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Phillips v Council of the Samoa Law Society [1998] WSCA 4; 01 1998 (6 March 1998)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

C.A. 1/98

IN THE MATTER of the Law Practitioners Act 1976

BETWEEN

IN THE MATTER TOOA KATHLEEN ANN PHILLIPS
of Apia, Barrister and Solicitor of the Supreme Court of Tonga
Appellant

AND

THE COUNCIL OF THE SAMOA LAW SOCIETY
a body corporate duly established under the provisions of Part IV of the Act
Respondent

Coram: The Rt Hon. The Lord Cooke of Thorndon, President
The Rt Hon. Sir Maurice Casey
The Hon. Sir Ian Barker

Hearing: 6 March 1998

Counsel: T.K. Enari for Appellant
Katalaina M. Sapolu for Respondent

Judgment: 6 March 1998

INTERIM JUDGMENT OF THE COURT
DELIVERED BY SIR IAN BARKER

This is an appeal from the judgment of the Chief Justice refusing to admit the appellant as a Barrister and Solicitor of the Supreme Court of Samoa, save on the restricted basis approved by the respondent Law Society.

The reasons of the Chief Justice for his decision were not available either to counsel or to this Court because of the circumstances of urgency under which this appeal was brought. It was argued on the last day of the current sittings of the Court.

Counsel agreed that the appeal to this Court should be by way of de novo hearing. Consequently the Court considered all the affidavits and heard oral testimony from the appellant herself and from The Hon. R. Dalgety, Q.C., formerly a Judge of the Supreme Court of Tonga.

The appellant is a citizen of Samoa who has attained the age of 21 years. There are several attestations to her good character. Consequently, she met three of the four qualifications for admission as a barrister, or as a solicitor or as both, to be found in s.19(1) of the Law Practitioners' Act 1976 ('the Act'). Section 19 provides as follows:

19. Qualifications for admission - (1) Every person is qualified for admission as a barrister or as a solicitor, or as a barrister and solicitor of the Supreme Court who –

(a) Is a citizen of Western Samoa; and

(b) Has attained the age of 21 years; and

(c) Is of good character; and

(d) Holds the prescribed qualifications.

(2) For the purpose of subsection (1), "prescribed qualifications" means qualifications prescribed from time to time, by the Council, by notice published in the Gazette.

(3) No qualifications shall be prescribed for the purpose of subsection (1) unless they are or are in the opinion of the Council equivalent to -

(a) An academic qualification in law; or

(b) A professional qualification in law; or

(c) An academic and professional qualification in law -

in any country or territory, or in any jurisdiction within any country or territory, which in the opinion of the Council has a legal system similar to that of Western Samoa.

(4) The Secretary shall cause every notice published in the Gazette under subsection (2) to be also published forthwith in the Savali, but publication in the Savali shall not affect the validity of the notice.

The appellant was admitted to the Bar of New South Wales on 21 May 1993. She holds a Diploma in Law from the Barristers and Solicitors Admission Boards of that State. She has not practised as a Barrister there. She deposes that she is eligible to be admitted as a solicitor in that State, once she has completed practical legal training at the College of Law in Sydney or is exempted from that course.

After her admission to the New South Wales Bar, she worked in New Zealand - principally in community law centres, but also as a law lecturer at a polytechnic and as a research officer. To have been admitted as a Barrister and Solicitor of the High Court of New Zealand, she would have needed to have passed certain examinations prescribed by the New Zealand authorities. She did not sit those examinations.

From February 1995 to September 1996 she worked for a legal firm in Tonga. She was admitted as a legal practitioner in that jurisdiction.

On 6 November 1997, she applied to the Supreme Court of Samoa for admission as a Barrister and Solicitor of that Court. The Society advised the Chief Justice of its attitude to her application in a letter dated 2 February 1998 which reads as follows:

RE: TOOA KATHLEEN ANN PHILLIPS - APPLICATION FOR ADMISSION AS BARRISTER AND SOLICITOR OF THE SUPREME COURT OF SAMOA

I write to advise you that your Honour that the Council of the Law Society at its meeting held on 4 December 1997 consider Ms Phillips application for admission as Barrister and Solicitor of the Supreme Court of Samoa and has resolved as follows:

1. Ms Tooa Kathleen Ann Philllips be admitted as a Barrister Sole, upon the following conditions:
   

(i) She works at a law firm under supervision of a Solicitor for a period of 16 months; and

(ii) not to undertake any Solicitors work; and

(iii) not to operate any trust accounts.

2. That upon completion of her 16 months supervised employment, Ms Phillips and then reapply for admission as a Solicitor, upon which the Council's will then review her? practice as a Solicitor.
   

The Council in reaching its decision has carefully considered Ms Phillips application and annexures as well as the previous Council's decision on the matter and has also carefully compared Ms Phillips qualification for admission to that of Mr Richard Lussick and has? the following:

(a) Ms Phillips is not eligible for admission as a Solicitor in New South Wales ("NSW") pursuant to the Rules of Solicitors Admission of the Admission Board of the Supreme Court of NSW ie not having attained the 5 years working experience as a Barrister.

(b) Richard Lussick, a temporary admittee as a Barrister and Solicitor of the Supreme Court in 1986, a holder of the same qualification. At the time of filing his application for temporary admission as a Barrister and Solicitor in this Honourable Court, Mr Lussick had in excess of 5 years working experience as a Barrister and was eligible and qualified to be admitted as a Solicitor of the Supreme Court of New South Wales. Mr Lussick had in fact in excess of 12 years experience as a Barrister.

Accordingly, the Council is not satisfy that Ms Tooa Kathleen Ann Phillips is qualified for admission to practice as a Solicitor of the Supreme Court of Samoa, unless she satisfies the conditions imposed by the Council should Ms Phillips be admitted as a Barrister Sole.

Yours faithfully,

(signed)

Jerry J S Brunt

SECRETARY

In the Law Society's letter to the Chief Justice and indeed in the course of argument, there seemed to be some confusion between the requirements of s.19 of the Act for admission to the legal profession and those of s.6 of the Act which restricts the right of solicitors to commence private practice.

Section 6 provides as follows:

6. Restrictions on right of solicitors to commence private practice - (1) No solicitor shall commence practice as a solicitor on his own account, whether in partnership or otherwise, unless-
   

(a) During the period of 5 years immediately preceding the date on which he so commences practice, he has had at least 3 years' experience as a barrister, or as a solicitor, or as a legal officer in any Government department, either in Western Samoa or in any other country for the time being approved by the Council for the purposes of this subsection; or

(b) The Supreme Court has, on his application, granted him leave under subsection(2) to commence practice on his own account; or

(c) At any time previously, he has lawfully practised as a solicitor in Western Samoa on his own account.

(2) On hearing any application under subsection (1) by a solicitor for leave to practise on his own account, the Supreme Court may grant leave accordingly to the applicant, subject to any conditions that it may think proper, if it is satisfied that the applicant is, by reason of his age, qualifications, and experience, a fit and proper person to be permitted to practise as a solicitor on his own account.

(3) Every person who contravenes subsection (1) commits an offence and is liable on conviction to a fine not exceeding $500 and to a further fine not exceeding $50 for every day on which the offence has continued.

The Supreme Court has a wide discretion to allow a solicitor to commence practice on his or her own under s.6(1)(a) and (2). However, under s.21, the Supreme Court may make an order for admission as a barrister, a solicitor, or both "where it is satisfied that the applicant is qualified under s.19 for admission ..." Much of the argument revolved around the conditions (if any) that should be in place should the appellant wish to practise on her own account as a solicitor.

The fundamental difficulty is that nobody can be admitted unless he or she complies with the requirements of s.19(1)(d) which, by virtue of s.19(2) requires the holding of qualifications prescribed from time to time by the Council of the Law Society by notice published in the Gazette. Section 19(3) states the conditions precedent for the prescribing of qualifications.

The only qualifications so prescribed are as follows:

"Every person is qualified for admission as a barrister or as a solicitor, or as a barrister and solicitor of the Supreme Court who has -

EITHER:

1. A qualification entitling him to be admitted as a barrister and solicitor or as a barrister or as a solicitor to the Supreme Court of New Zealand;
   

OR:

(a) Proof of graduation from a law school accredited by the Association of America Law Schools, The America Bar Association, or the appropriate State Bar Association; and

(b) Proof of admission to practise before the Highest Court of a State of the United States of America.

Thus it will be seen that qualifications for admission in either New South Wales or Tonga are not 'prescribed qualifications' under s.19(3) because they have not been gazetted as required by the subsection. Counsel informed us that some practitioners with New South Wales qualification had been admitted in Samoa and that the Law Society had passed ad hoc resolutions as it purported to do in this case. Unfortunately, we see no way out of the clear intention of s.19 which given the prescribed qualifications gazetted allows the admission to the profession of only persons with only New Zealand or United States qualifications.

Miss Sapolu, in her capacity as President of the Law Society, advised the Court that the Law Society Council could, if so minded, procure the gazetting of the qualifications from other jurisdictions as a matter or urgency.

We think that in fairness not only to this appellant but others with New South Wales qualifications currently practising in Samoa, that the Council should as a matter of urgency procure the gazetting of New South Wales qualifications as either a barrister or solicitor. We mention barrister as well as solicitor because s.6(1)(a) specifically refers to practice for three years as a barrister in an approved jurisdiction as being a sufficient qualification for practising on one's own account. We emphasise that there are two quite separate exercises - one the admission process and one the approval to practise on one's own.

It would be unfair to the appellant to determine her appeal her on a narrow point of jurisdiction, especially when the Law Society did not avert to the problem.

Consequently, we defer judgment on the merits of the appeal in the hope that the Law Society will procure the gazetting of New South Wales qualifications as a matter of urgency. We hope that this can be done within two months at the most. Counsel are to inform the Registrar as soon as this gazetting has been accomplished or else if the Council intends to take no action in the matter.

The latter option would be unfortunate, given that there are persons who have gone through the admission process on the basis of New South Wales qualification. In view of Australia's position as the largest nation in the South Pacific with legal systems 'similar to that of Samoa' (to quote s.19(3)(c)), the Council might think it appropriate to make a blanket reference to all Australian jurisdictions comparable to that in the gazette notice quoted earlier referring to the United States.

Once the Court has received further advice concerning the gazetting of New South Wales qualifications, a judgment will be delivered on the merits of the appeal.

Solicitors:

Kruse, Enari & Barlow, Apia, for Appellant
Katalaina M. Sapolu, Apia, for Respondent