated tasks. Of the existing staff, there were some new starters. After they had received some basic instruction, they were then moved elsewhere within the Judicial Department. There was no consistency. There was no stability.
The Unit had been allocated 5 legal officers. Two had experience within the unit, whilst three were new graduates. However, all five were capable and displayed sound legal skills. The three recent graduates were highly intelligent, highly competent and highly motivated.
Four of the five legal officers were often called away to perform “other tasks”, by the Chief Registrar and the Chief Justice. This was disruptive to say the least. The Chief Registrar controlled staff movement. It became evident within a short period of time, that he was setting the LPU up for failure, by not allowing them to undertake their LPU duties on a full-time basis.
The LPU also had access to two offices at the ILSC building for use on hearing days. This was not a problem as the Commissioner only attended the ILSC for hearings. We had no choice but to utilise this space to continue in our tasks. This was stopped in my third week by Commissioner Madigan.
I appreciate that in Fiji things work differently to what I am used to. However, his goes further than mere resources. This to me was a clear undermining of the proper functioning of the LPU by the Chief Justice and the Chief Registrar. Whilst the proper resourcing was seen by the Prime Minister as part of this critical reform, it became clear by the actions of the Chief Registrar and the Chief Justice that they did not share his view.
I recall a meeting with the Chief Registrar and the Chief Justice. I said words to the effect:
What you are asking me to do is like emptying a swimming pool with a cup, in the rain. I can build a pump.
Their response was:
We want you to use a cup.
It was at this point that I felt I had been set up to fail. All of my proposals, both administrative and legal, were ignored. However, I did provide the Chief Registrar, with a “blue print” of what was required to “build a pump”. I sincerely hope he puts these proposals into action.
Further, I requested that I be given an instrument of delegation, to save running even basic correspondence to the Chief Registrar for signing. This was a matter of poor practices and “double-handling” that was affecting the efficiency of the unit. The Chief Registrar asked me to draft the instrument. After consultation with the Chief Justice, this request was declined by the Chief Registrar. It became glaringly obvious, at that stage, that the Chief Justice was the de-facto head of the Legal Practitioners Unit and my role was basically redundant. This “flies in the face” of the discussions that took place between myself and the Chief Justice, prior to me coming to Fiji. It was clear that the role he described to me was never going to eventuate.
The Secretary of the Independent Legal Services Commission (ILSC)
In my first week on the job, it became clear that we needed to utilise the two offices in the ILSC building as we had insufficient space in the LPU offices to perform our functions and duties, properly.
In my first week, the Secretary of the ILSC, approached myself and two LPU legal officers to inform us that she had matters before the court in the next month. Her concern was that the legal practitioner who was engaged in her matter, had been suspended from practice for five years. She informed us that she had no receipt for monies paid and no bill of costs for work performed. This person (the Secretary of the ILSC) works within the justice system. She has facilitated potential VAT and income tax liability circumvention. A crime in its own right.
I invited her to lodge a complaint with the LPU and informed her that I would send a legal officer to assist her with the drafting of the complaint. I informed her that this would happen within two weeks. She was worried for her own part in the cash payments. I assured her that her willingness to come forward and disclose this fact, would be taken into full account. When two legal officers of the LPU sought to assist her in drafting the complaint she refused. Her verbal complaint to me was noted and ignored by the Chief Registrar. Section 99(2) of the Legal Practitioners Decree 2009, states:
(2) A complaint under subsection (1) may be made orally or in writing.
The Chief Registrar refused to formalise the oral complaint. Further section 100(1) of the LPD states:
100.—(1) The Registrar may investigate the conduct of a legal practitioner or a law firm or any employee or agent of any practitioner or any law firm, if the Registrar has reason to believe that the conduct may amount to professional misconduct or unsatisfactory professional conduct, even though no complaint has been made about the conduct or a complaint made under section 99 by any person or entity has been withdrawn.(emphasis added)
The Chief Registrar refused to invoke his powers under this section.
In my second week on the job (after her initial approach), I approached her to ascertain her willingness to assist the LPU. She informed me that Commissioner Madigan was aware of her potential complaint and the fact that she was the client of the legal practitioner who had recently been before the ILSC, and suspended. This caused me immediate and grave concern, as the Commissioner was clearly conflicted, both as a matter of fact and according to the principles enshrined in the “Code of Conduct” handbook. He should have recused himself from hearing any matter involving this Legal Practitioner.
After this meeting, I received the following letter from Commissioner Madigan. (see attached letter dated 17 October 2012). I had been in the job for 7 days at this point in time.
The letter is a complete fabrication by the Secretary of the ILSC and supported in full by the Commissioner. The conversation involved only myself and the Secretary. There were no witnesses to the conversation. In the third paragraph of that letter Madigan states:
GATES: 'Jungle Bunny'
I am astonished that you should approach my Secretary with an accusation without my leave…..
MADIGAN: 'Jungle bunny'.
Commissioner Madigan acted on unsubstantiated hearsay without first discussing the matter with me, thereby denying me any natural justice and procedural fairness. It is clear that he does not understand these principles of justice. Madigan had carbon copied the letter to the Chief Registrar and the Chief Justice. This is a person who is a High Court judge in Fiji, accepting hearsay as fact. His close working relationship with his Secretary gives rise to a clear conflict of interests. The irony, in this context, is crushing.
Secondly, we were not in court. I do not comprehend the reason for the Commissioner wanting me to seek his “leave” to speak with a complainant of the LPU.
It was at this stage that I realised my position was untenable. The Chief Registrar and the Chief Justice took no action against the Commissioner. It was clear that I was being “isolated”. However, I do not run from adversity.
Later, I gathered evidence to support a recusal application against the Commissioner from hearing any more of the Legal Practitioners matters, as there was clearly a perception of bias through a conflict of interests. I raised the issue with the Chief Registrar, who said words to the effect:
It makes no difference. Madigan is going to find against him (the Legal Practitioner) in the stay application. What’s the problem?
This conversation took place prior to the hearing of the Legal Practitioners stay application hearing. None of this excuses the actions of the said Legal Practitioner. However, these matters should be conducted with fairness and transparency to the accused and to safeguard the results, that is preventing grounds for an appeal. These concepts appear to be foreign to the Chief Justice, the Chief Registrar and the Commissioner.
The only legal practitioner in Fiji, whose matters the Commissioner should not preside over, is the very Legal Practitioner, in question. Surely another High Court Judge could have been seconded to preside over this matter. Not according to the Chief Justice. I urged the Chief Justice to speak with the Commissioner and ask him to stand down himself, to save him being embarrassed and humiliated, if the LPU were to make the recusal application.
The Chief Justice refused this proposal and vetoed the LPU from making its own application for recusal. My advice and legal analysis were again rejected by the Chief Justice. I was unable to make any decisions pursuant to transparency, accountability and integrity. This overwhelmingly confirmed that the Chief Justice was running the LPU. The Chief Justice controls the legal profession in Fiji. This is a travesty of justice and a shameless grab for power and control by him.
After the above issues unfolded, I withdrew from receiving any more directions of the Chief Registrar (in effect the Chief Justice). Under the terms of my contract [clause 2 (b)], I was to accept the directions of the Chief Registrar OR the Permanent Secretary for Justice.
Please note, this clause does not state and/or. Legally speaking, it is one or the other and cannot be both.
In my third week, after it became patently clear that my integrity would be compromised if I received any further direction from the Chief Registrar), I presented at the office of Ms Vuniwaqa, the acting Permanent Secretary for Justice. She did not give me any direction whatsoever. I then wrote to the Prime Minister seeking direction from him as I did not know where I stood.
Prior to my departure on 3 November 2012, the Prime Minister was too busy to see me. I informed him in that letter, that I would return to Fiji and present in his office on 12 November for the purpose of receiving further direction as I could not accept the directives of the Chief Registrar and the Permanent Secretary for Justice refused to direct me.
Upon returning to Fiji on 8 November 2012 (at my own expense as the Chief Registrar had not booked my flights), I was arrested at Nadi Airport by Fiji Airways staff/agents and Immigration officials. I was “escorted” to the Melanesian Hotel, in Nadi, by Fiji Airways staff/agents and placed under guard. I was refused the right to contact anyone by any means. I was held for 21 hours.
As my residency status had not been formalised, I had returned to Fiji as an Australian tourist for a two week stay. I intended to watch the Remembrance Day March (my Grandfather gave his life to defend the South Pacific), see the Prime Minister and return to Sydney. I am now banned for life from entering Fiji. No explanation has been given to me for this arbitrary arrest and detention, by anyone. I can no longer holiday in Fiji with my family as I have been doing for many years. My Fijian friends have been taken from me, courtesy of the Chief Justice.
As the Prime Minister and the Attorney General have not responded to any of my correspondence, I have been forced to seek Australian political intervention to secure the return of my barrister’s blue bag (containing my testamurs, my silks, my bar jacket, my jabot, my wig and my laptop computer and bag containing personal documents (approximately $7000 AUD in value). These items are currently housed in the Prime Minister’s Office. I left these items in that location to prevent them from being confiscated on my departure on 3 November 2012.
Please remember, I have no vested interest in supplying this information. It is impossible for me to return to Fiji in any event. I left without my personal property and my contractual entitlements. However, I left with my integrity and honour in tact, which unlike my personal property are irreplaceable.
No doubt this letter will be sent to a blog site. It is the prerogative of any recipient to do what they will with this correspondence. It has been emailed to legal practitioners in Fiji only. I have done this to preserve my undertaking that what happens in Fiji stays in Fiji. These observations, which are gleaned from my role as Head of the LPU are for Fijian eyes only, so you are acutely aware of what is happening in your justice system, if you are not already. They do not form part of the information provided to politicians in Australia.
I expect a great deal of criticism from bloggers. That is fine. I would fight tooth and nail to protect such persons rights to express their views. I have come to appreciate freedom of speech in a more profound way in recent weeks. I would fight to preserve the right for any person to verbally attack this correspondence. We should all enjoy the right to express our views, provided such expressions are objective and lacking in personal and subjective abuse.
The AG comes in for a lot of criticism. However, a “politician” is only as good as his legal counsel. The Chief Justice is that counsel. Any derision people have for the AG deserves to be levelled at the Chief Justice in equal portion.
In Australia, oversight and the investigative functions thereof, are often conducted by interstate and expatriated persons. This is done to preserve accountability, transparency and integrity. However, as I discovered in my short stint, Fiji has some highly talented lawyers. There is no need for expatriated judicial officers in Fiji. Those days are over. It appears that those remaining have nowhere else to go and are taking draconian steps to make themselves and their friends, immovable.
Gates and Madigan were the only “jungle bunnies” I encountered in Fiji. It remains to be seen if anyone has the will to stop him. I will consider my next correspondence (if any) in due course. There are more events that need to be brought under the spotlight of scrutiny. Gates and Madigan should be brought to account.
All it takes for evil to flourish is good men to stand by and do nothing.
Former Head of the LPU