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Legal Practitioners (Disciplinary Appeals) Procedure Rules Published

Commencement: 11 November 1985

LEGAL PRACTITIONERS (DISCIPLINARY APPEALS) PROCEDURE RULES

Published Gazette No. 38 of 1985

ARRANGEMENT OF RULES

1. Interpretation
2. Appeal to Supreme Court by notice of motion
3. Notice of motion to be lodged at the Registry
4. Period of time in which to enter and serve notice of motion
5. Record of proceedings in which the order or decision appealed against was made
6. Listing of the appeal
7. Any other person considered a proper person to appear may appear at hearing
8. Extension of time, amendment of grounds of appeal, etc.

9. Chief Justice may order that evidence be taken again

10. Powers of the Committee
11. Powers of the Chief Justice on appeal
12. Security for costs

13. Discontinuation of appeal

14. Fees to be charged
15. Rules of practice and procedure before the Supreme Court to apply when no provisions therefor is made in these rules

To provide rules of procedure for appeals against orders and decisions of the Disciplinary Committee.

1. Interpretation

In these rules unless the context otherwise requires –

"Act" means the Legal Practitioners Act, Cap. 119;

"Council" means the Law Council established in accordance with section 2 of the Act;

"Committee" means a Disciplinary Committee appointed in accordance with section 7 of the Act;

"Chief Justice" means the Chief Justice of the Supreme Court of Vanuatu or a Judge of the Supreme Court who is acting in such capacity;

"Registrar" means the Registrar of the Supreme Court of Vanuatu;

"Registry" means the Registry of the Supreme Court;

"Secretary" means the Secretary to the Council appointed in accordance with section 4 of the Act.

2. Appeal to Supreme Court by notice of motion

An appeal against any order or decision of a Committee shall be by notice of motion, which shall state the grounds of appeal and whether the appeal is from all or part only of the order or decision. Unless the Chief Justice otherwise orders, the notice of motion shall be served on every party to the proceedings before the Committee and also on the Secretary and the Attorney General.

3. Notice of motion to be lodged at the Registry

(1) The appellant shall enter the appeal by lodging a copy of the notice of motion at the Registry.

(2) The notice of motion and all other documents relating to the appeal shall be intituled "Re a Legal Practitioner" or, "Re an Employee of a Legal Practitioner", as the case may be, (without naming him) and in the matter of the Act.

4. Period of time in which to enter and serve notice of motion

The notice of motion shall be served and the appeal entered within 15 days after the date on which the appellant is notified of the order or decision against which the appeal is brought.

5. Record of proceedings in which the order or decision appealed against was made
(1) The Secretary shall, within 7 days after the service upon him of the notice of motion, lodge at the Registry the record of the proceedings in which the order or decision appealed against was made, including the evidence given thereat and the statement of the findings of the Committee in relation to the case.

(2) The appellant and every other party affected by, or interested in, the order or decision shall be entitled upon payment of the fees prescribed in rule 14 to obtain from the Registrar a copy of the documents lodged by the Secretary in accordance with subrule (1); the Chief Justice may in his discretion waive payment of such fees by the appellant or any other party.

6. Listing of the appeal

(1) The Registrar shall list the appeal for hearing in accordance with such directions as the Chief Justice may give.

(2) The appeal shall be heard in chambers unless the Chief Justice, upon the application of any party affected by or interested in the order or decision appealed against, shall order that it be heard in open court.

7. Any other person considered a proper person to appear may appear at hearing
Any person who desires to be heard on the motion and appears to the Chief Justice to be a proper person to be heard shall be heard notwithstanding that he has not been served with the notice of motion and such order as to costs and expenses may be made for or against him as the Chief Justice shall think just.

8. Extension of time, amendment of grounds of appeal, etc.
The Chief Justice shall have power to grant leave to amend the grounds of appeal, to extend the time limited by rule 5(1), and to make any other order relating to the appeal, or such terms as he shall think just.

9. Chief Justice may order that evidence be taken again

(1) The Chief Justice may, if he thinks it necessary or expedient in the interests of justice –

(a) order any person who would have been a compellable witness at the hearing before the Committee to attend and be examined before him; or

(b) order the evidence of such witness to be taken by affidavit, whether such witness was or was not called at such hearing; or

(c) direct the Committee to receive the evidence of any person who would have been a compellable witness at the hearing before it but did not give evidence and to furnish a report in writing stating whether if they had received that evidence before making their findings and their order or decision, their findings or their order or decision would have been in any way different from what they were and, if so, what they would have been.

(2) (a) The Chief Justice may, with or without application, direct the Committee to furnish a report in writing giving their opinion upon any point or question arising in the case or upon appeal.

(b) The Registrar shall forthwith notify the Secretary of such direction.

(c) The report of the Committee shall be lodged by the Secretary at the Registry and a copy thereof shall be served by, or under the authority of, the Registrar on every party to the appeal.

10. Powers of the Committee

(1) If, in exercise of his powers under rule 9(1)(c), the Chief Justice directs the Committee to receive the evidence of any person, the Committee shall have the like power of compelling the attendance of such person as is exercisable by a Committee in respect of the attendance of witnesses under the provisions of the Legal Practitioners (Disciplinary Procedure) Rules including any amendment thereto.

(2) The report of the Committee shall be lodged, together with the record of the additional evidence, by the Secretary at the Registry, and a copy of such report and record shall be served by, or under the authority of, the Registrar on every party to the appeal.

(3) Rule 5(2) shall apply, mutatis mutandis, in respect of every such report and record.

11. Powers of the Chief Justice on appeal

(1) On the hearing of the appeal the Chief Justice shall have power to draw inferences of fact and may −

(a) allow or dismiss the appeal;

(b) vary the order or decision in such manner as he shall think fit;

(c) quash the order or decision and remit the matter to the Committee, or to a differently constituted Committee, for the application or complaint to be investigated and heard de novo;

(d) make any order or decision which ought to have been made or given, and make such further or other orders as the case may require including an order as to the costs and expenses of and incidental to the investigation and the appeal.

(2) The powers of the Chief Justice under subrule (1) may be exercised notwithstanding that the notice of appeal has not been given in respect of any particular part of the order or decision appealed against.

12. Security for costs

Where the applicant or complainant in the proceedings before the Committee is the appellant, the Chief Justice may make such order as he shall think just for the giving by the appellant of security for costs and expenses of and incidental to the appeal.

13. Discontinuation of appeal

An appellant may at any time discontinue his appeal by serving notice of such discontinuance on the Secretary and on every other party to the appeal and, if the appeal has been entered, lodging a copy of the notice in the Registry. The appeal shall thereupon be treated as having been dismissed with an order for payment by the appellant of the costs and expenses of and incidental to the appeal, including any costs incurred by any Committee concerned therewith or by the Council.

14. Fees to be charged

The fees to be charged for copies of documents provided to the appellant and the other parties by the Registrar shall be the same as the fees prescribed by the Rules of the Supreme Court for providing copies of documents filed in the Supreme Court.

15. Rules of practice and procedure before the Supreme Court to apply when no provisions therefor is made in these rules
Subject to the foregoing provisions of these Rules, appeals to the Supreme Court against any order or decision of a Committee shall be governed by the practice and procedure for the time being of the Supreme Court in the exercise of its original jurisdiction in civil proceedings.